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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:
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.
frankcross (mail):
I think it is possible to both fairly describe the arguments and express opinion. If you take out opinion, you are functionally eliminating any evaluation of the arguments. I think that makes for a much worse article. I would complain if the other side's argument was not fairly explained, or if the reporter showed an extreme ideological bias in evaluation (as evidenced, for example, by an article supporting the liberal side of a case in which even the liberal justices voted opposite).
4.13.2008 11:57pm
OrinKerr:
Frank,

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.
4.14.2008 12:03am
p.d.:
It took less than half a semester of law school to appreciate how blatantly (gleefully?) some members of the Supreme Court press corps mischaracterize the issues, opinions, philosophies, and arguments of the justices when it suits them. I'm sure they get plenty of back-patting, but this certainly doesn't make me yearn for more.

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.
4.14.2008 12:12am
The Cabbage (mail):
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 dunno. Eugene isn't exactly shy about his opinions.
4.14.2008 12:23am
John (mail):
You mean you don't watch the news on Fox News, or the opinion shows? I'd put Brit Hume up against any network or cable anchor for integrity and fairness.

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.
4.14.2008 12:29am
John (mail):
Georgia? Make that Texas.

Sorry.
4.14.2008 12:30am
Cornellian (mail):
I'd just like to see them do a better job at explaining the issue instead of just saying, basically, "this decision will make it easier / harder for plaintiffs to sue defendants in [insert type of claim here]."
4.14.2008 12:52am
Kevin P. (mail):

Dahlia Lithwick asks whether Supreme Court reporters should inject more opinion into their reporting...

This must be some kind of mistake. Surely Lithwick means that she should inject some reporting into her (fact-free) opinion.
4.14.2008 1:01am
The General:
Lithwick just wants more opinions with which she agrees to be inserted into news articles about the Court's proceedings.

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?
4.14.2008 1:02am
Dave Hardy (mail) (www):
1. I'd probably be happy if AP stopped reporting denials of cert. as if they were dipositions on the merits.

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.
4.14.2008 1:24am
Fearless:

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 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.
4.14.2008 1:41am
Curt Fischer:

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 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?
4.14.2008 1:50am
Visitor Again:
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?

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.
4.14.2008 1:51am
OrinKerr:
Fearless,

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.
4.14.2008 1:52am
OrinKerr:
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.

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.)
4.14.2008 1:55am
kdonovan:
I think it depends where the writing is appearing. If it is the news section of a newspaper I want as neutral and objective an account as possible; although (some) reporting of opinions held by important or knowledgeable people is worthwhile especially in extended 'analysis' pieces when it helps explicate the issues at stake. However the reporter should strive to keep their view out of it. (Reporters shopping for quotes to express their own perspective while pretending to maintain some sort of objectivity is wrong.) If it is in an editorial/op-ed or a opinion blog or political magazine then the writer's opinion should definitely be in there.
Kevin
4.14.2008 2:25am
Fearless:
You can have an opinion about anything. But, people do not know what sorts of opinions are "acceptable" or "reasonable" about law, without seeing examples. The everyday man is not going to see examples of opinion about legal matters much, except from legal reporters that they happen to read when they are browsing the newspaper anyway. The thing is, the lay person can be scared out of thinking that their opinion is valid, based on their apprehensions regarding opining about what seems to be a forbidding and technical subject. To some extent, that apprehension is justified. However, mostly it is not. There is such a thing as intelligent and valid lay opinion about legal decisions.

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.
4.14.2008 2:31am
Wondering Willy:
I, for one, don't take a lot of legal reporting very seriously. If I'm interested in a case, I'll go dig up the pleadings, briefs, etc. and read about it myself.
4.14.2008 2:36am
OrinKerr:
Fearless,

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.
4.14.2008 3:01am
Visitor Again:
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.

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:


Experts. Not so very long ago, if we needed a quote about a Supreme Court case, we could just dial some helpful constitutional law professor in his Ivy League office and weave his legal wisdom into our pieces. Today, huge numbers of our leading legal thinkers are just too busy blogging the cases themselves to return our calls. This goes beyond citizen journalism. This is extreme, hard-core expert journalism. Doug Berman, Rick Hasen, and myriad other subject-matter experts can—transcript in hand—thus "cover" oral argument from Ohio, California, or the space shuttle about as quickly as we can. This is a good thing. But it may leave the traditional beat reporter to wonder how to add value, beyond just transcribing oral argument and interpreting opinions. Between same-day transcripts, Slate's new "Convictions" blog, and the Volokh Conspiracy, I could be looking for work come September.


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.
4.14.2008 3:25am
OrinKerr:
Visitor Again,

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.
4.14.2008 3:32am
Dan Simon (mail) (www):
The problem is that the personal opinions of reporters too often reflect their political views rather than some kind of objective "expertise."

