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Vol. LXIII, No. 46
Wednesday, November 18, 2009
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Several Members of the Media Discuss Difficulties in Covering the Supreme Court

Ellen Gilbert

“It is at once very well known, and virtually unknown in terms of what it does and who does it.” What is it?

It” is the Supreme Court, as described by CNN senior legal analyst Jeffrey Toobin at a panel discussion titled “Full Court Press: The Supreme Court, the Media and Public Understanding” held last week at the Woodrow Wilson School. Joining Mr. Toobin for the discussion were Yale Law School senior research scholar and senior writer and editor Emily Bazelon, New York Times Supreme Court correspondent Adam Liptak, and senior editor and legal correspondent Dahlia Lithwick.

Paul Starr, Princeton’s Stuart Professor of Communications and Public Affairs, introduced and moderated the discussion, noting that the 10 to 15 minutes speaking time allocated for each panelist was “short by university standards,” but “an ungodly amount of time from the perspective of TV.”

Mr. Toobin, author of The Nine: Inside the Secret World of the Supreme Court, was the first to speak, noting that the three panelists “do different things even as we do the same things.” He expressed admiration for his co-panelists’ work, observing that Ms. Bazelon and Ms. Lithwick have “redefined coverage of the Supreme Court with irreverence and rigor.” He also offered an amusing anecdote about former justice David Souter.

Driving home from Washington, D.C. to his native New Hampshire, Mr. Souter stopped for a bite to eat in a Massachusetts restaurant, Mr. Toobin recounted. As had happened in the past, another diner “recognized” Mr. Souter — as Justice Stephen Breyer. Asked to say the best thing about serving on the Supreme Court, “Justice Breyer” responded, “Serving with David Souter.”

On a less amusing note, Mr. Toobin cast a harsh eye on some of newly-appointed Justice Sonia Sotomayer’s responses during her confirmation hearings. “Saying ‘I follow the law’ was an insult to our intelligence,” he observed. “Antonin Scalia follows the law and Ruth Bader Ginsburg follows the law, but their judicial philosophies aren’t the same.”

Mr. Toobin suggested that he and his colleagues should do their best “to uncover the political decisions of the Supreme Court,” saying that it was a mistake to camouflage cases relating to issues like abortion and university admission “in a gauze of law.”

Ms. Lithwick responded by noting that there are actually “two stories that we in the media tell about the Supreme Court.” The first relates to it as “a political institution,” and whether or not a justice was appointed by a Democratic or Republican president. She defined the second story as “not story one,” and “all the different stories we tell.” Since the court “is designed to be both politically and ideologically-driven, both stories are true.”

“We spend too much time thinking about the Supreme Court,” said Mr. Liptak half-seriously. “The problem is that it’s always the same five to four decision,” with the justices “in ideological lockstep almost every time.”

Mr. Liptak noted that while the Supreme Court hears about 80 cases a year, only about “four or five are really important.” He suggested that the lower courts may be making more far-reaching decisions, and that the New York Times should focus on those.

Joking that he might be talking himself “out of a job,” Mr. Liptak described those who cover the Supreme Court as “low rent legal scholars,” who don’t have access to “the usual tools of journalism,” like “the inside dope.” He suggested that while the Court has so much invested in its prestige,” a “little mischief” might be a good thing.

Ms. Bazelon described herself as “a big fan” of justices’ efforts to “become more accessible,” although she noted the irony of confirmation hearings, when the smallest revelation can endanger a candidacy. Echoing some of Mr. Toobin’s thoughts on Ms. Sotomayer, Ms. Bazelon described her testimony as a “wooden, depressing rendition.”

Ultimately, however, it appeared that the Supreme Court has the respect of the four panelists — and of the nation. Mr. Litwak noted the “transformative” nature of their “best decisions,” and, Mr. Toobin added, “however upset people are at its decisions, there is no thought of disobeying. Somebody has to have the last word.”

“Full Court Press” was sponsored by the University’s Program in Law and Public Affairs, which explores the role of law in constituting politics, society, the economy and culture.

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