James at www.custompuppets.com and I decided that the Justice Scalia puppet needed a partner in crime, or at least a Statler to his Waldorf.
The majority’s reasoning is faulty. It proves too much. It sets the law upon a slippery slope. It is too clever by half. It is unprecedented. It cannot withstand scrutiny. It will lead to absurd results. It applies a one-way ratchet. It proves the opposite. It constructs, then tears down a straw man. It eviscerates settled caselaw. It misreads the pertinent text. It is dangerous. It will open the floodgates. It equivocates. It is judicial activism. It assumes its conclusions. It generates inefficiencies. It is unscholarly. It disregards public policy. It is circular. It usurps the jury’s function. It lacks any basis in precedent, legislative history, or the language of the pertinent regulation, statute, treaty, and/or Constitution, and in fact, runs directly contrary to all of these sources. It misapprehends the parties’ respective burdens. It tries to have things both ways. It is its own best refutation. It misses the point. It sows mischief. It is hopelessly ambiguous. It opens a Pandora’s box. It obfuscates rather than clarifies. It does not—indeed cannot—adequately answer the question. It is dicta. It unnecessarily decides a Constitutional question. It misreads the record. It elevates form over substance. It will have perverse effects. It disregards the evidence. It is inapposite. It misconstrues the issue. It is unsettling. It unleashes a parade of horribles. It denigrates a venerable institution. It pounds the table. It is internally inconsistent. It perpetuates iniquity. It is regrettable. It will be resigned to the ash heap of history. It is a Morton’s Fork. It is grossly unfair. It misses the mark. It collapses under its own weight. It is unworkable. It dashes settled expectations. It draws illusory distinctions. It is a non sequitur. It begs the question. It relies on overruled authority. It raises issues that the parties do not. It legislates from the bench. It cannot be taken literally. It seizes upon hard facts to make bad law. It is wrong.
Therefore, I concur only in part.
The July / August edition of The Atlantic has an interesting “Study of Studies” feature. The article canvasses a series of academic studies that have considered whether it’s a poor idea to schedule a surgery (or have a spontaneous visit to the ER) during certain times of the year, week, or day.
The recapped studies have addressed issues such as: (1) whether it’s a mistake to set a surgical appointment for July 1, when all new residents appear for duty (results: inconclusive; some studies have found a higher complications rate, while others have found no effect); (2) whether patients admitted to the emergency room on public holidays fare worse than those with the foresight to get very sick on other dates (results: apparently so); and (3) whether the time of day when surgeries occur makes a difference in their outcomes (results: again, it appears so [at least with regard to some procedures], possibly because doctors get tired as the day goes on).
The Atlantic article got me to wondering whether, and to what extent, a similar dynamic appears within the courts. For example, most law clerks start in August; do judges issue “worse” opinions around then — or better, because judges pay more attention to the workproduct of newbie clerks than they do later on during a clerkship?
(Here, I am reminded of a conversation with another district-court clerk [and Yale Law graduate] who called me in a panic during the first week of his clerkship, which commenced shortly after mine concluded. He asked me, “Kyle, I have a motion for summary judgment in front of me, and all of these declaration thing-ys in support of it. But these ‘declarations’ are just a bunch of out-of-court assertions, right? So aren’t they all, categorically, hearsay?” It took me about ten minutes to walk him off the ledge, and explain how the hearsay rule interacted with motion practice. I don’t relate this story to make fun of this fellow; we’ve all been there, at one time [or several] or another.)
I would have to think that someone has performed a study on this issue (although distinguishing “better” from “worse” opinions in this context certainly presents a sticky wicket; possibly one might focus on opinions issued by district courts, which may contain more-obvious errors?). If anyone out there has seen one, I’d appreciate it if they forwarded it to me.
UPDATE: Two kind people reminded me of this study of parole decisionmaking, which I had heard of, but had completely forgotten about. Any other tips in a similar vein would likewise be appreciated.
I’ve recently come to wonder if good judges, like good baseball players, good actors, and good writers, sometimes go through “slumps”–periods in which they issue opinions that do not meet their normally high standards. If judges can have slumps, I think Judge Kozinski — the Ninth Circuit’s cleanup hitter — might have gone through one last year.
