The Newsworthiness of U.S. Supreme Court Criminal Procedure Cases (1994

Abstract

This study examines elite (New York Times and Washington Post) and populace (USA Today) media decisions to cover and to intensively cover U.S. Supreme Court outcomes in criminal procedure cases decided in the 1994 through 2010 terms. Two central constructs—case salience and decisional case complexity—are developed as a framework within which to understand media decisions. Case salience is conceptualized both in terms of contextual case salience (measured as the number of amicus curiae briefs filed on the merits) and issue-based case salience (cases that concern the fourth and eighth amendments). Decisional case complexity is measured as the number of unique majority, concurring, and dissenting opinions published as part of the case decision. The study utilizes measures from the U.S. Supreme Court Database developed by Harold Spaeth, supplemented with primary data collection of media articles and amicus curiae briefs. The study finds that case salience measures are the most powerful predictor variables for the decision to publish in both elite and populace press. Case salience measures are also the most dominant set of variables in explaining overall intensity of coverage in populace press. Decisional case complexity is the most important explanatory predictor of overall intensity of coverage in elite press. Theoretical and practical implications of the findings are discussed.

Keywords

media supreme court case salience case complexity

President William Howard Taft once remarked, “Presidents come and go, but the Supreme Court goes on forever.” This observation acutely captures the enduring legacy of the Supreme Court as an institution. As the final arbitrator of issues that pertain to the interpretation of the Constitution and its amendments, the Supreme Court has a lasting impact on the balance of individual rights and governmental interest in criminal procedure questions across all levels of government (federal, state, and local). Research on whether citizens understand their criminal procedure rights shows that citizen knowledge of criminal procedure rights is generally low (Woolard, Cleary, Harvell, & Chen, 2008). “Common” beliefs about citizen rights, furthermore, do not concord well with actual legal views expressed by the Supreme Court majority (Fradella, Morrow, Fischer, & Ireland, 2011; Kessler, 2009; Slobogin & Schumacher, 1993). These disconnects may be partially attributable to news media coverage of criminal procedure cases.

The importance of news media as a mechanism for communicating information about criminal procedure cases cannot be overstated. Absent direct interaction with the Supreme Court, citizens must rely nearly exclusively on news media organizations to inform them about Supreme Court interpretations that give meaning to abstract (constitutional) statements that convey criminal procedure protections. Unlike the legislative and executive branches of government, the Supreme Court does not directly represent a constituency to which it is accountable; additionally, it has its processes for generating case output largely hidden from the view of the public and maintains processes that do not facilitate ease of public knowledge (Katsh, 1983; Newland, 1964; O’Brien, 1983; Pew Research Center, 2010a, 2010b; Slotnick, 1991; Sobel, 1970).

Additional uncertainties about the communication of Supreme Court criminal procedure case decisions and corresponding points of logic results from the variation in focus across news media organizations. News organizations are ultimately businesses that focus their attention on how to address their own market niche (Croteau & Hoynes, 2001). Communication scholars have commented on market-driven differences with respect to elite and populace press. King (1990) discussed the differences in market focus between the New York Times (NYT) and USA Today (USAT). She noted that the “USA Today aimed at a broadly based, general readership, emulates the rapid paced, entertaining, easily digestible presentations of television’s morning news programs, a fast-food approach which has earned it the nickname of ‘McPaper’ and its stories that of ‘McNuggets’” (p. 84). Alternatively, she described the NYT as “the leading member of the prestige press” and as America’s “newspaper of record.” (p. 84). Everback (2011) more recently noted the role of the NYT and Washington Post (WP) as the journalism standard-bearers in the United States and the role of the USAT as a general interest national paper.

Scholarly attention to news media coverage of Supreme Court decisions and resulting points of logic in a general sense (research that examines multiple types of decisions), quite scant. Scholarship is notably nonexistent with respect to a specific focus on decisions pertaining to criminal procedure. The extant (general) literature on news media coverage of the Supreme Court has quite a few limitations. A primary issue with the available literature is a lack of a theoretical framework to guide the inquiry. Recent work on media coverage of state Supreme Court decisions (Vining & Wilhelm, 2010) has addressed this problem but the literature on media coverage of the Supreme Court has not. The current study addresses this gap in the literature by organizing the inquiry around the constructs of case salience and case complexity. Notions of case salience and case complexity are not novel to the literature as others have employed measures of these constructs to explain media coverage of both Supreme Court decisions (Maltzman & Wahlbeck, 2003) and state Supreme Court decisions (Vining & Wilhelm, 2010). Prior studies, however, have not centrally organized the notions of case salience and case complexity in a conceptually meaningful way.

The current study advances the available research by measuring case salience along two different dimensions: contextual (number of amicus curiae briefs filed) and issue-based (whether the case involved a search/seizure or cruel/unusual punishment question). The measures of case salience deviate slightly from similar approaches of prior research. Whereas Vining and Wilhelm (2010) used a dichotomous measure of amicus curiae participation, the current study employs a count of the number of briefs filed. Prior work has also not systematically measured issue-based case salience. In this regard, the prior literature has not considered the issue within a specific group of cases (e.g., criminal procedure). The previous studies have either only compared criminal procedure cases to other broad types of cases or have compared a particular criminal procedure issue (e.g., the death penalty) to all other cases.

The current analysis further advances the literature by more comprehensively conceptualizing the case complexity construct. This study distinguishes issue-based case complexity (the number of issues to be addressed) and decisional case complexity (the potential resolution frameworks that may be employed) and argues that decisional complexity is most relevant to an examination of how case complexity impacts media coverage of the Supreme Court. The measure of decisional case complexity utilized in the current study accounts for both concurrence and dissent as evidence of complexity of the legal question(s) addressed by the Supreme Court (by counting the number of unique opinions published), whereas prior published multivariate work has only considered dissent as evidence of complexity (Vining & Wilhelm, 2010).

