Social Education 66(1), pp.63-65
©2002 National Council for the Social Studies

Supreme Court Coverage

 

Charles Bierbauer

A lawyer arguing a case before the U.S. Supreme Court has only thirty minutes to focus attention on the nine justices on the bench.

But if the attorney momentarily glances to the left, he or she will spot a dozen or so journalists in the two rows of seats reserved for the press. If it’s a high profile case–Bush v. Gore comes to mind–there might be as many as one hundred or more journalists squeezed between and obscured behind the Court’s stately columns.

A handful of artists for the television networks furiously sketch the scene on large pads propped up on their laps. The journalists bring no cameras to court, not even tape recorders and certainly not cell phones (see sidebar). One mechanical device–a pneumatic tube used to pump the rulings handed down by the Court to the pressroom below–has long been removed.

When an attorney or a party to the appeal wants to talk with the media after arguments, the path winds out of the courtroom, through the Great Hall, and down the steps to the outside plaza. Only there are the media permitted to set up cameras and microphones for interviews. Some attorneys and their clients are eager for the media attention. Attorneys for the U.S. government never break stride to talk there with the press. And the justices themselves? Forget it!

Covering the U.S. Supreme Court is unlike covering any other institution in Washington, D.C., and I’ve covered just about all of them. The justices hold no news conferences. Some justices even seek to bar cameras when they make public speeches to organizations away from the Court. It’s quite a contrast to the White House, where every public movement of the President is intensely covered by the media, if only because the media fear that they might not be there when something goes wrong. On Capitol Hill, there are 535 members of Congress, most of whom are eager–sometimes too eager–to talk with the press.

How, then, does a journalist cover the Supreme Court?

 

Covering the Court

There is no shortage of lawyers in the United States. And there is no dearth of information about the cases that are brought to the Supreme Court. Each case has a legal history–lawsuits, trials, petitions, writs, appeals. It’s a research-heavy assignment for journalists.

When I was new to the beat, I asked one justice whether I could call him if I had a question about a case or a ruling. No, he said, and suggested that I call those smart former clerks and law professors. “They’ll tell you how I think,” the justice said.

That’s just what a Supreme Court correspondent does. We read briefs and talk to lawyers. Some of the correspondents covering the Supreme Court are lawyers themselves. Familiarity with the law is, of course, beneficial. Other reporters come to the beat with journalistic skills honed on campaign trails and in government corridors.

In any event, the breadth of cases ranges beyond any individual lawyer’s expertise. The Court receives as many as 9,000 appeals during a single court term. The justices actually hear arguments in only about eighty cases a year. The weeding-out process starts with the justices’ law clerks. Each justice has three or four clerks, all top graduates of top-notch law schools. The clerks vet the appeal petitions for cases most likely to pose constitutional questions or raise issues where lower courts are in conflict.

Ultimately, the justices themselves decide which cases they will hear. Four out of the nine justices are required to “grant cert.” That puts the case on track to be heard by the Court. The bulk of petitions are “denied cert.”

In terms of media coverage, nothing upsets the justices more than a headline that says “Supreme Court Upholds…” when all the Court has done is deny a hearing. That means that the lower court ruling stands, but the Supreme Court has not taken a direct position on the case. The court’s shorthand–denying without explanation–clashes with the headline writer’s shorthand.

A case may be denied cert because the issue has been decided elsewhere, because it is “not ripe” for consideration, or because the justices know of a similar case with better, more optimal facts in the legal pipeline, which they are waiting for in order to decide all related cases.

Still, one justice told me that he’s troubled when the media give extensive coverage to a case that’s been denied a hearing. “I wonder whether we’ve missed something,” the justice said.

A case gets the most attention when it is argued before the Court and when the justices hand down their opinion. But a prominent case–typically involving controversial social issues, such as the separation of church and state, affirmative action, First Amendment freedoms, and abortion—creates other opportunities for Court correspondents to convey the significance of the case. I found five points at which I might craft a report on an individual appeal:

• Granting cert is an early warning. It indicates that the justices have put the case on their docket.

• Previews focus on how each side prepared for an upcoming argument.

• Arguments reflect the justices’ approach to the issues in a case, though not necessarily tipping the Court’s hand on its eventual ruling.

• Opinions carry the weight of defining or refining the law and its impact on the public.

• Follow-up reports demonstrate the impact of the ruling a year or more later.

 

A Different Kind of Beat

Journalists covering the Supreme Court tend to stick around awhile—ten, twenty, and even forty years in the case of the Baltimore Sun’s Lyle Denniston. No single justice has served that long. Knowledge is cumulative. The Court’s press corps is collegial. Because briefs and opinions are available to all reporters at the same time, scoops are rare, at least on legal issues. Rumors of a justice’s retirement or ill health are competitive stories. And the law is subject to interpretation. Not all reporters will see a Supreme Court opinion, particularly a fractured opinion, in exactly the same light.

