Virtual Briefing at the Supreme Court with Jeff Fisher

The open secret of Supreme Court advocacy in a digital era is that there is a new way to argue to the Justices. In this episode of Stanford Legal, Pam Karlan and Joe Bankman sit down with co-director of the Stanford Supreme Court Litigation Clinic, Jeff Fisher, to discuss his recent article, Virtual Briefing.

This episode originally aired on SiriusXM on February 29, 2020.

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Virtual Briefing at the Supreme Court

“The day you see a camera come into our courtroom, it’s going to roll over my dead body,” so declared Justice Souter of the United States Supreme Court. With media playing an increasingly larger role in our consumption, the Supreme Court and the United States judicial system maintains itself as a bastion of independence, focusing solely on the arguments and information presented in court. However, is that independence absolute? In this episode of Stanford Legal, Pam Karlan and Joe Bankman sit down with co-director of the Stanford Supreme Court Litigation Clinic, Jeff Fisher, to discuss his recent article, Virtual Briefing.

“We tell juries that you’re to decide the case based on the evidence presented to you by the parties and the instructions of the judge, and you’re not to do your own research or your own fact gathering. And so, why shouldn’t the same rule at least apply in general on appeal?” says Fisher, commenting on how various courts and judicial officials may now receive information external to what has been presented in trial. The three legal scholars discuss the importance of an attorney’s ability to respond to potential arguments, imparting that though context is crucial for decision-making, the right to response is just as important to ensure all parties are in agreement.

Karlan raises a first amendment concern, wondering if there are any constitutionally sound regulations that the Supreme Court could put into place to prevent undue influence from external sources. Fisher offers two potential remedies: internal regulation, such as preventing the law clerks or even the justices themselves from looking at online materials, or probing for even more information through asking the attorneys to address an issue before the court relies on it. Karlan reflects on a similar experience, saying, “Then a couple of weeks after oral argument, we got a letter from the Supreme Court that said, “Here’s a case that we’ve found that none of the parties talked about. Tell us what the implications of this case were,” and we got an opportunity to file a five or six page explanation.” The balance between first amendment concerns and maintaining the ability for attorneys to fairly respond to the Court’s concern is not an easy balance to strike, but it is certainly becoming more and more critical.

—Max Smith