— Mark Walsh (@SchoolLawBlog) January 11, 2016
Mark Walsh is the only journalist that I know of who focuses on education-related Supreme Court cases, though his writing at EdWeek (@)and on SCOTUSblog. So it was great to get Walsh’s take on the big Supreme Court case of the week and on media coverage of school law cases in general.
(See my previous post on this: How To Be A Smart Supreme Court Coverage Reader.)
According to Walsh, the Friedrichs case debated in front of the Justices earlier this week was one of just two big education cases that are going to be heard by the court this term. The number of education-related cases that come before the court has declined in the last five years, he says, though of course there are education angles to many related cases that come up.
The coverage this week was pretty intense, he agrees, but it wasn’t too much given the importance of the case. “This is definitely one of the court’s big cases – along with abortion, voting rights, affirmative action, and very likely immigration.” (Scroll to the bottom of the page for a roundup of coverage.)
At first, Walsh admits to having been “a little surprised at how much interest there was in this case,” given how arcane the issues and mechanisms involved are. But the stakes are obviously high, there are clear political ramifications — and there is a strong news narrative: “It all fits into big-picture questions about ‘Are unions still relevant?’ and ‘Will this do them in?’”
It also seemed clearer than usual how the case might turn out, according to Walsh. The Court signaled its readiness to overturn the Abood decision two years ago, and has a pattern of coming back to issues like this when it’s ready to make a move.
Walsh has a permanent pass to observe Supreme Court deliberations, and his cubicle in the SCOTUS press room is right next to the Washington Post and NBC News. “It’s still the best show in Washington,” he says, noting that unlike Congressional hearings where the preambles by members can slow things down, the Justices and lawyers jump right in “like a death match.”
Having a good seat to watch is important not just because it takes a few hours for the transcript to come out after the morning deliberations (see here) but also since the audio recording typically isn’t available for a few days. No recording devices or cameras are allowed in the room (yet). “Reading the transcript is not the same,” he says.
This time around, not only the public section but the bar sections of the chambers were filled. The arguments were extended a bit since the California teachers and State of California chose to argue their side of the case separately. But there was no Al Sharpton in the room, as there was a few weeks ago.
— CWA (@CWAUnion) January 14, 2016
Walsh often doesn’t bother to go out on the plaza and watch the lawyers talk to advocates and other media, though he did this year, writing that “On a cold day in Washington, hundreds of teachers’ union members rallied outside the Supreme Court building for their side, while possibly just as many union opponents gathered as well.”
What’s changed in recent years is that independent law professors provide their own takes on the discussion, which makes it easier to find experts to comment. Some groups also put out research anticipating the impact of the decision a week or so before the case was argued.
Walsh notes that the Friedrichs case is somewhat unusual because the case was rushed through the courts and wasn’t tried in the traditional sense before it arrived before the Justices. “The Justices are supposed to be making rules on record established in lower court. But this was kind of rushed through — there’s no record.”
In situations like the Friedrichs case, the coverage doesn’t vary that much among different outlets and reporters, says Walsh. Everyone’s working from the same raw materials and behaving pretty responsibly.
The only mandate from On The Media that he says he and other journalists regularly violate is #5 (about not basing analysis on Justices’ questions). “Everyone breaks that rule; it’s too irresistible.”
There are obvious dangers of making predictions based on oral arguments and consensus thinking, however:”The clear consensus out of Monday is that Abood is going down, but we could be wrong…. In five months, we could all have egg on our faces.”
You can read Walsh’s coverage of the argument here: Teachers’ Unions Get Cold Reception at U.S. Supreme Court, and a roundup of other coverage from Above The Law below:
“Supreme Court majority is critical of compelled public employee union fees”:Robert Barnes of The Washington Post has this report.
David G. Savage of The Los Angeles Times reports that “Supreme Court appears skeptical of union fees — a potentially major loss for labor groups.”
Jess Bravin of The Wall Street Journal reports that “Supreme Court Shows Signs of Ruling Against Mandatory Public-Sector Union Fees; Justices appear ready to end unions’ power to require nonmembers to pay dues.”
Richard Wolf of USA Today reports that “Supreme Court seems sure to rule against unions.”
Sam Hananel of The Associated Press reports that “High court seems ready to scrap mandatory public union fees.”
Lawrence Hurley of Reuters reports that “Conservative U.S. justices prepared to deliver blow to unions.”
Greg Stohr of Bloomberg News reports that “Mandatory Union Fees Cast in Doubt at U.S. Supreme Court.”
On this evening’s broadcast of NPR’s “All Things Considered,” Nina Totenberg had an audio segment titled “Supreme Court Weighs Changes That Would Hurt Public Unions’ Bottom Lines.”
Ariane de Vogue of CNN.com reports that “Conservative justices skeptical of union position in big labor case.”
Brian Mahoney and Josh Gerstein of Politico.com report that “SCOTUS signals support for anti-union plaintiffs.”
Tierney Sneed of TPM DC has an article headlined “Why Public Unions Should Be Afraid After Monday’s Supreme Court Arguments.”
Sam Baker of National Journal has an article headlined “At Supreme Court, Ominous Signs for Public-Sector Unions; The justices seemed likely to rule that certain union fees violate the First Amendment.”
Cristian Farias of The Huffington Post reports that “The Supreme Court Appears Set To Issue Crippling Blow To Public Employee Unions; The ruling would undo nearly 40 years of precedent in labor relations.”
Chris Geidner of BuzzFeed News reports that “Supreme Court Appears Poised To End Public Sector Union Fee Requirements; A five-justice majority appears set to end ‘agency fees’ in public sector unions.”
At “SCOTUSblog,” Lyle Denniston has a post titled “Argument analysis: The question not asked.”
At the “School Law” blog of Education Week, Mark Walsh has a post titled “Teachers’ Unions Get Cold Reception at U.S. Supreme Court.”
Online at Slate, Dahlia Lithwick has a jurisprudence essay titled “What Would Happen if the Court Kneecapped the Unions? We’re about to find out.”
And at ThinkProgress, Ian Millhiser has a post titled “Public Sector Unions Just Got Brutalized In The Supreme Court.”