David A. Kaplan | The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution | Crown | September 2018 | 19 minutes (4,985 words)
Nine mornings after Antonin Scalia died at Cíbolo Creek, the justices resumed work without their beloved, blustery colleague. The rich traditions of the Court continued unabated. After the justices all shook hands in the small robing room across the hallway from the back of the courtroom, they lined up to await the gavel of the marshal. The assembled throng grew silent, then arose. “Oyez! Oyez! Oyez!” the marshal chanted at the stroke of 10, as always. The eight justices emerged from behind the tall crimson velvet drapes and somberly took their upholstered swivel chairs on the bench. “All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting,” the marshal continued. “God save the United States and this Honorable Court!”
It’s an opening worthy of “Hail to the Chief,” the introductory anthem for the leader of another branch of the federal government. It’s all carefully choreographed. The justices don’t merely walk in, and they’re not already seated when Court begins. From different curtains, they materialize in unison, in three groups based on where they sit. As institutional stagecraft goes, the Court puts on quite a show.
At the corner of East Capitol and First in Washington, D.C., across the street and a world away from the workaday Congress, resides the Court. Its proximity to Congress serves as a reminder of the looming power of the third branch of government. Built on the site of a prison for captured Confederates — the prison held Mary Surratt, Samuel Mudd and others arrested after Abraham Lincoln’s assassination — the Court is the closest thing we have to a secular shrine. When its cornerstone was laid in 1932, amid the Great Depression, Charles Evans Hughes, the chief justice, proclaimed, “The Republic endures and this is the symbol of its faith.” The Court is the most powerful in the history of the world.
The justices like their extravagant travel… To get to such locales, the justices sometimes board a private jet helpfully provided by foundations or wealthy individuals — ‘friends of the Court’ indeed.
In the old days (before heightened security screening), you entered by first walking up 44 broad majestic steps and then passing through two 6 1/2-ton sliding bronze doors centered behind columns of the front portico. High above the entrance, engraved across the facade, are the words equal justice under law. Inside, at the end of the Great Hall on the main floor, the courtroom is as magnificent a setting as exists in American government, a testament to the splendor of Italian and Spanish marble. The Oval Office at the White House is relatively small, decorated with furniture arranged on a human scale. By contrast, the gold-trimmed Supreme Chamber is a tableau of grandiosity — 82 feet long by 91 feet wide, flanked by massive windows and 24 columns, with richly colored coffers in the four-story-high ceiling. It’s no wonder that for decades they had a problem with echoes during oral arguments.
Above the columns are friezes depicting such historic lawgivers as Moses, Confucius and the Prophet Muhammad. On the elevated Honduran mahogany bench, the chief sits in the middle, with the eight associate justices alternating by seniority on both sides. (The most senior justice sits to the chief’s immediate right, the next most senior justice sits to the chief’s immediate left, and so forth.) Since 1972, the bench has formed a crescent so that justices can better see each other. Overlooking the bench is a stately clock with Roman numerals. The gates to side corridors are in sparkling bronze latticework. Each justice gets a pewter mug of water and a porcelain spittoon that now serves as a wastebasket.
The lawyers sit at tables in front of the bench. When it’s their turn to argue, they stand at a lectern in the center, barely nine feet from the bench, closer than at other courts. A red light on the lectern signals when time runs out. Ordinarily each side gets 30 minutes to make its case beyond the extensive briefs it has already submitted. Most presentations consist not of speeches but of the interruptions by justices and a lawyer’s responses to their questions. Counsel tables have white-goose-quill pens at the ready. They’re “gifts to you,” advises the Court’s Guide for Counsel, “a souvenir of your having argued before the highest Court in the land.”
A more important suggestion: “If you are in doubt about the name of a justice who is addressing you, it is better to use ‘Your Honor’ rather than mistakenly address the justice by another justice’s name.” A luckless lawyer who does get a justice’s name wrong might get needled by a justice — or rebuked by the chief. Once, when William H. Rehnquist, John Roberts’s predecessor as chief justice from 1986 to 2005, was addressed as the mere “Justice Rehnquist,” he leaned forward from the bench, wagged his finger, and snarled, “I am the chief justice!” Rehnquist, who had been an associate justice, even went so far as to ask the clerk of the Court to formally instruct lawyers about his proper title. The clerk also has cough drops at the ready, as well as sewing kits, hearing aids, and a spare necktie for the hapless counsel who spills his coffee right before going on stage.
