GOVERNINGWorks (GWorks)—[00:00:38:04] Should the Supreme Court engage media more as media changes?

And so, what you have is a situation where the Supreme Court has a traditional press corps of the major newspapers, the major television networks—cable networks and the like—all of which are retrenching across the board. And it’s very easy to retrench with respect to the Supreme Court and say, ‘OK. We’re going to cover the Supreme Court with the same person who’s covering the Department of Justice. We’re not going to have a devoted Supreme Court correspondent. When we think the Court’s going to do something really interesting—an argument in the health care case—, then we’ll pay more attention to it.’

But, the level of coverage in the media is pulling back because there isn’t a corresponding increase in new media. There’s an increase in interest in the Court. But there aren’t other blogs emerging, other usenets. There’s not another body of people that is...it’s not just a question of being...serving as some sort of intermediary to the Court but just focused expertise on the Court, other than SCOTUSblog.

And SCOTUSblog now has such a first-mover advantage. The amount of money that I have put into it and that I put into it now—it now costs about $400,000 a year to run—is just a little bit hard for other folks to put into it.

Now, you can start a blog for nothing. And if somebody...and there have been other Supreme Court blogs that have…kind of started up. But, they quickly die because people have day jobs. They have other things that they need to do. And there isn’t an angle to make money at it. It’s just a kind of...it has to be a labor of love. And you have to find an appropriate sponsor. We’re very fortunate in our sponsorship from Bloomberg Law, which has a legal information service that it’s trying to highlight, so it’s a very nice fit for us.

The Court’s own Web site, as you say, you know, is now out there. It occasionally has very significant glitches, for example, taking 30 minutes to publish the Opinion in the health care case is a significant thing.

But, you know, they generally make the transcripts of the argument available very quickly after, which is a new thing. The oral argument audio is available the same week, which is a new thing. The opinions are almost always available almost instantaneously, which is a new thing.

But, what you don’t have is then the ability to take that...the Court doesn’t make any effort, and understandably doesn’t take any effort, to take that raw set of materials and convert them into something that people can more easily consume...that, you know, I take the Opinion and take it into two pages and really explain what it is that’s happening. And then the Court kind of changes so slowly that it is a long way away still, I think, from anything like televising the proceedings or consistently releasing the audio of the oral arguments and the decision hand-downs immediately.

[00:04:27:09] What about the Supreme Court and television in particular—televising the Court’s proceedings?

[00:04:32:09] I’m a big proponent of televising of the arguments and the decision hand-downs, when they announce the rulings. I think that the Court has legitimate concerns about what it would do to the proceedings. I don’t think it would change things a lot. I do think it would reduce the anonymity of those of them who want to remain more anonymous. Some of them are out doing book tours and so, they’re not trying to remain anonymous.

But, on the whole, I just think that’s too bad. You...even if every public seat were occupied by only one distinct person for every argument during the Term, 10,000 people at most could come see the Supreme Court every year, assuming that they could afford to do it. And it’s really expensive to travel to Washington, DC. And so, it’s incredibly hard for Americans, you know, the three hundred million people or so in the country, to be able to see their Supreme Court in operation. And, I think it’s their right to see it.

And the Justices believe that their work product speaks for itself. And that’s true. But, there are other parts of the process that are public. And, if the Court is going to have a public hearing and a public decision time, I don’t think that, given the evolution of technology, it’s fair to say that only those people who can manage to be in the courtroom get to see it.

So, I think, eventually, that view will win out. But it’s...the Court really treasures the fact that it changes slowly, doesn’t overact to situations, and so we’re probably at least 20 solid years before the Court does that.

[00:06:13:07] Is there an institutional—even Constitutional—argument that the Supreme Court ought to be more accessible?

[00:06:18:07] Well, I think you have to distinguish Constitutional principles from Constitutional rights.

If you were to say, ‘Is there a First Amendment right of either Americans to see by television or the media to publish by video the proceedings of the Supreme Court?”, I think the answer is clearly, ‘No.’ That’s not a proceeding...the First Amendment requires that the proceedings be open but not that they be electronically distributed.

On the other hand, if you say, ‘Alright. Let’s not make a federal case out of everything. Let’s just talk about what’s most consistent with the Constitution and the things that we value very highly, I do think the First Amendment points in the direction of saying, ‘This is something that the Court ought to do.’ That letting people see the Judiciary, and the highest court in particular, in operation and what it’s doing and how it’s behaving, in a very important part of the process, when you’ve already decided it should be public—it obviously doesn’t extend to the private deliberations of the Justices—but the Court is a public place that the better view is that the Constitution...it’s more consistent with the Constitution to publicize the proceedings.

Now, there’s the separate question of whether the Constitution permits Congress to pass a law requiring the Supreme Court to televise its proceedings. This is a difficult and unresolved question. My view, and I’ve testified about this, is that the Constitution does permit it. It’s like...the Congress passes the law about when the Supreme Court’s Term starts and stops. And, Congress can set the number of Justices. It actually can be more involved in the operation of the Court than people realize.

