October 24, 2006

"It seems to me the reporting on that case was a lot clearer than the opinions."

You don't like my writing. Fine! I don't like your writing. Dahlia Lithwick talks back to Antonin Scalia.

41 comments:

Simon said...

I already debunked Lithwick's contention that Scalia "Scalia said, 'The press is never going to report judicial opinions accurately.'" in comments on this very blog, this very afternoon.

And I even found something on which I strongly disagree with Scalia while I was at it - on an issue where, horror of horrors, our hero not only adopts a balancing test, he has his finger on the scale in the wrong direction!

Fitz said...

Mountains and Molehills.

No Supreme Court Justice (much less any conservative) could argue with the Justices remarks. The press love a hoarse race and will (& do) make any opinion a win/lose –god guy/ bad guy contest.

Dahlia Lithwick conveniently adds the qualifier of the “judicial press”, when there is no evidence that either Justice limited his remarks to this specified branch of journalism. One assumes they meant headline, front-page, drive by media.

Revenant said...

some are speaking out boldly at closed events about issues that don't much concern the public but seem to bother them.

My god! People are speaking about issues that the public doesn't care about -- in forums not open to the public? Those rat bastards.

A Menken Moment said...
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Daryl Herbert said...

Lithwick wrote: But that doesn't mean the public has no right to be educated.

Right to be educated by the Supreme Court?

What a petulant leftist.

A Menken Moment said...

Fitz said:

The press love a hoarse race and will (& do) make any opinion a win/lose –god guy/ bad guy contest.

Something tells me the spelling is deliberate.

Joan said...

Lithwick says: If the justices have a beef with the way the media cover the Supreme Court, let them state it publicly and explicitly.

So why isn't Lithwick happy that the justices are talking about what they don't like? This whole piece struck me as goofy.

Paul Zrimsek said...

By the way, anyone looking for an example of superficial legal reporting focused mainly on how sympathetic the parties are could scarcely do better than this piece, by one Dahlia Lithwick.

Revenant said...

Wow. Nice catch, Paul -- that article perfectly refutes Lithwick's argument.

Maxine Weiss said...

.....Because it's not really about 'writing', now is it?

Read between the lines.

Extrapolate.

Glean.

This is all about anti-Italian bias.

So obvious, but we'll all pretend otherwise, right?

Peace, Maxine

JorgXMcKie said...

Jeez, Maxine, do you have to work at that, or does it come naturally?

Quick, Robin, to the Batmobile,

Jorg

Maxine Weiss said...

Shameless contrivance.

If you only knew who's really pulling the strings.

Love Maxine

FXKLM said...

Lithwick argues that the reporting was clearer than the opinions, but that completely misses the point. Scalia is accusing the press of being simplistic and superficial. Scalia seems to agree that the reporting is clearer. It's easy to be clear when you avoid discussing anything complicated.

stephenb said...

And Dahlia Lithwick wasted a seat at Stanford Law School to tell us that she is outraged that Scalia speaks at closed events on issues the public doesn't care about? I agree with Joan: this piece was goofy.

andrew said...

If you think Scalia is off base, go find any article on the case involving Anna Nicole Smith last year and tell me if the MSM actually discussed what the Court decided as opposed to whether or not the blond bombshell won or lost.

jinnmabe said...

What it always comes down to, in the end, is whether the justices care about the minority group whose rights are being violated.

When this passes for legal analysis, from a lawtalking [person] at a national magazine, is it any wonder that Scalia despairs of the press imparting an accurate understanding of judical opinions to the general public?

James said...

Look on this picture:


You'd have to look long and hard to find a civil rights plaintiff more deserving of empathy than George Lane. But then you'd also have to look long and hard to find five Supreme Court justices capable of manifesting empathy. Today is a triumph of mean-spirited grousing at the high court, all sung to the dolorous tune of "What do those handicapped people want from us anyway?"The Supreme Court finds accommodating the handicapped a hassle. - By Dahlia Lithwick - Slate Magazine, Jan. 13, 2004

And on this:


Eight years ago, after an auto wreck left him unable to walk, George Lane crawled up two flights of stairs at the Polk County Courthouse to face reckless driving charges. He says he will never forget the humiliation of having to drag his body up 30 tile steps. "Two law enforcement officers and county officials stood at the top and laughed," he says. ... Lane, 40, has been arrested more than 30 times and charges that include drunken driving, drugs and traffic offenses. No longer in a wheelchair, Lane now uses an artificial leg to walk inside the razor-topped fences at Brushy Mountain Correctional Complex, where he is serving time for slamming a fellow prisoner in the head with a crutch at a county jail. ... Courthouse employees who witnessed Lane's crawl in Benton, about 40 miles from Chattanooga, say that no one laughed and that he refused offers of help. In fact, Lane declined a judge's offer to move the hearing to a ground-floor room; he says he wanted to be treated like everyone else.[Bill Poovey of Tennessee's Associated Press, quoted in Covering George Lane - Mary Johnson, Jan. 12, 2004]

corporate law drudge said...

andrew said...

