The Media, the Court, and the Misrepresentation

The New Myth of the Court

Rorie Spill Solberg, Eric N. Waltenburg

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135911805
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The Court's decisions are interpreted and disseminated via the media. During this process, the media paints an image of the Court and its business. Like any artist, the media has license regarding what to cover and the amount of attention devoted to any aspect of the Court and its business. Some cases receive tremendous attention, while others languish on the back pages or are ignored. These selection effects create a skewed picture of the Court and its work, and might affect public attitudes toward the Court. Indeed, studies of media coverage of other governmental institutions reveal that when, and how, their policy decisions are covered has implications for the public's understanding of, compliance with, support for, and cynicism about the policy.

This book uncovers and describes this coverage and compares it to the confirmation hearings, the Court's actual work, even its members. Rorie Spill Solberg and Eric N. Waltenburg analyze media coverage of nominations and confirmation hearings, the justices' "extra-curricular" activities and their retirements/deaths, and the Court's opinions, and compare this coverage to analyses of confirmation transcripts and the Court's full docket. Solberg and Waltenburg contend that media now cover the Court and its personnel more similarly to its coverage of other political institutions. Journalists still regurgitate a mythology supported by the justices, a "cult of the robe, " wherein unbiased and apolitical judges mechanically base their decisions upon the law and the Constitution. Furthermore, they argue the media also focus on the "cult of personality, " wherein the media emphasize certain attributes of the justices and their work to match the public's preferences for subject matter and content. The media's portrayal, then, may undercut the Court's legitimacy and its reservoir of good will.

1
Introduction: The Myths of the Court

It stands majestic—four stories tall, longer and wider than a football field, and built almost entirely of gleaming marble from three continents. Huge statues guard the stairs leading to its main entrance—on the left, a female holding a book of laws and a small set of scales (the Contemplation of Justice); on the right, a male with a tablet of laws and a sheathed sword (the Authority of Law). At the top of the stairs, 16 Greek Corinthian columns support the pediment. “Equal Justice Under Law” is inscribed on the architrave. Capping this entrance is a sculpture group of six figures representing liberty, order, and authority. Bronze doors weighing six and a half tons allow entry into the main corridor, known as the “Great Hall,” on either side of which are double rows of columns rising high to a coffered ceiling. At the Great Hall’s east end, oak doors open into the “Court Chamber.” The area of this room is over 7,500 square feet, and has a ceiling that rises 44 feet above the floor. It is a study in marble and mahogany. Twenty-four marble columns stand inside. The Chamber’s walls are marble and covered with friezes, and there are marble borders along the floor. The raised bench—which is the room’s focal point—and the other furniture are mahogany. The room, like the building itself, is opulent, designed to communicate gravity, stature, and prestige. This “Marble Palace” is the structural equivalent of the “cult of the robe” and supports the “myth of legality.”

The “myth of legality” is the belief that the law, precedent, and fidelity to the Constitution alone guide the Supreme Court’s decisions (Gibson and Caldeira 2009; Scheb and Lyons 2000). The justices, in turn, are seen as both legal technicians, apolitical and objective arbiters of the Constitution, and guardians of that “sacred text.” According to the myth, the justices arrive at their decisions impartially, free of the influence of political and/or ideological biases.¹ In short, the justices operate “above” the bare knuckles of the political process. To be sure, through their rulings, the justices create winners and losers and determine who gets what, when, and how much of society’s finite resources. But despite the Court being enmeshed in politics, the public’s subscription to the “legal myth” helps to ensure that the Court is perceived “as a uniquely nonpolitical political institution” (Gibson and Caldeira 2011, 200).

Myths are important and useful things in politics. Widely shared and usually uncritically accepted legends or stories, political myths explain or rationalize the political process (see Fiscus 1991, 314). Thus, they orient how the citizenry perceives the various aspects of its political system and that system’s outputs. Moreover, since myths typically have positive connotations—often suggesting power, virtue, or some sort of divine beneficence—that understanding engenders support for the political system or at least tolerance for its outputs. In other words, political myths contribute to the political system’s legitimacy (on the legitimacy of political regimes, see Easton 1965). This legitimizing effect is certainly the case for the “myth of legality” and the U.S. Supreme Court.

