The Supreme Court has traditionally been a prestigious and cerebral beat for a small group of Washington-based reporters for major news outlets. But as the Court and its decisions have become highly politicized, its workings now provide fodder for important stories for journalists across the country. [Transcript | Video]

Distinguished civil rights attorney Amir Ali briefed Paul Miller Fellows as journalists who are not assigned to the Supreme Court. Ali, executive director of the MacArthur Justice Center, explains how to mine Court filings for stories, when attorneys might talk to reporters and when they probably won’t, how to make sense of oral arguments, and how to tease out the issues in a Supreme Court decision.  Jargon alert: SCOTUS is the  Washington acronym for the Supreme Court of the United States and a helpful search term. (See also POTUS and FLOTUS.)

5 takeaways:

➀ Mine the petitions asking the Supreme Court to hear – or not hear – a case. Lawyers who want SCOTUS to hear a case must file what is known as a Petition for a Writ of Certiorari, or “cert petition.” Between 7,000 and 8,000 such petitions are filed each year, but the court hears only 70 or 80 cases each term. Important stories abound in the cases that are never heard,  but only a handful of those cases are ever covered in the media, Ali told NPF’s Paul Miller fellows.

Ali filed a cert petition on behalf of Corey Dewayne Williams, a mentally disabled youth who was convicted of murder at age 16 and spent two decades in Angola prison in Louisiana, including on death row, before being exonerated and released. “It was when we filed this petition in the Supreme Court telling Corey’s case that the DA for the first time in 20 years came to the table willing to talk about what to do about Corey, willing to talk about his release,” Ali said. Corey walked out of prison a week later, so the case never went to the Supreme Court. But it made for a powerful story in the Washington Post.  “Within this pile of 8,000 petitions which could fill this room really, there are real stories to be told and real injustices, and a real opportunity, I think, for journalists to dig in and tell those stories,” Ali advised.

Note that lawyers also file petitions arguing that the Supreme Court ought not to hear a case, Ali said.  In some cases, their legal strategy is to keep the court from changing a precedent they favor.  “I actually spend far more of my time today trying to keep cases out of the Supreme Court than trying to get cases into the Supreme Court,” Ali said

➁ Lawyers are usually willing to talk about a case in the petition phase – and almost never once the court agrees to hear their case. News coverage affects perceptions of which cases are most important and therefore can affect which cases the Supreme Court agrees to take. But once the court agrees to hear a case, and especially in the glamorous oral argument phase, the lead lawyer is least interested in talking to journalists. Look to “amicus curiae” or “friend of the court” briefs and talk to outside experts to help you flag the most important issues. And beware: Sometimes the most important issues are never discussed in oral arguments. Ali said he never once mentioned the critical issues of “racist policing” and “cover charges” during the bruising 40-minute oral arguments over the Thompson v. Clark police abuse case, which the Supreme Court decided in April 2022. “I argued the case based on neutral legal principles and history,” Ali said. “If you just looked at the oral argument, the back and forth between me and the justices, you would’ve had no idea that that’s at least what I thought was mostly at stake,” Ali said.

➂ Ask why not. Journalists should ask legal experts not only about the issues in cases the Supreme Court agreed to hear but why the justices decided to hear one case and not another. “Why did the court take up affirmative action this term out of those 8,000? It’s an interesting question because the affirmative action decisions were applying settled precedent that existed,” Ali noted. The Supreme Court is more likely to take a case on an issue that has caused confusion among lower courts. “It views its role as settling disputes among the lower court systems so that we have uniform laws,” Ali said, but “there was no confusion when it came to affirmative action. It was settled precedent that was being applied.”

➃ For more diverse and informed court coverage, go beyond the Supreme Court bar. Because the lawyers arguing a Supreme Court case usually won’t talk, journalists too often turn to other attorneys who have argued before the Court previously – the “Supreme Court Bar.” But studies and stories have found that 80% of them are white males.  Journalists should make a point of interviewing other sources to gain a wider perspective on the work of the court, Ali said. That includes the attorneys of color who are the second or later counsel listed on Supreme Court briefs. They are experts on the case, but not quoted as often as the lead counsel because they are not (yet) part of the tiny club of lawyers who often argue before the Court.

➄ Interview historians. The Roberts court is increasingly turning to history for guidance on the Framers’ intentions. However, “That’s the work of historians, not lawyers typically, and the justices themselves are not historians,” Ali said.  Interpretations of history vary, and there is much dispute over the merits of strict fealty to the framers’ intent. Seek broader sources.

NPF is solely responsible for the content. The Paul Miller Washington Reporting Fellowship is accepting applications for 2023.