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.
Every profession has its busy season. For accountants, it’s the frenetic first two weeks of April; for florists, the three or four days before Valentine’s Day; for flight attendants, those nightmarish 24 hours before Thanksgiving. For Supreme Court reporters, the rush comes in June, when the court clears the deck of the term’s remaining cases, often in bunches of three or four or even six. Adhering to this calendar frees the justices to kick off their beloved summer vacations, including their not-infrequent all-expenses-paid gigs teaching law school seminars in European cities. With the exception of a couple of recent COVID delays, this end-of-term rush usually enables them to participate in Washington, D.C.’s most hallowed tradition: getting the hell out of town before the Fourth of July holiday.
The cases that come down in June are typically the most controversial cases on the court’s docket. (Among the justices’ most relatable qualities: leaving their least pleasant to-do list items until the last minute.) Unlike the decisions that tend to be announced routinely throughout the year, these cases are decided by bare, fragile majorities, and only over the objections of one or more furious dissents. This makes the stakes of covering these cases higher, while the logistics become trickier: The court releases opinions on preordained days at preordained times, sure, but they do it with no warning about which one will come when, or how many will come down at once. For legal journalists, this situation yields an opinion-day atmosphere that feels sort of like the buzz before the Super Bowl, if it were both played and attended exclusively by people with strong opinions about the correct pronunciation of “certiorari.”
The sheer volume of decisions and the breakneck pace at which they’re released has created a pretty predictable mode for news coverage. In many ways, SCOTUS reporters see their first job as parsing legalese for a lay audience, which means getting laser-focused on an opinion’s doctrinal intricacies. When every other Supreme Court reporter is parsing the same legalese, the battle becomes a question of who can crank out the same 600-word recap fastest.
But this model too often misses the reactionary forest for the Federalist Society trees. Without a discussion of a case’s political and social context, outcomes that are in fact the culmination of decades of hard-fought culture wars can come off as coincidental applications of neutral legal principles to unremarkable fact patterns that just happened to get to the court. Of course, this is exactly the framing the aforementioned culture warriors want.
Understanding what’s really going on at the court requires thinking in terms of years or decades, not hours or days. This June, for example, the court will decide (yet another) case that could weaken the protections of the Voting Rights Act. This is no accident; it is part of a concerted effort to make it harder for people of color to participate in democracy, and easier for Republicans to win elections. Affirmative action, too, has been a target of the right since the Nixon administration. Its all-but-certain legal death, in a pair of coordinated challenges to admissions policies at Harvard University and the University of North Carolina, will not happen because activists came up with more persuasive arguments than they did in 1978, or 2003, or 2016. Affirmative action will die because the same activists kept bringing the case until they were arguing before a court that finally had the five votes they needed to kill it. Stories reporting on the result ought to note this fact, but if past terms are any indication, they’re more likely to simply regurgitate the legal reasoning the five justices found to cover their arguments.
There’s hope, I think, for changing this business as usual. After all, this year’s end-of-term sprint will take place in a very different political environment than previous editions. Last year’s decision in Dobbs v. Jackson Women’s Health Organization was the exact same situation as what’s happening now with affirmative action—five conservative justices overruled Roe v. Wade after five decades of trying simply because they finally had the votes. The unprecedented nature of the decision, which goes against what most Americans state they want when it comes to abortion rights, changed both the public’s perception of the court and also the way the media covers it. In recent months, a blizzard of investigations into the ethical misadventures of Justice Clarence Thomas (among others!) has reporters spending as much time digging into the justices’ Nazi-curious billionaire patrons and dubious real estate deals as they do on, say, previewing cases or recapping oral argument. Major media outlets are hastily reassigning top talent and expanding their coverage not only of the court, but also of the conservative legal movement that shapes its agenda. Stories reported over the past year have kept Dobbs and the people suffering under it front and center.
This development is unambiguously good, if long overdue. Historically, the Supreme Court press corps has eschewed adversarial journalism, opting instead to cover the institution with equal parts fawning reverence and bottomless credulousness. But as the court’s approval ratings plunge to historic lows, driven as much by the justices’ reactionary decisions as by their gleeful fondness for collecting graft, at least some sectors of the media are subjecting them to the sort of rigor previously reserved for the classes of politicians who don’t wear robes to work. Now, maybe for the first time, the court will enter its busiest month watched by skeptics who are primed to highlight its failures, rather than explain them away.
How should they do this? Providing readers with this context means doing more work, and on deadlines that are getting shorter. But I think there are a few easy tweaks every SCOTUS reporter can make to their approach—even as the bulk of this effort should come from newsrooms deciding to staff these beats slightly differently. They can center a case’s political and social context—how many times the Supreme Court has previously answered the key question, for example, and who is paying for lawyers to ask that question again—in the pre-written aspects of their opinion recaps, instead of reducing it to a throwaway line or two, if they include it at all. Similarly, when the court decides a landmark case in a way that aligns perfectly with the Republican Party’s policy platform, noting that the justices in the majority are all lifelong Republicans appointed by Republican presidents should be table stakes for any commentator who aspires to meaningfully inform their audience.
