What is the trouble with SCOTUS reporting (and with SCOTUS)?

Slate's Amicus Podcast hosted a live conversation with Dahlia Lithwick, Mark Joseph Stern, Jay Willis, and Elie Mystal. The conversation centered on the failures of the SCOTUS press corps. Press failures include: too much focus on the law of the opinions (they liken it to how science reporters cover NASA); failing to identify the "reality" beneath those opinions, whether by exposing the Court's misleading presentation of facts (Kennedy) or by positioning one case within a larger political, ideological, and jurisprudential trend; failing to write about the real-world consequences of the decisions; failing to report on and follow individual justices (compared with the extensive coverage of members of Congress and even small legislative actions); and failing to write about the behind-the-scenes influences on the Justices (Harlan Crow, Leonard Leo, ADF, et al.).

I enjoyed the program, although I did not agree with a lot of it. Some reactions after the jump.

• There is an electoral/public accountability component to how the press covers Congress (and members of Congress) absent in covering the Court. The press provides information to the public which, we hope, the public uses in deciding whether to keep that person in office. By contrast, there is (I think) continued acceptance that no one (not Congress, not the public) should remove or sanction judges for their decisions. Those (including me) who would like some form of term limits do not want those limits to turn on agreement or disagreement with substance of decisions. Broader (i.e., beyond the opinion) coverage of the Court allows for public awareness and criticism of the Court, with whatever effects public opinion might have on the Court. It perhaps pressures Congress to do something about an out-of-control Court. But that something is not removal of individual members, unless progressives have abandoned the conclusion that the Senate properly acquitted Samuel Chase and that "Impeach Earl Warren" campaigns wrong.

• One SCOTUS decision resolves one case involving one dispute between discrete parties (e.g., whether Mississippi's law can be constitutionally enforced against Jackson Women's Health patients or whether this school could sanction this football coach for these activities). The decision includes an opinion that affects other real-world actors. But the opinion's effects on other actors and its consequences as to them are diffuse, prospective, unknown, and contingent at the time. It thus is impossible for reporters to write about them in covering argument or decisions. At best, reporters in the moment can speculate (and report speculative cases) about what could/might happen (subject to accusations of engaging in unreasonable parades of horribles). Reporting on consequences beyond the parties before the Court requires subsequent follow-up reporting. That reporting should happen, although we might question whether Totenberg, Liptak, Biskupic, et al., should do it and when. In other words, no one knows the specific effects of a SCOTUS case in the moment--it depends on what governments and lower courts do in response. Of course, we could raise the same argument as to congressional reporting--no one knows the specific consequences of a piece of legislation and someone should report on the on-the-ground effects of the enacted law, although the question is who and how and when.

Take Dobbs. States' race to impose the strictest laws was predictable and that prediction should have been part of the coverage (and might have been--I avoid most popular coverage of the Court). But the press could not have written specific stories about specific instances by specific states affecting specific people, as the panelists seem to demand. No one knew which states would enact or enforce which laws as to which people and in which circumstances. When Dobbs leaked in May or issued in June, no one could have written about Mifepristone or about Indiana sanctioning a doctor for performing an abortion on a 10-year-old rape victim from Ohio or about Idaho outlawing travel to other states.

Relatedly, lower courts--thousands of judges on hundreds of courts spread across the U.S.--determine the broad on-the-ground effects. By focusing on how media coverage of SCOTUS fails as opposed to how media coverage of of the judiciary fails, they perhaps commit the error people accuse legal educators of committing. In any event, the handful of SCOTUS reporters cannot cover the entire judicial system, although that is the locus of the large practical effects the panelists want covered.

• They spend a lot of time on the media's failure to report on the supposed outside influences on the Court and the Justices. Put Crow to one side--if that reporting bears out, it may reflect the sort of not-good behaviour warranting impeachment or resignation. The speakers criticize failure to report on the ADF and other conservative advocacy groups spending money (from specific wealthy people with an ideological goal) and operating campaigns to find plaintiffs and bring cases with the goal of overruling affirmative action, creating religious exceptions to LGBTQ+ protections, weaken environmental protections, etc. Criticizing that failure to report implicitly criticizes these groups' litigation efforts--they engage in nefarious conduct and the press commits journalistic malpractice by not writing about and exposing them and their nefarious conduct.

But much of the constitutional law that progressives cheered was created through similar litigation campaigns--advocacy organizations sought out plaintiffs to bring lawsuits challenging various laws with the goal of obtaining SCOTUS review and decisions establishing their favored constitutional provision. And the right resisted those efforts by attacking the groups bringing the cases and trying to bring them to heel. Virginia applied its laws against soliciting legal business to the NAACP's efforts to recruit parents to bring anti-discrimination suits. States investigated and prosecuted advocacy groups under anti-Communist laws, amid questions about who funded these organizations and their advocacy efforts. Lithwick and company would not argue (I presume) that the press failed 60 years ago in not exposing whether "communists" funded the NAACP and its efforts to overrule Plessy and invalidate Jim Crow.

Once again, progressives criticizing conservative impact litigation must distinguish these efforts from prior movements. "I disagree with current efforts but like past efforts" is not a principled distinction.

• Stern offers an interesting take on press coverage of 303 Creative as the latest step in an advocacy organization's campaign to carve religious exceptions into public-accommodations laws. Past cases pitted competing "rights-holders" receiving media coverage--e.g., Jack Phillips on one side and the same-sex couple who ordered the wedding cake on the other. But the posture of 303--Lorie Smith has never created a wedding web site and never been asked by a same-sex couple to create a wedding web site (Stern said it's because she sucks as a web designer). So the designer is the only person the media can cover and they have done so, in the usual soft-focus way; no specific person sits on the other side. I doubt that affects the Justices or the outcome; it affects how the public perceives the case and its consequences.

Stern suggests the one-sidedness shifting media coverage in Smith's favor illustrates why the case is bullshit. Smith lacks standing* because she faces no meaningful, imminent, or non-speculative threat of having state law enforced against her. No one--least of all two gay men, according to Stern--has or is likely to ask her to design their wedding web site or to complain to the state civil rights commission about her failure to do so, both of which are necessary to trigger any enforcement of the law against her. This is a good line, although LGBTQ+ people keep ordering from Jack Phillips.

[*] Or suffers no constitutional violation, in my preferred framing.