<em>Time</em> Magazine...Shame on You.

's cover article entitled, "Does the Supreme Court Matter?" seems to want to marginalize the role of the Court in contemporary society.
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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.

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