BROOKE: So having established the unique nature of the Court and its coverage, we offer you our latest Breaking News Consumers’ Handbook: SCOTUS Edition.
The pitfalls, though few, are deep and hazardous. Because the Court basically does one of two things: it either decides to hear a case and issue a big decision - that happens about 70 times a year. Or it decides not to hear a case. That happens upwards of seven thousand times a year. And simple as that may seem, news organizations often confuse the two.
HOWE: Frequently you’ll hear something along the lines of “The Supreme Court affirmed or the Supreme Court upheld” when in fact it did nothing of the sort.
BROOKE: That’s Amy Howe of SCOTUSBLOG, the gold standard source for breaking court news.
HOWE: It just left the lower court decision in place and it doesn’t have effect nationwide.
BROOKE: Other appeals courts can take it up.
HOWE: Exactly, the decision usually comes from a federal appeals court and so it will be good law in that region of the country, but it doesn’t have any effect in any other part of the country unless and until those courts weigh in.
BROOKE: New York Times court reporter Adam Liptak says in some cases letting a decision stand can be very meaningful...
LIPTAK: as in October a year ago when the court let stand a bunch of rulings allowing same sex marriage to expand across the country. But there are many routine cases where it's not clear to me that you need to send out a news alert.
BROOKE: Often a headline will suggest the court decided on the constitutionality of an issue, when in fact, it didn’t. Usually the court weighs in when lower courts disagreements over the interpretation of a federal law, not its constitutionality.
LIPTAK: And the difference is important. When the court decides on a constitutional case, it’s game over, the court has the last word on the meaning of the Constitution. When the court decides a statutory case, saying this is what we think Congress meant, Congress is free to come back and say no, that’s wrong, what we actually meant was something else. So the two kinds of cases are very different, and the distinction matters.
BROOKE: So consider skipping newspaper headlines, or on TV or radio - intros. They’re often written, or changed by people who don’t quite get it. NPR’s legal affairs correspondent, Nina Totenberg.
TOTENBERG: It may be something fairly subtle, that you’ve struggled with and struggled with to try to get it right but at the same time understandable and you may have fallen 10% short and the anchor or the editor or the headline writer decides, “Oh I can fix that.” Uh-huh.
LIPTAK: We're mostly talking about shall we say editors who are not at the court and do not follow its daily diet, but see something cross the wires and overemphasize its importance.
BROOKE: Far from offering a shortcut, headlines may in fact send you in the wrong direction. And they’re just the first distraction. Facts, are another. Yup, facts, characters, the whole narrative behind the lawsuit. Fun facts are to court reporters what squirrels are to dogs.
LITHWICK: Because so many cases are really boring.
BROOKE: Slate’s Dahlia Lithwick.
LITHWICK: We’ll get very very excited if we have a factual scenario that looks really weird or interesting. “The school was looking for a drug ring that was full of ibuprofen?” instead of “There’s this incredibly important search question under the Constitution”. And so I think one thing we do really sometimes get a little hyper about is funny facts that really have no bearing on the big constitutional issues.
BROOKE: Both Lithwick and Liptak cite one particular case decided in 2009, Ashcroft v. Iqbal...
LIPTAK: About whether attorney ashcroft could be sued by people who had been rounded up after 9/11 and held in harsh conditions in immigration detention facilities. And the facts of that case are very compelling. I basically wrote a story about how the detainees lost…
BROOKE: But beware stories that focus mainly on winners or losers, because High Court rulings mean so much more. In this case, it ruled that top government officials could not be sued for the unlawful discriminatory actions of underlings, unless the presiding judge believed the plaintiff could prove the boss was behind it. Cited in over 85,000 lower court decisions since the ruling, dismissals have soared.
LITHWICK: Really it was a year out before we read the opinion and said, “Holy cow! This was a seachange!” We were just so interested in Mr Iqbal’s life.
BROOKE: But to be fair, often the impact of decision is not really known for years, until it has time to play out in countless courts across the country. That’s why the Supreme Court will sometimes revisit its own decisions. Even the Justices may be unaware of the full implications of what they’ve done.
The next big danger zone in High Court coverage involves oral arguments at the High Court. Namely, giving them too much significance…
NEWSCASTER: Reading Justice Roberts’ line of questioning yesterday, I don’t think so, I think they’re going to lose, that the government will lose
BROOKE: Or too little significance.
SCARBOROUGH: and you just can’t read how the justices are going to vote based on oral arguments, cause a lot of times they’ll ask their own side the toughest questions
BROOKE: Oral arguments are essentially theater but they’re also crucial, though not for the reason you may think. Occasionally an attorney can lose a case by botching an oral arguments, but mostly the justices already have made up their minds based on the briefs. What they don’t know is where their fellow justices stand. Oral arguments are their chance...to probe. Dahlia Lithwick.