Lacking any truly coercive power, the Supreme Court is dependent upon the good will of the public to accept, and the other political institutions to implement, its policy decisions. But why should they? The answer seems to lie in the special place the Constitution occupies among the American public and the close association the “myth of legality” creates between the Court, the decisions of the justices, and the Constitution. First, according to Clawson and Waltenburg constitutionalism approaches a “secular religion” among the American public (2009, 56). Consequently, policies—even unpopular ones—are more likely to be accepted, or at least tolerated, if they are deemed to be constitutional. Second, as Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is.” In other words, the American political system has vested in the judiciary “the power to play God” with respect to fundamental constitutional issues. This, in turn, necessitated the creation of “myths to sustain and rationalize this awesome exercise of power” (Segal, Spaeth, and Benesh 2005, 16–17). According to the “cult of the robe,” the justices are oracles, simply giving voice to the Constitution. Their rulings (i.e., the Court’s decisions), therefore, are the Constitution (Segal, Spaeth, and Benesh 2005, 16). As a result, the public and other actors in the political system are predisposed to accept and abide by the Court’s policy pronouncements (Clawson, Kegler, and Waltenburg 2003; Claw-son and Waltenburg 2009). After all, the Court’s statements and the Constitution, according to the myth that has been woven to rationalize the Court’s power, are one and the same.

Not surprisingly, given the institutional clout the “cult of the robe” affords the Court, the justices work to promote it by dressing their actions in the legal-istic trappings that are so central to it (Epstein and Knight 1998). Justice Owen Roberts, for example, when striking down a key piece of New Deal legislation, bottomed his opinion on the “cult of the robe.” “When an Act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate, the judicial branch of the government has only one duty—to lay the article of the Constitution which is invoked beside the statute which is challenged and decide whether the latter squares with the former” (U.S. v. Butler, 297 U.S. 1 at 62 [1936]). Furthermore, it is not unusual for the justices “to present themselves to the public through the media as legal scholars and authorities rather than politicians” (Baird and Gangl 2006, 599; see also the sources cited therein).

But it is not only the justices who, in their institutional interest, promote the “cult of the robe.” Actors from the other political institutions promulgate the view that the Court and the justices are (or should be) above politics as well. In 1939, Senator Frank Murphy, for example, declared that “Members of the Supreme Court are not called upon nor expected to represent any specific interest or group, area, or class of persons” (qtd. in O’Brien 1996, 85–86). More recently, Senator Orrin Hatch, explaining his support for Ruth Bader Ginsburg’s confirmation to the Supreme Court, emphasized the constitutionality and therefore apolitical nature of Ginsburg’s decisions. “Her judicial record demonstrates that she is willing and able to issue rulings called for by the Constitution and the Federal statutes, even though Judge Ginsburg, were she a legislator, might personally have preferred different results as a matter of policy” (Cong. Rec., August 2, 1993, 18132). Presidents typically explain their choice of nominee in terms of the nominee’s fidelity to the Constitution and legal expertise. President Bush, for example, declared that he chose John Roberts to replace Chief Justice Rehnquist because of the former’s “deep reverence for the Constitution, … and his complete devotion to the cause of justice” (Stevenson 2005). And when announcing Elena Kagan’s nomination, President Obama described her as “one of the nation’s foremost legal minds” (Rowland 2010 [emphasis ours]).

Traditionally, the Fourth Estate has been no less likely to espouse the “myth of legality” in its portrayal of the Court (Spill and Oxley 2003). To a degree, of course, this is a function of the press’s reliance on the statements of its sources about the Court. Given the prevalence of the “cult of the robe,” it would be expected that the lion’s share of those sources would couch their references to the Court in terms of its apolitical and impartial nature. In addition, the press’s heavy use of the Court’s own language in its reports of the Court’s actions (a mode of press behavior consistent with a media norm of reliance upon “official,” authoritative sources; see Bennett 1996; Gans 1979) helps to ensure the Court is presented as an institution separate from politics. After all, the Court does not refer to itself as a “political institution” in its opinions, and it grounds its decisions in such “objective” criteria as fidelity to the Constitution and precedent (Davis 1994, 20; see also Entman and Paletz 1980).

But it is not just the press’s use of sources that helps to dress the Court in the legal myth. To some degree, Court reporters have promoted the legal myth as well. Davis notes that many journalists perceive the Court as an institution critical to American democracy for its role in safeguarding minority rights, and therefore they feel obliged to protect its institutional legitimacy. “This attitude produces a willingness to allow the institution to define itself in terms most favorable to itself” (Davis 1994, 128).

The “cult of the robe,” then, overhangs the media’s stories about the Court. As Hall Jamieson and Waldman point out, however, these stories appearing in newspapers and on television “are not called ‘stories’ by accident” (2003, 1). They are artistic constructions of reality. And like any artistic expression there is license or discretion used in terms of what to cover and how much attention to bestow on that subject. Consequently, “certain types of stories will be selected, while others will not.” And this is not without consequence. “There is thus a strong possibility that there will be systematic differences between news content and the real world” (Soroka 2012, 515).

