BOOKS AND ARTS MAY 5, 2011
Justices and Journalists: The U.S. Supreme Court and the Media
By Richard Davis
(Cambridge University Press, 241 pp., $28.99)
The way in which every person, every institution, relates to people is essentially, though often unconsciously, theatrical. We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy. This is true of the Supreme Court, too, and of the individual Supreme Court justices. Unlike obscure persons, the justices have a media presence: the press and the other media are interested in covering them, and the justices themselves can increase coverage by granting requests for interviews or by reaching out to journalists without being solicited. But the access that the justices have to the media should not be confused with how accessible to the media the justices are. That depends largely on whether they want to be accessible, because public curiosity about them is actually quite limited. They can be private if they choose to be.
There are several complications in the design of a public relations strategy for the Supreme Court or its members. The first is a lack of hierarchy. The associate justices do not “work” for the chief justice. He cannot fire them, or tell them what to say or not to say publicly. This makes it difficult to devise and execute a media strategy for the institution. Take a look at the Supreme Court’s website: www. supremecourt.gov. It’s boring! If you look hard enough, you will find a paragraph implying misleadingly that the Court has a very heavy workload; in fact, in the last half-century its output has fallen, while its staff (consisting mainly of law clerks) has increased substantially, both in quantity and—because, since the late 1960s, a prior clerkship has become de rigueur for Supreme Court law clerks—in experience.
Individual justices have an interest in the public image of their institution, of course, but it often conflicts with their individual interests. This is true for the chief justice as well as for the other justices, which further diminishes the possibility of effective institutional public relations. Individual justices, for example, may want to alter the institution: Richard Davis’s new book reports that Bob Woodward thought that Justice Potter Stewart (a major source for Woodward’s book The Brethren) “almost hoped that he could bring Warren Burger down by launching this inquiry into how he ran the Court.” Justices have sometimes used the media to distance themselves from unpopular decisions, as Justice Powell did by publicly regretting, after his retirement, having voted as a justice against gay rights and in favor of the constitutionality of capital punishment. His retraction undermined the legitimacy of those decisions, thus fouling his (former) nest—a risk when a justice tries to use the media to polish his image.
Justices may also use their access to the media to try to enhance their reputation by criticizing other justices, as Justice Blackmun did with unprecedented candor, accusing conservative justices of having a political agenda. (The pot calling the kettle black.) And the justices must know that they will receive more publicity by striking an individual pose rather than sounding like the Supreme Court’s press officer. They may stain the institution in the pursuit of their personal publicity-hugging ends, but there is nothing that the Court as an institution can do about it. The chief justice could try to use his assigning authority (he assigns the authorship of the majority opinion in all cases in which he is in the majority) to discipline errant justices, but the strategy could easily backfire by embittering those justices and making them behave even less responsibly—and making them also reluctant to join the chief justice’s opinions.
Some persons and institutions promote their interests less effectively by publicity than by mystique, which is nicely defined by the Merriam-Webster dictionary as “an air or attitude of mystery and reverence developing around something or someone.” Kings and dictators, religious leaders, and judges are typical examples of public figures who do this, but such persons are found in all walks of life (Greta Garbo, Bobby Fischer, J.D. Salinger). All of them are, of course, just people, with the normal quota of human imperfections-often with more than the normal quota, as abnormalities may assist certain careers. (Paranoia, for example, is a qualification for a long-serving dictator.)
The Supreme Court exercises substantial power, legislative in nature though not in name; but at bottom it is just a committee of life-tenured, mostly elderly, lawyers appointed by politicians. The justices are competent and experienced lawyers, but nowadays are apt to lack the worldly experience that might help them in deciding the most important and controversial cases—the ones with large political or social resonance—wisely. From the Court’s earliest days until the 1970s, a great many of the justices came to the Court from high political office, or were (like Brandeis, Frankfurter, and Fortas) behind-the-scenes presidential advisers. All of Truman’s Supreme Court appointees, for example, served either in Congress or in the Cabinet. Yet apart from Sandra Day O’Connor, the last elected official to serve on the Court was Earl Warren, appointed in 1953, who had been governor of California as well as a vice-presidential nominee; and O’Connor was only an Arizona state senator. In addition, the current justices have—though this is not new-a low comfort level with science and technology, and with complex commercial transactions, at a time when technology (including “financial engineering”) is playing an increasingly large role in culture and society.
