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The Supreme Court is widely considered to be one of the most challenging institutions in Washington for a journalist to cover. But in recent years, major news organizations have been following the lead of SCOTUSblog, a scrappy website with a singular mission: comprehensive coverage of the nation’s highest court. Kojo chats with the lawyer who started SCOTUSblog and with the veteran reporter who serves as the site’s full-time eyes and ears inside the courthouse.
- Lyle Denniston Reporter, SCOTUSblog
- Tom Goldstein Founder, Publisher, SCOTUSblog; Founding partner, Goldstein and Russell
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. The Supreme Court is not what you'd call the most accessible institution in Washington. It does its business away from cameras at a plodding pace and language that's difficult for most people to understand. But you could say that Tom Goldstein, the founder of the website SCOTUSblog, has made a career out of crashing the highest court in the land.
MR. KOJO NNAMDIGoldstein built a practice as a Supreme Court attorney by cold-calling other lawyers in cases with SCOTUS potential. He then launched a website called SCOTUSblog as a marketing ploy. But his scrappy venture quickly grew into a Peabody Award-winning journalistic venture that's now considered essential reading for both lawyers and laypersons. He joins us to explore the challenge of covering the highest court in the land, along with the veteran reporter who fuels so much of his site's coverage. Tom Goldstein, thank you for joining us.
MR. TOM GOLDSTEINOh, thank you so much for having us.
NNAMDITom Goldstein is the founder and publisher of SCOTUSblog. It's a website dedicated to coverage of the United States Supreme Court. He's also a partner at the law firm Goldstein & Russell, which focuses on arguing cases before the Supreme Court. Lyle Denniston also joins us in studio. Lyle, thank you for joining us.
MR. LYLE DENNISTONThank you, Kojo, for having me.
NNAMDILyle Denniston is a reporter for SCOTUSblog. He has been reporting on the Supreme Court for 55 years. He's previously written for The Boston Globe, The Baltimore Sun and The Wall Street Journal. If you'd like to join this conversation, give us a call at 800-433-8850. Did you rely on SCOTUSblog last month for the decision surrounding same-sex marriage or the Voting Rights Act?
NNAMDIIf so, why? Give us a call. Tell us how it works for you, 800-433-8850. You can send email to email@example.com, or you can send us a tweet, @kojoshow. Tom, a little more than a decade ago, long before SCOTUSblog was an established news source, you were an attorney with a deep, burning desire to get inside the Supreme Court, argue before it. But you had no experience in front of the court, and you were literally cold-calling lawyers involved in cases that might be headed there. How did the idea of SCOTUSblog become part of your personal mission to become a Supreme Court litigator?
GOLDSTEINWell, it's true that most people are deterred by the fact that they have no relevant experience or knowledge or skills, but those of us who just plunge on headfirst don't get deterred. And so by that time, 10 years ago, my wife and I had a law practice out of our house, and we had actually one out of every 10 Supreme Court cases that we were representing one party or another, little cases, not the gay marriage case, not the Voting Rights Act case, but the Supreme Court decides a lot of tiny, little cases that aren't world-beating.
GOLDSTEINAnd what I decided was there's this thing, the Internet, and it's booming. And there's this thing, blogging, that you can start for free. And I bet that clients will look out there, and if we are writing all about what's going on at the Supreme Court, they will think, gosh, we must be the best Supreme Court lawyers. That was totally wrong, but it was the theory.
NNAMDIAnd it was a theory that worked out in interesting ways. What was your original concept for the blog? Besides it being a marketing ploy, what were you trying to accomplish as far as coverage and analysis were concerned?
GOLDSTEINWell, it would be unfair for me to describe us as having a real strategy, to be completely honest. It was just one day we started this blog, and 30 people visited it the second day, and we were just too embarrassed to stop, to be perfectly honest. In the broadest possible outline, the idea was they're really -- the Supreme Court is, as you described it in opening the show, a relatively opaque institution.
GOLDSTEINNow, individual newspapers say Lyle's reporting for The Baltimore Sun or The Wall Street Journal. Well, if you are a reader of that particular paper, then you're going to get excellent coverage. But for many people who don't have access to that coverage or just looking around, researching the Internet, there was a huge gap.
GOLDSTEINThis incredibly important institution -- tons is written about the White House. Tons is written about the House and Senate. But the Supreme Court, interestingly, was going uncovered, in some sense. Because it's such a specialized place, it takes either being a lawyer there or a reporter with as much experience as Lyle to really get it right.
NNAMDISpeaking of as much experience as Lyle, Lyle, you are one of the most experienced Supreme Court reporters, having seen a quarter of all justices in history sit on the bench. You've covered the court for a number of newspapers, as I mentioned earlier, including The Wall Street Journal and The Baltimore Sun. So how did you react when Tom asked you about coming on board to SCOTUSblog, and what did you think you could bring to this project?