Indeed, we hypothesize that this artistic license has helped to usher in a new myth of the Court. Specifically, a variety of conditions (modern media norms, developments with respect to the Court) have come together that, when coupled with the reporters’ license suggested by Hall Jamieson and Waldman, has bent the media’s orientation about what is reported on the Court and what is deemed to be “newsworthy.” This new myth emphasizes the justices’ personalities—their ideological and legal philosophies as well as elements of their life stories—and attaches newsworthiness to events and facts that involve the individual justice. Thus, for example, nominations, confirmations, and departures command the media’s attention about the Court. They function as “news pegs,” affecting the public’s understanding and knowledge of the Court. Accordingly, about the only time the public hears a focused accounting of the nature of the Court’s business is during Senate confirmation hearings. And since certain topics “sell” better than others, the media coverage of modern confirmations indicates that an issue dominating the Court’s attention involves privacy and its relationship to the question of abortion. Consequently, the public’s understanding of the nature of the Court’s caseload is skewed.

Oftentimes, even stories about decisions are reported in a way that connects them to the personality of a justice. Cases involving abortion and Justice Blackmun are perhaps the most obvious example, but the stories about Chief Justice Roberts’s opinion upholding the Patient Protection and Affordable Care Act (“Obama-care”) as a means to preserve the Court’s public esteem are also examples of this mode of reporting on the Court.²

This new myth of the “cult of personality” is consistent with modern journalistic norms of personalization, drama, and novelty (Boykoff and Boykoff 2007, 1192). It permits reporters to attach a human element to the Court’s decisional outputs by connecting them to the identities of certain justices—Blackmun, for example, leading the diminished Court liberals and turning back the various assaults on Roe, warning that at some point he would no longer be there to defend the precedent,³ or Roberts sacrificing his conservative credentials in order to “save” the Court.⁴ It injects drama by emphasizing the tone of the justices’ opinions: “There was a blistering dissenting opinion written by Justice Byron R. White,”⁵ or by noting conflict over decisions such as President Obama’s televised criticism of Citizens United and Justice Alito’s mouthed “Not true” during the State of the Union.⁶ And there are few events more novel than a retirement from or appointment to the Court.

The “cult of personality” also plays well with the modern media’s attention to celebrity as the focus of the news (Davis 2011, 27), and it seems part and parcel with what one keen observer of the relationship between the press and the Court has identified as a changed media environment. Richard Davis notes that since the 1960s professional journalism has adopted a different approach to coverage of the political system, one that is more aggressive, challenging, and investigatory. The consequences for the Court seem to be that journalists are more likely to perceive it as a political institution inhabited not by philosopher kings but by individuals with personal and political motivations (2011, 25–27). Identifying and reporting on these motivations has increased the incidence of journalists making references to the justices’ ideological dispositions and/or their life stories as explanations. Davis quotes the Associated Press reporter, Richard Carelli, on this point:

When Justice Stevens writes an opinion about parental rights, we can put in the story that this author is himself the adoptive parent of two children. It adds something for the readers, an appreciation of where this guy is coming from. (Davis 1994, 103)

Thus, recognized media practices and a new style of journalism have played a role in the rise of the “cult of personality.” But several other developments, more central to the Court, have helped to usher it in as well. First, since at least the 1950s, the Court has been involved in especially divisive social issues touching on race relations and privacy that have increasingly made it the object of controversy and political contest. This in turn has increased the likelihood of referring to the Court and politics in the same breath. Whether a cause or a symptom, the Court’s footprints in these issue areas are associated with a perception among some reporters that the Court is “plainly a political institution. Behind the black robes and the legal mumbo-jumbo are nine politicians who are making public policy as well as law” (Davis 1994, 126).

Of course this perception (recognition) is not limited to the journalists covering the Court. Organized interests are very aware of it as well, and whether in pursuit of policy or to propagandize for members and resources, organized interests have located their energies in the Supreme Court with increasing frequency. One of the strategies these groups employ is to act as a source for the media reporting the Court’s decisions, and as sources, groups attempt to frame the Court’s decisions in a manner most advantageous to their objectives. In this effort, they might well be less likely to emphasize the traditional legal myth surrounding the Court and more likely to cast the Court as just another political institution and the justices as just another set of politicians.⁷ Consequently, the increased activity of organized interests in the judiciary has yielded additional information for journalists to draw upon, information that contributes to the “cult of personality” (see Davis 1994, 100–1).

The nomination and confirmation process has changed drama...

Table of contents

• Cover
• Dedication
• Title
• Copyright
• CONTENTS
• List of Figures and Tables
• Acknowledgements
• 1 Introduction: The Myths of the Court
• 2 Confirmation and the “Cult of Personality”
• 3 The Decisional Myth
• 4 The Decisional Myth, Part 2—The Landmark Cases
• 5 The Personal Myth
• 6 Conclusion: Processing the Myths of the Court
• Index