Supreme Court

In Defense of "Virtual Briefing" (i.e. Blogging, Tweeting, Podcasting About Supreme Court Cases).

Some thoughts on a new draft article by Jeff Fisher and Alli Larsen

|The Volokh Conspiracy |

Two great experts on the Supreme Court, Alli Orr Larsen and Jeffrey Fisher, have posted a draft of a new article, Virtual Briefing at the Supreme Court, which argues that there is a widespread practice of trying to influence the Supreme Court through the internet, and that this practice "is at least worth a serious pause." Here's the abstract:

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. Today's Supreme Court arguments are developed online: They are dissected and explored in blog posts, fleshed out in popular podcasts, and analyzed and re-analyzed by experts who do not represent parties or have even filed a brief in the case at all. This "virtual briefing" (as we call it) is intended to influence the Justices and their law clerks but exists completely outside of traditional briefing rules. This article describes virtual briefing and makes a case that the key players inside the Court are listening. In particular, we show that the Twitter patterns of law clerks indicate they are paying close attention to producers of virtual briefing, and threads of these arguments (proposed and developed online) are starting to appear in the Court's decisions.

We argue that this "crowdsourcing" dynamic to Supreme Court decision-making is at least worth a serious pause. There is surely merit to enlarging the dialogue around the issues the Supreme Court decides—maybe the best ideas will come from new voices in the crowd. But the confines of the adversarial process have been around for centuries, and there are significant risks that come with operating outside of it particularly given the unique nature and speed of online discussions. We analyze those risks in this article and suggest it is time to think hard about embracing virtual briefing—truly assessing what can be gained and what will be lost along the way.

The article will be important reading for anybody who is interested in Supreme Court decisionmaking, and I learned quite a bit from it. But, perhaps unsurprisingly, my general attitude is somewhat more favorable to the practice of "virtual briefing," and I thought I'd offer a few of my own observations. (Full disclosure, I have of course blogged, tweeted, and podcasted about Supreme Court cases, and my Twitter feed is mentioned in the article, though I find it extremely unlikely that any Supreme Court case has ever been influenced by my Twitter feed. The Court isn't even influenced by my occasional amicus briefs!)

1. Regardless of whether one shares the article's normative cautions, the article documents an important phenomenon. A minor but important point for Supreme Court law clerks: even if your account is private, thorough investigation may be able to figure which lawyers, professors, or news sources you follow.

I'm also quite sure there are examples of blog posts or other online media having an effect on Supreme Court arguments or opinions, though I'm not sure that all of the examples documented in the article—Walter Dellinger's comments on NPR, the federalism argument in U.S. v. Windsor, or a Heritage Foundation report about Masterpiece Cakeshop—are the best examples. In each case, I strongly suspect that these points had made it to the Justices through other fora, though I suppose we don't know. But I'm sure there are other examples, even if we aren't sure which they are. (See point #4, below.)

Indeed, one thing that the article acknowledges, but I want to emphasize, is that many arguments that are made on the internet are also made in other more traditional fora—they make their way to amicus briefs, to newspaper columns, etc. Blogs and twitter provide much faster, and more accessible, ways to make, respond to, and curate these arguments, and maybe a different kind of emphasis or focus, but they really are just part of the ecosystem, and it may be hard to prove exactly what part.

Even this blog, which is sometimes alleged to have an influence on the the justices, usually contains arguments that can also be found in the authors' other writing, such as Sam's article on the national injunction, Orin's many articles on the digital Fourth Amendment, Randy's and Jonathan's articles and briefs on health care, and so on.

2. In any event, I think it is entirely understandable that the same people who occasionally care about amicus briefs, and who occasionally show some indication of having read the newspaper or listened to the radio, would also want to know if they are missing some part of the conversation that is happening online, where many serious lawyers now spend their time. Sometimes the Justices need information, and I do not think we should fault them for seeking it as widely as possible.

It's true that having more and more sources of information or argument about a case means that the parties have less and less control over what the Court can hear, or what it might be convinced to focus on. The authors make the point that this can be bad for the parties, who might well have made strategic choices to focus on one argument rather than another. But I am not convinced it is bad for the country. For better or worse, Supreme Court opinions are taken to resolve major legal issues for the whole country, not just the parties. So it seems perverse to let the strategic interests of a few parties keep the rest of us out of the conversation. When we rethink the stare decisis effect of Supreme Court opinions, I will reconsider outside briefing, virtual or otherwise.

