In thinking recently about the SCOTUS, there are several extra levels of decision making available to them:
- they cases they consider taking
- the cases they take
- the issues they allow argument on in those cases
- the issues they decide in issuing opinions
- the breadth of their rulings on those issues
These several levels are filters. They can occur both in their normal caseload and in the shadow docket. There is no originalist philosophy or textual basis for them. These decisions are largely unreported and the court is mostly unaccountable for them.
And over in the press:
- the stories they consider covering
- the stories they cover
- the issues they research in that coverage
- the issues they actually publish in the coverage
- the breadth or specificity of that coverage
There are other types of judgment relevant to both, including errors, relied upon from their sources but overlooked, or introduced by the press or the SCOTUS. These errors include factual errors and errors of interpretation. For example, an originalist jurist might be relying on a faulty understanding of the law circa the 18th century. Baking an error into our law because of some long-dead person’s error seems to be exactly contrary to the claimed aim of that philosophy: to be consistent with the actual meaning of the law as enacted. Similarly, if the press finds a flaw in their reporting, it may be uncorrectable if they no longer have access to the source to seek clarification.
But this sieving process is just as activist (for SCOTUS) and just as biased (for the press) as the actual decision making processes that they try to dress up in fancy clothes and teach to speak well. We usually hear the complaints from fringe media, whether on the right wing (e.g., that there isn’t enough mainstream coverage of campus censorship or immigrant-perpetrated crime) or environmentalists (e.g., there are major polluted areas that get overlooked, to the devastation of health of typically minority communities) or immigrants (e.g., there isn’t enough mainstream coverage of immigrant-victim crimes, including by corporate-perpetrators (like federal contractors)).
The sifting isn’t bad or good, per se. It is necessary in both cases, due to the complex social, political, and business environments that the press and SCOTUS operate within. But the processes deserve recognition for what they are, and if we can develop formal frameworks to judge their efficacy, we should. (One way it is bad: inconsistency. Pitches for fluff get greenlighted when from a useful source and squished by anyone else, just as serious pitches get killed when about or damaging or frowned upon by the powerful, but are snatched up otherwise.)
Transparency is an issue as well. We know what cases SCOTUS rejects, but unless a scandal results (e.g., the failure to report on Harvey Weinstein by NBC) we typically do not know when a story was killed (much less the stories that were nixed as pitches).
Finally, the courts and their decisions receive coverage by the press, which leads to certain decisions by courts on how to frame their decisions in order to influence how their decisions are covered by the press. In that aspect, there is no division or difference between courts and the press. In that limited behavior they are identical in action, though not in tone or substance, having different goals in propagandizing.
Anyway, election’s Tuesday. Do vote.