Abortion, Eviction, and More: How the Media is Wrong on SCOTUS
The following post expresses the opinions of its author, and is not indicative of the views of NU Political Union or its board.
It has been a rough year for the Supreme Court. A September 2021 Gallup poll showed an all-time low approval rating, with only 40 percent of Americans saying that they approve of the job the Court is doing. Some may argue that this can be attributed to the Court acting in increasingly partisan ways.
Yet, there is perhaps an alternate, simpler explanation. Public knowledge of the Court is dismal – for example, in 2013 only 33 percent of citizens knew that there were three women on the Court. The average citizen is clearly not poring over or even reading Court decisions. Instead, they likely get their information about the Court from media coverage. How the media covers Supreme Court decisions has a significant impact on how citizens react to and accept them. And the media has been doing a poor job at covering the decisions.
For example, the Supreme Court struck down the Biden administration’s eviction moratorium in September. The moratorium was challenged on the grounds that the Public Health Service Act did not grant the Center for Disease Control (CDC) the power to impose an eviction moratorium. The relevant part of the statute lists actions the CDC may take to prevent the spread of diseases, such as inspection, fumigation, disinfection, and pest extermination, and then states that it may take “other measures, as in [their] judgment may be necessary,” which the CDC argued included an eviction moratorium. The majority opinion argued that interpreting the statute to allow for an eviction moratorium would be overly broad and grant the CDC unprecedented and overly broad authority, in which almost any action could be justified. An eviction moratorium is unlike any of the other measures listed, and the Court stated that such powers would require more explicit authorization from Congress.
The Washington Post’s article on the decision took 13 paragraphs to even mention the Public Health Service Act, the statute that was central to the case. When it did, it only dedicated three sentences to explaining the majority’s opinion, omitting any of the reasons provided for why such an interpretation of the statute would be overly broad. CNN’s coverage did not even mention the statute by name; the only reference to it was a quote from the majority opinion which described it as a “decades-old statute,” appearing hallway through the article. Rather than discuss the legal reasoning for the decision, the articles predominantly summarized the context around the case, reported on how key stakeholders felt about the decisions, and described how the decision would affect those who may be evicted. These are, of course, important issues that deserve attention and reporting. However, it seems bizarre that front-page news articles which report on legal decisions are largely devoid of what the legal questions and reasonings behind said decisions actually are.
A similar phenomenon can be found in reporting around the denial of the injunction of Texas’s abortion law. The Court’s decision stated that an injunction requires that a challenge is “likely to succeed on the merits;” however, the Texas law presented “complex and novel antecedent procedural questions” such as whether courts can enjoin laws rather than individuals, as is typically done. The New York Times only spent a paragraph covering the majority decision, stating that there were complex and novel questions without explaining what they actually were. It then spent the next nine paragraphs quoting the dissents. Moreover, it did not quote from the parts of the dissents which tackled the substantive legal issues but rather, quoted the most inflammatory soundbites (e.g., Justice Sotomayor calling the court’s order “stunning”). CNN’s coverage similarly did not explain what the complex legal questions were and dramatized the rhetoric of the dissents rather than quoting their substantive content. On the other hand, Fox News spent almost the entire article covering the majority opinion, but only spent a few paragraphs at the end describing how Sotomayor’s dissent “[railed] against [...] the Gorsuch opinion,” rather than quoting parts of the dissents which challenged the legal reasoning in the majority opinion. Such coverage does justice to neither side and paints the Justices as bickering ideologues.
These are not isolated examples, but rather, part of a shift in how the media covers the Supreme Court. A study which compared media reporting of two cases decided fifty years apart (in 1956 and 2006 respectively) found that “rather than closely interrogating the Court’s work to determine whether particular analyses and results can be defended on legal grounds, contemporary reporting seems to proceed on the assumption that that question lacks salience—because we already know that the Justices’ political views and allegiances are the true drivers of Supreme Court decisions.”
This assumption and the subsequent omission of legal issues behind Court decisions is bad journalism. There are plausible and compelling arguments why certain Supreme Court decisions are motivated by political reasoning. None are so manifestly true as to justify burying the legal reasoning deep in an article within a few sentences, or in some cases, entirely ignoring it. To largely omit legal reasoning is to provide an incomplete picture of the story.
At best, the coverage is unbalanced as it does not give the Court an adequate exposition of their reasoning. At worst, the coverage is not only bad journalism, but it is dangerous. The legitimacy of the Supreme Court matters. Coverage which focuses on the perceived strategic incentives of the justices lessens support for the institution. Given the potential impacts of coverage which paints the Court as a politically motivated and outcome-driven institution, the media should at least provide the alleged outcome-neutral reasons for a decision, that being, the legal reasoning. To be clear, there are substantive grounds to view the court as outcome-driven and doubt its legitimacy. The media often does not provide these grounds.
Yes, there are a multitude of political, social, and moral implications of every decision the Supreme Court makes which deserve coverage. This coverage can be provided while still providing a complete summary of the legal reasoning of each decision, which is just as worthwhile, if not more. Yes, delving into the weeds of a legal decision can be challenging. This is no excuse, as communicating complicated issues without compromising accuracy is part of the responsibility and obligation of journalists. Yes, reporting on such matters can be deeply unsexy to readers and unlikely to attract as many clicks as appeals to emotion. But clickbait articles are not worth the legitimacy of the highest court in the land.
The media is not the enemy of the people but when looking at its coverage of the Supreme Court, it is certainly not its friend either. Journalists have enormous power in shaping public opinion around the Supreme Court. They subsequently have an obligation to report accurately and completely, if not to the institutions of our country, then at least to their readers. It is time for them to start acting like it.
"Supreme Court IMG_1062" by OZinOH is licensed under CC BY 2.0