We live in a world of leaky institutions. So long as Bob Woodward has a book project on his to-do list, you can bet that very little that is said in any meeting involving executive branch officials will stay between the participants. In the entertainment world, there are no shortage of well-sourced media outlets that are always out front of divorce filings and rehab stays. In sports, agents with agendas tip beat writers off well in advance of free agent visits and signings.
In this climate, the United States Supreme Court stands out more than ever. While we almost feel entitled to know, for example, where a basketball star like LeBron James will land before he makes an official announcement, Supreme Court decisions are unveiled when and only when the nine justices deign to announce them. There are no scoops regarding what is happening behind the doors of those chambers as decisions crystallize, only conjecture.
And that has always made the nature of the work done by the members of the Supreme Court press corps quite different from that of the rest of the news media.
“It’s actually disspiriting,” says Adam Liptak, the Supreme Court correspondent for the New York Times. “You show up at the Supreme Court and everyone is writing the same story. It’s terrible. Do you really need twelve versions of a cert grant story?”
Liptak, a graduate of Yale Law School who actually broke into the paper’s employment roll as an in-house counsel, visited the Law School on October 20 as part of the Workshop on Judicial Behavior series. Ostensibly, Liptak was present to discuss three recent Times articles that touched on the subject of the workshop. And he did so. However, much of the ninety minutes was also spent with Liptak and members of his audience chewing over the role of the Supreme Court reporter in general.
Does the media have an obligation to report when, for example, Justice Ruth Bader Ginsburg naps during an oral argument? That matter, and the mainstream media’s silence regarding the incident, sent the conservative blogosphere into a five-alarm tizzy a few years ago.
When an aging John Paul Stevens butchers a few easy words from the bench, as he did while reading his dissent in the Citizens United case, how should a reporter handle that? What balance is to be struck, in other words, between outing a justice for potential dwindling competence and showing due respect to a ninety-year-old former World War II codebreaker with decades on the Court?
Does it matter that the justices are not elected officials? Does it alter the math if, say, Jim Bunning instead were the one napping or verbally struggling? Comparisons to Congressional coverage were plentiful in the room, but it is not a one-to-one parallel.
“I do find myself somewhat protective of the justices,” Liptak said, “and I don’t see the need to needlessly embarrass them. (When) Justice Stevens really had trouble articulating some words, I wrote in the mildest terms that he occasionally stumbled over ordinary words. That didn’t fully capture how bad it was.
“Later, he said I had been right and that was among the reasons he decided to resign. Someone emailed me and said, ‘How can you not be telling the nation?’ He’s usually really sharp. It didn’t seem to be a pattern. It’s just a human impulse.”
But can’t that compassion, one audience member wondered, come at the expense of the American public’s interest in knowing?
“I’m guilty,” Liptak said. “You’re right. I guess my position is indefensible. (But) I’m not sure if it happened tomorrow, I write that sentence.”
Searching for a story
Full disclosure: Before beginning law school in 2009, I spent ten years as a newspaper journalist and author. My beat was not as lofty as Liptak’s, but it was something that people quite often take just as seriously: University of Notre Dame football.
I do not pretend that what I was covering was as important as the beat Liptak staffs, but there are certainly some parallels, not the least of which is the audience’s passion for the subject matter. A couple of other similarities are also unmistakable: Whether it is the Lindsay Lohan beat or the Supreme Court or Notre Dame football beats, readers generally want the news and have little patience for official pronouncements. Unless, of course, they don’t like that particular bit of news and sense it can hurt their side. Then they are angry at the reporter for divulging it in the first place. The former psychological impulse, impatience, surely feeds into the perception that the members of the Supreme Court press corps, more than others, are glorified public relations flaks for their sources.
Also, Liptak’s frustration with rote coverage of the news of the day is genuine and universal. There is no more effective way to feel invisible than covering events like Notre Dame football games or the 2003 National League Championship Series between the Cubs and the Florida Marlins, when you become one of hundreds of reporters furiously scribbling the same banal quote by that day’s starting pitcher. Then writing, as Liptak put it, “the same story” as everyone else.
Liptak has fed his desire to be more than a stenographer to the legal stars by developing a niche for himself. He frequently pens articles distilling complex empirical political science studies about the Court for mass consumption. Recently, Liptak has written articles about:
* Clerk hiring patterns by the justices, namely how justices perceived to be conservative typically hire former clerks of Republican-appointed Circuit Court judges, and justices perceived to be liberal typically hire former clerks of Democrat-appointed Circuit Court judges.
* The Roberts Court as the most conservative Court in memory.
* The rise of a specialized Supreme Court bar, at the possible expense of both clients and “movement litigants.”
The political science angle, Liptak said, particularly galls the justices.
“The critique they have is that this is not a legitimate way of thinking about their work,” Liptak said. “During the never-ending Justice Breyer book tour, he said, ‘We’re not junior varsity politicians. To write about us through the lens of politics is demeaning.’ They are especially concerned about their legitimacy. They would rather be called inconsistent or bad lawyers or paying not enough attention to a certain doctrine than this sort of idea, that they’re political.
“I view my role as essentially adversarial. I know they don’t like a lot of what I write. I don’t think I’m shy and I don’t think the falling asleep example is the greatest example in the world. If the premise of the criticism is that we’re in bed with the Court, I don’t buy that premise.”
* When Liptak took over the beat at the Times from longtime correspondent Linda Greenhouse, he reached out to all nine sitting justices in an attempt to conduct introductory chats.
* There is no grand conspiracy, Liptak said, liberal or otherwise, about which cases make it onto the hallowed front page of the New York Times. “What gets on the front page of the New York Times is very ad hoc,” Liptak said. “It depends on what else is happening that day.” He said that June decisions, because several decisions may be announced on a single day, are less likely as a matter of percentage to receive front-page treatment, and that the mainstream press is more likely to play up civil liberties cases and surprising outcomes than it is, for example, seismic procedural decisions that play far better in the legal community than with his general audience.
* There was at least some sense in the room that the press corps should be casting a more critical eye on the work habits of the justices themselves. “I’ve talked to Supreme Court clerks and what goes on behind the scenes at the Supreme Court is just terrible,” said Judge Richard Posner. But Liptak said that it would be much more difficult for a reporter on the beat to pen, say, an insider’s account of the Court than someone like Jeffrey Toobin of The New Yorker, author of the best-selling book “The Nine.” “It’s easier to write that when you can grant the kind of anonymity to people that allows you to then write as an omniscient narrator,” Liptak said. “That’s tough to do in a newspaper.”
* For his next major Times piece, Liptak is considering a study of the writing and distinctive nature of the Roberts Court’s opinions versus opinions of past courts.