I'd also add that I think it's a mistake to ask whether any of this writing persuades the Court. Even when the Court has already decided on a basic outcome and line of reasoning, it may run into collateral issues in collateral areas of law where its opinion could have unintended consequences. Having a lot of available information and commentary about possible landmines or implications helps the Court avoid accidentally doing harm to other areas of law.

3. Ultimately, part of the reason I am relatively unconcerned about "virtual briefing" and similar writing about the Court is that it takes place out in the open, where anybody can see it and anybody can respond. The latter point makes virtual briefing potentially more reliable than amicus briefs, where the briefing schedule and page limits makes it difficult or impossible for parties to respond to all of the briefing, or for the amici to respond to each other. And let's not even get into the "amicus machine" or the favor economy that allow some parties to take much better advantage of harnessing amicus support than others. (This does feed into the authors' discussion of whether the parties can or should engage in "virtual briefing," which is important. See #4 below.)

Similarly, I think "virtual briefing" fares much better than some of the older methods of influencing the Court outside of the briefs, such as the President's having private chats with the Justices, or fancy law professors' indoctrinating their students and then trying to slip the most loyal ones into clerkships. And I think it fares far far better than having the Justices simply fall back on what they remember learning in law school, or on their own imaginations.

The point of the regular briefing process is to give the parties a guaranteed opportunity to communicate with the court. The point of page limits is to make sure the court isn't overly burdened by such communications. Ditto oral argument and time limits. Were there world enough and time and attention, we'd want infinite arguments and infinite amici. But the briefing and argument rules are not like the rules of evidence at trial, which are supposed to stop the Court from considering facts outside of them. We don't have rules of evidence with respect to legal conclusions, for good reasons.

By taking place in public, and with tons and tons of adversaries on all sides, "virtual briefing" is harder to abuse and more legitimate than many of the alternatives. If it is unhelpful, I am confident the Court can ignore it, but if it is helpful, we ought to regard it as a public service.

4. In my view, the only real problem with "virtual briefing" is that we worry about it too much. We don't know how well "virtual briefing" works, or which arguments have really been found to be helpful or effective, because the Justices are unlikely to cite or acknowledge any of it. At least they discuss amicus briefs and legal scholarship occasionally.

Moreover, parties and Supreme Court advocates don't know whether it is appropriate to join the fray, even though they might often have useful responses to some points raised online. Should the parties keep quiet? Find friendly law professors to parrot their talking points online? Or start up a blog and post anything helpful that got cut from the briefs?

But it seems to me that these problems are exacerbated by suggestions that these blogs/tweets/podcasts are somehow shady, or less deserving of consideration than amicus briefs, news reports, law review articles, and all the rest. So I hope that the article does not have the effect of making it seem—in 2019—like the internet is anything other than a totally natural place for people to be trying to advance the best arguments they can about the things they care about.

To their great credit, Fisher and Larsen ultimately conclude that "perhaps the most sensible and realistic way forward" is for the Supreme Court to simply promote transparency by asking for supplemental briefing when a Justice sees a new and relevant argument online. But even this norm, it seems to me, is more likely to have a chilling effect than to be helpful to the Court or the country. Better to stick with the status quo: The Justices have the discretion to ask for supplemental briefing when they think they need it, and they don't have to tell us what sources inspired them to ask for it. The rest of the time, they don't usually tell us what they're thinking about while the case is still pending, and if they did have to tell us, that would probably chill free deliberation more than it promoted knowledge.

Maybe we should have more supplemental briefing orders than we do. But we don't need and shouldn't have any special rules for online sources compared to anything else.

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  1. Neat concept for a blog post, why I love the VC. With today’s rapid fire information, this “internet briefing” is akin to what Mr. Dooley pointed out a long time ago.

    “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns” wrote Finley Peter Dunne (1867-1936) in 1901, through his comic character Mr. Dooley.

  2. So long as it remains confined to legal arguments, I’m a lot less bothered by “Virtual Briefing” than I am by Supreme Court Justices making factual determinations based on matters outside of the record, matters which have never been subjected to testing by cross-examination or rebuttal from opposing witnesses. Yet the Supreme Court has engaged in such outside-the-record factual determinations for a long, long time, dating back to the infamous Brandeis Brief. If we could get rid of independent fact finding by the Court, I’m willing to live with some Shadow Briefing on purely legal arguments.

