The Supreme Court and the Press—When the Justices Strike Back

Justice Samuel Alito recently aired his frustrations with press coverage of the Supreme Court. Speaking at the New York Historical Society this past weekend, he conceded that the reporters that “cover us full time … are very knowledgeable,” and that “their news stories about oral arguments and decisions … are pretty good.” But he complained about “people who are not very knowledgeable” trying to write about the Court. He seemed particularly annoyed by Dahlia Lithwick’s recent story in the New Republic, which portrayed the Court as impressively credentialed but “worryingly cloistered.” In Alito’s characterization, the article “complain[ed] about the current membership of the Court, because unlike in past days, according to this columnist, we don’t have a representation of drunks, philanderers, and a few, you know, a few other n’er do wells.”

In lashing out at the press, Justice Alito joins a venerable Supreme Court tradition (which I have described in more detail here). Justices have a long history of complaining about the way the press covers the Court.

For example, in 1979, Justice Lewis Powell became so exercised about what he called a “sophomoric” Newsweek article (it was titled “A Rudderless Court”) that not only did he publicly dismiss the article as “nonsense,” but, along with Justices Rehnquist and White, he conspired to leak information to reporters at Time on the condition that they portray the Justices as supportive of Chief Justice Burger.

Justice Scalia has been notoriously scathing in his criticism of press coverage of the Court. According to the Justice, the liberal bias of the mainstream press means that “much of the press is hostile to my message.” Law, he declared in a 1990 speech, “is a specialized field, fully comprehensible only to the expert,” and hence the general news media can never adequately capture the work of the Court. Scalia never gave this speech again because of the sharply negative media reaction it received. “The press is very thin-skinned,” he explained to Joan Biskupic in a 2007 interview that went into her biography of Scalia. “They can dish it out but they can’t take it.”

“Look it, do not believe anything you read about the internal workings of the Supreme Court,” Scalia explained in a more recent interview. “It is either a lie because the press knows we won’t respond—they can say whatever they like and we won’t respond—or else it’s based on information from someone who has violated his oath of confidentiality, that is to say, a non-reliable source. So one way or another it is not worthy of belief.”

Justice William Brennan gave an unusually blunt defense of the Court in a 1979 address in which he responded to a flood of press criticism of a recent Court ruling allowing judges to order certain pre-trial proceedings closed to press and public. He accused the press of “misapprehending the fundamental issues at stake” in these cases, and therefore of “fail[ing] in its important task of illuminating these issues for the Court and the public.” He went on to list specific newspapers, even particular journalists. The press, he concluded, “can be of assistance only if bitterness does not cloud its vision, nor self-righteousness its judgment.” The Washington Post ran an editorial titled, “Justice Brennan Tells Off the Press.”

So, in short, as entertaining as this new spat between Justice Alito and the press may be, it is just the latest installment in a long-running dramedy.

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  1. Pingback: How Scalia's Absence Will Affect Pending Supreme Court Cases | Radio Free

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