Opinion and the Supreme Court Press Corps:
In a Slate column on the future of the Supreme Court press corps, Dahlia Lithwick asks whether Supreme Court reporters should inject more opinion into their reporting:
To be clear, I think that the members of the Supreme Court press corps are an outstanding bunch of reporters. All are smart, dedicated, and work extremely hard to translate the complex and technical work of the Court into language nonlawyer readers can understand. But as Supreme Court geeks know, a lot of Supreme Court cases are awfully dry. This is a particular problem when the Court's docket is unusually low and the Court's cases are mostly interstitial. When the Court's opinions themselves aren't very bold or dramatic, it's hard to write engaging and exciting articles without some added color commentary. In that setting, a little personal opinion adds a lot of pizzazz.
But I think of this as a bug, not a feature. The problem is that the personal opinions of reporters too often reflect their political views rather than some kind of objective "expertise." Reporters are only human — seriously, it's true — and like most of us they sometimes see their own worldviews as The Truth. As a result, sometimes political views can be presented as deep insights gained by expertise; opinion can be represented as fact. None of this is the end of the world, of course. I think regular readers realize the reporters' personal viewpoints and tend to adjust their sense of things accordingly. Still, on the whole, I tend to think the public would be better served by a turn to less personal opinion in Supreme Court reporting rather than more.
While most of the Supreme Court press corps still strives mightily to report both oral argument and the decisions with perfect neutrality, some have increasingly incorporated a little point of view into their diet. Longtime print veteran Lyle Denniston blogs for SCOTUSblog, and fellow print vet Greenburg blogs for ABC. Liptak, whose brilliant Sidebar column is all the better for his opinions and point of view, may, by necessity, light the way toward some new kind of objective-expert-opinion Supreme Court coverage that isn't nearly as horrifying as it may sound. It always struck me as doubly peculiar that the folks with the most expertise about the court were the ones forced to keep their views to themselves.I have a very different perspective. It seems to me a notable feature of Supreme Court reporting that regular readers often tend to know the reporters' personal opinions. Styles vary, of course. Some reports are more "just the facts, ma'am" than others. But it often happens that the reporter's personal opinion is part of the story itself. Lithwick's own Supreme Court reporting provides a good example.
To be clear, I think that the members of the Supreme Court press corps are an outstanding bunch of reporters. All are smart, dedicated, and work extremely hard to translate the complex and technical work of the Court into language nonlawyer readers can understand. But as Supreme Court geeks know, a lot of Supreme Court cases are awfully dry. This is a particular problem when the Court's docket is unusually low and the Court's cases are mostly interstitial. When the Court's opinions themselves aren't very bold or dramatic, it's hard to write engaging and exciting articles without some added color commentary. In that setting, a little personal opinion adds a lot of pizzazz.
But I think of this as a bug, not a feature. The problem is that the personal opinions of reporters too often reflect their political views rather than some kind of objective "expertise." Reporters are only human — seriously, it's true — and like most of us they sometimes see their own worldviews as The Truth. As a result, sometimes political views can be presented as deep insights gained by expertise; opinion can be represented as fact. None of this is the end of the world, of course. I think regular readers realize the reporters' personal viewpoints and tend to adjust their sense of things accordingly. Still, on the whole, I tend to think the public would be better served by a turn to less personal opinion in Supreme Court reporting rather than more.
I'm curious, would you rather read the work of a reporter who (a) doesn't take sides, or (b) always takes sides and always finds that Justice Thomas is correct? I would pick (a) easily, for the same reason I don't watch Fox News.
Oh, and for readers generally, I restructured the post for clarity, although the content is the same.
Lithwick pining for more cutesy commentary is particularly rich, given her often juvenile style of lionizing one wing of the Supreme Court while striving to find conservative hypocrisy even when it doesn't exist.
I dunno. Eugene isn't exactly shy about his opinions.
Back on topic, the most irritating thing about a lot of S.Ct. reporting is the mischaracterization of what the court is doing. For example, after Lawrence, you could hardly read an article that didn't say, in effect, that the majority ruled sodomy was OK and the minority thought it should be banned. The notion that the constitution placed restrictions on Georgia, and that the justices' opinions of sodomy didn't figure in the rationale, was lost in most reporting.
Sorry.
This must be some kind of mistake. Surely Lithwick means that she should inject some reporting into her (fact-free) opinion.
In any event, can't the reporter just get quotes from various other legal experts that can explain the cases, rather than asserting what the cases mean? How hard would that be?
2. While I'd find a fair discussion of the legal issues interesting, I suspect the average media observer, for whom they write, views it purely as a matter of policy, i.e., do they like or dislike the result.