Everything about the place signifies that “something different is going on here than what goes on in the Capitol Building or in the White House,” Roberts has said. Visitors to the Supreme Court instinctively whisper. Among the other rules during arguments: No arms extending out to other seats. No visible tattoos. And if you’re wearing a headdress, beware the chief justice noticing, then sending a guard over. That’s what happened in 2002 when Rehnquist saw a 24-year-old Indian-American woman with an orange scarf covering part of her head. He sent over a security guard, who asked, “Is that for religious purposes?”
“No, bad-hair day,” she replied, quite humiliated. She was told to remove the scarf. The case the justices were hearing at the time concerned the First Amendment, not that they were aware of the irony.
The solemnity of the courtroom is broken only by an occasional protester in the audience, or perhaps by the bounce of a basketball in the gym that’s right above the courtroom — the real “highest court in the land,” as everybody calls it. (A sign in the gym warns against playing when they’re hearing cases below. The sign supposedly dates to when Justice Byron R. White, recused from a case in the early 1980s, went up-stairs to shoot hoops. The noise so irritated Justice Sandra Day O’Connor that she had a note delivered to the ballplayer: “You’re fired.” Amused, White wrote back, “Please inform Sandy that she cannot fire me. I have life tenure.” O’Connor has said she has no memory of the episode, but “it’s such a good story — you should keep telling it.”)
Someone once remarked that if the gods had an office, it would look like the Supreme Chamber. By any other name in our constitutional system, the justices are a priesthood, with all the trappings. They certainly dress the part — that’s why they wear the black robes, a practice dating to the estimable John Marshall, chief justice in the early 19th century. “I’m sure we could do our work without the robes,” Scalia acknowledged in an interview, but they “impart the significance of what goes on here.” The justices wear them even at such nonjudicial events as the State of the Union by the president in the Capitol. For Rehnquist, austere black was not enough. He started wearing his robes with four personally designed gold stripes festooned on each sleeve, inspired by the Lord Chancellor in Gilbert and Sullivan’s “Iolanthe.” (Roberts abandoned the self-congratulatory practice.)
The justices also like their extravagant travel. After the Court adjourns for its long summer recess, they visit the old cities of Europe and other exotic destinations — including Shanghai, the Austrian Alps, the Riviera, the North Island of New Zealand, and the Bay of Naples — where they lecture and participate in “educational” programs. To get to such locales, the justices sometimes board a private jet helpfully provided by foundations or wealthy individuals — “friends of the Court” indeed. Such munificence doesn’t customarily show up on the justices’ federal disclosure forms, which raises questions about compliance, as well as hauteur on the part of jurists who are supposed to be purer than Caesar’s wife. It can be hard to live in D.C. on a roughly $250,000 annual salary (a bit more for the chief justice) — and most of the justices chafe at the limitations, even those who built up a nest egg before taking the bench. They are abundantly aware they could be making plenty more in the private practice of law — and some of those who became judges relatively young especially feel the pinch.
When justices keep their distance, it’s easier for them to make the case they are different. That is why none ever tweet. That’s also why they’ve never permitted TV cameras in the courtroom — visitors aren’t allowed to take still photos, even when the Court’s not in session.
When they do fly commercial, airports have been a recurring gripe. In 1972, Justice William O. Douglas wrote memo after internal memo about the hassles of parking in the “Congressmen and Diplomats” lot at Washington National, since bureaucrats strictly construed “Congressmen and Diplomats” not to include “Supreme Court justices.” And woe to the airport officials who didn’t appreciate who was passing through. On the way to a hunting trip in Montana, Scalia threw a fit at the check-in counter about whether his rifles were properly packaged. Once officials realized who Scalia was, they relented. To his credit, Scalia apologized to them for “losing it.”
