Supreme Court Justices live dual lives. On one hand they predominately manage to stay out of the limelight while actually doing their jobs. Even with pressure to the contrary, the justices have managed to keep cameras out of the Court, and to limit the release of audio recordings of oral arguments to the Fridays after the arguments are heard. The justices other interactions with one another are held behind closed doors and details are only occasionally made public years after events transpire if a justice chooses to release his or her personal papers after leaving the bench (Justice Blackmun was the last justice to do so).
That said, the justices do quite a bit of posturing to stay relevant to the public. Some of this has to do with earning additional income in the form of book publications and through book tours (Justice Gorsuch for example recently released “A Republic, If Your Can Keep It” with the help of his former clerks David Feder and Jane Nitze). The justices also go on speaking tours not related to books, teach at institutions of higher education domestically and abroad during breaks from Supreme Court work, and occasionally are covered in the mainstream media for occurrences wholly unrelated to their judicial decisions. An entire website, SCOTUS Map, is dedicated to tracking the justices extra-judicial pursuits.
While the justices have been the subject of media attention for years, over the last decade, several articles including one by former Judge Richard Posner and another by law professor Rick Hasen have examined the cult of celebrity surrounding Supreme Court Justices. Part of the reason for these recent examinations has to do with the justices coming out of the shadows of their work more frequently and some has to do with their attempts to garner the public’s attention with publications and media appearances. This post primarily looks news coverage of the justices since Roberts took over as Chief Justice in 2005.
For a variety of reasons, both political and otherwise, coverage has been skewed towards President Trump’s appointees: Justices Gorsuch and Kavanaugh. The figures in this post are derived from LexisNexis’ data on television news coverage via news transcripts. The first set of graphs look at total news coverage of the justices across their careers (on top) and on a yearly basis (on the bottom). Each mention refers to a program where the justice was mentioned and not the count of mentions within a given program.
While Justice Thomas who has been on the Court the longest also has the most aggregate coverage, Justice Kavanaugh, the justice on the Court for the least amount of time has the second most total coverage. Much of the coverage for both was due to their high profile (and widely televised) confirmation hearings where they were of accused of sexual harassment and sexual assault respectively.
Gorsuch’s hearings garnered much public attention as he became the successor to Jusice Scalia’s seat after President Obama’s nominee, Judge Merrick Garland, was never afforded a Senate confirmation hearing. After Kavanaugh and Gorsuch, the justices with the most coverage on a yearly basis have been Justices Sotomayor, Kagan, and Roberts. Justice Breyer has had the least news coverage overall as well as on a yearly basis.
The following graph shows these numbers in greater detail by providing the number of times the justices were mentioned in the news between 2005 and the present. It also includes the number of mentions for Justices Thomas, Ginsburg, and Breyer in each of their first two years on the Court.
The bulk of the coverage of the justices tends to occur during their first term on the bench. This is due to the focus on their confirmation hearings and speculation about how their presence will change the Court’s dynamic. In several instances though, the news media has focused on the justices for other reasons as well.
Justice Thomas had the height of his news coverage in 2007. Much of this attention was focused on the release of his autobiography including this NBC News piece from September 29, 2007:
“PETE WILLIAMS reporting: Sixteen years after explosive Senate hearings nearly derailed his nomination, Clarence Thomas views the ordeal just as he did then.
Justice CLARENCE THOMAS: It is a high-tech lynching for uppity blacks who in any way deign to think for themselves.
WILLIAMS: Justice Thomas speaks out in his new autobiography, “My Grandfather’s Son,” a reference to the man who raised him after he was abandoned by his father. Of the Democratic senators who aggressively questioned him, Thomas writes that he was pursued, quote, “not by bigots in white robes, but by left-wing zealots draped in flowing sanctimony.”
Thomas found himself in the spotlight again in 2018 during Justice Kavanaugh’s confirmation process, as many news outlets looked back at Thomas’ hearings and the Anita Hill allegations including this instance from NPR on February 20, 2018:
“STEVE INSKEEP: A writer who’s closely followed the career of Supreme Court Justice Clarence Thomas favors a second look at the allegations against him. Back in 1991, his former colleague Anita Hill accused Clarence Thomas of sexual harassment, a story broken by our own Nina Totenberg. In dramatic confirmation hearings, Thomas denied all the charges and was confirmed. Journalist Jill Abramson covered that story then and has now revisited the allegations in New York magazine. She lays out the case for Thomas’ impeachment. Abramson yesterday told us that Anita Hill was not the only woman who wanted to speak against Clarence Thomas.”