Transparency would not be an effective public-relations strategy for an institution so staffed. Suppose that the oral arguments of cases before the Court, and the conferences at which the justices discuss and vote on the cases they have heard, along with the discussions they have with their law clerks about the cases, were broadcast on C-Span, maybe on a special channel devoted to real-time coverage of the Court. Suppose also that the rough drafts of the justices’ opinions, and the written comments exchanged among them on the opinion drafts circulated to them by other justices, were promptly published online. And suppose that at the end of each week a panel of journalists and law professors and practicing lawyers was convened, pawing over all this material, to discuss the week’s work of the Court. Would such media coverage—which, except with a lag, is almost the coverage that the media give the other branches of government—give the public a favorable impression of the Court? Probably not.
The Court receives higher confidence ratings in public opinion polls than the president or Congress, and it faces no challenges to its independence. A public that knew more than it does about the Supreme Court might wonder why this group of people is empowered to make decisions that (when they are based, however tenuously, on the Constitution) other branches of government cannot veto. That was the constitutional plan, but it was controversial from the first—and not surprisingly: Congress and the president can plausibly pretend that their actions are in the interest of the nation as a whole, but a judicial decision always has a loser. For this reason, the Supreme Court decisions in cases that engage the public’s attention will often stir a polemical response.
The best public relations strategy in such a situation might be for the justices to distance themselves from the public—to pose as masters of an esoteric art, like mathematicians, or to imitate the Wizard of Oz before he was outed. In this model of judicial p.r.—call it “dignified silence”—the justice is appointed, and then disappears into the Court’s marble palace; he or she is subsequently seen, by the few people in the audience section of the courtroom (critically including a few members of the press), maintaining a Solomonic demeanor, speaking little and gravely—and as Justice Brennan used to say before he changed his mind—refusing to speak to journalists at any time, in any place, on any subject. Remote, wrapped in mystery, the justice committed to the pose of dignified silence issues opinions that present the Court’s decisions as impersonal products compelled by “law” regarded as external to the justices, as the Ten Commandments were external to Moses—handed to him, not written by him. If on occasion the mystique-enveloped justice issues a dissenting opinion—and this will be rare, as he will be reluctant to publicize disagreement, which is anathema to mystique—it will be to express dispassionate disagreement on a point that he will labor to characterize as narrowly technical. He will not question the majority’s good-faith commitment to intellectual rigor and judicial restraint.
But most justices have not embraced such a strategy—and yet the Court has retained and indeed augmented its power even at times when its exercise was strongly challenged by other branches of government. So there must be an even better strategy. Not necessarily better for the Court as an institution, but good enough for the Court and—critically—better for the individual justices as they balance their individual interests against their institutional interests: their prestige and power derive from the Court’s prestige and power.
It is here that we might have expected to learn from Richard Davis’s book, as it is one of a tiny handful of books exclusively concerned with the relation between the Supreme Court and the media. This is certainly a timely subject, but the book does not do it justice. Although not very long, it is very repetitious; and although Davis is a political scientist rather than a journalist, it is not analytical. And he does not stick closely to his subject. He is fascinated by oddities (as they seem to us) in the behavior of Supreme Court justices, especially in the nineteenth century, when several of them harbored presidential ambitions and campaigned vigorously, though covertly and unsuccessfully, to be nominated. (The only justice ever to be nominated for the presidency was Charles Evans Hughes, who narrowly lost to Woodrow Wilson in 1916. Chief Justice Taft was an ex-president.) But their efforts had only a little to do with the relation between the media and the justices qua justices, the “little” being that the presidential aspirants were quite willing to sound off to reporters on purely political issues, as other justices would not do.
The book is poorly written, with passages that make the reader scratch his head in puzzlement: “Will the attention to the individual justices undermine the institution’s product orientation?” “As most biographies do, these books [recent biographies of Supreme Court justices] show the justices as individuals much like others not in high public office, particularly the Supreme Court.” “Broadcast media, particularly, were not venues justices used throughout most of the twentieth century.” “Justices almost never used the vehicle of a press conference for interacting with the press in the twentieth century. They typically occurred when a Justice came to the Court or left it, although not all of the Justices even did that.” “The last member of Congress to come directly from elective office was Harold Burton.” (Davis means the Court, not Congress.) There are puzzling references to “grand jury trials” and to the judicial “collar.”
Davis is a slave to periodization. He believes that history is shaped by the calendar, and so the twenty-first century must have ushered in a new era in the justices’ relations with the media. But at least his book is a detailed narrative of those relations, and therein lies its principal value. We learn that the justices’ favorite strategy, from the Court’s earliest days to the present, has been not to ignore the media but to use them covertly, leaving no footprints. Other officials try to do this, but with less success. Elected officials are so dependent on the media that they cannot easily discipline, by means of ostracism, a reporter (or the newspaper that employs him) who reveals what an official thought he had told the reporter in confidence. Justices pay only a small penalty for cutting off a reporter who betrays a confidence.
