The Fourth Circuit’s inboxes are overflowing with unsolicited emails

Here is an interesting tactic that I had not heard about before, and seems so out of the realm of possibility I had never considered it: Fourth Circuit judges have received thousands of unsolicited emails urging a particular outcome in a pending case. As lawyers, we understand and live by the idea that ex parte communications are not allowed. Normally we think of this in terms of the other party involved in the case. No one wants opposing counsel to have the judge’s ear without being able to respond. The rule preserves the fairness of the process.

But what if those who are not party to the case have something to say? Well, there is a process for that too – the amicus brief. Usually, interested parties must have permission from the court, and sometimes the actual parties, in order to submit this type of information. Other methods of submitting information to the court, particularly in an unorganized or decentralized fashion is not a “thing.” Maybe now it is.

The current email campaign is coming from the Florida Family Association who is urging the court to uphold President Trump’s travel ban (the court will be hearing the case in a few weeks). The FFA has engaged in similar campaigns in the past and feels that this type of communication can be persuasive for the court. The group promotes this communication by providing a template for individuals to copy and send on their own, not unlike the types of campaigns used by advocacy groups to communicate with elected officials. 

FFA founder and president David Caton said he believes email campaigns are an effective tool to sway judicial decisions.

“We feel there is a flavor that is missing in most courts, which is, what is really the will of the American public?” Caton said. “When there is injustice, there needs to be a mechanism to communicate from the people who are frustrated when they see the injustice.”

But others, which I would guess includes most lawyers, have a different opinion.

“I can’t think of a better way to make a judge mad than to flood his or her email box with a bunch of advocacy statements,” [Russell] Wheeler said. [Wheeler is an expert in courts and law at the Brookings Institute].

Considering the way communications have changed over the last several years, and with the rise of social media where everyone has an opportunity to voice his or her opinion, this action doesn’t seem so out of the mainstream anymore. Public, and formerly private, figures can all suddenly be subject to the admonitions of the crowd. And those communications are probably protected by the First Amendment unless it were to become harassment. While this kind of behavior stretches the boundaries of expected decorum, if the tactics are perceived as effective, this kind of action will continue to happen. Further, the continued politicization of the judicial branch will encourage advocacy groups to try influence court outcomes in ways that skirt the traditional judicial process. 

It is important that we have and cultivate a public discourse, but I can’t say I am in favor of channeling that discourse into every judge’s inbox. Speaking from within the legal bubble, I agree that receiving unsolicited email would not make me more likely to find in their favor. However, the more our courts continue to appear to be swayed by political ideology, and not by adherence to the law, the more this tactic and others like it will be employed to influence outcomes. I do not believe this is a good development for our legal system, but it appears to be directly connected with frustration and disappointment in the system itself.