Preface: bringing light to the halls of shadow.

• Author: Peltz, Richard J.
• Position: COVERING THE APPELLATE COURTS

Appellate judges operate in the shadows.

But they don't see it that way. "We are judged by what we write," says Supreme Court Justice Anthony Kennedy. (1)

That is of course true, and every appellate court's proceedings and records are presumptively open to the public. (2) Yet the parts of court activity that we see and hear seem only to whet our appetite for the rest of the process. What goes on during all that time when the judges are not in the courtroom?

What, for example, do the Justices of the Supreme Court do when they're behind the velvet-red drapes? One imagines the unfathomable machinations of the Wizard of Oz. (3) In the present-day halls of One First Street in northeast Washington, one would be less surprised by a Horse of Many Colors than a unanimous decision.

Some of the known details of Supreme Court practice reliably kindle cocktail party prattle. We know the fabled Rule of Four for granting certiorari. (4) We know of "the highest court in the land," the Court's officially undisclosed location for basketball plays, where the Justices, rather than counselors, do the perspiring. And we know that the Scalias celebrate New Year's Eve at the Ginsburgs with caviar and wine, (6) though we can only imagine the discourse on stare decisis and auld lang syne.

We know much less than we would like about how the Court gets from the spirited exchange of the public oral argument to the published opinion by "Justice Stevens, with whom Justice Souter joins, and with whom Justice Scalia joins except for Part III and footnote 17, dissenting in part." (7) Was it something Stevens said? This is the Great Unexplained, the Black Box of the Court. The facts and the arguments go in, and the decisions and the opinions come out. But what happens in between? Is real life on the Supreme Court as much fun as it was for Walter Matthau and Jill Clayburgh when they pretended to be Justices? (8)

Fortunately, we do not foray alone into this world of enigmatic process; we are guided by an elite corps of journalists, the appellate court reporters. Not the dusty kind on shelves, but the living, walking sort, who write, talk, and do stand-ups on the courthouse steps. They help us by researching, recording, and recalling, by informing, interpreting, and investigating, and by explaining, elucidating, and educating. They are the voices in our heads when we read our favorite newspapers and magazines, and the voices in our living rooms when we hear and watch the news. If you're reading this law journal, you probably are a court-watcher, and you know who these reporters are. You probably have a favorite, maybe two. (9) Maybe there is one you love to hate.

These reporters are closer to the action than we are. Like a member of the White House Press Corps who might occasionally glimpse the President in an informal aside, the appellate court reporter has a better chance than the general public of witnessing justice in a personal pose. Like any reporter who masters a niche beat, the appellate court reporter collects far more background than ever reaches readers. Some of this background enriches the reporting. Some of it is the fascinating minutiae of how the judiciary works (or doesn't) that fails to make the cut because it's not quite newsworthy. And some of it is just fascinating minutiae of interest only to the legal-eagle geek squad. (10)

Who are these elite journalists? They have remarkable intellect and professional skills, yes, but they also have idiosyncrasies, and even, we hate to admit it, biases. Pulitzer-Prize winner Linda Greenhouse, who has set the standard for print reporting on the Supreme Court in her work for the storied New York Times, made news herself with a 2006 Harvard University speech in which she lamented Bush Administration policy on Guantanamo Bay and religious fundamentalists' "sustained assault on women's reproductive freedom." (11) On a lighter note, Nina Totenberg, whose voice intones legal authority for National Public Radio listeners...