Justice Ginsburg had an unusual amount of attention in the news in 2009 due to her diagnosis of pancreatic cancer. An example of this coverage came from CBS News on February 6, 2009:
MICHELLE GIELAN, co-anchor:
Good morning. I’m Michelle Gielan. There’s more ahead on THE EARLY SHOW and this CBS station. First, Supreme Court Justice Ruth Bader Ginsburg’s cancer may have been caught early enough for her to recover, but her illness raises significant questions for President Obama. Wyatt Andrews reports.
WYATT ANDREWS reporting:
The announcement describes Justice Ginsburg’s illness as apparently early-stage pancreatic cancer, and says a routine physical had revealed a small tumor of approximately one centimeter, which surgeons removed. The news sent a shock wave through Washington, beginning with the president.”
Chief Justice Roberts also saw more than average coverage in 2009. Roberts’ confirmation hearings were given renewed attention during Justice Sotomayor’s confirmation hearings. Roberts also made headlines for a mistake he made while administering the oath of office to President Obama as was reported by NPR on January 21, 2009:
“NEAL CONAN: Well, it turned out the chief justice mixed up a few words, more than a few words, – to the pre – anyway, the Constitution specifies the 35 words that make up the presidential oath. If he does not speak them exactly, is he really president? Do Barack Obama and John Roberts need a do-over? Well, we’ve asked Constitution law expert Jonathan Turley to join us to sort this out, and nice to have you back on the program, Jonathan.
Professor JONATHAN TURLEY (Constitution Law, The George Washington University Law School): It’s great to be back.
CONAN: He’s with us here in Studio 3A. It seemed that Obama seemingly knew that the chief justice was off and paused a moment to give him an opportunity to restate it.
Prof. TURLEY: It seemed clear to me that he caught the error. You know, the interesting thing about the word “faithfully” is that it’s an anchor word for oaths. You know, people tend to break oaths up, and “faithfully” is one of those words that breaks the oath up. And it was clear that Obama realized that faithfully had come too soon, and he stopped. But unfortunately, it wasn’t rectified. He gave the oath in a fashion that is different from that in the Constitution, and the problem with the Constitution is that it has these words in quotes.”
These instances make clear that the fodder for news coverage of the justices comes from a wide range of issues, sometimes deriving from their own intentions but oftentimes from reasons outside of their choosing.
Coverage of the justices differs across sources as well. Three of the main television news stations that provide this coverage are CNN, Fox News, and MSNBC. The following graphs look at the coverage of each of the justices from these three networks over the past two years.
Since we are only about a month away from the end of the 2019 calendar year, the 2019 numbers should not change a great deal between now and the year’s end. These graphs provide several interesting insights.
CNN provides more across the board coverage of the justices than the the other two networks and Fox News provides more coverage than MSNBC. There were only a few exceptions to this generality. The only anomaly to this trend in 2018 was where Fox News mentioned Justice Breyer more times than CNN (albeit a close 23 compared to 22 times). MSNBC mentioned Breyer more times than Fox so far in 2019. MSNBC also mentioned Chief Justice Roberts more often than Fox News in 2019. Interestingly in contrast to the numbers from 2018, Fox has mentioned Justice Kavanaugh 320 times in 2019 compared to CNN’s 318 mentions of him. This comes after CNN mentioned Kavanaugh 1,406 times in 2018 compared to Fox News 573 mentions. This very well may have to do with the transition in the focus of the coverage from the confirmation hearings to the Supreme Court’s business and current and future agendas.
Justice Kavanaugh dominated the mention count in 2018 due to his confirmation hearings, but he has also been the most bandied about justice in 2019. This has to do with residual conversation about his confirmation and about how his presence is reshaping the Court. While Gorsuch was the second most mentioned justice in 2018, he has been the subject of conversation on the news less frequently in 2019. Justice Thomas maintained a high rate of mentions relative to the other justices across both years as did Justices Ginsburg and Roberts. Justices Breyer and Alito were talked about the least frequently.
This analysis shows that the justices are sometimes focal figures in the television news media. They are not always the intentional instigators of this coverage, however. While a bulk of the coverage has to do with their confirmations to the Supreme Court, much also has to do with their affairs outside of the Court. As long as the justices keep cameras out of the Court, their presence on the news will never hit its full potential, but as the numbers show, there is great variation in the news coverage of the justices over the years, and sometimes the justices are quite central in the news. While we might expect to see further ebbs and flows of this type of coverage, if President Trump has the opportunity to make any more nominations to the Court, we should expect to see another surge of coverage. Outside of this, coverage of the individual justices will likely continue to follow a mix of tracking their decisions on the Court and their actions and interactions outside of their Supreme Court duties.
On Twitter: @AdamSFeldman