The California Court of Appeal’s issuance of its opinion in Baughman v. Walt Disney World Co. yesterday got me to reading the Ninth Circuit Court of Appeals’ opinion in its Baughman case, issued exactly a year earlier. Both cases considered whether Disney violated the Americans with Disabilities Act by refusing to allow Segways at Disneyland due to safety concerns. (I use the past tense because Disney recently settled a nationwide class action involving similar allegations. My understanding of the settlement agreement is that Disney has agreed to provide patrons with standing motorized devices of its own design.) The California Court of Appeal said “no”; the Ninth Circuit, in an opinion authored by Judge Kozinski (joined by Judges Reinhardt and William Fletcher), said, “probably.”
My complaint here isn’t necessarily with the Ninth Circuit’s ruling, which reversed the district court’s entry of summary judgment in Disney’s favor. What the California Court of Appeal saw as a reasonable, amply justified safety measure, the Ninth Circuit instead perceived to be a blanket policy justified only by speculation. While Disney’s Segway ban strikes me, personally, as perfectly sensible, I don’t know enough about the ADA and its requirements to pick sides.
What bothers me instead is the overly casual tone and shallow content of Kozinski’s opinion in Baughman. It’s difficult to put my finger on the precise problem, but the opinion strikes me as awfully glib. Yes, even for Judge Kozinski. In all honesty, the opinion reads like something written by someone who is trying to imitate Judge Kozinski’s writing style. Similarly, Kozinski’s opinion shoots over the record; some of the safety concerns that proved dispositive to the California Court of Appeal receive no mention by the Ninth Circuit.
I haven’t listened to the oral argument in either Baughman case, so maybe these problems simply result from different litigation positions that Disney took in the two appeals, or appear for some other reason(s). But this wasn’t the only strange opinion that Judge Kozinski wrote last late spring-early summer: In Marsh v. San Diego, again sitting on a panel with two very liberal judges, he pulled a due process claim out of Everest-thin air. (Only to find that qualified immunity nevertheless applied.)
The point of this post isn’t to pick on Judge Kozinski, because as a matter of course he’s much smarter than I am, and doesn’t, and shouldn’t, give a tinker’s damn what I think. I’m just wondering about the broader question of whether judges go through slumps — periods in which they issue more than their usual share of awful, or at least subpar, opinions.
Everyone else — law professors included; one probably could view my career as one long, Ray Oyler-esque slump — have these sorts of downturns, whether due to distractions, health issues, or periods where it’s hard to concentrate or write. Why wouldn’t judges? (Here, I’m talking about several bad opinions in a row, not just the occasional clunker.) Plus, with judges, there’s an additional variable: clerks. Mix a couple of bad clerks with a hands-off judge, and you have a recipe for a year-long slump.
Anyway, just a thought, for the next time you see a bad run of opinions by a good judge.
To prolong the discussion of the John F. Kennedy library, that institution has been quite good about posting interesting documents from the Kennedy Administration online.
One such document, from March 1962, is titled “Names Deserving of Consideration for Court Vacancy.” This memorandum, authored by Ted Sorensen, lists possible candidates for the vacancy on the Supreme Court that was created when Justice Charles Whittaker retired. Ultimately, the nod went to Byron White. (The memo can be found within this batch of posted documents.)
If you’d like, slip back into a “Mad Men” state of mind and take a guess as to who appeared on the list. One hint: the list is divided into four categories: (1) Members of the Administration and the Senate, (2) Members of the Federal Judiciary, (3) Members of the State Judiciary, and (4) Members of the Bar and Academic Community. I’ll post the answers after the jump, along Sorensen’s recommendation to the President.
In other breaking news, I have ordered a Justice Scalia puppet from www.custompuppets.com. The puppetmaker has been kind enough to send me updates on how the puppet, under construction, is coming along. Here is the most recent photograph:
I know it looks like Justice Scalia is rocking a muscle t-shirt. In fact, the puppet’s robe and body are still in progress.
Inspired by this, I am considering ordering a Justice Kagan puppet as well, and then re-enacting Bert and Ernie skits, scene-by-scene, using the two. Scalia would play Bert.
I use a course reader for my Criminal Procedure class. Right now, I’m updating the reader for the Fall 2013 semester, which means lots of edits to the author’s text, plus adding a few cases and removing others.
