Justice Stevens and the News Media: An Exercise in Exposition
Barnhart, Bill, Northwestern University Law Review
ABSTRACT-Justice John Paul Stevens in nearly 35 years on the U.S. Supreme Court had few dealings with the news media. Nonetheless, anecdotes of his press relations, as well as his opinion-writing in cases related to First Amendment press freedom, provide clues for needed reforms by both sides in the interaction between the court and the press.
In May 2004, Justices John Paul Stevens and Stephen G. Breyer spoke at the annual Seventh Circuit Judicial Conference in Chicago. After the banquet, the two jurists settled into comfortable chairs on the ballroom stage to field questions from Bill Kurtis, a well-known Chicago news broadcaster and a law school graduate.1 The Q&A began as follows:
Bill Kurtis: "One of the pleasing things for me is seeing a Supreme Court justice wearing a wireless mike." (laughter) "Fortunately, we won't be able to take them off."2
Kurtis went on in this light vein, noting that C-SPAN had declined to record the event and, as a result, hinting a certain intimacy that he could exploit. It took a while, but Kurtis got to his question-what happened in the Supreme Court's secret conference concerning Bush v. Gore?3
Bill Kurtis: "There have been a lot of stories about what happened inside the chambers and the conferences, of wrestling with the issue. Justice Stevens, let's start with you. Give us a little feel for the atmosphere inside. And I don't even know the name of the case. Was it Bush versus Florida?" (laughter)
Justice Stevens: "Well, you're starting offwith a case that I don't want to talk about." (laughter and applause) "So, I would suggest that you start all over." (laughter and applause)4
This brief dialog between Justice Stevens and broadcaster Kurtis neatly summarizes Justice Stevens's relations with the news media and the media's relations with him. The misconnection brings to mind the theory of parallel universes. This Essay argues that, in the interest of public understanding and the Court's stature, a better connection between the Court and the press could be established and that Justice Stevens's legacy as a federal judge contains clues for bridging the gap.
In the history of the Court, interactions between Justices and journalists have ranged from cozy to hostile, with a great deal of detachment in between. Political science professor Richard Davis of Brigham Young University has noted that Justices have no obligation to engage public opinion-or, therefore, the press-in making their decisions. Nonetheless, "[f]rom the beginning of the Court, justices have possessed external strategies for shaping press coverage and public opinion regarding themselves as individuals and the Court as a whole."5
Recollections gathered from journalists who covered the Court during Justice Stevens's tenure, a review of press coverage of Justice Stevens, and his comments during my interview with him for this Essay suggest that Justice Stevens's posture toward the press was purposively detached. His minimalist media strategy (Justice Stevens does not keep a press-clipping file)6 fits his personal and professional inclinations towards the media as well as the tradition of the Court's cloister. His relations with the press resemble his press-related jurisprudence-respect for the institution and the Free Press Clause of the Constitution but no special treatment for the media. When asked at the 2007 Ninth Circuit Judicial Conference in Hawaii about the need for Justices to be more open in communicating their work, Justice Stevens replied, "Read what I've written."7 Those who do will find a treasure trove of good writing about engaging legal and social conflicts set inside a high barrier of legal conventions. But his career offthe bench provides another source of evidence for examining his, and the Court's, relations with the press and the public.
It is hard to argue with Justice Ruth Bader Ginsburg when she said, "Mass media reporters are the people in fact responsible for translating what courts write into a form the public can digest. …