Time Magazine...Shame on You.

Time's cover article entitled, "Does the Supreme Court Matter?" seems to want to marginalize the role of the Court in contemporary society. The conclusion is that the Court's hot-button decisions (e.g. abortion, affirmative action, etc) affect fewer and fewer people, while the rest of the decisions are merely hyper-technical distinctions whose import is too nuanced to matter to any but legal scholars.

The article couches these conclusions in a piece that revolves around Chief Justice Roberts, with somewhat inane bits of information like his practice of reading a particular poem each year. It paints him and the rest of the Court as out of touch "technocrats" who use their acumen to trumpet the intellectual accomplishments contained in their opinions. It ends by stating that Roberts' intention to bring accord to a fractured Court, and the current reality of that schism, is "the gap between [what] should be and [what] is."

I think the article gets the Court's story (and relevance) completely wrong.

First, the fact that some of the recent hot-button issue decisions directly impact only a few people is misleading. Yes, the type of partial birth abortion that was the subject of the Court's most recent decision may only be used in rare instances. But the significance of that decision is no less critical because, among other reasons, it was the first regulation of abortion that did not require an exception for the health of the mother. The same holds true for affirmative action, and although the decision only affected a relatively small number of students in those specific cases, the same selection process is apparently in use across the nation (which means it clearly affects lots of kids). As for upcoming cases, I'm not sure how any death penalty decision could ever be evaluated based on the number of people it impacts, but in this case the fact that the Court would be applying it to child-rapists (an expansion of its current use) seems, at the
very least, to have critical moral implications.

In addition to these mischaracterizations about hot button issues, the article ignores items on the current Court docket that impact lots of people. For example, the Court just heard oral arguments about how far liability can be extended in an insider-trading scenario. For the many people involved in these transactions, from the lawyers and accountants to the strategic partners, it's a huge issue. Don't take my word for it, just read any business magazine or website about how critical businesspeople think this case is.

What bothers me the most is that the article seems to have taken a position and then crafted the facts to support that conclusion. The byline of the title is "Food fights. Bombastic opinions. Small cases." Food fights? What does that have to do with anything going on with the Court? Is Time actually claiming that the Justices have food fights?

There is no doubt that Time magazine has a long and distinguished history of outstanding journalism. However, in this case, the article seems to demonstrate how traditional media feels that it needs to create hype and controversy to drive sales rather than just giving people solid, unbiased information.

Malcolm Friedberg is the author of Why We'll Win, a set of books that explain the law behind hot-button issues to laypeople.

Comments

[ConcernedAboutRFuture]

Hmmmm..... let's see, after putting Bush in office and ruining our country...­and of course continually ruling for big business..­.. I'd say they really DO NOT matter to the public. They just do as the chimp says.

[GCOBAU]

Whenever I read Time Magazine, I'm always struck by what an ignorant piece of crap it is. I don't know why anyone would take it seriously.

[GenericBlogger]

The Time article written by David von Drehle is a naive shallow report of the current court, written by someone who probably expects or is used to sensational news.

von Drehle mentioned no landmark decisions which affect a significant number of people have been made recently. The fact that the number cases heard in the current session is the lowest since 1953 means the Court was too selective, not necessarily that there is a shortage of issues to be resolved.

Whatever decisions the SCOTUS makes on the case in Seattle, Jefferson Country, KY or any locality impacts the rest of the country. von Drehle suppressed the relevance of the cases to enhance his belief that landmark cases didn't exist in the last Supreme Court session.

von Drehle missed one relevant point when indicating a shortage of landmark cases and decisions. Cases with a more demure character are a good sign because if more landmark cases were heard, it means we live in a relatively unstable and tumultuous society.

The fact that major decisions were made in the past means we have made some progress. I am not saying the worse problems of our society have been solved. Nor am I saying all the major problems have been solved and all that remains is dotting the i's and crossing the t's. Far from it. I am saying we as a society made some progress and more unmade progress remains.

In cases of racism, the supreme court cannot eliminate racism. The best the supreme court can do is render decisions that facilitate our society to resolve issues and differences.

A side note, one factor affecting justices engaging in more debates with personal tones might be the exposure given to justices by the higher number of court watchers, journalists, writers whose stories end up on TV and a rising number of blogs and internet news sites.

[WorkingClass]

Now that the law does not apply to the president - the president is the law. There is nothing left for the Supreme Court to discuss except what the Constitution used to mean. How is the court relevant in a dictatorship?

[swift goat pet for truth]

OF COURSE the Fascist Enablers are relevant.
What kind of question is that?

[NABNYC]

The surprising thing (to me) about judges is that so few of them have any commitment to the law, to stare decisis, or to justice.

It is sad but true that the position of judge in the U.S. is mostly a political partisan appointment made to thank some attorney for raising lots of money for the Democratic or Republican party. Judges are not usually the smartest, the most honest, the hardest working, or the most ethical attorneys in their communities. They simply are very politically active and connected, and the payback they want is to be appointed judge.

Most judges are upper middle class white males. They have lives of privilege. For the most part, they share all the prejudices and ignorance of all upper middle class white males, and they don't even realize that they are biased.

They support rich white males in most disputes. If you bring two witnesses into the courtroom, one an upper class white male, one a lower class black female, the judge's opinion about which witness is credible will reflect his class and race background. It's just a fact.

And they belong to country clubs, and socialize, and golf with other upper class white males. They support the unlimited accumulation of wealth by the few, and strong law and order enforcement against the lower classes. They do not believe women belong in the courtroom, and tend to minimize the value of the work of females.

They don't believe working people should be allowed to sue for injury, and they do not believe that punitive damages should ever be awarded.

Their job should be to apply the law in complete disregard to issues like class and race. But that's just a fairy tale. If we want a judiciary that really is committed to justice, we need to have more women and minorities on the bench

Is anyone surprised that a bunch of rich white men on the Supreme Court have just ruled that affirmative action is illegal, and that separate but equal schools for black and white students is A-OK.

[sdskelton03]

I think they ruled the government can't assign schools on the basis of race. Sounds reasonable ot me.

Now a question regarding stare deciss. In 1896, the supreme court ruled in Plessy v. Furguson that racial segragation was legal in public accomodations through the doctrine of seperate but equal. This was reversed in 1954, 58 years later with the famous Brown v. Board of Education ruling.

My question for you, would you have opposed Brown on the bases of stare decisis?

[Giglawyer]

You are so dead right. I read the article and thought "what a crock of shit." I love how the author tries to marginalize the COurt because it has demonstrated a consistent ideological 5-4 split on some issues. Who cares what the split is. 5-4 might as well be 9-0 - its the law of the land. Is Congress marginalized because we know how they will vote?

[hopeless277]

Oh, they're just trying to be cute. How sweet of them to try and cheer us up as our country is sold out from under us and we're all sent to detention camps. Those Time people, always thinks about the welfare of others.