Blogging and the supreme court

The 2009 Stanford Law Review Symposium, "Media, Justice, and the Law," was covered in its April 2009 issue. Rachel C. Lee authored a Note on "the power of blogs to rapidly reach large audiences--possibly including Justices or their clerks--with persuasive arguments on pending cases."

The Note focuses on the Court's 2008 decision in Kennedy v. Louisiana, 128 S.Ct. 2641, 554 U.S. ___ (pdf, 37pp/164kB), which held that the Eighth Amendment prohibited the death penalty for child rape. On June 28, 2008, three days after the opinion was published, a military attorney noted on his blog of a possible error in the decision. Another attorney saw the post and told his wife, a New York Times writer, who wrote a July 2 front-page article on it. On July 21, the state of Louisiana petitioned the Court for a rehearing. According to the Note, the Court rarely grants a rehearing but did invite briefs from Kennedy, Louisiana, and the Solicitor General of the U.S. on the matter. On Oct. 1, the Court declined to rehear the case but issued a modification of its earlier decision.

The Note concludes:

...the phenomenon of ex parte blogging raises serious ethical issues that must be considered by the legal community. This Note offers a starting point for the necessary conversation about how best to respond to the challenges and opportunities created by this distinctive new mode of communication.

Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era (pdf, 39pp/436kB), 61 Stan. L. Rev. 1535 (2009).