The current study also addresses two methodological issues that plague prior work on media coverage of the Supreme Court. With the notable exception of the Johnson and Socker (2012) study, all of the published empirical research to date is descriptive in nature (see Bowles & Bromley, 1992; Ericson, 1977; O’Callaghan & Dukes, 1992; Solimine, 1980; Tarpley, 1984) with no attention devoted to multivariate methods to control for competing predictor variables. The current study continues to develop the trend toward multivariate methods in this body of research pertaining to the Supreme Court. Prior studies on media coverage of Supreme Court decisions have also utilized one-dimensional measures of the coverage, encompassing either the decision to cover (Ericson, 1977; O’Callaghan & Dukes, 1992) or the focus of the coverage (see Bowles & Bromley, 1992; O’Callaghan & Dukes, 1992; Solimine, 1980; Tarpley, 1984). The current analysis utilizes multivariate techniques. The study further examines how the constructs of case salience and case complexity impacts media coverage in both elite and populace news coverage, net of controls. The study examines news coverage specifically within a sample of criminal procedure cases, and implements two distinct news coverage measures: the decision to cover and overall intensity of coverage (length of coverage, page placement, and number of articles).

This line of research is important to criminal justice scholarship. A comparison of Supreme Court coverage across elite news media (NYT and WP) and populace-based news media (USAT) potentially reveals distinctions in the type and depth of coverage across elite and populace-based news coverage. The current study reports that measures of case salience, particularly contextual- and issue-based salience, have more impact on coverage in the USAT (populace), whereas the measure of decisional case complexity is more powerful in explaining coverage in the NYT and WP (elite). The study also finds that the ideological direction of the Supreme Court decision (a control variable in the current study) is an influential construct that organizes both elite and populace coverage of criminal procedure cases. This article closes with a discussion of the theoretical and practical implications of these findings. The discussion frames these implications within the broader context of popular understanding of the Supreme Court decisions that pertain to criminal procedure.

Contextual and Issue-Based Case Salience

Case salience refers to the broad social, economic, legal, and political impact of a decision (Salzman, Williams, & Calvin, 2011). Case salience signifies that the policy implications of a case will be far reaching (Solowiej & Collins, 2009) and matters for and impacts many people throughout the nation (Salzman et al., 2011). Much work has been published by political scientists toward the development of valid and reliable measures of case salience in the context of analysis of Supreme Court behavior (Epstein & Segal, 2000). Relatively little research has explored the development of case salience measures in the context of studying media behavior in their decisions to report Supreme Court case outcomes. In prior work, political science scholars used the following variety of measures as indicators of case salience (to examine Supreme Court behavior): nationally recognized (New York Times) news media outputs (Epstein & Segal, 2000); notation, reprint or citation of a case in sources such Constitutional Law books (Brenner, 1989; Danelski, 1989; Rohde, 1972; Slotnick, 1978, 1979), Congressional Quarterly (Epstein & Knight, 1995, 1998; Segal & Spaeth, 1996; Martin, 1998; Witt, 1990), The Supreme Court Compendium or Lawyers’ Edition (Martin, 1998; Segal & Spaeth, 1993), and subsequent Supreme Court decisions (Ulmer, 1970); the extent to which the case is the subject of law review articles (Haines, 1977); and the level of amicus curiae participation (Maltzman & Wahlbeck, 1996). Scholars have suggested, in contexts other than the study of U.S. Supreme Court behavior, that assignment of the majority opinion to the Chief Justice, Chief Justice authority to assign a case, and issue content are all potential indicators of case salience (Brace & Boyea, 2008; Maltzman & Wahlbeck, 2005; Mooney & Lee, 2000; Sill, Ura, & Haynie, 2010).

Because the prior research that has given consideration to the case salience construct has done so primarily as a method to understand court behavior and not media behavior, there is little guidance in the extant literature as to the most valid and reliable measurement of case salience to understand media decisions to report Supreme Court case outcomes. The Epstein and Segal (2000) critique of case salience measures, although grounded in research to explain court behavior, is quite instructive. The authors state a clear preference for case salience measures that assess contemporary salience (an indicator that the case is important at the time a decision maker acts, regardless of whether future analysis deems the case as salient) rather than retrospective salience. The authors additionally critique case salience measures on four primary points: content bias (measurement of amicus curiae participation biased owing to a higher level of amicus curiae filings in civil rights cases), recency bias (citations to cases necessarily increase over time), time dependency (en masse amicus curiae participation has increased tremendously since the 1960s), and transportability (ability of scholars to use the indicator in multiple contexts outside of studies of court behavior).

Applying the criteria elucidated by Epstein and Segal (2000), two approaches to measure case salience are most relevant to the media behavior context of the current study: amicus curiae and issue content. Each of the two case salience indicators assesses contemporary salience. The content bias issue is addressed by the sole focus of the current study on criminal procedure cases, each of which concerns the issue of civil rights. The measures do not involve data that accumulate over time (thus, no issues with recency bias emerge). The time dependency issue is addressed by the limited period of the study (1994–2010). The study includes cases from periods of stable amicus curiae participation. Both of these measures of case salience, furthermore, have empirical and/or theoretical justification and measures differential dimensions of case salience.

Political science scholars (Caldeira & Wright, 1988; Perry, 1991) and at least one prior Supreme Court justice (Stevens, 1990) have advocated the use of amicus curiae filings as an indicator of case salience. Use of amicus curiae briefs represents contextual-based case salience. Data from a study by Salzman, Williams, and Calvin (2011) of the determinants of the number of amicus curiae briefs filed in Supreme Court cases suggest that the number of amicus filings is a valid measurement of case salience because the measure encapsulates both sociopolitical interest in the case and disagreement on case merits in the form of conflict and dissent in the lower court. Lynch (2004) notes that organizations see value in filing individual amicus curiae briefs instead of collaborating on single briefs. As a result, she reasons, it is the number of briefs filed, and not the number of organizations listed as a party to the brief, that signifies salience of the case from the perspective of the organizations that file briefs. It is also notable that a brief prepared to advocate a position is easily capable of distribution by the primary organizations responsible for its authorship, and upon completion of the brief an organization responsible for its authorship takes additional public relations steps to advocate its position. It is likely, therefore, that the most appropriate proxy of contextual case salience (when using amicus curiae filings) is the number of briefs filed, rather than the number of parties listed.

