October 26, 2006
The Press, the Supreme Court, and You

The Everett Herald takes exception to recent remarks by US Supreme Court Justice Antonin Scalia in an editorial today. The Herald seems to miss the point of Scalia's statements.

Perhaps Scalia scans too many tabloid headlines and doesn't spend enough time with serious media outlets. Any journalist who covers the Supreme Court, and even lower courts, is more than likely these days to have a law degree. Citizens who get their news from serious media outlets are educated, capable of understanding legal decisions and scrutinizing the details.

While the editorial is correct there are many smart people who cover the Court and who digest the news about its opinions, there are also many people who get their news of the Court's decisions from TV news or a brief wire story in their local paper, neither medium being terribly useful for examining matters of Constitutional law. The Herald is simply not considering the actual audience of typical Americans and general members of the press corps to which Scalia is referring.

Example: the Court rules a law criminalizing XYZ act is unconstitutional. The Court is not saying XYZ act is morally good or acceptable, the Court is saying its bad law. Huge difference. Yet, that the perceived social outcome of the ruling, rather than the legal merits, often dominate hasty news coverage in our 24/7 world.

Scalia is right. Much, though not all, of the general public and the press have trouble examining Supreme Court decisions at any serious length, mostly because they simple lack the time or interest to do so.

Please discuss.

Posted by Eric Earling at October 26, 2006 07:52 AM | Email This
1. Exactly. A good example is the Texas sodomy law case awhile back. Although he had voted to uphold the Texas law, Clarence Thomas also remarked that he thought it was a silly law, but that Texas had the right to have such a law on the books if they chose to.

On a similar note, how many liberals have ever taken the time to write a thank you letter to John Ashcroft for enforcing Roe v. Wade during his tenure as AG, even though he believes it was an improper interpretation of the Constitution, and morally reprehensible as well? Could probably count 'em with zero fingers.

Both Thomas and Ashcroft are exemplifying how the system is supposed to work: it's what the law says, not what they think.

Posted by: TB on October 26, 2006 08:16 AM
2. Eric is absolutely correct. He need not have invented an example to illustrate the point - the recent State Supreme Court case on gay marriage provides a perfect real life example. The court's holding was with respect to the legal issue of separation of powers. The court used a legal test established by precedent (legal history) to determine whether the legislature's action overstepped the powers granted it by the State's Constitution. Although divided, the Court held that the legislature did not overstep its powers, and therefore the Court had no Constitutional basis for voiding the law. The court even went out of its way to say that all citizens should be allowed equal access to the rights conferred by marriage, but noted that plaintiffs had not stated their case in those terms.

But supporters of gay marriage and most of the local press and radio talk shows with similar views simply assailed the court for its derivative outcome - the court was banning gay marriage. On the contrary, the court's holding had nothing to do with whether gay marriage should be banned or allowed, but stated explicitly that such a decision is of the type that the Constitution placed in the hands of the Legislature.

It takes time to read an entire SC decision, and it cannot be done without understanding the legal context in which the case arose. It really is impossible to comprehend all of the nuance and rationale without first receiving legal training. As an undergraduate, I had a class in which we spent half a quarter studying just one case, Brown v. Bakke, a case regarding affirmative action. It took the first year of law school before those of us working our way though had accumulated enough understanding of legal procedure, legal writing, legal jargon, legal history, and legal policy to be able to read a case and reach the same level of understanding in several hours. It just isn't reasonable to expect the general public to read cases in such a manner, which, in my mind, raises the level of responsibility of legal reporting, and illustrates the danger that can arise when legal analysts slant or misrepresent legal opinions for political reasons.

Posted by: srogers on October 26, 2006 08:22 AM
3. I completely agree that the majority of Americans lack an understanding of the constitution and law in general to understand Supreme Court decisions. Take flag burning, most people find burning our flag abhorrent, and justly so. However there is a vocal contingent of Americans who feel it is appropriate to impose criminal sanctions against those who would choose to burn an American Flag.

