The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.