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How Journalists Portray the Court as a Partisan Institution

If the Supreme Court is viewed now as simply a partisan political institution, the journalists who cover it deserve some of the blame. The coverage of the Court is now almost universally refracted through the attitudinal model of political science, which essentially treats judges as politicians in robes who vote their political preferences, which in turn reflect the views of politicians who appoint them.

Coverage of the Brett Kavanaugh nomination is of a piece with this trend. The New York Times led with a story that tried to locate his ideological position on the Court through his $6,000 dollars of campaign contributions. (Never mind that some of these at least went to someone he worked with at a law firm and may reflect personal ties). And the focus in the press has been almost entirely on how he will vote in such cases as abortion and almost none on his methodological approach to interpretation. And this is a judge who recently wrote a long review essay on statutory interpretation in the Harvard Law Review.

Nor do journalists typically make a substantial examination of other justices’ methodology in reviewing the Supreme Court’s work.  In particular, originalist arguments are now regularly made by justices and not only by those appointed by Republicans. In the academy originalism has become the theory to beat. But I cannot think of any major newspaper that devoted an entire article to the rise of originalism as a theory, even though it helps explain what would appear anomalies from the perspective of the attitudinal model, like Justice Antonin Scalia’s frequent votes for criminal defendants in closely contested cases. Even if one think that politics matters, methodology matters too, and the public would not gather that important feature of judicial decision making from much of the reporting on the Court’s work.

The best reporter today on Supreme Court, Adam Liptak, is a case in point. While he fairly reports on what the justices say in their opinions, his longer and retrospective essays on the Court are far more influenced by a view of the Court as a political institution than as a distinctively legal one. The scholar most frequently cited in his roundups appears to be Lee Epstein, a political scientist and champion of the attitudinal model who uses various measures to quantify a justice’s political ideology.

No doubt using such quantitative studies help protect Liptak (and other journalists) against the charges of political bias that were sometimes made against his predecessor, Linda Greenhouse.  But this kind of analysis flattens reporting on the Court and in my view falsely makes the justices seem like largely partisan political players rather than actors engaged in serious jurisprudential debates.

Taking a relentlessly legal realist view of the Court is not a partisan bias, but it is a bias nonetheless. While reporters are welcome to view the Court through a political lens, they should also add a methodological one. The stereoscopic view of judging is richer and more accurate. It is also a better story.

Addendum: An earlier version of this post implied that imputation of bias to Linda Greenhouse may have been correct. I have revised the post to eliminate that implication.

Reader Discussion

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on July 13, 2018 at 09:41:00 am

Yeah. I get that. And I wonder about this, too. But let me ask you something: How does Kavanaugh's theory of statutory interpretation differ from Garlands? If you've studied the matter, I suspect you'll conclude that NO ONE GIVES A SHIT. Justices are picked for their predicted outcomes, not for their methods. Praising originalism is akin to praising states rights: It's an entirely sincere philosophy that politicians embrace insincerely to achieve desired ends.

The public justifiably cares about things they influence, such as the politicians they vote for and outcomes they generate. Analyzing the judiciary through the lens of Kavanaugh's judicial philosophy is like analyzing US foreign policy through the lens of a soldier's political philosophy.

That doesn't mean that insiders, such as McGinnis, shouldn't ruminate endlessly about judicial philosophy, just as we ask engineers to focus on the minutiae of engine design. But for most of us, Consumer Reports-level analysis will suffice.

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nobody.really
on July 13, 2018 at 13:50:52 pm

Yeah, Citizens United and Hobby Lobby weren't at all partisan. Corruption by the rich really should be something we care about, right? Even Roberts said there should be transparency during the Citizens United decision, but alas, not so much... And I'm sure the right thinks that the decisions about the ACA and gay marriage were partisan as well.

Just because their decisions seriously impact our lives, we should just not worry, right?

Pay no attention to the men/women behind the curtain!

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excessivelyperky
on July 13, 2018 at 14:34:34 pm

To declare that "NO ONE GIVES A SHIT" about a serious matter is to be cynical. Routinely to declare one's cynicism about serious matters and, as here, to declare it with EMPHASIS might mean that one both cherishes his cynicism and needs it.

