U.S. Supreme Court justices' behavior has put the court's legitimacy on trial, but the chief intermediary between the court and the public — the group of journalists on the SCOTUS beat — largely averts its gaze from extrajudicial scandals and controversies in order to peddle a myth that the court's decisions exist in a pure state of law, Slate's veteran legal correspondent Dahlia Lithwick writes in a harsh critique of her competitors.
"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," Lithwick writes. "That ephemera is commentary; the cases remain the real story."
Lithwick continues, "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."
What if, she writes, the media covered the court "as though it's an actual branch of government and not the oracle at Delphi"?
Centering court coverage on the small handful of juicy cases handed down each term "means we can miss the big shifts and trends in what the high court is doing to this country," Lithwick writes. This myopic focus is then compounded by letting those cases set the agenda for what is considered justice.
Lithwick writes:
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.
Lithwick concludes her essay with prescriptions for doing better:
"More longitudinal reporting": looking at the long-term effects of the court's decisions.
Covering how the rulings affect "actual people."
Explaining the court's institutional place in government: "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."
Reshaping the coverage of judicial confirmations and how they affect individual justices' rulings.
"Questioning the conventions of Supreme Court coverage" on cameras in the court, press office secrecy, and justices' health.
The story kicked off a weeklong series, "Disorder in the Court," focusing "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." Slate will hold a live event in Washington on Wednesday for a conversation about the series.