Presswatch/Woodward Explodes Roe v. Wade
Eastland, Terry
PRESSWATCH WOODWARD EXPLODES ROE v. WADE O n January 22, 1989, the sixteenth anniversary of Roe v. Wade, the Washington Post's Bob Woodward reported the existence of four internal Supreme Court...
...Woodward told me he regarded them as "explosive' because they indicated that Blackmun and others in the Roe majority understood they were doing exactly what critics of Roe, starting with Justice Byron White in his dissent in the case, have long said they were doing—acting as a legislature, not a court...
...1=1 THE AMERICAN SPECTATOR APRIL 1989 31...
...Woodward wound up reporting the "new evidence" not in a news story on A-1 but in an opinion piece on D-1, the front of Outlook, the Post's Sunday by Terry Eastland opinion section...
...Brock sits as an appeals court judge, in effect, reviewing the work of the trial court below as constituted by the memoirs of Martin Anderson, Terrel Bell, Michael Deaver, Larry Speakes, Donald Regan, and David Stockman...
...They ride the lecture circuit, making tens of thousands of dollars a year (some even hundreds of thousands...
...Good places to start are David Brock's "What the Kiss-and Tell Books Tell," in the August 1988 Commentary, and Frances FitzGerald's "Memoirs of the Reagan Era" in the January 16 New Yorker...
...But enough of theory...
...Doubtless bias in favor of Roe is part of the explanation, but other factors involving the nature and limits of journalism also played a role...
...And his absence illustrates one of the limits journalism confronts in covering the Supreme Court—a limitthat it doesn't face in covering the elective branches...
...The usual technique can be employed with officials in the executive and legislative branches, largely because the fact of elections provides an incentive for them to respond...
...But the technique has no standing, so to speak, in the Supreme Court, the only nonelective branch...
...These were not words that Woodward—co-author in 1979 of The Brethren, an account of the inner workings of the Supreme Court—had encountered in previous reporting on the Court...
...May there be a Brock or Fitzgerald who reviews his memoir together with all the others written by his aides...
...S many Reagan Administration 1 0 memoirs—how to make sense of them all...
...Woodward obviously could not have written that on A-1, but often the most important things cannot be said on A-1...
...The problem that can be posed by the lucrative lecture circuit is less ethical than practical...
...As with so much else, time on task is key...
...His article went as far as from here to the trash can, having a ripple effect near zero...
...Finally, and perhaps most important of all, Blackmun told Woodward nothing...
...The 'legislative' issue is important because it goes to the heart of the court's authority and legitimacy," he wrote in a passage that could have been composed by, well, Bob Bork...
...In my case, this was done and I responded, decapitating "decapitation" as neatly as I could...
...An Ethics in Journalism Act for the media...
...he declined...
...Brock's interest is in the substance of Ronald Reagan's foreign policy...
...Notwithstanding Woodward's reputation as a reporter, his lengthy piece did not generate much interest elseTerry Eastland is resident scholar at the National Legal Center for the Public Interest...
...The writers come from different political perspectives, but they do not do what many reviewers of individual memoirs have done—that is, write them off as merely self-serving and trivial...
...For those serious journalists who do spend a lot of time giving speeches, there's the question of whether they still do good reporting or thinking or writing...
...That job is going to become more time consuming as yet more memoirs, including the President's very own, roll off the presses this year and next...
...T recall being the author of a 1987 1. internal Justice Department memo on policy strategy that used an infelicitous word, "decapitation," and was leaked to the media in early 1988...
...The authority of the Supreme Court rests in large part on the public belief that its rulings, no matter how controversial, reflect enduring and permanent constitutional values, that its conclusions are not arbitrary and that the justices, who are appointed for life, work above the political fray...
...Stewart recognized that such line-drawing was "legislative" in character...
...Harwood seems to think they should, and perhaps he's right...
...That is, from the perspective of conflict of interest, which is, as I noted last month, one of modern journalism's great preoccupations...
...But just how newsworthy such a discovery is often turns in substantial part upon what authorities say about it...
...In several calls to reporters, I could find none...
...This is the latest question about the news business that Washington journalists are chewing on, and for the most part the question has been approached in the usual manner...
...Woodward, who said he doesn't know what he thinks about abortion but is interested in how law is made, offered this: "There are more people in the news media than not who agree with the abortion decision and don't want to look at how the sausage [of that law] was made...
...Thus on January 29, Washington 30 THE AMERICAN SPECTATOR APRIL 1989 Post ombudsman Richard Harwood wrote: "Should the columnists, commentators and other journalists financially involved with corporations, trade associations and lobbies recuse themselves from commenting on the affairs of their sponsors...
