The Court, The New York Times and Credibility

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The New York Times had an interesting story on Friday about the declining popularity of the Supreme Court. It’s worth reading the entire thing, because there are a variety of interesting cross-tabs sprinkled throughout, like public opinion about potential court action on Obamacare and immigration.

But it’s also worth taking a closer look at a couple of things in and about the story. The story makes clear right from the start that the source of the public’s declining respect for the court is unknown. After leading with the primary finding of the poll in paragraph one, and establishing a historical trend in paragraph two, graph three reads:

The decline in the court’s standing may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular. But it also could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions.

In other words, we don’t know what the source of the deteriorating popularity of the court is. So why are we speculating about the possible sources in paragraph three of a story prominently placed on the front page above the fold?

To borrow a device: the speculation and prominent placement could stem in part from Times editors’ growing interest in Americans’ distrust in recent years of major institutions in general and the government in particular. But it also could reflect a sense among Times editors that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions.

If it sounds as if I’m imputing motives without sufficient factual substantiation, I agree. But while I’m at it, why not go a little further.

For our reporting on this week’s cover on Justice Anthony Kennedy, I interviewed a lot of former clerks and colleagues of several Supreme Court justices, many of whom said the justices are concerned about the court’s credibility. With no money and no sword, the court’s only source of authority is its credibility, and there is a deep desire among the justices to diminish the impression of partisanship on the court.

Could a reader conclude that the Times is playing to the justices concerns for some reason? Paragraph five shifts the article directly to a discussion of the court’s imminent ruling on Obamacare, saying “more than two-thirds of Americans hope that the court overturns some or all of the 2010 health care law.” Graph six, to the authors’ credit, says both sides are going to view the health care decision as political.

But any suggestion that the decision on health care will be viewed as political amounts to an argument for upholding the law: as we have written repeatedly here, the consensus among judges on left and right, and among legal scholars, is that Obamacare falls well within the established powers of the Commerce Clause. So if the court wanted to rule with an eye to its credibility, it would stick with Jeffrey Sutton, Lawrence Silberman and others.

Or at least, that’s the sense that Friday’s front page story in the Times could reflect.

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