Friday, May 13, 2011

Justices and Journalists

Justices and Journalists: The U.S. Supreme Court and the Media (Cambridge University Press, Feb., 2011), by political scientist Richard Davis (Brigham Young), may be of interest. The book traces the Justices' engagement with print and broadcast media; it is partly a historical account. The book also includes empirical analysis.

The book caught my eye because it touches on questions that legal historians ponder when we analyze the judicial decision making process and interpret legal texts. I have in mind, for example, how judicial culture, conceptions of judicial role, and institutional management impact courts and law; how judicial biographies and personalities shape legal outcomes; and strategic behavior among judges.

Here is the publisher's description of the book; a few blurbs follow.

Justices and Journalists examines whether justices are becoming more publicity-conscious and why that might be happening. The book discusses the motives of justices "going public" and details their recent increased number of television and print interviews and amount of press coverage of their speeches. The book describes the interactions justices have (and have had) with the journalists who cover them. These interactions typically are not discussed publicly by justices or journalists. The book explains why justices care about press and public relations, how they employ external strategies to affect press portrayals of themselves and their institution, and how and why journalists participate in that interaction. Drawing on the papers of Supreme Court justices in the nineteenth and twentieth centuries, the book examines these interactions over the history of the Court. It also includes a content analysis of print and broadcast media coverage of Supreme Court justices covering a 40-year period from 1968 to 2007.

"Supreme Court justices like to cultivate an image of being aloof and apart from politics and the media. Richard Davis' eye-opening book offers ample proof that to varying degrees, justices have engaged with journalists and politicians throughout American history. The Court's lofty mystique will never be the same."
Tony Mauro, Supreme Court Correspondent, National Law Journal

"With the Justices now regularly writing books, publicly debating constitutional issues, and sitting for media interviews, Justices and Journalists could not be more timely. It's a path-breaking study that will generate discussion, debate, and research over the questions of how and why Justices "go public"---and whether they should in the first place."
Lee Epstein, Northwestern University School of Law

Judge Richard Posner reviewed Davis's book for the New Republic. The review, entitled "The Court of Celebrity," mostly offers the judge's normative take on whether the Justices ought to open the work of the Court to public scrutiny, as opposed to cultivate "celebrity" on an individual basis. Here is how Posner frames the subject:

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.

Judge Posner's engaging ideas are well worth a read, but it is important to distinguish between a judicial media presence or judicial media strategy, and the phenomenon of judicial "celebrity." The former might signal healthy engagement with the public and serve educational purposes. By contrast, the latter might simply advance an individual judge's self-interest, as Posner suggests. (I doubt, by the way, that any U.S. Supreme Court Justice actually qualifies as a "celebrity." But I might be pleased if any Justice were as widely followed as say, Brad Pitt or Lebron James).

See Linda Greenhouse's essay, "Telling the Court's Story: Justice and Journalism at the Supreme Court," 105 Yale L.J. 1537 (1995-96),for the view that journalists' coverage of the Court and Justices' engagement with media is not merely healthy for but integral to democracy. Greenhouse frames her discussion in this way:

This Essay starts from the premise that press coverage of the courts is a subject at least as worthy of public concern and scholarly attention as press coverage of politics, perhaps even more so. Political candidates who believe that their messages are not being conveyed accurately or fairly by the press have a range of options available for disseminating those messages. They can buy more advertising, speak directly to the public from a talk-show studio or a press-conference podium, or line up endorsements from credible public figures. But judges, for the most part, speak only through their opinions, which are difficult for the ordinary citizen to obtain or to understand. Especially in an era when the political system has ceded to the courts many of society's most difficult questions, it is sobering to acknowledge the extent to which the courts and the country depend on the press for the public understanding that is necessary for the health and, ultimately, the legitimacy of any institution in a democratic society.
Greenhouse contemplates a productive interpretative role for journalists in the legal process; whether illuminating commentary emerges in any given scenario is, of course, open to debate.