By Suevon Lee MSL ‘12

Saturday’s second a.m. session, “Journalism and the Constitution outside the Courts,” presented a unique opportunity for two reporters who have covered the Supreme Court for the New York Times to share the same stage: Linda Greenhouse, the veteran reporter who covered the Court for nearly 30 years, and Adam Liptak, the current reporter on the beat who also writes the biweekly “Sidebar” column on legal affairs.

Joining other panelists such as Emily Bazelon, a senior editor at Slate and Senior Research Scholar at YLS, and Charlie Savage, a Washington correspondent for the Times, the journalists responded to a series of questions and thoughts posed by YLS constitutional law scholars Reva Siegel and Robert Post. As the panel’s moderators, the pair engaged the guests on their views of the “gatekeeping” function of the press, their conception of the Constitution and how it drives their coverage of issues.

“Is it just spectator sport?” Post asked the panelists, alluding to the Supreme Court-reporting-as-sports-coverage analogy introduced a day earlier. As Siegel summarized, the function of the journalist seems to involve a “self-conscious exercise” to convey something “richly complicated that involves a complex set of interactions.”

Liptak responded by defining his role as “descriptive rather than didactic,” to “describe fairly what each side is saying” within the relevant context, and to recognize that delving deeper into the constitutional principles embedded within certain decisions can often be revisited in follow-up coverage.

Greenhouse, however, stated her opinion that “the next day” analysis may lend itself to more opinion-generation and prefers an approach that considers “the full dimension of [a breaking Court development].” For instance, she pointed to the Court’s recent granting of certiorari in Fisher v. University of Texas at Austin: one could state, “ ‘Here’s just another affirmative action case, or you can invest in some time thinking about it,’” she said.

Or to take the Supreme Court’s 2008 ruling over the Bush administration’s policy towards Guantanamo Bay prisoners, Greenhouse observed: “It would be correct to cover the [implication for] rights of the detainees, but it would be a mistake to not cover the angle of this titanic clash of separation of powers.”

As with previous panels at the conference, oral arguments over the Affordable Care Act dominated a healthy portion of the conversation. As focus now turns to the justices’ expected June ruling, panelists were asked to clarify how journalists are to explain the distinction between constitutional interpretation and what may be seen in some corners of the public as, “a naked power grab.”

Bazelon pointed out that when it comes to the ACA ruling, or even in the Court’s polarizing decision in Bush v. Gore, it’s the journalist’s responsibility to recognize the quality of the arguments made by the justices and address weaknesses where identifiable.

On the other hand, “if you don’t actually know that something nefarious was going on, that assumption seems the wrong one to be driving your coverage,” she said.

Saturday’s discussion also touched on the confirmation hearing, widely perceived as a Court-related pageantry in the public eye, with panelists offering their views on whether analysis of the post-nomination process can be divorced from a political lens.

Greenhouse said while the “process has been so degraded it’s easy to slough it off as politics,” there can be other ways of looking at it. Liptak refuted the notion that the confirmation hearing is largely “substance-free,” but an event that journalists must compress, synthesize and unpack: “there would be more to say than you think,” he said, than just, for instance, the oft-repeated umpire analogy sound bite.

Savage, highlighting the strength of archival journalism, pointed out that document dumps that emerge from confirmation hearings can store a wealth of information for public edification, and that more can be wrought from recent hearings than may appear from the mainstream media.

“If we went back and looked through them [these documents], we can learn an enormous amount,” he said.

Certain questions from the audience concentrated on the large amount of power and discretion journalists are perceived to hold among the public and legal scholars. Asked one questioner, what does it take for journalists to help bring a societal or cultural notion that might initially seem “off-the-wall” and make it “on-the-wall,” as Jack Balkin uses those phrases?

“You use your judgments,” responded Liptak. Ultimately, he said, you’re “making a judgment about what’s reasonably interesting, reasonably timely, reasonably plausible.”

by Suevon Lee, MSL ‘12

If the media serves as the gateway to the public’s understanding of constitutional interpretation, how journalists frame, explain and synthesize legal theories and decisions plays a major role in shaping the public outlook. Often, this task must be balanced against certain journalistic conventions, such as evenly presenting both sides of a debate, translating the arguments in an accessible way and resisting the instinct to add a political overlay to stories of legal import.