    1. So you don’t think anything can be the subject of “judicial notice?”

      Even Thomas has done that (cross burning case, early 2000s I think) where he used his own experience to influence the context of the case.

      1. Yes, SOME things (and the list is short) can be the subject of judicial notice. Look at Federal Rule of Evidence 201. The only matters that can be the subject of judicial notice are matters “not subject to reasonable dispute.”

  3. As a comment above notes, virtual briefings have long been a part of the Court’s information-gathering behavior: the form might change from lunchtime chats and newspapers to tweets-from-twits and blog posts, but the basic behavior remains the same. My earliest recollection of a description of the Court came from a public school teacher who repeated the mantra “The Supreme Court is a reflection of the public mores of the time” (a saying which was meaningless, but memorable, to third-graders) — and that is indeed part of the Court’s interpretive role. How can that judicial element — being the ultimate jury-of-public-peers — be fulfilled without some degree of public awareness? It isn’t a question regarding the technology… it is instead a question regarding the role of the Court itself.

  4. “A minor but important point for Supreme Court law clerks: even if your account is private, thorough investigation may be able to figure which lawyers, professors, or news sources you follow.”

    And I’m quite sure those are the *only* Internet sites these clerks access.

    1. Oooh. New wrinkle. What does it mean if they are interested in the plots of Stormy Daniels movies? Does it matter when the interest began?

      1. Stormy Daniels movies have plots? Who knew! And who on Earth would watch them long enough to follow a plot?

        1. Poor Mrs. DiverDan

          1. There has only been one Mrs. DiverDan, and I booted her bony lying ass out over 33 years ago.

  5. Huh. I never assumed that anyone was trying to influence the Justices (or their clerks) directly.

    I did, however, assume that people were trying to influence the arguments made by the parties and/or amici – offering them better arguments or exposing the holes in existing arguments. If the traditional participants then put those arguments in front of the Court, well, I’m having trouble seeing that as a problem.

  6. “Sometimes the Justices need information, and I do not think we should fault them for seeking it as widely as possible.”

    Should they check factual assertions from the record with search engines?

    Should they call friends for chats about legal theory relevant to a dispute up for decision?

    Should they call parties, or lawyers for parties, for clarifications?

    Should they provide a party with an opportunity to respond if they plan to decide a point against that party based on extracurricular investigation?

    Should they inform their colleagues, or a to-be-disadvantaged party, or the public, concerning these freelance inquiries? Should they be required by judicial ethics to report freelance inquiries in a written decision?

    That ‘widely as possible’ standard might benefit from some reflection; or, at least, from some safeguards.

    1. Interesting questions. My thoughts:
      “Should they check factual assertions from the record with search engines?” – With some cautions, yes. If a party puts something in the record that can be falsified with simple google search, getting to the truth seems more important than blindly following procedure. Yes, the adversarial process puts the burden of falsification on the opposing party but that duty is not necessarily bounded to them.
      The cautions, of course, assume the ability to divine truth from the myriad quack sites that show up in a search engine. So maybe the parties should be given an opportunity to challenge.

      “Should they call friends for chats about legal theory relevant to a dispute up for decision?” Here I think the answer is an unambiguous yes. Unlike juries, judges are supposed to be the source for the law. If a judge is unsure on a particular point, I would consider it malpractice to fail to consult a colleague. Judge to judge conversations have always occurred.

      “Should they call parties, or lawyers for parties, for clarifications?” Maybe. Clarification of ambiguity is good. On the other hand, endless ‘clarifications’ become inefficient and the process could be abused.

      “Should they provide a party with an opportunity to respond if they plan to decide a point against that party based on extracurricular investigation?” – If on a point of fact, yes. If on a point of law, probably no but maybe there are exceptions.

      “Should they inform their colleagues, or a to-be-disadvantaged party, or the public, concerning these freelance inquiries? Should they be required by judicial ethics to report freelance inquiries in a written decision?” – I don’t know. They never have been obligated to make such disclosures before even when, for example, the NY Times op-eds attempted to (and probably did) influence the Brown v Board of Ed decision.

    2. The Rev. Arthur L. Kirkland made a rational and coherent argument? Alright, who are you really, and what have you done with the Rev.?

  7. LOL, petitioner’s argument is lame. What a loser. #AFFIRMED.

    1. “What do you mean give reasons for the judgment? With these character limits?”