Issue content is an important indicator of case salience that broadly accounts for questions of law that matter most to the general public. Two types of criminal procedure cases, in particular, have qualities that render them more salient than other types of cases: search/seizure and cruel/unusual punishment. Eighth amendment cases (cruel and unusual punishment) involve exploration of moral and philosophical questions that are central to an understanding of human behavior and the appropriate role of the state in its response to deviant human actions (Mooney & Lee, 2000). The issue of whether the death penalty is an appropriate public policy, for instance, has provoked much debate. It concerns questions of whether the penalty is an effective deterrent (Manski & Pepper, 2013), fairness in implementation (Holcomb, Williams, & DeMuth, 2004; Scheb, Lyons, & Wagers, 2008), techniques of implementation, and appropriateness for offenders from certain vulnerable subpopulations (Fagan & West, 2005). This study considers cases that involve a cruel and unusual punishment question to have a high degree of issue-based salience, regardless of other aspects of case salience.

Cases that concern search and seizure also are quite important to the general public. Legal questions regarding search and seizure have broad implications for the populace. Absent some individualized suspicion or evidence of public threat, these questions generally prompt sentiment that is protective of personal freedoms (Fradella et al., 2011; Slobogin & Schumacher, 1993). Fourth amendment questions also continuously evolve with changes in police practice and technology (Westin, 2003). Slobogin and Schumacher (1993) further illustrate the broad impact of search and seizure questions by pointing out that other Constitutional rights rest upon an assumption of restraint of police in their authority to search and/or seize the home or person. Recent research by Buckler, Davila, and Wilson (2011) supported the notion that the Court’s rational conception of the expectations of the “reasonable person” governs fourth amendment Supreme Court decisions. The empirical results of studies by Slobogin and Schumacher (1993), Kessler (2009), and Fradella, Morrow, Fischer, and Ireland (2011) viewed in their entirety, suggest that Supreme Court views of expectation of privacy and the freedom to leave as perceived by the theoretical “reasonable person” do not concord well with perceptions of the populace on these matters. The current analysis, because of this apparent disconnect, and because of the extent to which the general public may be impacted by search and seizure law, considers cases that involve the fourth amendment to be of increased salience.

The distinction between contextual case salience and issue-based case salience is both significant and justified. Contextual case salience concerns how government entities and interest groups view a particular case, and to what extent they have actively participated to influence the Supreme Court’s decision. Issue-based case salience approaches the importance of a case from a frame of reference of the impact of the question on the larger population. Government entities or special interest groups may not be motivated to participate extensively in amicus curiae in all cases that involve a question that will broadly impact the general population (especially as it pertains to search and seizure questions). The expectation is that both contextual case complexity and issue-based case complexity impact coverage in both elite and populace press. The working hypothesis is that both measures of case salience—contextual and issue based—will have a greater impact for populace-based press than for elite press. Because elite press focus more on depth of coverage than populace-based press, the expectation is that case complexity will be more impactful than case salience for coverage that appears in elite press.

Decisional Case Complexity

The notion of complexity refers to an entity or abstract idea composed of many different parts that are difficult to deal with or understand. Applied to Supreme Court decisions, case complexity is multifaceted, and the meaning is contingent upon what one seeks to understand. There appear to be at least two distinct forms of case complexity as it relates to appellate courts: issue complexity and complexity of the decision process. Issue complexity has most typically been measured by a count of the number of issues the court must decide (Vining & Wilhelm, 2010). This approach only assesses the volume of issues to be resolved and leaves unaddressed the difficulty of any one issue that a court must address. Issue complexity, while important, is not as relevant to this study as is case complexity from the standpoint of the process of decision making. By the time a criminal procedure case reaches the Supreme Court, the number of issues to be resolved has most often been reduced to a single issue.

Case complexity as it concerns the decision-making process is extremely important when one seeks to understand media coverage of court decisions. News organizations that report case decisions are reporting the Supreme Court’s output (emphasizing the case decision), not the input into the Supreme Court (complexity of an issue). The Supreme Court communicates its output to the public in the form of majority, concurring, and dissenting opinions. Wood’s (2012) recent analysis of what prompts appellate court justices to publish concurring and dissenting opinions is instructive, in this regard, in the development of a measure of case complexity. In her expression of the importance of the decision of an appellate judge to author a concurring or dissenting opinion, she noted that there are costs that accompany such a decision. A judge who authors a concurring or dissenting opinion increases his or her workload, risks engagement in a tense exchange with the judges in the majority, may lose credibility with colleagues, and potentially limits the clarity of the law.

Wood (2012) set forth the reasons an appellate judge may author a concurring or dissenting opinion, regardless of the potential costs. A concurrence may be an attempt to set the factual record straight. A judge may draft an opinion to record disagreement with the legal rationale advanced by the majority. The concurring opinion may be an attempt to establish the limits of the majority opinion. In a circumstance in which the judge agrees with the majority opinion on the basis of the current law but disagrees with the law and outcome on principle, a concurrence may be drafted to inspire a legislative or administrative body to draft changes that would lead to corrective action. A concurring opinion may also serve as an attempt by the judge to make a record for the future.

Wood (2012) further provided the reasons an appellate judge would draft a dissent. A dissenting judge may wish to identify an error he or she perceives in the reasoning provided by the majority opinion in support of the outcome. A dissenting opinion author may seek to stress critical facts that he or she believes that the majority judges downplayed or ignored. The author of a dissent may be interested in expressing how the approach of the majority is not in concord with the principle. A dissenting opinion may be developed to highlight the practical implications of a decision. An appellate judge may draft a dissent in an effort to express the reasons why a majority opinion drafted in a broad context should be narrowly interpreted. A dissenting opinion may also be published to communicate the judge’s clear vision for a law or provision for the future.

In each of these instances, the concurrence or dissent exhibits a judge’s perception that the case facts, appropriate resolution, relevant logic, or potential implications are more complicated than what is suggested by the majority opinion. The more concurrences or dissents that are published, the greater the case complexity in the form of decision-making process. It is expected that as case complexity increases (the number of unique opinions published), the likelihood of news coverage and the intensity of news coverage will increase. It is further hypothesized that case complexity impacts news coverage in both elite (NYT and WP) and populace press (USAT), but that the impact is greater in elite press.