These topics were the focus of Friday’s second morning panel, “Journalism and Constitutional Interpretation,” part of the two-day Constitutional Interpretation and Change: a Conference on Jack Balkin’s Living Originalism at Yale Law School, which invited an all-star line-up of legal journalists to share their insights.

Joan Biskupic, Legal Affairs editor-in-charge at Reuters, kicked off a lively hour-and-a-half long discussion by describing her approach to writing stories as the former Supreme Court reporter for USA Today. She would constantly ask herself, “What does the audience want to know and need to know?” she said, to help distill weighty topics for the paper’s broad readership and “to make sense of how these issues play out and how meaningful they are to peoples’ lives.”

Linda Greenhouse, Knight Distinguished Scholar in Residence at YLS who covered the Supreme Court for nearly 30 years for The New York Times, expressed her concern with a “journalistic imperative” to always present two sides of a story, particularly in the arena of legal reporting such as recent coverage of the Affordable Care Act leading up to last month’s oral arguments before the Supreme Court.

“Not every story has two sides of equal weight,” said Greenhouse, re-echoing the belief she expressed in an earlier recent NYT column that rebutted challengers’ claims of the unconstitutionality of the individual mandate: “there is no there there on the other side.”

“The more refined and tricky these arguments, the more a challenge they present” to the journalist seeking to provide an objective and balanced account, she observed.

When it comes to the issue of constitutional interpretation, the role of the legal journalist will not be the same as a law professor, noted Dahlia Lithwick, senior editor and legal correspondent for Slate. There is no such thing as a “constitutional [reporter’s] beat,” she pointed out, in that the journalist’s role is one that involves much less theorizing and more play-by-play delivery.

Lithwick said she sees her role as “covering cases,” including the stories that are nestled within, much as “covering a hockey game” is par for the course for the sports reporter.

“We’re not quite doing what we’re pretending we do, which is monitor the rise and fall of constitutional theory,” she argued. “We’re monitoring the rise and fall of a case.”

Lithwick also expressed wonderment at the immense change in the media landscape, so that social media has come to play a dominant role in the dissemination of information – for instance, the use of Twitter during the health care arguments. Print media, television and even blogs are no longer the primary sources of constitutional ideas for a large segment of the public, she said: “A constitutional arc that is decades long and the media arc are changing by the moment.”

Charlie Savage, a Washington correspondent for The New York Times who covers executive power and national security, addressed the inherent tension between writing a legal narrative versus a political one when it comes to subjects with clear political consequence – such as the Justice Department’s legal strategy attacking the constitutionality of the Defense of Marriage Act.

This reflex to attach more weight to the political, rather than legal, significance of an event can often manifest within the press institution itself, Savage added, noting that his DOMA story, had it placed greater emphasis on the political context, likely would have landed on the front-page, as opposed to being buried inside.

“No matter how hard you try, it’s going to be easier for people to understand the political narrative rather than the legal one,” he said. “It sort of underscores to me that as much as journalists want to translate the legal theory of constitutional actors and why they’re behaving and why, it will always be easier to write about it in a political context.”

His thought was echoed by Lithwick, who said legal journalists often wrestle with writing about a legal development independent of its political back story. Reporters are “constantly torn” over determining the appropriate overlap between these two things, she said, citing her instinct to attach an “R” or “D” before a judge’s name in her stories as a reminder of the political appointment.

The pressure of continually attaching meaning to the Court’s decisions – driven not only by the public but the larger media culture itself – can prompt conflicting interpretations, as occurred once when Greenhouse and Biskupic covered the same case, the panelists shared.

Greenhouse told the audience that she later encountered Justice Souter and asked what he thought the decision meant. His response? “What it means is what the lower courts make of it,” he replied. That statement, Greenhouse said, was “very clarifying.”