According to a student note in the Stanford Law Review, blogs can and eventually will influence the Supreme Court.  In Rachel C. Lee’s article, she discusses the flaws in the current ethics law to handle this form of ex parte communication with the court. “Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era” is an interesting article.  Lee’s argument stems from the influence bloggers had on Kennedy v. Louisiana.

Nobody, Lee included, really knows if Justices or their staff are reading legal blogs like SCOTUSblog or Social Media Law Student.  Lee’s article cites “a trend towards citing more online sources, including blogs” and the fact that “on a recent workday [SCOTUSblog] registered over a hundred hits from an IP address registered to the Court.”  Lee admits that “[o]f course, these visits could be from court personnel other than the Justices and their clerks” but points out that “…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.”  She is absolutely right.  We don’t know how or if blogs are influencing the Court, but it is a real possibility.

Lee argues that the current ethical rules are insufficient to properly prevent attorneys from using blogs as an ex parte form of communication with the Court.  The note’s biggest suggestion is the implementation of a new rule of professional conduct

A lawyer representing a party or an amicus curiae in a matter shall not make an online statement concerning the merits of a pending or impending proceeding before the Supreme Court of the United States in the matter, if such statement can be reasonably interpreted as intended to influence the Justices, law clerks, research attorneys, or other court personnel who participate in decision-making for the proceeding.  Intent to influence such decision-makers is not precluded by the existence of other purposes for the statement.

The article explains a number of weaknesses to the rule, and suggests several alternative calls for action.  The most logical is Part E of the article, “Regulate the Court.”  If the Court regulated itself and its clerks and staff, there would not be an issue.  Lee devotes only one paragraph to this possibility.  However, this is the most viable option.  If the Court polices itself, there will not be concerns over a rule for attorneys.  The legal system often calls on judges to filter out information they should not consider in their decisions.  Is it too much to expect the Supreme Court to ignore these blog posts which are potentially intended to influence their decisions?  Should they have to ignore them? Or is this a nonissue?

Read Lee’s article here and let us know what you think in the comments.

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