By Joe Mathewson
Foreword by Fred Graham
Northwestern University Press, 2011
[T]here exists a fundamental and necessary interdependence of the Court and the press. The press needs the Court, if only for the simple reason that the Court is the ultimate guardian of the constitutional rights that support the press. And the Court has a concomitant need for the press, because through the press the Court receives the tacit and accumulated experience of the nation, and—because the judgments of the Court ought also to instruct and to inspire—the Court needs the medium of the press to fulfill this task.
—Justice William J. Brennan Jr., Columbia Journalism Review, vol. 18, no. 5 (1980)
Justice Brennan articulated the intriguing conundrum created by the symbiotic relationship between the U.S. Supreme Court and the press. Each institution depends on the other: the Court deals regularly with First Amendment interpretations, which is the bible of the press, and the press gives voice to the public of the Court’s work. Each needs and depends on the other, and the public depends on both.
That conundrum is the subject of Joe Mathewson’s book, and it concerns a historic and continuing institutional tension with constitutional consequences. The late law professor Alexander Bickel described the Supreme Court as “the least dangerous branch” of government, noting its lack of powerful enforcement powers that the Executive and Legislative branches have. The Supreme Court could also be called the least understood and most secretive branch.
How well the press enlightens the public about the Court is an important question. The High Court can declare acts of Congress unconstitutional, as it does regularly, and can frustrate presidents, as it has historically, its battle with President Franklin D. Roosevelt in the early days of the New Deal being a classic example. Our chief executive and national legislators are elected for set terms, and, one could argue, their every move is scrutinized excessively. But the Supreme Court, whose members are appointed for life, operates in relative secrecy, some (its private deliberations) appropriately, and some (its self–regulation and “open” hearings) questionably.
Mathewson is a lecturer at Northwestern University, formerly practiced corporate law, and was a Supreme Court reporter for The Wall Street Journal. He provides panoramic reviews of Supreme Court coverage of various areas of the law—
voting rights, slavery, business and labor, and what he refers to as “The Social Scene,” meaning hot-button issues such as affirmative action, abortion, and school prayer. His treatment is wide ranging and hits many key points and cases, but occasionally includes a jarring line (“even occasionally erroneous coverage is better than no coverage”). His analyses demonstrate the breadth of the Supreme Court’s involvement in every aspect of our lives.
A key question about the Court’s practices concerns its historic refusal to allow its public proceedings to be televised. Ironically, the Court ruled in 1981 that there is no constitutional problem with televised court proceedings; as a result, most states and some federal courts now allow it, with no known damage to their administration of justice. But the Supreme Court has denied repeated press requests to televise its arguments and opinions (cameras can broadcast from the Court “over my dead body,” Justice David Souter said adamantly in 1996) in its arrogant exercise of its power to set rules to govern its proceedings. Mathewson argues, as other reformers have and as longtime court journalist Fred Graham states in the Foreword to this book, that the Court’s proffered reasons are arbitrary and against the public’s interest.
Graham states “the Court has yet to come to terms with the fact that it can accomplish an enormously educational public service by opening its sessions to television coverage—and the justices stubbornly refuse to do it.” As most people get their news from television, the public is ill–informed about the business of the Court. And as the business of the Court concerns life and death public issues, the Court and the public suffer as a result.
Various reasons are offered by defensive justices who deigned to discuss the subject. Lawyers would showboat, and the justices would be identifiable to the public; proceedings would be less dignified and only out–of–context snippets of the justices’ work would be seen.
Modern technology negates early fears that televised trials would be cumbersome. Indeed, state Supreme Courts that do televise their arguments have not lost their dignity. Having argued before the U.S. Supreme Court, I can testify that the last thing most advocates are thinking about when they address the Court is showing off—so intensively serious is the experience. And the “snippets” argument is paradoxical as full, gavel to gavel reportage of an argument or opinion is a complete presentation, while even the best–written report is perforce a snippet, to use the justices’ inapplicable term.