DENNISTONWell, first of all, I was a bit desperate because I had just left The Boston Globe and was unemployed, and I was not yet ready to quit because it's been such a ride to do this for all these years. And so I was looking around for opportunities, and I had, of course, become aware of Tom and Amy's little project in Northwest Washington.
DENNISTONAnd so I just took a flier and got together with Tom and said, can you use me? And so we worked out a deal for me to come on board as a reporter. And I must say it was quite an adjustment because this was in 2004, and, up to that time, all of my experience was with either newspapers or, to some degree, radio and television -- but mostly with newspapers.
DENNISTONAnd so the idea of writing for something that just went off into the atmosphere without any notion as to who would read it -- if anybody would -- I must say I had a lot of faith in Tom and Amy that their imagination and creativity was going to make this a viable proposition. But it was a very strange experience for me to go from essentially print journalism to Internet journalism. And it's been a fantastic experience, and I must say it is very different from traditional journalism, very different.
NNAMDIIndeed. I want to talk to you about how different it is, but I can just see you going to Tom and Amy saying, can you use me? And this is Lyle Denniston we're talking about here. Can we use you? Can you tolerate us is the question you would ask.
GOLDSTEINWell, I mean, in so many different ways, right, we went from after just a year or two of the blog, it being Amy and I catch-as-catch-can, in between our day jobs, highlighting what we could figure out the Supreme Court was doing. Remember, the Supreme Court had barely anything of a website.
GOLDSTEINSo it was pretty opaque to us, too, to having the most, by far, experienced journalist on the court on some -- in some sense fall into our laps and being willing, at that time in particular, to have salary requirements that were commensurate with our complete lack of resources and the patience and the willingness to just jump in, to go -- you know, someone -- Lyle, you know, you can imagine, has been covering the court for, at that point, 40-plus years.
GOLDSTEINAnd to just grab hold of the technology and be so excited about dealing with the Internet and blogging, which was an entirely new platform, it was for sure an adventure for all of us.
NNAMDIAnd speaking of Amy, we got an email from Tina in Falls Church, who says, "Amy Howe's plain English explanations are the best. I'm not a lawyer, so this is the best way for me to understand the decisions." You, too, can send us an email to firstname.lastname@example.org. You can send us a tweet, @kojoshow, or you can go to our website, kojoshow.org, to join the conversation there.
NNAMDIWe're talking with Tom Goldstein, the founder and publisher of SCOTUSblog, and Lyle Denniston, who is a reporter for SCOTUSblog. You can also call us at 800-433-8850. Do you think the Supreme Court gets enough coverage in traditional media? 800-433-8850. Lyle, how is working for a blog a very much new media venture, different from the newspaper gigs you held for so long at the court?
DENNISTONWell, for -- the first thing and probably the most noticeable thing for me is the mutual cooperation that goes on in the global digital village. In newspapering, there's always a very strong sense of competition with the other people who are doing the same thing. But in digital commerce, in digital journalism, everybody helps everybody else to a very great degree. Example, I will see something on Howard Bashman's blog, or I will see something on Gene Volokh's blog, and I will, of course, give them credit for it when they were the source of what I do.
DENNISTONSo I look to a lot of other people in the digital village to help me keep track of what's going on, to pay attention to things that I really don't have the time to look for myself. And so the cooperative instinct is very much different from daily newspapering. But the -- also the fact that we are on a 24-hour operation. I tell my wife, you know, I really have only a light editor. I have no assignments, and I have no deadlines. And my wife responds, that means you work all the time...
GOLDSTEINYeah, that's true.
DENNISTON...which is quite true. I mean, I was posting yesterday afternoon for the blog on a development that I heard about from a law student at BYU in Utah. And so that's the kind of mutuality that goes on. As well as the medium itself is very, very different.
NNAMDIGone are the days when the UPI correspondent tried to keep the AP correspondent from getting into the phone booth before either.
NNAMDIThere's a higher level of cooperation. Tom, the New Republic once wrote a view that you learned your craft as a Supreme Court lawyer not from a Supreme Court clerkship or from the professors at Harvard or Stanford law, but from a generation of ambulance-chaser kind of lawyers. What would you say to that?
GOLDSTEINWell, you have to distinguish, I think, how it is you're going to get the business from how you're going to do the business. If you graduate, as I did, from the great American university -- I went to a law school here and had an incredible experience. But one thing that's not going to happen is that people are going to knock on your door and ask you to do their Supreme Court case. It's just not going to happen, particularly if you haven't clerked at the Supreme Court, and I didn't, don't work at the solicitor general's office, and I didn't.
