President Trump is expected to announce this evening his pick to replace Justice Kennedy. Seasoned SCOTUS reporters have spent the weekend pouring over biographical information and preparing their dossiers of the four federal judges said to be in the running. CJR spoke to reporters on the SCOTUS beat about how they cover the notoriously secretive institution—from Justice Anthony Kennedy’s retirement to highly anticipated rulings and tonight’s appointment.
On the morning of June 27, the last day of the Supreme Court’s 2018 term, American Lawyer Media’s Supreme Court correspondent Tony Mauro had a color piece all ready to go. The final session was particularly tense, Mauro noted, but not because of the announcement of the final two decisions of the term. Instead, Mauro, who has been covering the high court since 1979, noticed Justice Anthony Kennedy’s wife and several other family members slip into the court’s guest seats. While spouses are often present on the final day of the court’s session, children and grandchildren are more rare.
Though he and his colleagues had doubted it until that moment, he figured then that the rumors had to be true: Kennedy was about to announce his retirement. Plus, he noted in the story, even “liberal Justices Stephen Breyer and Elena Kagan looked forlorn, and Kennedy himself seemed glum as he perused a document—was it a retirement speech?”
Mauro’s piece concluded: “The Kennedy watch is not over.”
But about an hour after Mauro’s story was posted online, the watch was over: the court’s public information officers appeared in the court with stacks of paper, ready to hand to reporters: a press release, and Kennedy’s official resignation letter.
It’s impossible not to be caught off guard sometimes, when you cover a body that’s infamously secretive: no cameras, tweeting, or audio streaming. The nine justices seldom interact with the press or the public, ditto for their current law clerks. When big Supreme Court news breaks, the most seasoned veterans of the beat hear the news in real time, and pay attention to punditry and speculation just like the rest of us.
Covering the Supreme Court requires more meticulous preparation, historical knowledge, and attention to context and nuance than other government beats. It takes intellectual rigor, after all, to parse the nuances of, say, Justice Kagan’s concurring opinion in this term’s gerrymandering case. In that sense, it’s not entirely unlike the practice of law itself.
“The reason only a few dozen reporters cover oral arguments and decision days is that you can cover the court from your bathtub,” Dahlia Lithwick, veteran legal writer and Slate senior editor wrote in a column last year. “Just download the opinions.”
Lithwick’s column dispensed pieces of mostly tongue-in-cheek advice to the White House press corps, after the Trump administration had suspended daily briefings, from the perspective of a Supreme Court reporter long accustomed to total locks on access. “For those of us who’ve spent our entire journalistic careers covering the Supreme Court, the amount of access afforded by the secretive, truth-challenged, hiding-in-the-bushes Trump White House looks like a dream sequence about government transparency.”
But that doesn’t mean reporters don’t try to source their beats. While the Justices don’t talk—or leak, ever—Chief Justice Roberts holds an off-the-record lunch with reporters once a year, and former or even aspiring law clerks can be helpful pipelines.
It’s impossible not to be caught off guard sometimes, when you cover a body that’s infamously secretive
“There are a lot of people who practice at the court, who hear about things through associates at their firms or who knows people who know people,” explains The Washington Post’s Robert Barnes. “It’s a fairly large group of people in what is usually a pretty small universe.”
While some reporters aren’t above gleaning insights from punditry and conventional wisdom, others tune it out.
Linda Greenhouse, who covered the high court for The New York Times for more than 30 years before retiring from the beat in 2008—before Twitter. She never had a single source.
She didn’t even talk to former clerks—“unreliable narrators,” she says.
“Honestly, it wasn’t worth my time and I spent my time attending to my work, which was following the docket and doing the best I could to understand the cases they were deciding and the implications—that was how the Court interacted with the public and how the Court was to be evaluated both immediately and in history.”
Greenhouse had a routine. If a decision was handed down at 10am, she would stay at her desk in the Supreme Court’s press room, where she did not keep a computer, and read the decisions for up to four hours. She’d file her first dispatch on the decision for the web by 3 pm. By 6pm, her story was posted.
Her predecessor on the beat, the late Warren Weaver, had an even slower process covering the Supreme Court in the 1970s, she recalls. He’d take the opinions back to his house in Georgetown, fix himself a nice lunch and pour a glass of wine “and then mid afternoon, no worse for wear, wander into the bureau and start writing the story.”
Such a timeline is laughable to SCOTUS reporters today. Robert Barnes, hardly a young web native, having covered the high court for the Washington Post since 2006, says he’ll typically write a big, breaking story on a decision or a retirement three or four times. He prewrites ledes and background for various decision outcomes so something will be ready to go by the time the decision is handed down in the morning. Then he writes another web update in the afternoon, before finally fleshing out a full story for the Washington Post’s print edition.
Mauro used to tell interns covering the Supreme Court to read the entirety of an opinion before they begin to write. He doesn’t give that advice anymore. “It’s like every other part of the media—speed is of the essence and you just have to build stories in a way that they can be posted quickly—there’s no turning back from that,” he says. He’ll instruct them to read the dissent first—assuming they’ve prepared and have the background facts of a case—because the dissent “will often highlight in more dramatic terms what the majority has actually done.”
Greenhouse laments the loss of the “more civilized time” before the immediacy of the internet on her beloved beat (she’s now a lecturer at Yale Law School and contributes opinion columns on the Court to The New York Times). The justices frequently surprised her in their writing of opinions, even when the ruling was anticipated.
“A lot of what you thought was relevant turns out not to be—what the justices choose to emphasize, what roads they don’t go down and all that is crucially important to understanding what they’ve done,” she says. When you write some of a story in advance in order to have it post within ten minutes of the ruling, you lose the ability to capture those surprises right away, she tells CJR.
But when I spoke to Barnes, he was on a hard-earned beach vacation—and reading up and preparing stories on President Trump’s potential nominees to replace Kennedy while there. The day of Kennedy’s retirement announcement kept the Court’s press corps on its toes. He’s trying not to be surprised this time.