This headline from Fox News on last week’s arguments in Carson v. Makin—the Supreme Court case deciding whether parochial schools can be excluded from a state program that provides tuition for other private schools—illustrates a problem with the way the media covers rights cases. The headline reads: “Justices offer support for religious rights in Maine education case.”
The case for religious rights in Carson v. Makin is reasonable, perhaps strong. But whether religious rights are being violated in the first place is the whole question. The headline’s assertion of ”religious rights” presumes what is actually in dispute.
Fox News is not alone. Note this headline in The Washington Post on the future of Roe: “Future of abortion rights depends on a Supreme Court for which compromise seems elusive.” This, again, presumes the outcome of the dispute on which the paper is reporting: whether the Constitution guarantees ”abortion rights” at all.
There are myriad examples on other asserted rights. The problem with this kind of journalism about constitutional disputes is that, in our rights-soaked political culture, to declare something to be a right makes it prima facie difficult to dispute. It places the opponent of the asserted right in the position of an aggressor. It leaves no space for disputing whether what is asserted to be a right is a right at all.
Constitutional journalism has long since reduced reporting on Supreme Court cases to winners and losers and the concomitant policy results. That is probably inevitable. But the media can report rights disputes without using language that decides them in advance.