Last week I blogged about Tom Goldstein’s summary of SCOTUSBlog’s “evolve[d]” editorial policies. In a new post, titled “Policies on editorial independence,” Tom writes:

In response to my last post on policies that keep the blog separate from my firm, we received a few emails helpfully seeking clarification.  Below is a revision to what I previously published.  There is no substantive change, but hopefully the policies are clearer.

The first few parts of the new policy are identical:

• The blog is financially independent from the firm of Goldstein & Russell, P.C. (the Firm).  All of the blog’s salaries and expenses are paid from outside sources other than the Firm (currently Bloomberg Law’s sponsorship of the blog).   Conversely, the blog does not pay any compensation to any attorney or staff member of the Firm. [This one is identical]
• The blog provides comprehensive coverage of all cases heard on the merits at the Supreme Court and all significant petitions for certiorari.  However, to ensure that there are no actual or apparent conflicts of interest or factors that could diminish the blog’s editorial independence, the following rules apply: [same]
  • No person shall have any role in reporting on any case in which he or his firm plays any role, including attorneys of the Firm. [same]

But the last three bullets have change.

• The blog staff will note Firm merits cases only when required  to provide comprehensive coverage – for example, describing an order granting certiorari and furnishing basic details about the case – but will not otherwise comment, report, or pass judgment on the cases.

I’m not exactly sure if I understand this one. Does “Firm merits case” include cases in which the Firm works on a Cert Petition? In other words, will the site disclose a case in which it works on a petition for certiorari? Is there a difference between how merit cases and petitions are treated?

The next part is even more confusing.

•  The blog will not suggest that a petition for certiorari filed by the Firm is deserving of review on the merits by the Court or (alternatively) suggest that a case in which the firm has filed a brief opposing review is not worthy thereof.  The blog will note petitions in which the Firm is among the counsel to the petitioner or respondent in its “Petitions to Watch” and “Petition of the Day” features (so as not to inadvertently disadvantage either party to the litigation), but it will clearly state that such a listing occurs without regard to the likelihood that certiorari will be granted.  The only exception is the extremely rare petition in which the Firm is among the counsel the respondent but does not appear on the briefs in the case.  In that rare instance, because the Firm is opposing review, no advantage can be created when the petition is listed.

Huh? So SCOTUSBlog will not list a petition the firm worked on in Petitions to Watch to “suggest . . . [it] is deserving of review on the merits,” but SCOTUSBlog *will* list a petition the firm worked in Petitions to Watch on “without regard to the likelihood that certiorari will be granted.” Am I reading that right? If I’m not, please correct me.

In fact, based on the last round of editorial independence bullets, Jacob Berlove (the 3-time reigning Chief Justice of FantasySCOTUS) commented that SCOTUSBlog would never list any of their petitions:

The biggest change seems to be that instead of listing petitions to watch that the firm is involved with, without regard to the likeliness of the case being granted, those petitions won’t be listed at all. This change is quite unfortunate.

Read what the last policy stated:

With the sole exception noted below, the blog will not report on, comment on, or otherwise promote matters in which the Firm serves as counsel, including (but not limited to) the suggestion that a petition for certiorari filed by the Firm is deserving of review on the merits by the Court or (alternatively) the suggestion that a case in which the firm has filed a brief opposing review is not worthy thereof.

In the old new policy, Goldstein wrote the “blog will not report on, comment on, or otherwise promote matters in which the Firm serves as counsel, including (but not limited to) the suggestion that a petition for certiorari filed by the Firm is deserving of review on the merits by the Court.” I think Jacob read that correctly: NONE of the petitions the firm works on would be listed.

Now, in the new new policy, I think that they will *all* be listed and “will clearly state that such a listing occurs without regard to the likelihood that certiorari will be granted.” Am I reading this right? If I’m not, I welcome comments below. That would seem to be a “substantive change.”

Next, I don’t see how the last bullet is consistent with what was written above.

The policy of not noting new Supreme Court filings by the lawyers who work on the blog and the clinics with which they are affiliated is long-established and remains in effect.

Is this separate and apart from the Petitions to Watch? As I read the previous bullet, petitions the firm works on will be listed in Petitions to Watch. I’m not sure what this means. Is there significance to the phrase “not noting new Supreme Court filings.” Does this mean that the petition will be listed, but there will be no notification when the brief is electronically filed with the Court (in the technical sense)?