What started as an informal lunch conversation has developed into a scholarly law journal article raising an important question: Is the coverage of the United State Supreme Court by the news media contributing to the public perception of the Court as an institution doing politicized work in an atmosphere emphasizing factions? Or, as the title of the article puts it, “Supreme Court Journalism: From Law to Spectacle?”
In an “On the Issues with Mike Gousha” program posted on Marquette Law School’s web site on Feb. 3, 2021, Christina Tilley, a professor at the University of Iowa College of Law, said the paper in the Washington & Lee Law Review does not answer the broad question. But it examines aspects of the matter.
Tilley told Gousha, the Law School’s distinguished fellow in law and public policy, that she and her co-author, Barry Sullivan, a professor at Loyola University Chicago Law School, were talking one day several years ago, when Tilley was a faculty member at Loyola, about how headlines on Supreme Court stories seemed to be getting more “click-baity,” a term for language that attracts attention. Stories about the Court seemed to be emphasizing which president appointed justices and which faction of the court justices belonged to rather than issues and legal reasoning, they thought.
That led them, with the help of research assistants, to do extensive research on news coverage of two Supreme Court decisions, the 1954 Brown v. Board of Education decision which held that school segregation by race was unconstitutional and the 2007 Parents Involved in Community Schools v. Seattle School District No. 1 decision, which held that assigning students to schools solely on the basis of race was unconstitutional.
Tilley said they focused on “buckets of words” that appeared in news stories in the days surrounding each decision. In 1954, those words were more inclined to legal aspects of the case. In 2007, those words were more inclined toward political aspects of the case.
Tilley said there could be many reasons for this. One she put high on the list was changes in the news business itself, from news cycles in 1954 that were structured on daily schedules which gave reporters more time to work on stories to news cycles in 2007 (and more so now) that were, short and continuous and which required much faster filing of stories.
Other factors, she suggested, could include whether the Court itself is operating in a more political manner and whether politicians and interest group leaders are dealing with the Court in more political ways, including in confirmation hearings for nominees to be justices. And there is increased effort to make news stories easier for people to understand. Political aspects of a court action fit that interest more than explaining constitutional or other legal aspects of a decision.
Gousha asked if journalists now are simply being descriptive what is going on in the building or are they highlighting divisions in the court. “It would take a mind other than mind to land on an answer to that question,” Tilley said. But she expressed concern that the way court action was being described might be contributing to widespread lack of knowledge of what is in the US Constitution.
She said there were some signs that more people are not willing to accept some Supreme Court decisions as the binding law of the land. Many people don’t seem to see the court as doing something uniquely legally, but it rather as “just sort of a secondary legislature,” she said.
Video of the 39-minute conversation with Tilley may be watched by clicking here.