But even when the justices travel in style, there can be squabbles. Some years back, Stephen Breyer flew privately to Paris for a speaking engagement. Like other justices, he sometimes stayed at the U.S. Embassy. For the first night, he and his wife got the best suite, because he was the highest-ranking American dignitary in town. But Anthony Kennedy, more senior on the Court, arrived the next day — and nobody had told the Breyers. They were forced to move to lesser quarters and were less than thrilled. For some reason, it was Kennedy who was more annoyed at the whole thing, even though he and Breyer were close. At the event for which they were both in town, Kennedy gave his remarks first. Breyer was next, speaking in fluent French, at which point Kennedy murmured to another guest, “He thinks he knows French, but I don’t think anybody understands a single word he’s saying!” (These days, Breyer is learning Spanish.)
The justices prefer to appear above it all. That’s why Ruth Bader Ginsburg was upbraided in the summer of 2016 for giving interviews that questioned the temperament of presidential candidate Donald Trump. Two justices, astounded, privately suggested she knock it off. To Roberts, Ginsburg’s comments were exactly the kind of entanglement in politics he implored his colleagues to avoid. Trump’s election made eluding the tar pits that much harder. The president’s repeated attacks on the integrity of federal judges, starting with those who issued immigration rulings overturning his executive orders, just dragged the judges further in — making them seem to some no different than any other governmental officials.
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When justices keep their distance, it’s easier for them to make the case they are different. That is why none ever tweet. That’s also why they’ve never permitted TV cameras in the courtroom — visitors aren’t allowed to take still photos, even when the Court’s not in session. Congress likely could force the Court to televise oral arguments, but it has never taken on the justices on that issue. We’re well into the 21st century, but the only visual representations of what happens in the courtroom remain the quaint color sketches that publications and TV have used for decades. Courtroom sketches go back to the Salem Witch Trials in the 1690s, but one might have thought their utility had waned.
Most of the justices believe TV would diminish public understanding of their work more than enhance it. They like to say that sound bites offered up by Rachel Maddow and Sean Hannity could distort the meaning of a case. That might be true, but no more so than would an article on Page 1 of the Washington Post. A few justices cited a 2016 survey that showed 13 percent of Americans believed Judge Judy was on the Supreme Court, though that would seem to cut in favor of, not against, televised proceedings. Roberts has been candid enough to admit his view that “our job is not to educate the public” but only to decide cases. He insisted that cameras would inhibit justices in their questioning of lawyers during argument. “We might end up talking like they do in Congress — ‘with all due deference to my good friend from wherever,’ ” he told a college audience in 2017, taking a shot at the branch of government that many justices particularly scorn. But hubris better explains why the Court doesn’t allow TV. Appearing before the House Appropriations Committee in 2007, Kennedy justified the exclusion of cameras this way: “We teach, by having no cameras, that we are different.”
The justices do make one technological exception — for audio recordings of oral arguments. Before 2010, and back to 1955, the audio was normally available only at the beginning of the following term. Since 2010, the Court has agreed to release audio at the end of each week, as opposed to live-streaming them as many courts do. But that wasn’t a major concession. Audio from a case argued a few days ago isn’t likely ever to make it onto the evening news. In 2012, the justices did agree to same-day release of audio in the first Obamacare case. The Republican National Committee promptly released an ad that doctored the audio to exaggerate the halting performance by the government lawyer defending Obamacare. Several justices cited the RNC ad as Exhibit A why recordings of Court proceedings were best kept under wraps for a while. (Still, the Court has continued to allow same-day release of audio in certain high-profile appeals, most recently in a Trump travel ban case.)
The law clerks who serve the justices — usually four per chambers — might in theory be a weak link in the Court’s tight control over information. But the clerks treat their bosses as demigods. For one year, those top 36 recent law school graduates do research, draft opinions, act as sounding boards — and in return get a lifelong ticket to blue-chip law firm partnerships, corporate titles, teaching posts, and judgeships. Apart from having to work long nights and weekends, the first stipulation, spelled out in an internal code of conduct, is that clerks keep their mouths shut. Clerks who breach the vow of omertà, even years later, are forever ostracized within the cult of the Court. The bond between clerk and justice, and among clerks, is close and lasting — about the only way to break it is to be a talker.
