What is the public perception of the U.S. Supreme Court? How are these views constituted? The Court’s work in recent terms has been squarely in the public eye. This interest has carried over into the ongoing political skirmish over the vacant seat created by the death of Justice Antonin Scalia. Scholars, too, have increasingly turned to understanding the Court’s public role in our political system. This can be witnessed most clearly in re-invigorated theoretical and empirical debates about the nature of judicial legitimacy, but also in other work regarding whether the public constrains Court decision-making. Richard Davis’s volume, Covering the United States Supreme Court in the Digital Age (2014), steps into this fray in timely fashion and from a unique angle, orienting our attention to ways in which the Court is portrayed by the national news media during a period in which the judiciary’s relationship with the press is evolving.
The work is a valuable addition to literature on media coverage of the Court. It encompasses scholarship from a wide range of academic experts and professional practitioners on varied topics. One of its underlying currents is that the Court’s public standing is itself a function of its media coverage. Such coverage is too often a missing ingredient in the literature on public attitudes toward the judiciary. Laura Moyer and Matthew Thornton, who contribute one of the volume’s chapters, make the cost of this incomplete portrait explicit. The authors explore judicial perceptions of the fourth estate but also, and more interestingly, demonstrate a relationship between coverage and confidence in the Court for at least part of its history. The insight that the media plays an important yet under-examined role in shaping public perceptions of the judiciary not only runs throughout here but also squares with research in the positivity tradition, which draws a link between exposure to the institution and loyalty to it (e.g., see James L. Gibson and Gregory A. Caldeira, Citizens, Courts, and Confirmations, 2009). In other words, it is evident that support for the Court is a function of its media portrayal, but scholars have at best a limited understanding of this portrayal.
As Davis’s introduction points out, the institution is at once highly secretive and yet very public. It is this tension between the Court’s desired role and the one it is compelled to play as a national policymaker that animates, informs, and indeed harms its media coverage. The book is explicit in situating its study of media coverage in the modern era, in part because other ground has been tread more thoroughly, including by the editor himself (Richard Davis, Decisions and Images, 1994; Justices and Journalists, 2011). The insights the book provides about this changing landscape are of course short of comprehensive, but still quite diverse. This is reflected in the range of experts, topics, and approaches on display here. Particular justices come in for study, as do news media practices on the Court beat, the semi-symbiotic relationship between the Court and the press, and the influence of coverage on popular opinion. The committed reader will find much to take away.
In terms of the book’s unifying themes about the new media landscape, a few common threads emerge. The first is that the news organizations with an interest in the Court are changing in composition. A number of contributors note the increasing role of blogs and social media in shaping coverage of the judiciary. The well-known SCOTUSblog provides several windows of insight to the authors here. The blog’s history demonstrates that the coverage provided by some new media organizations is exemplary, that many others pale in comparison, and that—according to Slate’s Dahlia Lithwick, who pens a chapter—the Court’s obstinate refusal to credential new media institutions is a scandal. A second theme is that students of Court coverage can learn much from reporting on the 2012 Affordable Care Act decision. This was, all at once, the media’s best and worst moment. While coverage was robust and oftentimes informative—again, SCOTUSblog’s reporting receives praise—it was also inaccurate. In the quest to report quickly, CNN and Fox News famously issued incorrect accounts. The case illustrates another prominent theme: the demanding time pressures under which reporters in the digital age operate. These demands are not eased by the Court’s antiquated (and possibly anti-media) traditions. As a result, a final important theme of the book is a familiar lament—that coverage of the Court, even in the information age, is limited, inaccurate, and altogether poor. This refrain has played a central role in the literature on Court coverage for decades.
One of the many questions raised by the book is: Why does the press put up with its subservient role? Much of the poor quality of media coverage can be traced back to the Court’s practices. Though Davis calls the relationship between Court and press “symbiotic” in his introductory chapter, this seems like a generous characterization. He relates an illuminating anecdote about an intrepid ABC News reporter who once fished a piece of paper from the fireplace in the Court’s conference room. The justices contemplated banning the reporter from the building. Ultimately Justice John Paul Stevens argued that the reporter would not risk the Court’s goodwill by publishing what was found (he was correct). This anecdote provides only an incomplete answer to the question of why the press remains unwilling to offer more critical coverage of the institution; after all, it is not cowed by the threat of garnering ire from Congress or the President.
The other ingredient lacking from the book is detailed consideration of the content of coverage. This remains a significant gap in scholarly understanding. This volume, in supplementing other work on media coverage of the Court, illuminates reporting on the Court beat, the volume of coverage afforded to the institution, the relationship between the Court and the press, and the potential consequences for the Court. It also adds to the lament referenced earlier, that coverage is lacking and poorly balanced. This issue has proven harmful to the Court-press literature. Scholars have often been content to evaluate the accuracy of coverage and degree while eschewing the examination of content. And the literature has largely failed to situate coverage within a systematic framework for understanding the Court’s public role. These shortcomings do receive some necessary pushback here from Terri L. Towner and Rosalee A. Clawson, who contribute a chapter on framing of a 2009 affirmative action case, Ricci v. DiStefano. But this is not enough. Perhaps the most consequential piece of the Court-press equation is what the media says, not whether the frequency with which it does so is adequate. As Joseph Daniel Ura argues in one chapter, “the public image of the Supreme Court age and its choices is much more a product of the media than of the elected branches of government” (p. 168). Unfortunately, scholars have little systematic understanding of coverage content, a fact that is not remedied here.
Nonetheless, this volume is a nice addition to the small but important body of scholarship on the relationship between the Supreme Court and the press. This is particularly true as scholars increasingly turn their attention to the judiciary’s public constituency. The chapters, given their diversity of subject matter and method, hang together uneasily at times, but the book is ultimately strengthened by the array of perspectives and expertise it presents the reader. Its willingness to consider important theoretical and normative questions surrounding the judiciary, press, and public recommends it as a foundational building block for future work that considers the modern Court’s public role.
