Kevin Frazier will join the Crump College of Law at St. Thomas University as an Assistant Professor starting this Fall. He currently is a clerk on the Montana Supreme Court.
“Congress fails to protect waterlands.”
“Senate continues to gridlock on women’s rights.”
“House punts on campaign finance…again”
There are alternative headlines that could have been written before or soon after recent Supreme Court decisions. The media has instead reacted to cases like Sackett (narrowing the reach of the Waters of the United States) and Dobbs (overturning Roe v. Wade) by emphasizing the policy outcomes of the Court’s decision rather than analyzing the Court’s legal analysis and, perhaps more importantly, the absence of congressional action.
In fact, headlines have often framed the Court as a policy making body as if it has powers equal to or greater than Congress in that respect. For instance, AP's headline following the Sackett decision read "Supreme Court sharply limits federal government's ability to police pollution into certain wetlands." A more accurate and, admittedly, boring headline would have read “Supreme Court concludes that Clean Water Act does not protect wetlands unless they have a ‘continuous surface connection’ to regulated bodies of water.” Punchy? No. Accurate? Yes. Though media outlets may lament such a wordy and bland headline, they have a duty to inform citizens--not to enrage them. Headlines akin to the one used by AP ascribe more power to the Court than it actually wields. In doing so, these publications nudge the public to wrongly direct their political ire and energy.
In an age of increasing competition among publishers, journalists have an understandable urge to write headlines and articles that tap into the public’s increasing frustration with the Supreme Court. By acting on that urge, the press has provided necessary and important coverage on things like questionable (likely unethical) judicial behavior. However, that urge has also prompted coverage of the Court and its members that distracts the public from failures of the other branches of government to fulfill their governing responsibilities.
For sake of fairness, let’s assume this distraction is unintentional and that a lack of legal knowledge rather than a desire for more clicks and eyeballs is causing this sort of reporting. Under that assumption, there’s an easy remedy: the employment of more lawyer-journalists. These lawyer-journalists could serve two functions: first, reorienting how the press covers the Supreme Court; and, second, educating the public on the law and, more broadly, our government.
Imagine if coverage of each and every Supreme Court opinion walked readers through the following aspects of the decision: the procedural history (how lower courts dealt with the case); the standard of review (how much deference the Supreme Court had to afford to the lower court’s decision); the relevant precedential cases (prior Supreme Court decisions that addressed the same or similar issues); and, the narrowness or breadth of the Supreme Court’s decision (whether the decision is confined to the facts before the court or will have ramifications in more contexts). This sort of information may not lend itself to a tweet but it will reduce the odds of the public perceiving the Court rather than Congress as the body responsible for drafting policy solutions to modern problems.
Full disclosure, I’m a lawyer, so I surely have a heightened appreciation for the nitty-gritty details of judicial opinions. But why should the public not be given the opportunity to learn about and grapple with those same details? Can’t journalism at once serve an informational and educational purpose?
Lawyers may prefer that you believe that they alone can understand the ins-and-outs of the law but that’s surely not the case--or, at least, it does not have to be. If more press outlets exercised editorial restraint and discipline by reporting on the Court in a structured and formulaic way, then the public could slowly but surely develop a deeper understanding of the role of the Court and the law, generally.
In short, current press coverage of the Court contributes to a misallocation of popular attention. Consider that in the wake of outrage of Court opinions, the Biden Administration launched a Presidential Commission on the Supreme Court that brought together scholars to review potential judicial reforms. Where’s the corresponding investigation into Congress? And, while we’re at it, the Executive Branch?
The press has an obligation to inform, not enrage; and to summarize, but not sensationalize. Recent Court coverage suggests the press has been learning toward the latter functions--this approach must come to an end for the good of our democracy. One small step in that direction would come from the inclusion of more lawyers in the newsroom and the adoption of a nuanced and detailed analysis of judicial opinions. The public deserves full and accurate information, the media can and should provide it.
In terms of money flowing through the campaign-finance system, political action committees (PACs) are three times more active than candidates running for reelection or office. That is concentrated political power that leaves many congressional candidates running for reelection or office dependent on PAC support.
