(Reuters) - Law professors Jeffrey Fisher of Stanford and Allison Orr Larsen of William & Mary have spent the last couple of years studying the rise of blogs, podcasts and social media dedicated to litigation at the U.S. Supreme Court. They know as well as anyone how quickly new ideas about the court are picked up and chewed over. But Fisher and Larsen told me Thursday that even they have been surprised at the speed of the reaction to their newly-posted draft law review article, "Virtual Briefing at the Supreme Court."
The paper, slated for publication in a forthcoming Cornell Law Review, examines what Fisher and Larsen call the “open secret” that old-school briefs are no longer the only form of Supreme Court advocacy. “Today’s Supreme Court arguments are developed online,” the profs wrote. “They are fleshed out and explored in blog posts; the advocates are invited to elaborate on popular podcasts (sometimes even just days after their oral argument); and the justices’ musings are then analyzed and re-analyzed publicly and by a wide variety of players at the very same time the law clerks are writing bench memos and the Justices are making their decisions.”
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How influential is this “virtual briefing”? Fisher and Larsen documented that at least 21 Supreme Court clerks, of the 67 who served during the 2017 and 2018 terms, had Twitter accounts following legal blogs, podcasts and lawyers and professors who opine on Supreme Court cases. (That was Larsen’s research assistant’s idea.)
The professors also described four instances in which arguments asserted outside of the bounds of traditional briefs appear to have shaped the justices’ decisionmaking. In the 2012 case challenging the Affordable Care Act, the paper said, the Volokh Conspiracy blog originated the argument that if the government could mandate the purchase of health insurance, it might just as well have the power to force citizens to eat broccoli. Though none of the parties’ briefs mentioned the “broccoli horrible,” as the paper describes the argument, Justice Antonin Scalia picked up on it and asked about it during oral arguments.
Similarly, in the litigation challenging the Defense of Marriage Act, it was blogging law professors – rather than advocates in the case – who pushed the argument that the federal law impinged on states’ rights. And in last year’s case of the baker who refused to make a wedding cake for a gay couple, Justice Anthony Kennedy pegged his opinion to a religious hostility argument highlighted in a blog post by the Heritage Foundation the day before oral argument.
Though Justice Kennedy once told The Wall Street Journal that he encouraged his clerks to read blog posts written by former clerks, Larsen and Fisher found that the justices are loathe to admit any reliance on advocacy outside traditional briefs – the entire category that the law professors describe as virtual briefing. Only one majority Supreme Court opinion included a citation to a blog, their paper said, and that was to a factual account about Medal of Honor recipients, not a post asserting a legal argument. Only when law professors convert online analysis into traditionally filed amicus briefs, the paper said, do justices cite their arguments in opinions.
The professors told me the justices’ reticence about outside influences is telling. If the Supreme Court weren’t a bit queasy about blogs, tweets and podcasts, why not cite them? “There is a feeling perhaps — reflected in the citation practices — that it is improper to use the product of virtual briefing as actual authorities in Supreme Court opinions,” Larsen and Fisher wrote.
That lack of transparency is one of the professors’ big concerns about the rise of virtual briefing. One could argue, as Fisher and Larsen point out, that adding a wider variety of voices to the debate of consequential legal issues will enhance the court’s decisionmaking. But there is also a demonstrable risk, the professors write, that justices will only listen to additional voices that echo the views they already hold.
Arguments espoused in blog posts or podcasts aren’t tested by the adversarial process of traditional briefing, the paper said. Nor are bloggers or podcasters subject to the disclosure requirements of Supreme Court amici. The justices and their clerks could unknowingly be reading blog posts or tweets sponsored by one of the parties and never even know it, the paper pointed out.
Larsen and Fisher, a frequent Supreme Court advocate, are sure they’ve identified what Fisher called “a super hard problem.” They seem less sure about how to solve it, telling me that their aim in publishing the draft version of their paper was to start a conversation about the influence of advocacy outside traditional bounds.
The paper kicks around ideas about restricting outside commentary about Supreme Court cases – which presents big First Amendment problems – or restricting the court’s consumption of virtual briefing, which raises enforcement issues. Instead, Fisher and Larsen propose a way to bring online commentary and podcasts “into the fold of traditional briefing.” When justices learn of intriguing arguments by outside commentators, the paper said, they can call for supplemental briefing from the parties or appoint an amicus to advocate the position.
In our interview, Fisher suggested the Supreme Court could even host a site for public comments on cases, like an administrative agency receiving comments on proposed rule changes. I shudder to think of the kinds of commentary the court might receive on controversial cases, but it’s certainly an intriguing thought.
As I mentioned, the paper has provoked some disagreement. Law professor William Baude of the University of Chicago, for instance, posted a detailed response at the Volokh blog, arguing that while virtual briefing may disadvantage the parties in Supreme Court litigation by directing the justices to arguments they haven’t emphasized, the phenomenon probably benefits the public. “For better or worse, Supreme Court opinions are taken to resolve major legal issues for the whole country, not just the parties,” he wrote. “So it seems perverse to let the strategic interests of a few parties keep the rest of us out of the conversation.”
Baude also makes what I consider a strong case that virtual briefing promotes transparency because it takes place in the open, unlike “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.” (I think Baude’s right on this point. But I also think the justices ought to admit in citations when they’ve adopted an argument they first saw in a blog post.)
Duke law professor Stephen Sachs wrote a Twitter thread about why the paper’s suspicion of virtual briefing is “misplaced.” In his view, Larsen and Fisher overestimate the distinction between traditional media and independent bloggers and tweeters posting legal commentary. Open commentary, Sachs said, is less likely to mislead than op-eds filtered through media gatekeepers.
Orin Kerr, a law professor at USC and a prolific commentator who is mentioned several times in the paper, said on Twitter that part of the fun of being a professor is to espouse persuasive arguments without regard for institutional interests. “Having spent more time studying the Stored Communications Act than any reasonable person should, the least I can do is blog about it when its technical structure suddenly seems relevant to a major Supreme Court case,” Kerr joked. “Nerds gotta nerd, etc.”
Fisher and Larsen told me they’re paying close attention to the paper’s response. The point of publishing the paper as a draft, Fisher said, was to ask people to pause and think about the impact of virtual briefing before it’s too late to do anything about it.
“We’re crowdsourcing the piece,” Larsen said, “in an ironic turn.”