GOLDSTEINSo I was going to have to -- if I wanted to get involved, having been Nina Totenberg's intern for two years at NPR, and having fallen in love with the Supreme Court, I was going to have to go out and make that happen. I was going to have to go pursue them. Then the question is, how is it that you're going to do a good job for your clients?
GOLDSTEINAnd that has been a learning experience, and eventually I came to teach Supreme Court litigation at a couple of law schools. So I -- it was very unusual in a very staid bar that was led by people like John Roberts, now our chief justice, Ted Olson, who are used to having people bring cases to them, to have some kid go out to the lawyers in cases and say, I want to help you go to the Supreme Court.
NNAMDINew business model completely.
GOLDSTEINA new and sometimes not appreciated, including by, at the time, some of the justices. Now the world is totally different. There were only three law firms at the time that claimed to have Supreme Court practices. Now there are 30, and now there are six law schools that have these clinics. And so people are chasing after cases all the time, the most experienced lawyers in the country. But at the time, it was looked down, I think it's fair to say.
NNAMDILyle, how did you reconcile the potential conflicts of interest that may have been involved with the site in its original conception? Here was a guy with a Supreme Court practice who was approaching you about managing a new site dedicated to coverage of the court.
DENNISTONWell, it's kind of like the separation between church and state. I mean, we're using Thomas Jefferson's wonderful analogy. There's a wall of separation between the legal practice and my journalistic practice. And when I write about a case in which the firm has been involved, I always include a disclaimer at the bottom of the story. And growing up in journalism, I think it's possible for a human being to compartmentalize their life and to detach themselves from surrounding influences.
DENNISTONAnd so my commitment is really to the readers of our blog, to their interest in the Supreme Court, more than in the business of the law firm itself. Now, the law firm is quite competent of going its own way and doing its own marketing, and they really don't need me to do that. But it would be unethical compromise for me to do that.
DENNISTONAnd so I have all along, and I think Tom and Amy and I have always understood this from the very outset, that I would, in no way, be a part or an extension of the marketing efforts of the law firm and would try to behave as much as possible as an independent journalist as if the sponsor of my work was somebody like The New York Times, The Washington Post or some radio or television station.
GOLDSTEINIn fact, that's been really important to the credibility of the blog. We learned a lot about in editorial independence and reporting independence from Lyle, and we adapted and adopted new rules. So, for example, the lawyers in the law firm aren't allowed to comment on the law firm's cases on the blog. They're always firmed out to other people. And Lyle has said things about my oral arguments that, you know...
NNAMDIOh, yeah. I've read that.
GOLDSTEIN...I would, you know, I prefer my family not read but has the complete independence and has never heard boo for me about that. And the other good thing is that, you know, we know Lyle's sense of independence, and it would be silly for us to try and influence anything that he's doing.
NNAMDIWell, nevertheless and in spite of, it's my understanding that until recently, Lyle's credentials to cover the court came from WBUR, the NPR affiliate station in Boston, not from SCOTUSblog. Your site had tried repeatedly to be credential by the court. What reason did you get for being turned down, and what does it mean to you to be credentialed now?
GOLDSTEINWell, we aren't. So just to be clear, our relationship with the Supreme Court continues to evolve, and it's an ongoing discussion. We have the unbelievable good fortune that Lyle is credential through WBUR, who he had some work for.
NNAMDII thought that had changed.
GOLDSTEINWell, we had hoped it had changed. Well -- and we are always glad for Lyle to contribute to WBUR. But we had hoped that the fact the Senate did finally give us a credential would resolve our Supreme Court credential.
GOLDSTEINAnd it may well, and we are hopeful that it will, and this summer is an opportunity for everybody to step back and have some conversations about it. But despite the fact that we put more resources into covering the Supreme Court than anybody ever, the court has had difficulty in really trying to draw lines. I think they do respect us. They appreciate Lyle. They use us a lot. We get -- we can get 1,000 visits from inside the Supreme Court in a single day.
GOLDSTEINBut they, you know, the court is a very staid institution that doesn't like change, and it doesn't know to separate our website from -- it doesn't believe it knows how even though, you know, we win the Peabody and other national journalism awards. It worries that there will be a train of other people applying for credentials.
NNAMDIOn to the telephones. Here is Andrew in Washington, D.C. Gentlemen, don your headsets, please, so that you can hear Andrew. Andrew, you're on the air. Go ahead, please.
ANDREWHi, Kojo. I love you show. I listen every chance that I get. My question was for both Tom and Lyle. So recently, there was a decision made about patenting human genes, and that was, you know, in the science world as big as the situation with same-sex marriage socially. And I was just curious, when you write about these kinds of topics, because they're such a vast array of different decisions done by the Supreme Court, do you bring in other experts?
ANDREWI ask someone myself. I have a Ph.D. in biological science. So I'm just curious if you bring in people from the relevant realms of professions and have them comment and kind of basically explain the technical terminology and everything.
