Court Orders

Slatereaders weigh in on how to fix Supreme Court reporting.

The Supreme Court

Last week Jack Shafer gave the New York Times’ soon-to-be new Supreme Court reporter, Adam Liptak, his first homework assignment: Rethink the day-after-argument/day-after-opinion format that dominates Supreme Court reporting and find a more creative, possibly Webby way to report on the court. Intrigued, I floated some ideas about how the beat has already changed and how it might change more. Then I waited for your mail.

Over the weekend, the Timespublic editor, Clark Hoyt, used, as an example of the dread “reporter-columnist,” Liptak, whose recent Sidebar column about the broad powers afforded the Department of Homeland Security was somehow laced with “opinion—from a reporter, on the front page.” (Oh, the humanity!) Conceding Shafer’s point that “journalism that is mere stenography is of little use to readers and is often even misleading,” Hoyt went on to say that it “may be one step too far to have the same reporter write a column with voice and opinion—explicit or implicit—and news articles that are supposed to be completely impartial.”

Welcome, Adam Liptak, to the Supreme Court beat, where no good knowledge base goes unpunished!

Sifting through the thoughtful e-mails you sent in, it’s clear most of you are also struggling with Hoyt’s dilemma over finding the line between point of view and neutrality in reporting at the Supreme Court. Reader Paul Chapman summarizes the problem this way:

My first reaction is that [more point of view] would be great, since objective journalism is a lie, everybody has a point of view, and the public is best served by being explicitly told what a given reporter’s point of view is, rather than having it implicitly fed to them throughout the article. On the other hand, from my experience with human nature, I’ve learned that people often lose interest in what a person has to say once they see that the person holds views contrary to their own.

Steve Tatum wants to see SCOTUS reporters insert more opinion into their factual reporting:

Reporters should feel more comfortable with a mix of straight reporting and opinion than they have been. For people who really want to form their own opinions, there are many available sources for the opinions themselves. For everyone else, to the extent they like to follow what the court is doing, reporters’ viewpoints permit the lay public to have easier access to court trends that will allow them to be more intelligent voters every four years.

Charles Peltz couldn’t disagree more:

Court reporting has been one of the last refuges where the people and subjects covered by reporters seemed to positively influence the method they used. The slow deliberations and thoughtful analysis of the justices seemed to compel reporters to be themselves thoughtful and even handed. Please don’t advocate that reporters express opinions in their stories. We have too much of that in all ways on (seemingly) all other topics.

Peltz points out that as the Supreme Court has shifted to the right, my own biases have seeped into my reporting and offers—as a conductor—this reminder: “The famous composer/conductor Richard Strauss admonished young conductors by saying, ’[T]he audience should sweat, not the conductor.’ “

Another expert Supreme Court watcher, David Garrow, writes from Cambridge University, concurring that “increased tolerance for ‘a little point of view’ in direct coverage of SCOTUS is likely to do significant damage to any ‘MSM’ institutions that allow it.” There is also some genuine concern from some of you about mixing opinion and reporting—specifically at the high court—and the damage it may do to our reverence for the law. Reader William Chapman puts it this way: “I honestly don’t know whether greater coverage of the personal side of Justices would increase or decrease the respect given to the Court, but I tend to assume it would decrease it—the more I learn about politicians, the less I tend to respect them.” Another reader, who asked to remain anonymous, puts it this way:

As interested as I am in what book is on Justice Scalia’s nightstand or how long ago—exactly—Justice Ginsburg’s ACLU membership lapsed, I can’t think of a worse way for a Court reporter to spend his or her time. Not because it’s not news, wouldn’t make for interesting reading, or might not win somebody a Pulitzer. Rather, because that kind of reporting politicizes the Court in a way few carefully worded opinions ever could. Yes, the justices are undoubtedly political creatures, but the more we think we know about their political lives, the less likely we are to respect their rule as law.

Not so fast, writes Kevin Wright. Sure such opinion-based journalism

may seem to make the court political, but it seems to me that the Justices, especially Scalia, Thomas, and to some extent Chief Justice Roberts, are getting away with a constant call for their pet theories … while the press ignores the numerous cases in which their opinions completely ignore these theories.