Research Methods

Dataset

This study examines the impact of case salience and case complexity on media coverage of U.S. Supreme Court decisions pertaining to criminal procedure. The study utilizes secondary data analysis of The Supreme Court Database funded by The National Science Foundation and collected by Professor Harold J. Spaeth.¹ Extracted for analysis are those criminal procedure cases decided in the 1994 through 2010 terms. This is a highly relevant period because the Supreme Court decisions are relatively recent (media articles are available through Lexis/Nexis for the three newspapers of interest for each of the terms) and because of the consistent five to four ideological composition of the Court. The divide is present throughout the period without gaps even though the Court experienced change in the justices on the Court. A period of stability is important to the current research to ensure consistency in the interpretation of the case complexity measure.

The Supreme Court Database contains case and justice voting variables of all U.S. Supreme Court decisions over a five-decade period. The dataset contains six categories of variables: (1) identification measures (citations and docket numbers); (2) background measures (how the court assumed jurisdiction, origin of the case, source of the case, the reason the court decided to hear the case, etc.); (3) chronological measures (the date of the decision, term of the court, etc.); (4) substantive measures (legal provisions under consideration, issues, direction of the lower-level appellate decision, direction of the U.S. Supreme Court decision, etc.); (5) outcome measures (disposition of the case, the winning party, formal alteration of precedent, declaration of unconstitutionality); and (6) voting and opinion measures (how the individual justices voted, their opinions, and interagreements). The current study additionally includes news media data.² The analysis includes news articles published in the span of a 1-week period following the date of the U.S. Supreme Court decision.³ Included in the analysis are only those news articles that focus on the Court’s decision and reasoning. Not included are those articles that address other aspects of the case such as the practical impact of the decision.

Variable Measurement and Hypothesis Statements

Table 1 reports the precise measurement strategies employed to operationalize the constructs used in the multivariate models. Table 2 summarizes the descriptive statistics for the independent variables of interest and control variables used in the study. There are four outcome variables: two nominal dichotomous measures of media decisions to cover or not cover (NYT/WP article published and USAT article published) and two measures of intensity of the media coverage (NYT/WP overall coverage and USAT overall coverage). The strategy to combine the NYT and WP coverage data and the decision to maintain independence of the USAT coverage data has empirical support. Table 3 reports concordance rate data for each of the variables used to construct the outcome measures for each potential combination of media sources collected for the study. The data show that the concordance rate for each of the variables is relatively low (in the 40–60% range) when identifying cases where the NYT, WP, and USAT coverage of the case matches one another. The concordance rate for the NYT and WP, alternatively, is in the 70–80% range. It is important to note that while quantitative measures of Supreme Court coverage seem to converge in ways that make the outcome measures similar across the two papers, this study makes no claim that the content of the Supreme Court coverage is similar for the two news sources.

Table 1.

Measurement of Constructs.

Dependent Measures
NYT/WP article published	1 = Article published in both the NYT and WP; 0 = Article not published in both papers
USAT article published	1 = Article published in the USAT; 0 = Article not published in the USAT
NYT/WP overall coverage	Overall coverage score calculated for each of the NYT and WP using following five criterion: (1 = multiple articles published, 0 = multiple articles not published) + (1 = at least one article appeared on front page, 0 = no article appeared on front page) + (1 = paper published at least one editorial, 0 = paper did not publish an editorial) + (1 = total words published met or exceeded words published score at 50th percentile, 0 = total words published did not meet or exceed words published score at 50th percentile) + (1 = total words published met or exceeded words published score at 75th percentile, 0 = total words published did not meet or exceed words published score at 75th percentile). Overall coverage score for NYT and WP added together
USAT overall coverage	Same approach as NYT/WP overall coverage measure, but additive criteria for USAT only
Case salience measures
Number of amicus curiae filed (contextual)	Number of amicus curiae (“friend of the court”) briefs filed
Fourth/eighth amendment (issue based)	1 = case concerned fourth or eighth amendment; 0 = case did not concern fourth/eighth amendment
Case complexity measure
Number of unique opinions published	Number of unique opinions (majority, dissenting, and concurring) published
Control measures
Liberal decision	1 = decision in liberal direction; 0 = decision in conservative direction
Number of decisions issued on date	Number of case decisions issued on same date as the case at issue
State case	1 = state case; 0 = federal case
Reversal	1 = reversed lower court decision; 0 = did not reverse lower court decision

Note. NYT = New York Times; WP = Washington Post; USAT = USA Today.

Table 2.

Descriptive Statistics.

	Minimum	Maximum	M	SD
Dependent measures
NYT/WP article published both	0	1	.48	.50
USAT article published	0	1	.29	.45
NYT/WP overall coverage	0	10	1.71	2.87
USAT overall coverage	0	5	.35	.90
Case salience measures
Number of amicus curiae filed (contextual)	0	68	3.39	6.03
Fourth/eighth amendment (issue based)	0	1	.22	.42
Case complexity measures
Number of unique opinions published	1	7	2.46	1.13
Control measures
Liberal decision	0	1	.39	.49
Number of decisions issued on date	1	8	3.37	1.69
State case	0	1	.55	.50
Reversal	0	1	.70	.46

Note. N = 389. SD = standard deviation; NYT = New York Times; WP = Washington Post.

Table 3.

Concordance Data for Combinations of NYT, WP, and USAT.

	NYT/WP	NYT/USAT	WP/USAT	NYT/WP/USAT
	% (n)	% (n)	% (n)	% (n)
Article published	79.9 (389)	64.5 (389)	69.7 (389)	57.1 (389)
Multiple articles	76.6 (188)	66.1 (109)	71.7 (106)	55.8 (104)
Front-page	78.2 (188)	66.1 (109)	55.7 (106)	47.1 (104)
Editorial published	72.3 (188)	66.1 (109)	63.2 (106)	48.1 (104)
50th Percentile	77.7 (188)	60.6 (109)	66.0 (106)	52.9 (104)
75th Percentile	79.3 (188)	67.9 (109)	70.8 (106)	55.8 (104)

Note. NYT = New York Times; WP = Washington Post; USAT = USA Today.

