Bench Memos

Law & the Courts

How Appealing on SCOTUSblog’s Conflicts of Interest

Trying to catch up from a week on the road, I’ve run across a couple of interesting posts from Howard Bashman on his invaluable How Appealing blog.

Bashman, who seldom editorializes, finds very curious how SCOTUSblog tries to reconcile its claim, on the one hand, to be “an impartial, journalistic entity that seeks to provide readers with objective information about the Supreme Court and its cases” with the reality, on the other, that (in SCOTUSblog’s own words) its publisher, Tom Goldstein, and his law partners “regularly appear before the Court, and his firm provides essential financial support for the blog.”

A lengthy excerpt from Bashman:

[T]he blog’s “Petitions to Watch” feature strikes me as particularly problematic insofar as it treats every case in which that blog’s sponsoring law firm is publicly involved as worthy of inclusion, while every other law firm only gets its cases mentioned on that list if the head of the sponsoring law firm of “SCOTUSblog” deems the case worthy of mention. Deciding what cases to list as “Petitions to Watch” seems like an inquiry that is rife with potential conflicts. The most obvious solution is to omit mention of any case in which the blog’s sponsoring law firm is publicly involved. The fact that hasn’t happened yet shows that even automatic inclusion on the list has value, thereby demonstrating the existence of the very conflict at issue.

Another unavoidable issue arises from the fact that Amy Howe — a wonderful person who I admire tremendously — is the wife of “SCOTUSblog” publisher Tom Goldstein, who heads the blog’s sponsoring law firm. Here at “How Appealing,” I do not purport to cover my wife’s work objectively. Yet at “SCOTUSblog,” whenever Amy Howe has a post that reports on the work of that blog’s sponsoring law firm, the following sort of “Disclosure” appears:

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to [the parties in a particular U.S. Supreme Court case], but I am not affiliated with the firm.]

Now I don’t dispute the disclosure insofar as what it actually says, but it leaves plenty unsaid. Because “SCOTUSblog” is not self-sustaining, its sponsoring law firm makes the financial contributions that allow the blog to continue to exist. Moreover, the revenues of that sponsoring law firm allow Ms. Howe’s husband to earn a living, which contributes to having a home, putting food on the table, someday sending the kids to college, etc. Regardless of whether she can be objective or not, repeatedly claiming to be objective concerning the coverage of her husband’s work simply because she is “not affiliated with” that law firm seems a bit much.…

Of course, perhaps the most insightful observation appears in the final sentence of the third paragraph of the “Just the facts, ma’am” post that “SCOTUSblog” published yesterday. That sentence states that “coverage suggesting that the [sponsoring law] firm is likely to lose may raise the hackles of the firm’s clients in the case.” If the clients of the law firm that sponsors “SCOTUSblog” — surely a sophisticated group — don’t regard “SCOTUSblog” as a journalistic entity independent from the influence of its sponsoring law firm, notwithstanding all efforts to the contrary, then why should any of the rest of us?

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