I have recently seen a couple of examples of journalism that are worth some comment.
First the good. On Friday CNN.com published another article fact-checking a speech by President Biden.((I previously lauded an earlier piece by the same author, Daniel Dale.)) One begins to wonder if the President’s speechwriters are just this sloppy or really dishonest. Either way, these fact checking articles are examples of good journalism.
Now the bad. Does anyone remember the magazine Newsweek? Back in ancient times when I was in school (the 1970s and 1980s) it was owned by the Washington Post and was a rival to Time as a national weekly news magazine. It fell on hard times and has gone through a succession of owners, spending some time as on-line only, but now it’s back in-print as well. Anyway, last Friday the on-line version published an article entitled “Supreme Court Reconsiders Case to Reinstate Trump.” Okay, you got me, I clicked. It turns out that the “case”((Brunson v. Adams, docket number 22-380.)) is based upon the theory that their oath of office required that the members of the 117th Congress investigate unidentified claims of foreign influence in the presidential election. The plaintiff apparently names all the members who voted to certify that election as defendants, along with President Biden, Vice President Harris, and former Vice President Pence, and is seeking their removal from office and ineligibility to hold office again and the reinstatement of President Trump. It is one of hundreds of petitions for certiorari that were denied without further comment in the order list issued by the Supreme Court on January 9, 2023.((The order list resulted from the Court’s conference held on January 6th, which date the plaintiff believed betokened some significance.)) The plaintiff has filed a petition for rehearing, which was unsurprisingly denied when the order list resulting from the Court’s conference last Friday was issued on Tuesday.
Although the Newsweek article is factually accurate, it lacks crucial context and the headline’s choice of wording allows for the reader to believe that the Court has some interest in the case. The article is, in a word, misleading. There is a relatively low bar for a disappointed litigant to file a petition for certiorari, a modest filing fee and printing costs. The overall chance of any petition’s being granted is less than 3%,((One statistic I saw indicated that the average applicant to Harvard has a chance of admission that is twice as high.)) with pro se cases less likely to achieve the votes of four justices which is required for a grant.
Newsweek was not the only on-line news source to write about the denial of certiorari in the Brunson case. The Hill reported it on January 9, 2023, under the tile “Supreme Court declines to hear long shot 2020 election case” with a lot more background.
Now I’m not saying that the Newsweek article was intentionally misleading,((Never ascribe to malice what is adequately explained by stupidity.)) but professional journalists should have a bit more working knowledge of how our court system works. If, as I suspect, the Supreme Court disposes of the student loan cases on standing grounds, it will be inaccurate to describe the decision as “upholding” the forgiveness program, as the Court will not have reached the merits. Accuracy is important.
Jay Bohn
February 23, 2023