LITHWICK: This is their first chance to suss out, huh, do I have five votes? Do I have four? Do I have four and a third?And then trying to figure out - huh, Kennedy’s in play. What could I do to make him more in play?Sometimes the advocates are in a very strange situation where they can tell that they’re just a potted plant and that the Justices are in fact talking over their heads. But I also think when you have a court that is as polarized as this court is it’s very very interesting to see someone like Justice Kennedy, who always tries to come in looking as though, “Ahh, I’m struggling with something, help me out here.” It gives the other Justices a chance to say, “Here, let me, let me frame it this way for you and try to bring you along.”
HOWE: Particularly Justice Elena Kagan is one that’s interesting one to watch.
BROOKE: Here is where things get fascinatingly arcane. SCOTUSBLOG’s Amy Howe explains that after the oral arguments…
HOWE: when the Justices actually meet to vote on a case.They go around the room in order of seniority. They start with the Chief Justice, then they move onto Justice Scalia, Justice Kennedy, Justice Thomas and so on. Justice Kagan is the last one who gets to vote. Frequently by the time it gets to her, the case has already been decided, so she will often be using the oral argument to figure out what the other Justices’ concerns are and try to get the lawyers to address those, because she knows that she may not have a chance to make those arguments in the Justices’ private conference until it’s too late.
BROOKE: One more thing to consider, how much consideration to give to the President who appointed a particular Justice.
FOX: Justice Scalia who was appointed by president Reagan
ALJAZ: Justice Ginsburg who was appointed by president Clinton in 1993…
NBC: Justice Stephen Breyer, appointed by president Clinton
MSNBC: The justice appointed by president George W. Bush, Chief Justice John Roberts,
LITHWICK: I think the Justices would be the first to say that they absolutely hate the reporter’s shorthand of saying “Appointed by George W. Bush”, “Appointed by Clinton”, because it says too much, and the Justices say you know when we put on our robes we stop being our ideology. Of course we know that’s not entirely true
BROOKE: But do you think there are more litmus tests now for Supreme Courts judges than there used to be?
LITHWICK: Oh absolutely..., the confirmation process is vastly more politicized, right? These confirmations used to happen in a couple of hours on paper. It wasn’t until really the last century that the nominee even bothered showing up for their own confirmation. But I think that it’s also important to point out that the court has become unbelievably politicized, and that we have a right wing of the court that is quite a bit farther to the right than any court we’ve seen since the FDR court. The Justices hire very polarized clerks. The whole system I think has done what the rest of the country has done which is absolutely ideologically run to the two poles with very very little in that center. And so when a term ends the way it did last year, with the death penalty, and gay marriage, and Obama care, and they’re all fractious and shouting at each other and very very polarized and also close votes, that’s what the American public sees..
BROOKE: And yet they care enormously that their prestige and their probity be maintained, and they fear losing the public trust..
LITHWICK: Well, that’s why we have the black robes, that’s why we have a court that’s built to look like a Greek Temple. I mean, the whole sort of theater of what they’re doing is to say, as John Roberts so famously said, “We’re just umpires, this is just balls and strikes, this is not politics, this is something transcendent and almost oracular.” And that’s the message they have to give out, and it’s important I think to understand that some of the time, that’s true - but a lot of the time it’s not true, and one of the things that’s really difficult - both for reporters covering the court, and for the public that’s trying to consume news of the court, is holding these two ideas in your head at the same time; that this is an incredibly political institution that’s doing something - sometimes effectively and sometimes not - that tries to transcend politics.
BROOKE: The final point, in this SCOTUS edition of our breaking news consumer handbook, should actually be the parting shot in all our handbooks.
TOTENBERG: The main thing is really to rely on certain news sources that you have found to be reliable. Writers who you find readable and reliable.
BROOKE: Nina Totenberg.
TOTENBERG: You can look at Adam Liptak at the New York Times, and Dahlia - Dahlia doesn’t pretend to be unbiased. She writes a column. It is the most entertaining writing under the sun, and I have never seen a mistake of law, a mistake of fact.. Or ScotusBlog, which has developed a system that is so reliable right on deadline, that we use it. There’s Bob Barnes at the Washington Post, David Savage at the LA Times ...you just have to develop people who have not let you down.
BROOKE: The fact is, like business reporting, or science and health reporting, Court reporting is complex and sometimes esoteric, requiring high degrees of expertise. Of course, some famous bloopers occur because reporters in a hurry didn’t read enough into the decision….
BAIER: Breaking news here on the Fox News Channel.
SHANNON: Good morning, we have just gotten the opinion, I’m just getting a first look at it… It is authored by the Chief Justice John Roberts, he says the individual mandate cannot be sustained under Congress’s power to regulate commerce. That means the mandate is gone.
BAIER: Megyn, you’re seeing something now…
KELLY: Wait, we’re getting conflicting information. If you follow SCOTUS blog dot com, they say that despite what Shannon just read, the individual mandate is surviving as a tax, this is according to SCOTUSblog which also has the opinion…
BROOKE: That’s memorably embarrassing (CNN by the way, was worse) but rare. Mostly reporters make mistakes because they think they understand what’s going on, when they don’t. So when seeking Supreme Court news, choose a wonk. Wonks rule.