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Copyright (c) 2012 Brigham Young University Law Review
Brigham Young University Law Review

SPEECH: A Failure to Communicate


Brigham Young University Law Review

2012 B.Y.U.L. Rev. 1705


Erwin Chemerinsky*


On Tuesday night, December 12, 2000, at about 10:00 p.m. eastern time, the Supreme Court released its decision in Bush v. Gore. 1 We all vividly remember the image of reporters standing outside the Supreme Court fumbling with copies of the opinion and trying to figure it out while speaking. Some got it badly wrong. In hindsight, it was a monumental failure to communicate by the Court. The public learned that night that the Court had ruled in favor of Bush, but there was not a clear explanation of why. This helped to fuel, though certainly was not entirely responsible for, the sense that the Court decided the outcome of the presidential election on a partisan basis.

Bush v. Gore, of course, is an extreme and obvious example of the Court failing to communicate effectively with the American people. Yet in a sense, history repeated itself in June 2012, when CNN and Fox News initially reported that the Supreme Court had declared unconstitutional the individual mandate in the Patient Protection and Affordable Care Act. 2 This was arguably the most anticipated, and perhaps the most important, Supreme Court decision since Bush v. Gore, and two major media outlets got it wrong and misinformed the American public. 3

Although these errors in reporting are not typical and the press certainly deserves a great deal of the blame for hasty and inaccurate reporting, they reflect a larger problem. The United States Supreme Court has a serious failure in communicating with ...
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