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Article Excerpt
INTRODUCTION
I. THE PHENOMENON OF EX PARTE BLOGGING II. EX PARTE BLOGGING UNDER THE CURRENT ETHICAL FRAMEWORK A. Publicity B. Ex Parte Communications by Attorneys to Judges C. Receipt of Ex Parte Communications by Judges III. OPTIONS FOR REFORM A. Do Nothing B. Do Too Much C. Regulate Parties and Amici D. An Open Invitation to Blog E. Regulate the Court CONCLUSION
INTRODUCTION
Several intertwined issues appeared prominently in the Supreme Court's recent decision in Kennedy v. Louisiana: (1) whether a nonhomicide crime can be punished by the death penalty, how to evaluate the existence of a national consensus on the question, and whether the Supreme Court's supervision of the "evolving standards of decency" imposes a one-way ratchet on the death penalty. But the story of the Kennedy case--in which the Supreme Court held that it is unconstitutional to execute someone for raping a child (2)--also touches on a subtler problem. Kennedy offers a glimpse at the increasing potential for speech outside the walls of the nation's highest court to affect the decisions issuing from that court. With postings on legal blogs (3) now offering prompt, detailed, and readily accessible analysis of Supreme Court cases, is it time to reevaluate the ethical standards that govern the interplay between lawyers, the Internet, and the Court? Scholarship on the problems of improper publicity and ex parte communication has not yet begun to grapple with the power of blogs to rapidly reach large audiences--possibly including Justices or their clerks--with persuasive arguments on pending cases. This Note offers a first analysis of the contours of an emerging issue facing attorneys litigating before the Supreme Court.
One of the high-profile cases of the 2007 Term, Kennedy v. Louisiana had its genesis in the horrific rape of an eight-year-old girl in 1998. (4) Five years later, a Louisiana jury convicted the child's stepfather, Patrick Kennedy, of aggravated rape. (5) The jury sentenced him to death. (6) No one had been executed in the United States for the crime of rape--either the rape of an adult or a child--since 1964. (7) Indeed, the Supreme Court held in 1977 that imposing the death penalty for the rape of an adult woman was unconstitutional because capital punishment "is an excessive penalty for the rapist who, as such, does not take human life." (8) Nevertheless, the state of Louisiana, along with five other states, had subsequently authorized the death penalty for the rape of a child. (9) The Supreme Court agreed to hear Kennedy's case to resolve the question of whether the Eighth Amendment prohibits imposing the death penalty for child rape as it does for the rape of an adult.
Pointing to a growing number of state legislatures that had considered or enacted laws allowing child rapists to be punished by death, (10) the state of Louisiana argued that increasing public outrage over sexual crimes against young children had led contemporary society to see the death penalty as an appropriate punishment for these crimes. (11) The Supreme Court disagreed. On June 25, 2008, after surveying the "national consensus" (12) and consulting its own judgment about the suitability of the death penalty for child rape, (13) the Court announced in a five-to-four opinion that such a punishment violated the Eighth Amendment. This decision drew considerable attention, (14) and both presidential candidates took the opportunity to express their disapproval of it. (15)
With most Supreme Court cases, the release of a decision is the end of the road. Not so for Kennedy. Three days after the opinion was published, a military appellate attorney, Dwight Sullivan, noted on his blog that the decision contained a potentially significant error. (16) In evaluating the national consensus against the death penalty (or lack thereof), both the majority and the dissent believed that "Congress has not enacted a law permitting the death penalty for the rape of a child." (17) Yet Sullivan observed that in the National Defense Authorization Act for Fiscal Year 2006, Congress provided that the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ) for the rape of a child would be "death or other such punishment as a court-martial may direct" until the President otherwise prescribed. (18) None of the briefs by the parties or amici had brought this statute to the Court's notice. Now, however, the formerly obscure provision became the center of attention.