The current study advances two theoretical constructs of interest, case salience and case complexity, to explain media coverage of Supreme Court decisions. The case salience construct entails distinct dimensions. A proxy measure—Number of Amicus Curiae Briefs Filed—measures the case salience (contextual) construct. The greater the number of amicus briefs filed, the greater the social awareness of the issue by interest groups who wish to influence both the Supreme Court’s framing of the question and the Court’s decision on the issue. The influence of case salience on media coverage of a Supreme Court decision may also be understood from the standpoint of the issue of concern (issue-based) that the Supreme Court will address. Cases that focus on a fourth amendment search and seizure question or an eighth amendment cruel and unusual punishment issue are morally and/or socially salient (the Fourth/Eighth Amendment measure). The study combines search and seizure and cruel and unusual punishment cases into a single dichotomous variable. The proportion of cases in the dataset involving the cruel and unusual punishment is too small for these cases to stand alone as an individual dichotomous variable. The case salience hypotheses tested in the analysis include:

Hypothesis 1: (case salience—contextual): Net of control variables, as the number of amicus curiae briefs filed increases, media coverage increases.

Hypothesis 2: (case salience—issue based): Net of control variables, cases that involve a fourth amendment or an eighth amendment issue receive more coverage, compared to cases that do not involve the fourth or eighth amendments.

The study further examines the impact of case complexity (decisional) on media coverage of Supreme Court criminal procedure cases. The justices may collectively promote several distinct and often oppositional pathways of reasoning to resolve the legal question, thus enhancing the case complexity. In other instances, the number of alternative pathways of reasoning is more constricted. The Number of Unique Opinions (Majority, Dissenting, and Concurring) is the measure of case complexity used in the study. Case complexity, from a decisional framework, impacts media behavior through enhancement of the capability to translate a court decision into journalistic copy. The following is the case complexity hypothesis tested in the study:

Hypothesis 3: (Case complexity—decisional): Net of control variables, as the number of unique opinions (majority, dissenting, and concurring) published increases, media coverage increases.

To ensure the integrity of this measure as a variable that accounts for decisional complexity, it is essential that there be stability in the number of liberal- and conservative-leaning justices over the terms of the court included in the study. For a term that includes seven conservative-leaning justices, a value of four on the variable Number of Unique Opinions may have a different meaning than a value of 4 on the variable in a term where there are five conservative-leaning justices on the Court. A case assigned a value of 4 may very well have a greater degree of decisional complexity in a term where there are seven conservative-leaning justices, compared to a term where there are five conservative-leaning justices. This assumes that there is more decisional complexity when members who typically lean in the same direction identify different pathways of reasoning, compared to when members of two different ideological groups identify different pathways of reasoning. The current study addresses this concern by using a period of Supreme Court decisions (the 1994–2010 terms) where the ideological divide is consistently five conservative-leaning justices and four liberal-leaning justices. See Table 4 for data that support the contention of consistency across the terms of court.

Table 4.

Ideological Direction and U.S. Supreme Court Justice Voting in Criminal Procedure Cases (1994–2010).

	N	Conservative	Liberal	Unspecified/Nonparticipation
Alito	144	75.7%	19.4%	4.9%
Blackmun	870	55.4	41.4	3.2
Bryer	386	44.6	55.2	0.3
Ginsburg	388	38.7	61.1	0.3
Kegan	23	30.4	47.8	21.7
Kennedy	389	66.5	33.2	0.3
O’Connor	245	69.0	31.0	—
Rehnquist	238	76.1	21.4	2.5
Roberts	151	69.5	29.1	1.4
Scalia	389	73.0	27.0	—
Sotomayor	56	41.1	57.1	1.8
Souter	332	38.9	60.5	0.6
Stevens	363	28.7	70.8	0.6
Thomas	389	78.4	21.6	—

Note. CL= Conservative leaning; LL = Liberal leaning.

Changes in court composition, 1994–2010:

August 3, 1994: LL Bryer replaced CL Blackmun

1994–2005: Conservative leaning—Rehnquist (CJ), O’Connor, Scalia, Kennedy, Thomas

Liberal leaning—Stevens, Souter, Ginsburg, Bryer

September 29, 2005: CL Roberts (CJ) replaced CL Rehnquist (CJ)

January 31, 2006: CL Alito replaced CL O’Connor

August 8, 09: LL Sotomayor replaced LL Souter

August 7, 10: LL Kegan replaced LL Stevens.

The multivariate models include several control measures. The variable Liberal Decision accounts for the potential that the relative rarity of Supreme Court decisions that favor the government position over the position of the individual impacts coverage decisions. Prichard and Hughes (1997) refer to the tendency of news media to more intensively cover rare events as the statistical deviance hypothesis. Supreme Court decisions favoring the individual and classified as liberal in direction are more rare than Supreme Court decisions that favor the government. In the current study of the 1994 through 2010 terms, 61% of the cases favored the government. Yanus (2009) addressed the possibility that resource constraint impacts coverage decisions. The measure Number of Decisions Issued on the Date allows for control of the potential effect of limited space to devote to Supreme Court cases. The higher the number of Supreme Court decisions issued on a given date, the less potential that any one case will receive coverage on the days that follow. There is, however, an alternative possibility that may produce a significant finding in the opposite direction. The Supreme Court practice is to issue decisions in salient cases toward the end of the term. A result of this practice is that several decisions in contentious or salient cases get issued on the same date. News organizations may adapt to this reality of the Court by simply reporting the salient cases regardless of resource constraint. The number of cases issued on the same date, in effect, may increase news coverage of the Supreme Court.

The regression analyses additionally include the control variables State Case and Reversal. The analyses include a dichotomous measure to distinguish between cases that originate in state court and cases that originate in federal court. This variable controls for the potential that the NYT and WP, because of their status as America’s newspapers of record, will devote more attention to federal cases. The measure also addresses the possibility that the USAT as a publication focused more on populace issues will devote more coverage to issues that originate in state courts. The variable reversal controls for the potential that the news organizations are more inclined to cover cases where the Supreme Court decision reverses the case outcome from the lower court.

