Ex parte blogging: the legal ethics of Supreme Court advocacy in the Internet era.

• Author: Lee, Rachel C.

INTRODUCTION I. THE PHENOMENON OF EX PARTE BLOGGING II. EX PARTE BLOGGING UNDER THE CURRENT ETHICAL FRAMEWORK A. Publicity B. Ex Parte Communications by Attorneys to Judges C. Receipt of Ex Parte Communications by Judges III. OPTIONS FOR REFORM A. Do Nothing B. Do Too Much C. Regulate Parties and Amici D. An Open Invitation to Blog E. Regulate the Court CONCLUSION INTRODUCTION

Several intertwined issues appeared prominently in the Supreme Court's recent decision in Kennedy v. Louisiana: (1) whether a nonhomicide crime can be punished by the death penalty, how to evaluate the existence of a national consensus on the question, and whether the Supreme Court's supervision of the "evolving standards of decency" imposes a one-way ratchet on the death penalty. But the story of the Kennedy case--in which the Supreme Court held that it is unconstitutional to execute someone for raping a child (2)--also touches on a subtler problem. Kennedy offers a glimpse at the increasing potential for speech outside the walls of the nation's highest court to affect the decisions issuing from that court. With postings on legal blogs (3) now offering prompt, detailed, and readily accessible analysis of Supreme Court cases, is it time to reevaluate the ethical standards that govern the interplay between lawyers, the Internet, and the Court? Scholarship on the problems of improper publicity and ex parte communication has not yet begun to grapple with the power of blogs to rapidly reach large audiences--possibly including Justices or their clerks--with persuasive arguments on pending cases. This Note offers a first analysis of the contours of an emerging issue facing attorneys litigating before the Supreme Court.

One of the high-profile cases of the 2007 Term, Kennedy v. Louisiana had its genesis in the horrific rape of an eight-year-old girl in 1998. (4) Five years later, a Louisiana jury convicted the child's stepfather, Patrick Kennedy, of aggravated rape. (5) The jury sentenced him to death. (6) No one had been executed in the United States for the crime of rape--either the rape of an adult or a child--since 1964. (7) Indeed, the Supreme Court held in 1977 that imposing the death penalty for the rape of an adult woman was unconstitutional because capital punishment "is an excessive penalty for the rapist who, as such, does not take human life." (8) Nevertheless, the state of Louisiana, along with five other states, had subsequently authorized the death penalty for the rape of a child. (9) The Supreme Court agreed to hear Kennedy's case to resolve the question of whether the Eighth Amendment prohibits imposing the death penalty for child rape as it does for the rape of an adult.

Pointing to a growing number of state legislatures that had considered or enacted laws allowing child rapists to be punished by death, (10) the state of Louisiana argued that increasing public outrage over sexual crimes against young children had led contemporary society to see the death penalty as an appropriate punishment for these crimes. (11) The Supreme Court disagreed. On June 25, 2008, after surveying the "national consensus" (12) and consulting its own judgment about the suitability of the death penalty for child rape, (13) the Court announced in a five-to-four opinion that such a punishment violated the Eighth Amendment. This decision drew considerable attention, (14) and both presidential candidates took the opportunity to express their disapproval of it. (15)

With most Supreme Court cases, the release of a decision is the end of the road. Not so for Kennedy. Three days after the opinion was published, a military appellate attorney, Dwight Sullivan, noted on his blog that the decision contained a potentially significant error. (16) In evaluating the national consensus against the death penalty (or lack thereof), both the majority and the dissent believed that "Congress has not enacted a law permitting the death penalty for the rape of a child." (17) Yet Sullivan observed that in the National Defense Authorization Act for Fiscal Year 2006, Congress provided that the maximum permissible punishment under the Uniform Code of Military Justice (UCMJ) for the rape of a child would be "death or other such punishment as a court-martial may direct" until the President otherwise prescribed. (18) None of the briefs by the parties or amici had brought this statute to the Court's notice. Now, however, the formerly obscure provision became the center of attention.

