On a recent episode of Amicus, Dahlia Lithwick was joined by Slate’s Mark Joseph Stern and Jay Willis of Balls and Strikes to dig in to what’s ahead for the new Supreme Court term, which started Monday. They previewed the key cases and discussed the tricky business of covering it all during such a radical moment for the high court. A portion of their conversation, which has been condensed and edited for clarity, has been transcribed blow.
Dahlia Lithwick: Jay, you wrote a piece last year right before the 2021 term opened where you talked about all the ways in which Supreme Court reporting is straight-up broken, and you trashed, with great abandoned, the sort of three-three-three narrative about how there were three moderate centrists—John Roberts, Amy Coney Barrett, and Brett Kavanaugh—who were going to put the brakes on everything and the hagiography around Roberts as this magisterial driver of the court who is bringing modesty and humility to the fractious groups.
It was a pretty brutal critique of how we cover the court that proved pretty prescient. But I wonder what it is that you say to people who tell you that you’re really just grousing because you don’t like the outcomes.
Jay Willis: I don’t particularly care for the things that the Supreme Court is doing lately. But it’s also the case that the public, the people whose lives the Supreme Court’s decisions control, they don’t much care for the things the Supreme Court is doing lately, either. The court’s decisions in Bruen, the gun rights case, and Dobbs, ending the right to abortion care—those fly in the face of public opinion of what Americans want and how they perceive the law and the Constitution to govern their lives. It’s not just me, a small-time blogger about the justices, who doesn’t care for this. It’s a much broader, diverse cross-section of the country. When you have these nine unaccountable super-legislators—elite fancy lawyers, who are this out of step with the public—that is a crisis. That is a problem irrespective of disagreement about substance.
One thing I would suggest is to think about an analogue to media coverage of the Trump administration. If you think back to the halcyon days of 2017, the media really struggled at first to cover the Trump presidency. But eventually they caught up to the threat to democracy that Trump posed, to the point where when he literally fomented a violent insurrection against the government; the media was willing to portray it as such and call it that.
I’d love to see journalists take a similar trajectory with the Supreme Court. If you went into journalism and you remotely give a shit about representative democracy and giving people useful, honest information about what their government is doing, at this point you should be as skeptical of and rigorous about everything the Supreme Court does as you would be about anything that comes out of Donald Trump’s mouth.
This conservative supermajority is in many ways more powerful than Trump. He got voted out of office; they can’t be. This is the most important locus of right-wing power in this country that is going to be controlling, again, the lives of hundreds of millions of people for a generation, maybe more than one generation, depending on how a few elections break and whether Democrats find a backbone. I’m not optimistic.
But as bad as this last term was, this is going to get worse before it gets better. I just don’t think it’s too much to ask journalists to cover this as an existential crisis for democracy instead of just doing nine fancy lawyers who are up in their chambers doing law, not politics. That’s been inexcusable in my view for a couple years, but definitely at this point, no more excuses.
Mark, I’m curious what you think about the ways in which those of us who cover the court feel a responsibility to hold up the mythology around the court and to be the guardians of the idea of nine perfect brains in vats communing with the Framers. I have huge respect for that; I think that the press corps does inherit the problem that the justices feel, which is not wanting to report it as though it’s just blood sport. But I wonder what you make of the fact that we end up doing what Justice Samuel Alito and Barrett are doing, which is blaming the press for the actions of the court.
Mark Joseph Stern: There’s something intoxicating about covering the court on a permanent basis: having that hard pass, being able to breeze in, having a cubicle in the press office, working in that gorgeous marble palace, and going up to oral arguments, sitting in the chamber for hours on end, listening to these elites banter about these arcane and intellectual topics. That draws in a lot of reporters. It draws them into this world where nobody questions each other’s motives, where everybody agrees we’re just doing law, where there’s a sense of bonhomie and friendship among everybody, even if there’s some strong disagreement on the intellectual side. I certainly felt it when I started going in to cover the Supreme Court in person.
It’s so easy to fall for that charade, but it really is a charade. The fact that they have a beautiful marble palace doesn’t mean that they aren’t hacks. The fact that they can debate arcane cases in a way that’s intellectually interesting doesn’t mean that when a big abortion case comes, they aren’t all going to revert to their personal and political preferences. That’s something that’s easy to miss if you cover the court a lot.
If you cover it day-to-day, you’re seeing these very weird disputes that involve some super esoteric areas of the law, and you’re seeing the justices sometimes earnestly grapple with how to answer that. They want to find the right answer in those cases because in part they don’t want to have to deal with these cases for the rest of their lives. They want to set down a rule; they want to explain what the law is.
When you see those, you think, “OK, maybe these guys can do it. Maybe they really are feeling their way toward something like legitimacy.” But then any major political case drops on their docket and everything changes. In the high-profile cases, it reverts almost always to the party lines, to the exercise of raw power, to the conservative majority just pushing through into a law-free zone and doing whatever the hell it wants.