Unlike presidents, senators and CEOs, justices rarely deign to do on-the-record interviews with the press. Now and then, they descend from Olympus — like when it’s time for the book tour to peddle a memoir.
Early on in each term of the Court — which runs from the first Monday in October to late June — the chief justice holds a rare all-hands meeting with clerks to educate them about the ways of the media. “They’re always trying to get something,” Roberts told them one year. And just as the mere “flutter of a butterfly’s wing” can cause a typhoon on the other side of the world, even a “seemingly inconsequential” comment from a clerk to a family member can have “unintended consequences.” (Roberts cares deeply about institutional decorum, so perhaps it was surprising he didn’t suggest that clerks curb extracurricular activities. Several years into his tenure, one of his clerks had an affair with an Alito clerk. Both clerks were married at the time. It was the dish of the building — and new clerks still hear about it. If nothing else, the affair and the gossip were a reminder that the place was made up of real people.)
The Court’s obsession with confidentiality, even in a town that seldom honors it, makes sense. If the justices think their deliberations might become an open book someday, the internal dynamics could change. Yet other institutions in government and out — the White House and Congress, the FBI and the CIA, corporate boardrooms and baseball dugouts — carry on even when confronted with inevitable leaks. Why would the Court be any different? Perhaps because secrecy speaks to the specialness of the justices, even if they are altogether keen themselves to learn what was going on behind the scenes, say, at the White House while the Scalia seat was being filled. “Who do you hear it will be?” asked one of the justices shortly after Trump’s inauguration. Apparently, leaks are okay, as long as they’re from other branches of government.
Unlike presidents, senators and CEOs, justices rarely deign to do on-the-record interviews with the press. Now and then, they descend from Olympus — like when it’s time for the book tour to peddle a memoir. Most are also willing to speak before ideologically friendly audiences, though some justices don’t want C-SPAN invited. But otherwise, they prefer to stay hidden, particularly the more media-shy — in other words, all of them other than Ginsburg, Breyer and Sonia Sotomayor. When the justices go for a walk around the Court, passersby rarely know who they are. Kennedy told of taking a stroll nearby when tourists asked if he could step out of the way so they could take a better photo of the building.
For its first 145 years, the Court lacked its own home. It initially met in New York City, before moving to Philadelphia and finally to Washington. The justices convened in the basement of the Capitol, in private homes, in taverns, and in the Old Senate Chamber — moving to the current site only during FDR’s first term. Chief Justice William Howard Taft was the force behind the Supreme Court building for two decades, dating to his time as president. The Court, he declared, deserved a building “of dignity and importance.” Taft liked being chief more than being president, after all. The acclaimed architect Cass Gilbert — who also designed Manhattan’s Woolworth Building, the tallest in the world early in the 20th century — intended the Court to be a neoclassical marvel that would harmonize with the nearby Capitol but also stand alone.
Critics disparaged the Court building as “the marble palace” — which set a world record at the time for marble content. When the doors opened in 1935, several justices refused to leave the Capitol to move in. Louis Brandeis, according to his law clerk Dean Acheson, concluded that the new building would only increase the pomposity of its occupants. Brandeis “found more than symbolic importance in having the Supreme Court midway between the Senate and the House, almost directly under the dome of the Capitol, accessible to the main flow of life through the old building.” Justice Harlan Fiske Stone, in a 1935 letter to his sons, complained that “the place is almost bombastically pretentious” and “wholly inappropriate for a quiet group of old boys such as the Supreme Court.” One of the justices supposedly quipped that they all ought to ceremoniously enter it riding on elephants. Decades later, when Rehnquist joined the Court, his wife, more complimentarily, called it “the greatest show on earth.”
Eventually, the justices took to their new home very nicely, apart from the occasional grievance about clanking pipes and fickle phones. “If you view it as something of a temple of justice,” Roberts has immodestly explained, “I think that’s something entirely appropriate.” And Kennedy liked to ask rhetorically, “Why is it that we have an elegant, astonishingly beautiful, imposing, impressive structure?” He said, “It’s to remind us that we have an important function.”
