A few weeks back, President Obama expressed his belief that the Supreme Court would be wrong if it overturned his signature domestic policy achievement, the Affordable Care Act. Republicans immediately had a hissy-fit, accusing Obama and his allies of trying to "intimidate" the Court in yet another frightening example of thuggish Chicago-style politics. As Dahlia Lithwick points out, the only ones who have leveled any actual threats at the courts lately are conservatives-Newt Gingrich proposed that if judges made decisions that some people (i.e. Republicans) didn't like, they ought to be hauled before Congress to explain themselves, and arrested by federal marshals if necessary; Rick Santorum (and others) have suggested eliminating the 9th Circuit appeals court, since it has issued some decisions he disagrees with. But as Lithwick explains, the Supreme Court is really of two minds when it comes to being criticized publicly:
RoNell Andersen Jones, a professor at Brigham Young University Law School, has done a great deal of thinking about the gap between the court's idealized view of the press as a vital corrective on government and the reality of their treatment of the media. In an upcoming law review article, she argues that the justices of the U.S. Supreme Court, in their role as articulators of legal doctrine in judicial opinions, hold overwhelmingly positive views of the press. But those same justices hold overwhelmingly negative views of how the press covers them. She tells me that the court's own decisions suggest that the argument that strong criticism represents a threat to judicial integrity does not stand. "The court's opinions in the last 50 years have extolled the virtues of a free press and repeatedly highlighted the ways in which unfettered reporting and robust media commentary facilitate democratic values. If we line up the statements that the court itself has made-celebrating this uninhibited, wide-open, and robust reporting about matters of public interest-it is inconceivable that the justices could view mere commentary about important court cases, even if deeply critical, as being 'intimidation.'"
That said, there can be a disjunction between that idealized notion of the fourth estate and the justices' personal experience of criticism. As I have argued before, particularly for some of the newer justices, the belief that they are-both as part of their confirmation process and thereafter as they sit on the bench-subject to unreasonable public targeting and campaigns to discredit them, can have serious implications that impact all of us.
This doesn't surprise me at all. Nearly every public figure who gets discussed in the press thinks the press is unfair to them. Barack Obama thinks the press is unfair to him. So did George W. Bush, and so did Bill Clinton, and so did George H.W. Bush. Everyone who gets criticized publicly thinks the criticisms are egregiously unfair. Because in a way, they are. A reporter writing a story about you will never capture all the nuance of your position and your ideas, so any story will feel incomplete. Any story that attempts to capture "both sides" will seem unfair, since our opponents' arguments are so obviously wrong. We all think we're right, and each of us is the hero of our own story, so if a news report attempts to tell part of that story but doesn't portray us as we see ourselves-with the purest of motives, and with justice and common sense on our side-then we'll find that coverage egregiously lacking. And that's just a description of stories that are reported and written well.
The real problem could come, as Lithwick argues, with the possibility that the Court becomes too sensitive about this and begins to restrict free speech and lay a cloak of anonymity over places where the public ought to be able to see. This is certainly something many conservatives would like; for instance, Republicans are fighting against an effort by the FCC to make local stations put the records of who buys political ads up on the web so they can be viewed by anyone. For years, they argued against restrictions on campaign contributions by saying we should let people donate whatever they want but have transparency about it, so everyone would know who gave what and there could be no corruption. And now that the Court gave them de facto unlimited contributions through Citizens United, they're now arguing that transparency is bad, because those billionaires might get harassed.
What they seem uncomfortable with is the heart of the bargain we make by having freedom of speech: you get to say what you want, but other people also get to call you an idiot and a jerk, even when you're neither. Some conservatives want to exempt some people from the second part of that bargain. And wouldn't you know it, the people they want to exempt are the ones who have money and power. Who could have guessed?
