Legal Journalism Is Abysmal
News organizations and reporters refuse to take the law seriously
You may have recently heard that the Minnesota Supreme Court held that having sex with an blacked out drunk woman was not rape. This became the source of rage on Twitter, with reporters excoriating the Court for its callous and misogynistic decision.
It is, indeed, callous and misogynistic to contend that having sex with a woman who is too drunk to say “no” isn’t a form of sexual assault. But what actually happened was the Minnesota Legislature passed a badly worded rape law that did not extend to that situation. The Minnesota Supreme Court, with a 5-2 majority of Democratic appointees and a 4-3 majority of women, unanimously held that this rape statute meant what it said.
And in doing so, the Court upheld a very important principle. Nobody should have any sympathy for rapists, but the notion that you shouldn’t be convicted for something that the legislature did not outlaw (even if it should have outlawed it) is a venerable principle and basic right that I think most people agree with. It’s enshrined in the original Constitution (i.e., it was in there even before the Bill of Rights was enacted), in the form of prohibitions on Congress passing bills of attainder (which single people out for criminal punishment) or ex post facto laws (which retroactively turn at-the-time legal acts into crimes).
This is what a good legal journalist would have said about this. Minnesota has a terrible rape law, and it left the Minnesota Supreme Court with no choice but to unanimously let a rapist off. This isn’t however, what the world of legal journalism actually said about the decision when it first came down. Rather, Legal Twitter filled up with outrage about how the Minnesota Supreme Court didn’t care about women and rendered a terrible decision.
My first reaction when I saw this was to read the decision myself; I quickly realized the text of the statute was plain as day and the decision, while reaching an awful result, was rightly decided. But it took at least a day for people to come to their senses and to start saying this online. And even now, two weeks after the decision, there are still people who were misled by the initial tweetstorms who are saying the Court is full of misogynists.
This is, alas, how too many court cases are reported on in the modern era. A court decides something, and legal journalists read it extremely quickly and then rush to Twitter, or sometimes the online faces of their publication, with hot takes, which usually involve some combination of (1) quotes pulled from the dissenting opinion, usually attached to a statement about how the dissenting justice “owned” the majority; and (2) some generalization about the Court and how evil it is. There is obviously a big market for this outrage machine- these folks have a lot of followers. There are also a number of other people who are, as far as I can tell, mostly not lawyers or law professors, who serve as an echo chamber for these takes while holding themselves out as “legal experts”.
Whatever this is, it is not journalism by any recognizable standard. Here are some bullet points from the Society of Professional Journalists' Code of Ethics:
Remember that neither speed nor format excuses inaccuracy
Provide context. Take special care not to misrepresent or oversimplify in promoting, previewing or summarizing a story
Diligently seek subjects of news coverage to allow them to respond to criticism or allegations of wrongdoing
Label advocacy and commentary
Never deliberately distort facts or context
Legal journalists simply are not following any of these precepts. They race to get their takes onto Twitter as fast as possible, and therefore barely read the opinions they comment on. They almost never read the underlying statutes, or the briefs or the court record. They are constantly oversimplifying and sometimes (as we saw with the Minnesota case) misrepresenting decisions. They never seek comment from participants (judges of course aren’t going to return their calls, but the lawyers in these cases are generally available)- we’ll come back to this one. They don’t label their advocacy and commentary. And they deliberately distort facts and context.
Essentially, the legal journalism ecosystem rewards quick hot takes that coincide with authors’ and readers’ preexisting ideological preconceptions, not careful analysis.
And certainly not expertise. Law is a discipline that requires three years of graduate school, and even then you aren’t really ready to practice or teach it. After that you need to spend your first couple of years of practice, or more, learning all the things they didn’t teach you in law school.
Yet your typical legal journalist either has no training at all or went to law school for three years but has never been paid to represent a client in his or her life. This, of course, is fine in itself- you don’t need a Ph.D. in microbiology to cover the coronavirus. But what we usually expect is that journalist will be calling people who do have Ph.D.’s in microbiology, and drawing on their work. Indeed, if a journalist on a science beat said “I don’t need to talk to any scientists, I understand this all myself”, that journalist probably wouldn’t stay on the science beat for very long.
But for whatever reason, the organs of journalism do not treat law as if it is an actual intellectual discipline. Lawyers are paid as much as $1,000 or more per hour to analyze court opinions; law professors write detailed, scholarly, 75 pages articles about them. And yet these folks who bombard Twitter with their legal analysis never seem to bother to talk to any actual lawyers or law professors before publishing their hot takes. Not to put a fine point on it, but if journalists had talked to an expert on Minnesota criminal law or the Minnesota Supreme Court, or even on rape law generally, before going on Twitter, people might have been informed that this was the legislature’s fault and not the Court’s.