One of the cases I am adding is Florida v. Jardines, the dog-sniff case from the past SCOTUS term. In re-reading Justice Alito’s dissent in Jardines, I thought this passage particularly interesting:
[I]n the entire body of common-law decisions, the Court has not found a single case holding that a visitor to the front door of a home commits a trespass if the visitor is accompanied by a dog on a leash. On the contrary, the common law allowed even unleashed dogs to wander on private property without committing a trespass. [Citations]
The Court responds that “[i]t is not the dog that is the problem, but the behavior that here involved use of the dog.” [Citation.] But where is the support in the law of trespass for this proposition? Dogs’ keen sense of smell has been used in law enforcement for centuries. The antiquity of this practice is evidenced by a Scottish law from 1318 that made it a crime to “disturb a tracking dog or the men coming with it for pursuing thieves or seizing malefactors.” [Citation.] If bringing a tracking dog to the front door of a home constituted a trespass, one would expect at least one case to have arisen during the past 800 years. But the Court has found none.
Those of you who read your Arthur Conan Doyle may recognize this sort of dog-that-didn’t-bark reasoning as similar to the logic employed by Sherlock Holmes in The Silver Blaze, a story in which the detective deduces a culprit’s identity from the fact that a guard dog remained silent in the intruder’s presence.
Holmes’s hunch proved correct. It’s more perilous, however, for judges to rely on “negative evidence,” in the form of a dearth of precedent, as affirmative proof of a point. The above passage from Jardines offers a case-in-point.
Let’s assume that Alito properly perceived what I call a “precedent desert” — a swath of legal territory where no precedent exists, even though the basic ingredients for the generation of precedent have existed for a long time. (Meaning here, that skilled tracking dogs and trespass suits both have been around for many centuries, and there has been no categorical bar on suing for trespass under the described circumstances.)
Alito attributes this precedent desert to a general custom of countenancing, or at least tolerating, the use of tracking dogs on one’s property. But Alito’s is but one of many possible explanations for the absence of precedent on this point. It’s at least as possible that prospective trespass plaintiffs were vexed by the use of tracking dogs on their property, but decided not to bother with trespass suits because they perceived a likely defense verdict, de minimis damages, or actually welcomed the police intrusion, notwithstanding a technical trespass, given the specific facts involved (as might occur if a dangerous fugitive hid, without consent, in the house of another). Or plaintiffs may have brought these trespass cases, but settled them prior to the issuance of any decision by a court. Or these decisions may have gone unpublished. And so on. If any of these latter explanations best accounts for the lack of a historical record, the dearth of caselaw provides little support for the notion of a longtime implied license to bring tracking dogs onto the property of another.
As a more general point, one wonders whether an argument such as Justice Alito’s, premised on the lack of published caselaw addressing a particular point, is ever well-founded. One plausible take on the vitality of these sorts of dog-that-didn’t-bark / no-published-precedent arguments is that they are best directed to situations in which it’s important to know what information jurists or other thought leaders, who might be presumed to stay abreast of published opinions, had before them with regard to a particular topic at a specific moment in time.
Any greater leveraging of a precedent desert, as attempted by the Jardines dissent, tends to be less compelling — both because of the availability of alternative explanations, and the simple fact that lots of the area that lies within the boundaries of the legal “map” remains terra incognita in the sense that there exist no published opinions squarely on point. As every first-year law-firm associate learns (after having a partner utter the awful words, “I know there must be a case on point out there; find it”), even with thousands of case reporters and an ever-growing pool of impossibly deep electronic databases to draw from, there exist many commonplace fact patterns that have generated little or no published precedent.
I sometimes call this phenomenon the “McCormack Effect,” after a student who once asked me in class whether, under common-law premises-liability principles, trick-or-treaters represented invitees, licensees, or trespassers. I drew from generic first principles to offer up some response. Yet, after class ended, I remained curious about what courts had said on this topic, and so I combed Westlaw for case authority. I figured there would be abundant precedent–mischievous trick-or-treaters would seem like brewer’s yeast for tort lawsuits. As it turned out, there was only a case or two even arguably on point.
As the years pass, even absent shifts in binding precedent it’s altogether possible that some judges, tasked with evaluating state laws that outlaw gay marriage, simply may change their mind and find a prohibition on the practice unconstitutional, after previously upholding such a ban.
If these judges need rhetorical support for such a volte-face, I recently came across this nice passage by Justice Robert Jackson (did he ever write any other kind?), defending his change of position on a point before the Court:
Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, 12 L.Ed. 256, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. State of Maryland, 12 Wheat. 419, 6 L.Ed. 678. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ Andrew v. Styrap, 26 L.T.R.(N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: ‘My own error, however, can furnish no ground for its being adopted by this Court * * *.’ United States v. Gooding, 12 Wheat. 460, 478, 6 L.Ed. 693. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary—‘ Ignorance, sir, ignorance.’ But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister’s reliance upon an earlier opinion of his Lordship: ‘I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion.’ If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.