One of the chief difficulties of covering the court, especially if you’re a permanent press member, is balancing those things and acknowledging that sometimes the court really is doing law, while admitting that often it isn’t, and explaining to readers where that line is—why it’s possible for Amy Coney Barrett to be genuinely interested in some subsection of the Armed Career Criminal Act and really want to find the right answer, but then in an abortion case be like, “Well, you can just dump your kids at the fire station so who cares?” That is a dichotomy that’s difficult to grasp if you are not enmeshed in this world. But we do have a responsibility to get it across to readers and to explain that just because sometimes the justices can show their good sides doesn’t mean that they aren’t ultimately still super-legislators in robes doing what the Republican Party wants them to do.
You made such an important point, which is that press coverage of the justices conflates “we’re all friends, we don’t throw our salads on one another’s heads at lunch” with “the institution is functioning.” Most of us personally like the people that we sit in the office with. It is not a proxy for a functioning institution or an institution in which there aren’t material differences of opinions.
The other thing that I just want to throw out to the both of you is that I have long said that the way we make peace with the fact that the court is a holy oracular judicial institution except for when it’s a bunch of political hacks—and that both those stories are true—is that we have a Supreme Court press corps that covers the first and we have a political press corps that covers the episodes in which they’re behaving politically. Agree or disagree, Jay?
Willis: I argue that in light of this, reporters should drop this convention of referring to justices as liberals and conservatives, or Democratic-appointed or Republican-appointed. I would like to see more journalists just call judges and justices Democrats and Republicans. The appointing president’s party, in these highly politically salient cases, is the most reliable indicator of how a justice is going to vote.
Two things that I’ve been thinking about recently that I see in Supreme Court coverage all the time is reporters considering their sourcing. I would love to see a shift away from these name-brand voices who get quoted in these articles whose credentials are fancy tenured law school professorships and Supreme Court clerkships. You’re doing viewers, readers, listeners a disservice by asking them about the stakes instead of going to people who are more directly impacted.
You see this all the time. Lawyers who argue before the justices regularly getting quoted in news articles about how well they think the justices are doing their jobs, how good of a job they’re doing at setting aside politics, and how nothing needs to change. This is roughly analogous to asking my dog to write a Yelp review of the peanut butter jar. You’re never going to get honest criticism from a law professor or a law firm partner whose livelihood depends in part on fostering healthy relationships with the Supreme Court.
That leads me to legitimacy gate, which is the most interesting story I can’t stop obsessing on. We can look at the new Gallup numbers. They’re terrible. The court seems to now be just taking brick bats to one another. It’s like Mean Girls. It’s like they’re not brave enough to say it, and so then they’ll go to a reporter and be like, “When Kagan said that thing in the press, I think she crossed a line. Someone tell her.” It’s like … really? Is this seventh grade? If you want to talk to one another, talk to one another. You have lots of plushy rooms with big couches in which to do it, but please don’t take out your anger about the court’s plummeting polling on A) the press and B) one another. It’s so juvenile. I don’t love this.
Stern: Not to be too crude, but it does remind me of the toilet flush during oral arguments, which just so graphically punctured the mythology and mystique of the court with this all-too-human noise that reminds us we are all just homo sapiens walking around dealing with our bodily functions. This is a little more elevated obviously, but it’s a similar principle that the justices are sparring in public, shadow boxing through the press in a way that very clearly damages the court’s prestige. It is embarrassing. It’s the kind of thing that politicians do on Capitol Hill, but not typically the kind of things we expect from Supreme Court justices.
For those who are not read in on this whole drama: The chief justice gave a speech saying, “The court’s legitimacy is very important and we guard it preciously.” Then Justice Elena Kagan went on a bit of a publicity blitz and said basically, “I am worried about the Supreme Court’s legitimacy. When we fall too far out of step with public opinion, we damage our legitimacy. We are at risk of losing our legitimacy.” Then Alito punched back with a comment to the Wall Street Journal. He didn’t use Kagan’s name, but in context it was very clear that Alito was talking about Kagan. He said that “saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.” That is exactly what you would expect of middle schoolers in some kind of feud, not what you would expect from justices.
But Alito is charting a new path forward. He is hobnobbing at fancy parties in Rome. He is going out there and giving these outrageously partisan speeches, slamming Democratic politicians. Now he is just kind of subtweeting Kagan for saying something that we have all been saying for a long time. My take is that a hit dog will holler, and there’s a reason why legitimacy is the word of the moment.
Legitimacy is not just some airy concept for us to be standing around and debating over cocktails. Legitimacy is the key to this whole scam, you might call it, whereby the Supreme Court just seizes more and more power from the other branches and decides that it gets to determine the answer to every major question, and no one gets to seriously criticize it or its decisions. If legitimacy goes away, that power goes away. That’s why this is such an important debate and not just a middle school feud. That’s why conservative commentators are telling the justices “don’t even talk about legitimacy”—because I think they must know on some level that this is a real weak spot and a real danger to the current court. Truly, I think the only thing that could potentially bring it down is if it just loses all of its legitimacy and we decide collectively we are not going to adhere to its decisions.