,
11 tweets,
3 min read
Read on Twitter
1/ I agree with virtually everything in Will's post, and with most of the points in @StephenESachs' follow-up thread. A few complementary observations:
i. As Will notes, it's nothing new. Justices and clerks have been consulting sources outside the record since the dawn of time.
i. As Will notes, it's nothing new. Justices and clerks have been consulting sources outside the record since the dawn of time.
2/ Indeed, anecdotal evidence suggests that Justices used to directly consult much more regularly with trusted scholars and others on issues in pending cases. I suspect it happens less frequently now, but that the practice varies among the nine.
3/ Apart from any possible breaches of confidentiality re: the inner workings of the Court (something the Justices presumably take care to avoid), I'm not especially troubled by this, even though the parties don't have an opportunity to "cross-examine" the outside sources.
4/ ii. I'm a DOJ alum and, I suppose, a bit old-school, so my strong inclination is that parties & advocates shouldn't add to their formal submissions: "Our briefs and arguments speak for themselves" ought to be the default. Nor should they subsidize others to make their case.
5/ I'm not even keen on parties/advocates “working the press,” although I doubt that practice ever affects the Justices.
iii. Scholars shouldn’t write posts that they don’t believe (in the way that zealous lawyers for parties might sometimes do).
iii. Scholars shouldn’t write posts that they don’t believe (in the way that zealous lawyers for parties might sometimes do).
6/ iv. Nor should scholars take $$ from parties to write even those posts that they *do* sincerely believe. And neither scholars nor anyone else should fail to disclose if the parties are subsidizing outside-the-record "briefing."
7/ v. Contra Paul Horwitz, I find nothing especially troubling about scholars trying to influence the Court with legal arguments, in any forum, including amicus briefs and "virtual briefing." I don't understand his insinuations that doing so is "political" or "partisan."
8/ Again, however, they shouldn't write (or appear as amicus to support) anything they don't believe, unless they are transparently acting as counsel, not as scholar--and even then, I tend to be of the Dick Fallon view that such role-mixing is fraught w/dangers . . .
9/ ... which is why in those few cases where I've acted as counsel for non-scholars, I've been careful not to write anything I don't believe (something that can limit one's representational opportunities!).
10/ vi. Finally, I share Will's and Steve's doubts that the "virtual briefing" gave the Justices any arguments they didn't already have in a couple of the cases Fisher/Larsen identify, including Jones & Masterpiece Cakeshop.
11/ In the latter (Masterpiece), I'd wager that AMK became concerned about Commissioner Rice's "most despicable pieces of rhetoric" remark in the many weeks between when the Justices received the record and when they granted cert. See:
balkin.blogspot.com/2017/12/state-…
balkin.blogspot.com/2017/12/state-…
