Media myths and falsehoods about the Supreme Court

With Supreme Court Justice David Souter's recently announced retirement, Media Matters for America presents the following list of media myths and falsehoods about the High Court.

MYTHS ABOUT THE TRAITS THAT MAKE A STRONG OR POOR NOMINEE

MYTH: Liberals -- but not conservatives -- engage in "judicial activism"

Media frequently suggest liberal judges, but not conservative judges, engage in "judicial activism" -- which media figures often characterize as legislating from the bench. For example, Fox News contributor Fred Barnes said of the process of replacing Souter, "Republicans do have a role here, and it's to talk about judicial activism and the dangers of it"; Barnes also stated that "liberal judicial activism" is "entirely results oriented." And radio host Laura Ingraham recently asserted that Judge Sonia Sotomayor, whom media have cited as a possible Supreme Court nominee, has "been described as judicially liberal, which means you don't favor the principle of judicial restraint." Ingraham later added that Sotomayor is "a traditional liberal and does not believe in, I think, a strict adherence to separation of powers."

But a 2005 study by Yale University law professor Paul Gewirtz and Yale Law School graduate Chad Golder showed that among Supreme Court justices at that time, those most frequently labeled "conservative" were among the most frequent practitioners of at least one brand of judicial activism -- the tendency to strike down statutes passed by Congress. Those most frequently labeled "liberal" were the least likely to strike down statutes passed by Congress.

A recently published study by Cass R. Sunstein (recently named by President Obama to head the White House Office of Information and Regulatory Affairs) and University of Chicago law professor Thomas Miles used a different measurement of judicial activism the tendency of judges to strike down decisions by federal regulatory agencies. Sunstein and Miles found that by this definition, the Supreme Court's "conservative" justices were the most likely to engage in "judicial activism" while the "liberal" justices were most likely to exercise "judicial restraint."

MYTH: Diversifying the court would be inconsistent with nominating justices based on merit

Some media figures have suggested that a deliberate effort by Obama to diversify the court by nominating a woman and/or a member of a racial or ethnic minority would mean that Obama's nominee was not chosen based on merit. Such arguments ignore a different explanation -- that the over-representation of white males means that qualified women and minorities have been consistently excluded from the court.

For example, when CNN host Lou Dobbs asked why all of the potential nominees that CNN's Jeffrey Toobin listed were women, Toobin said that "[m]ore than half the law students in the United States are now women. Almost half the lawyers in the United States are women. There's only one out of nine justices on the Supreme Court who are women. I think President Obama, who believes in diversity, thinks it's time to even out the balance a little bit more." Nonetheless, Dobbs responded by asking: "Are you talking about the death of meritocracy on the court? ... Wouldn't it be strange that this court ruled against affirmative action, racial quotas, and ruled in favor of a truly sex -- gender- and race-blind society that then Justice Souter be replaced on the basis of group and identity politics? ... Wouldn't that be captivatingly ironic?" Toobin then explained that "Obama would say diversity is not opposite of meritocracy. Those are very qualified candidates."

Similarly, Buchanan said that Obama should pick a "liberal, Democrat John Roberts who has real stature, impresses people, maybe even gets Republican votes. But I think what he will do is I think he's gonna go for a minority, a woman and/or a Hispanic because he sees that as their turn."

Some conservatives also reject Dobbs and Buchanan's argument. On the May 4 edition of MSNBC Live, for instance, host Andrea Mitchell asked Sen. Judd Gregg (R-NH) whether, "all things being equal," Obama should nominate a woman. Gregg replied: "I think that in the legal system which we have today, we have a huge amount of talent out there. And you can -- if you feel that the balance on the court should be addressed relative to women being on the court, which I happen to think is a good idea, you can certainly find a lot of extraordinarily talented people who are -- happen to be women also. And that would probably be good."

