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February 18, 2020 Appellate Issues | Winter 2020

Parting the Burgundy Curtain: Press Coverage of the Supreme Court

By Jaletta Long Smith

How should the media approach the Supreme Court of the United States? How should the Supreme Court approach media? Is the Court right to limit its “press releases” to opinions? Should we allow cameras in the highest court in the land? Do judges and attorneys across our country have obligations as consumers of media? Should media coverage be considered when litigating a case? During the first plenary panel of the 2019 Summit, Panelists George Freeman, Lisa S. Blatt, and Adam Liptak tackled all these questions with moderator Judge Samuel A. Thumma, of the Arizona Court of Appeals, Division One.. Let’s take a closer look at their perspectives and answers on the interplay between the media, judges, and those of us who are practitioners of the law.

Blatt is the Chair of Williams & Connolly’s Supreme Court and Appellate practice. She has argued 37 cases before the United States Supreme Court, prevailing in 34, with 1 pending. Blatt’s appellate work has been highlighted by multiple publications and has earned her rankings in Chambers USA, Benchmark Litigation, The Legal 500, and Washingtonian magazine.

Freeman is the Executive Director of the Media Law Resource Center, a non-profit trade association that supports the media in legal matters.  Before that, he was the chief First Amendment lawyer in the Legal Department of The New York Times for 31 years, leaving as Vice President and Assistant General Counsel in 2012.

In 2002, Liptak was a national legal correspondent for the Times and he launched a column, “Sidebar,” on legal affairs in 2007. Liptak currently covers the Court for the New York Times, a position he has held since 2008.

The panel opened with a discussion of how media coverage of the Court has changed over the last 10 years. When asked to pinpoint some changes, Liptak discussed how Linda Greenhouse, a Pulitzer Prize winner who covered the Court for nearly three decades, refused to write for the internet and would spend hours crafting 1500 words of nuanced and digested thought on the Court’s decisions. But the “need for speed” no longer countenances such a luxury. Liptak has an internet friendly article ready to post roughly five minutes after the Court hands down a decision. While this skeleton article is fleshed out throughout the day to include vote counts and some doctrinal nuance, the instant access of the internet has simply changed how many reporters do their job.

Freeman compared the disconnect between what non-attorneys want or expect to hear about the Court versus what judges, attorneys, and even the justices find newsworthy. Through this comparison, Freeman addressed a question that reappeared throughout the discussion: Is reporting on who appointed a judge or justice relevant or newsworthy when covering the Court or the lower courts? Freeman contended that while judges consider this information irrelevant, many readers and Court watchers do not. In some instances, it is newsworthy to report about how a justice reached the Court, including appointment facts, to provide context for media coverage.

Blatt maintained that advocates know the President who appointed each justice anyway. Nine out of ten advocates are already framing briefs and arguing to a specific justice. Consequently, information on who appointed a justice is routinely examined before briefs are prepared. Blatt touched on how the media will often “call” an outcome in a case based on perceived reactions by Chief Justice Roberts or Justice Kavanaugh. She cautioned that, in her view, the conservative justices have not solidified into a voting block yet, making cases  harder to predict than some of the media portrayals might suggest. Her strategy is to argue to the common man by crafting a compelling story in which the client must win. She always seeks nine votes, but is willing to take five. Blatt acknowledged that many advocates are thirsty for any clues about the Court’s process and will watch major news networks to suss out any insight into how a justice might vote on a given issue. Liptak said he will include appointment information if it is relevant to the outcome or votes in a case.

Despite her view that advocates will watch news for insights, Blatt said that having cameras inside the courtroom would not impact her approach to oral argument. Most advocates just want to win. She stated that rhetoric, including a quotable phrase, is important in oral argument, but that her approach would not change even if cameras were in the courtroom. She cares about judges, not cameras. Freeman contended that while judges prefer the anonymity, the Court suffers a “knock” in public confidence by refusing permit cameras. Liptak discussed the public interest and outrage surrounding the recent DACA cases. People felt so strongly about the issues at stake that they lined up and waited for two days for admission to the courtroom. But because the space is so limited, many did not make it inside. He expressed his view that there is no reason for the Court to refuse camera access in every single case.

Blatt voiced her view that most appellate arguments are boring and wouldn’t make particularly good TV. She can get the same thing from reading the transcripts (which are available about 90-minutes after the argument concludes) as she would from watching live-stream coverage. Oral argument audio is made available, and Blatt felt that was sufficient in most cases. Liptak pushed back on the idea that audio is enough, pointing out that although sometimes audio is released the same day, oral argument audio is most often released days later. Freeman disagrees with the Court deciding whether particular audio recordings should be published early.

One area of divergence for the panelists emerged when they discussed whether public relations or public information offices helped to improve media coverage of courts and their judges. Although he expressed some concern about writing an article based on information contained in a press release, Liptak expressed overall support for such offices. Freeman added that the offices can “talk” for judges who may be hesitant to have media contact directly. He believes such offices can help clarify issues and perhaps increase confidence in the judiciary. But for her part, Blatt expressed skepticism about someone writing press releases that come between judges, who speak through opinions, and the public.

The panelists did find common ground in their dedication to great storytelling. Blatt’s briefs always seek to tell a story that appeals to the common man in some way. She expressed a willingness to tell that story to any reporter in any case. Freeman emphasized that reporters must balance the tension of writing stories that appeal to the public but are also accurate and engaging for attorneys and Court watchers. Liptak tries to take complicated legal materials and make them conversational, though he acknowledged that in some cases a reporter struggles to reduce an issue down to a level that is accessible. Fortunately, he believes his readers are largely smarter than average and able to understand complex issues.

Freeman and Liptak encouraged judges in the audience to talk to reporters about their role generally and to remember that most reporters just want to get it right. Since most reporters are not lawyers and do not focus on legal issues or the Court, judges and attorneys are invaluable in helping them understand the judicial process. To advocates, Liptak offered the advice that, you are almost always better off if the reporters get your case right. After all, judges are sometimes known to read the paper too.

All in all, this was an engaging panel with great insights into the Court and the media coverage surrounding it.

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Jaletta Long Smith is an associate at Andersen, Tate & Carr in Duluth, Georgia, where she practices appellate and civil litigation. Prior to joining ATC, Jaletta spent six years clerking for federal and state courts. Jaletta is an active member of the State Bar of Georgia and serves as the Treasurer for the Appellate Practice section.