Sunday, November 29, 2009

Same-Day Service: Editorializing on Argument Days

Eugene R. Fidell

A Stanford Law Review Note by Rachel C. Lee--Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 Stanford L. Rev. 1535 (2008)--perceptively examines the ethical dimension of blogging targeted at the Supreme Court ("shadow-briefing"). Although the blogosphere is certainly more in vogue than hard-copy newspapers, Ms. Lee rightly notes the potential for abuse by members of the bar who write op-eds and stimulate well-timed news articles. Even in this era of declining newspaper readership, it is still worth asking whether conventional, internally-prepared editorials that urge the Supreme Court to rule a particular way on pending cases are also problematic, and if so, when? The practice is surprisingly common at The New York Times, but also occurs at The Washington Post, among others. A good thing? A bad thing? Does it matter?

Earlier this semester, I noticed an editorial urging the Justices to take a particular action in a case that was to be argued that very day. The case concerned management fees for mutual funds. The editorial concluded with the suggestion that the Court "rule that fund advisers have a responsibility to set fees that are comparable to those they charge other customers, and what would be negotiated in a fair, arm's-length deal. It should then order the District Court to reconsider the case." I am not sure what it was about the editorial that most caught my attention--that it ran on the very day of oral argument or that it went so far as to comment not only on the merits, as one would expect, but on the precise procedural order the Court should enter. Despite my esteem for The Times, this editorial struck me as regrettable.

Some online research revealed that the mutual funds editorial was by no means unique. Times editorial advice to the Supreme Court has, in fact, flowed very freely--increasingly, I believe, on argument days. For example, on October 6, 2009, in Animal Cruelty and Free Speech, the editorial page advised the Court to affirm in United States v. Stevens (No. 08-769), a case that was to be argued that same day. The following day, in The Constitution and the Cross, an editorial gave the Court advice on how to decide a case to be heard that day involving a cross that had been erected on federal land by the Veterans of Foreign Wars. The same thing happened on February 23 and 25 and March 2 and 24, when editorials titled Justice for American Indians, And Unequal Justice for Some, The Right to DNA Evidence, and Corporate Money and Campaigns ran. On January 9, November 4, 12 and 25, and December 10, 2008, editorials on The Court and Voter ID's, The Court and 'Fleeting Expletives,' A Case of Religious Discrimination, Indefinite Detention, and Accountability and the Court all appeared on the day of oral argument.

A newspaper, as Ms. Lee observes (at 1553), "will have its own priorities as to when it wishes to run an editorial," and, to be sure, the Times editorial page does not confine itself to commenting on the very day of argument. Its editorial advice to the Court may also come in curtain-raisers at the beginning of the Term, before certiorari has been sought or after it has been sought or granted or a case has been argued. Still, the spate of day-of-argument editorials stands out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing.

In United States v. Grace, 461 U.S. 171 (1983), the Supreme Court held unconstitutional an Act of Congress that prohibited the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Court's building or on its grounds, including the sidewalks. The Court rejected a government effort to defend the statute on the notion that it should not appear to the public that the Court "is subject to outside influence." According to the Court's paraphrase of the government's position, '[c]ourt decisions are made on the record before them, and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying . . ." (emphasis added). But isn't that what a day-of-argument editorial does, liberated from the constraints of the adversary system? Obviously, no Justice has to read The Times, but let us assume that most of them do so. (Justice Thomas has said he does not.) Is it to be further assumed that those who do read it pointedly avoid the editorial page on argument days? This seems unlikely.

Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment [3] to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice.

Happily, we live in a society (mostly) committed to free speech. The Times need have no fear of being prosecuted for contempt because cases on which it chooses to editorialize are still sub judice when the paper arrives on readers' doorsteps or computer screens. But that is not the sole criterion. As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.


Why have newspapers (and blogs?) refrain from comment instead of requiring the judges to take reasonable care not to encounter such material on argument days? Isn't that what juries have to do?

I guess it's a hardship of some kind to avoid reading the Times editorial fairly often, but it doesn't seem to be a huge hardship.

The judges already have read briefs and will hear oral arguments, but op-eds (different papers likely promoting different views, sometimes both sides offered) really will influence them one way or the other in some notable fashion?

If so, it is done in the acceptable way newspapers influence anyone in the promotion of its end of informing the public. To the degree it does influence, unsure why it being on argument day matters too much. It is suggested they offer amicus briefs. Does this mean op-eds beforehand (providing the justice more time to digest it) is questionable too?

I am not under the impression this practice is new. Op-eds about pending matters have a long history. I'm with the first comment: if need be, the justice avoid the op-eds that day. Why deny the general public at the height of interest an analysis?

Mr. Dooley long ago noted that Supreme Court Justices follow the "illiction returns." As for editorials around the time of oral argument, they may be aimed more at getting the attention of some in the public who may not have been aware of the pending case or of the issues than attempting to influence a Justice or two. CJ Roberts' umpire concept is not at play since the Court's decision is not instantaneous, such as calling a ball or a strike, or whether a baserunner is safe or out. Rather, the process is deliberative over many, many months. These newspaper editorials may end up down the road impacting "illiction returns." I just can't imagine a Justice holding a wet finger in the air checking editorial winds in advance of oral argument. Then again, it is possible that a Justice may, because of such an editorial, devise or revise a question or comment for oral argument, but not in such a transparent manner that the media might pick up on it. (Political Scientists may have already studied this.)

BTB*, what about the impact on Justices of public gatherings outside the Court by interest groups on the day of oral argument? These groups do vote.

*By the Bybee

I am certain members of the court do not waste their time reading the banal editorials of the New York Times on the day of argument. They have more than enough reading to finish before oral argument.

In any event, a paragraph or two of an editorial is highly likely to merely repeat an argument made at greater length and with greater support in the parties' papers.

"Does it matter?" No.

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