Nieman Foundation at Harvard
It’s tempting to look at the Supreme Court of the United States as frozen in time.
Cameras are still banned from recording proceedings, audio can’t be live streamed, and don’t even think about live tweeting from inside the courtroom (or across the hall). No question: The court is overdue to enable public access through the tools that have long since become standard in reporting the business of the government to the people. (C-SPAN founder Brian Lamb recently told me that he sees the Supreme Court as the “best example” of an area where improved public access is lagging and sorely needed.)
So in some ways, covering the Supreme Court today is not much different than it has ever been — even though justices did approve same-day publishing of audio from last week’s healthcare arguments due to “extraordinary public interest.”
New Yorker writer and CNN legal correspondent Jeffrey Toobin has covered SCOTUS for decades, and calls the court “unique among American institutions” for how little, from a technological standpoint, it has changed.
“I’m not going to shy away from reporting what I’m seeing, and what I’m seeing is a train wreck.”
“I don’t think it’s changed very much, I really don’t,” Toobin told me. “Because the language is so peculiar and because it’s not live, the audio doesn’t get a lot of play in the mainstream media, but the audio is the only technological change that I can recall other than the fact that people report things faster because you can just put stuff out on the web — but that’s not the court changing, that’s everything else changing.”
Those who cover the court have found plenty of ways to use “everything else” in innovative ways. In addition to a Supreme Court public affairs website that does “an excellent job within the limitations imposed on it,” Toobin points to SCOTUS Blog as a leader.
The site launched 10 years ago, and has covered the healthcare challenge since it was at the appellate level. It got nearly 1 million hits during last week’s oral arguments, according to site manager Kali Borkoski, but SCOTUS Blog started its comprehensive coverage of the challenge long before oral arguments began.
Following a potential case from the moment a petition is filed is part of SCOTUS Blog’s editorial strategy. Publisher Tom Goldstein selects petitions that he thinks have a good chance of being granted, and from there starts publishing stories and key documents — amicus briefs, analyses, transcripts from oral arguments, and so on. (Goldstein personally financed SCOTUS Blog until it scored sponsorship from Bloomberg Law last year, Borkoski says.)
“We try to have a complete database [for the cases and petitions that SCOTUS Blog tracks], which the court doesn’t have,” Borkoski said. “We follow [cases] basically from cradle to grave. Somebody files a petition and we start watching it. It gets granted, we follow it through to when it’s decided.”
Last summer, SCOTUS Blog hosted a symposium to discuss constitutionality questions that the healthcare challenge raised. The blog provides in-depth coverage for readers in the legal community, as well as explainer pieces — under the subhead “Plain English” — for general readers. Data geeks will delight in the blog’s statistics section.
In November, SCOTUS Blog ran its first story in a 10-part series analyzing the key issues in the case. The author, Lyle Denniston, produced SCOTUS Blog’s most heavily trafficked articles during last week’s oral arguments. He has been covering the Supreme Court for a staggering 54 years and has watched a lot change in all those years.
“Probably the most important — vitally important — change to legal journalism is that we are providing the original documents,” Denniston said. “The law can be really very complicated, and yet we do not assume that our readers are incapable of processing mentally the contents of hard, substantive documents. We don’t write about anything unless we give you the original materials.”
Denniston also argues that SCOTUS Blog’s “really expansive coverage and niche journalism” sets it apart in a media landscape that has become increasingly political and “lighthearted.” Here’s how he puts it: “We just don’t pay attention to the theater. We’re not exactly a lonely voice, but we’re a lot lonelier than we used to be.”
The only way allowing cameras in the court would trump the significance of being able to post primary documents online, Denniston says, would be if the audio were live streamed in its entirety or otherwise recorded so that members of the public could watch it in full. Reducing a Supreme Court argument to soundbites, he says, would amount to obfuscation.
But all the primary documents in the world don’t eliminate the need for experts like Denniston and Toobin to distill what’s happening for the general public. Not everyone has the time — let alone the autodidactic impulse — to dive into source documents and attempt to make sense of them. (A spokeswoman in the Supreme Court’s press office said information detailing how many people downloaded or streamed the audio it posted is “not available at this time.”)
If there’s any beat that naturally resists the increasing urgency for immediacy and brevity in contemporary journalism, it’s arguably the Supreme Court beat. It’s a complicated and jargon-rich environment; the court works at its own, measured pace; and making the nuances of a Supreme Court case accessible to a general audience is a challenge even for seasoned reporters.
