Dump the cheering section. This is law, not sports.

7 Minute Read

13

MARCH, 2020

Written by Mark M. Leitner

Congressman Justin Amash – the former Republican who broke with the party over his quaint insistence on following the rule of law to the detriment of his support for President Trump – posted an outstanding Twitter thread[1] last week explaining his vote against the so-called “anti-lynching bill.” (Please read his tweets for his explanation why it’s not really an anti-lynching bill.)

Amash argues that journalists covering the bill obviously hadn’t read it, and that their laziness spread directly to the legislators who voted on the bill:

My point is not that these journalists are intentionally misreporting but rather that modern journalism is susceptible to dangerous shortcuts, at a time when even greater dedication to precision is required because of rapid and widespread dispersion of news through social media. Outlets must recognize how “fast but thin” reporting negatively impacts the legislative process and address this problem. Most of the dysfunction in Congress is self-inflicted, but better reporting would make legislative text matter a lot more to representatives and senators.

I think Amash is right, and I contend that his critique can be extended to coverage of court decisions. Reporting on judicial opinions often has two significant flaws: even straight news articles often fail to identify the legal issue, while comments from observers on the right and left are nothing more than cheering or booing the result – leading readers to believe that the decision was nothing more that politics being played out in the court system.

We have a great (or horrible) example close to home, in the coverage of litigation over the “voter purge case.” Last year, a conservative public interest firm sued the Wisconsin Elections Commission, arguing that Wisconsin law requires that voters who have moved since the last election must be immediately removed from voter rolls if they did not respond to an effort to contact them. The board argued that state law allowed it more time to accomplish the purge. (For reasons that will become evident, I decided not to review the briefs or the opinions to write this post.)

Judge Paul Malloy, a circuit court judge in Ozaukee County, ruled in favor of the public interest group, and a month later sought to enforce his ruling by holding board members in contempt because they had not removed the voters. I first heard about the case by reading an article in the New York Times,[2] and I thought that I might learn from that article what the legal issues were. Silly me.

“I first heard about the case by reading an article in the New York Times, and I thought that I might learn from that article what the legal issues were. Silly me.”

The Times article quotes Judge Malloy: “I don’t want to see anybody deactivated, but I don’t write the legislation.” It also quotes the president of the public interest group, praising the decision because it prevented a state agency from “ignor[ing] clearly written state law.” Top Democrats were quoted as well, contending that the lawsuit was a right-wing political strategy intended to benefit Republicans by suppressing turnout.

So: there is “legislation.” Maybe even “clearly written state law”! WHAT DOES IT SAY? Leaving that out is a serious flaw, because the result depends on what the statute says and how the courts interpret it. Now, I know that I am a law geek; I wasn’t expecting an excerpt from the briefs, but we do know that a statute of some kind was involved. Would it have been so hard to add a paragraph something along the lines of: “The dispute involves a Wisconsin statute that provides X. The public interest group argued that this language required the board to purge the rolls because Y, while the board contended Z”? Apparently that was too much to ask of the Times, so I finished the article with my curiosity unsatisfied.

If the New York Times would not explain the legal issues, could I get some help from Fox News? Nope. The Fox article on Judge Malloy’s contempt order[3] has lots of rhetoric from both the conservative side (cheers!) and the liberal side (boos!) but fails to explain even in simple terms the legal issues in the case. Fox did summarize the original decision, saying “Malloy last month sided with conservatives who filed the lawsuit and ordered that the voters have their registrations deactivated.” Sure, that literally describes what the judge did – but this language reads like the decision was pure politics, with Judge Malloy raising Rick Esenberg’s hand as if he’d won an MMA match.  I’ve had lots of cases before Judge Malloy, and I have never felt that he exhibits an ideological bias. Who knows, maybe he showed a tilt in this case – but there is absolutely no way to decide that without understanding the law that he was interpreting.

In late February, the Wisconsin Court of Appeals chimed in, reversing Judge Malloy’s order and refusing to require an immediate purge of the voter rolls. I haven’t read the opinion, just media coverage of the decision,[4] so at this point readers will be unsurprised that I still have no idea why any of the courts ruled the way they did, or the legal reasoning they expressed in their decisions. I do know that Mr. Esenberg of the public interest group thinks that under the Court of Appeals’ ruling, Wisconsin won’t have “clean elections,” and the Wisconsin Supreme Court needs to step in to “ensure that the Wisconsin Elections Commission complies with state law.” So now it’s the conservatives’ turn to BOOOOO. And if the conservatives are booing, the liberals must be cheering, right? Sure enough, the Hill’s coverage[5] plays the case as an exercise in pure politics: “A Wisconsin court of appeals handed Democrats a win on Friday by overturning a ruling that sought to purge up to 209,000 people from voter registration rolls.” No one should be surprised that like the Times, Fox, and CNN, the Hill did not think the legal issues at stake worthy of mention, let alone explanation.

I’ll be blunt: this coverage is garbage, across the board. It is the same deficient “fast but thin” reporting that Representative Amash ripped in his Tweetstorm about the anti-lynching bill that wasn’t. By portraying the courts’ decisions exclusively in terms of their political impact, failing to discuss the legal rules that guide those decisions, reporting helps feed the dangerous perception that law is simply politics played out in another arena. The rule of law is too important to be treated this way.