Journalists and the Supreme Court

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JOURNALISTS AND THE SUPREME COURT

At the heart of the complex relationship between the Supreme Court and the journalists who cover it lies a contradiction. Due to its inherent inaccessibility, and to the fact that its members speak only through their written opinions without elaboration through news conferences or press releases, the Court, more than most other public institutions, depends on press coverage for public understanding of its work. Yet the Court fails to take a number of modest, relatively unobtrusive steps to achieve better, more accurate journalism about the Court.

The press therefore has a particularly heavy responsibility to provide comprehensive and accurate Court coverage. When it comes to learning about the Court's work, the public has few alternative channels of information available. Yet covering the Court is an afterthought for many news organizations that would not think of taking such a casual, almost haphazard approach to reporting about the White House or Congress.

Arguments and decisions in a handful of major cases each year attract a crowd of print and electronic journalists, but on most days when the Court is in session, the two rows of seats set aside in the courtroom for the press are empty, or nearly so. On days when the Court is not sitting, the number of journalists who spend time in the press room on the ground floor, reading briefs and petitions to prepare for upcoming cases, can usually be counted on the fingers of one hand.

The habits of these two institutions, the Court and the press, are mutually reinforcing. Neither pays due attention to the other. The result is journalism about the Court that is too often skimpy, imprecise, and lacking in context. That in itself is no doubt an improvement, however, from earlier decades, during which major developments at the Court could go entirely unreported.

In 1938, for example, the press missed the landmark ruling in erie railroad co. v. tompkins, which revolutionized federal jurisdiction by holding that there is no universal common law and that federal courts are bound to apply state law in cases of diversity jurisdiction. As Justice ruth bader ginsburg recounted the incident to an audience at the Georgetown University Law Center, Justice harlan fiske stone let a week go by and then complained to Arthur Krock, the chief of The New York Times Washington Bureau, about the newspaper's failure to report on the decision. Mr. Krock soon produced an account of what he called a "transcendentally significant opinion" that had "generally eluded public notice."

In the media-saturated world in which the Court and the Washington press corps exist today, an omission of this sort would be most unlikely, because interested parties, served by public relations firms and aided by fax machines, would quickly bring a major ruling to the attention of the press. Today's lapses are likely to be of a more subtle variety, understating or overstating an opinion's significance or degree of conclusiveness. There is such a cacophony of voices responding to any important Court ruling, in fact, that reporters who are uncertain how to assess a decision often fall back on simply quoting the responses of the parties or outside experts, leaving readers to draw their own conclusions.

From a journalist's point of view, perhaps the most salient fact about covering the Court is the inaccessibility of the Justices themselves. Justices and reporters may encounter one another at social functions at the Court, or casually in the building's hallways. But the Justices are not available for off-the-record conversations about the Court's work. A reporter who finds an opinion ambiguous cannot call the author for an explanation.

While not unique to the Court, this ethos of distance between judges and journalists is not universally shared by other courts. Journalists occasionally find judges elsewhere who are willing to explain finer points of their rulings, albeit always on a background basis. Judge Richard S. Arnold, chief judge of the U.S. Court of Appeals for the Eighth Circuit and one of the most widely respected members of the federal bench, said in a 1998 interview in Media Studies Journal that he had "spoken many times, off the record, to reporters, to help them understand an opinion." He said he had even on occasion given a reporter an opinion a day early, under an embargo, so the reporter could read it at leisure for greater comprehension. "We can't control them," Arnold said of members of the press. "We can't manipulate them. But we can at least give them the tools that they can use, if they're well-disposed, to explain the subject better to the public."

This is not the attitude at the Supreme Court. Informal requests by reporters that the Justices space the opinions out at the end of the term, to avoid issuing two or three landmark rulings on a single day, have gone unanswered. When technology evolved in the early 1990s to permit the private company that prepares transcripts of the Court's oral arguments to provide automatic, same-day service of the transcripts—a substantial benefit to the accurate reporting of oral arguments, and one that is routinely available for legislative and administrative hearings in Washington—the Justices rejected the company's offer, preferring instead to continue receiving the transcripts some two weeks after the argument. Further diminishing the utility of the transcripts, the Justices asking the questions are not identified by name. The transcribed questions come from "the Court."

The Court has resisted numerous requests to open oral arguments to television; based on recent statements from individual Justices, that position is not likely to be reexamined in the near future.

In the absence of sources and personal contact with the newsmakers on their beat, Supreme Court reporters spend most of their time dealing with documents. Through the Public Information Office—the only source of formal contact between journalists and the Court—the Clerk's Office regularly makes available the lists of new petitions for writs of certiorari that are ready for distribution to the Justices at their weekly conference.

In this way, the press can track the progress of petitions, copies of which are reserved for inspection by reporters. By the time the Monday orders list is released, reporters who have studied the cases on the conference list have already identified the newsworthy petitions that might be granted, as well as those cases that might make news even if certiorari is denied.

The Public Information Office also distributes the schedule of oral arguments. It reserves seats in the press section of the courtroom for the relatively few arguments each term that attract enough press attention to require departing from the usual first come, first served seating. The office also keeps full sets of briefs that are filed on the merits of granted cases and distributes copies of the occasional speech or lecture by a Justice. But because the Court has no requirement that Justices inform the Public Information Office of their personal schedules, the public appearances of Justices tend to go unreported.

The Supreme Court press corps is small, with only about two dozen print reporters and television correspondents holding permanent credentials. Dozens more can get a one-day pass to cover a particular argument. But even that number pales in comparison to the press corps that covers Congress: some 5,000 journalists hold congressional press credentials.

With approximately 8,000 petitions for certiorari filed every term, the Court's docket provides almost limitless reporting opportunities. Journalism about the Court tends to fall under one of six basic headings. First, cases sometimes make news simply by being filed, even if the predictable disposition is denial of certiorari; at least the conclusion of what may have been a highly visible odyssey through the legal system is now in view.

Second, the Court's decision to hear or turn down a case is often highly newsworthy. A grant of certiorari, in particular, with its promise of imminent resolution, can initiate a wide-ranging national conversation about the underlying issue in the case.

Third, the period leading up to the argument date often provides an occasion for a story that explores the issues in the case, perhaps including interviews with the parties themselves.

The oral argument itself, the fourth type of Court story, offers more inherent drama than the other categories because it provides a stage on which the Justices conduct their business in public, interacting both with each other and with counsel for the parties. Lawyers often get a second chance to make their arguments, in front of the television cameras that await them on the plaza outside the Court building.

The fifth category, articles about the Court's actual decisions, is perhaps the most obvious, yet the writing of such an article is often far from routine. Especially when the Court is divided or when the question decided differs to some measurable degree from the question presented, simply summarizing the holding may be a challenge. To fully inform readers, the article must also provide the context of the case as well as responses from the parties and an indication of the decision's likely impact.

The sixth category comprises analyses of decisions as well as articles about trends on the Court, the role of individual Justices, and other related events. A vacancy on the Court, and the resulting confirmation process, usually provides still another occasion for taking stock, looking back, and—something that journalism does often but not well—predicting the future.

Linda Greenhouse
(2000)