GOVERNINGWorks (GWorks)—[00:00:38:04] How did SCOTUSblog develop?

Tom Goldstein (TG)—[00:00:43:04] SCOTUSblog has been around for ten years. It, like the clinics, is an outgrowth of the practice. We started it, my wife Amy, who practices with me, as actually an advertising tool. The original model for SCOTUSblog, ‘We’ll write about the highest profile Supreme Court cases. We’ll also write a lot about what we’re doing. And people, as a consequence, will want to hire us to do Supreme Court work.’

It is in other...there are other ways that blogging in other kinds of practices can be, if you wanted to be practitioner in a particular Court of Appeals or state Supreme Court or if you wanted to do a particular kind of immigration or patent work, you could develop a kind of expertise that you would express through blogging think really could get you business. But, in Supreme Court litigation, there are so many people who have such well developed reputations. When you talk about Paul Clement and Carter Phillips and Seth Waxman and Maureen Mahoney and other folks like that, people tend not to say, ‘I want the guy with the Web site.’ Right. That’s not what they’re making their decisions based on.

It’s certainly the case that we’ve become best known for the blog. As the blog has evolved, within about four or five of the ten years, it really turned into a journalistic effort. And then all of the things that we were doing to try to advertise the law firm all were cast aside and it went in the opposite direction because we really needed our readers to view us objectively and have them not believe that we were trying to kind of show off ourselves or highlight our own cases or clients. And, we became sufficiently influential with respect to the Court itself that we didn’t want the Justices and their law clerks to believe that we were trying to influence them in our cases.

So, we now have these policies that, where I predict cases that will be granted, we always exclude our own cases. We don’t write about own cases. We get other people to write about them for us. We used to highlight briefs that we filed. We never do that anymore. Where people of ours would get clerkships. All kinds of things to try and draw attention to ourselves. That’s all now actually forbidden in the blog so that we can retain its journalistic objectivity.

It generally works pretty well because the blog doesn’t do a huge amount of commentary. It’s not, ‘This Supreme Court decision was the greatest or the most horrible.’ It’s describing what happened rather than evaluating what happened.

So, we don’t find ourselves in a lot of dilemmas of not wanting to criticize the Court or things like that. And if we do want to criticize the Court, then we just do it. Although a lot of times we think the Court does great, great work and we sometimes say that, too.

And our commentary is generally done by third parties. We have these symposia, for example, on all the major subject matters, health care, Arizona immigration, coming next Term, the Kiobel case on corporate human rights violations, gay marriage, the Voting Rights Act...and hopefully the Court is able to distinguish whatever those people say on the blog from what we might say as lawyers.

[00:04:07:11] Would you describe SCOTUSblog as evolving project?

[00:04:22:11] It has been an extraordinary evolution for the blog, particularly as the amount of reliance and respect for the blog has grown. When the blog started, in the early days of blogging, blogs were really regarded as kind of odd-ball things. And now, you see a fair amount of respect for blogs that really show over the course of several years a level expertise and balance. They get cited a lot in the traditional media. We get, you know, a lot people say...very nice and kind things about us and rely on us.

I’m not sure what the next major development for the blog is.

For the past couple of years the structure of the blog has been the same. That is, we adapted to the fact that people were relying on the blog essentially for two different kinds of things. One was, you know, daily updates on what’s going on, reports on oral arguments. And another was an archival research feature where they could get all of the briefs and could study the cases. And so we adapted the underlying architecture of the blog to accommodate that. We have case pages for all of the cases now. There’s not...and so I could see the path to this point.

I haven’t, in my thinking about the design of the blog, imagined the next big thing. I suppose it’s likely to be multi-media related. To try to take advantage of, you know, just the broadening bandwidth, the broader kinds of content that are there.

The big project for the blog for the past couple of years has been improving the substance of what it is that we write, principally by getting better and better people to write. For years and years, we had the incredible good fortune that we had our students at Harvard and Stanford available to write analyses of the cases. And that’s...they worked really hard at it and they did as well as students possibly could.

But now we’re in a position where we have really leading experts in the field doing the writing because of the prominence of the blog. And so now, you know, the Harvard Law Review, which has 2000 subscribers, we have, you know, 50,000 people on our slowest day who are committed to taking the content of the blog and…you know...on the health care day, we had two million unique readers and I think that a lot of people who are potential authors kind of recognize the blog now and we just...we’re very lucky in the kinds of people that we’re able to get to write for us.

[00:07:01:09] Who is SCOTUSblog’s audience?

[00:07:06:09] Well, we don’t really have a target audience as such. And that is, we don’t have a vision for the kind of person that we’re trying to reach.

We recognize that, for a long time, the principal people who were reading us were lawyers. Kind of, those are the folks who are most naturally fascinated in or have a utility for what going into and coming out of the Supreme Court.

The...but, we’ve also recognized that, as the readership of the blog has grown, we have a lot of people who have, you know, a high school education. And so, we’ve built out, for example, this ‘Plain English’ feature, where we’ll take all of the major decisions and we’ll write them up at length in rhetoric that, you know, a normal person can understand without a lot of the legal jargon. And, in all of our write-ups, we have a Plain English description at the end. So, we’re trying to accommodate the broadening readership of the blog.

And, we just view the blog as a public service. It doesn’t have an agenda. It’s not trying to impress any particular set of people anymore. It’s not a business development tool for the law firm. And we just try and accommodate the kinds of folks who are becoming interested in the blog.

[00:08:27:12] Would you discuss the concern about SCOTUSblog and influencing the Supreme Court?