One expects the Court and the justices to embrace the most aggressive public relations strategies during times in which the Court is embattled—as it was in its earliest days, especially during the Jefferson administration, Jefferson being fiercely hostile to Chief Justice John Marshall’s Federalist-dominated Court. The justices took to writing pseudonymous essays and letters in defense of the Court’s decisions, which they tried (sometimes unsuccessfully) to place in newspapers. Decades later the Dred Scott decision triggered ferocious criticism of the Court; and although we think of media decorum as a thing of the past, the nineteenth-century press was even more vituperative than the modern press. During the Civil War, in a case in which Chief Justice Taney ruled (correctly) that the president could not suspend habeas corpus (Lincoln, sensibly from a pragmatic standpoint, disregarded the ruling), The New York Times accused Taney of “us[ing] the powers of his office to serve the cause of traitors.” Another justice was accused by a newspaper of having “passed beyond the age allotted to man, and with his tottering and shattered frame his intellect is crumbling too,” and another justice was called a “fossil,” and another “a slave-catching Judge.” As in the Marshall era, the justices fought back: they wrote essays and letters (sometimes under pseudonyms), sat for interviews with reporters, and even befriended them.
In only two periods since the Civil War era has the Supreme Court been embattled, and only in the first was it in danger of losing the battle. That was in 1937, the year of Roosevelt’s court-packing plan—which was defeated with the help of a letter to Congress from Chief Justice Hughes and Justice Brandeis, which, by assuring Congress that the justices were current with their work, pulled the rug out from under the administration’s contention that the Court needed additional justices because the nine old men could not cope with the workload. The letter was a clever ploy that did no damage to the Court’s mystique because it did not lift the veil that concealed the Court’s internal operations. The letter was not the only media response of the justices; Brandeis gave an interview to two journalists explaining off the record his votes in cases invalidating New Deal legislation.
The second period of embattlement began with the challenge by the Nixon administration to the Warren Court’s liberal decisions, a challenge fueled by scandals involving two of the justices, Douglas and Fortas. The challenge simmered throughout the 1970s and heated up at the beginning of the Reagan Administration. This brought Brennan out of his media closet; but the storm quickly blew over. Liberal dissatisfaction with Bush v. Gore, and more broadly with a Court that was growing increasingly conservative during the 1980s, was also evanescent, despite the unusually sharp tone of the dissents in that case, which predicted incorrectly that the decision would impair the Court’s standing with the public.
The Court has proved remarkably impervious to criticisms, even from within. It receives plenty of academic criticism, but such criticism has no political significance whatsoever. Without really trying, the Court has managed, unlike the other branches of government, to maintain—in an era of unprecedentedly voracious media, intense political partisanship, and growing governmental dysfunction—a considerable measure of immunity from public scrutiny of any kind. The only justices who have received significant media publicity in recent times are O’Connor, as the first woman justice; Thomas, because of the high drama of his confirmation hearing and certain peculiarities in his behavior, such as not asking questions at oral argument; and Scalia, because he is a “character.” He is also the most influential justice of the last quarter-century, his influence ramifying far outside the Court; but that is not the basis of his media celebrity.
Back in the1970s and 1980s, Blackmun was the justice most often mentioned by the media (or at least by The New York Times—Davis’s canvass of media coverage of the justices is very limited), doubtless because of Roe v. Wade as well as because of Blackmun’s eccentricity and outspokenness. But public attention to the justices is fleeting. Most members of the public cannot name any Supreme Court justice. In 2009, only 1 percent could identify John Paul Stevens as a justice, though he had been one for more than 30 years. In 1970, 22 percent of the public knew that Warren Burger was chief justice, even though he had served for only one year, while the corresponding figure for John Roberts in 2005, his first year, was 16 percent—and four years later that figure had dropped to 11 percent. These data suggest that the justices’ increased media visibility has not increased public interest in, or knowledge about, the Supreme Court.
One might expect the justices to bask in their anonymity, as it secures their power. Yet since the 1980s they have increasingly courted publicity. The last holdout was Souter, and he has been replaced by the less bashful Sotomayor; and as a result there are no more wallflowers on the Supreme Court. The Associated Press reported in December 2009, shortly after Sotomayor was appointed, that “since becoming the first Hispanic Justice, [she] has mamboed with movie stars, exchanged smooches with musicians at the White House and thrown out the first pitch for her beloved New York Yankees,” while, according to the same AP story, Ginsburg and Scalia “recently had roles in the opening performance of ‘Ariadne auf Naxos’ for the Washington National Opera.”