      1. It’s fine they don’t review reasons anyway, only judgments. But then somehow the reasoning is binding? Go figure.

  8. I am completely unconcerned about “virtual briefing” because it’s constitutionally protected speech. So even if it does create problems, which I don’t believe it will, it doesn’t matter, we’ll just have to accept it and deal with whatever consequences may arise.

    And, if it does create problems, how would anyone be able to determine that? Unless we can read the minds of the Justices, all we’ll ever have is speculation flavored with political bias.

  9. This doesn’t seem very different from what law review articles, newspapers, etc. used to do for important cases. The only difference is it’s quicker and more accessible. And that can have a downside – it’s likely nastier and less filtered, although as before different sources have different reputations.

  10. For any law clerks who might be reading, this is a great site.

  11. The fact that it is clearly unethical for the Justices (or their clerks) to do this, does not seem to have occurred to you. Too busy sucking up to them I suppose.

    1. Why is it unethical? Judges have always been allowed to research law themselves in law reviews and treatises. Not to mention older authority like English Law, law and normal dictionaries, the Federalist Papers, etc. There has never been anything unethical with a judge doing legal research. If the argument comes from a blog what makes it all of sudden unethical.

      If you are only talking about searching for facts instead of law that is a different story.

    2. The fact that it is clearly unethical for the Justices (or their clerks) to do this […]

      is part of the problem.

      If your notion of the justice system only works if the justices do not read or talk about current events, then your justice system does not work.

  12. CJC (non-Scotus) Hypos: RSS podcast subscriptions on pending matters? Clicking a PPC link to a law blog? Commenting anonymously on Volokh?

  13. […] May 29, 2019 Kimberly Rogers-Brown Supreme Court, WHITE HOUSE Leave a comment Link to original article […]

  14. Let me make the contrary case. From a law professor’s view who has a blog, I can see the attractiveness of this. You want to influence case results, this is a way to do it, just like law review articles always were, so why not.

    But you need to think like a lawyer here. Why do we generally have rules against going outside the record and outside the arguments in the briefs (including amicus briefs, which I also think there are too many of but at least are filed with the Court and served on the lawyers)?

    The reason is because the following situation is totally unfair. I represent Paula Petitioner before the Supreme Court. Randy Respondent’s counsel files a very well written responsive merits brief, and now I can answer those arguments in my reply brief. And if I say anything new and worthy of a response, Randy’s counsel can prepare to include a response in oral argument, or even move to file a supplemental brief it is worthy of it.

    And if Randy brings in Andrea Amicus to file another brief in support of Randy’s position, I can respond to Andrea’s points as well.

    But if the justices are reading some completely different argument, or factual contention, made online by Isadora Ideologue, which might even be completely wrong or fatally biased, and I don’t know what they are reading, I can’t respond to it. I certainly can’t take a chance and bring it up myself and front it, and thereby give it more attention than it deserves.

    I realize justices are human and aren’t hermetically sealed. But for us lawyers to do our job, they need to be deciding cases based on the record and the briefing, and law professors should honestly not be a part of that discussion unless they properly file an amicus brief or a law review article is cited in a brief.

    1. So reading an editorial by Tribe or Lino Graglia (if he’s still alive) over your morning omelette is out of bounds too, I gather?

      1. They really should not be reading op-eds directly relating to cases pending before them.

        1. So do they stop reading, or turn off the news, because they suddenly realize the discussion might be related to a case in front of them, or to one they might get next month?

    2. Taken to it’s logical conclusion, that reasoning says that judges should be completely sequestered and given no resources, assets or information sources beyond those introduced by the two lawyers. This includes taking away their access to legal journals, and even texts of the law itself.

      I’m sure the two sets of lawyers would appreciate this elimination of competition. It jumps their duopoly power to new heights. I don’t see that as beneficial for either society or the law as a whole.

      1. As a general rule, judges should generally NOT be reading media coverage and opinion pieces about their pending cases.

        I said, they are human and I realize they do. But they shouldn’t.

        And this isn’t about “competition”. It’s about the constitutional rights of our clients to effective representation, a neutral tribunal, and a decision on the evidence in the record. I really don’t mind if these law professors want to take cases and compete with me. That’s fine. What’s not fine is what I describe.

        1. Your lawyer is either a good lawyer or not. Effective representation is not diminished by third-party sources.

          Neutral tribunal is also not diminished by third-party sources. (Though I will grant that if implemented incorrectly, there could in some cases be an appearance of impropriety.)

          A decision based solely “on the evidence in the record” is not, as far as I can find, a constitutional right. Let’s unpack that, though, because I think you may be conflating factual investigations with legal investigations.