[00:08:32:12] Sure. Well, we are actually able to study are readership. One of the more formal ways we do that is through user surveys. But, we can track all of our in-bound readers, unless someone takes the highly unusual step of hiding where they’re coming from.

And the Supreme Court doesn’t hide itself. It has the IP [Internet Protocol] address “Supreme Court of the United States” is the domain that’s associated with the IP address. And we were able to see hundreds and hundreds to thousands of hits coming in from them on any given day.

And we know from our former students who are clerks, from just casual conversations with the Justices, that the Court is very conscious of the blog and a lot of people inside the building read the blog. That doesn’t mean they think particularly highly of the blog or anything like that. Certainly, I would never say that the blog has influenced anything the Court has done.

But, you know, if you’re an important institution and there’s one Web site devoted to following everything that you do, it’s not surprising that you’re going to read it.

And, I was concerned that the Justices and their law clerks would come to believe that we were writing effectively to them. So that, if we were….So, back in the day, for example, if we filed a Cert. Petition, then we would write on the blog, ‘We filed this really interesting Cert. Petition. It’s about this, that or that question. And, here’s the reason the Court might take the case.’ That was never intended for the Court as an audience. But, the Court doesn’t know that and could mis-understand it. And so it became very important to cut all that out because, if the Justices don’t trust you, then you’re not being an effective advocate.

The other thing that happens is that because other people realize, or at least perceive, that the blog has an audience inside the building, people will try and use the blog to affect the Justices. So, constantly, we’re getting approached by people asking us to write about their cases, highlight their cases, cover cases in a particular way, as part of their agenda for influencing the Justices. And so, we’re incredibly resistant to that both because we think it’s improper and because we are just...we don’t want the Court to look at us in that way.

A kind of prototypical illustration is, there was a case last Term on the merits a the Court, where there parties were trying to get...one of the parties was trying to get a set of documents in front of the Court and was trying to lodge the documents in the Court but was unsuccessful in doing that. And so they couldn’t get them in front of the Justices and their law clerks in the ordinary process. And we got heavily lobbied to publish a story about the documents. And, they were very interesting. And so it presented a really genuine journalistic dilemma about what to do because it was apparent to me that a real part of their agenda was not because they wanted the documents published for the sake of publishing them and their interest [but] because they wanted a back door into the Court. And resolved that by not publishing them. But, it was a puzzle to work through.

[00:12:03:19] What is SCOTUSblog’s biggest challenge?

[00:12:08:19] Well, at this point, balancing our journalistic and lawyer roles is kind of the daily thing that concerns me the most. And that is, I really want the blog to be a journalistic entity. And the lawyer pieces of it is actually removing the relationship to the law firm and making sure that the blog can function purely journalistically as much as possible.

The long-term dilemma and challenge that the blog faces is that the Supreme Court, though it uses the blog a lot, it refers a huge number of people to the blog, it relies very heavily on it, you know, it’s much easier for the law clerks to call up the briefs through the blog than, you know, going through the clerks office to get hard copies, the Court doesn’t recognize the blog as a journalistic institution and will not grant the blog a press pass.

And so, we...at the same time, they’re not trying to stop us from overing the Court, it’s just a question of what you do with credentialing of blogs is something...the Court moves and changes very slowly. It hasn’t figured out exactly what it wants to do in this situation. It relies on the Senate Gallery and the White House credentialing process to make decisions.

So, we are nonetheless saved for the moment by the fact that the Court still appreciates and respects and values the blog and so it has credentialed our reporter, Lyle Denniston, as a result of the work that he does for WBUR, which is the NPR affiliate in Boston. And he does interviews with them and helps them out. And so, that’s the balance that the Court has done. It tries to give us access to press-related materials through our reporter Lyle Denniston.

Now, Lyle is 82 [years old]. And so, at some point, he’s going to stop doing this, though he’s going, you know, 200 miles per hour and does incredible work. At some point, he’s going to decide he’s done with it. And what will happen to us then is the long-term dilemma of the blog.

—End of Part Two—

GWorks Interviews: Tom Goldstein

Part One: That Guy With the Web Site

Becoming a Supreme Court litigator

Part Two: SCOTUSblog—Without Papers

Founding a Web site dedicated to

the Supreme Court of the United States,

the site’s evolution and the challenge of

covering the Court without a press pass

Part Three: Courting Media

What the Court does and might do

in a changing media environment

Part Four: To Your Health

The Supreme Court decision

in the last Term’s health care case—

understanding the Court through a case

(National Federation of Independent Business v. Sebelius)

Part Five: Airing|Erring

How media (mis)understood

the health care decision

Part Six: Limits

Is the Supreme Court’s last Term

a sign of a new willingness to limit

Federal Power, what role will the Court

play in the coming election and how

can we best understand the Court

For more interviews,

please visit GWorks Interviews

EDITOR’S NOTES

GWorks Interviews: Tom Goldstein was filmed Wednesday 25 July 2012 in the offices of Goldstein & Russell, PC in the District of Columbia. GWorks would like to thank Mr Goldstein for his generous participation and Max Mallory for his work to make this interview happen.

Photo: Tom Goldstein. Courtesy Tom Goldstein.

Photo: SCOTUSblog. Courtesy SCOTUSblog.

1 Tom Goldstein is a founding partner of Goldstein & Russell, PC, a Washington, DC law firm that focuses on Supreme Court litigation. He is also Publisher of SCOTUSblog, the Web site he founded with Amy Howe, Mr Goldstein’s wife, law partner and SCOTUSblog Editor.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues. For more, please visit GWorks Interviews.