Multivariate Regression Analysis

The current study utilizes two regression techniques. Table 5 reports findings of logistic regression analyses predicting whether there is at least one article published concerning the case. Table 6 reports negative binomial regression results for the overall coverage dependent variables. The negative binomial regression technique is appropriate for noncontinuous count variables where the data for the dependent measure are overdispersed. In each instance, the overall coverage measure is overdispersed. For each of the logistic and negative binomial models, the tabled data include the semistandardized coefficient (adjβ _R ) to assess the relative strength of the independent variables of interest and the control measures (Bring, 1994; Roncek, 1996). The semistandardized coefficient formula is $a d j β_{R} = \frac{b_{i} s_{i}}{\sqrt{{V I F}_{i}}}$ , where b_i is the unstandardized regression coefficient for the predictor variable of interest, s_i is the standard deviation for the predictor variable of interest, and VIF _i is the variance inflation score for the predictor variable of interest. There are no collinearity issues in the data. No tolerance value for any predictor variable dropped below .916 and no variance inflation factor score exceeded 1.09. Models 1 and 3 provide results from the analysis predicting coverage in the NYT the WP, whereas Models 2 and 4 focus on the USAT.

Table 5.

Dependent Variable: Whether Article Was Published.

	Model 1					Model 2
	New York Times/Washington Post					USA Today
	B	SE	OR	β _R	R	B	SE	OR	β _R	R
Case salience measures
Number of amicus curiae filed (contextual)	.26	.05	1.30***	1.50	1	.19	.05	1.21***	1.10	1
Fourth/eighth amendment (issue based)	1.26	.30	3.55***	.51	2	1.59	.30	4.88***	.64	2
Case complexity measure
Number of unique opinions published	.41	.11	1.51***	.44	4	.39	.12	1.47**	.42	4
Control measures
Liberal decision	1.00	.26	2.72***	.47	3	.54	.27	1.72*	.26	5
Number of decisions issued on date	−.05	.07	.95	.08	6	.26	.08	1.30***	.44	3
State case	.63	.24	1.87**	.30	5	.30	.27	1.36	.15	6
Reversal	−.16	.27	.85	.07	7	.23	.30	1.26	.10	7
Pseudo R ²	.33					.35

Note. N = 389. R = Rank of the predictor variable on β _R statistic; SE = standard error; OR = odds ratio.

*p < .05. **p < .01. ***p < .001.

Table 6.

Dependent Variable: Overall Coverage.

	Model 3					Model 4
	New York Times/Washington Post					USA Today
	B	SE	Wald	β _R	R	B	SE	Wald	β _R	R	AR	RAR
Case salience measures
Number of amicus curiae filed (contextual)	.07	.01	25.62***	.42	1	.08	.02	31.45***	.50	2	1.2	1
Fourth/eighth amendment (issue based)	.70	.16	18.52***	.28	5	1.29	.25	25.81***	.52	1	2.5	2
Case complexity measure
Number of unique opinions published	.37	.06	35.08***	.40	2	.28	.09	8.73**	.30	4	3.5	3
Control measures
Liberal decision	.79	.15	29.28***	.37	3	.82	.24	11.73***	.38	3	3.5	3
Number of decisions issued on date	.17	.04	15.70***	.29	4	.15	.07	4.18*	.24	5	4.5	5
State case	.25	.15	2.85	.12	6	.04	.25	.02	.02	7	6.0	6
Reversal	.01	.16	.01	.01	7	.24	.27	.82	.11	6	6.7	7

Note. N = 389. SE = standard error; R = Rank of the predictor variable on β _R statistic; AR = Average rank of the predictor variable on β _R statistic across all four models; RAR = Rank of the average rank of the predictor variable on β _R statistic across all four models.

*p < .05. **p < .01. ***p < .001.

Findings

Case salience is an influential predictor of both coverage (Models 1 and 2) and intensity of coverage (Models 3 and 4). Each of the significant findings is in the theoretically expected direction. The variable number of amicus curiae filings, as a measure of contextual salience, is a significant predictor of the coverage decision for both the NYT/WP (p < .001; β _R = 1.50) and the USAT (p < .001; β _R = 1.10) and is a significant predictor of intensity of coverage for both the NYT/WP (p < .001; β _R = .42) and the USAT (p < .001; β _R = .50). The variable fourth/eighth amendment is also a statistically significant predictor of coverage in the NYT/WP (p < .001; β _R = .51), coverage in the USAT (p < .001; β _R = .64), intensity of coverage in the NYT/WP (p < .001; β _R = .28), and intensity of coverage in the USAT (p < .001; β _R = .52).

It is noteworthy that these two salience measures are the strongest predictor variables in the analysis. Table 6 reports the average ranking of the variables on the semistandardized regression coefficient across the four models. Case salience: contextual (number of amicus curiae briefs filed) ranks first among all the predictors, and case salience: issue (fourth/eighth amendment) ranks second. The case salience variables, as evidenced by the semistandardized coefficients, are key predictors of the coverage decision for the NYT/WP, the coverage decision for the USAT, and the overall intensity of coverage for the USAT. The overall intensity of coverage in the NYT/WP, however, stands out as anomalous compared to the other three models. The case salience measures rank first and fifth, respectively, as predictors of overall intensity of coverage in the NYT/WP.

There is also evidence that decisional case complexity is an important factor for understanding media coverage of criminal procedure cases decided by the Supreme Court. The variable number of unique opinions published, as a proxy for case complexity, is a significant predictor of coverage in the NYT/WP (p < .001; β _R = .44) and the USAT (p < .01; β _R = .42). Number of unique opinions published is also significantly related to the intensity of coverage in the NYT/WP (p < .001; β _R = .40) and the USAT (p < .01; β _R = .30). Each of the significant findings is in the theoretically expected direction. Concerning the relative strength of the case complexity measure, across all the models, the variable ranks third (tied with the liberal decision control measure). The measure is, however, the second strongest predictor variable for the model that examines overall intensity of coverage in the NYT/WP (Model 3).

