Time for Real Coverage of the Supreme Court
We need a new approach to an ambitious political actor
Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces. This week’s edition is publishing a few days early because it seems particularly timely.
News coverage of the Supreme Court has always been difficult, but at this point it needs to be fundamentally re-thought.
It’s always been difficult because many of the cases are complex—relatively few are high profile, quite a few are not actually matters on which the Court is deeply divided, many deal with abstruse questions of statutory interpretation or judicial or administrative procedure. So it’s been thought to be important to have reporters covering them with some legal knowledge and the time to dive deep into the records.
But with the Dobbs abortion opinion and its willingness to cast aside half a century of precedent and expectations, the Court has abandoned any pretense of being anything other than just another political actor in Washington, and it needs to be covered as such. That will require more and different reporters, I’m afraid, new techniques and approaches to coverage, new questions on which to much more actively seek answers.
What does this mean in practice?
It means that tolerating members of the Court’s refusal to explain their work or participate in the political conversation at times they may find inconvenient no longer makes sense. Two US Senators said last week, for instance, that Justice Kavanaugh privately misled them when they cast the deciding votes to place him on the Court, including telling one “I am a don’t-rock-the-boat kind of judge.” What is his response? How does he explain what changed from his confirmation hearing, when he testified under oath that Roe “is an important precedent” and that Casey “is precedent on precedent.” How does Justice Gorsuch explain what changed since he testified under oath at his hearing about Roe that “A good judge will consider it as precedent”?
Were they just trying to mislead everyone, and the questioning wasn’t good enough? If so, let’s hear that. If they won’t respond to requests for comment through a spokesman, reporters need to ask them at every public appearance, and to approach them for comment any time they are in a public place. When justices write books, as most do (presumably for extra cash) and go on tours to sell them, let’s not confine ourselves to polite questions about the manuscripts or how much they like each other personally, but ask them the questions about their jobs to which our readers want answers.
It also goes way beyond that
A new approach to covering the Court also means raising questions, again and again if necessary, about why the Court is allowed to operate in such secrecy. It used to be said by intelligent people that cameras in the Court would undermine its dignity and cause it to behave more politically. With its politics so nakedly revealed, who are we still kidding? We should ask every justice about that. Why does Congress not mandate such cameras, and enact stricter rules for recusal for justices around conflicts of interest to go with the law just enacted on financial disclosure?
On this Court, for instance, Justice Thomas voted 18 months ago on cases brought as part of Trump’s attempt to overthrow the Constitution even as his wife worked secretly in the same cause with the White House chief of staff and a private lawyer who may soon be charged with seditious conspiracy. What did Thomas know when he voted, and what have his colleagues done about it since?
When Thomas writes, as he did last week, that there is no constitutional right to privacy with respect to married people using birth control in their own homes, we need to ask him about his own birth control practices over the years, just as we would any legislator taking this stand. Hey, if there’s no privacy right about this….
More generally, do the private lives of the justices align with the rules they are making for the rest of us, and with the positions they are taking publicly?
The lifetime tenure of current justices (something Congress could change for future appointees) is no reason not to undertake such coverage. We do not scrutinize senators less than representatives just because they have longer terms, nor do we cease covering them if they decline to run for re-election. Moreover, the justices are subject to impeachment. In fact, most of the impeachments in US history have been of federal judges, and all of the eight people removed from office after Senate trials have been judges, including two in this century.
Such a new mode of Court coverage means that we also need to start covering the annual selection of judicial clerks in the same way we do the staffing of other key federal agencies. Who are these young people? What do we know about their views? Who is sponsoring them for their jobs? To whom are they indebted or obligated? What professors are recommending them? What causes are those professors advancing? What ties do they have to the justices?
As the Court’s penchant for “originalist” rationalizations for some of its decisions takes greater hold, more justices are becoming amateur historians, frequently with bad history the result. We need to be writing more stories that call out this shoddy work, consulting widely with real historians to give readers a sense of the quality of the Court’s sometimes dubious scholarship. And we need more stories that chart other errors the Court regularly makes in its opinions, so that taxpayers can see what they are getting for their money, and perhaps press for a higher standard of performance. Annual hearings on the Court’s budget may provide one forum for such questioning; the relevant congressional committees should be repeatedly asked why all of the justices should not be called to such hearings.
Finally, every serious national news organization needs to look hard at Politico’s scoop of Justice Alito’s draft opinion and to figure out ways to get leaks of their own out of the Court, which is clearly more permeable than it used to be. Are we aggressively sourcing networks of clerks, present and former administrative staff, feeder professors for clerkships, former clerks, former justices, family members of all of the above? Are we reporting smaller stories about matters inside the Court that may help lead to larger ones, as one does on any other beat?
That is precisely the larger point. If the Court is determined to employ its political power to the utmost, as with other players in Washington, it becomes the role of the press to expose that power, to question how and to whose benefit it is being used, and to afford the Court the same standards of dignity and privacy afforded to others in politics— and certainly no more than the Court affords its fellow citizens.
 Yes, I do remember that half the country thought at the time that Kavanaugh perjured himself on other matters at the same hearings. And that he is not the only member of the Court who may have needed to employ perjury to get his job.
Second Rough Draft will likely be on vacation next week. Happy Fourth of July, and let’s hope that more of our leaders take the occasion to remind themselves that the ultimate pledge of the signers of the Declaration of Independence was of “our sacred honor.” Second Rough Draft should return for Bastille Day.
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