SUPREME COURT NOTEBOOK: New credential rules exclude influential blog

An influential online Supreme Court news site owned by a prominent Supreme Court lawyer is being denied a press credential to cover the court itself.

The high court issued a new policy Monday governing its coveted press credentials that pointedly excludes the popular SCOTUSblog because owner Tom Goldstein also is a leading Supreme Court advocate.

But while the blog has so far fought a losing battle to be recognized by the court in its own right, the new rules appear to allow its star reporter, a 57-year veteran of Supreme Court coverage, to continue to have a front-row seat at the court's biggest arguments as he writes for the blog.

The blog, founded by Goldstein in 2002, has sought for years to be treated like any other news organization covering the court. Yet it has long been denied a press credential because the court worried about a conflict of interest.

That conflict loomed large as the court updated its credentialing process for the first time in nearly 40 years. The new policy requires that reporters seeking a press pass cannot practice law before the court and must be "independent of individuals and entities that practice law before the court."

Explaining the policy, the court noted that many lawyers appear in the media as a way to promote their legal practices and affect perceptions about how courts should rule.

"The mixing of professional roles raises ethical concerns," the court said.

Until now, SCOTUSblog's main reporter, Lyle Denniston, has used a press pass issued courtesy of a Boston public radio station for which he works only rarely. But Denniston created his own website and blog last month, saying he would begin posting items there about the high court while continuing to write for SCOTUSblog.

In an interview, Goldstein noted with a chuckle that the new site appeared "coincidentally" just ahead of the court's new press policy.

"Because our reporter is an independent contractor, he'll get a press credential, which is a practical solution," Goldstein said. The new credential would be for Denniston's blog.

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Interest groups often file "friend of the court" briefs to influence Supreme Court proceedings, but the gay rights group Human Rights Campaign says it plans to file the first-ever "people's brief" ahead of April's arguments on same-sex marriage.

The group is asking thousands of "ordinary Americans" to sign onto its legal brief urging the court to recognize a constitutional right to gay marriage, said spokesman Fred Sainz.

The group hopes to get people from all 50 states and holding a range of political views to sign the brief through a special website. A link to the brief is available at www.hrc.org.

Sainz said it's part of a plan "to make this issue as approachable and understandable for people as possible." A national social media and online advertising campaign will urge supporters to sign the brief. Several celebrities will also announce that they are signing on.

The first person to sign the brief was Edie Windsor, the 85-year-old plaintiff who in 2013 successfully challenged the law denying federal benefits to legally married same-sex couples.

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Justice Elena Kagan recently offered some pointed criticism of lawyers who argue their first Supreme Court case on behalf of criminal defendants. In appearances over two days at the University of Chicago and Northwestern University, Kagan said those lawyers should turn over their cases — even if it means forgoing a once-in-a-lifetime opportunity to argue at the Supreme Court — to experienced appellate lawyers who specialize in high-court work.

They should be thinking more about their clients, she said. "I think that the litigants who are underserved in terms of lawyering quality are criminal defendants," Kagan said.

She declined to comment when asked later whether she had any case in mind.

But in the last argument the court heard before Kagan's Chicago trip, the justices grew visibly frustrated with the lawyer who was representing a man in a case involving a traffic stop that police extended so they could get a drug-sniffing dog to the scene. The dog eventually led police to a large bag of methamphetamine.

Justice Sonia Sotomayor, a former prosecutor, tried guiding the lawyer to answer questions her colleagues were posing about where the court should draw the line in the case. "All right. So announce what that line is. That's what I think everybody's been asking you," Sotomayor said.

In one sense, Kagan probably can relate to the nervous excitement lawyers feel the first time they stand before the justices. Although Kagan had been dean of the Harvard Law School and a Clinton administration official, the very first appellate argument she ever delivered was in the Supreme Court — after she became President Barack Obama's top Supreme Court lawyer in 2009.