The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Rumor has it that when a victorious party is trying to persuade the Supreme Court not to grant cert. in their case, they will sometimes hire experienced specialists in Supreme Court practice to write the brief in opposition, but then keep their names off the papers so that it looks as if the case remains unexceptional from the respondent's point of view. I've been giving this practice some thought ever since reading a very smart post by Ian Samuel this month, arguing that this ghostwriting practice is unethical. (Ian and his co-host Dan Epps also discuss this at length in the subscribers-only "Patreon" episode of their excellent podcast, First Mondays, but Ian's post and the ensuing comment thread contain the core arguments.)
Ian's argument is simple and powerful, which is that the practice is unethical because it is a form of deceptive concealment from the court of a material fact. As I understand Dan's position, it's that the court's rules probably do not reach so broadly, but he would be open to seeing them reformed. Similarly, even some of the skeptical comments on Ian's post profess agnosticism on whether it would be good to reform the rules and forbid ghostwriting.
So I thought somebody should lay out the basic case against regulating legal ghostwriting, and it may as well be me.
First, I take it as common ground that this is a question on which the Supreme Court's rules could ultimately come down either way. If the court's rules required those opposing certiorari to list all counsel involved, or not to have a deceptive motive when deciding which counsel to list, that would be the rule; similarly, if the court's rules required only the counsel of record to be listed and left everything else up to the parties. We may have a dispute about what the current rules actually do require, but that seems like the least interesting part of the dispute. The more interesting question is whether the rule should be clarified, and if so, in which direction.
Second, I think it is important to consider that there the different possible reasons that a counsel opposing cert. might want to conceal the fact that they've retained top-tier Supreme Court counsel already. Ian writes as if the major reason that this fact is relevant to the court is that it is an indication that the case will be well-lawyered, a fact that makes the court somewhat more interested in the case. I think that consideration is overstated—absent certain positional conflicts, the respondents side of a granted case is likely to be swarmed by good lawyering, or at least likely enough that it would be foolish for the court to turn down a case because the respondent's brief is bad.
Rather, I think the salient issue is often this: The fact that respondent has already started spending money on top-tier Supreme Court counsel is a sign that respondent itself recognizes the likelihood of the case being granted. They may have various arguments that the case shouldn't be granted, they may even believe them, but they wouldn't spend money hiring new lawyers specializing in Supreme Court practice unless they thought the threat of a cert. grant was high enough to justify the expenditure. Knowing that even the respondent thinks a grant is plausible is like an admission against interest that gives the court more confidence in granting cert.
But once we see the issue this way, we might be more sympathetic to a system that didn't want to force that private information to be disclosed. Or imagine a proposed Supreme Court rule that required the respondent to disclose how many dollars or billable hours were spent on a brief in opposition so that the court could decide how seriously they should take it. The rule seems unduly intrusive and a little unfair. We don't usually make parties price themselves out of a good litigating position. (We sometimes privilege offers made in settlement negotiations, for instance.) Indeed, the law is full of exclusionary rules that sometimes allow parties to shield information from a decision-maker where we think that shield serves a public purpose.
Third, this brings us to the likelihood that the no-ghostwriting rule would have unfortunate side effects. If respondents have to disclose that they have hired top-tier Supreme Court counsel to write the brief in opposition, and if that disclosure does indeed make the court more likely to grant the case, then surely on the margins a lot of respondents will stop hiring such counsel at the opposition stage. That means worse briefs, or at least briefs less likely to be directly responsive to the Court's subtle concerns about shallow/stale splits, minor vehicle problems, and the like. That in turn increases the chance of bad grants and hurts the Court, possibly more than the current ghostwriting regime.
Indeed, the brief in opposition may be one of the documents whose quality matters most to the Supreme Court as an institution—this is the stage at which it is easy to miss a technical vehicle problem, to misunderstand the practical importance of a circuit split, and thus to waste a substantial amount of court and party time if the case is granted and becomes a wild goose chase. Moreover, the sheer volume of cert-stage cases makes it much harder for the Court's independent research to make up for the party's deficiencies, though of course the very smart law clerks in the cert. pool will do their best.
So the Court ought to be falling over backwards to encourage respondents to hire counsel who are knowledgeable about the certiorari process and really understand the criteria. One good way to do that is to not require disclosure so that parties don't worry that they will have to pay a high price for taking efficient precautions. (To use another evidence analogy, think of the rule making subsequent remedial measures inadmissible to prove negligence or culpability). We can't impose a disclosure regime without recognizing that it will also change behavior—maybe in ways that we don't want.
Fourth and finally, I worry that attempts to ban the practice of ghostwriting would either be vague or overbroad. For instance, we can imagine a rule requiring all attorneys who worked on a brief to be listed (perhaps beyond a de minimis threshold). But that rule sweeps in the many attorneys who might have other, more sympathetic, reasons for wishing to be excluded. For instance, what about the attorney who is willing to lend aid to an unpopular cause but wishes to avoid private retaliation or harassment? What about the moonlighter who doesn't want his employer to control his extracurricular activities? Or what about the attorney who wishes to help with a discrete issue in the brief but doesn't want his name associated with the whole thing because other portions of the brief are beneath his standards? I'm not convinced that the ghostwriting practice is so nefarious that it is worth sweeping these folks in.
One could try to write a narrower rule, one that only applied to non-disclosure whose purpose was to conceal from the court the cert-worthiness of the case, but it's hard to imagine that rule being administered in a fair, or even predictable, fashion.
I can see why Ian is troubled by ghostwriting; but it may be better to just let it be.