Could it be that, as some reputable scholars (not including Mathewson) have suggested, the justices prefer the mystique of their oracular distance from the interested public? Might Justice Antonin Scalia, for example, be less caustic in his badgering questioning if his demeanor was seen widely? Or would Justice Clarence Thomas demonstrate more participation than he now does in his sullen silence if he was observed publicly? Is it a fair argument, which one justice made, that they do not want to be recognized in the supermarket as a reason that the public not witness the real arguments over the great issues of our times?
Except for tourists who are seated for brief minutes and then moved out, we few members of the Supreme Court bar who live in Washington, and those select journalists who are allocated limited places to observe the Court, are the only people who see the Court’s work, hear the lawyers argue cases, and watch the justices state their opinions.
Another example of the phenomenon Justice Brennan described, and which Mathewson analyzes, is the press’ claim for protected privilege of its confidential relations with its sources, equivalent to that of attorney–client, doctor–patient, and priest–penitent privileges of confidentiality. Mathewson sides with the media’s claim for constitutional protection, but the Court has never recognized such a claim. In the 1972 landmark case Branzburg v. Hayes, the Court sensitively denied that the press’ position has a basis in the First Amendment. We have, instead, a common law protection of press sources, which is a balanced approach to this dilemma, not a perfect resolution of the conflict, but one that works without a constitutional conclusion. Most states have legislated shield laws.
In Mathewson’s overview of the continuingly important relationship between the press and the Supreme Court, readers will recognize all the familiar markers of First Amendment law—clear and present danger, prior restraint, chilling effect, anonymous source, free press versus fair trial.
Two important subjects are missing from Mathewson’s consideration. First, his press history focuses on the historic newspaper and television strengths and weaknesses, but fails to deal with new media at all and the interesting questions raised by its emergence and growing importance.
Second, Mathewson does not deal with the Court members’ idiosyncratic role in American jurisprudence. Most press ignores coverage of the justices, unlike its scrutinizing coverage of legislators and executives. One book about the Supreme Court, Nine Men (now it would be six men and three women), made the jurisprudential point that the law is what the judges say it is. That is an intriguing way to examine the Supreme Court, but the press does little of it, and neither does Mathewson. For example, when occasional recusal challenges are made against them, the justices decide in their own favor, and their decisions are final and unreviewable. The press would swarm over officials in the other branches of government for comparable behavior, but it ignores this practice in meek deference to the anachronistic practice.
When I came to Washington, D.C., in 1961 to serve in the U.S. Department of Justice, I had lunch at the Supreme Court dining room with one of my heroes, Associate Justice Hugo Black. He complained to me that he was distressed about the general coverage of the Court by the press, specifically how little the public was informed about the Court’s treatment of controversial cases. He referred to the press’ failure to adequately explain recent opinions dealing with the church–state issue. Mathewson agrees, offering five specific critiques in his conclusion:
“The media fall short in five respects: inaccuracy; failure to explain clearly the legal basics and reasons for each decision; reporting of decisions like the policy determinations of a legislative body; overemphasis on reaction and impact at the expense of the decision itself; and downplaying with inadequate space or time, or omitting altogether, newsworthy stories.”
I concur. And the late Justice Black is nodding in agreement from on high.
Ronald Goldfarb is a Washington, D.C., attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. His Web site is www.ronaldgoldfarb.com. Reach him by e–mail at rlglawlit@gmail.com.
All the Justice Money Can Buy: Corporate Greed on Trial
By Snigdha Prakash
Kaplan Publishing,
June 2011
Review by Joseph C. Goulden
One can read Snigdha Prakash’s disturbing book on two levels: either as in–depth reporting of a major corporate scandal, or as a legal thriller, the denouement of which is left hanging until the final pages. On any score, she offers a first–rate read, rich both with personality sketches and comprehensible explanations of complex medical issues.
