Telling the Court's story: justice and journalism at the Supreme Court.

• Author: Greenhouse, Linda

INTRODUCTION

The relationship between the fairness and accuracy of political journalism and the health of electoral politics in the United States has been the subject of frequent study and comment. Both scholars and journalists have expressed alarm at the corrosive effect that cynical, adversarial, or sensationalistic reporting has had on the process of running for office and governing the country.(1)

But the relationship between the quality of legal journalism and the vitality of our judicial institutions has received much less attention, with perhaps the sole exception of the continuing debate over permitting live television coverage of proceedings such as the O.J. Simpson murder trial.(2)

This Essay starts from the premise that press coverage of the courts is a subject at least as worthy of public concern and scholarly attention as press coverage of politics, perhaps even more so. Political candidates who believe that their messages are not being conveyed accurately or fairly by the press have a range of options available for disseminating those messages. They can buy more advertising, speak directly to the public from a talk-show studio or a press-conference podium, or line up endorsements from credible public figures. But judges, for the most part, speak only through their opinions, which are difficult for the ordinary citizen to obtain or to understand. Especially in an era when the political system has ceded to the courts many of society's most difficult questions, it is sobering to acknowledge the extent to which the courts and the country depend on the press for the public understanding that is necessary for the health and, ultimately, the legitimacy of any institution in a democratic society.

My focus in this Essay is journalism about the Supreme Court of the United States, which I have covered since 1978 as a correspondent in the Washington Bureau of the New York Times. Fortunately, the environment at the Court, both for its life-tenured occupants and for the several dozen reporters who chronicle its work, remains considerably more civil than that of the campaign trail. But neither the Court nor its press corps exists in a bubble, immune to the broader political culture that in recent years has included Supreme Court confirmation battles of intense and lasting bitterness as well as a general skepticism about the perquisites of high office and, indeed, about the exercise of government power generally.(3)

Furthermore, every generalization that can be made about the barriers to public understanding of the judicial system is particularly true of the Court: To the public at large, the Supreme Court is a remote and mysterious oracle that makes occasional pronouncements on major issues of the day and then disappears from view for months at a time. The nine individuals who exercise power in its name are unaccountable and essentially faceless. The Court looms so large in the consciousness of readers of this journal that it may be helpful to note, as the Washington Post did last fall, that while fifty-nine percent of the public, in a sample of 1200 randomly selected adults, could name the Three Stooges, fifty-five percent could not name a single Supreme Court Justice.(4) Given such widespread ignorance, and in light of the Court's role as an important participant in the ongoing dialogue among American citizens and the various branches and levels of government, journalistic miscues about what the Court is saying and where it is going can have a distorting effect on the entire enterprise.

Not surprisingly, the segment of the public that does follow the work of the Court often cares intensely how the Court is covered and monitors journalism about the Court very closely, in recognition of the fact that today's journalism about the Court is in many respects tomorrow's history of the Court. What is being played out in debates and criticism about contemporary reporting on the Court is a battle over history's eventual verdict on the Court and the Court's role during this period.

My thesis is that there exist conventions and habits both within the press and within the Supreme Court itself that create obstacles to producing the best possible journalism about the Court, journalism that would provide the timely, sophisticated, and contextual information necessary for public understanding of the Court. Some of the habits and traditions I identify as obstacles are unlikely ever to change, and I do not necessarily think that they should; I do not expect to see Justices holding news conferences to explain and elaborate on their written opinions, however appealing or even titillating that prospect might be to journalists. Nor do I expect newspapers to call up reserve troops and open up page after page of shrinking news holes to accommodate the flood of late-June opinions. I also recognize that the interests of these two vital and powerful institutions, the Court and the press, can never be entirely congruent; the press is always going to want more information than the Court is ever going to want to share. But I hope that the process of identifying where the obstacles lie may nonetheless foster some fruitful discussion--within the press, within the Court, and, radical as the thought may be, even between the two--of those problems that can be solved and of those mutual concerns that can be addressed without threatening the identity or integrity of either institution.

1. GETTING THE STORY

   Covering the Supreme Court is such an unusual form of jouRNalism that it may help to describe the process itself. Sources, leaks, casual contact with newsmakers--none of these hallmarks of Washington journalism exists on the Court beat, leaving even experienced reporters baffled and disoriented, as I was when I began my job there.

   Before I began covering the Court, I was a member and eventually chief of the New York Times bureau in Albany that was responsible for covering the New York State government. The mid-1970s in Albany was a chaotic and cacophonous period of fiscal crisis and public policy innovation. The press room in the state capitol was located on the third floor, fittingly between the Assembly and Senate chambers. The two houses of the State legislature were controlled by different parties, and, in the process of shuttling back and forth in search of the latest developments, reporters inevitably became messengers between the leadership of the two houses and between the legislature and the office of the Governor on the floor below. The press, in other words, was very much part of the process in Albany, as witnessed by the location of the press seats in the well of the two legislative chambers, in direct view of the members. Once, as I tried to keep myself awake during a midnight session of the State Assembly by eating a candy bar, an assemblyman walked across the chamber to my seat, told me to stop eating junk food, and handed me an apple.

   Occasionally, my job required me to cover decisions of the New York Court of Appeals, the state's highest court, which is down the hill from the capitol. The judges of that court, who in those days ran for election, made a point of getting to know the reporters, and some would stop by the press room when business brought them to the capitol.

   When I arrived in Washington, D.C., to take up my new assignment at the Supreme Court, I was met by silence. The contrast with my past life could scarcely have been greater. The press room at the Court is far from the action, in a ground-floor location that is actually a kind of half-basement, with small windows high up on a few walls. The Court's newsmakers, the Justices, are rarely seen on that floor, except for the few who eat an occasional meal in the public cafeteria down the hall. The Justices are visible, of course, on the bench whenever the Court is in session, but opportunities for casual or unscheduled contact are almost nonexistent. The journalist's job is almost entirely paper-dependent, defined by the endless flow of conference lists, order lists, petitions for certiorari, and opinions. While most politicians will cheerfully or angrily critique any story in which their name has appeared, Justices rarely respond to public comment, or even to rank error.

   The press corps at the Court is a small one, with about three dozen accredited correspondents representing organizations ranging from the Wall Street Journal to the Cable News Network to USA Today. Many additional reporters show up and receive one-day press passes to the courtroom on the days of major arguments and toward the end of the Term, when important decisions are expected. But on a typical day during the Term, when the Court is not on the bench and when the business at hand consists of reading certiorari petitions and briefs on the merits in granted cases, the numbers are much smaller. It would be unusual to find more than a half-dozen reporters at work at their desks on such a day, fewer now than when I began reporting on the Court.

   The reason is that the commitment of the media to full-time coverage of the Court is shrinking, and most of the reporters assigned to the Court are also responsible for covering the Department of Justice, other courts, perhaps the Judiciary Committees in Congress, or, often, legal developments in the country at large. The television networks have cut back sharply on the attention they pay to the Court, a very unfortunate development considering the number of people who rely on television as their primary news source. One of the country's biggest newspaper chains, the Scripps-Howard chain, last year reassigned its experienced and respected Supreme Court reporter to another beat and left the job unfilled.

   Developments like these represent a major failure of journalistic responsibility and pose a significant obstacle to achieving excellence in writing about the Court. Major decisions will be covered, one way or another. What is lost to the reader or...