I disagree. The last thing we need is a public that thinks the law is a special area of expertise upon which the average citizen is unable to opine. That would be the sort of sense that would be advanced by your proposal... We can report, but we can't judge.
I hold the reporters responsible for the false, overreaching interpretations of the "average media observer". Supreme Court articles that I read rarely even suggest that judges sometimes strive to avoid results-oriented reasonings and rulings.
My sense is that most articles about the Supreme and other courts tend to impute to judges only their political motives and leanings, and explain their legal reasoning as an extension of their ideology.
When I first started reading the VC, it was quite a revelation that many judges, sometimes, at least in theory, don't reason from their ideology to a result, but rather from the law to a result.
Is it too much to ask of reporters to convey that in their articles?
If you read Lithwick's article--and you obviously didn't--one of the things she writes about is the increased difficulty media reporters have in getting expert comments for stories on Supreme Court cases as they come down. She says many of the experts are too busy blogging themselves.
What Lithwick did in her article was raise, as a new reporter takes charge of the New York Times Supreme Court coverage for the first time in some 30 years, questions as to whether a new style of coverage should be tried. She didn't pretend to have all the answers. She was, as the first sentence of Orin's blog indicates, asking questions.
I don't understand your position. It goes without saying that anyone can have an opinion about anything. You don't need the media to tell you their opinion to know that you can have an opinion of your own.
I took that as a joke, though: I don't think Supreme Court reporters actually have a problem getting legal experts to return their phone calls because they are too busy blogging themselves. (I confess that I once asked a reporter if i could call them back because i was in the middle of a quick-response post, But that's really pretty rare, and very few people write quick-response blog posts the morning opinions are handed down.)
Kevin
I think you are taking the perspective of the lay person for granted. Which is totally natural, since you are a law professor and thus are quite familiar with the range of opinions that exist within the legal profession.
I agree with you to this extent. It would be nice if there was a legal report for lawyers. Someone who was objective, but somehow still an engaging writer.
But, I do not think that is really the model we want for the lay public, who should come to realize that they can have valid and respectable opinions too.
Before I enrolled in law school, I tended to think that the opinion that appeared in media coverage of the Supreme Court wasn't just opinion: I assumed it was actual fact, as it was appearing as part of a news story. All the news that's fit to print, etc.
Given that, i never took what the press said about the Court as some sort of indication that it was okay to express an opinion. Of course, I was an engineering student, so maybe I was much less sophisticated than the typical person. That is entirely possible.
I took that as a joke, though: I don't think Supreme Court reporters actually have a problem getting legal experts to return their phone calls because they are too busy blogging themselves.
I didn't take it as a joke since she made it the second point in her list of things that have changed in Supreme Court coverage. She wrote:
While her last sentence is no doubt a joke, I think her point was intended as a serious one. At the very least Supreme Court reporters are increasingly left with the option of recycling expert comments that already appear on the web; they no longer have an exclusive on timely expert comment when the decisions are breaking news.
Whether it is hard to get experts to call back reporters because they are blogging is quite different from whether reporters have an exclusive on expert opinion. I was only referring to the former.
My impression of Supreme Court reporting is that it's little different from reporting on the other branches of government. It tends to elide much of the technical detail that's terribly important to wonks, and focus instead on the broad impact of decisions on the nation's social, political and economic life. That impact assessment will inevitably be colored by the reporter's opinions, although a good reporter will try to make his or her assessment useful to a broad audience, and not just one that shares his or her own narrow point of view. And of course it will grossly oversimplify the issues of concern to experts in the field, for whom fine distinctions that matter little to the average news consumer loom much larger.
Now, there are also "insider" publications where the gory technical details of government processes are dissected in an appropriately clinical manner, or at least with more "expertise" (if not more objectivity) than the typical news reporter can muster. That's perfectly understandable, given that the average news consumer is neither interested in, nor knowledgeable enough to appreciate, the minutiae of bill-writing, regulation-drafting or constitutional interpretation.
Is it your view, Orin, that newspapers and TV network news should be more like Roll Call or Utility Regulatory News than they are currently? If so, can you explain why?
I think Lithwick gets a pass on this issue, though: She's not really pretending to be an unbiased observer; she's clearly weaving opinion and fact. While I often disagree with her, she does accessible and interesting Supreme Court reporting.
--JRM
On the issue at hand, Lithwick is right that in the long run newspapers will have to come up with a new approach to Court reporting. People that want cold, hard facts (briefs, transcripts, stats) will increasingly be going to SCOTUSblog (nobody does it better) and people that want echo-chamber opinion will be going to the partisan blog of their choice. I don't know that injecting reporters' opinion is the answer, though, since there is already plenty of opinion out there on the Court.