Cynicism is often displayed as a surrogate for knowledge and wisdom, but it is neither. Cynicism is a political corrosive which both reflects and compounds the erosive effects of ignorance.

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Pukka Luftmensch
on July 13, 2018 at 14:49:18 pm

Fair enough.

So, how does Kavanaugh’s theory of statutory interpretation differ from Garlands? And how did that difference influence their prospects for joining the Supreme Court?

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nobody.really
on July 13, 2018 at 15:11:37 pm

Perhaps one phrase should be reworded:

Should read: NOBODY REALLY GIVES A SHIT.
Clearly this is the case, why else would nobody equate with originalism with States Rights. Oh, I get it - Kavanugh must be the lineal descendant of John C Calhoun.

You will next read this claim in WAPO and on MSNBC, where gullible perky personalities will further disseminate the newly discovered genealogy.

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gabe
on July 13, 2018 at 20:11:57 pm

The quickest answer relates to Chevron deference, with Kavenaugh likely to be a strong opponent b/c it violates the Separation of Powers doctrine and Garland known to be strongly deferential to agency decision-making and authority. Also, Garland in general is deferential to Article I power, while Kavenaugh recognizes that the constitution did not create the three branches of government as equal, but rather intended Congress to be the most important branch or, at least, primus inter pares.

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Pukka Luftmensch
on July 13, 2018 at 20:29:04 pm

I should add that Garland holds that corporations lack the same right of free speech enjoyed by real people and likely would have voted with the minority in Citizens United, whereas Kavenaugh would almost certainly have voted the way the case was decided.

All of these and other differences are based on two differing theories of constitutional interpretation. Kavenaugh is an originalist and a textualist, as was Scalia. I would characterize Garland as very much like Justice Breyer who is self-described as interpreting the constitution so as to further its purpose. Stevens was very much that way, although he tried at times to play the originalist, as in his dissent in Heller, the Second Amendment landmark case.

Big difference and lots of folks do give a shit.

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Pukka Luftmensch
on July 14, 2018 at 00:30:37 am

And how did that difference influence their prospects for joining the Supreme Court?

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nobody.really
on July 14, 2018 at 09:21:27 am

nobody knows and the Shadow.

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Pukka Luftmensch
on July 14, 2018 at 22:49:22 pm

“I should add that Garland holds that corporations lack the same right of free speech enjoyed by real people and likely would have voted with the minority in Citizens United, “

Thanks. You have just demonstrated that you have either never read or do not understand the decision in Citizens United. That decision says nothing at all about granting corporations “the same free speech rights enjoyed by real people.” Rather, the Citizens United majority ruled that real people do not LOSE their right of free speech when they decide to use the corporate form to organize with others having the same interest. And if you honestly think that Garland would deny free speech rights to corporations, that really should scare the hell out of you, since the New York Times, WaPo, CNN, NBC, MSNBC, and many other media firms all rely upon the corporate form. So you have demonstrated that you are a victim of precisely the kind of biased political coverage of the Court as a political institution complained of. Because only very bad Supreme Court reporters (and President Obama) so badly misrepresented the holding of Citizens United.

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Daniel Artz
on July 14, 2018 at 23:12:34 pm

Don't be silly and do not distort what I said: Citizens United held that spending is speech, and is therefore protected by the First Amendment, EVEN IFthe speaker is a corporation. It overturned, on Free Speech grounds, the federal ban on campaign contributions by corporations advocating the election or defeat of candidates for public office. Before that ruling corporate expenditures for political speech advocating or opposing the election of a candidate was treated differently ( they were prohibited before but are now allowed) than the political speech of "real people" advocating or opposing the election of a candidate (it was allowed then and is now allowed.)

There are many other ways in which corporate speech is still restricted, despite the First Amendment, whereas similar speech by "real people is not restrained. I believe that Kavenaugh may be more amenable than Garland to loosening those restraints.

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Pukka Luftmensch
on July 16, 2018 at 14:33:47 pm

Why blame the media for skepticism about the Supreme Court? Look at the show put on when the GOP senators stonewalled an unquestionably qualified Judge Garland for months. Now they demand that the pending nomination be completed with dispatch. Why? The only logical reason for their doing this is that they only want justices who will favor their political ends.

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John Conlon

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