THE NO-BLOGGING AT THE SUPREME COURT RULE: In bidding farewell to Orin Kerr at the Volokh Conspiracy, Eugene Volokh remarks that “to my knowledge, there is no forma ‘no-blogging’ rule at the Supreme Court, but there’s a very firm custom that clerks stay out of the media during their year of clerking … and it’s a custom that I think is quite sensible, even though I might regret its results in particular cases.” I suspect that there may be an obvious reason why this custom is “quite sensible,” but I’m at a loss to identify exactly what it is. Note that the custom isn’t just not to comment on the goings-on while one is a clerk, but also after one is done clerking. Recall the great controversy when Edward Lazarus published his narrative of the years he clerked for Justice Blackmun. The buzz surrounding the book was full of “one doesn’t do such things.”

Why not? The reason, presumably, is that story-telling about how the court actually reaches its decisions (stories like the ones which fill Bob Woodward’s book The Brethren) will make the court look bad, decrease its legitimacy, make it less likely that its decisions will be taken seriously. It will seem that the court is just one more political institution among others.

I don’t find this persuasive, even apart from its “Mighty Wizard of Oz” type approach to the problem (don’t look behind the curtain). The first thing is that it might be that what clerks reveal in their memoirs is that the court actually engages in reasoned decision-making – the kind that Justices O’Connor and Breyer, in their interview on ABC’s “This Week,” intimated that they do engage in. And if clerks talked about this type of constitutional argumentation, what’s wrong, exactly, with writing about this?

There’s the possibility, of course, that decisions don’t work like this: that they are influenced by personal predilections and ideologies, that vote-trading and log-rolling go on, etc.. But if this is so, then why shouldn’t we know this, also? If the Supreme Court is a political body, then we should know that it is – if it isn’t already obvious that it is one. (By the way, those who want to stress the constitutional importance of legislatures and public deliberation should welcome this – it kicks the Court of its pedestal as the one non-political, impartial branch that should therefore trump all others).

My worry, or better, my suspicion is that the reason for the no-blogging rule goes something like this: the Supreme Court's only power is in how it's perceived. If it's perceived as just another political body, it loses its clout, it has no power. And because revealing the inner workings of the Court might make it seem to be just another political body, we need to have firm customs about not revealing what goes on. Hence, the no-blogging rule, and the custom of not talking about your time clerking -- about how the decisions were made, etc. My question is, doesn't all this smack of being a noble lie?



- posted by Chad @ Wednesday, July 16, 2003