“It’s very hard to cut the tape,” NPR legal affairs correspondent Nina Totenberg told me. “Most people, they really don’t understand the role that justices are playing. You would have to listen to a lot of arguments to understand that it’s not often the case, but it’s frequently the case that justices ask very hard quesitons that don’t represent their own point of view. They’re testing their point of view. The argument is not a political debate.”
Of course, that doesn’t mean that Supreme Court coverage operates in a political vacuum, especially given the enormous election-year implications of the pending decision on Florida v. United States Department of Health and Human Services (can you believe we have to wait until June?).
Where there is a huge, politically messy case to be covered, reporters who don’t normally cover the court come with it.
“Even the trade press comes in,” Totenberg says. “Okay, so they don’t do a great job. They do an okay job. That’s sort of the nature of the beast. I did eight minutes each night, and eight minutes in the morning. We had an hour-long special on it [for each day of oral arguments]. Anyone who really wanted to hear more extended cuts…we would play a lot of tape. I think you would get a really complete idea as to what happened, but it takes time and devotion to do that. The networks? I think they gave it two minutes.”
The coverage that reverberated most last week can be summed up in just two words: Train wreck.
Just after noon on the second day of oral arguments, Toobin offered this analysis for CNN: “This was a train wreck for the Obama administration. This law looks like it’s going to be struck down. I’m telling you, all of the predictions — including mine — that the justices would not have a problem with this law were wrong.”
“It’s the instantaneous spread of conventional wisdom as it develops about anything.”
The comments caused a predictable firestorm in Washington, but what do they tell us about how Supreme Court coverage has changed over the years? A lot, Denniston says.
“It’s the instantaneous spread of conventional wisdom as it develops about anything,” Denniston said. “Look, for example, at the propagation of the idea that Solicitor General Donald Verrilli did a really bad job of arguing for the government. That went viral instantly, and is now accepted wisdom across the country that Verrilli really blew it. On closer examination, that’s not true. Some parts of the argument substantively could have been sharper, some parts of his argument tended not to be responsive to the court, but he had a really challenging task of doing this over three days of time. A serious observer of the requirements of oral advocacy would say that the easy judgments — the easy conclusions — are not really supportable.”
Others have argued similarly, including Totenberg, who says the “tea leaves are a little ominous” for the Obama administration but that the train wreck comment was too much.
“It was a way overstatement to say it was a train wreck,” she said. “As a reporter, there’s always this line between being cautious and being electric. And I said to somebody, ‘Every scoop I’ve lost in my life, it’s because I was too cautious.’ But that’s balanced by the fact that there are an equal number of times when people went on a limb, and I was right, and I was saved — saved from looking like a complete fool.”
Toobin acknowledges that he “could be wrong,” but says he went on his instincts and that he stands by the Tuesday analysis.
“If it looks like five justices are ready to throw out the central accomplishment of the incumbent president, as it did to me, I think it’s my job as a journalist to tell people that — with the caveat that it’s a prediction and I could be wrong,” Toobin said. “And I’m not going to kid you: Predictive journalism is not my favorite form of journalism, and I try to do it with strained and informed eye, but I’m not going to shy away from reporting what I’m seeing, and what I’m seeing is a train wreck.”
One thing the three can agree on: television is not the ideal medium for Supreme Court coverage, which does its business with spoken and written words. (It should be noted that if cameras were allowed, they might capture gestures or facial expressions that can’t be fully articulated by even the most astute observer.)
“There is nothing inherently pictorial about the Supreme Court, and I suspect there never will be,” Toobin said. “What ultimately matters about the Supreme Court are its decisions, and the decisions are words, and words can be distributed and analyzed.”
The ability to distribute coverage globally would have been unthinkable when Denniston got his start. He remembers the days when proceedings were covered mostly “by congressional reporters who came across the street on decision days and caught up with it as well as they could.”
“Now I can post any time of the day or night,” Denniston said. “I can assure you, when I do, I still hear from people. I guess they’re all insomniacs. I hear from people literally from around the globe. In my newspaper business, in all of those years, I never heard from anybody in Indonesia. It’s a process of ongoing and immediate interaction with your readers. It’s a really, really, very strange phenomenon. I’m having the time of my life.”
Photo of the Supreme Court by Kjetil Ree used under a Creative Commons license.
