Justices and Journalists: The U.S. Supreme Court and the Media

By Richard Davis

(Cambridge University Press, 241 pp., $28.99)

The way in which every person, every institution, relates to people is essentially, though often unconsciously, theatrical. We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy. This is true of the Supreme Court, too, and of the individual Supreme Court justices. Unlike obscure persons, the justices have a media presence: the press and the other media are interested in covering them, and the justices themselves can increase coverage by granting requests for interviews or by reaching out to journalists without being solicited. But the access that the justices have to the media should not be confused with how accessible to the media the justices are. That depends largely on whether they want to be accessible, because public curiosity about them is actually quite limited. They can be private if they choose to be.

There are several complications in the design of a public relations strategy for the Supreme Court or its members. The first is a lack of hierarchy. The associate justices do not “work” for the chief justice. He cannot fire them, or tell them what to say or not to say publicly. This makes it difficult to devise and execute a media strategy for the institution. Take a look at the Supreme Court’s website: www. supremecourt.gov. It’s boring! If you look hard enough, you will find a paragraph implying misleadingly that the Court has a very heavy workload; in fact, in the last half-century its output has fallen, while its staff (consisting mainly of law clerks) has increased substantially, both in quantity and—because, since the late 1960s, a prior clerkship has become de rigueur for Supreme Court law clerks—in experience.

Individual justices have an interest in the public image of their institution, of course, but it often conflicts with their individual interests. This is true for the chief justice as well as for the other justices, which further diminishes the possibility of effective institutional public relations. Individual justices, for example, may want to alter the institution: Richard Davis’s new book reports that Bob Woodward thought that Justice Potter Stewart (a major source for Woodward’s book The Brethren) “almost hoped that he could bring Warren Burger down by launching this inquiry into how he ran the Court.” Justices have sometimes used the media to distance themselves from unpopular decisions, as Justice Powell did by publicly regretting, after his retirement, having voted as a justice against gay rights and in favor of the constitutionality of capital punishment. His retraction undermined the legitimacy of those decisions, thus fouling his (former) nest—a risk when a justice tries to use the media to polish his image.

Justices may also use their access to the media to try to enhance their reputation by criticizing other justices, as Justice Blackmun did with unprecedented candor, accusing conservative justices of having a political agenda. (The pot calling the kettle black.) And the justices must know that they will receive more publicity by striking an individual pose rather than sounding like the Supreme Court’s press officer. They may stain the institution in the pursuit of their personal publicity-hugging ends, but there is nothing that the Court as an institution can do about it. The chief justice could try to use his assigning authority (he assigns the authorship of the majority opinion in all cases in which he is in the majority) to discipline errant justices, but the strategy could easily backfire by embittering those justices and making them behave even less responsibly—and making them also reluctant to join the chief justice’s opinions.