posted by Jason Mazzone
The New York Times Book Review this week has an article (“What Are They Saying About Me?) about book authors and blogging. In addition to discussing the varying practices of authors in the blogosphere–some authors read obsessively what is said about their books, some don’t bother at all–the article discusses the possibility of blogs improving books before publication.
Cass Sunstein is quoted as saying that pre-publication comments at the Volokh Conspiracy affected the content of his recent book, Radicals in Robes. (Sunstein doesn’t actually say the comments improved his book but presumably that’s what he means.)
That got me thinking. I have previously complained about the poor quality of Supreme Court opinions.
Maybe a blog can help the nine Justices?
Here, then, is a simple proposal: The Supreme Court should operate a blog to generate input on the Court’s opinions before they are published. The postings could range from limited issues (“if we decide in the petitioner’s favor, is it better to remand to the lower courts?”) to entire drafts of opinions and requests for comments.
We’re accustomed to secrecy in decision-making at the Supreme Court. But there is no particular reason that has to be the norm. Improving the Court’s ultimate product is a good reason for lifting the curtain.
Moreover, the Court already gets input from non-parties in the form of amicus briefs. A blog would expand on that principle and allow input from a wider audience. A blog would also allow the Justices to get help when issues arise during the course of preparing an opinion—the point at which they most likely need assistance.
The Justices will need to give some thought to how to structure their blog. An unmoderated Supreme Court blog would attract a lot of comments, many of which would be less insightful and helpful than others. (Look at the reader comments at the Volokh conspiracy for evidence of that problem.) So perhaps comments should be limited to registered users. Perhaps registration should require some kind of screening process. Law professors might qualify more easily than, say, astrologers. Anonymous posts probably should not be allowed.
But with some careful planning, a Supreme Court blog could vastly improve the quality of the Court’s ultimate product.
Indeed, it has already worked for Radicals in Robes.