In several of the models, control variables are also significant predictors of media outcomes. Cases with a liberal decision are more likely covered by both NYT/WP (p < .001; β _R = .47) and the USAT (p < .05; β _R = .26). Cases with a liberal decision receive significantly more overall intensive coverage in both the NYT/WP (p < .001; β _R = .37) and the USAT (p < .001; β _R = .38). As shown in Table 6, the liberal decision variable positions third overall among the predictor variables with respect to overall rank across the models. The measure appears to be a stronger predictor, relatively speaking, of overall intensity of coverage than it is for the initial decision to cover the case. Liberal decision is the third strongest predictor of overall intensity of coverage for both the NYT/WP and the USAT.

The measure of space constraint (number decisions issued on date) is a significant predictor variable of the coverage decision for the USAT (p < .001; β _R = .44), but not for the NYT/WP. Number of decisions issued on date is a significant predictor of the overall intensity of coverage for both the NYT/WP (p < .001; β _R = .29) and the USAT (p < .05; β _R = .24). Each of the significant relationships is positive in direction. The positive direction is likely due to the Supreme Court practice of issuance of decisions in contentious cases or cases that involve salient questions until toward the end of the term. The state case measure significantly predicts coverage in the NYT/WP (p < .01; β _R = .30) but not in any of the remaining models. The reversal variable is not significant in any model.

Discussion

Research that explores the factors that contribute to news media decisions to cover criminal procedure cases decided by the Supreme Court and the decisions to cover some of these cases more prominently than others is of concern to criminal justice scholars. The Court plays the essential role of final arbitrator of Constitutional criminal procedure questions. The answers to these Constitutional questions mediate the interaction that occurs between criminal suspects and federal, state, and local criminal justice practitioners. News media perform the vital function of communicating of Supreme Court decisions and rational underlying the decisions to the general public. The current study provides insight into the factors that make particular criminal procedure Supreme Court decisions more or less newsworthy than other criminal procedure decisions. The analysis further reports results concerning attributes that make particular criminal procedure decisions prime candidates for the most prominent news coverage. The study, in addition, offers information on differences in criminal procedure coverage across two forms of news media—elite and populace based—and the implications of these differences in terms of public understanding of the Supreme Court criminal procedure decisions.

The results of the study provide broad support for the hypothesis that case salience—both contextual and issue based—impacts the coverage decisions of news media organizations. Government agencies and special interests groups, through their sociopolitical activities, are able to help shape media organization understanding of what constitutes a criminal procedure case that is worthy of media attention. Certain criminal procedure issues, such as those that concern search and seizure or cruel and unusual punishment questions, appear to have an intuitive public appeal that attracts news organization attention and is independent of the effects of governmental and special interest activity. On one level, it is of value that governmental activity, the endeavors of special interest groups, and intuitive understandings of the issues that most concern the general public influence the decisions of news organizations in selecting those criminal procedure cases to cover and prominently cover. In the case of contextual case salience, it is the federal government, the state governments, the local governments, and special interest organizations that have the most precise comprehension of the political, social, and cultural implications of a decision on a criminal procedure issue. With respect to issue-based case salience, it is necessary for news media to provide content on those criminal procedure cases that address core questions of philosophy and morality (cruel and unusual punishment) and those that will most likely impact even the law abiding populace (privacy; search and seizure).

There is a clear cost, however, to the observed relationships between contextual case salience and issue-based case salience on news organization decision making. Special interest organizations are quite fickle and may choose to advocate for, advocate against, or choose to ignore a particular party to a Supreme Court criminal procedure case for a multitude of reasons. In this regard, the contextual case salience created by activity of special interest organizations and then interpreted by news journalists as an indicator of case importance may not be an entirely accurate estimator of the importance of a Supreme Court decision. Reliance on hot-button moral and philosophical questions or on likelihood that the decision will impact the typical citizen, as an indication of salience, may lead to citizens being relatively uninformed on other criminal procedure matters. The descriptive statistics on the coverage decision (cover or not cover) across the various types of cases show that, compared to the search/seizure and cruel/unusual punishment cases, other types of cases are much less likely to receive any coverage at all.⁴ Citizen opportunity to gain knowledge of these other criminal procedure issues, as a result, is much lower than for search/seizure and cruel/unusual punishment issues.

While each of the case salience measures are significant predictors of coverage across all the models, the relative importance of case salience appears to be mediated by two distinct circumstances: the measurement of case coverage considered and the type of press coverage (elite or populace). Contextual case salience is the strongest predictor, and issue-based case salience is the second strongest predictor, of the coverage decision for both elite and populace press. With respect to overall intensity of coverage, however, the status of issue-based case salience as one of the strongest predictors is true only for populace-based press. It is clear, at least in these data, that case salience, although important, matters less in elite coverage of criminal procedure cases. This leads into one of the central findings of the study: that decisional case complexity, the fourth strongest predictor of the coverage decision in both elite and populace press and the fourth strongest predictor of overall intensity of coverage in populace press, is the second strongest predictor of intensity of coverage in elite press.

The result that decisional case complexity is the second strongest predictor of overall intensity of coverage in elite press should seem relatively unremarkable. One would expect coverage to intensify (in terms of length, page placement, number of published articles, and editorializing) as the number of unique opinions published increases. The importance of this finding, indeed, is not that decisional complexity is ranked second among competing predictor variables, the significance of this finding is that there is a difference in the relative rankings between elite and populace press. Even a rudimentary comprehension of a case outcome, the type of which may be gleaned from reading a news article and not the entire Supreme Court decision, requires depth of coverage of the competing decisional frameworks used by the justices. Elite press offers more depth of coverage than populace-based press. The implication with respect to citizen consumption of elite and popular press is that a citizen relying on elite press is much more informed of the relevant facts and competing frameworks applied by the justices than are citizens who consume populace-based news.

A few illustrations are instructive of the differences in depth of coverage and the impact on citizen understanding of the case. Two cases, United States v. Jones (2012) 181 L. Ed. 2d 91 and Kyllo v. United States (2001) 150 L. Ed. 2d 94 demonstrate this point. The cases are selected because both concern search and seizure, both concern use of emerging technology that may unknowingly be used to collect information on a citizen, and one involves a 5 to 4 dissent and the other a unanimous decision with two concurring opinions. In January 2012, the Supreme Court issued a ruling in the case United States v. Jones (2012). The case concerns the warrantless tracking of a suspect subsequent to the attachment of a tracking device to the undercarriage of an automobile. Justice Antonin Scalia wrote the majority opinion and expressed that the tracking was illegal because authorities physically trespassed upon the property of the suspect without a warrant.

