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Painting oral arguments as mere politics

By Mark Obbie

Dana Milbank's April 23 column "The Supremes Sing the Oldies" in the Washington Post is hardly what some would categorize as pure legal journalistic writing. In his column, Milbank pokes fun at the Supreme Court justices hearing the oral arguments of Ricci v. DeStefano. Twenty firefighters -- one Hispanic and 19 white -- in New Haven, Conn., sued the city on the basis of reverse discrimination for throwing out the results of an exam in 2003 that would have promoted some of them to lieutenant and captain positions. Milbank sets his narrative in the framework of a highly politicized courtroom stage where the justices, not the lawyers and clients, are the main actors. He pits the liberals (Justices Souter, Ginsburg, Stevens, and Breyer) against the conservatives (Chief Justice Roberts and Justices Scalia, Alito, and Thomas) with Justice Kennedy playing Devil's Advocate. Milbank's rendition of the Supreme Court hearing has action, drama, and suspense: nine justices with a long history of petty squabbles and ideological conflicts and differences who are determined to fight each other out for the final votes until the bitter end … in June. Readers will understand that Milbank's column is subjective. The trouble arises when objective news reports like those in the Wall Street Journal, Christian Science Monitor, Hartford Courant, and USA Today choose to focus on the politics of the case instead of the actual case itself. In these articles, the writers focus on Kennedy and his swing vote. The CSM article included a deckhead about Kennedy's deciding vote. The WSJ article had a sketch of Kennedy, highlighting his importance in the final vote. Very few of these articles explained in full detail the underlying legal principles and impacts that the results of the case could have on Title VII of the Civil Rights Act. Even Robert Barnes' news article in the Washington Post was awfully similar in content and perspective to Milbank's opinion column. These problems -- treating the case as just another political horse race -- get compounded when news reports essentially assume the outcome will be 5-4. Their only supporting evidence for this assertion was the 5-4 majority decision made in another civil rights case a year ago that struck down the use of race to determine the assignment of children to public schools, which again, pitted the liberal justices against the conservatives.     It is somewhat of a sad state of affairs when the biggest civil rights lawsuit this year has been watered down to whether liberals or conservatives will prevail, and even sadder to see that a swing vote is considered big news. At the end of the day, legal reporters should be focusing their efforts on finding out the legal implications of a case and its impact on the general public and not on the politics of the courtroom and its judges. --Mimi Liu

Full post as published by Lawbeat on April 26, 2009 (boomark / email).