Commentary Magazine


Legal Reporting 101

Sometimes you wish that employees of a newspaper would talk to one another, or read what others write before submitting their own copy. In today’s Washington Post, the front page news section has a ludicrous article on how Supreme Court Justices have moved to the “middle,” using as examples the recent cases involving interpretation of a post-civil war anti-discrimination statute and the federal age discrimination statute.

Why ludicrous? There is nothing “middle” about interpreting a statute. It says one thing, or it says another. This, of course, is the cardinal error of much of what passes for legal reporting. It misses the distinction between a policy objective (Let’s give citizens an avenue for pursuing retaliation claims, other than Title VII or state statues) and the legal analysis (What does this particular statute mean?). And as for the reporting, it tells us nothing of the arguments and the actual basis for the decision, nor the reason for the dissenters’ viewpoint.

For that you can skip to the opinion section of the Post, where the editors seem to understand all of this quite well. They actually explain the two cases and the distinction between the majority and dissent, noting that neither of these statutes mention anything about retaliation. (Gosh, it would have been nice if the news reporters mentioned that. So the Justices made up a retaliation provision because Congress left it out?) The editors conclude:

Protecting employees from retaliation makes sense, but it is not the province of judges to create such protections on the basis of their own beliefs of what is right or wrong, or even on the basis of their intuitive sense of what Congress meant to do or should have done. And those who today praise the outcome shouldn’t be upset if in the future justices read into the law new principles that lead to results they may find less acceptable.

So the lesson to be learned: if you want accurate and insightful reporting on the Supreme Court from the Post, look at the op-ed page. You won’t find it in the news section.