Journalism and the Constitution outside the Courts

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

By Suevon Lee MSL ‘12

Saturday’s second a.m. session, “Journalism and the Constitution outside the Courts,” presented a unique opportunity for two reporters who have covered the Supreme Court for the New York Times to share the same stage: Linda Greenhouse, the veteran reporter who covered the Court for nearly 30 years, and Adam Liptak, the current reporter on the beat who also writes the biweekly “Sidebar” column on legal affairs.

Joining other panelists such as Emily Bazelon, a senior editor at Slate and Senior Research Scholar at YLS, and Charlie Savage, a Washington correspondent for the Times, the journalists responded to a series of questions and thoughts posed by YLS constitutional law scholars Reva Siegel and Robert Post. As the panel’s moderators, the pair engaged the guests on their views of the “gatekeeping” function of the press, their conception of the Constitution and how it drives their coverage of issues.

“Is it just spectator sport?” Post asked the panelists, alluding to the Supreme Court-reporting-as-sports-coverage analogy introduced a day earlier. As Siegel summarized, the function of the journalist seems to involve a “self-conscious exercise” to convey something “richly complicated that involves a complex set of interactions.”

Liptak responded by defining his role as “descriptive rather than didactic,” to “describe fairly what each side is saying” within the relevant context, and to recognize that delving deeper into the constitutional principles embedded within certain decisions can often be revisited in follow-up coverage.

Greenhouse, however, stated her opinion that “the next day” analysis may lend itself to more opinion-generation and prefers an approach that considers “the full dimension of [a breaking Court development].” For instance, she pointed to the Court’s recent granting of certiorari in Fisher v. University of Texas at Austin: one could state, “ ‘Here’s just another affirmative action case, or you can invest in some time thinking about it,’” she said.

Or to take the Supreme Court’s 2008 ruling over the Bush administration’s policy towards Guantanamo Bay prisoners, Greenhouse observed: “It would be correct to cover the [implication for] rights of the detainees, but it would be a mistake to not cover the angle of this titanic clash of separation of powers.”

As with previous panels at the conference, oral arguments over the Affordable Care Act dominated a healthy portion of the conversation. As focus now turns to the justices’ expected June ruling, panelists were asked to clarify how journalists are to explain the distinction between constitutional interpretation and what may be seen in some corners of the public as, “a naked power grab.”

Bazelon pointed out that when it comes to the ACA ruling, or even in the Court’s polarizing decision in Bush v. Gore, it’s the journalist’s responsibility to recognize the quality of the arguments made by the justices and address weaknesses where identifiable.

On the other hand, “if you don’t actually know that something nefarious was going on, that assumption seems the wrong one to be driving your coverage,” she said.

Saturday’s discussion also touched on the confirmation hearing, widely perceived as a Court-related pageantry in the public eye, with panelists offering their views on whether analysis of the post-nomination process can be divorced from a political lens.

Greenhouse said while the “process has been so degraded it’s easy to slough it off as politics,” there can be other ways of looking at it. Liptak refuted the notion that the confirmation hearing is largely “substance-free,” but an event that journalists must compress, synthesize and unpack: “there would be more to say than you think,” he said, than just, for instance, the oft-repeated umpire analogy sound bite.

Savage, highlighting the strength of archival journalism, pointed out that document dumps that emerge from confirmation hearings can store a wealth of information for public edification, and that more can be wrought from recent hearings than may appear from the mainstream media.

“If we went back and looked through them [these documents], we can learn an enormous amount,” he said.

Certain questions from the audience concentrated on the large amount of power and discretion journalists are perceived to hold among the public and legal scholars. Asked one questioner, what does it take for journalists to help bring a societal or cultural notion that might initially seem “off-the-wall” and make it “on-the-wall," as Jack Balkin uses those phrases?

“You use your judgments,” responded Liptak. Ultimately, he said, you’re “making a judgment about what’s reasonably interesting, reasonably timely, reasonably plausible.”