If you think Scalia is off base, go find any article on the case involving Anna Nicole Smith last year and tell me if the MSM actually discussed what the Court decided as opposed to whether or not the blond bombshell won or lost.



Linda Greenhouse NYT May 2, 2006:

"The Supreme Court on Monday gave the onetime Playboy Playmate Anna Nicole Smith a new day in federal court to try to prove that her late husband, 63 years her senior, intended to leave her a substantial share of his billion-dollar estate. The two had been married 14 months at the time of his death, at age 90.

In an opinion by Justice Ruth Bader Ginsburg, the court ruled unanimously that the dispute between Ms. Smith and her late husband's son E. Pierce Marshall was properly one for the federal courts.

The Supreme Court addressed itself only to the question of jurisdiction, leaving many issues open for consideration in the lower federal courts. Unless the two sides settle, which seems unlikely after 10 years of bitter litigation, the outcome ensured that the case would go on, perhaps for years longer...."

Pogo said...

I agree with Scalia. Most reporting on most news items, not just the law, is skewed to fluff and politics. That's why I read blogs.

Lithwick can buy ink by the barrel. So educate us rubes.

jeff_d said...

Lithwick is an idiot, as the sample posted by James so well illustrates. Still, I like the line about the reporting being clearer than the campaign finance opinions. I think Scalia would probably concede the point. (Of course, the O'Connor-Kennedy centrism Lithwick so admires is to blame for the incoherence of campaign-finance law.)

But Lithwick makes a mistake that's hard to fathom for someone with both legal training and experience covering the Court. She opines that "it is hypocritical in the extreme to criticize the constrained reporting" that results from not having same day access to video of oral argument.

Everyone who follows the Court, or appellate practice generally, knows that oral argument is a notoriously poor predictor of the outcome of cases. The idea that watching video of the judges at oral argument is the missing ingredient that would result in, say, Dahlia Lithwick being able to write competently about the opinions handed down months later, is absurd.

She needs to take the time that she would have spent poring over the videotape and use it to reread the opinions and the opinions in the court below, and force herself to understand what legal issues were (and were not) at issue. Then, she can write her story, have an editor cut out all the human interest crap and snarky personal attacks on the justices that have nothing to do with the decision, and, viola, she will have something good to publish.

Henry said...

In terms of self-refutation, I liked this Lithwickian line:

Editorial writers at the major papers were rightly offended, because by and large they read the opinions before writing about them.

By and large? By and large? Does that mean they read the opinions 80% of the time or 90% of the time?

I do think Lithwick has a good point about unclear opinions, but that's not the point of her piece. What Ann quoted is a one-off, not a thesis. Lithwick doesn't follow up and for good reason. You start grousing about unclear opinions and who knows, you might start sounding like a federalist.

Fritz said...

Leftists only see tangibles. Take poverty. The most recent Census figures are reported as how many more people live in poverty under George Bush. The real story is the intangible, 7,000,000 fewer people live in poverty because of Welfare Reform in the 1990's, and more importantly, the new benchmark bodes well for record lows for poverty in the coming years. The 2 previous recessions had US Poverty levels peaking at 15.3%, 15.2% respectively, this last cycle peaked at 12.7%, why the change? An intangible dynamic of marginal propensity to enter the workforce was affected by the cut off of income. This shift in supply not only had more people begin work earlier in the cycle, but also had the effect of adding extended work experience that lessened the impact of a recession, the old last hired, first fired llmic. WOW! You mean work experience at McDonald's has a benefit?

Troy said...

Simon... in today's climate you must now hate Scalia and Photoshop a Hitler mustache because he's obviously involved in the cabal to [fill in the blank]. Good God man! You can't merely disagree! Where's the wanton ad hominem?!?

Edward said...

You Republican apologists sure do like creating your own little echo chamber, don't you?

