Five Ways Appellate Courts Can Help the News Media

Article excerpt

The title of this article probably has some readers fuming already--especially those of you who wear robes to work.

I can hear you thinking, "No part of my job as a judge includes the odious task of assisting the media."

Point taken, and you are not alone. At a social gathering, the late Chief Justice William H. Rehnquist once told a group of journalists standing around him (and I am paraphrasing from memory), "The difference between us and the other branches of government is that we don't need you people of the press." It was quite an ice-breaker, but it succinctly summarizes how he might have responded to the subject of this article.

John G. Roberts, Jr., the current Chief Justice, seems to share some of the same impulses expressed by his predecessor and mentor. In 2006, when asked the perennial question whether broadcast coverage of Supreme Court oral arguments should be allowed, the Chief Justice acknowledged that it would have educational value. But he added, "We don't have oral arguments to show people, the public, how we function. We have them to learn about a particular case in a particular way that we think is important." (1)

The comments of both chief justices suggest that for them, and probably for other judges, helping the media or explaining their work to the media or, by proxy, to the public, takes a decidedly back seat--if it occupies any seat at all--to the core function of resolving a case for the benefit of the parties and the law. Put another way, many judges feel that they, perhaps unlike other public officials, have more important things to do than worry about how the news media report on their work.

I could argue and have argued that the public and its surrogate, the media, are as important an audience for decisions as other judges, legislators, and posterity. But whether or not you agree, there is one indisputable fact: The news media are not going away. As long as newspapers, radio, television, and digitized news outlets exist, we will be covering the work of the nation's courts. So, the point of my article is this: Why don't we all make the best of it and see if there are ways we can improve the quality of court coverage, and the tone and substance of how we--the media and the judiciary--relate to each other?

I approach this question with humility, for at least two reasons. First, I was taught a long time ago in journalism school that no one (and that would include judges) is obliged to speak to a journalist. We in the media should not become so self-important that we think judges should cater to us in any way. Second, I am deeply aware of the media's inadequacies in the enterprise of covering courts. For the most part, we are untrained and deadline crazed, with short attention spans and an inbred preference for heat over light and simplicity over nuance. None of this endears us to judges, and some of these faults are beyond repair. But we are way behind on the things we can improve--notably preparation and training, and also the effort required to understand and then to summarize matters both subtle and complex.

That said, here are some observations drawn from twenty-eight years of covering the United States Supreme Court and other courts, mainly federal, on simple things that judges could do to help improve media coverage of their work.

I. WRITE WITH CLARITY AND VERVE

Not every appellate decision lends itself to being summarized in an aphorism that survives the ages. Justice Potter Stewart's "I know it when I see it" definition of obscenity in Jacobellis v. Ohio, (2) is a perfect example of one that does, as is the Holmesian admonition that even the First Amendment "would not protect a man in falsely shouting fire in a theatre and causing a panic." (3) Justice Holmes's defense of eugenics is also a succinct--if regrettable--example. Three generations of imbeciles are enough," he wrote in Buck v. Bell. (4)

But even short of those timeless statements, it is entirely possible for judges to use plain language and well-turned phrases to explain their decisions. …