I would argue that newspaper Court reporters should be more focused on longer-form, in-depth takes on cases and controversies. The centerpiece newspaper story on an issue should come out the day before oral arguments, not the day after. It is just impossible in 800 words to get across the depth and complexity of many Supreme Court issues, and reporters should largely stop trying.
First, I will say it is not great writing if it is not clear when opinion is opinion. It certainly does not serve the function I suggested of giving the lay public a sense of what sorts of opinions people who actually know about all the technical law stuff have -- so that lay public can confidently start to form opinions of their own -- if it does not make it clear what is fact and what is opinion.
Second, I do think there is something to your point about sophistication regarding the media. Not so much going to you personally as much as society generally. I think we have become a more sophisticated society regarding the media. I don't think the bar is as high now -- a writer need not be as clear about when what they are saying is opinion, rather than fact -- because people nowadays (not just engineering majors, but everyone) are much more skeptical of the news media, and are thus much more skilled at distinguishing fact from opinion. I don't know if overall we as a society have benefited from the constant conservative (and increasingly liberal) verbal attacks on the media. Especially when such attacks come from those in positions of power. But, one benefit is that people have learned to become better (that is, more skeptical) consumers of media. I think the risk of misinformation (such as you describe back in the days when you were an engineering major) is lower now than it ever has been. That is, the misinformation risks of opinion in reporting is now lower than it has ever been. Someone who takes more than a casual interest is now nearly always able to fairly easily access alternative points of view. If a reporter says something that is debatable, often it is the subject of other news reports and constant attention in the blogs.
Don't get me wrong. I think there is room for those who attempt to be a little more objective voices too. (Not that I think that totally objective reporting exist.) But, I think there is a vital role to be played by law reporters with an opinion. They help the lay public understand that they are often qualified to have an opinion on the legal issues of the day. The also help make lay opinion about law more sophisticated, as law reporter opinions are likely to be "in bounds" -- that is, not totally disregard legal issues of a technical nature.
I. Present the case
A. Spin the left side to sound like common sense
B. Briefly present and spin the right side to sound crazy
II. Present the lawyers
A. Left side lawyer does masterful job
B. Right side lawyer is crazy or evil
III. Present Oral Argument
A. Pick any left side judge-- s/he is golden
B. Scalia or Thomas are evil (bonus-- Thomas is stupid)
IV. Pick a right lawyer, side, or judge--very snarky comment
(Bonus--make up the thing the snark is based on)
V. Conclusion
A. Vote left wing
Did you actually read OK's post or Lithwick's article or did you just want to take this opportunity (again) to state how you feel about Lithwick's work?
In any case, if you know the outline already, why do you read her articles? And if you don't read her articles then you don't really know what you are talking about, do you?
Now that little bit of analysis is obviously an opinion, but its not ideological. i just read the case and applied my expertise. i said nothing about how i felt about the law in question.
Now if Dahlia is talking about that sort of thing, then good. But she has so far descended into worthless ideology in her columns, i am not terribly confident in her as a messenger. The most heinous example by far was the column on the D.C. gun case where in a hysterical screed she claimeed that the conservatives were about to abandon the principle of Federalism. I think it would be news to most of us that Federalism applied to D.C. because last time i checked, it was not a state.
In any case, if you know the outline already, why do you read her articles? And if you don't read her articles then you don't really know what you are talking about, do you?
You are a funny guy. "If you call her out for crappy writing then either: you don't read it and should shut up; or you should stop reading her and shut up." I feel like you want me to shut up and stop dissing your girl.
I did read her piece, and her points do not apply to her because she writes the same pap to the same outline every case. Her style does not require facts or elements of law, just a good guy, bad guy, good judge, and bad (or dumb) judge. Put in one snark and call it a day.
Oh, and I read her for the same reason I watch the train wreck that is katie couric on CBS News, because watching lefties fail at pimping their values as 'news' is fun.
I hate to beat a dead horse, but could Lithwick conceivably insert more personal opinion into her SCOTUS reporting? (I guess that's an unfair standard; she's more of a humorist than reporter... which may be a compliment, I dunno.)
Happyshooter's outline of the standard Lithwick column is actually pretty accurate. And funny.
I agree with your summation of her columns except for this: she actually is funny. As long as everyone recognizes that it's snarky humor rather than reporting that actually conveys anything that went on, I have no problem with her columns.
Yes, times are changing and print media is losing readership. But they still represent a major source of news for millions. I'd rather have those millions be informed by fact rather than opinion mingled with fact. Those who read newspaper know they can turn to the op-ed pages for opinion. They shouldn't have to decipher news stories to separate the facts from opinions.
So, no. I don't want more of the writers' opinions in their reporting on court decisions. I particularly don't want reporters' telling me what motivated a judge's opinion unless that reporter has cold facts in a corruption case.