Can’t you see how vicious you’re being to Dahlia Lithwick?

Don’t you get tired of just patting each other on the back and agreeing smugly with each other?

This thread suffers from a terrible lack of balance, something that happens on too many of the Althouse threads.

Lithwick is correct that popular attention focused on the Supreme Court is only going to increase in the future, not decrease. The internet ensures that there will be more popular discussion of the Supreme Court, not less.

Scalia and the others had better get used to that, because it’s not going away.

If Scalia doesn’t like the coverage he gets in the popular press and on the internet, he’d do much better figuring out concrete ways to improve the interaction between the court and public.

As Lithwick herself writes, “taking potshots at journalists and the public from ballrooms serves no purpose.” She’s right. It serves no purpose at all, not even Scalia’s.

Scalia would be much smarter engaging the public in respectful discourse, the way Breyer and O’Connor have so successfully done recently.

The unresolved question in all this is whether Scalia is even capable of respectful discourse with the broader public, and whether he knows deep down that the public will reject his cramped reading of the constitution when they learn more about it.

I wonder how many of you have even read Lithwick’s column, or read it in its entirety.

Fritz said...

Edward Wrote: Scalia would be much smarter engaging the public in respectful discourse, the way Breyer and O’Connor have so successfully done recently.


When Breyer and O’Connor talk, they make me puke! They consider themselves as policy makers, I see them as Ruling Mullahs. Scalia eloquently speaks of the law, not policy. When O'Connor said, "I don't understand what all the fuss is about?" referring to international law cited in US Court decisions, get a clue Sandra Day!

Edward, ya know how when Chomsky speaks you get emotional following all the conspiracy theories? That is how we Scalia lovers feel when he elaborates on the beauty of the Law. Memorized by his intellect.

stephenb said...
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stephenb said...

edward said: You Republican apologists sure do like creating your own little echo chamber, don't you?

to which I reply:

This you call an echo chamber is bound to exist where people with similar views gather together. If you're unhappy with the echo in this chamber, may I suggest some others

Pogo said...

Re: "I wonder how many of you have even read Lithwick’s column, or read it in its entirety."

I did. I was tempted to agree with her until I read her other column, pointed out later. It strikes me that she writes in exactly the way Scalia criticized, then she complains about that critique.

I read Volokh, Althouse, Bainbridge and other law blogs when I want to understand the Supreme Court. Newspapers and Slate focus on fluff, until they get called on it.

Edward said...

Fritz: I don't like Chomsky, and I certainly don't like his conspiracy theories.

You're revealing your own recklessness and carelessness by attributing views to me that have nothing to do with my personal politics.

Even though I’m a Democrat, I get nauseous when admirers of the Clintons drone on and on about how smart they both are, as if praising their intellect can substitute for a defense of their policies.

Republicans and conservatives do the same thing with Scalia. It’s nauseating how worshippers of Scalia jabber endlessly about his “brilliance” and his “genius.”

You do this yourself when you say that people like you are “mesmerized” by Scalia’s intelligence.

Enough already!

Personally, I don’t think it’s a sign of intelligence for a powerful Supreme Court justice to ““take potshots at journalists and the public from ballrooms,” as Lithwick correctly describes Scalia’s recent stunt.

Henry said...
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Henry said...

Edward, does it not occur to you that what you're responding to is a powerful journalist taking potshots at supreme court justices? Apparently, Lithwick had you with "hello."

Why the "powerful"? Why the "ballroom"? You're using Lithwick's frame.

Paul Zrimsek said...

Personally, I don’t think it’s a sign of intelligence for a powerful Supreme Court justice to ““take potshots at journalists and the public from ballrooms,” as Lithwick correctly describes Scalia’s recent stunt.

Let's hear it for "respectful discourse"!

The Court and the press should both have to take their lumps like anyone else. And like anyone else, they're entitled to complain when their critics get it wrong.

Richard Dolan said...

What a silly thread this one has turned into.

Scalia and Alito got a little cranky about the reporting on the Court, and not for the first time. They (along with a majority of the Court) resist broadcasting the Court's proceedings because they don't want more of the sound-bite driven coverage typical of political reporting generally, and they anticipate (no doubt correctly) that coverage of that sort will be the result. That position is defensive, head-in-the-sand stuff. On its own terms, it hasn't got much to say for itself, and has the unhappy side-effect of fostering the notion that the Court thinks of itself as a cloistered priesthood performing rites of surpassing mysteriousness. Lithwick is absolutely right to take aim at such nonsense. And Scalia, who routinely lambastes his colleagues for imposing their own policy views under the guise of interpreting the constitution, should join her, since he ought to be just as scathing in his rejection of the "mystery cult" image of the work of judges and courts.