Eugene Fidell, an attorney specializing in military law, spotted Sullivan's blog post and mentioned it to his wife, New York Times writer Linda Greenhouse. (19) She broke the story of the Supreme Court's mistake as a frontpage article in the New York Times. (20) Legal blogs circulated the story and discussed its implications. (21) The Justice Department even telephoned the Clerk of the Court to accept responsibility for not notifying the Court of the statute, (22) although the United States had been neither a party nor an amicus in the case. Then, on July 21, the state of Louisiana formally petitioned the Court for a rehearing, followed a week later by a motion from the Solicitor General for leave to file an amicus brief supporting Louisiana's petition. (23)

The Supreme Court rarely grants a rehearing, (24) but in this case, the Court invited briefs on the question from Kennedy, the state of Louisiana, and the Solicitor General of the United States. (25) In their briefs, Louisiana and the Solicitor General contended that the passage of the 2006 statute, along with a subsequent Executive Order (26) authorizing the death penalty for child rape under the UCMJ, fatally undermined the majority's holding in Kennedy. "The Court's analysis rests on a critical error of federal law," (27) they argued, as the recent explicit endorsement of the death penalty for child rape by both political branches of the national government should call into question the Court's conclusion that there existed a national consensus against such punishment. (28) On the other hand, Kennedy argued that military law was irrelevant to the analysis of a national consensus regarding the civilian criminal justice system, (29) that the congressional and presidential actions did not manifest any specific attention to the matter and did not validly authorize the death penalty, (30) and that in any case, merely "add[ing] one more jurisdiction to the tally" should not alter the Court's ultimate conclusion. (31) Meanwhile, Sullivan continued to follow the case, posting his criticisms of Kennedy's brief immediately after its filing (32)--several of which were picked up by Louisiana's supplemental brief (33)--and analyzing more favorably the state's and the Solicitor General's briefs. (34) On October 1, the Court declined to rehear the case and issued a modification of its earlier opinion, acknowledging the omission but explaining that it did not alter the validity of the majority's previous analysis. (35)

The oversight in the Kennedy opinion was not the first factual error in a Supreme Court decision, nor even the first arguably relevant to the Court's reasoning in a case. (36) But in contrast to earlier eras, in which mistakes were unlikely to become notorious, (37) the rapid online dissemination of Supreme Court opinions and the ease of communicating any detected errors means that the occasional flaws will much more frequently become public knowledge now. (38) Indeed, just such a "micro-discovery" (39) or error-correction function (40) is cited as one of the advantages of legal blogs. (41)

Will bloggers change the world of Supreme Court litigation by inspecting published opinions? Perhaps not. Established channels still have power, for one thing. It is quite possible that Sullivan's discovery in Kennedy would not have amounted to anything if it had not been amplified by the New York Times, and his discovery was, after all, formally presented to the Court through Louisiana's petition. And at the end of Kennedy, the flurry of speculation and briefing resulted in a reaffirmation of the original outcome. (42) But the Kennedy case illustrates the potential for blogs to have real influence on the course of litigation, both by noting errors and by generating arguments that may be adopted by a party. Even the tradition-steeped world of the Supreme Court is not insulated from the online conversations of bloggers.

What does it mean for advocates and the Court to have an array of case-specific legal analyses a mouse-click away? Kennedy demonstrates some of the likely consequences, and to the extent that error-detection and argument-generation by a third party improve the quality of the Court's final product, blogging may be beneficial. (43) But the possibilities for the Court and the outside world to interact through the new technology extend beyond the indirect communication illustrated by Sullivan's posts. In particular, blog posts written by counsel for parties or amici in litigation pending before the Court may represent an old problem--attempts to influence the administration of justice--in a new guise. In this context, as the line between talking about the Court and talking to the Court softens, conventional understandings of the ethical constraints on publicity and ex parte communications may be inadequate.

This Note will explore the phenomenon of ex parte blogging and its ethical implications. Part I will examine the way in which blogging could be a tool of advocacy for lawyers and the evidence that the Court may be vulnerable to its use. Part II will analyze how ex parte blogging would be treated under the current framework of ethics rules for attorneys and Justices, and determines that ex parte blogging is not regulated effectively at present. Part II! will then survey the options for responding to the problem, while considering the distinctions between blog posts, law review articles, and newspaper editorials. The Note will...