In any organization where a senior colleague departs, those left behind jockey for better digs. The Court’s no different. When there’s a vacancy, the remaining eight sometimes play musical chambers, based on seniority. But when Scalia died, everybody stayed put. Ginsburg preferred to be far from the front of the building (prime real estate for protesters). Breyer loved the view of the Capitol from his window. Sotomayor kept the lone upper-floor office, even though it was farther away from the courtroom and the other justices. It offered more space for her personality, as well as room to add a full kitchen (to help manage her diabetes) and to display innumerable mementos (there she is in a photo, throwing out the first pitch at Yankee Stadium!). Neil Gorsuch moved into Scalia’s chambers, though those who knew him said if Kennedy were to step down, Gorsuch would prefer his former boss’s more commodious chambers; Gorsuch had clerked for Kennedy. (In a gesture to Scalia’s family and as a totem of his philosophical allegiance with Scalia, Gorsuch allowed Leroy, the mounted head of the 900-pound elk Scalia had shot, to remain. Scalia’s widow didn’t want it. Nor did his children. Gorsuch did insist on moving Leroy out of his personal office; now he stares down at the clerks in their work space.)
As the justices returned to the bench after Scalia’s memorial service, Roberts tried to comfort his colleagues. Despite Scalia’s written fusillades against their respective intelligences, the other justices adored him. For all his ideological fury, he was everybody’s favorite conversationalist. As long as it wasn’t at oral argument, which he often hogged, it was Scalia you wanted in the room for fun.
Critics disparaged the Court building as ‘the marble palace’ — which set a world record at the time for marble content. When the doors opened in 1935, several justices refused to leave the Capitol to move in.
This was the first time any of the justices had been on the bench without Scalia. He’d had the longest tenure among them. Roberts, from his center seat on the bench, with Scalia’s empty chair on his direct right, hit Nino’s biographical high notes — proud Italian-American roots, valedictorian at Georgetown, honors at Harvard Law School — and then paid a more personal tribute. “We remember his incisive intellect, his agile wit, and his captivating prose,” the chief justice said, even though Scalia at times had drawn on all three to skewer Roberts over an opinion with which he disagreed. The prior year, for example, Roberts had voted to uphold Obamacare for a second time; Scalia, in dissent, deemed Roberts’s reasoning to be “interpretive jiggery-pokery,” “quite absurd,” and best of all, “pure applesauce.” That was long ago. “We cannot forget his irrepressible spirit,” the chief continued. Scalia “was our man for all seasons — and we shall miss him beyond measure.”
“Our man for all seasons” was a reference to Sir Thomas More. Scalia’s desk at the Court included a portrait of More, the British martyr (and a patron saint of lawyers) executed in 1535 for refusing to recognize Henry VIII as head of the brand-new Church of England. Often alone in acerbic dissent on social issues that came before the Court, Scalia fancied himself a martyr of sorts, too. When Roberts went on to say that while Scalia had written 282 majority opinions as a justice, “he also was known, on occasion, to dissent,” the courtroom erupted in laughter.
The sentimentality concluded and the chief turned to “the business of the Court,” which comprised arguments in several cases. The most significant, Utah v. Strieff, concerned search-and-seizure under the Fourth Amendment, a case that would have drawn the close attention of Antonin Scalia. Edward Strieff had been arrested in Salt Lake City after he left a house under surveillance for narcotics activity. Police had no special suspicion about Strieff. He just happened to have left the residence in question. A detective discovered Strieff had an outstanding warrant for a traffic infraction. Based on that infraction, police arrested him, searched him, and found a Baggie of methamphetamine paraphernalia. The constitutional issue: Given that the initial stop was unlawful, did the drugs have to be suppressed as evidence, or was the outstanding warrant enough to justify the search? In the courtroom that morning, the justices clearly disagreed.
“What stops us from becoming a police state?” Sotomayor asked. Could not the police just “stand on the corner” and “stop every person, ask them for identification,” and “if a warrant comes up,” search them?