DENNISTONWell, we often, at the blog, will have outside experts come in and do a series of articles in what we call a symposium. And we did so on the human genes case. But generally speaking, Kojo, I don't enlist outside sources to help me understand because I'm really devoted to the documentary material that the court is looking at. And so if I don't understand something that's in the papers before the court, I will take the papers home at night and just stay up until I do understand it.
DENNISTONAnd I would rather not get into the habit even occasionally of enlisting outside expert commentators because I still have the -- perhaps the illusion that I'm writing for the lay public. And I want understand what the court does in strictly lay terms. I can write like a lawyer, I think, after having done this for more than a half century. But I prefer...
NNAMDIFifty five years, yes.
DENNISTONI prefer not to. And so maybe my copy sometimes is not as technically competent in a specialized field like the human genome. But I think it communicates at a level that the lay public can appreciate.
GOLDSTEINI'll also add that in technical legal cases -- so Lyle covers the most important cases for us, and then we go from there. And the court, as the caller says, tackles a huge array of federal law questions. Literally, anything under federal law can come to the Supreme Court. And so we will frequently have the person covering the case be a specialist in that field.
NNAMDIThank you very much for your call, Andrew. We're going to take a short break. If you have called, stay on the line. If you'd like to call, the number is 800-433-8850. By the way, do you think the Supreme Court should allow cameras in the courtroom? Why or why not? 800-433-8850. You can send us a tweet, @kojoshow, or email to email@example.com. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking about SCOTUSblog, the go-to website for all things Supreme Court with the founder and publisher of SCOTUSblog, Tom Goldstein. He is also a partner at the law firm Goldstein & Russell, which focuses on arguing cases before the Supreme Court. He joins us in studio with Lyle Denniston.
NNAMDIHe is a reporter for SCOTUSblog who's been reporting on the Supreme Court for 55 years, having previously written for the Boston Globe, the Baltimore Sun, The Wall Street Journal. We're taking your calls at 800-433-8850. Lyle, the Supreme Court is one of the more opaque government institutions with its camera-free courtroom and often-lethargic pace. What would you say are the most challenging aspects of covering the court as a beat?
DENNISTONWell, I think the biggest impediment to public interest in the court and, therefore, the hardest job for journalists is that very few of the cases are what you would call easy landmarked cases. I mean, we do get maybe a half a dozen, perhaps a dozen major cases a year like same-sex marriage or the Voting Rights Act, those kinds of things. But out of the 75 cases that are heard and decided each term, approximately, I would say the vast bulk of those are cases that are fairly narrow in scope like at a trust law, tax law, labor law.
DENNISTONAnd if you're going to try to communicate about those very technical errors of the law, you have to learn a lay language for doing so. And that's difficult because lawyers do not communicate in lay language, though there's -- I know there's a movement for years in the legal community to try to improve the readability and the free open understanding of legal documents.
DENNISTONBut lawyers tend to communicate in legal terms. The court communicates in legal terms. And so it's always been, for someone writing for a general circulation medium, an enormous challenge to be able to translate legal concepts into the language of the street. And it helps, in my case, to have worked for an afternoon newspaper and to have a very early deadline.
DENNISTONAnd so I had to dictate my stories from scratch when I worked for an afternoon newspaper and for a general audience. And so I learned to leave all of the legal terms and phraseology out. But it's important, no matter how urgent it is, for you to be able to communicate in that language, not to change the substantive meaning. And that's the real challenge.
NNAMDITom, your block has managed to become a must-read site, both for people casually interested in big cases and for experienced lawyers at white-shoe law firms. How have you managed to put up content that appeals to experts and novices alike, and who would you consider to be your audience at this point in the site's life cycle?
GOLDSTEINIt's really a puzzle. We do user surveys to figure out who's reading us. And it's incredibly diverse. We have, of course, lawyers, and that's who we pretty much started with, and then law students who really are interested in Supreme Court. We built in them. And our sponsor, Bloomberg Law, who makes this all go round and financially makes it possible is particularly interested in those audiences.
GOLDSTEINAt the same time, particularly when it came to the health care case last year, same-sex marriage and the Voting Rights Act this year, a whole new group of people discovered us, and those people are measured in the millions, to be honest. And writing for them at the same time requires either exceptional experience and talent, as with Lyle, who is able to convey very sophisticated concepts in language that ordinary people can understand or working through Amy's plain English where what she does is really, really focus not even on the breadth of the entire readership, but in the non-lawyer readers.
GOLDSTEINAnd so we will not infrequently have two different pieces on the same subject. And the reader surveys indicate that there are a group of people, as in the very first email that you got and read from, really appreciate that someone is taking things that are so important as Supreme Court decisions that will be historic and be talked about for centuries and explaining it just for them. So we don't have -- there's no magic formula other than someone like Lyle who has the experience to write for both.
