Every June, or shortly thereafter, the Supreme Court issues a series of important decisions to conclude its annual term and usher in 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 media coverage and explanation of the Court’s decisions is most important. And yet, every year, in covering the Court, many of the most prominent media outlets fail to meet even the most rudimentary standards of professionalism and accuracy.
Like other professionals (e.g., doctors), legal journalists must, as a top priority, do no harm. This means, above all, avoiding misleading headlines and opening paragraphs. I am not suggesting that all journalists covering stories about the Court must have gone to law school, but it is not necessary to spend three years of intensive, technical education to understand some very important basic points.
First, a discretionary decision by the Court not to grant review of a case (or a decision to “dismiss” a case after review has been granted) provides no reliable basis for determining how the justices feel about the “merits” of the dispute—that is, which side of the dispute is right about whether illegality has occurred. Relatedly, a decision not to grant review or to dismiss a case after review has been granted does not bind the parties, the lower courts, or the Supreme Court itself with respect to the disputed conduct. It simply preserves the status quo that existed before either party asked the Supreme Court to intervene, and leaves open—for possible review by the Supreme Court at a later date—the legal questions that arise on the merits. Sound simple? It is. And yet, last week, the day Bloomberg leaked the news of the court’s apparent decision to strike the Idaho medical abortion case from this year’s list, CNN ran the following headline:
Bloomberg: The Supreme Court appears to side with the Biden administration in the abortion case, according to a draft briefly posted on the website
Although CNN (and Bloomberg) were correct that the Court’s (erroneously early) release of the draft order did indicate that the Court planned to dismiss the case, it was a substantial disservice to the reading public to suggest that the impending dismissal meant that the Court was agreeing with (or “siding”) the federal government in the case. The federal government did not ask the Court to dismiss the case; it asked it to uphold the lower court’s (preliminary) invalidation of Idaho’s law banning certain types of abortions. But the Court did not uphold anything the lower courts had done. Nor did it reverse or erase (void) anything the lower courts had done. Instead, the Supreme Court simply said, in effect: “It doesn’t matter that we granted review; we now believe the case is not appropriate for us to intervene.” (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 from several judges about because (The case was not appropriate for adjudication, and from those explanations one could infer the views of some of the justices on the merits. 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—thought about the legality of the Idaho policies in question.)
Secondly, a decision of the Court that lacks power The decision 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 address a case on the merits has no effect on that merits, so too a constitutionally imposed prohibition on addressing the merits says nothing about whether someone’s rights were violated. And yet the supposedly professional and credible media blatantly ignores this second point as well. Consider another Supreme Court action from last week, in the case (Murthy vs. 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 spreading what the federal government thought was misinformation about important issues like COVID-19 or the 2020 election. Here is the CNN headline and the first sentence of the accompanying news story (I do not mean to criticize CNN, to the extent that FOX News and a few others are similarly sloppy) regarding the Supreme Court’s action in this case:
Supreme Court allows White House to pressure social media companies to remove misinformation
The Supreme Court said Wednesday that the White House and federal agencies like the FBI can continue to urge social media platforms to remove content the government deems to be misinformation…
One might reasonably think from this headline/entry (and keep in mind that many, many media consumers only read headlines and lead-in sentences) that the Supreme Court decided in this case that the lower court’s interpretation of the First Amendment was incorrect, and that the federal government did not violate the Constitution by encouraging social media platforms to remove or exclude certain kinds of speech because of its inaccurate content. (Such a ruling by the Supreme Court would/will be the correct decision 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 speech’s content, so long as 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 (i.e., are legally permitted) to continue to urge social media platforms” to do anything; the Court simply held that those challenging the federal government’s actions were not proper parties (they had no legal “standing”) to raise the dispute, so that there was no real “case” or “controversy” within the meaning of the Constitution that federal courts are authorized to decide.
When the Supreme Court says that it lacks “jurisdiction” (the power to resolve a dispute on the merits) because the plaintiffs lack “standing,” or because the dispute is “immature” or has become “moot,” or because the issue involves a “nonjusticiable political question,” the justices are in no way making law that binds or empowers anyone regarding the underlying merits of the dispute. Whether or not a journalist goes to law school, he or she should understand that a Court decision that it lacks jurisdiction (just like a Court decision that it will not review a case even if it has jurisdiction) is in no way a decision on the merits that validates or repudiates either party’s claims about the legality of the parties’ actions.
This brings me to a third lesson: a decision by the Court that willpower The fact that the Supreme Court takes a case and speaks to its 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 believes the lower court erred. While it is true that the Supreme Court reverses lower court rulings far more often than it upholds them, there are many 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 ultimate resolution of the dispute was correct. (An example of this phenomenon this year is the Moore vs. the United States So, as understandably impatient as we all are to know what the Supreme Court is going to do on the merits of a case, we cannot assume anything when the Court declines to take up (or says it lacks jurisdiction over) a matter, and we cannot assume 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 do not resolve.