She and Elena Kagan pointed out that in Ferguson, Missouri — where policing tactics had recently come to symbolize racial tensions nationwide — roughly 80 percent of residents had outstanding traffic warrants. “I was surprised beyond measure by how many people have arrest warrants outstanding, and particularly in the kinds of areas in which these stops typically tend to take place,” Kagan said.
The numbers didn’t bother Roberts. Referring to statistics in Florida, he told Kagan, “I was surprised how low they were — 323,000 is a big number, but that’s [in] the entire state of Florida.” He also pointed out that if police didn’t check for warrants after the stop but before approaching the car, it was possible that “an officer walks up to the car and they’re shot.” So the chief justice added, “seems to me not wanting to get shot’s a pretty good reason” to check for a warrant — which still didn’t explain why a full search was justified if, say, a suspect had only run a red light earlier and failed to show up for a court date. The argument reminded each of the justices that although the divisive Scalia was gone, deep rifts on the Court remained. It also underscored how much was at stake in nominating a replacement for Scalia.
Four months later, in deciding against Strieff and carving out another exception to the exclusionary rule under the Fourth Amendment, the Court confirmed the ideological fissures. With Breyer breaking with the liberals, the justices ruled 5– 3 that the police officer “was at most negligent.” Writing for the majority, Clarence Thomas rejected the notion that the unlawful stop “was part of any systemic or recurrent police misconduct.” The pre-existing arrest, he said, was entirely legitimate — and “a critical intervening circumstance that is wholly independent of the illegal stop.”
In a searing dissent — different from other rulings in which she tended to give law enforcement the benefit of the doubt — Sotomayor picked up where she had left off at oral argument. Dismissing the majority’s sanguinity about police motivations, she accused her colleagues of indifference, or willful blindness, to the enduring consequences of Fourth Amendment violations. “Do not be soothed by the [majority] opinion’s technical language,” she wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”
The result was that “everyone, white and black, guilty and innocent,” comes to believe “that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”
The last seven paragraphs of her dissent were a rallying cry. “It is no secret that people of color are disproportionate victims of this type of scrutiny,” she wrote, perhaps obliquely addressing Justice Thomas, the Court’s lone African American and author of the Court’s opinion. Citing W.E.B. Du Bois, James Baldwin and Ta-Nehisi Coates, Sotomayor continued, “For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react.”
And then, in sentences that could have been delivered from a soap-box, Sotomayor, the Court’s first Hispanic, concluded: “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
The contrast in outlook between Sotomayor and Thomas — as it had been in the courtroom between Sotomayor and Roberts — was both jurisprudential and personal. Based on their backgrounds and demonstrated political beliefs earlier in their careers, nobody could be surprised that Sotomayor on the one hand, or Thomas and Roberts on the other, came out where they did. But if constitutional law is really that idiosyncratic — if we are less “a government of laws” than “a government of men” (and women) — then who the justices are makes all the difference. Though they share elite educational backgrounds and all but one were on the bench when they were elevated, the justices have different voices, orientations and foibles that unavoidably shape how they go about their jobs.
Ultimately, the Court’s unchecked, unchallenged power rests with nine individuals. By every inside account, each of the current justices is collegial and diligent. Each means well. All of which has nothing to do with the problem of the Court. The justices are independent “in the fullest sense of the word” — as “Brutus,” Alexander Hamilton’s pseudonymous constitutional adversary, put it in 1788. “They are independent of the people, of the legislature, and of every power under heaven.” They have the best government job in the world: no boss, no compulsory retirement, not a lot of output required, brilliant staff, a fabulous pension — and a shortened calendar. When John Roberts worked in the Reagan White House, Congress was considering a proposal to lighten the load of the justices. He scoffed. “While some of the tales of woe emanating from the Court are enough to bring tears to the eyes,” he wrote in a 1983 memo, “it is true that only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” The current case load is roughly half of what it was when he wrote that memo. He spends much of the summer on a tiny island off the midcoast of Maine.
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David A. Kaplan is the former legal affairs of Newsweek, where he covered the Court for a decade. His other books include The Silicon Boys, The Accidental President, and Mine’s Bigger (a biography of the largest sailboat in the world). He teaches courses in journalism and ethics at NYU.
Editor: Dana Snitzky