I previously noted that in his McCutcheon dissent, Justice Breyer cited Robert Post’s forthcoming book about Citizens United, even though the book will not come out till June. Rick Hasen noted that forthcoming works have been cited several times, but in all cases, they were on SSRN. So how did Justice Breyer get the copy? As no coincidence, two of Breyer’s four clerks this year graduated from Yale Law School, and I understand Breyer and Post are good friends.
So, how was this book submitted to the Court? Did Post mail copies to each Justice? Did he send a copy to the Clerk’s office?
What I do know, is that Justice Sotomayor does not partake in the latter type of ex parte submisions. I know this because Ilya Shapiro and I got benchslapped in 2010 for trying to do just this.
Ilya and I published Keeping Pandora’s Box Sealed in the Georgetown Journal of Law and Public Policy in February of 2010. This case had a direct bearing on the Privileges or Immunities Clause at issue in McDonald v. Chicago. In fact, our article was cited by one or two briefs filed in that case. At the time, the article was available on SSRN. We sent a copy to each of the Nine Justices. A week later, we got this letter from Justice Sotomayor.
The key benchslap – “Please note that I do not accept any materials relating to a pending case before this Court that are not filed with the Clerk’s Office.” Although, not all Justices adhere to the same policy. We learned that Justice Alito was “intrigued.”
I have since discovered from the Clerk that it is appropriate to send nine copies to the clerk’s office, which are then forwarded to the respective chambers. Lesson learned. Benchslap still stings.