Alas, even Scalia and Alito, who are all for getting the Court out of the business of constitutionalizing the culture wars, are far less reticent about using the Court's powers to overrule political actors and impose changes in other areas of the law. One of the themes of Ann's "no exit" op-ed was that the exercise of political power by the SCOTUS is necessary, unavoidable and, to an extent, habit forming. Like any high ranking political actor(s) wielding power, judges are reluctant to give up that role, and have the same response to often nasty and personal criticism that other political actors have. Given that reality, Scalia's and Alito's gripes about the press don't make any sense -- like it or not, the political role the Court(s) have carved out for themselves isn't going to disappear, even if the Court accepts Scalia's invitation to get out of the culture wars business. That journalistic accounts of the Court's work product are often sensational, and rarely focus on the doctrinal details that ostensibly drive the Court's decision making, is just another way of saying that it's journalism. So what? Lithwick is certainly right that crankiness of the sort reflected by Scalia and Alito is no argument for insulating the Court(s) from the norms of openness now routine for the political branches.

Those who think that the Court often oversteps its proper role -- and that's just about everyone on this thread who takes a shot at Lithwick -- should slow down. Anything that demystifies the work of the courts is a positive good. More intensive coverage of the work of the courts can only help to strip away the pretense that, in wading into the culture wars and other controversial political topics, the Court is objectively "interpreting the constitution" rather than imposing the policy preferences of a majority of its members. What's the downside of that?

Pogo said...

Re: "Anything that demystifies the work of the courts is a positive good."

I don't think anyone is arguing against more intensive coverage of the work of the courts.

I'm arguing that Lithwick wrote a fluffy piece about a case, Scalia noted such pieces in his complaint about SCOTUS coverage, and then she complains he's bitching about being covered at all.

Nonsense. If she wrote non-fluffy pieces previously, I'd trust her criticism. Color me skeptical that she's shocked shocked that SCOTUS coverage seems unlearned and more like People magazine than, well, Althouse.

jinnmabe said...

That position is defensive, head-in-the-sand stuff. On its own terms, it hasn't got much to say for itself, and has the unhappy side-effect of fostering the notion that the Court thinks of itself as a cloistered priesthood performing rites of surpassing mysteriousness.

That doesn't sound like you're evaluating it "on its own terms" but rather on your or Lithwick's terms. It doesn't "demystify" the work of the courts to misrepresent such work to the public. Sure, it would be less mysterious and simpler for Lithwick to write "Scalia opinion, bad, Breyer dissent, good" but it wouldn't be more accurate or better. The article linked by Paul Zrimsek illustrates how her "dumbing down" of the opinion is just, well, dumb.

You act like the law isn't really complicated, the Supreme Court is just pretending that it is, to foster the notion that the Court a cloistered priesthood performing rites of surpassing mysteriousness.

Paul Zrimsek said...

Where were all you demystify-the-Court people when Harriet Miers needed you?

Simon said...

"More intensive coverage of the work of the courts can only help to strip away the pretense that ... the Court is objectively 'interpreting the constitution' rather than imposing the policy preferences of a majority of its members."

That is an unproven assertion that would need to work harder than it does even if this were a matter of first impression. But this is not a matter of first impression: we can look to the experience of CSPAN. Has the public's understanding of Congress' work improved since the availability of CSPAN? Has the quality of debate in Congress improved or gotten worse? Has the quality of Congress' output improved or gotten worse?

More and more, there are now the tools for any idiot with a PC to carefully edit video footage to obtain a de-contextualized quote that fits their preferred talking point. The youtube video I mentioned in comments last week -- which carefully sliced out thirty seconds of Scalia's ACLU speech that the creator thought would make Scalia look bad, ascribed it a totally false meaning, and beamed it live to the planet -- should stand as perfect proof of just how terrible an idea letting cameras into the courts really is. If I wanted to, I could take the video from the Scalia/Breyer debate on Foreign Law last year, carefully edit it, and make Breyer look like a blithering idiot. And if you give smart liberals armed with youtube and windows movie maker a live video feed from the court, will they use those tools to distort the meaning of words in order to take in dumber liberals who don't do their own research? You bet.