Eugene Fidell, an attorney specializing in military law, spotted Sullivan's blog post and mentioned it to his wife, New York Times writer Linda Greenhouse. (19) She broke the story of the Supreme Court's mistake as a frontpage article in the New York Times. (20) Legal blogs circulated the story and discussed its implications. (21) The Justice Department even telephoned the Clerk of the Court to accept responsibility for not notifying the Court of the statute, (22) although the United States had been neither a party nor an amicus in the case. Then, on July 21, the state of Louisiana formally petitioned the Court for a rehearing, followed a week later by a motion from the Solicitor General for leave to file an amicus brief supporting Louisiana's petition. (23)
The Supreme Court rarely grants a rehearing, (24) but in this case, the Court invited briefs on the question from Kennedy, the state of Louisiana, and the Solicitor General of the United States. (25) In their briefs, Louisiana and the Solicitor General contended that the passage of the 2006 statute, along with a subsequent Executive Order (26) authorizing the death penalty for child rape under the UCMJ, fatally undermined the majority's holding in Kennedy. "The Court's analysis rests on a critical error of federal law," (27) they argued, as the recent explicit endorsement of the death penalty for child rape by both political branches of the national government should call into question the Court's conclusion that there existed a national consensus against such punishment. (28) On the other hand, Kennedy argued that military law was irrelevant to the analysis of a national consensus regarding the civilian criminal justice system, (29) that the congressional and presidential actions did not manifest any specific attention to the matter and did not validly authorize the death penalty, (30) and that in any case, merely "add[ing] one more jurisdiction to the tally" should not alter the Court's ultimate conclusion. (31) Meanwhile, Sullivan continued to follow the case, posting his criticisms of Kennedy's brief immediately after its filing (32)--several of which were picked up by Louisiana's supplemental brief (33)--and analyzing more favorably the state's and the Solicitor General's briefs. (34) On October 1, the Court declined to rehear the case and issued a modification of its earlier opinion, acknowledging the omission but explaining that it did not alter the validity of the majority's previous analysis. (35)
The oversight in the Kennedy opinion was not the first factual error in a Supreme Court decision, nor even the first arguably relevant to the Court's reasoning in a case. (36) But in contrast to earlier eras, in which mistakes were unlikely to become notorious, (37) the rapid online dissemination of Supreme Court opinions and the ease of communicating any detected errors means that the occasional flaws will much more frequently become public knowledge now. (38) Indeed, just such a "micro-discovery" (39) or error-correction function (40) is cited as one of the advantages of legal blogs. (41)
Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Perhaps not. Established channels still have power, for one thing. It is quite possible that Sullivan's discovery in Kennedy would not have amounted to anything if it had not been amplified by the New York Times, and his discovery was, after all, formally presented to the Court through Louisiana's petition. And at the end of Kennedy, the flurry of speculation and briefing resulted in a reaffirmation of the original outcome. (42) But the Kennedy case illustrates the potential for blogs to have real influence on the course of litigation, both by noting errors and by generating arguments that may be adopted by a party. Even the tradition-steeped world of the Supreme Court is not insulated from the online conversations of bloggers.
What does it mean for advocates and the Court to have an array of case-specific legal analyses a mouse-click away? Kennedy demonstrates some of the likely consequences, and to the extent that error-detection and argument-generation by a third party improve the quality of the Court's final product, blogging may be beneficial. (43) But the possibilities for the Court and the outside world to interact through the new technology extend beyond the indirect communication illustrated by Sullivan's posts. In particular, blog posts written by counsel for parties or amici in litigation pending before the Court may represent an old problem--attempts to influence the administration of justice--in a new guise. In this context, as the line between talking about the Court and talking to the Court softens, conventional understandings of the ethical constraints on publicity and ex parte communications may be inadequate.
This Note will explore the phenomenon of ex parte blogging and its ethical implications. Part I will examine the way in which blogging could be a tool of advocacy for lawyers and the evidence that the Court may be vulnerable to its use. Part II will analyze how ex parte blogging would be treated under the current framework of ethics rules for attorneys and Justices, and determines that ex parte blogging is not regulated effectively at present. Part II! will then survey the options for responding to the problem, while considering the distinctions between blog posts, law review articles, and newspaper editorials. The Note will conclude with an evaluation of these options and an invitation for the legal community to begin to consider how it wishes to respond to ex parte blogging.
I. THE PHENOMENON OF EX PARTE BLOGGING
In Kennedy, the interaction between Dwight Sullivan's blog and the Supreme Court was mediated through traditional media and the formality of a petition and briefing by parties. But there is every possibility that the Court could in some cases be directly influenced by content in a blog. The Court may still place ceremonial quill pens at counsel tables before oral argument, but there are computers behind the doors of the Justices' chambers. Only the Justices themselves can say to what extent they or their law clerks browse the Internet, (44) or how they handle the information they might acquire along the way, but there are clear indications that the Court may be quite familiar with the online universe.
There are several legal blogs that attract a large number of readers, (45) but perhaps the most prominent website focusing on the Supreme Court is SCOTUSblog. (46) Many attorneys following the Court's business check SCOTUSblog regularly for news and commentary, and it appears that they have company from inside the Supreme Court building as well. On a recent workday, the site registered over a hundred hits from an IP address registered to the Court. (47) Of course, these visits could be from court personnel other than the Justices and their clerks, and some of the visits could be merely to peruse the court calendar or read coverage of a recently released decision. But a steady visitor to the site will be exposed to lists of cert petitions to watch, discussions of the filed briefs in various cases, and recaps of oral arguments, along with links to news stories or other blogs with similar material--all touching on the merits of pending litigation.
