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Analysis: Judith Miller goes to jail

The Supreme Court on June 27 declined to hear two reporters’ contempt-of-court cases. The Court’s order led to one of the reporter’s jailing on Wednesday.

No one will know – at least not for a number of years, when some Justice’s private papers may reveal – why the Supreme Court refused to hear the appeals of New York Times reporter Judith Miller and Time magazine reporter Matthew Coope. They had been found in contempt for refusing to testify before a grand jury about confidential sources. Miller may wonder about that, in some of the private moments she now will be spending in jail. She was ordered confined on Wednesday by Chief Justice Thomas F. Hogan of U.S. District Court in Washington. Cooper apparently will testify, and thus avoid jail time.

According to Columbia Journalism Review (in an article conveniently available to help a prosecutor insist this week that Miller go to jail), the New York Times reporter’s lawyers were unhappy that more of the press did not join in enthusiastic support for her cause. But the record in the case can be read to suggest that the legal team never took some of the key steps it might have taken to show that the case was a big deal – or, at least, a matter of urgency. When it got to the Supreme Court, the dispute apparently did not detain the Justices very long before they denied it. They appeared to have examined the reporters’ appeals just once, then voted not to hear them. There no doubt are reasons.

The easiest reason to cite: since Justice Stephen G. Breyer did not take part (perhaps because of some investment he has), there was at least the prospect that the Court might not have been able to muster a majority to decide the case on the merits, even if granted. Had four Justices (the minimum needed) insisted that the Court hear the two appeals (Miller’s, 04-1507, and Cooper’s, 04-1508), there was the prospect of a 4-4 split on the merits. Thus, denial of review might have been a defensive gesture.

Another reason: the Court of Appeals, in upholding the contempt convictions, did not decide what might have been the crucial issue, and thus the Supreme Court did not have before it a conclusive legal result to review. That issue was whether federal court rules should be interpreted to embrace a reporters’ confidentiality privilege for their sources, as a matter of “federal common law.” Two of the three judges on the Court of Appeals panel concluded that the Supreme Court had not resolved that question in any prior opinion, despite the claim to the contrary of the third judge. The two-judge majority on that point found that any claim of privilege had been overcome by secret evidence that the prosecutor had supplied to Judge Hogan to justify access to the reporters’ sources. Thus, the Supreme Court may have seen that as a fact-specific issue – something they usually do not review.

Another reason: the Court of Appeals found itself bound by a 1972 Supreme Court decision (Branzburg v. Hayes) in refusing to recognize a constitutionally-based reporters’ privilege, and the Supreme Court may not have had much of an inclination itself to reopen the issue – especially with Justice Breyer out.. Miller’s appeal made that the first point raised, in what might have been a tactical error, but Cooper’s bypassed it.

But there may be another, somewhat more interesting reason: the case simply arrived at the Court too late in the Term, and could have been dropped into the mix at a time when the Justices were worn out from major issues, were scrambling to get finished, and may simply not have had the heart to joust – on the final day – with a case that had clearly taken its time getting to them, and had few of the trappings of a major dispute that was truly time-sensitive.

Judge Hogan had found the two reporters in contempt in October 2004. The attorneys could have filed an appeal to the Supreme Court right then, asking it to take on the case before it went to the Court of Appeals. That no doubt would have been a long shot, but it is an entirely acceptable way to alert the Court to the significance of a controversy; it can begin to get the Justices’ attention.

Instead, the lawyers took the case to the Court of Appeals. There, of course, they could not speed the case along faster than that Court wanted to process it. But when the Court of Appeals announced its decision on February 15, the attorneys could have gone promptly on to the Supreme Court. Instead, after a five-week wait, on March 22, they asked the Court of Appeals to reconsider. They no doubt had their reasons, but that was not procedurally necessary. And, in fact, it took the Court of Appeals until April 19 to turn down the rehearing request.

It would be three weeks before the attorneys would file their appeals in the Supreme Court. Even then, however, the Justices still had six or seven weeks left in their Term. The prosecutor in the case had his response in by May 27, and still there was a month left in the Term. The reporters’ attorneys, however, did not waive their right to file a reply to the prosecutor, so that the case could have gone to the Court by the end of May. Their reply came in on June 6. The Court’s clerk put the case down for the Justices’ consideration on the first private session remaining available – June 23. It may well have been too late.

It is, of course, possible that the Supreme Court would never have taken on the case, no matter what the lawyers did or failed to do. That is beyond knowing.

(NOTE: A reader helpfully points out that the reporters’ lawyers had every reason to file as late as they could in the Supreme Court, because that might have meant the Court would not act on the appeals until October. By then, the grand jury would be on the verge of expiring, and the time would have lapsed on their contempt findings. If that was, in fact, the attorneys’ rationale, it was a gamble, and it actually was foiled by the prosecutor’s filing his response quickly — in 18 days, instead of the full 30 allotted. The prosecutor had advised the Court that the parties had agreed to expedite the case in the Supreme Court, to get it before the Court before the summer recess, and it was on that basis that the contempt cases were stayed in the Court of Appeals. The Court’s clerk simply scheduled the case to accommodate that agreement.)