SCOTUS: The Same Emphasis

“The one function that TV news performs very well is that when there is no news we give it to you with the same emphasis as if it were.”

David Brinkley, broadcast journalist

The American press is dying of suspense, and it serves ’em right.

After reporting on the May leak of a draft SCOTUS opinion on abortion as though it were a done deal when in actual point of fact it’s not, American broadcast journalism has placed a massive critical spotlight on the Court and its opinions. Every week they don’t release the final judgment, the tension continues to build and speculation to circulate, until now, when there’s nothing new left to say and no fresh pundits to say it, they’re forced into invention to satisfy an audience ravenous for blood (or whatever it is that jurists use these days).

One curious side effect of this odd phenomenon is blindness when actual newsworthy events occur, such as the recent ruling against Monsanto (aka Bayer), the manufacturers of Round-Up and now judicially confirmed purveyors of deadly carcinogens masquerading as a pesticide. This decision was determined to be insufficiently newsworthy despite the massive stock market hit; instead it was buried on the back pages. MSNBC couldn’t broadcast it because it would have meant praising conservatives; Fox News couldn’t because it would be admitting that cancer isn’t always a punishment from a vengeful God.

Instead, only negative stories are permitted, and if the reports aren’t negative, then by holy Saint Bertrand Russell the spin will be.

So in the Berger case, the headlines read that the G.O.P. is now allowed to shut down voter rights indiscriminately and that it’s a terrible miscarriage of justice. However, the ruling was 8-1, and put briefly, says that it’s up to each state to decide what happens in their own state courts. It happens to favor a Republican legislature in this instance; surely it’s only a matter of short time before it benefits a Democrat in Illinois. The decision was made on a point of law, and Sotomayor’s dissent is, in my (not a lawyer) opinion a masterpiece in obfuscative inventiveness that every counselor ought to study for inspiration.

In Nance v. Ward, coverage is mixed: The liberal wing of the court ruled en bloc in favor of a prisoner on death row requesting a firing squad. Fox News can’t praise liberals, whereas MSNBC can’t talk about guns in a positive light. Following a confused initial announcement a decorous silence is now permitted to descend over the whole thing, when to my mind it’s clearly material demanding the front page.

The Carson decision, which permits the state of Maine to allow some rural students to attend religious private schools on the taxpayer’s dime, is widely bemoaned as a crumbling of the wall of separation between church and state. However, even MSNBC acknowledged (albeit below the fold) that the law as it had been written was widely seen as a case of unjust discrimination, and that the decision fell well within the bounds established by long-term precedent.

The coverage in Vega v. Tekoh, however, really takes the cake. The Court ruled 6-3 against a citizen being able to sue an officer for failure to read them their Miranda rights. Since all the conservatives agree, the headline is clearly that Miranda has been gutted. The truth of the matter is that Miranda is just fine; the cop, by failing to read a prisoner their rights, actually did them a favor by ensuring that their testimony is legally inadmissible. You can’t sue someone for failing to damage you.

Finally, in Bruen, the Court struck down a New York State law requiring people to show special circumstances (or, famously, to bribe a cop) in order to request a concealed carry permit. SCOTUS issued a massive tome of a decision, a masterwork on gun rights relative to the Second Amendment and concealed carry, in which it’s clearly specified that this only applies to a narrow set of cases. And yet even the A.P. headline talks about this as an unprecedented major expansion of gun rights in the wake of a spate of mass shootings.

None of the cases making headlines are surprises; none are truly newsworthy. Both of the decisions that have gotten buried are unusual, fascinating, and pass the “Man Bites Dog” test with flying colors.

And we still have no decision in the case of Dobbs v. Jackson Women’s Health, where the widely spread advance opinion was leaked. It could arrive as early as 10AM today, and will almost certainly be delivered between now and the end of next week. Massive protests, marches, and even riots are almost certainly waiting for us when it does happen — whether or not Roe v. Wade is even partly overturned.

Remember that in this specific case, the Court has already limited the entire scope of its consideration to the following question: Whether all pre-viability prohibitions on elective abortions are unconstitutional. Given that, in my (still not a lawyer) opinion, it’s unlikely in the extreme that Alito’s leaked opinion will be that of the final majority regardless of the hype.

Hype is not news, people — no matter how desperately they sell it to you.

UPDATE: Now it’s news.

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