In addition to the browsing habits of Court staff, the citations in official opinions from the Supreme Court and lower courts reflect a trend towards citing more online sources, including blogs. (48) In 1996, Justice Souter apparently became the first federal judge to cite to an Internet source in a reported opinion, (49) and the Supreme Court cited a legal blog in 2005, referencing Professor Douglas Berman's Sentencing Law & Policy as the location of a particular document. (50) Furthermore, two compilations of court citations to blogs showed 32 citations in federal and state court decisions between January 2004 and August 6, 2006, (51) and 13 more by July 26, 2007. (52) Clearly, federal judges are encountering blogs and other Internet sources. (53) In fact, the published citations probably underestimate their exposure, as it would be extremely unlikely for judges to cite everything they or their clerks read. (54)
If the Justices or their clerks are potentially looking at blogs and other online commentary on litigation, then it becomes attractive for lawyers to attempt to influence their impression of an issue or a case via this means. Such an approach might be utilized either by litigants or by third parties such as law professors. Professor Eugene Volokh observes that as an alternative to traditional means of communicating with the courts, a blog post is:
much easier and quicker to produce than an amicus brief; it's often all we can do, since in many cases we know that we won't take the time and trouble to write a brief and it does double duty as a way of disseminating the blogger's views to the public as well as to the judges. (55)
Logically, such influence should be most effective at points before a decision (or tentative decision) on a case is reached. Thus, bloggers would most wish to convey information to the Court at certain times: before conference on a cert petition; after oral argument and before the voting conference on a case; (56) and during the period when the Court is considering any post-decision issues such as arose in Kennedy. (57) Some advocates are obviously thinking along these lines; approximately five to ten times every year, a party seeking certiorari urges SCOTUSblog to highlight its case in a blog post. (58)
Efforts to influence the Court's outlook on a case could take several forms. First, someone could manipulate publicity around a case to raise the Justices' awareness of it or to provide persuasive nonlegal information about it. Seeking mention of a cert petition on SCOTUSblog probably falls in this category, as might more traditional campaigns to generate coverage and friendly op-eds in the mainstream media. (59) On the other hand, attorneys could also use blogs to make legal points. Sullivan's posts about Kennedy are examples of how an unaffiliated lawyer might do so. (60) But lawyers associated with a case may also be exploiting this opportunity to get in an extra word with the Court, in what might be called "shadow-briefing."
It should be noted that the rules of the Court permit supplemental briefing after oral argument only "by leave of the Court," and never by an amicus. (61) Thus, an amicus posting after argument is potentially communicating with the Court at a time when the Court rules would ordinarily forbid such communication, and even a party doing so at this time would be circumventing the need to seek leave of the Court. (62) Yet counsel for parties and amici do post during this time.
For instance, in Burton v. Stewart, (63) Kent Scheidegger--attorney for the Criminal Justice Legal Foundation, an amicus supporting the respondent--posted a pair of blog entries within thirty-six hours of oral argument in the case. (64) His posts analyzed the legal issues discussed during the argument and rebutted the petitioner's reasoning with regard to a jurisdictional question. (65) In the end, the petitioner lost unanimously on jurisdictional grounds. (66) To be sure, Scheidegger's shadow-briefing may not have been responsible for that outcome. The Justices were interested in the problem at oral argument, (67) and after the argument, at least one other observer publicly identified the point as possibly critical to the case. (68) Nonetheless, the power to potentially reach the Justices with one more presentation of the best arguments for a side--particularly a version crafted after the insight that oral argument offers into the Justices' concerns (69)--could be invaluable to litigants.
And Scheidegger is hardly alone in posting case-related material in the interlude between oral argument and conference. Orin Kerr, co-counsel for the petitioner, put up two posts in the days before conference in Scott v. Harris, (70) analyzing issues raised during oral argument. (71) The day before conference in District of Columbia v. Heller, (72) Professor Carl Bogus, who filed an amicus brief on behalf of professional historians, posted an extended discussion of the proper interpretation of historical evidence about gun rights. (73) The afternoon after oral argument in United States v. Gall, (74) Professor Douglas Berman, who assisted with an amicus brief on behalf of the New York Council of Defense Lawyers, posted his view on a point that he felt counsel for Gall had neglected to emphasize at argument. (75) And the list could go on. (76) In any given case of such blogging, the lawyer may not have realized that the Court might see the post, nor thought of it as a way around the Court rules on supplemental briefing. But the potential for the Court to be...
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