To All Journalists and Editors Who Write About the Supreme Court: Please Read This to Avoid Three Exasperatingly Common and Egregious Mistakes

Posted in: Constitutional Law

At or shortly after the end of each June, the Supreme Court issues a flurry of important decisions to wrap up its annual term and signal the beginning of its summer recess. The public pays more attention to the Court’s work at this time of year than at any other. For that reason, this time of year is also when the media’s depiction/explanation of the Court’s rulings is at its most important. And yet, every single year, in covering the Court, many of the most prominent media organizations fall well short of even the most rudimentary standards of professionalism and accuracy.

Like other professionals (e.g., doctors), legal journalists should, as a highest priority, do no harm. That means, first and foremost, avoiding misleading headlines and opening paragraphs. I am not suggesting that all journalists who cover stories about the Court need to have gone to law school. But you don’t need three years of intense and technical education to understand a few very important basic points.

First, a discretionary decision by the Court not to accept review in a case (or a decision to “dismiss” a case after review has been granted) does not provide any reliable basis for determining how the Justices feel about the “merits” of the dispute—that is, which side of the dispute is correct about whether illegality has taken place. Relatedly, a decision not to grant review or dismiss a case after review has been granted does not bind the parties, the lower courts, or the Supreme Court itself with regard to the conduct in dispute. It merely preserves the status quo that existed before either party asked the Supreme Court to step in, and leaves open—for possible review by the Supreme Court at a later date—the legal questions that are posed on the merits. Sound simple? It is. And yet, last week, the day that Bloomberg leaked news of the Court’s apparent decision to dismiss the Idaho medical-abortion case from this year’s docket, CNN ran the following headline:

Bloomberg: Supreme Court Appears to Side with Biden Admin in Abortion Case, According to Draft Briefly Posted on Website

Although CNN (and Bloomberg) were right that the Court’s (mistakenly early) posting of the draft order did indicate the Court was planning to dismiss the case, it was a substantial disservice to the reading public to suggest that the impending dismissal meant the Court agreed (or “side[d]”) with the federal government in the case. The federal government did not ask the Court to dismiss the case; it asked the Court to affirm the lower court’s (preliminary) invalidation of Idaho’s law banning certain kinds of abortions. But the Court did not affirm anything done by the lower courts. Nor did it reverse or erase (vacate) anything done by the lower courts. Instead, the high Court simply said, in effect: “Never mind that we granted review—we now think the case is not appropriate for us to weigh in on.” (The Idaho dismissal was unusual in that, unlike most dismissals or decisions not to grant review in the first place, the Idaho case featured public explanations by various Justices about why the case was not appropriate to resolve, and from those explanations the views of some of the Justices on the merits could be deduced. But even in the Idaho case, the explanations did not indicate how a majority of five or more Justices—the number needed to resolve a case on the merits—felt about the legality of Idaho’s policies in question.)

Second, a decision by the Court that it lacks the power to resolve a dispute also says nothing about the Court’s views on the merits of the case. Just as a discretionary decision by the Court not to take up a case on the merits has no effect on those merits, so too a constitutionally imposed prohibition against reaching the merits says nothing about whether anyone’s rights were violated. And yet supposedly professional and credible news outlets flagrantly ignore this second point as well. Consider another Supreme Court action from last week, in the case (Murthy v. Missouri) in which a lower court (the U.S. Court of Appeals for the Fifth Circuit) had ruled that the First Amendment had been violated when the federal government encouraged social media platforms to avoid disseminating what the federal government thought was misinformation about important topics such as COVID-19 or the 2020 election. Here is CNN’s headline and first sentence of the accompanying news story—I don’t mean to pick on CNN, insofar as FOX News and some others are just as sloppy—concerning the Supreme Court’s action in this case:

Supreme Court Allows White House to Press Social Media Companies to Remove Disinfomation

The Supreme Court on Wednesday said the White House and federal agencies such as the FBI may continue to urge social media platforms to take down content the government views as misinformation . . . .

One would reasonably think from this headline/lead (and note that many, many consumers of news media read only headlines and lead sentences) that the Supreme Court decided in this case that the lower court’s interpretation of the First Amendment was wrong, and that the federal government did not violate the Constitution in encouraging social media platforms to remove or exclude certain kind of speech on account of its inaccurate content. (Such a resolution by the Supreme Court would/will be the correct ruling on the merits, by the way—the Fifth Circuit’s reasoning here, as it was in many cases this term, was extremely poor, and the federal government has wide latitude to encourage private entities to promote or discourage speech on the basis of the content of the speech, provided the government does not adversely regulate or otherwise coerce private actors who do not follow the government’s suggestions.) But the Supreme Court did not weigh in on the merits of the First Amendment here at all. It did not “say” anything about whether federal agencies “may [that is, are legally permitted] to continue to urge social media platforms” to do anything; the Court merely held that the challengers to the federal government’s actions were not appropriate parties—did not have legal “standing”—to raise the dispute, such that there was no actual “case” or “controversy” within the meaning of the Constitution that federal courts are permitted to adjudicate.

When the Supreme Court says it lacks “jurisdiction” (the power to resolve a dispute on the merits) because the plaintiffs lack “standing,” or because the dispute is “unripe” or has become “moot” or because the matter involves a “nonjusticiable political question,” the Justices in no way make any law that binds or empowers anyone concerning the underlying merits of the dispute. Whether or not journalists attend law school, they need to understand that a ruling by the Court that it lacks jurisdiction (just as a decision by the Court that it will not take review of a case even if it has jurisdiction) is not in any way a ruling on the merits that validates or repudiates the claims by either side concerning the legality of the actions of the parties.

This brings me to a third lesson: a decision by the Court that it will take up a case and speak to the merits does not provide a firm basis for predicting who will win and who will lose. There is a common misperception that the Court grants review only when it thinks the lower court made a mistake. While it is true that the Supreme Court reverses the lower courts much more often than it affirms them, there are plenty of instances in which the Court grants review of a case simply because the issue presented in a case is of recurring importance, and the case itself is a good vehicle for addressing the issue, even if the lower court’s bottom-line resolution of the dispute was correct. (An example of such a phenomenon this year is the Moore v. U.S. case affirming the Ninth Circuit Court of Appeal’s ruling upholding the federal Mandatory Repatriation Tax of 2017). So, as understandably impatient as we all are in wanting to know what the Supreme Court is going to do on the merits of a case, we can’t assume anything when the Court declines to take up (or says it lacks jurisdiction over) a matter, and we can’t assume very much simply because the Court indicates that it (at least provisionally) intends to resolve a matter. Instead, we have to wait for the Court to issue its rulings, and read them carefully to see what they do and don’t resolve.

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