Her subject is the meteoric rise and free fall of Vioxx, among the hottest of the “miracle drugs” of the early 21st century. Merck & Co., Inc., the makers of Vioxx, promised relief to millions of people who suffered from arthritic pains and other aches, but the drug soon came under legal attack for allegedly causing heart attacks and was withdrawn from the market.
Casual newspaper readers perhaps picked up the bare–bones outline of the Vioxx affair through the media’s somewhat cursory coverage of the court cases. Prakash, who reported on the Vioxx affair for National Public Radio, goes light years further in detailing the development of the drug, the somewhat confusing “endorsements” given by the U.S. Food and Drug Administration (FDA) over the years, and how a change in Merck’s corporate culture contributed to the mess. Once a science–driven corporation, Merck came under control of marketing specialists in the late 1990s who seemed driven more by profits than concern for the welfare of the people who took its pills.
Vioxx had its origins in scientists’ quest for a safe painkiller. Such popular painkillers as aspirin, Advil, and Aleve worked well for most persons, but a small number suffered gastric distress, the author writes. The snag was that while these drugs blocked the enzyme COX–2 that regulates inflammation and pain, they also blocked a related enzyme, COX–1, which protects the stomach’s mucous lining. Merck scientists hypothesized that a painkiller that suppressed the pain–related COX–2 enzyme, but did not affect COX–1, would lessen gastrointestinal bleeding and ulcers. In due course, Prakash notes, Merck scientists produced a drug named Vioxx, which it felt solved the problem, and which could be marketed to some 66 million people known to suffer from arthritis.
And indeed Vioxx was an immediate commercial success. In 2000, the first full year Vioxx was on the market, Merck spent $160 million on advertising, a sum greater than what PepsiCo, Inc. spent peddling soda, or Budweiser on beer. A sales force of 3,800 representatives touted the drug to doctors. Vioxx revenues bounced past the $1 billion mark; by 2003, they surpassed $2.7 billion, one–eighth of Merck’s total revenues. As Merck documents showed, according to Prakash, at the peak, “every dollar spent on the campaign was generating $4 in new Vioxx prescriptions.”
Then, disaster. A rash of heart attack deaths around the country, killing persons who were taking Vioxx, became a tidal wave. In addition to hundreds of individual personal injury cases around the country, plaintiff lawyers prepared to file class action suits in New Jersey, where Merck is based, and elsewhere.
Alarmed, Merck pulled Vioxx off the market in September 2004, a move that coincided with an alarming study showing that persons taking the drug suffered heart attacks and strokes at twice the rate of subjects given placebos. In a single day, Merck stock lost a quarter of its market value.
Prakash was “embedded” (to use the current journalistic term) with a team of plaintiff lawyers suing Merck in an Atlantic City, New Jersey, court on behalf of two men who had suffered heart attacks, allegedly because of Vioxx. One died, the other survived. With you–are–there immediacy, Prakash describes late–night conferences at which trial strategies were discussed. The author rides to and from the Atlantic City courthouse in plaintiff team vehicles, and she is privy to trial tactics and plans to discredit Merck witnesses.
Her featured—and highly favored—character throughout is Houston attorney Mark Lanier, who honed his oratorical skills by a form of public speaking likely rare for a trial lawyer: preaching. For years, he taught a 45–minute Sunday school class at his Southern Baptist mega–church. As Lanier tells Prakash, “Most lawyers try cases no more than once or twice a year, some once or twice every five years. I speak 50 times a year for at least 45 minutes. That’s 250 times over the last five years. I can do it in my sleep.” Lanier’s theory was that a juror could absorb “only three concepts a day” from testimony, so he relied on tightly honed presentations.