This position shows a complete lack of understanding of both the concept of language and the First Amendment. Language is at its core symbolic, the word "apple" is not an apple, it is a group of sounds or written characters we English speakers recognize as representing an apple. In the same way, the flag is not America, it is a symbol representing America. Flying the flag properly represents to others one's pride in America in the same way that burning a flag shows one's vehement opposition to the government of our country. Either treatment of the flag communicates meaning, ergo either treatment is symbolic speech.

I think that when conservatives observe someone burning a flag, their real objection is to the content of the speech. However, since objecting to someone's right to convey their dissent with our government is not a core conservative value, we create a straw man that allows us to focus our argument against that speech on the nature of the act.

Fortunately, the Supreme Court has recognized this action as protected political speech. Still the majority of Americans cannot overcome their visceral reaction to seeing a symbol most of us are justifiably proud of treated in such a manner. Those Americans lack the context to understand the Supreme Court's protection of flag burning--which gives politicians another tool to manipulate the sentiments of the electorate.

We'll see a constitutional amendment banning flag burning the same time we see congress stop overspending, but every election cycle, politicians use both empty promises to sway an easily manipulated populous.

Posted by: Dan on October 26, 2006 08:28 AM
4. The Everett Herald notes: "Citizens who get their news from serious media outlets..."

Guess that leaves the Herald out.

Posted by: Johnh425 on October 26, 2006 08:47 AM
5. "Citizens who get their news from serious media outlets are educated, capable of understanding legal decisions and scrutinizing the details." Hmm. On the surface this actually a bit arrogant and somewhat insulting. Being a NW native the best news source was J.P. Patches. Bobby was always, 39. Lack of time but more appicable interest is correct. Most folks are just plain numb from being screwed by the Gov constantly.....and don't give a rat's flatulence.

Posted by: pbs7mm on October 26, 2006 09:15 AM
6. Personally I do not think that the vast majority of Americans do not have the capacity of understanding the USSC. Out education system is what is lacking. Almost all decisions are based on a few understandable facts that lead to a conclusion. This process can be taught to most people and should be brought back to our schools. The fact that the law is stupid has nothing to do with constitutional. The emotional "feel good" crowd think the court should decide everything, which in-and-of-itself is unconstitutional - there are two other branches.

Posted by: Right said Fred on October 26, 2006 09:43 AM
7. The amount of time it takes to properly research the background surrounding nearly any Supreme Court case is staggering. Just try and wade through the the mess/mass of precedent that ecompasses Roe vs Wade in a thorough and comprehending manner: it will take you many days to do even a half-assed job of it.

Of course, one of the first things people have to do is leave their preconceived religious doctrine at the door....

Posted by: H Moul on October 26, 2006 10:27 AM
8. In general I agree with Scalia on this. Serious legal analysis is available in places like the NY Times and some websites, but the vast majority of the populus doesn't see those, doesn't care, and wouldn't understand.

Scalia concluded, "So you can't judge your judges on the basis of what you read in the press." I agree with that, too. And that -- to me at least -- argues for appointing rather than electing judges.

Posted by: Bruce on October 26, 2006 10:33 AM
9. It's not that the hoi polloi doesn't understand the role of the judiciary. In fact, for several decades, they have been told by the left that it is the function of the judiciary to make good laws, because the laws made by the democratically elected legislatures and enforced by the democratically elected executive branch were not to their liking. Because a majority of Americans do not support things such as abortion without restriction up to 8.99 months, gay marriage, free lawyers for foreign enemies, etc., the only way the left can implement them is through the courts.
Thus they must redefine the role of the judiciary, regardless of what the constitution says.
The concept that a law may be constitutional yet foolish or immoral, or wise and just yet unconstitutional, simply makes some people's brains explode.

Posted by: Steve on October 26, 2006 10:35 AM
10. Steve - the reasons you gave are exactly why it is no longer taught in schools. If they can redifine it emotionally an uninformed electorate will follow.

