The Supreme Press Critics

Scalia, Alito, and Kennedy take on the Fourth Estate.

Antonin Scalia and Samuel Alito

It almost makes you long for the day when they contented themselves duck hunting with the appellants.

Once a reclusive bunch, Supreme Court justices are taking to the lecture circuit, speaking out boldly on vital issues of public concern. Except some of them are speaking out boldly at closed events, and some are speaking out boldly at closed events about issues that don’t much concern the public but seem to bother them.

Start with Antonin Scalia and Samuel Alito’s remarks this weekend at a discussion of judicial independence sponsored by the National Italian American Foundation. Now, before the Scali-o-philes start locking and loading, let me just say that most of his remarks on judicial overreaching were interesting and important. But in the midst of them, Scalia somehow saw fit to launch into an attack on the news media and the reading public. Again, no transcript of the remarks is available, but according to the AP, Scalia said, “The press is never going to report judicial opinions accurately.” It seems our reporting is limited to: “Who is the plaintiff? Was that a nice little old lady? And who is the defendant? Was this, you know, some scuzzy guy? And who won? Was it the good guy that won or the bad guy?”

I’m still running the Nexis search for the reporting on last spring’s campaign-finance reform decisions that includes the terms “little old lady” and “scuzzy guy.” But it seems to me the reporting on that case was a lot clearer than the opinions.

And although, if anything, the Supreme Court press corps is hypercautious in its attention to legal detail at the expense of sensationalism, Scalia dismisses them, and their readers, because, in his view, “nobody would read it if you went into the details of the law that the court has to resolve.”

Justice Samuel Alito, in his comments at the same event, went on to complain about the role of the Internet in legal reporting. His view is that people understand the courts through news media that oversimplify and sensationalize. Moreover, and again according to the AP, people’s ability to amplify their comments worldwide online about judges and their opinions hurts the judiciary.

“This is not just like somebody handing out a leaflet in the past, where a small number of people can see this,” Alito said. “This is available to the world. … It changes what it means to be a judge.” Somehow the fact of widespread legal reporting is taking a toll on the judiciary?

This echoes claims made by Justice Anthony Kennedy last spring before the American Society of International Law in Washington that editorial writers, who “do not have the excuse of time pressure,” (as do beat reporters) frequently “misinterpret” the court’s reasoning. Editorial writers at the major papers were rightly offended, because by and large they read the opinions before writing about them.

If the justices have a beef with the way the media cover the Supreme Court, let them state it publicly and explicitly. But the claim that we are too careless to read opinions and too sloppy to report cases is gratuitous and wrong; it describes neither the reality of legal reporting nor the general legal readership. Alito’s gripe about the death of leafleting disserves a world of online legal coverage that has enhanced understanding of the court enormously. The justices may not like the fact that even bedpan repairmen in Bangalore have access to their judicial opinions, but it doesn’t mean reporters or bloggers are universally careless in explaining them.

At some point the justices are going to have to recognize that what they do is not too hard or too supernatural for broad public discussion. And if they have specific suggestions for how legal journalists can do a better job, most of us are eager to hear them. (Note to Justice Scalia: Want to write a piece about it for Slate?) But taking potshots at journalists and the public from hotel ballrooms serves no purpose. To borrow from the language of the rules of civil pleading, it fails to state any sort of claim for which relief can be granted. Unless the only relief they really seek is to be let alone.

This brings us to the remarks of the more temperate Chief Justice John Roberts. Speaking last Friday at the University of South Carolina, the chief justice made some nice observations about the failures of the Supreme Court confirmation system. Then in response to questions about allowing cameras into the Supreme Court, he said “it would help educate people about what the court does.” But then he qualified that by saying that justices “don’t sit to help educate people about how the court functions. … It might affect how the lawyers perform. It might affect how the judges perform.”

Like his colleagues, the chief justice is confusing the message with the messenger. Certainly Roberts is right to say that “justices don’t sit to help educate people about how the court functions.” But that doesn’t mean the public has no right to be educated. And since the justices have systematically made public education more difficult—by denying video and almost wholly limiting same-day audio coverage of the court’s proceedings, as well as limiting access for bloggers—it is hypocritical in the extreme to criticize the constrained reporting that results. To be sure, the court now releases same-day transcripts of oral arguments, and my guess is that legal reporting will now improve across the board as a consequence. But that merely proves the point: Less secrecy makes for more accurate coverage. Whereas secret Supreme Court criticism of journalists themselves limited by Supreme Court secrecy makes for an Escher staircase.

Either the justices want Americans to understand and care about what they do in that big old white building, or they don’t. It’s too late to hope that citizens might just choose to tune out. And if the justices want Americans to be educated about the court, they should encourage the fullest reporting possible, recognizing that some of it will be good and some will be bad, but that more information is always better than less. The justices can keep taking swipes at the Internet, imaginary editorialists, and phantom tabloid reporters for making them look bad. Or they can recognize what makes them look even worse: themselves.