Journalism and Constitutional Interpretation

A commentary on Panel two from our conference on Constitutional Interpretation and Change, April 27- 28, 2012.

by Suevon Lee, MSL ‘12

If the media serves as the gateway to the public’s understanding of constitutional interpretation, how journalists frame, explain and synthesize legal theories and decisions plays a major role in shaping the public outlook. Often, this task must be balanced against certain journalistic conventions, such as evenly presenting both sides of a debate, translating the arguments in an accessible way and resisting the instinct to add a political overlay to stories of legal import.

These topics were the focus of Friday’s second morning panel, “Journalism and Constitutional Interpretation,” part of the two-day Constitutional Interpretation and Change: a Conference on Jack Balkin’s Living Originalism at Yale Law School, which invited an all-star line-up of legal journalists to share their insights.

Joan Biskupic, Legal Affairs editor-in-charge at Reuters, kicked off a lively hour-and-a-half long discussion by describing her approach to writing stories as the former Supreme Court reporter for USA Today. She would constantly ask herself, “What does the audience want to know and need to know?” she said, to help distill weighty topics for the paper’s broad readership and “to make sense of how these issues play out and how meaningful they are to peoples’ lives.”

Linda Greenhouse, Knight Distinguished Scholar in Residence at YLS who covered the Supreme Court for nearly 30 years for The New York Times, expressed her concern with a “journalistic imperative” to always present two sides of a story, particularly in the arena of legal reporting such as recent coverage of the Affordable Care Act leading up to last month’s oral arguments before the Supreme Court.

“Not every story has two sides of equal weight,” said Greenhouse, re-echoing the belief she expressed in an earlier recent NYT column that rebutted challengers’ claims of the unconstitutionality of the individual mandate: “there is no there there on the other side.”

“The more refined and tricky these arguments, the more a challenge they present” to the journalist seeking to provide an objective and balanced account, she observed.

When it comes to the issue of constitutional interpretation, the role of the legal journalist will not be the same as a law professor, noted Dahlia Lithwick, senior editor and legal correspondent for Slate. There is no such thing as a “constitutional [reporter’s] beat,” she pointed out, in that the journalist’s role is one that involves much less theorizing and more play-by-play delivery.

Lithwick said she sees her role as “covering cases,” including the stories that are nestled within, much as “covering a hockey game” is par for the course for the sports reporter.

“We’re not quite doing what we’re pretending we do, which is monitor the rise and fall of constitutional theory,” she argued. “We’re monitoring the rise and fall of a case.”

Lithwick also expressed wonderment at the immense change in the media landscape, so that social media has come to play a dominant role in the dissemination of information – for instance, the use of Twitter during the health care arguments. Print media, television and even blogs are no longer the primary sources of constitutional ideas for a large segment of the public, she said: “A constitutional arc that is decades long and the media arc are changing by the moment.”

Charlie Savage, a Washington correspondent for The New York Times who covers executive power and national security, addressed the inherent tension between writing a legal narrative versus a political one when it comes to subjects with clear political consequence – such as the Justice Department’s legal strategy attacking the constitutionality of the Defense of Marriage Act.

This reflex to attach more weight to the political, rather than legal, significance of an event can often manifest within the press institution itself, Savage added, noting that his DOMA story, had it placed greater emphasis on the political context, likely would have landed on the front-page, as opposed to being buried inside.

“No matter how hard you try, it’s going to be easier for people to understand the political narrative rather than the legal one,” he said. “It sort of underscores to me that as much as journalists want to translate the legal theory of constitutional actors and why they’re behaving and why, it will always be easier to write about it in a political context.”

His thought was echoed by Lithwick, who said legal journalists often wrestle with writing about a legal development independent of its political back story. Reporters are “constantly torn” over determining the appropriate overlap between these two things, she said, citing her instinct to attach an “R” or “D” before a judge’s name in her stories as a reminder of the political appointment.

The pressure of continually attaching meaning to the Court’s decisions – driven not only by the public but the larger media culture itself – can prompt conflicting interpretations, as occurred once when Greenhouse and Biskupic covered the same case, the panelists shared.

Greenhouse told the audience that she later encountered Justice Souter and asked what he thought the decision meant. His response? “What it means is what the lower courts make of it,” he replied. That statement, Greenhouse said, was “very clarifying.”