This is a part of Disorder in the Court, a weeklong series on the legal press and the most explosive Supreme Court in generations: how we cover it, how we’ve failed, and how we can do better.
You can write that the Supreme Court is delegitimizing itself only so many times before you’ve made yourself ridiculous. If the high court is not in fact behaving in a fashion that makes its decisions respected, the real question is: Why are we all zealously watching and reporting on its decisions as though they are immutable legal truths? Why are we scientifically analyzing every case that comes down as if it holds value? The obvious answer is that these decisions have real consequences—something the past year has shown us far too graphically. But if the Supreme Court is no longer functioning as a real “court,” why are we mostly still treating its output as if it were simply the “law”?
In some sense, the answer is that the Supreme Court’s power and prominence is mediated by the journalists that report on the institution, and we as journalists rely on the court for legitimacy and prominence in return. Someone has to translate legalese to the public. But the way journalists report on the institution—mostly by explaining the “law”—has set incredibly circumscribed boundaries around how the court’s political activities are viewed. The Supreme Court press corps has been largely institutionalized to treat anything the court produces as the law, and to push everything else—matters of judicial conduct, how justices are chosen and seated, ethical lapses—off to be handled by the political press. That ephemera is commentary; the cases remain the real story.
This critique of the professorial Supreme Court press corps, articulated perhaps most pointedly by David Margolick, writing in 2007 in the New York Times, is that those of us who cover the high court mostly just sit around taking dictation, reporting on the justices’ questions at oral arguments as if it’s news; reporting neutrally about the contents of their opinions; and reporting the facts of the cases as presented to us by the Supreme Court:
Try imagining any branch of government—the White House, say, or the State Department—covered solely on the basis of public events and printed releases, with nothing about its inner workings. It’s inconceivable. But that’s essentially how the Supreme Court beat works. Reporters assigned there rarely venture beyond oral arguments, briefs and decisions. Almost never do they stray from their cubicles. Part of this is perfectly sensible: the court makes most of its news through its opinions, and interpreting them, often heaps of them, at once, on tight deadlines, is damnably (and, maybe, deliberately) difficult. Those who do it well are rare, and they have little time to spare.
It was, at the time, a stinging rebuke to read Margolick conclude that “no other reporters are as passive as Supreme Court reporters.” Whether the problem was passivity or just a very narrow definition of the job is one thing. But he was emphatically correct to suggest that the long-standing tradition of covering the cases rather than the justices meant that, with few exceptions, there have not been a lot of folks in the SCOTUS press corps on the Clarence/Ginni Thomas beat; almost nobody on the Dobbs-leak beat; and, aside from routinely reporting the fact of plummeting polling numbers, few court insiders on the “legitimacy” beat. With the notable exception of Politico’s Josh Gerstein, who co-reported the Dobbs leak last year, virtually all the scoops about Clarence Thomas’ ethical breaches, Leonard Leo’s golden spigot, the “rich donor to Supreme Court Historical Society” pipeline, Ginni Thomas’ election disruption efforts, and the catastrophic leak investigation all came from enterprising investigative reporters, political reporters, and “outsiders” at Politico, ProPublica, and the New York Times. The court’s shadow-docket beat was largely invented by legal academics. It speaks volumes about the way the court has been covered that only in the past year have some legacy news outlets hung out “Help Wanted” ads seeking reporters to cover the court as though it’s an actual branch of government and not the oracle at Delphi.
For those tasked with keeping tabs on One First Street, the beat has changed very little: What’s happening in the Senate Judiciary Committee, with the various court reform bills, and with respect to extramural judicial conduct—that is still largely set aside as we continue to perform the possibility that the high court is operating precisely as intended. Under this theory, so long as the court hears and decides some number of cases every year, it’s doing what it’s always done. The political scientists are laughing hot beverages out their noses at all this, but it’s simply a truism now that if the court’s job is to emphatically say what the law is (Marbury v. Madison, 1803), then it’s emphatically the job of the beat reporters to merely write it down and explain what it means to the public. That’s either because we are wizened doctrinal experts or because we have been institutionalized into submission. Either way, I was reminded recently that White House reporters missed Watergate; it was a D.C. crime-beat scoop.
If it’s true that those of us who do journalism about the high court have become too hyperfocused, as Balls and Strikes founder Jay Willis likes to remind us, on a handful of cases every year—and not even all 70 cases granted, but the 10 or so that are predetermined as the “big cases”—the question is: Why? Perhaps it’s because they have “good stories” (remember the cursing cheerleader?) that are fun and often easy to report. But that narrow vision also means we can miss the big shifts and trends in what the high court is doing to this country. SCOTUS should not become a national news story only after a justice says something snappy that goes viral at arguments. The best time to pay attention is not just during the last two weeks in June. But this is how the court has been covered historically, which is why we are living through a boom moment of outsiders gobbling up the scoops. They think we’re sleepy junior-varsity law professors who forgot to hold power to account. We think they’re gossipy, low-information neighbors.
