The XX Factor

The Supreme Court Is Afraid of Gossip Girls and Boys

In an Onion -esque piece of news this week, the New York Times reported that Justice Anthony Kennedy ordered a student newspaper to “tidy up” its coverage of his recent appearance at a high school assembly. Kennedy, an ardent protector of First Amendment rights-and apparently, irony–allowed the young journalists to attend the event on the condition that his office would pre-approve any articles written about him.

Why would Justice Kennedy do such a thing? Two reasons. First, the Bill of Rights protects speech in part to encourage transparency and create a Millian slurry of ideas in which the creamy globs of truth eventually float to the top. An inaccurate or misleading quotation by reporters with exclusive access to Kennedy’s speech would be nearly impossible to correct.

Second, and perhaps more fundamentally, the Supreme Court has a deep-seated interest in practicing defensive PR. The Supreme Court is infamous for its impenetrable cone of silence . At first blush, this offense still seems petty and unnecessary-are they really that paranoid of incurring bad press?

Yes. And they should be.

As de facto policymakers who are both unelected and crowned with life tenure, the federal judiciary is uniquely susceptible to charges of anti-majoritarian bias and institutional illegitimacy. If you don’t like the President, you can go ahead and vote her out in the next election-not so with judges. Since press statements give us insight into the justices’ personal beliefs and political ideologies in a more digestible format than the Talmudic opinions released by the court, it is imperative for the justices to police reporters’ accuracy. This is especially true for Kennedy, the so-called swing justice, whose every syllable pundits pore over and parse like the cryptic utterances of the Delphic Oracle. Think of all the spurious statements daily attributed to congressmen by cable news outlets and political bloggers. If the Court were that promiscuous with its public image, we would have many more incidents like the recent Scalia- Brown v. Board of Ed debacle . It may be benign for the public to know that Clarence Thomas is awed by the complexity of dishwashers , but mistakenly believing that one of the justices of the highest court in the land opposes desegregation is more troublesome.

The Court already struggles with insecurity about its impotence in the face of Congressional legislation and does not need its authority further undermined by comments at a high school assembly. If Kennedy wants to clarify his meaning by bossing around a couple of teenage journalists, I think he can.