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?
4.14.2008 3:42am
John R. Mayne (mail):
I would prefer for newspapers to have less bias in their reporting; some of the stories printed pretend to be factual but are wildly slanted.

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
4.14.2008 5:54am
tarheel:
On a tangentially related note, I am very interested to see how Adam Liptak covers the Court for the Times. As Lithwick mentions, his Sidebar columns have been consistently the best thing in the Times the past couple years.

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.
4.14.2008 8:27am
Fearless:

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.


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.
4.14.2008 8:43am
djh5:
OK for more opinion, but all Dahlia Lithwick's comments should be appended by the disclaimer that she is Canadian. I think that the fact that she is Canadian iterferes with her commentary. Number one, she's commenting from the left, and usually takes a posture that the Court is running the country into the ground. Now, how sincerely disappointed can one be when one has the escape hatch of Canada. She can get all the handgun prohibitions and gay marriage and whatever else she wants -- she's not stuck with the Court the way an American citizen is. Number two, she doesn't really have a feel for the warp and woof of this country. I think it might be easier if someone is from place more removed from the United States, it might be easier to put one's heritage aside. But Dahlia Lithwick opines strictly from the point of view of your average Liberal Party MP. While life in the United States and Canada might be at times indistinguishable, the political system has faced different problems, and is the product of different fights.
4.14.2008 9:05am
Happyshooter:
Dahlia Lithwick Standard Outline for Case Reporting:

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
4.14.2008 9:44am
tarheel:
Happyshooter:

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?
4.14.2008 9:50am
alias:
I'm not sure what Lithwick's talking about. I was quite surprised recently to learn that Liptak actually went to law school and was a real lawyer once.
4.14.2008 10:06am
Curmudgeonly Ex-Clerk (www):
Lithwick:
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.
It seems to me that you have to define down "expertise" quite a bit in order for the vast majority of the court-related press to possess it. For example, Volokh has genuine expertise on the First Amendment; Kerr has genuine expertise on the Fourth Amendment. What reporter has comparable expertise on any of the myriad subjects that come before the Court or even the Court as an institution? Reporters have their hands full trying to succinctly convey facts and legal issues/arguments that are often complex.
4.14.2008 10:13am
A.W. (mail):
I think you have to distinguish between an analytical opinion of what the court said, and an ideological opinion based on how close their decisions fit with your view of how things should be. Like, for instance, take the internet child porn case a couple years ago. The coverage overwhelmingly said that the SC said that net filters were good enough to make government censorship unneccessary. but if you read the opinion, the Supremes merely said they may be good enough, or they might not be, but the burden was on the government to prove it wasn't good enough and since they hadn't, the law is struck down. so the real story is that the Gov. lawyers failed.

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.
4.14.2008 10:13am
frankcross (mail):
Orin, the answer is (a) on your cramped choices. But I think I have a few more choices, such as a reporter who presents opinions but is not unduly ideological (as I suggested in my post). I'm not defending Lithwick or any particular person here, though I have been relatively impressed with the work of Liptak.
4.14.2008 10:59am
rarango (mail):
My take is this: I assume lawyers will make their own judgments on the case and are in a much better position to do so than are lay people. A recitiation of "the facts of the case" doesnt really help me as a layman. I do appreciate the interjection of the reporter's opinion. I can then go to different websites for discussion of the opinions and make my own judgement. In short: put some opinion and caveat emptor.
4.14.2008 11:04am
Happyshooter:
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?


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.
4.14.2008 11:20am
Joe Bingham (mail):
Dahlia Lithwick asks whether Supreme Court reporters should inject more opinion into their reporting:

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.
4.14.2008 12:19pm
Joe Bingham (mail):
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 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.
4.14.2008 12:21pm
Ralph Foster (mail):
Whenever I see "Commentary" disguised as "Reporting", it invariably causes me to lose respect for the integrity of the reporter. It does not matter what the particular bias of the reporter might be. It displays a lack of respect by said reporter for whomever reads the article. It also tends to diminish their credibility.
4.14.2008 3:12pm
Krahling (mail):
I don't generally read Lithwick, but always listen to NPR. I'm never in doubt as to how Nina Totenberg feels a case should be decided.
4.14.2008 4:10pm
John Burgess (mail) (www):
I hate to be the bearer of bad news, but not everyone has the time or interest to fact-check court reporting by going online. Perhaps it's only the fuddy-duddies, but there are many people who still consider a printed newspaper--particularly a 'newspaper of record'--to hold identifiable truth. If it appears in the NYT, many still take it as gospel.

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.
4.15.2008 1:43pm