          There is a right to confront your accuser and that logically extends to a right to challenge facts. That doesn’t mean you can automatically exclude third-party facts, however. If you tried to argue that the moon is made of green cheese, the judge doesn’t have to wait until the opposing lawyer objects to tell you that you’re full of it. But I also don’t think that really triggers your concern because once the judicial notice is taken it’s now a fact in the record. (I will grant that there should be some process controls to keep judges from inserting junk science, etc.)

          You do not, however, have a right to have your case decided solely on the basis of whatever laws the two lawyers choose to highlight. If they misrepresent a relevant law, not only is the judge allowed to consider it, she could be required to. Having everything “in the record” is a convenience for the appellate judges, not a right that you hold as the accused.

          1. Every US jurisdiction has a rule against the consideration of anything outside the record. Repealing this would almost certainly violate due process.

            Of course it happens anyway, but we shouldn’t celebrate it.

            1. A rule does not automatically mean a constitutional right. In this case, I reiterate that the underlying reason for the rule is convenience of the appellate court, not a right of the accused. If you see a constitutional basis for the rule against consideration of things outside the record, please state it.

              Merely changing a rule (assuming it’s implemented uniformly) does not automatically violate due process.

              1. A longstanding rule that is implicit in the concept of the adversarial court system is an excellent candidate for constituting “due process”.

                And the reason for not considering things outside the record has nothing to do with appellate court convenience. It’s fundamental fairness. You apparently did not read my first post in this thread very well– it sets out exactly why it is unfair to a LITIGANT for matters to be considered outside the record.

    3. But doesn’t that apply just as well to a newspaper op-ed, not to mention “facts” the judges think they know or, for that matter, actual facts they may choose to ignore?

      1. Ideally, courts shouldn’t be considering any of those things. Again, they are human. But they aren’t supposed to.

  15. “Indeed, one thing that the article acknowledges, but I want to emphasize, is that many arguments that are made on the internet are also made in other more traditional fora—they make their way to amicus briefs, to newspaper columns, etc.”

    … law review articles …

    I don’t expect to find a law prof who’ll complain that publishing articles in law reviews ALSO amounts to lobbying courts to adopt a particular view, but… nobody even hides this.
    The complaint seems to be that whereas getting published in a good law review takes good work, extensive review by 2nd-year law students, and a good bit of prestige, anyone can use the Internet to publish. The challenge, of course, is to reach the level of good work, extensive review, and yes, a bit of prestige, to get judges to actually read it. Or maybe the complaint is that whereas briefs have a fairly well-defined format, writers on the Internet can choose whatever style suits them.
    (The real complaint, of course, is that since Internet writing isn’t actually submitted to the court, there’s no requirement that writers of Internet propaganda actually reveal when the facts or law aren’t helpful to their case. You can get sanctioned by the court for mis-stating the law in a brief. Not so much for mis-stating the law on a blog.

  16. “There is surely merit to enlarging the dialogue around the issues the Supreme Court decides—maybe the best ideas will come from new voices in the crowd.”

    I have a crazy idea–and hear me out on this. If the issue is one where we need the “best ideas,” maybe we ought to have a bunch more judges, like 435 of them and, to balance it out, 2 more from each state, regardless of its size. And then, to make this truly crowd sourced, we could have some sort of choosing process where people could offer and discuss their ideas, and we’d all choose who would be one of these special jurists. We could call this open-source court something interesting, like “House of Representatives” or “Congress.”

    1. That would never work.
      Such an institution would be too susceptible to the opinion of deplorable majorities who believe that a 15 week old gestating baby (see, “Foles, Nick and Tori”; and, many years ago, Mr and Mrs Smooth, only with triplets), is a baby and that Tori is that baby’s mother.

  17. Seeing as I’m (generally speaking) in favor of more transparency and less secrecy, I have no problem with “virtual briefings”.

    What I do have a problem with is the notion the general secrecy and lack of transparency in the SCOTUS’s dealings. No cameras allowed in the courtroom, their meetings to never be recorded. They hold their cards so close to the chest, and even if they fold they refuse to let you see their cards.

    The problem with “virtual briefings” isn’t the briefings. It’s the culture of secrecy around the SCOTUS that would make it a scandal for a justice to have their own “law review” blog.

  18. […] In Defense of “Virtual Briefing”( i.e. Blogging, Tweeting, Podcasting About Supreme Cour… […]

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