Threading the Needle: Supreme Court Litigation Communications for a New Era

A landmark ruling overturning Roe v. Wade. An epic political clash over Republicans’ refusal to hold hearings or a vote on President Obama’s nominee to fill Justice Scalia’s seat. Justice Ginsburg’s death and subsequent replacement by a starkly more conservative justice.

These flashpoints and others have accelerated Americans’ shifting views of the Supreme Court. Gone are the days when Americans viewed the court as the least political branch of government. Recent polling shows deep and broad skepticism among the American public that Supreme Court justices are not influenced by politics. Only 16% of Americans think the justices do an “excellent” or “good” job in keeping their own political views from influencing the decisions they make. These hardened partisan lines might make it easier to predict how a case will be decided, but they certainly do not negate the need for a robust communications strategy to fully capitalize on the opportunity that having a case before the court provides for advocacy organizations.

Cases coming before the court are now close to all-out brawls between not only the parties involved, but also vast networks of supporters, financial backers, and issue-based organizations shaping the debate and conversation around the case. At times, advocacy organizations can be so focused on maximizing their legal chances that they neglect the media opportunities that come with arguing before the Supreme Court. Done correctly, a comprehensive communications strategy can help grow an organization’s name recognition, change the public’s mind on substantive issues, attract new donors, and engage activists.

As the court settles in this month for its next term, it’s a good time to look at ways to fully capitalize on the communications opportunities that high-profile litigation presents. Organizations should embrace the following four tactics:

1. Aggressive, But Balanced, Approach to Message Development

Developing a crisp, convincing message that will break through is complex enough. Doing so within the context of active litigation is even tougher. The message that may move big dollar donors might be different than the one that spurs activists into action. Both messages might make the litigation team’s job tougher in court. How does an organization develop a message that helps achieve its communications goals without complicating the legal case? Follow these key guidelines:

Everyone responsible for key stakeholders should have a seat at the table

Fundraising, organizing, communications, policy, legal, and anyone else who manages a key group should have input into messaging.

Don’t harm the legal argument

Anything that doesn’t make winning the case more challenging should be on the table for messaging. Legal should be involved at every step of the way and have a significant say in final messaging.

Remember that a message about everything is a message about nothing

There is often a tendency to say everything possible about a case: who is on the other side, that our side is right, why we’re right, and what’s at stake. All of these messages are important, but developing a hierarchy and organized chart of which portion of the message works with which audience is critical.

2. Be Intentional About Breaking Through

In a perpetually crowded news cycle and a hefty Supreme Court docket, it can be hard to break through. The court’s previous session heard cases on topics like abortion, guns, voting rights, and religious freedom. In order to break through and ensure your case and issue get the attention they deserve, it’s critical to weave a compelling narrative. If your client has a compelling personal narrative and sympathetic story, make sure your stakeholders and the media know it. It’s easy for media coverage of Supreme Court cases to focus on legal arguments and political ideology. A relatable story can move the needle and sway public opinion to your side. Advocacy organizations should also put cases in context, drawing comparisons to other high-profile cases and helping stakeholders understand how they’re related. Finally, raise the stakes. Make sure you make clear the significant stakes of the case and the decision each and every time you have an opportunity to do so.

3. Build a Coalition

The old adage “there is strength in numbers” is true even here. This has the dual benefit of ensuring similarly-aligned groups are working in tandem, rather than competing for precious air time. They can also underscore how many of these issues can reinforce each other. By tapping groups who occupy the same space for communications and organizing support or filing of amicus briefs, you can ensure you do not spread your own network of volunteers, donors, and staff too thin. You can also rely on them as third-party validators or storytellers to emphasize your message in ways that you cannot.

4. Have a Plan for After Decision Day

Often when an organization has a case before the court, they get tunnel vision on the case itself. The legal strategy and day-to-day communications battle absorb all of the bandwidth, leaving little time to think through a critical question; what happens after the case is over? While the case is ongoing, plan your communications strategies for different potential outcomes, both for decision day and the months following a decision. Use the decision, as well as the hours and days after it, to point stakeholders to the next phase of the fight.