[Update: This analysis is pretty good.]
Adam Liptak was part of a panel discussion on media reporting of the Supreme Court (Dahlia Lithwick and Emily Bazelon was as well) recently and somewhat modestly spoke of the importance of his job, suggesting at one point there were some redundancies in having four papers, let's say, cover the same ground. The Slate duo wasn't so sure about that. Neither am I, at least, if the different voices do a good job providing the public the various sides of the question.
[Some of the panelists promoted standard frames like the Sotomayor hearings were lame that are tired -- what about pointing out that the Roberts nomination arose in a different context (deemed the best you can hope for under Bush and besides the guy was Rehnquist's law clerk, filling in the role of the just deceased justice) with the minority party of the time not being half as lame about criticizing him or having their minds on other matters as well?
Or, that it was up to the senators to challenge her confirmation safe "just following the law" line, one that was really no worse than Roberts' umpire metaphor, better in a fashion, since she was following precedent and defensively dealing with attacks of her being a racist etc.. Noting only about a quarter or so of the rulings follow a stereotypical 5-4 line also would help, including noting some 5-4 rulings actually are different match-ups. And so on.]
Liptak in general is a pretty good read in the Linda Greenhouse role (she provides occasional commentary for the NYT), providing some informative material to the general public. Still, his reporting on the first opinion of Justice Sotomayor had a couple dubious moments. For instance:
In a concurrence, Justice Thomas took a swipe at his new colleague, saying she had “with a sweep of the court’s pen” substituted “value judgments” and “what the court thinks is a good idea” for the text of a federal law.
Thomas did not take a swipe at Sotomayor in particular here given she wrote an opinion that was joined by seven other justices in full. This is why he said "the court's pen," not "Justice Sotomayor." One can also say, since he concurred alone, Thomas "took a swipe at his old colleague [Scalia]." It is somewhat notable that in an otherwise "dry opinion," Thomas felt the need to concur separately given it was Sotomayor's first. But, it doesn't seem personal and it is misleading to frame it that way, which "swipe at his new colleague" appears to do.
The public also can be misled when the Supreme Court refuses to hear or examine a case or particular issue, which is the norm (only a tiny percentage of appeals are accepted, the ones that are focus on issues not litigants in particular and even the cases taken often only examine some of the issues decided below). Sometimes, the coverage implies that the Supreme Court substantively decided on the matter at hand when all they did was refuse to decide one way or the other on the issue of law decided by lower courts. So, this is a bit troubling:
The federal government had urged the court to rule as it did but asked the court to exclude appeals of claims of the state secrets privilege and other governmental privileges from the sweep of its ruling. Justice Sotomayor obliged with a footnote saying “we express no view on that issue.”
I'm unsure if taking "no view" means it (again, the Court, not "Sotomayor" acted here) "obliged" to a request "to exclude," which seems to in fact "express a view" on said issue which appears to be quite logical given "other governmental privileges" was not germane to the matter at hand:
Because we agree with the Court of Appeals that collateral order appeals are not necessary to ensure effective review of orders adverse to the attorney-client privilege, we do not decide whether the other Cohen requirements are met.
That is, a specific privilege, not something else that might warrant special protections. Still, the article did add this interesting wrinkle:
Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term “undocumented immigrant,”* according to a legal database. The term “illegal immigrant” has appeared in a dozen decisions.
This is a telling matter addressing something that sometimes is a concern of the fray. As Rudy Giuliani noted:
"I know that's very hard for people to understand, but it's not a federal crime," Giuliani said, adding later that "I was U.S. attorney in the Southern district of New York. So believe me, I know this. In fact, when you throw an immigrant out of the country, it's not a criminal proceeding. It's a civil proceeding."
The opinion of the Court ended with a note of restraint mixed with flexibility:
This admonition has acquired special force in recent years with the enactment of legislation designating rulemaking, “not expansion by court decision,” as the preferred means for determining whether and when prejudgment orders should be immediately appealable. ...
Indeed, the rulemaking process has important virtues. It draws on the collective experience of bench and bar, see 28 U. S. C. §2073, and it facilitates the adoption of measured, practical solutions.
That is, Congress authorized the Court to establish rules for appellate review, which points to the flexibility the Court has in deciding what the law is. As the public focuses on individual decisions, such rules might be what truly matters to the litigants. In fact, as many focus on the results or hot button issues, many cases spent as much or more time on such procedural matters. Matters the public don't know much about, even if they realize something about the many turns required to get things through Congress.
Dare I say that even her first opinion is a "teachable moment?"
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* "According to Carpenter’s complaint, his termination came after he informed a member of Mohawk’s human resources department in an e-mail that the company was employing undocumented immigrants. At the time, unbeknownst to Carpenter, Mohawk stood accused in a pending class-action lawsuit of conspiring to drive down the wages of its legal employees by knowingly hiring undocumented workers in violation of federal and state racketeering laws."