– McGrath v. Kristensen, 340 U.S. 162, 177-78 (1950) (Jackson, J., concurring).
A quick Westlaw search reveals 15 judicial citations to this passage over the intervening 63 years, indicating that the nation’s judiciary as a whole admits error oh, once every four years or so.
WASHINGTON, DC (UP) (JUNE 20, 2013): In a rare press conference today, United States Supreme Court Chief Justice John Roberts disclosed why the Court has taken so long to issue its opinion in Fisher v. University of Texas, the affirmative-action case argued last October.
“I want to put to rest all of the nutty conspiracy theories that have circulated around the Fisher case,” Roberts told reporters. “Any speculation that the Court is struggling with drafting the opinion, or opinions, is pure nonsense.”
“The truth behind the delay is far more mundane,” Roberts said. “As you may have guessed, we’re still waiting for the go-ahead from Madame Zena, the official Court Astrologer.”
Roberts told reporters that in the Court’s most recent seance, held earlier this month, Zena advised the justices that with Venus rising in the East, the moon remaining in the seventh house, and Capricorn and Pisces at a semisquare angle, the stars and planets would not allow the Court to announce and distribute its decision in the Fisher case.
“She told us that she perceived dark times ahead for any affirmative-action opinion issued while the skies were so aligned,” Roberts said. “And that was that, so far as we were concerned.”
At the same seance, Zena did give the Court the go-ahead to announce opinions dealing with criminal procedure and antitrust issues. “Madame Zena told us that the horoscope looked favorable for decisions on the right to remain silent, price-fixing conspiracies, and sentencing issues,” Roberts recounted. “So we rushed Salinas, Activis, and Alleyne out the door.”
Roberts acknowledged that the Court’s longtime insistence on following Madame Zena’s predictions sometimes requires sacrifices. “We didn’t really say precisely what we wanted to in any of those cases [referring to Salinas, Activis, and Alleyne],” Roberts said. “I think we reversed one lower court we meant to affirm, and vice-versa. And if you’re wondering about all the typos in Salinas, well, now you have your answer. But Madame Zena said that in a couple of days, Neptune would withdraw behind Saturn, so of course we had to act fast.”
The press conference was short but cordial, with Chief Justice Roberts growing testy only when a reporter referred to the Court Astrologer simply as “Zena.” Roberts flushed and said, “That’s MADAME Zena,” staring angrily at the chastened reporter.
Madame Zena has served as the Court Astrologer since OT 2004, when she replaced Count Zoldar. Aside from ruing that her talents are both a blessing and a curse, she declined to comment for this report.
When asked when the public might expect the Court’s opinion in Fisher, Roberts shrugged his shoulders and gestured upward to the heavens. “Don’t ask me, ask them,” he said.
While continuing to procrastinate, I decided that today would represent a terrific day to clean up my office and recycle some old paperwork. While looking through these stacks, I came across this, a memorandum written by Chief Justice John Roberts back when he was a young White House attorney. Like other Roberts memos that I’ve posted before (here, here, and here), I obtained this document on a visit to the Reagan Library last year. For whatever reason, when posting the other documents, I forgot to include this one.
This April 1984 memo addresses a Department of Justice proposal to add new computer crimes to the federal code. I don’t know the precise terms of the proposal, but to my untrained eye, its (loosely described) provisions resemble certain of those found in the Computer Fraud and Abuse Act, a 1980s statute that recently has prompted much controversy.
The memorandum is short and to the point. It contains one nice rhetorical flourish, where Roberts observes that the proposal’s forfeiture provision “is designed to deter the junior high school computer whizzes who break into the Los Alamos computers and do such things as change the targets on all our nuclear missles [sic] to various points in New Jersey.”
If the DOJ’s proposal in fact mirrored the controversial terms of today’s CFAA, I suppose one could infer from Roberts’ lack of objections to the proposal a similar absence of unease with the CFAA’s broad scope. But I am not a CFAA expert, or even particularly familiar with its specific terms; thus I don’t know if the DOJ proposal and the statute are congruent in this respect. Plus, 1984 was a long time ago, and perhaps Roberts’s views have shifted over the years.
The other day, I read an interesting article just published in the journal Neuropsychologia, titled “Not all analogies are created equal: Associative and categorical analogy processing following brain damage.” As a matter of course, this article made me think of the United States Supreme Court’s recent decision in Florida v. Jardines, a “dog sniff” case.
