Legal Commentary

Some online research revealed that the mutual funds editorial was by no means unique. Times editorial advice to the Supreme Court has, in fact, flowed very freely--increasingly, I believe, on argument days. For example, on October 6, 2009, in Animal Cruelty and Free Speech, the editorial page advised the Court to affirm in United States v. Stevens (No. 08-769), a case that was to be argued that same day. The following day, in The Constitution and the Cross, an editorial gave the Court advice on how to decide a case to be heard that day involving a cross that had been erected on federal land by the Veterans of Foreign Wars. The same thing happened on February 23 and 25 and March 2 and 24, when editorials titled Justice for American Indians, And Unequal Justice for Some, The Right to DNA Evidence, and Corporate Money and Campaigns ran. On January 9, November 4, 12 and 25, and December 10, 2008, editorials on The Court and Voter ID's, The Court and 'Fleeting Expletives,' A Case of Religious Discrimination, Indefinite Detention, and Accountability and the Court all appeared on the day of oral argument.

A newspaper, as Ms. Lee observes (at 1553), "will have its own priorities as to when it wishes to run an editorial," and, to be sure, the Times editorial page does not confine itself to commenting on the very day of argument. Its editorial advice to the Court may also come in curtain-raisers at the beginning of the Term, before certiorari has been sought or after it has been sought or granted or a case has been argued. Still, the spate of day-of-argument editorials stands out: because of their timing they are most clearly addressed to the Justices themselves, rather than to ordinary readers. It is as if the editorial board were submitting an amicus brief--shorter than the real thing, of course, but much later in time--indeed, so late (long after briefing has concluded) that the parties cannot respond unless perchance the editorial's perspective happened to come up in the course of the argument or in the rare case of post-argument supplemental briefing.

In United States v. Grace, 461 U.S. 171 (1983), the Supreme Court held unconstitutional an Act of Congress that prohibited the "display [of] any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement" in the Court's building or on its grounds, including the sidewalks. The Court rejected a government effort to defend the statute on the notion that it should not appear to the public that the Court "is subject to outside influence." According to the Court's paraphrase of the government's position, '[c]ourt decisions are made on the record before them, and in accordance with the applicable law. The views of the parties and of others are to be presented by briefs and oral argument. Courts are not subject to lobbying . . ." (emphasis added). But isn't that what a day-of-argument editorial does, liberated from the constraints of the adversary system? Obviously, no Justice has to read The Times, but let us assume that most of them do so. (Justice Thomas has said he does not.) Is it to be further assumed that those who do read it pointedly avoid the editorial page on argument days? This seems unlikely.

Does it matter that The Times and other newspapers engage in same-day editorializing on pending cases? To the extent that members of the bar are not involved, no legal ethics issue is presented. Even if a lawyer were involved, as Comment [3] to Rule 3.6 of the ABA Model Rules of Professional conduct notes, "the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small. . . ." But even without lawyer participation, the practice implies that the newspaper has influence over the disposition of particular cases and not merely in the court of public opinion. This implication, however subtle and whether or not justified, does not foster public confidence in the administration of justice.

Happily, we live in a society (mostly) committed to free speech. The Times need have no fear of being prosecuted for contempt because cases on which it chooses to editorialize are still sub judice when the paper arrives on readers' doorsteps or computer screens. But that is not the sole criterion. As a friendly observer, my vote would be that newspapers resist the temptation to editorialize on pending appeals on the very day of argument. If a newspaper or other news outlet wishes to influence the outcome, let it do so the old-fashioned way: by hiring counsel and filing a brief like a true amicus curiae. And if it disagrees with the outcome of a case, let it editorialize about the need for corrective legislation or the importance of selecting Justices of a particular bent. But let's allow the Justices a modest and journalistically self-imposed cone of editorial silence on argument days. Journalism and public understanding won't be harmed a bit, and we'll have taken a small step toward underscoring the integrity of the adversary system and what distinguishes the judicial process from other important forms of public decision making in our society.

Full post as published by Balkinization on November 29, 2009 (boomark / email).