Dispatches from the Creation Wars

Defending Scalia

I know I’ve spent a fair amount of time lately criticizing Justice Scalia about things he has said in his recent appearances, but there’s one thing he said that is being attacked on this blog that I think he should be defended about. Will Bunch, owner of the Attytood blog, says that Scalia holds the media in contempt because of this comment:

Scalia expressed disdain for the news media and the general reading public and suggested that together they condone inaccurate portrayals of federal judges and courts. “The press is never going to report judicial opinions accurately,” he said.

And Bunch, based on that, says that Scalia holds in contempt, “The news media, which he complains — without offering any evidence — does a poor job of reporting on the judiciary.” But on this, I think Scalia is pretty much dead on. Anyone who has followed constitutional law in any detail knows that he’s right. All of the same problems we see in the media on other issues is true in their legal reporting too – obsession with celebrity, oversimplifying, casting the two sides into simplistic good guys and bad guys, and so forth.

We’ve all seen newspaper articles time and time again that tell you that this decision may have been in favor of a big corporation or against a labor union, with virtually no discussion of the actual legal issue involved (and we’ve seen special interest groups do the same thing, telling us that this or that nominee for the bench has voted “for big business” or “against injured people” some percentage of the time, with no discussion at all about whether those votes were justified or not).

We’ve all seen the ridiculous media focus on Anna Nicole Smith’s case going before the Supreme Court. Did you ever see any discussion of the actual legal issue in the case? I don’t recall ever seeing any. They told you what she wore, they told you whether she won, but they told you virtually nothing about the substance of the case or the ruling. They’re good at giving you winners and losers. For example, when the Raich ruling came down, they could tell you that medical marijuana users lost. But you would have thought that the judges only had to decide “Is marijuana good or bad?” Virtually no discussion of the fact that the case really involved the interstate commerce clause and that the fact that it involved marijuana was really irrelevant to the outcome.

The same is true in science, of course. The science reporting in most of the mainstream media is horrible. The articles about any new scientific discovery read like breathless press releases from a junior PR flak – “this changes everything we thought we knew about (fill in the subject).” There are exceptions to these rules. Linda Greenhouse generally does a pretty good job of legal reporting in the NY Times, so does Nat Hentoff in the Village Voice. And if they can get Carl Zimmer to write the article, the science reporting improves dramatically.

But as a rule, the media does a lousy job on these issues where specialized knowledge is required to report on them accurately. And Scalia is not wrong to be bothered by the fact that “people understand the courts through a news media that typically oversimplifies and sensationalizes.” There’s simply no doubt he’s right. Now, I think he’s wrong when he points to the internet as another source of the same problem.

Yes, there’s a lot of bad internet commentary out there, but so what? One of the major benefits of the internet, particularly in this area, is that it has fostered so much interesting and serious legal discussion that would not have otherwise existed outside the law journals. The blawgosphere, as it’s sometimes called, has become a forum for fascinating legal debates between sometimes very prominent scholars, and it provides the opportunity to do so without the several months lead time required for a law review article to be published.

We now get instant analysis of court rulings, available to anyone who is interested, and unlike the mainstream press reports these are written by people who actually understand the law. One of the first things I got involved in after starting my blog was a multi-blog exchange about the 9th amendment that included Feddie and the gang at Southern Appeal, Eugene Volokh, Randy Barnett, Stephen Bainbridge, Larry Solum and other serious legal scholars. That’s an exchange that could have happened nowhere else, and it’s easily accessible to anyone interested in reading it. That’s a new medium that ought to be celebrated, nor derided.


  1. #1 RickD
    October 26, 2006

    Dahlia Lithwick has done a good job reporting on SCOTUS issues for Slate. Outside of blogs, that’s about all I think I’ve seen in recent years.

  2. #2 ruidh
    October 26, 2006

    There are a few very talented SCOTUS reporters out there. Linda Greenwood of the Times and Nina Totenberg of NPR come to mind. Whenever a significant decision is announced I seek out these two to understand it.

    But Scalia’s statement is true in general. It’s just not as universal as he has presented it.

  3. #3 steve s
    October 26, 2006

    ProfessorBainbridge is good, when he’s talking about law, and not his Hewitty political opinions. (Example: “Today Bush punched a 6-year-old in the throat–but the Democrats would have been worse!”)

  4. #4 doctorgoo
    October 26, 2006

    I’ve found that writ.news.findlaw.com always has great legal commentaries.

  5. #5 DuWayne
    October 26, 2006

    Did you ever see any discussion of the actual legal issue in the case? I don’t recall ever seeing any.

    Yes, on NPR. Though they also talked about what she wore.

    Nina Totenberg does a pretty good job of explaining, or getting scholars of particular legal issues to bring it into a laymens level of understaning. Even there, I would guess a lot can be lost in translation, but she does a great job of trying to break it down. Her analysis of the Roberts and Alito hearings was very helpfull in understandig what the hell was going on. C-span is another good source, though it is arguable whether C-span is a “major” media outlet.

  6. #6 Ed Brayton
    October 26, 2006

    Yes, Nina Totenberg generally does a good job of reporting, but I guess I expect that from NPR as opposed to the networks. That’s their niche, having real scholars on for relatively long periods of time to discuss an issue.

  7. #7 cats_are_snakes
    October 27, 2006

    I can’t believe I agree with Justice Scalia on anything, but I am with him (and you, dear author) on this.

    As a former criminal defense attorney, I know from personal experience that I would never consider giving any kind of statement to the press until my case was over. The higher the profile of the case, the more true that became. That unfortunately meant that the prosecutor could give the case whatever spin she/he chose.

    Outside of the realm of criminal law, I saw my case reported on just this week on the front page of a newpaper. It reported a ruling BEFORE I WAS INFORMED. And it included a grossly inaccurate version of the facts from the other side’s point of view. Am I angry? Very. But I didn’t want my client making admissions to the press while they could be taken out of context.

    Without the extended coverage NPR provides, modern “news bite” outlets cannot report complex legal issues in a way the public can understand. Heck, they report that defendants are found innocent; there is only “guilty” and “not guilty”. “Innocent” is not even on the table.

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