Last year, during a panel on the judiciary in Washington sponsored by the National Italian American Foundation, Justice Antonin Scalia contemptuously expressed—as the The Washington Post reported—“disdain for the news media and general reading public [for] inaccurate portrayals of federal judges and courts”— including the highest court in the land, whose decisions can affect millions of us, and our posterity.
The press, charged Scalia, is superficial in its coverage of the courts. But, he added, you can’t blame the media, “because nobody would read it if you went into details of the law that the court has to resolve.”
Nobody? Years ago, the major newspapers and the wire services gave considerable space to Supreme Court decisions, because the editors knew there was a clear demand to know how the Court’s decisions were going to affect readers’ lives. And each radio and television network had legal specialists regularly covering the Supreme Court.
But now, except for PBS’s The News Hour with Jim Lehrer and C-Span, the networks give only skimpy attention to Supreme Court rulings. A few newspapers—The New York Times and the Los Angeles Times among them—still believe that not just lawyers and law professors are interested in “the details of the law.”
But even with so-called high-profile cases (partial-birth abortion, for instance), most Americans around the country are essentially uninformed on how each of the justices—including the dissenters—arrived at their decisions. And now when there are increasingly 5–4 decisions—with separate concurring and dissenting opinions—the ultimate majority ruling is often far from clear.
So, Scalia misses the point when he declares in his customary blunderbuss fashion that “the press is never going to report judicial opinions accurately.” It has in the past; currently, The New York Times’ Linda Greenhouse sets a standard for accuracy and clarity in her reporting. (I once even got a letter from Scalia complimenting me for my coverage in The Village Voice of one of his controversial rulings.) The fault lies not with U.S. readers but with editors—in those parts of the print media that still have editors.
During that panel discussion in Washington, Justice Samuel Alito also had complaints about the press. When they do cover the courts, he charged, the news media not only oversimplify and generalize, but they make the judges, even Supreme Court justices, look shallow.
Alito took particular aim at the Internet where, as The Washington Post paraphrased him, “people’s ability to globally amplify their comments about judges and their opinions takes a toll on the judiciary. . . . It changes what it means to be a judge. It certainly changes the attractiveness of a judicial career.”
Since Justice Alito feels that his deeply learned knowledge of the law is woefully misreported by the media, nationally and globally, maybe he should get another day job rather than be continually and embarrassingly underestimated. But there’s another way of dealing with these underappreciated justices’ caustic views of the press, one that they will not pursue.
Scalia and Alito—like the overwhelming majority of this Supreme Court and its predecessors—utterly and indignantly refuse to permit television cameras during their oral arguments. (C-Span would be delighted to carry them in full.) Elsewhere, the written transcripts—and now audio recordings—of the oral arguments are available, but most Americans, amid the rising flood of “information” from the increasing diversity of media, are not likely to spend effort and time on these auxiliary sources. Another advantage to television coverage, as I can attest from having been in the Supreme Court press section during oral arguments, is that one can learn a lot about each of the justices—personality, temperament, biases, quickness and depth of intellect—by seeing as well as hearing them in real time. The questions the justices ask of the lawyers before them are often actually directed argumentatively at fellow justices to bully them into changing their ultimate opinions.
Many of us, myself included, watch reruns of Law and Order, and, as riveting as the court action is in those shows, there can be high drama in Supreme Court arguments, too. Of particular importance is the citizenry’s right to know the dynamics of the justices’ personalities and their justification of constitutional law when the current majority reaches an especially cruel and unjust decision that may be indicative of what this Roberts Court is likely to do in the future.
In the last term, there was what National Public Radio’s Nina Totenberg—usually an exceptionally astute Supreme Court reporter—called “a small case that many scholars consider emblematic of the [Roberts] Court’s new formalism.” Keith Bowles, Petitioner v. Harry Russell, Warden (decided on June 14, 2007) was not “a small case,” but it was indeed ominous about the future rigidity of the Roberts Court, especially in capital cases and other cases involving prisoners. In 1999, Bowles had been convicted of murder and sentenced to fifteen years to life. He filed a habeas corpus petition questioning the lawfulness, the due process, of his conviction. A federal district judge had told Bowles’s lawyer that he had eighteen days to file the appeal. That judge was wrong. Federal law mandated only fourteen days to bring that appeal. Coming to the Supreme Court, Bowles argued (as Linda Greenhouse reported) that, because the district judge had made a crucial mistake, “his cause should come within ‘the unique circumstances’ doctrine that [a previous] Supreme Court created to recognize unusual instances when jurisdictional rules should not be strictly enforced.”
In a 5–4 Roberts Court ruling written by Clarence Thomas, the highest court in the land overruled the earlier Supreme Court’s “special circumstances” doctrine and denied Bowles’s appeal, because it had been filed four days late. Justice David Souter, in dissent, justly—but unsuccessfully—wrote: “It is intolerable for the judicial system to treat people this way.” (Emphasis added.) My first thought on hearing this portent of the future “intolerable” Roberts Court’s majority decisions was to remember country singer Hank Williams’s song “Cold, Cold Heart.”
The press regarded this cruel mockery of due process as too insignificant a case to warrant much attention. However, if there had been a C-Span television camera at the Supreme Court during oral arguments—and if the arguments had also been replayed, as often happens on C-Span—many Americans watching Thomas and his colleagues in the majority (Scalia, John Roberts, Alito, and Anthony Kennedy) would have a much clearer sense of how these ultimate deciders of people’s fates actually define, through their actions, what it means to do justice.
The late Supreme Court Justice Benjamin Cardozo said that nineteenth-century judges were thought to be “no more than legal pharmacists, dispensing the correct rule prescribed for the legal problems presented. It was supposed that judges decided cases in a mechanical, ‘scientific’ fashion.” A later Supreme Court justice, William Brennan, agreeing with Cardozo that justice cannot be done by mechanical formulas, emphasized that the judges must “seek answers in the more complex equations of human nature and experience. . . . We cannot delude ourselves that the Cons
titution takes the form of a theorem whose axioms need mere logical deduction.”
The late Justice Brennan told me that he was all in favor of cameras at Supreme Court oral arguments so that Americans would actually see how justice was done. But operating in the shadows, the Roberts Court will be mysteriously with us for a long time to come.