The assertion is made within some circles with near absolute certainty: Why?  Why would any lawyer spend her valuable time blawging if not to get business?  To small minds, there can be no doubt.  The answer comes from Justice Anthony Kennedy.

Via Orin Kerr at VC :

On August 19th, Justice Kennedy gave an address that included an interesting passing remark about the role of blogs. Justice Kennedy was talking about how law review case comments generally come out too late to be of use to the Court (especially in the context of deciding whether to grant certiorari in a case). As a result, when Justice Kennedy asks his clerks to look to see what the law reviews have said about a particular case, there isn’t any commentary yet. Justice Kennedy adds: “I’ve found, what my clerks do now, when they have interesting cases — They read blogs.” 

For serious people in the blawgosphere, this is confirmation of what’s known and believed anecdotally.  We know that courthouse computers are used to access our posts.  We don’t know who is using them, but we know that it’s happening.  We receive private emails, notes and letter from judges.  Every once in a while, a judge leaves a comment. 

The potential was made clear when Doug Berman’s Sentencing Law & Policy was cited in a footnote to Justice John Paul Stevens’ dissent in U.S. v. Booker, the first time a blawg was cited.  It was a huge revelation, that blawgs weren’t just idle chatter but a new source for thought and information that could influence the direction of the law.

Picking up on Kerr’s post, Lawprof Ann Althouse assumed that this applied only to law professors, giving those who blogged a “special line to the court.”

This means that the lawprofs who keep up high-profile blogs have disproportionate influence. You have traditional lawprofs laboring over law review articles, but these articles come out too late to discuss a case that’s pending in the Supreme Court. One answer — I’m not the first to say this* — is that law review articles should properly be about something other than the latest pending or just-decided cases, something more timeless and profound. But I think that most law professors would like to be involved in the legal developments of the day. It must be irritating to see that the lawprof bloggers have a special line to the Court.

It didn’t occur to her that blawging spells the end of the lawprof’s monopoly on outside influence; While few practicing lawyers have the time or inclination to write law review articles, leaving the medium almost exclusively to scholars hoping for tenure, blawging is readily available to any lawyer who feels the itch.  The question remains how they choose to use the itch, for self-aggrandizement in the hope of scoring that next DWI case or to change the course of the law by writing something that makes a Supreme Court justice think twice.

Kevin O’Keefe , however, saw clearly what Althouse missed, that the influence of blawging was hardly limited to lawprofs, and that judges read blawgs that offer credible and significant thought on the cases and subjects under their consideration.  Despite what the lawprofs think, any lawyer who presents sound, credible thought has as much potential to influence a judge, whether Supreme or local, as a lawprof.  Lawyers are finally in the game.

For many in the blawgosphere, the question is posed whether our writing about cases and new and issues is nothing more than preaching to the choir, educating the interested or providing a thoughtful position in the hope of influencing the thought of those people who make the decision that will change lives and law.  Here’s your answer.  We can.

For those who are satisfied writing for the Happysphere, seeking nothing more than a bit of meaningless affirmation or the one in a thousand paying client, running scared and angry if anyone looks at you with the stink eye, this is what you’ve given away.  You bring nothing credible or meaningful to the table, and you squander any potential you might have had to influence the law.  Happy now?

To the peanut-brained marketing sycophants for whom there can be no motivation that isn’t mercenary, this is a damn good reason why people blawg that has absolutely nothing to do with making a quick buck.  Of course you don’t get it, and you never will.  But if you want to know why some aren’t embracing you, here’s an answer.

For those lawyers who are pondering whether to blawg, to comment, to have a voice in the blawgosphere, and ask themselves the question of why should they bother, this provides a very sound reason.  Because Justice Kennedy is listening.  Other judges are listening.  And most of us, not all but most, have a desire in our gut to leave this place a little better for our having existed.  This is a chance to do so.  Don’t waste it.

Real lawyers think.  Real lawyers can have a real impact on the state of the law.  Real lawyers have blawgs.  Want a chance to influence the Supreme Court?  Here it is.