Institutionalizing press relations at the Supreme Court: the origins of the Public Information Office.

• Author: Peters, Jonathan
• Position: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis

ABSTRACT

At the U.S. Supreme Court, the press is the primary link between the justices and the public, and the Public Information Office ("PIO") is the primary link between the justices and the press. This Article explores the story of the PIO's origins, providing the most complete account to date of its early history. That story is anchored by the major events of several eras--from the Great Depression policymaking of the 1930s to the social and political upheaval of the 1970s. It is also defined by the three men who built and shaped the office in the course of forty years.

1. INTRODUCTION

   Anna Nicole Smith drew a big crowd in 2006 when she arrived at the U.S. Supreme Court. The former Playboy model and reality-TV star was there to watch the oral argument in her own case, an effort to claim part of her late husband's estate. (1) Photographers swarmed her, one bystander shouted that she was a "goddess," and the public line to attend the argument wrapped around the Court's plaza. (2) As the writer and scholar Jonathan Turley noted, Smith's appearance generated more attention and news "coverage than it would if Chief Justice John Marshall returned from the dead for the argument." (3)

   Once in the courtroom, however, where cameras are not allowed, Smith quickly blended in, "just one more face, barely perceptible amid about 300 visitors." (4) Indeed, it appeared that few in the "gallery even knew she was there, sitting halfway back in the public section, quietly wiping away tears" as Justice Stephen Breyer talked about Smith's late husband, the billionaire oilman who married Smith when she was twenty-six and he was eighty-nine. (5) At the end of the argument, Smith slipped out the Court's side door, then negotiated through a throng of photographers. (6) She made no statements and signed no autographs. (7) She just smiled a few times before sliding into a dark sport-utility vehicle parked on the street. (8)

   Slate writer Dahlia Lithwick wrote at the time: "I would love to tell you that [Smith] did something, anything, to distinguish herself from the thousands of appellants who have brought their cases into these marble walls. But the court has worked its magical spell of blandness, ... and she is just another litigant with a probate dispute today." (9) And yet she did distinguish herself if only because her presence created a media frenzy. News outlets from around the country staked out the Court to get photos of her arriving and leaving. (10) Others requested extra seats in the courtroom, and still others, many covering the place for the first time, asked Court officials for help and guidance. (11) They did not know where to begin.

   At the center of the media frenzy was the Public Information Office ("PIO"), the institutional liaison between the Court and the public and news media. Its staff credentialed reporters to attend the argument, fielded requests from broadcasters to shoot video around the plaza, and answered questions about the Court's traditions and procedures. (12) However, the staff did not hold a press conference about the case, did not distribute news releases, and did not offer any analysis or interpretation of the briefs or oral argument. (13)

   The day after Smith's oral argument, the PIO intern, a college student, asked one of his coworkers about the origins of the office. (14) He wanted to know where it came from and how it operated in the early days. The coworker did not have concrete answers. Nor did others in the office. The general consensus was that in the 1930s an Associated Press reporter misinterpreted the reasoning of the Gold Clause Cases and issued a bulletin misstating the Court's decision, an error that facilitated the hiring of a press liaison and the creation of the Public Information Office.

   In reality, the story of the PIO's origins is more complicated, and this Article is the first to explore that story in depth, providing the most complete account to date of the PIO's early history. It is worthy of exploration because the interaction among elites, institutions, and the public is of primary importance in a democratic society. (15) At the Supreme Court, specifically, the press is the primary link between the justices and the public, and the PIO is the primary link between the justices and the press. To explore the PIO's early history, then, is to explore how the Court has attempted to influence the flow of information between elites and the public.