In Florida v. Jardines, the Court (by a 5-4 margin) held that police use of a trained scent dog at the front door of a set-back, single-family residence amounted to a Fourth Amendment “search.” In reaching this conclusion, Justice Scalia’s majority opinion distinguished the circumstances from a situation in which a police officer makes a similar front-door approach as a prelude to a so-called “knock and talk.” To the Jardines majority, homeowners have customarily given their implied consent to the latter type of police contact, such that it is not a “search.” No such consent has been given to the dog-sniff technique, the court reasoned, so it is a “search.”
Fair enough, though I can’t wait for the case that’ll arise once technology gets to the point where police officers can take sense-enhancing pills. As I said, the Jardines case came to mind when I read the article on analogies. The abstract for this article provides as follows (with one technical sentence omitted):
Current research on analogy processing assumes that different conceptual relations are treated similarly. However, just as words and concepts are related in distinct ways, different kinds of analogies may employ distinct types of relationships. An important distinction in how words are related is the difference between associative (dog–bone) and categorical (dog–cat) relations. To test the hypothesis that analogical mapping of different types of relations would have different neural instantiations, we tested patients with left and right hemisphere lesions on their ability to understand two types of analogies, ones expressing an associative relationship and others expressing a categorical relationship. . . . We argue that categorical relations additionally rely on the right hemisphere because they are more difficult, abstract, and fragile, and contain more distant relationships.
As the abstract indicates, the basic point of the article is that “categorical” analogies are more difficult to draw than “associative” analogies are. In making this argument, the authors assert:
the relationships or mappings between words in categorical analogies are qualitatively different than those in associative analogies. Associative relations between two words are
typically based on actual events (a fish swimming in the sea) that can be directly experienced. The two items co-occur in time and space. In this sense such relationships are concrete. Categorical relationships, even those using concrete words, are less concrete than associative ones. They are feature-based, and not all features are equally important in establishing a relationship. Boxes and bottles are both containers, but some features must be ignored (shape, material) while others attended to (function of containment) in order for a relationship to be established.
Anyway, this article’s thesis would seem to have some application to legal combat, in which parties seek to analogize the present case to other matters in which courts have reached favorable rulings. If the authors are correct, their work suggests that parties often would do well to brainstorm and stress associative analogies, instead of relying exclusively on categorical likenesses. This point would seem to hold particularly true in situations where the disposition will depend in some measure on custom and tradition, as often is the case in Fourth Amendment “was there a search” matters.
For example,the article got me to thinking about how the result in Jardines hinged upon the absence of a good associative analogy (dog sniff-porch) from the prosecution’s standpoint. Both sides made categorical analogies in Jardines, with the defense likening dogs to heat imagers (per Kyllo) and front-porch use of binoculars, and the prosecution analogizing dog sniffs outside a house to dog sniffs outside a car (Caballes) or luggage at an airport (Place). But Justices Scalia’s analysis did not dwell on favorable categorical analogies (though Justice Kagan’s concurring opinion did), and honed instead on whether or not homeowners grant implied consent to law enforcement dog-sniffs — an analysis predicated upon the lack of a ready associative analogy.
As a matter of course, there’s still the old lawyers’ level-of-generality issue to think about in this context. After all, the government prevailed in the overflight cases of the 1980s even though there was only a “look down-airplane” analogy to rely upon, as opposed to “police officer look down-airplane.” But that’s a nuance, and goodness knows no one reads this blog for those sorts of fine points.
From the The New York Morning Journal, February 5, 1890:*
“The Great Nine.”
A Supreme Court song and dance which should have been performed yesterday.
We are the dread judicial nine, who rank high over all, We sit upon a narrow bench in a little stuffy hall; We tinker Constitutions and decisions we reverse, And when a muddle’s very bad we often make it worse.
We are the Nine, The terrible Nine, (Privately fond of good dinners and wine;) But, dressed in our gowns, And our most solemn frowns, Our dignity really is adamantine!
(Here Mr. Justice Harlan danceth a Kentucky reel.)
We are the nine upon whose law the gravest things depend; Some suits, if we were not at hand, would never reach an end; With a whisper we can make the biggest corporations howl; And we fear neither angered House, nor Senatorial scowl;
We are the Nine, The eloquent Nine, Stronger than Congressmen tho’ they combine; Decked in our gowns, And our mightiest frowns, Our dignity really is adamantine!