My view is that the court should not even have permitted same-day transcripts - the transcript should come out after the opinion. It's not that it's impossible to find the silver lining to cameras, it's that the benefits don't come close to outweighing the harms.

Fitz said...

Richard Dolan

“More intensive coverage of the work of the courts can only help to strip away the pretense that, in wading into the culture wars and other controversial political topics, the Court is objectively "interpreting the constitution" rather than imposing the policy preferences of a majority of its members. What's the downside of that?”

Well…in many ways I agree with you. The Court haven’t been objectively "interpreting the constitution” and it stinks to high heaven.

There is a potential downside however. That is the increased politicization of the courts erodes respect for the rule of law. The wear robes, literally sit “on high & rule from above” they meet and discuss there decisions in secret. All of this is for a reason… to seemingly insulate the court from the day to day fracas of politics.

I think Alito & Scalia still see some hope in bringing the Courts back to their position of applying the law and not making it.

If this is at all possible at this point (Ann & you seem to think not) then I would like to see it happen.

If its not possible then damn the torpedo’s and lets get a conservative majority and go hog wild.

Revenant said...

Can’t you see how vicious you’re being to Dahlia Lithwick?

Edward, I personally don't like Scalia either. I think he's intemperate and tends to pretend that his personal whims are contained in the Constitution. He's as bad as the left-wing justices -- just right-wing.

But none of that changes the fact that Lithwick is pretty much the lamest Supreme Court reporter out there -- shallow, thoughtless, and overly emotional. What she lacks in depth, she makes up in lack of depth. :)

Richard Dolan said...

Simon, pogo, jinnmabe and others complain that, if the Court televised its proceedings, some of the coverage of the Court will be agenda-driven and unfair, that "any idiot with a PC to carefully edit video footage to obtain a de-contextualized quote that fits their preferred talking point," etc.

All true, and completely beside the point. Having taken on the role of political actor deciding social policy issues, the courts don't get to pick and choose the coverage they get. Everything you are saying about the coverage the courts will receive if judicial proceedings are available for broadcast, is not the half of what the overtly political branches of government receive on a daily basis. A general concern about the use that people, even agenda-driven people, will make of the increased availability of information about the workings of the courts is never a reasonable argument against making the information available.

Here's a specific: take the decision by the Missouri SC on the voter ID case that Ann featured yesterday. I have no doubt that the justices of that court might well regard the negative commentary about their decision that was featured here yesterday as unfair and agenda-driven. Another example: the sharp commentary that Judge Diggs' decision in the NSA intercept case received. There is no better way, and as a practical matter no other way, to expose the misuse of judicial authority such as was evident in those rulings than to welcome increased coverage -- all of it, the good, the bad and the truly ugly.

Lithwick doesn't put the issue in those terms, and neither does Scalia. But that's what's in play. It's no answer to say that blog commentary here was weighty, learned and specific, while the stuff that Lithwick and others turn out is just fluff or worse. Don't pretend that there are any objective standards one can appeal to, or any objective umpires to apply them, to sort out good and meritorious commentary from sensational, shoddy or biased journalism. Telling the difference between the two is something that, of necessity, must be left to each reader. Certainly, the judges can't be the gatekeepers passing on the coverage of themselves. Yet that was the centerpiece of Scalia's and Alito's gripe.

The SCOTUS is obviously sensitive about these issues, because its authority derives in part from the moral suasion that flows from the image of a "neutral" judge objectively applying legal principles not of the judge's own invention. In large measure, of course, that image accurately describes the work of the courts -- as Scalia notes, much of the courts' statutory construction work is in that mold. But it is far less accurate a description of what the courts are doing in the subset of cases that people care about -- such as the Missouri voter ID case, the various iterations of the "culture war" cases, etc. If the critique of the courts that one commonly sees in these threads is rooted in reality (I think it is), then in the long run, increasing the coverage received by the courts can only help to make that reality obvious to others. We (and Scalia) should welcome it, even if the price of admission is that a lot of shoddy stuff will also get turned out.

Revenant said...

Having taken on the role of political actor deciding social policy issues, the courts don't get to pick and choose the coverage they get.

Well actually they do. Who are you going to appeal to? The Extra-Supreme court?

Also... "having taken on"? They've been dealing in social policy for a few centuries now. Nothing's changed that makes public access a must, particularly considering that the judicial branch is meant to be free from public influence.