Mark Obbie, who actually teaches about just this sort of thing at the Newhouse School, blogged a river of great ideas for improving court coverage, including a biggie I forgot to mention last week: “Go to where the cases percolate up from, reporting on the real people and places at issue in the briefs.” One of the things Nina Totenberg, Jess Bravin, Warren Richey, Bob Barnes, and Mark Sherman (among others) do that’s invaluable is hiking out to Kenosha to interview the old lady whose cat fell down the well. The old lady is invariably the one person who gets lost at oral argument and even more so in the written opinions.

Several readers call for more reporting about the atmospherics at court during oral argument. Harvard Law School’s Mark Tushnet, whose book, I Dissent,is forthcoming, includes among his great suggestions “giving readers a take on the tone of argument without overpredicting outcomes from that tone.” Reader Andrew Grossman similarly asks for SCOTUS reporters to offer “a bit more ‘Monday morning quarterback’ to the process”:

Too often I find that reports on oral arguments consist of rote recitation of the questions posed by the justices, followed by the attorney’s response, with nothing more added until there is a broad analysis at the end. I’d like to see, especially for the more poignant questions in the argument, an analysis of either the Justice’s question (Was it fair? If not, in what way was it unfair?) or an analysis of the attorney’s response (was there a better way to answer that question? etc.)

Jose Cordero wants to see cameras at the high court. Reflecting on Justice Scalia’s recent suggestion that only lawyers can understand what the Supreme Court actually does, Cordero writes:

If we want to worry our “pretty little heads” over tax code or ponder arguments regarding whether the Constitution is a living document or whether soft money for campaigns is legal, it should be up to us, not him. He may work in an ivory tower, but we built it and we ought to be able to peek inside the windows should we so please.

Reader Jeff Morgan also insists that the court open itself up to public scrutiny:

One of the most important effects of things like releasing SCOTUS audio arguments is their educational value. The court is an arcane institution that few average Americans understand. … And most people don’t realize how much the dynamics of personality and human irrationality steer the court to its final decisions. Listening to arguments reveals the justices for the humans they are and makes the whole process and procedure more accessible.

Paul Camp, on the other hand, is not interested in audio or video or anything that attempts “to reproduce the TV news experience online, with all its shallow, time-constricted talking headitude.” That said, he cautions SCOTUS reporters not to fall captive to the myth of the neutral jurist: “Despite the pretense offered by people like Scalia that their words somehow descended unchanged from a Platonic realm of absolute truth, the fact is that personal histories and relationships, both within and outside the court, influence points of view in strange and subtle ways.”

Danielle Goldstein wants us to do more to explain why cases matter. “The press corps are the only ones who can translate for the public—not just what the broad constitutional themes are, but also what the decisions mean in terms of people’s actual lives. The courts are necessarily embedded in their own discourse, and it’s one that isn’t really tied, necessarily—or is tied in unpredictable ways—to real life.”

Glenna Goldis makes a related point about journalists’ reliance on experts:

If you’re looking for someone to go hand to hand with John Roberts, she can’t have anything to lose. Professors believe they have everything to lose. They want the court to adopt their ideas. Their former students are clerking on the court and they want to get more students on the court, so that the students will implement their ideas. They want to be on the court. And they think they are this close.

It’s a fascinating problem consumers of Supreme Court news may highlight: We want the court to be covered like any other political and human decision-making institution, but with a deep respect for and understanding of the ways in which the court is different. Yes, it needs to be demystified, but not so much so that it is disrespected. It should be analyzed, but not in ways that might damage it or its credibility. The justices should be covered like people, but not like ordinary, silly people.

I’ve always known that the reporters who cover the high court are the hardest-working folks out there, but this exercise helped me understand why their job is so hard: Perhaps for the rule of law to mean anything, Americans need to see the high court as both human and oracular, and the folks who cover it inevitably have to walk some invisible, unknowable line between two myths that are each partly true.