Legal Happenings
Journalists Offer Insights Into Supreme Court’s Recent Term
July 22, 2024
From left to right: John Fritze, Mark Sherman, Abbie VanSickle, David Savage, Amy Howe, and moderator Arthur Spitzer
When the U.S. Supreme Court issues controversial decisions, the work of lawyers and journalists intersects. Although both professions assess the High Court from different perspectives, they inform each other’s understanding of the Court’s impact. At “Supreme Court: View From the Press Gallery,” hosted by the Washington Council of Lawyers on July 8 at Arnold & Porter, journalists explained to legal professionals what they found most meaningful and interesting in the Supreme Court’s 2023–2024 term.
Arthur Spitzer, senior counsel at the ACLU-D.C., moderated the panel discussion featuring five journalists, including Amy Howe, who publishes “Howe on the Court” on the internet and reports for SCOTUSblog, and New York Times Supreme Court reporter Abbie VanSickle, both of whom have law degrees. “Even though several of the panelists are lawyers, this is not a panel of litigators analyzing the cases … Our plan is to talk about the Court as an institution and as a collection of individuals, and about how journalists cover the Court,” said Spitzer.
The journalists first discussed major changes resulting from the pandemic in how the Court handles oral arguments, such as offering live audio.
“I think this has been a huge success for people to be able to listen to the oral argument in real time when there are so few spaces in the courtroom, even if you are able to come to Washington, D.C.,” Howe said. The Court, however, still does not livestream its opinion announcements. Audio recordings are not available until the fall through the National Archives.
Mark Sherman, who covers the Supreme Court for the Associated Press, agreed on the public benefits of oral argument. However, he said it lessened the fun for journalists. He and other journalists have to listen attentively and type up the coverage outside of the courtroom to keep up with the instantaneous demands of live blogs and streaming journalism. “The more important the argument is, the less likely it is I am going to be in the courtroom to actually see the argument because we have to report on it as it is happening,” Sherman said.
Another change in the COVID era is the opportunity for each justice to have a turn at questions — seriatim questioning — compared to the traditional rapid-fire questioning from multiple justices. Howe said that experienced advocates “really like it because they … know that no stone is going to go left unturned. If the justice has a question, they will have an opportunity to answer it.” The downside is that seriatim questioning can lead to very long argument sessions. Howe mentioned as an example the NetChoice arguments involving Florida and Texas laws regulating social media content, which lasted more than four hours.
Shifting topics, Spitzer said the justices generally claim in public that they get along personally, and he asked the panelists if they felt that was true. “So, I guess I think it is pretty much beside the point, whether or not they get along. It is where they come out in the cases, of course, that really matters,” said John Fritze, who covers the Supreme Court for CNN. But he sensed this is not a Court with the deep friendships that characterized Supreme Courts in the past. Fritze did note a sense of civility between Justices Sotomayor and Amy Coney Barrett at a recent public event, but he also relayed Sotomayor’s anecdote about the justices uttering sharp comments. Fritze said that it’s “what you would expect when issues of this magnitude are being debated among people who have really very different ideas” about what the law should say.
The journalists also explored their drive to convey the real-life effects of disputes heard before the Supreme Court. Both VanSickle and David Savage, the Los Angeles Times reporter covering the Supreme Court, discussed their coverage of City of Grants Pass, Oregon v. Johnson, which involved people who are unhoused challenging local ordinances prohibiting camping out in public and imposing civil and criminal punishments. Justice Neil Gorsuch authored the decision, which reversed the Ninth Circuit decision that the Oregon law violated the Eighth Amendment prohibition on cruel and unusual punishment. Justice Sotomayor wrote a passionate dissent, stating: “This Court, too, has a role to play in faithfully enforcing the Constitution to prohibit punishing the very existence of those without shelter. I remain hopeful that someday in the near future, this Court will play its role in safeguarding constitutional liberties for the most vulnerable among us.”
Before the Court’s decision, VanSickle traveled to Grants Pass to interview people without housing. “It seemed to me there was a really rich story to be done about not only this town, but all of the towns” faced with similar issues, VanSickle said. She also wanted to explore the consequences for those without housing and local governments if the justices found that the effect of the ordinances was not cruel and unusual punishment. VanSickle added that being a journalist enabled her to “actually tell the story through people who are experiencing homelessness, which I think is one of the most important things that journalists are able to do.”
Savage also wrote a few stories about Grants Pass, connecting it to homelessness in Washington, D.C. “One of the things I found very curious about this case — both from the Supreme Court’s point of view and the way the press covered it — is that California and the West Coast states were under a rule that didn’t apply to the rest of the country,” Savage said. “[Mayor] Muriel Bowser has enforced the D.C. law saying you can’t camp out on the sidewalks.”
Speaking to the D.C. Bar after the event, Christina Jackson, executive director of the Washington Council of Lawyers, said this panel discussion is notable in part because the journalists offer unique insights into how the justices interact, how their relations bear on the Court’s decisions, and the real-life impacts of the decisions. “With the journalists talking about the issues that surrounded the justices, and not just the legal decisions, and the way the journalists provide information but remain respectful, I thought [it] was fascinating this year, in particular,” Jackson said.