(Here the Chief-Justice performeth a Parisian pirouette.)
Yes, we’re the Nine above whose word no President can go, It really makes us dizzy to think how much we know; But at times we like amusement, so we take of cards in a deck; And play poker on the Bench while we sample extra sec –
We are the Nine, The frolicsome Nine, Merriest when we’re invited to dine; But draped in our gowns, And stateliest frowns, Our dignity really is adamantine!
(Here Mr. Justice Field snatcheth a Caifornia fandango.)
Oh, yes! Our dignity really is adamantine Rhadamantine. McAdamantine!
(Here Mr. Justice Lamar indulgeth in a Mississippi hoe-down, after which all join in a grand walk-around.)
* I haven’t pulled the microfilm of this newspaper. The song comes from what purports to be a reprint of February 5, 1890 edition of the Morning Journal, as found within William Rehnquist’s papers at the Hoover Institution.
March 30, 2013 UPDATE: Ted Frank has raised the possibility of this song being a modern satire, merely imitating an 1890s routine. Obviously, more research must be done to verify the authenticity of this song, which research will have the ancillary benefit of providing more fodder for future columns. Any feedback from persons with knowledge would be appreciated, and attributed. As matters stand, the evidence still supports the authenticity of the song, but if the facts change, additional reports will assuredly follow.
WASHINGTON, DC (Press International), March 4, 2013 — SCOTUSblog, a leading online source for breaking news regarding the United States Supreme Court, announced today that henceforth it would “eliminate the middle man” and simply start issuing its own precedential opinions.
“This move makes complete sense,” Tom Goldstein, founder and publisher of SCOTUSblog, told reporters at an early-morning press conference. “The public already perceives SCOTUSblog as being more legitimate than the Court. Why, then, should we dedicate our ample talents and energies solely to reporting what they have to say?”
“Think about it,” Goldstein added. “Who would you rather have deciding issues of vital importance to everyday Americans. Nine generalist judges? Or Chief Justice Goldstein, Associate Justice Denniston, and our hand-picked crew of unbiased experts?”
In his press conference, Goldstein sketched out the anticipated SCOTUSblog opinion-preparation process. Going forward, instead of filing cert petitions with the Supreme Court, litigants would simply e-mail them to SCOTUSblog. Expedited petitions should have that little red exclamation point next to their titles, Goldstein said. Next, SCOTUSblog interns would review the petitions to cull out advertisements for Viagra or Cialis.
Chief Justice Goldstein, Associate Justice Denniston, and seven other justices drawn from the blawgosphere’s elite then would decide whether to grant certiorari in a given case, a public process that Goldstein described as a “veritable full-employment bill for bloggers.” Once cases were selected, Goldstein said, briefing and oral argument would proceed more or less as they presently do — only with the argument being conducted over Skype, and in front of law bloggers seated at their respective computers, instead of at the Supreme Court in Washington, D.C. Following argument, one of the justices would be assigned the opinion, which would appear in due course on SCOTUSblog.
“We also will introduce a few other important, crowd-pleasing breaks from current Court practices,” Goldstein said. “After our conference, but before the opinion’s release, we will announce not only who’s writing the opinion, but how the preliminary vote went down. On SCOTUSblog, of course. And we will encourage justices to use SCOTUSblog to discuss how their opinions and dissents are going, as they write, and perhaps struggle with, them.”
Goldstein acknowledged that public disclosure of the justice assigned the opinion might lead to vituperative and extensive comments on the justices’ own blogs, in which efforts would be made to sway their votes. Goldstein responded to this point by pointing at a Sitemeter graphic and saying, “Well, duh.”
The SCOTUSblog opinion would have the same precedential value presently accorded United States Supreme Court opinions, Goldstein announced. Also, SCOTUSblog would issue a likewise precedential 140-characters-or-fewer Twitter post concurrently with the “full” blog opinion.
“My law clerks won’t look forward to drafting precedential 140-character summaries of complex ERISA decisions,” said future Associate Justice Lyle Denniston. “But it’s a small price to pay for giving SCOTUSblog greater flexibility in its editorial process, by allowing us to select and decide the cases that we’ll report on.”
Goldstein concluded his remarks by observing that certain aspects of the plan remained under debate. “Should we order the Supreme Court to shut its doors, or will they just figure it out when no one appears there for oral argument?,” Goldstein mused, perhaps to himself. As of press time, no decision had been made on this score.
OK, not really.