NNAMDIOn to the telephones again. Here now is Oscar in Woodbridge, Va. Oscar, your turn.
OSCARHello. This is Oscar. I am calling in reference to the way the U.S. see the Supreme Court decisions in comparison with other foreign attorneys or foreign country positions from the U.S. court. I believe the effect of those cases of the U.S. Supreme Court are affecting -- are very interesting to see how they affect other countries. In the Council, for instance, one example is the due process of law. And that is why I am doing -- and I think that it's very important that our group of attorney will see the Supreme Court in their view of international relations.
NNAMDICare to comment on that?
GOLDSTEINSure. So this is actually a major issue. We see it in going in both directions. The big controversy a few years ago was, should the U.S. Supreme Court be citing decisions from other supreme court's foreign law? This question comes in the other direction, and that is, how influential is the U.S. Supreme Court for other countries? But it turns out the two are really related. A lot of the time, I think the justices here are citing foreign court decisions so that those justices will cite U.S. Supreme Court decisions.
GOLDSTEINIt's a kind of a parody to it, a sense of equality that the U.S. Supreme Court doesn't think it's better. The justices are frequently overseas. Many of them are, right now, meeting with their colleagues in other Supreme Courts. There are lots of exchanges. And throughout history, justice in the United States has been a model in theory at least, and hopefully, in practice for democracy, so too the U.S. Supreme Court's decisions have been cited by the European Court of Human Rights and lots and lots of other courts.
GOLDSTEINBecause it's a very -- we have a very mature, very respected legal system, so it is a very important point. And the justices do hope, I think, for example, Justice Kennedy sent her vote, really does believe in exporting our model. Now, there are other, you know, the South African constitution is an incredibly different instruments so are lots of European constitutions, if there is a constitution. And so it doesn't always fit, but the U.S. Supreme Court's decisions are extremely influential around the world.
NNAMDIThank you very much for your call, Oscar. We move on to Denise in Baltimore, Md. Denise, you're on the air. Go ahead, please.
DENISEYes, I have a question, and I'm talking because I have specific situation that I read about that there's a case in South Carolina where the Supreme Court -- it went all the way up to the Supreme Court, about racial discrimination at Nucor, whoever, and I don't know the people. But the issue is how is it that the Supreme Court makes the decisions or made a decision, but yet they go back to the lower state level, and the state doesn't have to uphold the supreme law of the land. Would are we to get from that as far as it pertains to the Supreme Court being the Supreme Court law of the land?
NNAMDII don't know if Lyle Denniston knows the specific incidental case about which you're talking but in general.
DENNISTONWell, if the Supreme Court has spoken about the meaning of the federal constitution, all parts of the judiciary in all levels are bound by that under Article 6 of our Constitution, which embraces what's called the supremacy doctrine. That is, that on matters of constitutional law, the federal interpretation and by use and want, ever since 1803, the Supreme Court has been the place where constitutional interpretation has been primarily done.
DENNISTONAnd so when the Supreme Court decides a federal constitutional issue, a state court has no option but to follow that though there are cases obviously where the Supreme Court will make a decision, and it will go back and be decided on a different basis of law. For example, we had a case's term involving the dispute over adopting an Indian child. The child's mother had chosen to place the child for adoption at birth, and the child's Indian father wanted to keep the child.
DENNISTONAnd the Supreme Court cleared the way for the non-Indian couple to achieve adoption. That went back to the South Carolina Supreme Court. And the decision just last week, the South Carolina Supreme Court ruled for the non-Indian parents. Now, that is not an active defiance. As a matter of fact, in this particular instance, it was really taking advantage by the adoptive couple of a Supreme Court decision that went largely and went out finally in their way.
NNAMDIThank you very much for your call, Denise. Here is an email we got from Christine in Silver Spring, "How does Lyle do it? I've been curious. How does he relay information from inside the courtroom? Don't they have restrictions on technology inside the courtroom? And what strategy does SCOTUSblog implement during high-profile decisions like health care, et cetera?"
DENNISTONWell, let me take the first part on the mechanics, and Tom can do the latter. We simply operate by telephone in the press room as do other reporters or by telephone connections through the Internet. We are not broadcasting or reporting from inside the courtroom. No electronic instruments of any kind are permitted in the courtroom itself. No tape recorders, no video, no cell phones, no smartphones.
DENNISTONSo when I talk to Amy or to Tom or others before we put something on the blog, I'm just talking to them either on the phone or through communication over the Internet or sometimes posting directly to the blog. So we are not deviating electronically from the court's ban on electronics in the courtroom. And we are performing very much the way other reporters are in the press room.
NNAMDITom Goldstein, the strategy that SCOTUSblog implements during high-profile decisions like health care, et cetera.
