Scholars and commentators have long noted the strained relationship between the United States Supreme Court and the media that wishes to report upon its work.1 The press corps complains that the Court is cloistered, elitist, and unbending in its traditions of isolation from the public.2 Critics regularly assert that, especially when cases of major significance to many Americans are being argued,3 the Court unnecessarily hampers media coverage and fails to take appropriate steps to make itself an accessible, understandable institution of government, thus widening the gap between public perception and reality within the justice system.4
In truth, however, in at least one notable way, the U.S. Supreme Court has shown itself to be quite deeply committed to media access and resolute in acknowledging the virtues of press reportage: In deciding cases brought before it involving media coverage of other institutions, the Court has taken a remarkably strong stance in favor of openness and in praise of the journalistic endeavor. Indeed, it is only when making its own internal policy determinations about the propriety of press access, rather than legal proclamations about the overarching value ofthat access in a democracy, that the Court appears to reverse course and take a less media-friendly position.
This Article examines this apparent disconnect. It aims both to illustrate the seeming inconsistency and to initiate a dialogue about its possible causes and potential effects. The Article outlines the ways in which, generally speaking, the U.S. Supreme Court Justices, in their role as articulators of legal doctrine in judicial opinions, have been largely press-positive and access-supportive, and contrasts this with the ways in which these same Justices, in their role as establishes of their own institutional media policies and in their positions as individual representatives of a public institution, are largely press-negative and access-wary. Because this dichotomy may have ramifications for both public education and the flow of information in our constitutional democracy, the Article then begins a conversation about possible rationales for the variance in the Court's attitudes toward and treatment of the media. It suggests that although the Court's concerns about institutional legitimacy and detachment from political pressures are admirable, they may not warrant as significant a gulf as currently exists between the Court's case-law position on the press and its internal-policy position on the press.
Part II describes the substantial corpus of case law, particularly in the last fifty years, that suggests a Supreme Court view of the press as a positive, public-serving entity to be both accommodated and celebrated. It demonstrates the ways in which the Court has promoted media access as a critically important component of American democracy.
Part III outlines the most common criticisms leveled against the Supreme Court on the question of press access, focusing on the suggestion that the Justices create major barriers to the institution and its public-serving work. It illustrates the patterns of the Justices institutionally declining to accommodate the needs of reporters, as the Court sets policy for media coverage of oral argument and other aspects of its operations. It also discusses ways in which the Justices individually have declined to do so, as journalists have sought to report upon a Justice's public appearances or actions.
Part IV investigates possible explanations for the seeming contradiction and conducts an initial analysis of the strength of these justifications. Part V concludes with a recommendation that the Court seek to more closely align its internal policies on issues of media access with the thoughtful commentary in its own case law about the overarching virtues of the press in our society.
In the last fifty years, the United States Supreme Court has issued numerous landmark decisions focused on the role of the press in democratic society. …