Access denied: The fight for SCOTUSblog

Greg Nash

The idea, he said, was a random brain fart. If they blogged about U.S. Supreme Court cases, they’d be seen as experts and gain new clients for their firm, Tom Goldstein and wife Amy Howe thought when starting SCOTUSblog in 2002, at the onset of blogging.

But they, as he put it, were “catastrophically wrong.”

“It was almost never, in the first half-life of the blog, that any business came of it,” Goldstein said.

They were seen as experts in appellate litigation, but there were other high-profile attorneys to choose from. Instead of dumping the blog altogether, they changed their course of coverage.  

“We recused ourselves from reporting on our own cases at all, so we went in the exact opposite direction,” Goldstein said. “We went from pimping the legal work we were doing to going completely silent about it.”

While the blog transitioned, so did Goldstein and Howe. He went to work for Akin, Gump, Strauss, Hauer & Feld, while she moved over to the blog full time as the editor, who also reports.

Goldstein, who serves as the blog’s publisher, is back in business for himself now at Goldstein & Russell, P.C., but the rule remains the same. No one at SCOTUSblog who reports to him can report on his cases.

Their goal is to give independent and objective coverage of the court.

Some 70,000 to 100,000 people read SCOTUSblog on a normal day. When the Supreme Court decides to hear something like gay marriage, the website gets a million hits.

It is seen as the source for Supreme Court coverage. But the news organization, which has three full-time employees and one part-time employee, along with a network of contract and contributing writers, has been denied press credentials from the very court it covers.

“We talked to the Supreme Court,” Goldstein said. “They told us you need a Senate or a White House credential …  so we went to the Senate Press Gallery and Lyle Denniston applied for us and got a credential.”

But when Denniston, the blog’s top reporter, presented his credential to the Supreme Court, it announced it was no longer accepting Senate credentials while it evaluated creating its own credentialing process.   

At this point, SCOTUSblog had already won the Peabody Award for excellence in electronic media, becoming the first blog to win the prestigious journalism award. Still, the Supreme Court was focused on appearance.

“And for good reason,” Goldstein said. “I have one out of every 10 Supreme Court merit cases for one side or the other, so it’s a dilemma for them, I think. They don’t want a situation in which a law firm that practices in front of them can create a blog and get a credential from them.”

But the Supreme Court wasn’t saying “no” forever. Instead, it decided to conduct a study on how to handle credentialing. In the interim, the blog went back to the Senate Press Gallery to get credentials for Howe. Without a background in journalism, she was not only denied, the Senate Standing Committee of Correspondents took it a step further. They revoked Denniston’s press pass as well. 

“They said SCOTUSblog didn’t, in their mind, qualify as a journalistic institution,” Goldstein said.

The decision is one that has outraged professionals in the field.

“I love the people who work in the gallery, but they just look foolish,” said NPR’s legal affairs correspondent Nina Totenberg. “We’re people who believe in the First Amendment and we won’t accredit a highly, highly regarded legal publication online? It just doesn’t make any sense.”

Totenberg was Goldstein’s introduction to the Supreme Court. He was her intern for two summers while in law school at the American University Washington College of Law. A graduate of the Georgetown University Law Center, Howe interned with Totenberg as well.

They even named their oldest daughter, Nina, after their mentor. Goldstein credits Totenberg for his love of the Supreme Court and his appreciation for journalism.

Many lawyers fear the press, but he saw first-hand how speaking to a reporter could help a case and help his career.

“I learned from that experience that it can be very valuable, and I came to appreciate the value of journalism, the objectivity of it,” he said.

But Goldstein, who often speaks with an irreverent air, admitted to having a couple times said something he wished he hadn’t.

Like the time he referred to a justice’s decision he was trying to overturn as “stupid.”

When asked about being named one of GQ Magazine’s 50 Most Influential People in Washington, Goldstein said those lists are stupid, too.

“They’re just wrong,” he said. “I can write something about the Supreme Court and people will read it and it will be influential, but so what.”

“I don’t have a false or wrongly inflated sense of the significance of what it is that I do or that we do. We have our piece of the puzzle and we really value everything everyone else does.”

But the blog, which goes out of its way to do a roundup of other Supreme Court coverage, is burning money. The blog costs Goldstein and Howe about $400,000 a year to run. Out of the two, Howe is the only one who draws a salary.

In its existence, the couple said they’ve already sunk about $3 million to $4 million into it out of pocket and now they’ll need to spend even more.

In September, Bloomberg Law, which has been sponsoring the blog for the last three years, decided not to renew its contract. Without a sponsor, Goldstein and Howe are now in search of a funding source. They’ve discussed advertising on the blog and have even considered selling it altogether, though Goldstein said that’s highly unlikely.

“It’s fair to say we’re in discussions with people,” he said. “If we sold it, we would stay immediately involved. No one is looking to fire us.”

As for their credentials, Howe and Denniston are still waiting for the Supreme Court to render a decision. For now, the Senate Press Gallery is accommodating enough that they can usually get a seat at a hearing.

They have the option of asking the Senate Rules Committee to overturn the Senate Standing Committee’s decision, but Goldstein said the blog’s financial future needs to be determined first.

“How close the blog is to the law firm is going to be an important part probably in people deciding whether or not they are going to credential us,” he said. “As soon as we get that resolved we’ll go back to the Senate.”

UPDATE: Siobhan Hughes, the outgoing chairwoman of the Standing Committee of Correspondents, said in an emailed statement to The Hill that SCOTUSblog was denied press credentials because it failed the "fundamental test of editorial independence.”

“The Standing Committee of Correspondents worked very hard last year to treat SCOTUSblog fairly and thoughtfully. We gave Mr. Goldstein a professional  and unreserved welcome. We gave his arguments lengthy, serious and respectful consideration. At the same time, we honored our obligation to uphold the editorial-independence standards that are integral to the gallery's rules.

Mr. Goldstein earns his living as a partner at a law firm and also publishes SCOTUSBLOG. The blog indirectly accounts for 75 percent of his Supreme Court business. Mr. Goldstein controls the blog’s editorial direction. In our view, these facts make it impossible for the blog to meet the editorial-independence standards.

We have been emphatic and consistent, moreover, on this point: We made no judgment about the quality of the blog’s content or its value to readers. Rather, our duty was to evaluate the blog’s structural independence from the law firm and one of its partners. The blog failed that fundamental test of editorial independence,” Hughes said.