Justice Samuel Alito authored a concurring opinion in which he argues that the majority should have applied an expectation of privacy framework to address the question, rather than the property-based approach. Alito’s concurrence asserts that the citizen should prevail, not because of the trespass, but because the long-term, warrantless tracking violated the citizen’s reasonable expectation of privacy. Justice Sonia Sotomayor (who joined the majority opinion) also drafted a concurrence in which she suggests that if the property-based approach had not completely resolved the issue and the Court had applied the expectation of privacy standard, she would have voted for the citizen. She asserts that the long-term tracking that occurred is problematic and offers strong language questioning the continued viability of third-party ownership of tracking data. Her concurrence, in essence, is the strongest of the published opinions in terms of expressing sentiment in favor of privacy rights.

The NYT published a 1,111-word article on page A1 (Liptak, 2012) and a 437-word editorial that concerns the case (Editorial Desk, 2012). The WP, likewise, published a 1,000-word article on page A1 (Barnes, 2012) and a 479-word editorial (Editorial Board, 2012). The USAT published a 732-word news article on page A2 (Biskupic, 2012). There are substantial differences between the elite and populace press coverage other than the published editorials and the page placement of the news articles. The NYT and WP coverage are thorough enough that a person without knowledge of the actual opinion can understand the key issues of the case and all of the various frameworks applied by the justices. The USAT coverage lacks sufficient detail to clearly understand two components of the opinion. The notion that the property-based approach to fourth amendment questions did not supplant the expectations of privacy framework, but is merely a first hurdle that must be cleared, is explicit in the NYT and WP coverage, but is not firmly established in the USAT coverage. The USAT article, in addition, substantively downplays the unique contribution of Justice Sotomayor, and states only “she agreed with parts of Alito’s analysis which would cover privacy expectations not only when police affix a device but when no physical invasion occurred.”

The second illustration, the Kyllo v. United States case, also points to key differences between elite and populace press with regard to depth of the coverage. This case focuses on whether the government may, without a warrant, use infrared technology to retrieve heat readings from a residence and use such readings as the basis for establishing probable cause to search for evidence of the manufacture of drugs. Justice Antonin Scalia also authored the majority opinion in this case. The majority opinion provides that the collection of heat evidence constitutes a search under the fourth amendment, and the evidence may not be collected without a judicially authorized warrant. The majority opinion emphasizes that because the case involves an intrusion of the home, there is added protection that may not exist in other more public realms. The majority opinion also holds that the heat-reading evidence is private because the technology to retrieve the information is not widely available to the general public. The “public availability” component of the rationale left open the potential that heat-reading evidence in the future could be admissible without a warrant if the devices used to collect the readings became widely available for use among the public.

The NYT published the following: a 1,113-word news article on page A1 (Greenhouse, 2001), a 3,230-word excerpt of the majority and dissenting opinions on page A29 (National Desk, 2001), and a 312-word editorial on page A32 (Editorial Desk, 2001). The WP published a 1,024-word news article on page A1 (Walsh, 2001). The USAT coverage was much more scant; the paper published a 336-word article on page A10 (Biskupic, 2001). Similar to the USAT’s coverage of the Jones case, the paper excludes essential aspects of the decision in its coverage of the Kyllo case. The coverage in both the Times and the Post recognizes the importance of the “public availability” component of the decision in the context of emerging technology that is available to the public for use. The USAT coverage, in comparison, fails to mention the “public availability” component of the decision. A reader of the USAT coverage is uninformed that the Court left open the potential that privacy rights, even in the home, may be impacted by availability of devices for public use. This brief review of differences in coverage across elite and populace press illustrates the importance of the importance of the decisional case complexity measure. The prominence of decisional case complexity in intensity of elite coverage very likely translates into a greater depth of understanding for readers of elite press, and less depth of understanding among readers of populace press.

There are several limitations of this study that future research should address. This study analyzed print media. While it is clear that the major national newspapers have an influential role in setting the news production agenda, other forms of media, including television and Internet based, are of vital importance in communication of information to the general public. Future research should explore criminal procedure case coverage in these forms of media. The current study also focuses narrowly on the coverage decision and readily quantifiable measures of intensity of coverage. Prior work has not explored, through qualitative content analysis, the frames of reference news media utilize to discuss Supreme Court criminal procedure decisions. This gap represents fertile ground for future research endeavors. The scope of current study in terms of the news reports included in the analysis is quite limited. This study narrowly focused on news items that reported or editorialized about the decision and logic frameworks utilized by the justices. News media also convey information about the practical consequences of a decision—sometimes months or years after the decision—that should be empirically examined.

The core constructs used in the current research—case salience and case complexity—are also deserving of further consideration in subsequent research. The issue-based case salience variable used here is a crude measure that very likely fails to fully capture the complexity of the salience of the issue. While it is an important first step to empirically validate the issue salience of fourth amendment and eighth amendment cases, it is noteworthy that not all search/seizure cases and cruel/unusual punishment cases resulted in a published article. It is equally valuable to explore issue-based salience within single categories of cases to determine, for instance, what makes some fourth amendment cases more newsworthy than other fourth amendment cases. Future research should seek a more nuanced understanding of decisional case complexity. It is fairly evident that some dissents or concurrences raise pointed concerns that truly resonate with a large segment of the population. Others raise procedural or technical issues that are much less profound and engrossing. Future work in this area should seek to more fully conceptualize decisional case complexity in a manner that accounts for these qualitative distinctions among the unique opinions published.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

Notes

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The Newsworthiness of U.S. Supreme Court Criminal Procedure Cases (1994–2010 Terms)

Abstract

Keywords

Contextual and Issue-Based Case Salience

Decisional Case Complexity

Research Methods

Dataset

Variable Measurement and Hypothesis Statements

Multivariate Regression Analysis

Findings

Discussion

Footnotes

Declaration of Conflicting Interests

Funding

Notes

References