And this is true of so many issues they report about. I happen to know a lot about appellate law (that, the First Amendment, and media law are my specialties; I also litigated a bunch of international human rights cases way back when so I know something about that subject as well). I read a significant percentage of the published appellate cases from the Justia case reports every day, because it helps me do my job as a lawyer. (You can find some of the more interesting cases I come across in my Twitter feed.)
And as a result, I am constantly astonished at some of the things that are written by mainstream journalists about appellate law and courts. Some of it I alluded to already- the tweetstorm where the reporter or self-styled expert quotes at length from a dissenting opinion, on the assumption that whatever it says must be right because the reporter/expert disagrees with the result of the case. But a lot of the analysis is in fact even worse.
For instance, you have probably heard the following things about the Supreme Court: (1) the Court votes in blocs, with the 5 (and now 6, with Barrett) Republicans voting one way and the 3 (previously 4) Democrats voting the other; (2) the Court decides all cases, or at least all politically salient ones, in favor of the positions of the Republican Party; and (3) Supreme Court justices are just politicians in robes. In fact: (1) many Supreme Court cases are unanimous, and some feature cross-ideological coalitions in the majority and the dissent; (2) the Court is certainly conservative, including in some problematic ways, but liberals still win cases there, most recently the Bostock decision granting gay and trans people employment protections, and the cases challenging the 2020 election which were all thrown out; and (3) the Court cares immensely about the implications of its decisions for future cases, and asks numerous questions at oral argument and includes extensive guidance for lower courts in its opinions for this reason.
Of course, part of what is going on here is simply that reporters are more ideological now, and liberals in the news media want to push an activist narrative about the courts. But I don’t think it’s just that. My profession is full of liberals. (This is not a criticism- I am a liberal!) Legal academia is full of liberals. But nonetheless, the law reviews and even the legal blogs written by actual practitioners (like SCOTUSblog and How Appealing) are not full of hot, misleading takes like this.
What is happening is that reporters are not talking to us. For whatever reason, law strikes the journalistic establishment as different from microbiology. It’s not a subject of expertise. It’s something anyone can do, just by reading the cases and deciding whose opinion they agree with. The fact that the prevailing wisdom is that courts are just nakedly political of course contributes to this- if the decisions themselves are, as the great Prof. Karl Llewellyn used to say, nothing more than “window dressing”, then it is easy to see why an editor or publisher might assume that actually consulting practitioners have little value.
Of course, Prof. Llewellyn himself would not have agreed with this. He did call legal reasoning “window dressing” but also said that the window dressing was incredibly important, both for the realist reason that it provided the public justification for what courts do, and also because lower courts had to follow precedents. But beyond the views of Prof. Llewellyn, it is difficult to find any practicing appellate lawyers who think that courts do nothing but politics. There are definitely people who think courts do more politics and people who think they do less, but the sort of absolutist “the Supreme Court will strike down any law Democrats pass” is something that nobody in my field believes, because it is not true. Millions of Americans have subsidized health care right now, in fact, precisely because it was not true in the NFIB v. Sibelius case, which upheld Obamacare.
And, importantly, NFIB v. Sibelius came out the way it did, and Bostock the way it did, partly because judges care about the downstream effects of their decisions. John Roberts didn’t want to issue a decision that invalidated all sorts of “sin taxes” he thought were proper, and Neal Gorsuch didn’t want to issue a decision that repudiated the plain meaning of the text of a statute.
Indeed, Bostock is a great example of how untrue the impression that these legal journalists have left with the public is. Almost everyone I knew in the legal profession thought Bostock would come out the way it did, because they had watched Gorsuch as a Court of Appeals judge and knew his commitment to textualism. However, there was a bunch of writing from the self-styled “experts” about how Gorsuch was too political to ever decide a salient case in favor of gay and trans people. (Here, for instance, is Political Science Professor Scott Lemieux, who writes a lot about Supreme Court cases and fancies himself an expert: “it seems much more likely that he’ll reserve his Strict Textualism for cases where, say, he sides with a company that says an employee had to freeze himself to death”. If I wrote a prediction like that, I’d be humbled.)
The point is, what did we know that Prof. Lemieux don’t? Well, start with the fact that, as I said above, people are paid four figures an hour in some cases to analyze what courts do. And our predictions matter! We have to actually advise clients when to appeal and when not to! If we’re wrong, it can cost our clients a ton. We need to be right.
But in addition, in order to do that job well, people don’t just read an oral argument transcript like Prof. Lemieux did. They read all the briefs. They read the lower court record. They look at previous Gorsuch decisions. They do all those things, because that’s how you win cases on appeal.
And law professors who closely study court decisions to publish scholarly articles about them go through a similar project.
So why doesn’t the media call lawyers and law professors up and get expert analysis on cases? As I said, such calls would have revealed that yes, Gorsuch was likely to side with the liberals in Bostock. Indeed, they would reveal that a lot of things that journalists like to say about courts is wrong. But the journalism world doesn’t treat my profession like experts- it treats my profession like something anyone can pick up in a few minutes. And that, at bottom, is what is really responsible for the state of legal journalism.