But it’s not just that we mostly settle for covering the cases. We further let the cases set the agenda for what we consider justice. If the nine justices decide to revisit affirmative action and Section 2 of the Voting Rights Act and federal preemption around labor disputes, we’ll then devote a year to debating both sides of these legal issues—regardless of the fact that they were supposed to be long settled. As long as the court thought it was a good time to breathe life into the major questions doctrine or the independent state legislature theory, we have considered the questions of that theory seriously, despite its manifest unseriousness. And once the Supreme Court started to invent its own facts—as it did in the Coach Kennedy case last term, the affirmative action cases this term, and of course 303 Creative, the case of refusal of service to same-sex couples, also this term—it began to matter urgently that the press would still routinely be covering “cases” as usual, even though these cases included wholly imaginary “facts” or, as in 303 Creative, no facts at all.
Repeating manufactured narratives with which the court will eventually manufacture legal doctrine serves the court’s interest. The problem is that it does not serve the interests of the public, and that’s whom journalists are supposed to be writing for. Unfortunately, we somehow did not learn the lesson the public was forced to learn during the Trump years—that just because there’s a red brief and a blue brief, this doesn’t by necessity mean that there are two legitimate, fact-based sides to an issue to which we must impute good faith. There isn’t always some reasonable compromise to be found in the middle. Watchdog groups have proved that a good number of those briefs were bought and paid for by big money, riddled with bad science, and driven by an Overton window theory of the law. We have enabled the Overton window by forgetting that the story of what happened to the Supreme Court on Mitch McConnell’s watch is as much a Supreme Court story as the manufactured narrative of 303 Creative—even if there will never be a 6–3 decision handed down about it.
Years ago, I heard a marshal tell a journalist that the first two rows of the press area were reserved for “court employees”—meaning the folks in the so-called permanent press corps. It occurred to me that our job in the press is to constantly remind the nine justices that we do not in fact work for them. I wonder whether all the fury being directed right now by some of the justices at journalists comes from the kid-glove treatment they have come to not only enjoy but expect? In covering the court as though the justices were uninteresting and untouchable, did we reinforce a norm in which they now believe that any scrutiny is an attack?
After the Brett Kavanaugh hearings, which were accompanied by a nonexistent official investigation into the legitimate claims that the hearings surfaced, I wrote about my inability to go back to the court. I felt that showing up there seemed to perpetuate the idea that every justice is the product of a functioning process. But the process was corroded. I covered it. The corrosion spread across the reputation of the court and also our ideas about what justice should mean. If reporting on the court doesn’t include probing into who is on it, how they got there, where little baby cases are hatched, and who pays for their progress through the system, we are reporting on the output without questioning the input. And if that is the beat, we are doing half our jobs.
So, how do we stop failing at those jobs? What would we do if we stopped covering SCOTUS the way we have for the two decades I’ve been at this? What if we were to stop covering SCOTUS as a breathless cult of personality, as if it were the House of Windsor? What if we broadened this beat from changes in doctrine to changes in justice? What if we looked at the whole story—money, influence, campaigns, Harlan Crow, and all? Some modest suggestions:
1) More Longitudinal Reporting
· What happened in colleges in California after they did away with affirmative action? This is knowable; how do we make it the beat?
· What happened when SCOTUS ended race-conscious school remedies in the Parents Involved case? What happened three years later? Five years later? Who owns that beat?
2) Actual People
· We’re seeing brilliant near-daily coverage of how Dobbs has affected women’s health care, the practice of medicine, and state elections this year. This kind of sweeping coverage of how law affects everyone should be a part of what we cover when it comes to guns, election subversion, LGBTQ+ equality, and the environment.
· Often, in the last week of term, we speculate about what will happen on the ground next. But this is knowable and it should be part of the beat.
3) The Institution of the Court
· We need to better explain the nuts and bolts of everything we missed in terms of how the Judicial Conference operates, how the ethics canons work, why reforms were enacted (and applied to judges) post-Watergate, and why this apparently hasn’t been enough to rein in the high court.
· We should be covering clerks and the clerkship pipeline as a part of the beat—they are a huge part of how power works within this system.
· We should better explain things like the Supreme Court Historical Society and how it came to be a locus of fundraising to gain access to justices.
4) Judicial Confirmations
· Why are they covered chiefly by political reporters?
· What are the purposes of these hearings? What should the purpose be? How do court watchers play a role in shaping that conversation?
· What can we learn about the ways in which whatever happened at a hearing shapes doctrine for an individual justice?
5) Questioning the Conventions of Supreme Court Coverage
· Why can’t we have video?
· Why can’t the press office answer questions on the record?
· Why is a justice’s health not a matter of public concern?
This list is paltry in part because I sometimes believe I myself am so institutionalized that I experience the end of the Lemon test as the beginning and end of my reportorial beat. But the vast machinery that has bought and built the present court is as much a story as the output of that court. More so, perhaps. So we are thinking about it, in no small part because we should be held accountable for failing to report out stories, like Harlan Crow’s judicial vending machine operation. We should be held accountable because it is the media’s prerogative to treat this court like any other institution that has players, rules, and motivated operatives. We did a dismal job reporting what happened to Kavanaugh’s debts. Stipulated. But we would like to do better. That is the aim of this package. This is our attempt to broaden the scope, but we’re also here to listen. Tell us what you think?