Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2020 Supreme Court Journalism: From Law to Spectacle? Barry Sullivan Loyola University Chicago, School of Law, [email protected] Cristina Tilley University of Iowa College of Law Follow this and additional works at: https://lawecommons.luc.edu/facpubs Part of the Supreme Court of the United States Commons Recommended Citation Barry Sullivan & Cristina Carmody Tilley, Supreme Court Journalism: From Law to Spectacle?, 77 Wash. & Lee L. Rev. 343 (2020). This Article is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Faculty Publications & Other Works by an authorized administrator of LAW eCommons. For more information, please contact [email protected]. Supreme Court Journalism: From Law to Spectacle? Barry Sullivan* and Cristina Carmody Tilley** Abstract Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretationsof the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades? This Article seeks to address those questions by comparing the print media coverage of two highly salient cases involving similar legal issues decided fifty years apart. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court's decisions largely in terms of the legal questionspresented, the contemporarypress seems more likely to describe the Court's decisions in non-legal terms-as something resembling a spectacle, in which unelected judges are presumed to * Cooney & Conway Chair in Advocacy and George Anastaplo Professor of Constitutional Law and History, Loyola University Chicago School of Law. ** Associate Professor, University of Iowa College of Law. The authors wish to thank John Dehn, James Gathii, and Michael Kaufman for helpful comments on earlier drafts of this article. We are also indebted to our research assistants, including Emily Ancona, Emily Eggmann, Rachel Groves, Stephen Hilfer, Pilar Mendez, and especially Helaina Metcalf, whose enthusiasm for the project matched her expertise and attention to detail. We are also grateful for financial support from the Cooney & Conway Chair Fund, the Loyola University Chicago Law Faculty Research Fund, and the University of Iowa College of Law Empirical Research Fund. The usual stipulation applies. 343 344 77 WASH. & LEE L. REV. 343 (2020) decide cases, not on properly contested legal grounds, but based on their respective political commitments. That conclusion is striking. First, it suggests that in the ongoing scholarly debate over the nature of the Justices' approach to their work, the press has chosen sides. Rather than closely interrogating the Court's work to determine whether particular analyses and results can be defended on legal grounds, contemporary reporting seems to proceed on the assumption that that question lacks salience-because we already know that the Justices' political views and allegiances are the true drivers of Supreme Court decisions. Thus, contemporarypress coverage tends to emphasize such factors as the politicalaffiliation of the president who appointed a particular Justice. Second, it raises questions about the way in which the contemporarypress is dischargingits responsibility to educate the public about the Court and its work. It also raises the possibility that the public will become predisposed to doubt the Court's legitimacy, and, indeed, the very legitimacy of the American system of judicial review. If the Court's decisions really reflect nothing more than the Justices' politicalpredilections and commitments, or those of the elites to which they belong, it is important for the public to know that. Nothing could be more important than discovering and documenting the fact that the Justices wear no clothes. On the other hand, whether Supreme Court decisions deserve to be viewed in that way is a question that needs to be tested through a careful examination of the Court's work product. It is something to be proved rather than presumed. The contemporary print media's seemingly casual assumption that the main point about reporting on the Supreme Court is not to test the validity of the Court's reasoning, and explore its flaws, but to try to trace connections between the Justices' voting behavior and their political or other commitments, may well corrode public confidence in the Court. If that occurs unnecessarily, and without adequate justification, the consequences for the institution of judicial review may well be dire. Moreover, if the public's expectations are lowered, so too may be the standards the Justices set for themselves and each other. In other words, if the press leads us to believe that the Court's work product is nothing more than politics, that may well become a self-fulfilling prophesy-if it has not already happened. SUPREME COURT JOURNALISM 345 Not surprisingly, social science research indicates that the public prefers a Supreme Court that operates within the constraints of legal doctrine to one that simply incarnates the Justices'political or other commitments. In fact, public willingness to accept the Court's decisions, and to protect its independence against incursions by the political branches, has been linked to the public's recognition that the Court has a unique institutionalrole to play in interpreting the Constitution and laws. When the public is conditioned to believe that the proper way to think about the Court is to assume that the Justices do politics first and law second, however, the public will necessarily view the Court as redundant and illegitimate, having usurped the legitimate authority of the elected branches. Consequently, we conclude that the contemporary press's depictions of the Court as an institution unduly influenced by politics may well underminepublic confidence in the institution, and also, perhaps, diminish the public's faith in the Constitution itself as a legitimate and effective basis for democraticgovernment. As other scholars have pointed out, extreme party polarization has characterizedthe conduct of American politics in recent years. While that fact initially had the greatest impact on the House of Representatives, it has also increasingly affected both the workings of the Senate and the relations among the political branches. In recent years, the judicial confirmation process has become more overtly and consistently partisan, with presidents and senators consciously seeking to nominate and confirm (or defeat) candidates who are thought to be most likely to affect the perceived political balance of the federal courts, including the Supreme Court. The dynamics of the selection process play out differently, of course, depending on a particular president's attitude towards the judiciary and on whether the presidency and the Senate are firmly in the hands of the same or different politicalparties. The Senate has effectively altered the number of votes necessary to confirm all judicial nominees, including those nominated for positions on the Supreme Court, so that nominees may now be confirmed with the barest of Senate majorities. In addition, senators of both parties (to say nothing of various highly partisan and well-financed special interest groups) have routinely engaged in something like trench warfare to promote or defeat judicial nominees; and some nominees have willingly undertaken the role of partisan warrior in their confirmation hearings, knowing that their confirmations do not 346 77 WASH. & LEE L. REV. 343 (2020) depend on bipartisansupport. One recent presidential candidate not only put the Supreme Court at the center of his election campaign, he went so far as to publish a list of jurists from which he pledged to fill a vacancy that his allies in the Senate had kept open for him. In these circumstances, there is much reason to question whether the courts can and will apply the law in an even-handed way. If politicians, the public, and the judges become conditioned to think that there is no distinction worth making between law and politics, this will undoubtedly become the case. It seems all the more important, therefore, that the press should hold the courts accountable, not giving in to the easy assumption that judges necessarily base their decisions on their own extra-legal commitments, but constantly testing the work of the courts to determine whether their analyses and results are grounded in law. Table of Contents I. Introduction .................................... 347 II. The Public and the Court ............................. 353 A. The Constitution, the Court, and the Process of Interpretation ........................ 353 1. The "Pure Legal" Model .................... 356 2. The "Pure Political" Model ............ ...... 359 3. The "Principled Discretion" Model ...... ...... 365 B. The Process of Interpretation: Public Understanding and Public Support ....