IN ONE OF the most remarkable comments about the news media -- and the judiciary -- in years two members of the Supreme Court have suggested that the press has misled some the nation's judges about the meaning of a recent major decision of the court. Chief Justice Warren E. Burger raised this possibility in Flagstaff, Airz., on Aug. 8 when he was asked about the court's ruling on secret criminal proceedings. Justice Lewis F. Powell echoed his sentiments a few days later in Dallas.
Both justices seemed to be telling other judges that the court has authorized far less secrecy than the press says it has. The chief justice indicated that the decision permitting judges to close courtroom doors applies only to pretrial proceedings, not to trials themselves. Justice Powell said the court had left undecided the right of the news media to be present in courtrooms and had only dealt with the right of the general public. The concern of the press about secret trials, Justice Powell said, "may be a bit premature."
There's not much point getting into an argument now with these two jurists over what the court meant, or what they thought it meant, when it spoke on this subject early in July -- especially since the limits they outline on that decision cut in the press' favor. But it is worth noting that, while it is not unusual for the losers in a case to misinterpret the decision to their advantage, it is rare for the losers -- in this instance, the press -- to misinterpret one in a way that unnecessarily handicaps them.
Whether or not the news media have correctly reported the decision, however, is far less important than what the lower courts have done with it. With few exceptions, they have viewed it as broadly as the press. In at least two states -- Virginia and Maryland -- the decision has been read to permit secret trials as well as secret pretrial sessions. In two other states -- New York and South Carolina -- it has been read to permit barring of the press from courtrooms even when the general public is permitted to attend.
If the chief justice and Justice Powell are correct in their suggestion, this has occurred because the judges in those states are reading the newspapers instead of reading the court's own words. This would be evidence of incredible laxity, suggesting that even state supreme court judges have come to rely on press interpretations. It suggests that judges aren't doing the most elementary kind of homework: reading Supreme Court decisions.
The words of the chief justice and Justice Powell on the substance of the court's decision are likely to be subjected to unusual scrutiny by judges, prosecutors and defense attorneys. Even though they were speaking informally and unofficially, they did cast two crucial votes in that 5 to 4 decision. This makes it almost inevitable that the situation regarding judicial secrecy will be chaotic until the court speaks again -- and without ambiguity -- on the subject.