Constitution Check: Who is to blame when the media gets a Supreme Court ruling wrong?

Constitution Check: Fact-checking the news

Lyle Denniston looks at actions the Supreme Court could take that would lessen the chances of mistaken media reports about key court decisions.

The statement at issue:

“It may be remembered as our generation’s ‘Dewey Defeats Truman’ moment.  Reporting the Supreme Court’s momentous decision on health care, CNN and Fox News rushed dead-wrong headlines on-air.  CNN blasted the incorrect headline onto social media as well.  Fox News, in a screen graphic, incorrectly reported that the Court struck down the individual mandate portion of the law.”

– Joanne Ostrow, TV critic for the Denver Post, in a story June 28 commenting on news media errors in initial reports on the Court’s health care ruling last week.

We checked the Constitution, and…

The Supreme Court, not being a political branch of the government, has absolutely no duty to explain itself to the media, or to the general public, for that matter.  It is not what one would call politically accountable, and the Constitution seems to have wanted it that way.  The audience to which it believes it is mainly speaking is made up of lower courts and lawyers.

Lacking anything like a “spin doctor” on its staff, it simply hands out its final decisions and lets them speak for themselves.  In handing them out, it does as good a job as any other government agency: the copies of its output are free, abundant, easy to read, and promptly released when ready. They are put online quickly, too.  And, with every final ruling, the court releases something like an executive summary, though it calls it a “syllabus,” which is an outline of what was decided.

In a way peculiar in Washington, though, the decisions almost never leak out in advance.  (There were a good many predictions about the health care ruling before it actually emerged, but no one outside the courthouse had really solid inside information, so no prediction was exactly right.)

One might ask why would a news organization get it wrong on decision day?  And, further, could the Supreme Court be doing something different, to help the media get it right?

An answer to the first, to be unkind about it, is carelessness.  When the Supreme Court decides, it decides; there is a definite outcome and, if one takes just a minute or two to figure it out, the result will make itself known.   Failing to take that minute or two can make the difference.   But, even for a cautious reader of an opinion, trouble may loom when the court’s members are split this way and that, and there is more than one issue at stake.   That describes, perfectly, the health care ruling.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Another answer to the “why” about media errors, of course, is that the bigger the Supreme Court ruling, the more anticipation builds up, and the more the media feels pressure to rush out with the news.  The health care ruling, it is fair to say, is maybe a once-in-a-decade ruling in importance, with a potential impact across the whole of American society, and an immediate impact on an already lively political campaign.

In the sometimes upside-down world of new media, though, the greater the impact of a public event, the less caution will be used in sorting out the event if it is at all complex.  Grasping for a bottom line, even if it is an elusive one, is going to occur in that kind of a news environment.  One must remember that heads can roll these days if a media outlet gets “scooped.”

If that kind of grasping is the new normal in the news business, and it seems that the media just can’t save itself from error, is there anything the court could do to help out?

To ask the question, though, is really to open a fundamental inquiry into the nature of the judicial process and its transparency and accountability.  Just what does the Supreme Court (and a lower court) owe to an audience that includes many who are not trained in the law or working at it in court, law offices or the legal academy?  When does the flow of information about the process pass from information to grandstanding?  If a ruling is complex, should there be an explainer on hand at the time of release?

For reporters who cover the courts regularly, they grow accustomed to living only with ease of access to decisions, in a digestible form.  Unlike reporters on the political beat, or in a legislative hall, they do not expect to be “spun,” and they basically do not want it.

Interestingly, though, if one crosses the border into Canada, there is a different world of court-media relations.   At the Canadian Supreme Court, there is the “media lock-up,” which puts reporters into a locked room under a promise of confidentiality, gives them access to an opinion about to be released, offers them 15 minutes to absorb it, puts before them a court officer to explain the opinion and then answer questions, and then turns them loose to report when the opinion is formally made public.

Leaving aside the briefing and the Q&A, perhaps the most significant thing about the Canadian “lock-up” is those 15 minutes to read and understand.  Would it work in American courts?  Maybe not, but it certainly would reduce the chance of getting it wrong.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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