GOLDSTEINSure. So there are two different pieces of the puzzle: one is during the oral argument and the second is when the case is decided. During oral argument, what will happen is that Lyle will, in the biggest cases, attend the oral argument, come down the stairs, and he said from his experience for writing after newspapers, write in extreme, you know, very quick but very thorough story.
GOLDSTEINBut even before then, Amy and I or other people on our team will either -- will generally sit in the lawyer's lounge, which is where lawyers can sit that's not in the courtroom but you hear the oral argument, and we will leave the lawyer's lounge and indeed leave the court building. And at that point, we're allowed to tweet, to post to the blog, and we'll do during -- our updates during oral arguments.
GOLDSTEINAnd that's something relatively unique that we do. When it comes to the decisions, as Lyle was describing, what will happen is in the public information office, they will hand out the opinion. Lyle is incredibly quick at figuring out what it is the court has done, and he will report it to us by telephone. And we do this thing, live blogging, which has really become somewhat popular.
GOLDSTEINWe can have hundreds of thousands of people on the blog waiting for Lyle to report seconds after the case is decided what the result is. And during that time, we will, you know, have maybe a half dozen experienced people answering readers' questions. So we've developed a little sense of community. But when -- the caller is principally here asking, I think, you know, when the health care case was decided, when the Voting Rights Act case was decided, when same-sex marriage was decided, how do you get that information out? That was Lyle reporting it to us by phone.
NNAMDIWell, this raises the question -- hundreds of thousands of people flocked to the blog on big decisions days. What has the process of expanding from a personal blog with just a few readers to a site with a 25-person masthead and an incredible amount of traffic been like?
GOLDSTEINWell, it has been an evolution as we have learned from lots of people, including principally Lyle, what it is to be a journalistic institution and the independence that's required. And we just have gotten so much support from the readers and from a broader community who are really grateful to have a team of people who are focusing on this one institution that, as you said at the very beginning, is relatively opaque. And what it has allowed us to do is go from covering just the big cases to covering all the cases and covering all the significant petitions that are sent to the justices.
GOLDSTEINAnd in the case of very significant issues, Lyle covers issues that may come to the Supreme Court in the future. For example, Lyle, along with Carol Rosenberg, at the paper for -- in Miami, has really owned all of the lower court decisions on detainees that get them out, right? So there are different subjects that Lyle foresees coming up to the Supreme Court. And so we just have such a big team that we are able to -- we, hopefully, don't miss anything.
NNAMDILyle, what would you say is your site's relationship to the rest of the court's press corps and how would you describe the modern Supreme Court press corps to begin with? It's a circus on days like the DOMA decision and on the health care decision, but what is it like from day to day?
DENNISTONWell, from day to day, it's -- Kojo, it's really isolated. The availability on our site and elsewhere on the Internet of all of the documentary materials that the court uses for its decisions makes it unnecessary for a lot of the reporters to even show up at the court house except for oral argument or decision days. And so if you were to go into the press room this morning, for example, or this afternoon, you would see perhaps three people in the press room. There would be two people from the Associated Press and me.
DENNISTONSome other days, a reporter will come in, let's say from Dow Jones or will come in from Bloomberg News or Bloomberg Law. But during the downtimes, that is when the court itself is not in public session, the reporters just don't show up. And so I think, in fact, they miss a good deal because the court is a very small place physically.
DENNISTONAnd in a communal sense, when you run into the justices in the cafeteria line, you see them in the hallway, you can walk around the outside of the building with them from time to time, there is a personal commerce that goes on when you're on the beat. And that helps inform you about the human institution. I think some reporters who are depending upon the documentary material from outside the court really miss a great deal about the human dimension of that place.
NNAMDIGot to take a short break. If you have called, stay on the line. We will get to your calls. The number is 800-433-8850. Do you think the Supreme Court should allow cameras into the court room? Why or why not? How much attention do you pay to the Supreme Court? How does the quality of news coverage about the court affect your interest in it? You can also send email to firstname.lastname@example.org. Or go to our website, kojoshow.org, ask a question or make a comment there. I'm Kojo Nnamdi.
NNAMDIWelcome back. We're talking with Tom Goldstein. He is the founder and publisher of SCOTUSblog. It's a website dedicated to coverage of the United States Supreme Court. He's also a partner at the law firm Goldstein & Russell, which focuses on arguing cases before the high court. Lyle Denniston is a reporter for SCOTUSblog.
NNAMDIHe's been reporting on the Supreme Court for 55 years. He's previously written for the Boston Globe, the Baltimore Sun and The Wall Street Journal. Lyle, people often see the Supreme Court, as both Tom and I have been saying, as relatively opaque. However, you recently wrote that transparency of the Supreme Court is at its peak. How has the court become easier to report on?