   Studies of the Supreme Court and press activities, which have focused mostly on news coverage of the Court, have crossed methodological lines, including historical methods and interviews, (16) case studies, (17) observation, (18) quantitative methods, (19) and content analysis. (20) This Article uses historical methods and interviews. First, it relies on primary sources: correspondence of the justices, memoranda among the justices and other Court officers, internal Court newsletters and bulletins, Court press releases and media advisories, and speeches. These were available through reporters who cover the Court and through (1) the Thurgood Marshall papers, housed at the Library of Congress, and (2) the Lewis F. Powell papers, housed at Washington and Lee University. Second, this Article relies on secondary sources: books, articles, treatises, monographs, and videos commenting on the Court's relationship with the press. Third, it relies on interviews with six current or former members of the Supreme Court press corps and three current or former Court staffers. The average interview lasted ninety minutes, and all but one were conducted in person.

2. THE EARLY DAYS

   In the 1930s, the Supreme Court found itself in the middle of Great Depression policymaking. President Franklin D. Roosevelt was lobbying Congress to pass a series of bills, collectively called the New Deal, to improve economic conditions across the country. (21) The bills focused on what historians today call the Three R's: relief for the unemployed; recovery of the economy; and reform of the financial system. (22) Although many of the bills passed, with Roosevelt signing them into law, the Supreme Court found several of them unconstitutional.

   Consider the Agricultural Adjustment Act of 1933. (23) Supported by Roosevelt, who believed prosperous farms would lead to a prosperous America, the Act created the Agricultural Adjustment Administration ("AAA"). (24) Its purpose was to raise the price of commodities through subsidies and scarcity. (25) However, the AAA met an early demise when the Supreme Court ruled in 1936 that the Agricultural Adjustment Act was unconstitutional. (26) Justice Owen J. Roberts, writing for the majority, said a "statutory plan to regulate and control agricultural production [is] a matter beyond the powers delegated to the federal government." (27) Just one year earlier, the Court had struck down Title I of the National Industrial Recovery Act, which created the National Recovery Administration, responsible in general for stabilizing wages and prices. (28)

   Frustrated and determined to get around the Supreme Court, Roosevelt used the Senate Majority Leader to propose and push for the Judicial Procedures Reform Bill of 1937, often called the court-packing plan. (29) Among other things, it would have granted the president the authority to appoint up to six additional justices to the Court, one new member for every sitting justice older than 70.5 years. (30) Roosevelt thought that by expanding the size of the Court he could create a pro-New Deal majority. (31) Although the plan failed, the Court's independence and image had been threatened, compelling the justices to fight back publicly. (32) Chief Justice Charles Evans Hughes, for example, wrote a letter to the Senate Judiciary Committee that challenged the president's rationale for the court-packing plan. (33) Newspapers republished the letter. (34)

   Amid that political drama, (35) the Supreme Court quietly appointed a member of the clerk's staff to "handle queries from hundreds of news writers seeking information on court moves that have captured public attention, especially since the New Deal controversies began pouring into the tribunal." (36) The idea came from a committee of reporters that pitched the idea to Hughes, and the job ultimately fell to Ned Potter, who had worked in the clerk's office for eight years recording the Court's formal minutes. (37) Potter had no experience in journalism or public relations, and that may have been the point. (38) Court officials emphasized at the time that Potter was not a "press agent" or "public relations counselor." (39) He would issue no "handouts" or "press releases." (40) He would not comment on the Court's opinions and orders, nor would he explain them. (41) Rather, Potter would maintain a complete set of briefs, opinions, and other records for the convenience of the press, he would credential reporters for seating in the courtroom, and he would supervise the press room. (42)

   Although this marked a significant step for the Court, appointing "an official for the mutual benefit of the press and the [C]ourt officers," it did not merit an official announcement. (43) No press release, no media advisory, no memo. Nothing. In fact, "[t]he appointment became known when Mr. Potter moved his desk and files into the larger of the two rooms assigned to the press in the basement of the [new] ... building." (44) Those rooms, the Court's first attempt to institutionalize its relationship with the press, were "remarkably good" for a place "long distinguished [by] its detached attitude." (45) The press rooms even included pneumatic tubes that linked them with the courtroom, enabling the reporters upstairs to "send copy swiftly down to telegraph and telephone instruments below." (46) Still, compared with other institutions, the Court was slow to provide physical space to the press and to appoint a press liaison. (47) When the Court moved into its current building...