Posted by: Right said Fred on October 26, 2006 10:42 AM
11. As one of those electorate who tries to understand SCOTUS decisions, but is not a lawyer, perhaps one of the legal minds here can explain to me how the decisions in cases like Roe v Wade and the Texas sodomy case were not a usurpation of states' rights.

Posted by: Palouse on October 26, 2006 11:03 AM
12. Palouse @ 11 -- They were usurpations. I brought up the Texas sodomy case because I remembered Thomas's comment, although I haven't read the decision. I have read all three opinions on Roe, and that is one case that I would point to in saying that you don't have to be a lawyer (I'm not) to understand the basic principles and arguments in the case. I'm sure there are a lot of nuances and details that law school makes much clearer, but a literate and intelligent citizen with a good grasp of civics is perfectly capable of grasping all the essential elements of most cases, although there are a number of lawyers who will claim that only they have the secret decoder ring.

Posted by: TB on October 26, 2006 11:31 AM
13. Over time lawyers have learned how difficult it is for journalists to write rationally about lawsuits and court decisions. Only infrequently do journalist report or analyze litigation correctly. Journalists with law degrees but no professional experience have no special insights. It takes time and experience for lawyers to learn that facts determine outcomes in litigation not rules of law. Determining when and if a particular rule of law applies is dependent entirely upon the facts of a case. That means determining facts from evidence, exclusive of spin and contentions. In addition to bein able to critically analyze, one cannot be lazy. Many journalists lack these talents. That is the point Scalia was making in polite terms.

Posted by: Paddy on October 26, 2006 11:32 AM
14. Brand new Gourley v. Gourley decision destroys the right to due process of law. Justice Ownes joined in James Johnson incredibly dissapointing majority opinion. Justice Richard Sanders, as usual, is the only judge in the State of Washington who "gets it".
The essential of this decision is that because Mr. Gourley admitted to rubbing aloe vera on his child's sunburn, that was tantamount to an admission of sexual abuse.
Which he vehemently denied.
The only way anyone can credibly deny such an allegation.
So that justifies admitting hearsay evidence, deciding the entire case on hearsay evidence with no requirement that the accuser present herself for cross examination before the trier of fact, which is always a judge or commissioner and never a jury. If some EVIDENCE RULE allows hearsay evidence to be considered in a protection order hearing, well that's enough due process for everyone, isn't it?
So hear is the deal parents (fathers):
You admit to touching your child's pubic area to clean the bodily waste while changing a diaper, you too are eligeable to being thrown out of your own home and prohibited from access to your children without any requirement for any cross examination of your accusers.
Even if the county prosecutors drop the charge because they don't like their chances with a JURY and with the HEARSAY RULE fully enforced.
Opinions available at


Posted by: Roger Knight on October 26, 2006 07:00 PM
15. I've had lawyers tell me that 60% or more of the law is just plain not about the law at all. It's about procedure. You can lose the whole thing, even though you are clearly in the right, just because you didn't play the game correctly.

Posted by: mykela on October 26, 2006 07:31 PM
16. At 4: The Everett Herald notes: "Citizens who get their news from serious media outlets..."
Guess that leaves the Herald out.

Now, the Geez is not too keen on defending the editorial policies of the Herald, but for a small town rag, they aren't too bad, even if owned by Mommy Post.

Their editorial page, though, leaves much to be desired. Occasionally the editorial editor will write a piece, but more often it is the single staffer, and you can tell by reading it.

Methinks that the sheeples judge these opinions by what they want the law to be, not by what the law is. As I say, if you don't like it, change it, and I may even help you.

Scalia first impressed me several years ago when he did a fascinating series on ethics on PBS (I know, I know). He was candid, forthcoming and entertaining! Has a brilliant legal mind, way more brilliant than ol? Carol at the Herald.

Posted by: The Geezer on October 27, 2006 07:05 AM
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