MediaWatch: November 1991

Janet Cooke Award: L.A. Times: Savage Attack on Rehnquist

The furor over the Thomas nomination may subside, but many legal reporters will probably continue to paint the conservative Court with broad brush strokes of disdain. On September 29, before the Thomas hearings ended, the Los Angeles Times Magazine published a cover story on Chief Justice William Rehnquist by Times Supreme Court reporter David Savage. For oversimplifying Rehnquist's opinions into a frightening platform against civil rights and the interests of minorities, Savage earned the November Janet Cooke Award.

The Times led off their scare with the subheadline: "Bill Rehnquist was once considered an extremist. Now his views almost always become the law of the land." This didn't describe Rehnquist's views -- it just makes them sound scary.

Like too many of the major media's Supreme Court reporters, Savage wrote his story in a simplistic shorthand that assigns liberals the white hats and conservatives the black hats: liberals as the defenders of individual rights, conservatives as the defenders of government power. Some examples:

"...vintage Rehnquist. He upheld the powers of the government and dismissed any claims that it has special responsibilities toward the poor."

"No other member of the court in recent decades had been as faithful in backing the government. No other justice so regularly turned thumbs down when individuals contended their constitutional rights had been violated."

"Throughout its history, the justices had erred, [Rehnquist] said, when they sought to protect individual rights."

"Souter was a conservative picked for the Court because the Bush Administration believed he could be trusted to uphold the government most of the time."

Savage put the opposite spin on the liberal justices:

"Somehow, year after year, despite a procession of new Republican appointees, Brennan managed to piece together five- vote majorities to rule in favor of civil right and civil liberties."

"A champion of individual rights, Brennan led the court's liberal wing..."

Thurgood Marshall was described as "the retiring giant of civil-rights law."

Lewis Powell would "vote with the liberals on civil rights and civil liberties."

Savage summarized: "Under Rehnquist, the Supreme Court no longer sees itself as the defender of civil rights and civil liberties, the champion of the individual. Gone is the court majority that breathed new life into the Bill of Rights, dismantled Southern segregation, disciplined police who violated the rights of citizens, removed religion from the public schools, pushed a President into resignation and swept aside the laws forbidding women to end their pregnancies."

But if Savage had quoted any conservatives in his article (he did not), they could have composed an opposing list of liberal infringements on individual rights. Savage might have at least presented the issue with more subtlety: that often, the Court must decide between a conflict of declared rights between individuals, like the rights of criminals vs. the rights of crime victims; the rights of employers vs. the rights of job applicants; or the rights of homeowners vs. the rights of environmentalists to declare other people's property wetlands.

But in describing the Supreme Court that found parts of the New Deal unconstitutional, Savage downplayed the importance of economic liberties: "For liberals such as Brennan and the late William O. Douglas, the lesson to be drawn from the era of the discredited nine old men was that the court must protect civil rights and individual liberties, not economic and property rights." Savage admitted in the next sentence: "Nothing in the Constitution or its history necessarily endorses such a distinction, but that has been the prevailing consensus since the 1940s."

In a lengthy and courteous interview with MediaWatch, Savage agreed that constitutional rights are not to be selectively enforce, and that economic rights are civil rights: "I agree with that. That's a good point. You ought to argue that with Rehnquist, though. I don't see much sign that this Court cares about economic rights or economic liberties."

Former Justice Department spokesman Terry Eastland told MediaWatch the problem isn't just "result-oriented" judging, but result-oriented reporting of judges. Rather than explain the many details of the precedents and technicalities on which justices base their decisions, reporters simplistically suggest evil intent, such as the court ruled "against" minorities, or as Savage wrote, that Rehnquist "fought against equal rights for women but for the rights of white males who claimed to be victims of affirmative action."

Savage devoted 11 paragraphs to the thesis of liberal law professor Erwin Chemerinsky, who has fiercely criticized the Bork and Thomas nominations in the press. Savage cited Chemerinsky's 1989 Harvard Law Review article that "showed that the chief justice almost never votes to strike down laws -- unless the laws happen to benefit minorities or women."

One case in which Rehnquist and the Court overturned precedent was the 1989 Wards Cove decision on unintentional discrimination. Conservatives ruled in favor of the original text of Title VII of the 1964 Civil Rights Act, which explicitly prohibits racial preferences like quotas. To be consistent, Savage would have to argue that the original Civil Rights Act is harmful to blacks' individual rights. But Savage conceded to MediaWatch that in cases like Wards Cove, the conservatives are ruling for individual rights, not the liberals: "I don't have any disagreement with that. I think that's probably correct."

Savage's story also simplified the Court's treatment of religion: "With an unquestioned majority, Rehnquist may move aggressively to throw out established doctrines of constitutional law. For example, Rehnquist has long disputed Thomas Jefferson's view that the Constitution demands a `separation of church and state.'" Savage didn't explain that the phrase "separation of church and state" appears nowhere in the Constitution, but comes from an 1802 letter that has been transposed into constitutional law by liberal justices.

No matter how much legal reporters decry the "dumbing down" of the Supreme Court, the President has a long way to go to match the dumbing down of Supreme Court reporting. Boiling down incredibly complex interpretations of the law into understandable news copy is a tremendous challenge. But stories like Savage's aren't balanced depictions of the Supreme Court's deliberations; they're politically motivated caricature.

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