Another mistake pundits often make is grading outcomes on a Leonard Leo curve: Any result that falls somewhere to the left of Josh Hawley’s policy preferences gets cast as evidence that reports of the rule of law’s death have been greatly exaggerated. To some extent, you can blame the bleak realities of the journalism industry for this trend: Among people who hold themselves out as legal experts, you’re far more likely to earn clicks and eyeballs by hypothesizing about the unlikely emergence of a cross-ideological coalition than you are by writing yet another paint-by-numbers opinion recap, scraping the thesaurus for a new vocabulary to describe just how thoroughly the liberals got waxed.
There is also a huge opportunity to improve framing on stories. On a court controlled by six conservatives, the name of the game for liberals is embracing compromise, if they even have the option. Two years ago, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan joined Chief Justice John Roberts’ unanimous opinion in Fulton v. City of Philadelphia, a case about discrimination against LGBTQ foster parents that the court resolved on narrow grounds. The splashy ledes about unanimity obscured the fact that the liberals joined Roberts not because his opinion was good—it wasn’t—but because it ensured that the more extreme views favored by Justices Samuel Alito and Neil Gorsuch were confined to their respective concurrences, rather than becoming the law of the land. In analysis for the New York Times, for example, Adam Liptak characterized Fulton as evidence that the conservative wing was “badly fractured,” and that the liberal justices were on a “surprisingly good run.” The possibility that they joined the opinion only “with gritted teeth” went unmentioned until the 13th paragraph. Explaining this court’s behavior requires understanding what opportunities are even available to the three liberal justices.
Last, the emergence of this conservative supermajority has changed not only the way the court decides cases, but the way it chooses cases in the first place. An unwritten court rule allows a minority of four justices to put a case on the court’s docket, which means the conservatives can lose not one but two votes and still get to hear the cases they want. Meanwhile, unless liberals convince at least one Republican justice to join them, they are locked out of the agenda. Conservative activists understand that they have more wiggle room than ever before, and are bringing more aggressive cases with more ambitious asks. Before Justice Amy Coney Barrett’s confirmation, for example, Dobbs was a standard-issue case about the application of Roe and Planned Parenthood v. Casey to a 15-week abortion ban in Mississippi. After her confirmation, the state transformed the case into a bid to stuff those cases in the garbage. It finally had the votes to do so, after all.
As a result, opportunities for the Supreme Court to push law to the left simply do not exist right now. Look at the bleak range of outcomes in this term’s most consequential cases: In the affirmative action cases, the justices will either end the practice altogether, or leave in place the extremely limited circumstances in which court currently allows it to exist. In Brackeen v. Haaland, they will either wipe away a federal law that provides meager protections for Native sovereignty, or allow it (for now) to remain on the books. In Allen v. Milligan, they will either give Republican-controlled state legislatures the green light to gerrymander Black people out of electoral existence, or leave in place the husk of the Voting Rights Act, which the court has already spent years hollowing out. “Victories” in these cases would not be equally impactful: Conservatives have the opportunity to remake the law in sweeping, dramatic fashion, while the best liberals can hope for is to preserve the status quo for a little longer. Those actions won’t look as dramatic, but the story behind them is equally important.
What can the press do about this? What conservative activists understood long ago was the value of the myth of the apolitical judiciary—that by focusing their time and money on filling life-tenured judgeships with doctrinaire conservatives, they could disguise an unpopular policy agenda with the trappings of legal process. They could justify an unpopular decision by declaring that they are just interpreting the law. And by and large, the legal press corps has happily propagated this myth. Some two decades after five conservative justices functionally handed a contested presidential election to the Republican presidential candidate, most legacy Supreme Court reporters still treated the notion of acknowledging the justices’ partisan preferences as naïve and gauche.
They can no longer afford to do so. For one thing, readers aren’t buying it anymore—approval for the Supreme Court has dropped so low that maintaining this charade is basically impossible for any pundit who wants to be taken seriously. That’s part of why we’ve seen the gradual emergence of a new and better way of doing things—one in which journalists talk candidly about the justices as the robed policymakers they are, and not as the jurisprudential deities the justices imagine themselves to be. One in which decisions are not explained as if they are texts that need to be translated from a foreign language, but outcomes with real-life consequences for millions of people that connect to every other part of how this court has been functioning, and what it is likely to do next.
Good legal journalism won’t fix the court’s problems. But at the very least, it won’t paper over those problems any longer.