MYTHS ABOUT OBAMA'S VIEW OF JUDICAL NOMINEES, THE SUPREME COURT

MYTH: Obama suggested he will nominate someone who shows "empathy" rather than a commitment to the law

Media have falsely suggested that Obama has said that he will seek a replacement for Justice Souter who demonstrates the quality of "empathy" rather than a commitment to follow the law. In fact, Obama has said that judges should demonstrate both. After saying that the clip he was about to air offered a "description of how the president hopes his nominee will interpret the law," Fox News congressional correspondent Major Garrett showed Obama saying on May 1: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes." Garrett then said: "That aggravates those who believe justices should follow the Constitution and legislative intent."

But Garrett omitted Obama's very next sentence, in which Obama stated: "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role." Obama added, "I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."

MYTH: Obama said it was a "tragedy" that the Supreme Court had not pursued the "redistribution of wealth"

On October 27, 2008, the Drudge Report featured the following false headline: "2001 OBAMA: TRAGEDY THAT 'REDISTRIBUTION OF WEALTH' NOT PURSUED BY SUPREME COURT."

In fact, as the YouTube audio that Drudge linked to demonstrates, during a 2001 interview on Chicago Public Radio station WBEZ, Obama did not say it is a "tragedy" that the Supreme Court has not pursued wealth redistribution. The "tragedy" Obama identified was that the civil rights movement "became so court-focused" in trying to effect political and economic justice. Obama stated: "And one of the -- I think the tragedies of the civil rights movement was, because the civil rights movements became so court-focused, I think that there was a tendency to lose track of the political and community organizing, and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change."

Later during the same 2001 interview, Obama stated: "You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way." He later added, "You know, the court's just not very good at it, and politically, it's just -- it's very hard to legitimize opinions from the court in that regard. So, I mean, I think that, although, you can craft theoretical justifications for it legally -- you know, I think you can, any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it."

Numerous media figures echoed Drudge's false headline about Obama's 2001 remarks.

MYTHS ABOUT BUSH'S SUPREME COURT NOMINATIONS

MYTH: The GOP has taken a consistent position on the appropriateness of judicial filibusters

The New York Times, the Politico, and Roll Call all recently reported on Senate Republicans' threat to filibuster Obama's judicial nominees under certain circumstances without reporting that a number of these same Republican senators previously took the position that filibusters of President Bush's nominees were unconstitutional or otherwise ran counter to constitutional principles.

Numerous conservative media figures also denounced judicial filibusters of Bush's nominees -- with Rush Limbaugh, Sean Hannity, Mark Levin, and Donald Lambro all asserting that Democrats' use of such filibusters was unconstitutional.

MYTH: Dems attacked Alito's ethnicity, suggested he went easy on the mob

MSNBC host Chris Matthews, Buchanan, and Limbaugh were among the media that distorted a Democratic National Committee (DNC) document to claim that the DNC had attacked Alito's ethnicity or had accused him of being "lenient on the mob." In fact, the document simply noted that Alito, as a prosecutor, lost a high-profile mob case -- it made no mention of Alito's ethnicity, nor did it assert or suggest that Alito was "lenient" on the mob.

MYTH: Dems invoked a "religious test" for Bush's nominees

Various media figures baselessly suggested that Democrats opposed Bush's judicial nominees based on the nominees' religious faith. The New York Sun editorial board went so far as to assert that a question Sen. Richard Durbin (D-IL) reportedly asked of Roberts amounted to an unconstitutional "religious test" -- without noting that Durbin's reported question was similar to one reportedly posed to Roberts by Republican Sen. Tom Coburn (OK).

Moreover, despite suggestions by Hannity and other conservatives that opponents of Bush's nominees were injecting religion into the confirmation process, it was, in fact, supporters of Bush's nominees who made religion a key issue. Indeed, both The New York Times and Time magazine reported that the White House and its allies touted Roberts' Catholic faith in attempting to gain support for his nomination from Christian conservatives.

Similarly, during an October 12, 2005, press conference, a reporter asked Bush: "Why do people in this White House feel it's necessary to tell your supporters that [then-Supreme Court nominee] Harriet Miers attends a very conservative Christian church? Is that your strategy to repair the divide that has developed among conservatives over her nominee?" Bush responded, in part: "People ask me why I picked Harriet Miers. They want to know Harriet Miers' background; they want to know as much as they possibly can before they form opinions. And part of Harriet Miers' life is her religion."