Prakash makes no pretense of objectivity. Although she denied being a “partisan,” as charged by a Vioxx defense lawyer, “I did have a point of view on the questions before the jury, and it was not the one [Merck lawyer Hope S.] Freiwald was hired to espouse. My opinions were shaped by years of reporting on the Vioxx saga, and sadly, the evidence presented at trial only strengthened my misgivings about Merck’s conduct,” the author writes. Her disclaimer aside, Prakash’s disdain for the Merck legal team, expressed in heavy–handed sarcasm, becomes tiresome as the pages rolled on, to the point where I silently exclaimed, Lady, would you please stop poking me in the eye with your elbow!
Despite a plethora of damning studies pointing out the dangers of Vioxx, Lanier and other lawyers by no means had a slam–dunk case. As Prakash writes, “No telltale mark distinguished a heart attack caused by Vioxx from those in which Vioxx played no role. And many plaintiffs suffered from conditions, such as high blood pressure and diabetes, which caused heart attacks even in the absence of Vioxx use.” Further, the FDA had approved the sale of the drug and its labeling. Merck lawyers argued that the plaintiffs’ heart attacks “were caused not by Vioxx but by the usual culprits, such as bad diet and a sedentary lifestyle.”
Merck itself thought little of the FDA “regulators.” In an in–house e–mail, the company’s top scientist, Edward Scolnick, called FDA scientists “Grade D high school students.” Its review system was an “anachronism because they cannot possibly keep up with science given their hiring constraints,” Scolnick wrote. Merck happily took full advantage of the FDA’s weaknesses.
But the law required plaintiffs to prove only that Vioxx was a cause of the heart attack, not the (only) cause. Persons already suffering a heart condition (those who were, in Lanier’s words, “one pork chop away from a heart attack”) were “precisely the ones who could least afford to amplify their high risk by taking Vioxx,” Prakash writes.
Superior Court Judge Carol E. Higbee, who heard the Atlantic City cases, had 16,800 Vioxx cases on her docket. Realizing the impossibility of trying each to verdict, she proposed trying cases seven or eight at a time, using a two–phase procedure called “bifurcation.” Phase I would deal with the issue common to all cases: whether Merck had failed to warn that Vioxx posed cardiovascular risks and thus bore “general liability” for the plaintiffs’ claimed injuries. In Phase II, individual plaintiffs would be required to show that Merck had “specific liability” for their injuries.
The trial followed by Prakash concerned two plaintiffs, the family of a deceased Wisconsin man named Brian Hermans (represented by Lanier) and an Idaho man, Mike Humeston, who survived a heart attack, represented by Chris Seeger.
Even when a class action suit is being assembled in the federal judiciary, as was the situation with Vioxx, trials of individual cases remained important. Both sides learn how their respective cases play before a jury. For plaintiff lawyers, trials are a means of “establishing the price” that a defendant company must ultimately pay to clear suits off its books. For the defense, if favorable verdicts outnumber the losses, the temptation is to make the other side try each and every case, rather than buy out of litigation with a class action settlement.
The litigation record was mixed. For instance, of the 13 cases tried in 2006, Merck won eight, the plaintiffs, three; two ended in ended in a mistrial, the author writes. But over the years, Merck was hit for some boxcar verdicts: a quarter of a billion dollars in Texas (a Lanier case, with the verdict capped at $26 million under Texas law); $13.5 million in New Jersey; $32 million in another Texas case; and $52 million in a federal court case.
Each blip on the verdict scoreboard was closely watched by Wall Street analysts. At one time, they estimated that a class action settlement would cost Merck $30 billion to $50 billion. When Merck prevailed on a number of cases, the predicted price came down to “a single–digit sum in the billions,” Prakash writes. Eventually Merck settled the class action for $4.85 billion, an amount that Prakash computed “would take Merck less than a year to earn back.”
But I am not going to tell you the outcome of the Atlantic City cases. To do so would strip the suspense factor from Prakash’s book, which is not fair to a first–time author. A superb read for the lawyer and the layman alike; stick this one in your beach bag.
Washington, D.C., writer Joseph C. Goulden has written several books on the legal profession, most recently The Money Lawyers (2006).