The justices’ volubility at oral argument has become remarkable: the lawyers have trouble getting a word in edgewise. The justices joke and clown at oral argument; they give the impression, whether or not accurate or intended, that they are playing to the crowd, and they certainly seem to be having a ball. (Thomas does not ask questions, but he chats and chuckles with Breyer, who sits beside him on the bench.) The justices write books (including autobiographies), authorize biographies of themselves, go on book tours, give talks to high school students, debate with each other on television, give speeches all over the world. All this makes their continued refusal to permit the televising of the oral arguments before the Supreme Court puzzling, though the explanation may simply be that they want, in part for reasons of security, not to be recognized by members of the public other than in venues of their choice.
Recently in one of those venues—a packed California auditorium seating 1,200—Justice Kennedy presided over a mock trial of Hamlet for murder, while in another mock trial Justice Ginsburg, dressed in a Civil War uniform, presided over a court martial of General Custer. (Their star turns received front-page coverage in The Wall Street Journal.) Chief Justice Rehnquist had his judicial robe altered to that of the Lord Chancellor in Iolanthe (“The constitutional guardian I/ Of pretty young Wards in Chancery,/All very agreeable girls—and none/Are over the age of twenty-one./A pleasant occupation for/A rather susceptible Chancellor!”). Justice Stevens, in retirement, gives interviews and writes articles settling scores with his conservative former colleagues. Justice Blackmun, brimming over with resentment of his colleagues, settled a number of scores in interviews—in one of which he called the other justices prima donnas—and by ordering his Court files, which contained a surprising amount of vitriol, to be released to the public five years after his death. Even the reticent Souter, in a Harvard commencement address delivered shortly after his retirement, took a shot at his conservative colleagues.
Still, the justices’ antics do little harm—or good. They neither help nor hurt the Court’s public image. True, by traditional standards of judicial behavior, which are intended to project mystique, the justices (not all of them) lack the necessary gravitas. But in this respect they faithfully mirror the larger American culture of today, so that only old fogies are troubled. The very inconsequence of the change in the justices’ demeanor makes one wonder whether Davis really has a subject—whether the media relations of the justices have any contemporary significance at all. When the Court is embattled, the justices have a serious interest in getting the media on their side, and they try to accomplish that by the methods that Davis recounts. At other times, which include the present, the degree to which they expose themselves to the media by engaging in activities that draw media interest has no consequences.
In a celebrity culture there is a demand for celebrities, as well as a willing supply. That is one reason why the justices have become more public, though oddly without being much noticed by the public, judging by the name-recognition statistics. Another reason why justices court publicity nowadays is that, unlike most celebrities (including political ones), they are treated very respectfully by the media. And they have the time to do the celebrity circuit. They hear cases only part of the year, and they have staffs of eager and brilliant law clerks prepared to work very long hours to help them. (The clerks would be quite happy to do all the Supreme Court’s work.)
Davis recounts the history of justices’ efforts to enlist the media in image-making. Justice Frankfurter lobbied The Washington Post to remove from the Supreme Court beat a reporter who “wrote stories suggesting that ... Frankfurter’s work volume was lower than that of other justices.” Flattery is an instrument, too. Chief Justice Warren told a reporter that he was “pleased beyond words” with the reporter’s coverage of the controversial Miranda decision. And like other officials, justices have been known to try to barter access for favorable coverage. But this tactic fails when the reporter is writing about the institution rather than about an individual justice. For if some justices agree to be interviewed, any justice who refuses is apt to be depicted in a poor light. The justices who agree to be interviewed will have an opportunity to promote themselves at the expense of the no-shows, and the reporter naturally will write more favorably about those who cooperate with him than about those who do not—which is just to say that like other conspiracies, a conspiracy of silence among Supreme Court justices is not an equilibrium. A justice would be tempted to cheat his co-conspirators, since he could cast himself in a good light by leaking to a reporter in implicit exchange for favorable coverage. Once one justice does that, the others are under pressure to follow suit.
I began Davis’s book thinking that the relations of Supreme Court justices to the media was an important question. I come away from it thinking that in times past it has been important but that today it is not—and this even though the publicity that Supreme Court justices receive is unprecedented in its volume. A tiny segment of the public is being entertained, which is fine, but public knowledge about the Supreme Court is not growing. The benefits of celebrity accrue to the justices as individuals rather than to the Supreme Court, or to the public at large in the form of a better understanding of a powerful political institution.
Richard A. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit. This article originally ran in the May 26, 2011, issue of the magazine.