From The Law and Politics Book Review

Vol. 9 No. 1 (January 1999) pp. 24-26.

TELEVISION NEWS AND THE SUPREME COURT: ALL THE NEWS THAT’S FIT TO AIR? by Elliot E. Slotnick and Jennifer A. Segal. New York: Cambridge University Press, 1998. 264 pages. Cloth $59.98, paper $19.95. ISBN 0-521-57264-9.

Reviewed by David M. O’Brien, Woodrow Wilson Department of Government and Foreign Affairs, University of Virginia. Email: dmo2y@virginia.edu.

 

Building on their research reported in convention papers and journal articles in the 1990s, Professors Slotnick and Segal integrate that work in what will certainly remain a definitive book on the subject of television coverage of the Supreme Court. This well organized and well-written book is far superior to other works focusing on media coverage of the Supreme Court (Davis, Devol, Graham, and Katsh). That is because Slotnick and Segal analyze the subject from just about every possible angle, employing a variety of methods and providing different levels of analysis.

Chapter 1 begins with a review of the literature and prior research, establishing that only about 20 percent of the Court’s decisions are reported by television. Chapters 2 and 3, then, focus on the environment of reporters who cover the Court. More precisely, Chapter 2 deals with how reporters view their role and compares the views of those hold law degrees with those who do not. The chapter also considers the influence of interest groups on reporting and the special problems of Supreme Court reporters’ limited access to the justices. Chapter 3 turns specifically to television coverage of the Court, the institutional constraints on coverage, the "end of the term crunch," and the controversy over cameras in the courtroom. Noting the diminishing number of full-time reporters (ABC’s Tim O’Brien stands alone as a full-time legal correspondent for a major television network) and the diminishing coverage of the Court in the late 1980s and 1990s, Slotnick and Segal lament commercial television’s increasing preoccupation with providing "infotainment."

Moving from that broad portrait of television coverage, Chapter 4, "A Tale of Two Cases," zeroes in on television coverage of two leading and controversial decisions--the 1978 affirmative action ruling in REGENT OF THE UNIVERSITY OF CALIFORNIA V. BAKKE and the 1989 abortion ruling in WEBSTER V. REPRODUCTIVE HEALTH SERVICES. Both received 60 broadcast stories and Slotnick and Segal analyze them according to (1) the type of story (news report vs. commentary) and (2) the nature of the coverage at various stages, ranging from the lower court’s decision to the appeal and the Court’s granting of review, to oral arguments and the announcement of the Court’s decision, and, finally, to reactions to the decision and "spin doctoring."

In order to balance that chapter’s focus on television coverage of two highly newsworthy cases, the next chapter tells "A Tale of Two Terms: The 1989 and 1994 Court Terms." Here, Slotnick and Segal aim to examine television’s coverage of "typical terms"--what is reported, which cases and at what stages. The authors also offer an analysis of the length of the stories reported, their placement in news broadcasts, and the type of substantive coverage given.

Chapters 6 and 7 deal, respectively, with television coverage of the Court’s decisions on granting review, on the one hand, and decisions on the merits of granted cases, on the other. The examination of TV coverage of the Court’s agenda setting and docketing decisions, along with denial of review, concludes, not surprisingly, that TV coverage is "cursory at best" (p. 210). Applying a multivariate model to the 128 decisions covered in the 1989 term in order to identify and predict networks’ decisions about which cases are reported and how much air time they are given, Slotnick and Segal found (1) that only about a quarter of the Court’s decisions that term received any coverage and (2) that the key to determining what cases are covered and how much coverage they get is, simply, "It’s the Issue, Stupid!" (p. 212).

Chapter 8 concludes with a summary of their findings and three recommendations for reform that Slotnick and Segal think might improve television coverage of the Court and its work. Their three proposals are: First, the justices should make themselves more available to reporters with respect to illuminating their decision-making process. Second, the Court should make changes in its decisional calendar in order to avoid the "end of the term crunch." And, third, the Court should open its doors to cameras in the courtroom when the Court is in session, hearing oral arguments and announcing its decisions.

Having already commended the soundness and high caliber of the authors’ empirical analysis, minor quarrels with their normative recommendations may be offered, nonetheless. As for their first proposal, which registers an old complaint of some reporters: a number of the justices are accessible and willing to clarify the Court’s decision making in general terms, if not with respect to deciding specific cases. In other words, this problem is more apparent than real. As for changing the decisional calendar in order to avoid the crunch at the end of the term: any change appears unlikely and, in any event, would probably not end the crunch in the last weeks of the term, precisely because of how the Court conducts its business and the process of opinion writing. That point is underscored by the continuing crunch at the end of each term even though the Rehnquist Court decides only about half the number of cases annually decided during the Burger Court years (O’Brien). Finally, opposition within the Court to having cameras in the courtroom has grown rather than diminished during the last decade. Testifying over a year ago at a hearing before the House of Representatives Appropriations Committee, for instance, Justice David H. Souter emphasized that only "over his dead body" would cameras be allowed into the courtroom. The Court has repeatedly rejected broadcasters’ requests to televise the investitures of every justice sworn into office since Justice Anthony Kennedy in 1988. Historically, the Court has been slow to adapt to technological change, whether the introduction of typewriters, photocopiers, and computers into its building. Concerns about commercial television’s use of 60-second bites of oral arguments also remain, while the justices’ concerns about their privacy and security have grown.

The controversy over cameras in the courtroom, like the subject of television coverage of the Supreme Court itself, however, may well wane, becoming passe. In reviewing this book (as an aging "baby boomer" who belongs to one of the first generations to grow up with television) I am struck not by how television coverage has declined, but by how much less important television coverage of the Court has become over the last decade due to the Internet. Since 1990, when the Court started Project Hermes, releasing its opinions in digital format, its opinions on the days they are announced are widely available on the web, at sites such as Cornell University Law School’s server (www.law.cornell.edu). Williamette Law School provides to subscribers the service of emailing summaries of the cases granted and decided within hours of their announcement (www.willamete.edu/law/w101). North-western University’s Medill School of Journalism maintains a useful site with summaries of all cases granted, along with the lower court decisions, in the current term (www.medill.nwu.edu/docket/). Political scientist Jerry Goldman provides the no less useful public service of putting the oral arguments in leading cases on his OYEZ site (www.oyez.nwu.edu). Alas, these are available only after the term is over. It, therefore, remains for the Court to make its oral arguments, like its decisions and opinions, available on the web via an audio feed in real time, and for them to be archived. If the Court would do that, it might put off the controversy over cameras in the courtroom, preserve the justices’ privacy, and make oral arguments truly accessible to the public. In doing so, the Court would move technologically into the next millennium. The state supreme courts of Florida and Washington already do so. Regardless of when it does so, it is clear that the Internet--not television--will be the principal provider of news and commentary about, along with access to the work of, the Court in the next millennium.

REFERENCES

Davis, Richard. 1994 DECISIONS AND IMAGES: THE SUPREME COURT AND THE PRESS. Englewood Cliffs: Prentice Hall.

Devol, Kenneth, ed. 1982 MASS MEDIA AND THE SUPREME COURT: THE LEGACY OF THE WARREN YEARS. New York: Hastings House.

Graham, Fred. 1990 HAPPY TALK: CONFESSIONS OF A TV NEWSMAN. New York: Norton.

Katsh, Ethan. 1983 "The Supreme Court Beat: How Television Covers the United States Supreme Court," JUDICATURE 67: 6-12.

O’Brien, David M. "The Rehnquist Court’s Shrinking Docket." 1997 JUDICATURE 81: 58-65.


Copyright 1995