DENNISTONWell, around the courthouse, and I think this is literally true, they talk about how the business of the court comes in the front door and goes back out the front door. In other words, except for the private deliberations of the justices between the time of oral argument and the time that a decision comes out, it's very much an open process and with very few exceptions. For example, one exception was during the Pentagon papers cases -- case in the 1970s, some of the materials there were classified and, therefore, were not available.
DENNISTONBut those are really rare exceptions so that all of the documentary material upon which the court will depend is available to us in the press. There are some parts of the institution which are closed to us. For example, the weekly conference at which the court decides what cases to hear and deliberates on the substantive content or decisions, those are obviously closed to us.
DENNISTONBut the justices themselves are now much more accessible publicly than they ever were before. Tom mentioned that some of them teach in the summer. But many of them now are appearing on television shows. They're making public speeches in various venues. So the court members themselves are much more public figures. Along, every now and then, will come a justice who doesn't like that.
DENNISTONDavid Souter, for example, was a justice who just abhorred the idea of appearing in public, and so he didn't do it. But somebody like Justice Scalia is really a thespian at heart, and he loves being on the stage. He loves being a public figure. He loves being controversial, too. So there is much about the court, if you simply want to pay attention to it, that will inform you fully about what it's doing. It has really, Kojo, very few secrets.
GOLDSTEINI agree with that entirely about secrets. But the one thing that I did view as very disappointing, and you've mentioned it in suggesting people call about it is...
NNAMDIHere it comes, yes.
GOLDSTEINIt's the cameras. And that is, yeah, if you live in Washington and you know when to get in line, sure. But if you want to come from Oklahoma City or from Tennessee or from Montana, best of luck to you to getting -- now the -- you will get the -- the tapes will be available at the end of the week. The transcripts will be available each day, as Lyle says, increasing efforts at transparency. But we are a visual culture, and the ability to see the actual oral arguments is something that is missing.
NNAMDIWell, before I ask Lyle the same question, here's an email we got from Dave in Downtown Washington. "Do you really want the Supreme Court to be like the U.S. House, people playing to the camera so they can get clips on 'Sean Hannity' or 'Rachel Maddow'? Stop the cable" -- Oh, I have to pronounce this word -- "stop the cable televisionization (sic) of the Supreme Court. It's all we got left." What do you say, Lyle?
DENNISTONWell, there's a much larger societal or cultural issue here. The politicization of the legal system itself is now very well advanced, very well developed. It comes through the court -- to the court primarily through the confirmation process in the Senate. And I think that process has become so thoroughly politicized that the justices carry some of that with them on to the bench.
DENNISTONOne manifestation of this is that justices who are on dissent are now much more often announcing their dissent orally from the bench, which sort of suggests that, you know, that the dissenters really can't go along with the case having been decided in one way. And they've got to stand up and publicly complain about that. And I think that contributes to the notion that some of the court's work is driven by political considerations. I don't think that's necessarily provable, but I have a suspicion.
DENNISTONAnd while I am an absolutist about the First Amendment and I believe that the government should not be able to exclude one medium because it doesn't trust what that medium will do with it, the other side of that question is how the justices would behave. And I can imagine that there are members of this bench who would play to the cameras. And this process, as I say, has developed to the point where it's already got enough aroma of politics about it that I'm not sure that I'm as strongly committed to it as Tom is or as I used to be.
NNAMDIRavi in Alexandria would like to know Tom's opinion about it. Ravi says that, "It seems that more and more people look at the court these days as if they are competing teams. Is that fair that it's Republicans versus Democrats or justices appointed by Republican and Democrats competing for different outcomes? What are Tom's feelings about whether the court remains insulated from partisan politics as it's supposed to be designed to be?"
GOLDSTEINWell, it's an excellent point. Remember, our justices are nominated by the president and confirmed by the Senate. They have life tenure. So they're supposed to be able to get out of the business of politics. I do think that there is this felt sense, to some extent, that dates to -- some people would say to Roe v. Wade, other people would say to Bush v. Gore, depending on what side of the aisle you might be on, that the court is a political, closely divided institution.
GOLDSTEINThe numbers suggest that is not right. The court decides almost half of its cases or basically 50 percent, nine to nothing. The number of cases that are decided 5-to-4 on ideological lines, that is our five more conservative versus our four more liberal ones will be somewhere in the order of seven to 13 cases in a term.
GOLDSTEINNow, they might be super-important cases and Justice Kennedy might be the tipping point as with, on the one hand, voting to strike down Section 4 of the Voting Rights Act, on the other hand -- which is a very conservative ruling, on the other hand strike down parts of the Defense of Marriage Act, which is a much more liberal ruling. But in the main, that's not how the cases are decided. And when they are decided that way, it's no real surprise.
