Justice Kennedy on Reporting About The Court

July 13th, 2012

Institute vice president Elliot Gerson pointed out that most Americans don’t read judicial opinions, but learn about them only through media reports, noting that two television networks initially reported the health care decision incorrectly.

“The fact that people got it wrong for the first 10 minutes on a decision that will have ramifications for hundreds of years to come, to me, seems just silly,” Kennedy said.

He added that mass media is a relatively new addition to democracy, and argued that the increasing speed of the news cycle is leading to a less informed citizenry. Reporters in the instant news cycle, he argued, can’t explain the reasons behind court decisions and can’t possibly read the court’s opinions to keep up with the demands of instant coverage.

“They don’t have time to explain why we did it,” he said, later adding: “One of the problems with Internet technology is that we’re losing the social habit and even the cognitive and perceptual, rational incentive to have quiet, reflective judgment.”

Oh Tony. Where do I start.

CNN and Fox did get it wrong for about 10 minutes. Bloomberg, SCOTUSBlog, and others got it right. But let’s look why.  There is a bit of a chicken-and-egg problem here. The manner in which the Supreme Court announces its opinions is out of the 18th century. The justices read the opinions from the bench, and only hand out *PAPER* copies of the opinions minutes later. The PDF is posted to the web site, but it was so flooded no one could access it. The Supreme Court makes it SO difficult for anyone to access what is indeed one of the most important cases of the century, I’m not sure if all the blame is on the media for getting it wrong (though CNN and Fox messed it up).

But, Kennedy’s comments make even less sense when you realize how often the Supreme Court has cited  blog posts! I seem to recall that Kennedy has done it before (don’t have time to check).

I think what Kennedy misses, most importantly, is the first person to actually get it right was Tom Goldstein at SCOTUSblog–an organization which the Court denies press credentials.

The Court should take the lesson from June 28 that it should make it easier for the press to obtain opinions so the public gets the right message. Instead, I gather the Court will go the opposite direction, and keep its byzantine procedures in place.