The U.S. Supreme Court is set to rule any day now on the constitutionality of ObamaCare, the centerpiece of Barack Obama’s presidency thus far. How the media cover such a decision remains to be seen, but between 2004 and 2008 the Court issued multiple rulings tossing out key elements of George W. Bush’s war on terrorism, the policy centerpiece of that administration.
The MRC studied how the broadcast networks covered those decisions overruling Bush’s policy on detaining terror suspects, looking at the ABC, CBS and NBC evening news coverage from the day each ruling was handed down — June 28, 2004, June 29, 2006 and June 12, 2008. On those nights, the networks aired a total of 15 stories about the Supreme Court rulings, totaling nearly 35 minutes of airtime.
The results provide a template for how the networks might cover a decision voiding some or all of President Obama’s health care law — assuming network journalists approach their job without regard to partisanship, that is.
■ When quoting the Justices’ opinions, the networks should tilt two-to-one in favor of the anti-administration side. Both the majority and minority in a Supreme Court case issue written opinions, but in covering the Bush-era terror cases, more than two-thirds of the quotes (68%) came from Justices in the majority that ruled against the Bush administration.
In the 2004 decision in the case of Yasser Hamdi, a U.S. citizen picked up on the battlefield as an enemy combatant, all three networks quoted Justice Sandra Day O’Connor’s opinion: “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”
The Big Three also highlighted Justice John Paul Stevens’ 2006 decision invalidating military trials for Guantanamo detainees: “Its structure and procedures violate military law and four Geneva conventions.” And every network quoted the June 12, 2008 decision, written by Justice Anthony Kennedy, concluding that enemy combatants have a right to have their cases reviewed in civilian court: “Liberty and security can be reconciled.”
That 2008 case also drew a dissent from Justice Antonin Scalia that was quoted across the board: “It [the decision] will almost certainly cause more Americans to be killed.... The nation will live to regret what the Court has done today.” But overall, the Justices siding with the Bush administration were given far less attention than those ruling against the President.
If there is an anti-Obama ruling in coming days, and the networks follow the same template as they employed in the Bush-era terror cases, any similarly indignant response from the Court’s liberals would be given minor coverage, with about two-thirds the time spent quoting and explaining the anti-Obama majority.
■ Soundbites from outside experts should also tilt heavily in favor of the Court’s opinion. In covering the Bush-era cases, ABC, CBS and NBC stories all included soundbites from the winning lawyers or spokespersons for interest groups applauding the Court’s reasoning. Those supportive soundbites outnumbered those criticizing the Court’s decision by a nearly three-to-one margin (73% supporting the Court, vs. 27% criticizing the Court).
For example, in 2004 ABC’s John Cochran put together a package featuring quotes from family members of Guantanamo detainees and a spokesman from Amnesty International praising the Court: “I think it begins to restore the people’s faith in the rule of law and in the United States being a country of laws.” 
In 2006, NBC’s Pete Williams included a quote from the military defense lawyer for one of the detainees: “It means that we can’t be scared out of who we are, and that’s victory, folks.” The next report on that newscast, by correspondent Kelly O’Donnell, included a neutral clip from President Bush (“I will protect the people and at the same time conform with the findings of the Supreme Court”) matched with a pro-Court soundbite from a representative of Human Rights Watch: “I think Guantanamo has been a disaster for America in terms of our image and our ability to win the war on terror.”
Following this approach, network stories about an anti-ObamaCare ruling would include numerous soundbites from the lawyers, interest groups and activists who fought against the plan as government overreach or an infringement on individual liberty; those disagreeing with the Court (and supporting ObamaCare) would be relegated to only about one-fourth of the soundbites.
■ The decision should be cast as a “rebuke” and a “slap” at the administration. The networks cast the various decisions against the Bush administration as a “stinging rebuke” and a “sharp rebuke.” In 2004, ABC’s Manuel Medrano said the Court had “struck at the very core of the way President Bush has been conducting the war on terror.”
Covering the 2006 decision, then-CBS Evening News anchor Bob Schieffer asked one of his correspondents: “Is this as big a slap at the administration as it appears to be?” Two years later, CBS’s Katie Couric repeated the theme of the Bush team being chastised by a superior authority: “The Supreme Court for the third time has slammed the Bush administration for its handling of terror suspects....”
If the Court rules against ObamaCare, the networks would match this rhetoric and talk about the Obama administration being reprimanded by the majority Justices.
■ The networks should not air one second of coverage casting the Court’s decision as ideological or politically-motivated. In the Bush-era cases, the networks all presented the Supreme Court as the final authority, and did not include any suggestion that the Justices who ruled against the President might have been motivated by anything less than a respect for the rule of law.
In 2004, ABC anchor Charles Gibson set it up this way: “In the delicate balance between national security and civil rights, legal scholars said this was the Court’s most important ruling in decades.”
Introducing a report from Kabul, Afghanistan, in 2008, NBC’s Brian Williams intoned: “The vast majority of people locked up by the U.S. at Guantanamo Bay without trials have been picked up here in Afghanistan or across the border in Pakistan. Today, a landmark ruling from the Court that’s a victory for them.”
Matching this approach, the networks will present the Supreme Court’s ObamaCare opinion as authoritative and nonpartisan, a “landmark... victory” for those who felt the law encroached on individual liberty, and they will not dignify suggestions that the Justices were motivated by ideological or partisan concerns.
■ Only about ten percent of the coverage should discuss potential negative consequences of the Court’s decision. Out of nearly 35 minutes of coverage devoted to the various cases, only three minute and 45 seconds — about ten percent of the total airtime — discussed worries the Court had created problems for those trying to fight the war on terror. Such concerns were only mentioned in passing; no network story was mainly devoted to exploring whether the Court’s ruling would have negative real world consequences.
In 2004, ABC’s John Cochran carved out 39 seconds in a nearly two-minute story to mention the administration’s worry that “hundreds of civilian lawyers will go to Guantanamo, disrupting interrogations.” Cochran then ran a soundbite from international law expert David Rivkin echoing the point: “Everybody will be preoccupied with dealing with the petitions they are going to file. So for all effective purposes, most of the intelligence gathering in Guantanamo would cease.”
In 2008, CBS’s Wyatt Andrews similarly included a quote from Republican Senator Lindsay Graham: “Never in the history of warfare have we allowed enemy prisoners to go to a federal court and sue our own troops to be released.” But Graham only appeared after the tone of the story had been set by a left-wing lawyer for the Center for Constitutional Rights: “It’s the beginning of restoring what this country has been know throughout the world as upholding: values of fairness.”
The liberal legal argument in the Bush era was that the administration could not cut constitutional corners when it came to fighting the war on terror. The matching argument in this case would be that the Obama administration and the liberal Congress are not permitted to violate the Constitution for the sake of reforming health care.
While the networks may spend a few minutes reflecting on the practical problems that a ruling against ObamaCare may cause, their coverage would reflect the assumption that those problems were caused by the administration’s fast and loose approach, not the Court.
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So how likely is it that the networks will follow the same approach they used in reporting on the Court’s various “rebukes” to the Bush administration a few years ago? We’ll find out only if the Court does, in fact, reject the constitutionality of some or all of ObamaCare. In that event, either the networks will demonstrate a professional consistency in portraying the Supreme Court as the ultimate Constitutional authority, or they’ll take a partisan approach and elevate the Court’s critics in a way they did not during the Bush years.