Is the US Supreme Court as independent and impartial to the media as most people think?
A quick poll among my friends say yes. Tim Cook says no.
I’ll be honest, when I started Cook’s chapter (Governing With The News, Chapter 6- Beyond the White House) about the media’s integration into the three branches of government, I was a little skeptical. Yeah, it made sense to me that there would be massive media involvement in the bureaucracy and congress. But the supreme court? They’re supposed to be the beacons of independence. They’re supposed to make their decisions purely on their own, away from the pressures of public opinion and the media. They’re too prestigious to be influenced. Right?
Tim Cook changed my mind.
As Cook explains, by and large the Supreme Court has very few direct interactions with the media. There are no cameras within the chamber, decisions are made in private, and many justices have refused to ever speak to the reporters. But they do interact with the media. And they do so along two main lines: the release of individual opinions directed at the public and the press, and through the cultivation of their own ideological desires and images.
I found Cook most convincing in his argument about the opinions justices release following certain cases. One example in particular won me over. Cook described the sequence of opinions that were released following the Engle vs Vitale ruling. After the media failed to fully cover the opinions of the majority, Justice Tom Clark (who was in the majority) openly criticized the media’s coverage in a public speech in San Francisco. He wasn’t happy with the media’s coverage of the ruling, and he criticized journalists in his speech and urged them to report rulings more accurately. Yes, this was over forty years ago and times have changed, but this shows a direct judicial awareness and consideration of the media.
But why do the justices care?
A study published in the American Journal of Political Science argues that justices want to remain in a positive public light, and even base their rulings accordingly. The study, How Public Opinion Constrains the U.S. Supreme Court, further solidifies Cook’s claims of non media aloofness of the judiciary. The study’s author, John Casillas of Cornell University, compares years of public opinion data, court rulings, court approval ratings, and data on social pressures, and comes to the conclusion that the court has a vested interest in public opinion.
Casillas explains that though the Supreme Court operates as an institution intended to remain neutral, they must maintain public support and perception as an independently minded institution. The study found that among cases of national salience, the justices more frequently remained independent from popular opinion surrounding the case, and followed their own ideological stances. In cases that were not nationally salient, the court remained quite closely aligned with popular opinion. This proposes an interesting contradiction.
You would think the justices would want to concur with public opinion in cases where the largest portion of the public would pay attention. Casillas argues that justices assert their own ideological interpretations in more publicized cases as a means to define their individual public images. He further argues that by doing so, they affirm their public interpretation as a body separate from public opinion.
In other words, the justices become more independent when the media and public are watching more closely. In non-salient cases, Casillas explains that concurrence with public opinion is much higher. Casillas elaborates that as expected, when the court rulings correspond with public opinion, their approval rating is much higher. Since the majority of the courts cases are non-salient, and the rulings on such cases closely correspond with public opinion, the court is able to main recurrently high approval ratings. Casillas correlates this finding with a direct desire to maintain positive perception and press on the behalf of the court.
This study acts as a major bolster to Cook’s argument. Casillas makes it clear that like Cook argues, justices appear to be wholly free of the media, but statistically are not. They consider public opinion in their rulings, and as in the Engel v Vitale ruling, critique and utilize the media as tool to respond to negative public perception.
Cook explains that following the negative perception and coverage of the majority’s ruling in the Engel case, the opinion released by Justice Clark’s in the subsequent case was very obviously influenced. Clark wrote in much clearer language than before, and was far more straightforward than the Engel ruling which he claimed the media didn’t interpret properly. Clark clearly had a media agenda in mind. He wanted his ruling, which was in the majority, to be perceived accurately. Following the release of Clark’s media-tailored opinion, Cook explains that the news media coverage was much more balanced between the majority and minority opinions. Cook’s explanation and Casillas’s study make it pretty clear that the Supreme Court is considerably more media aware and interested than most believe.
In recent years, media influence on the court has received particular attention following its ruling on The Affordable Care Act.
A piece from The Poynter Institute cited the media as an important influence on the court’s ruling on the case. The piece claimed that Justice John Roberts decision to uphold the act was likely influenced by the media’s close coverage of the case. Roberts’ position changed during the case’s development and many believed that his decision to rule in favor of the Affordable Care Act stemmed from his perception of public opinion.
A podcast from On The Media further examines media influence in the Affordable Care Act’s ruling. In the podcast, Dahlia Lithwick, a writer for Slate references the justices’ performative nature throughout portions of the case.
She argues that as one of the most closely watched Supreme Court cases in many years, the justices were acutely aware of the case’s publicity. But more than just being aware, their actions were affected in response to the media presence. Litwicks claims were not statistically substantiated like Cook’s or Casillas’s, but they do further bolster their argument.
Lithwick is a court and law correspondent for Slate. She’s familiar with the Supreme Court and has a deeper degree of knowledge about it than most of the public. The fact that she would be among the ranks arguing that the Supreme Court is influenced by the media is not then surprising. She works directly with their rulings and, unlike most, she must keep a close eye on more than just the nationally salient cases. Though her claims are not necessarily on the same wavelength of Cook and Casillas’s, they do lend them some modern credibility.
If someone were to hear Lithwick’s description of the court’s behavior without having read Cook’s argument, I’m not sure how penetrative her argument would be. Yes, listeners would likely look at the Supreme Court through a new lens for a brief moment. But I think deeper analysis like Cook’s and Casillas’s is needed to fully comprehend how justices consider the role of the media. For they do consider the media. Many people may not see it, and the court definitely does not advertise it, but they do. And they do so because they’re part of an important governmental body. They’re in the public’s eye, and as Cook and Casillas explain, they take this spotlight into consideration and interact with the media accordingly.