There is a new way to argue at the Supreme Court—a conversation that exists completely outside of the courtroom at 1 First Street: “Virtual Briefing.”
A forthcoming paper* in the Cornell Law Review by professors Jeffrey L. Fisher (Stanford Law School) and Allison Orr Larsen (William & Mary Law School) posits that:
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.
Their paper defines virtual briefing as online advocacy—written or oral—targeted at cases pending at the Supreme Court and outside of the normal briefing process. It includes blogs (i.e., SCOTUSblog or Above the Law), podcasts (like First Mondays or Cato Daily), and Twitter posts, for example.
Influence of Twitter
The professors demonstrate that:
One law clerk, for example (whose name and chambers we will protect) began to follow Al Jazeera News, Checkpoint (military blog), and Yemen Updates all while the Court was actively considering the travel ban case, Trump v. Hawaii, and concerned about the specific allegation in Yemen that the waivers for “hardship” were not really being used. Another law clerk started following “On Labor Blog”—a blog devoted to “workers, unions, and politics”—right around the time Janus v. AFSCME, the public unions case, was briefed and argued.
Influence of Google
In the age of Google, law students are taught in legal writing classes to “Google” cases before beginning a first draft of their brief. Clerks likely bring these modern-day research skills with them to the Supreme Court:
And particularly at the cert stage when a law clerk is authoring a memo for multiple Justices of the Supreme Court and tasked with determining whether an issue is of national importance, canvassing the blogs and the podcasts seems like a natural first step.
Influence of Elite Opinion
Justice Kennedy is on record with the Wall Street Journal saying that he directs his clerks to follow legal blogs:
Justice Kennedy gave a little insight as to why. He explained that law professors are more relevant to him now in an age of blogging: ‘Professors are back in the act with the blogs. Orin Kerr, one of my former clerks, with criminal procedure [and] the internet area, Mike Dorf, Jack Goldsmith. So the professors within 72 hours have a comment on the court opinion, which is helpful, and they are beginning to comment on when the certs are granted. And I like that.’ It seems there is a growing sense that the Justices are keenly aware of the judgment coming instantaneously from blogs and other legal commentators.
Virtual Briefing Appears in Court Opinion
The authors demonstrate that not only do judicial clerks and Justices listen to online arguments, but some of these arguments appear in Court decisions.
The most familiar example of this phenomenon is the “broccoli horrible” from NFIB v. Sebelius, the case about the Affordable Care Act and the Commerce Clause challenge to the individual mandate to buy health insurance. The now well-known argument goes like this: if Congress could force us to buy health insurance because it is good for us, they could also force us to eat broccoli, which would be a liberty crisis. The analogy gained popularity from conservative legal bloggers on the Volokh conspiracy blog.
The broccoli horrible, in other words, was an important part of “virtual briefing” for the first ACA challenge; it came largely from outside the traditional adversarial process. The word “broccoli” does not appear in any of the party briefs in the Sebelius case or in the Eleventh Circuit opinion being reviewed by the Court.
And yet the analogy made quite an impact in the case. Justice Scalia specifically invoked the analogy at oral argument, the word “broccoli” was used 12 times in the Supreme Court opinions, and the analogy made an appearance in each of the three main opinions addressing Congress’s power under the commerce clause.
According to many observers, in fact, the broccoli horrible analogy was a game-changer in the litigation.
Read the current version of paper here.
* Larsen, Alli Orr and Fisher, Jeffrey L., Virtual Briefing at the Supreme Court (May 14, 2019). 109 Cornell Law Review (2019, Forthcoming). Available at SSRN: https://ssrn.com/abstract=3388080.