GOLDSTEINPresidents do pick out justices that have -- that try to have a judicial philosophy that corresponds with their own, and the justices tend to have a strong view on questions like abortion, race, religion and the like. But the country shouldn't be misled into believing that all the cases or even a substantial majority of the cases are decided that way.
NNAMDIHere's Levitta (sp?) in McLean, Va. on this issue. Levitta, you're on the air. Go ahead, please.
LEVITTASCOTUS is terrific, I've got to say.
GOLDSTEINWell, thank you.
LEVITTAWhen Kennedy and Nixon debated, those who listened to Nixon on the radio thought he won, and those who watched it on TV thought that Kennedy won. The thing about Supreme Court arguments, from my experience, is the substance is the most important thing as opposed to appearance. Radio is the best medium for (unintelligible).
GOLDSTEINFor real substance.
LEVITTAThe -- 'cause people have to listen and have to listen carefully if they're going to keep tuned in. And that is the best medium, and I think it's a very good medium. I listen to C-Span arguments all the time, current and old arguments. Now, the best is being in the courtroom. I was lucky enough to be there for the health arguments, and it was something very special. And more accessibility for every American citizen, from Oklahoma or wherever, would be good. But if you want to broaden access, radio is the way to go.
NNAMDILevitta, thank you very much for your call. But it does raise a question because you say being there in person and watching the oral argument is the best. Lyle, how much does oral argument matter? A lot of people who went to the health care oral argument assumed that the Obama administration blew it.
DENNISTONWell, the justices themselves will tell you that oral argument makes a difference to their perception of the case in about maybe a quarter to 30 percent of the time. In other words, not that they have their minds made up when they go in, but they have an inclination when they go into oral argument. And they basically use oral argument to try to probe where each other is through the medium of the lawyer appearing at the podium.
DENNISTONAnd, by the way, Clarence Thomas not participating in oral argument forfeits, I think, a substantial opportunity for him to try to shape the conversation that the justices themselves will have when they go back into their private conference room to discuss it because the oral argument is very much an agenda-setting period in the court's life.
DENNISTONAnd the court, I think, depends very heavily on oral argument. There are some justices who will tell you that they would like more oral arguments. In other words, instead of 30 minutes to decide, they would like an hour because with the court only deciding 75 cases a term, there are justices who believe that more time could be spent usefully in oral argument.
DENNISTONI find that most of the time when I come out of an oral argument and later compare that to the outcome of the case, that my original perceptions are not often very far off because the range of options that the court has going into oral argument is always limited. And, therefore, the range of options that will dictate the decision at the end of the process is similarly limited. And you can pretty well pick up the signs much of the time, not always.
NNAMDILevitta, thank you very much for your call. Tom Goldstein, what's the nature of your site's new relationship with Bloomberg Law?
GOLDSTEINWell, it's the best of all worlds. And that is Bloomberg Law does view us, I think as, A, a public service and, B, a entree to an audience that they care about, that is the law firms that would buy the service. It's the competitor Lexis and Westlaw that takes advantage of Bloomberg's special financial information. And so the lawyers and law students that they're talking to or trying to get as customers are our readers. And they are amazing to us.
GOLDSTEINThey financed the entire blog, and they do not interfere with us editorially at all. So they let us do our thing. And I think that's just been -- it is illustrative of the incredible kindness that we've gotten from a huge array of people who kind of respect us in our tiny little world as we really know what we're doing. And they tend to leave us alone and rely on what we say.
NNAMDIBut does this change the way you look at yourselves now because it may be tough for you to see yourself and others to see you as a scrappy upstart when you've got Bloomberg money behind you?
GOLDSTEINRight. We -- our goal is not to develop an image anymore. We started that way. We wanted the blog to be a marketing tool to develop an image. Now, we're just interested in helping people. We have the resources to do it, we want people to understand the Supreme Court. We genuinely care about the place, and we care about the public's understanding of it.
GOLDSTEINAnd whether people view us as scrappy or an institution or not, what matters is do they think we're doing a good job or not. And it's true we're no longer the underdog. We do believe that when people are interested in the Supreme Court, there's a good chance they will come to us before other people, which is all to the good.
NNAMDIAnd that, of course, includes most of your competitors. Tom Goldstein is the founder and publisher of SCOTUSblog. That's a website dedicated to coverage of the United States Supreme Court. He's also a partner at the law firm Goldstein & Russell, which focuses on arguing cases before the Supreme Court. Tom Goldstein, thank you for joining us.
GOLDSTEINThank you so much for having me.
NNAMDILyle Denniston is a reporter for SCOTUSblog. He's been reporting on the Supreme Court for 55 years. He's previously written for the Boston Globe, the Baltimore Sun and The Wall Street Journal. Lyle Denniston, thank you very much for gracing our studios.
DENNISTONIt's been a pleasure. Thank you.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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