...Rita Braver of CBS (mistakenly mentioned in Harwood's column as a trade association speaker) told me that she turns down speeches because she wants her time to go to her job and family...
...In fact, so far as I could tell, no one did a follow-up story...
...In the final paragraphs of his article, Woodward took off his reporter's hat and put on that of a commentator...
...where in the media...
...Woodward found the memos among personal papers that the late Justice William 0. Douglas had given to the Library of Congress and that are now available to the public...
...FitzGerald finds that the books portray "a courtlike atmosphere in the White House" and reveal the life of the President as "peculiarly serene...
...He has said nothing since it was published, either...
...Neither, so far as I can tell, has anyone else who's done any recent reporting on the matter...
...What struck Woodward as especially newsworthy were the words used in memos written respectively by Justice Harry A. Blackmun, who wrote the Court's opinion in Roe, and the late Justice Potter Stewart, who joined the Roe majority...
...The lawyers didn't react with outrage, and neither did anyone of political stature...
...In this case, the legal authorities Woodward quoted—including Robert Bork—were not shocked by the language in the memos...
...FitzGerald does the same, throwing in Alexander Haig's book...
...Perhaps journalists can't be expected to police themselves (just others) and report their own conflicts of interest, but what's to be done...
...Brock finds that they demonstrate Reagan's idealism in foreign affairs, an idealism that has left "a legacy of détente that may turn out to be more dangerous than its precursor of the 1970s...
...Try that on for First Amendment size...
...Blackmun was given the opportunity to comment before Woodward's piece was published...
...The Constitution confers the federal legislative power exclusively to the Congress, so any discussion, even in internal memos, about the justices"legislative' purposes takes the court onto perilous ground...
...That placement indicated the relatively low news value the Post placed on the piece and diminished the influence it might have had upon other journalism, inasmuch as editors and reporters typically work off the front pages of news sections, not the front pages of Sunday opinion sections...
...Journalism is interested, and rightly so, in how government officials think about decisions as they make them, and it is news when officials apparently understand what they are doing in the same way as their critics do...
...The usual technique of journalism in such an instance is to call the author of the memo and ask about his intentions, choice of words, and so on...
...T ike congressmen and former government officials, many journalists participate in one of the big growth industries of the eighties—public speaking...
...The memoirs, and comprehensive reviews of the memoirs such as Brock's and FitzGerald's, are must reading for anyone trying to understand the Reagan Administration...
...And they conclude that the memoirs have a lot to say...
...Doubtless there will be those who churlishly charge Reagan with cashing in on his presidency by writing a memoir while still alive...
...The argument is this: a reporter covering the Pentagon who pulls down big fees for speaking to defense industries may be tempted to queer his coverage in favor of the latter, and anyway it just doesn't look good'appearances," and hence the subjectivity of journalists, counting for so much these days...
...Is this a good or bad thing...
...His quoted presence in the piece would have made it hot copy...
...Both Brock and FitzGerald are interested in trying to figure out what the books, taken together, actually say about Reagan and his presidency...
...How come...
...But Reagan in his own words should yield an indispensable perspective...
...Blackmun said that he was drawing "arbitrary" lines about the times during pregnancy when a woman could legally receive an abortion...
...it has long been thought, among liberals and conservatives alike, that Roe was an essentially legislative ruling...
...Brock's piece is lengthy, FitzGerald's approaches a small book...
...The tradition of the justices is not to answer reporters' inquiries about things they've written, whether in opinions or internal memoranda...
...Had Blackmun commented at all on whether he was legislating in Roe, that would have ratcheted up the news value of the piece, perhaps even given it what Woodward told me it lacked—a "smoking-gun quality...
...PRESSWATCH WOODWARD EXPLODES ROE v. WADE O n January 22, 1989, the sixteenth anniversary of Roe v. Wade, the Washington Post's Bob Woodward reported the existence of four internal Supreme Court memoranda—the kind justices compose and circulate among themselves as they hammer out opinions—that dealt with the decision and were written in the final weeks (one is tempted to say in the final trimester) before the Court announced its ruling...
...Harwood failed to provide a real instance of a conflict of interest growing out of journalist speechmaking...
...FitzGerald's, in the man himself...
...Woodward sought to convey this to readers, writing high in his story that "new evidence" had surfaced that "some of the justices who wrote and supported the opinion were," as some critics have said, "legislating policy and exceeding [the Court's] authority as the interpreter, not the maker, of law...
Vol. 22 • April 1989 • No. 4