But, I just think it would be much better, if Congress didn’t pass the law just because it’s better for one Branch to intrude on the operations of the other. But, a couple more cases like the health care case and continued resistance from the Supreme Court and it could well come to a head.

[00:08:33:29] What is a citizen’s obligation to understand the Supreme Court?

[00:08:38:29] Well, I think that the Court does have an expectation that the citizenry will, in a kind of civic sense, really make an effort to understand what it is that the Court is doing. And that’s increasingly important in an era of, you know, cable news kind of spinning what it is that the...and the political parties spinning what the Court is doing as itself partisan.

The Court is in a very difficult spot because it doesn’t have, unlike the White House and candidates and that sort of thing, it doesn’t have an active press effort. And there are very few people who are invested in the idea of just protecting the Court as an institution because the Court’s inevitably going to disappoint almost everybody. It’s going to do things that anger almost everyone. And, at that point, people are going to want to criticize.

And so the difficulty is that, when the Court does something with which you agree, that’s only because the Court, ‘Got it right.’ And when the Court doesn’t something with which you disagree, then that’s because they’re a bunch of hacks—not that you are wrong.

And so, the Court’s kind of public reputation is a bit of a one-way ratchet in the wrong direction. And in an era in which media participate in tearing institutions down rather than building them up, the Court has...is very exposed.

Now, it is wrong for the Court to believe, to the extent it does, that this could be resolved by people just reading the Opinions more closely and not believing the spin because, you know, when you’re a Justice of the Supreme Court, it may be possible to lose sight of the fact of how technical these questions are and the level of rhetoric that’s involved. I mean, the health care opinion is almost 200 pages long, right? And the idea that an ordinary American, though it affects them tremendously, will actually go and read and understand it, is inaccurate.

And so, having a good set of intermediaries, who can help with that process, who can make the Supreme Court more accessible, who are devoted to defending the institution, even when if you don’t agree with a particular decision, I think is important and is one of the principle roles that the blog plays. And that is, the Court does lots of things that I don’t agree with. But, we still have...just to give you an example, I was...I Second Chaired Bush versus Gore for Al Gore...but we have a basic faith in the place and view ourselves as kind of specially capable of helping people understand what the Court has done and make their judgments, not let us tell them what they should think about the Court’s decisions.

And, you know, this is...I nonetheless think that the...if the Court were to televise its proceedings, faith in the Court would go up not down because there’s this constant barrage of claims that the Court is, you know, a bunch of Democratic appointees going to the left and Republican appointees going to the right. And if the public...we’re a very visual culture. I don’t know if this piece will be interesting to people, what I have to say. But to the extent it does, is, it is more interesting to watch it than to read it, even though the information being conveyed is just a set of words—not me juggling. And for people to be able to watch the Court’s arguments, which lots of times are snooze fests, but to appreciate the seriousness with which all of them take the job, the balance that they each try and bring, the hard time that they give to everybody, would I think combat the kind of partisan, media-driven impression that the Justices are not taking their job in a...you know, coming at it in a truly judicial capacity.

—End of Part Three—

GWorks Interviews: Tom Goldstein

Part One: That Guy With the Web Site

Becoming a Supreme Court litigator

Part Two: SCOTUSblog—Without Papers

Founding a Web site dedicated to

the Supreme Court of the United States,

the site’s evolution and the challenge of

covering the Court without a press pass

Part Three: Courting Media

What the Court does and might do

in a changing media environment

Part Four: To Your Health

The Supreme Court decision

in the last Term’s health care case—

understanding the Court through a case

(National Federation of Independent Business v. Sebelius)

Part Five: Airing|Erring

How media (mis)understood

the health care decision

Part Six: Limits

Is the Supreme Court’s last Term

a sign of a new willingness to limit

Federal Power, what role will the Court

play in the coming election and how

can we best understand the Court

For more interviews,

please visit GWorks Interviews

EDITOR’S NOTES

GWorks Interviews: Tom Goldstein was filmed Wednesday 25 July 2012 in the offices of Goldstein & Russell, PC in the District of Columbia. GWorks would like to thank Mr Goldstein for his generous participation and Max Mallory for his work to make this interview happen.

Photo: Tom Goldstein. Courtesy Tom Goldstein.

Photo: SCOTUSblog. Courtesy SCOTUSblog.

1 Tom Goldstein is a founding partner of Goldstein & Russell, PC, a Washington, DC law firm that focuses on Supreme Court litigation. He is also Publisher of SCOTUSblog, the Web site he founded with Amy Howe, Mr Goldstein’s wife, law partner and SCOTUSblog Editor.

GWorks Interviews is a series dedicated to exploring governance issues of interest with persons given to thinking about and having relevant experience. GWorks invites a GWorks Interviewee to respond in depth to questions. GWorks does not edit the substance of what an interviewee says. GWorks edits GWorks Interviews only for editorial and technical considerations including style, length and productions issues. For more, please visit GWorks Interviews.