The press corps is also small. Only twenty-four permanent press passes were issued at the start of the October 2001 term: twelve to newspapers, six to wire services, four to television and radio broadcasters, and two to legal journals. Even all the regulars only cover a portion of the cases. Other journalists show up on a case-by-case basis, often when there is a local angle for their publication or when a hot political topic–abortion or the death penalty–is at issue. Some of the Court correspondents do double-duty. National Public Radio’s Nina Totenberg can also be seen on Inside Washington, from Washington, D.C. station WUSA-TV. Jan Greenburg wrote for the Chicago Tribune and reported on television for The Newshour with Jim Lehrer. I reported for the various CNN television networks and CNN Radio and wrote a column on the Court for CNN’s interactive service.

For television journalists, Supreme Court coverage raises some unique obstacles. Not only are cameras not allowed in the courtroom, but cameras were also almost always absent when the events of the case were generated. A questionable roadside arrest and search, an illegal border crossing, a rape or murder may occur in obscure circumstances many years before the case works its way through the legal system to the highest appeals court. Questions of legal procedure, though often crucial to vast numbers of people, are not highly visual.

Television networks are correctly wary of simulations recreating an event. The television reporter covering the Court must often rely on limited file video from local affiliates to recapture events. Parties to the case often do not welcome the intrusion of the media or the public exposure. Attorneys frequently counsel their clients not to do interviews. Some feel that they have nothing to gain by fighting the case in the media. Others feel that they have nothing to lose and are eager for publicity.

The justices, for their part, seek to separate themselves from the influence of the media in the cases that they hear. Justice David Souter, for one, says that he does not watch television news and rarely follows newspaper accounts.

The justices also insist that they are not influenced by politics. The narrow 5-4 opinion that effectively ended the 2000 presidential election by declaring Florida’s extended voting recount unconstitutional tested this contention. But on the day after the decision, Justice Clarence Thomas told a group of students that the Court should not be looked at in the same political light as the politicians “across the street” in Congress.

The most political act involving the justices is their appointment and confirmation to the Court. This is the time when journalists, as well as the senators, who must confirm them, scrutinize their legal backgrounds for political leanings. A president tries to appoint justices who share his philosophy, but he does not always succeed. Once the justices are on the Court, they are likely to be tagged with a liberal, centrist, or conservative label. The journalistic shorthand often seeks to place a Court ruling along the political spectrum. But correspondents familiar with the Court also note the unusual coalitions that form on some opinions and reflect judicia#150;not politica#150;philosophies.

The Supreme Court is in session only a few hours a week, two weeks a month, nine months a year. That doesn’t make it an easy beat to cover. Most journalists spend the rest of the time doing research, reading legal briefs, gathering television footage, or conducting interviews by phone or in person where the cases originate.

Except for rare cases, such as the election finale and eleventh-hour pleas to stay an execution, the calendar is orderly and predictable. The Court begins hearing arguments traditionally on the first Monday in October and continues arguments through April. By December, the justices start handing down opinions, typically clearing the docket by the end of June. Then justices, clerks, and journalists catch their breath and begin sifting through the coming cases already stacked up for the next term.

 

Charles Bierbauer covered the U.S. Supreme Court for CNN from 1997-2001. He is a consultant to the CBS series First Monday and appears as himself in the drama based on the Supreme Court. He also teaches a course on media and government at Pennsylvania State University.

 

 

Cameras in Court

It’s not Court TV. It’s not the O. J. Simpson trial. There are no cameras in the U.S. Supreme Court. Federal courts are among the last lines of resistance to courtroom cameras.

When the last phase of the 2000 presidential election was battled in the courts, American voters and viewers were able to watch the arguments before the Florida Supreme Court live on television. Florida has a “sunshine law” opening all government proceedings to media coverage.

With the election count hanging in the balance, the U.S. Supreme Court for the first time permitted audiotape of the arguments to be rebroadcast within minutes of its conclusion. But still no cameras.

Chief Justice William Rehnquist admitted that he was surprised at how much interest there was in the broadcast of the arguments. Yet the chief justice was no fan of cameras.

Justice David Souter had long taken an even less equivocal view of cameras in court. “Over my dead body,” Justice Souter said. As a New Hampshire state justice, Souter felt that cameras made him pull his punches when questioning attorneys before the court.

Federal courts have been permitted to experiment with courtroom cameras. The technology has advanced to where cameras can be permanently fixed, remotely operated, and quite unobtrusive. Members of Congress are now used to cameras in both the Senate and the House. Television cameras are part of the presidential entourage.

But most justices argue, with some justification, that the sound-bite mentality of television networks would chop complex legal arguments into ten-second chunks easily taken out of context.

The justices also fear—with less justification, because they are public officials—that cameras in the Supreme Court would cost them their personal privacy. In that, the public servants may be favoring an uninterrupted trip to the supermarket against an unabridged public understanding of a major government institution.