The Media Today

Q&A: Dahlia Lithwick on the Colorado case, the election, and the press

February 7, 2024
AP Photo/J. Scott Applewhite

In 1999, Dahlia Lithwick happened to be in Washington, DC, when the federal government was suing Microsoft over antitrust violations. Lithwick had studied English at Yale, then law at Stanford, but was not finding success as a family lawyer when she received a call from a friend of a friend suggesting that she cover the trial. The author Michael Lewis had written a few colorful dispatches on the case for Slate—which was owned by Microsoft at the time—but had resigned from covering it (under somewhat controversial circumstances). Lithwick’s acquaintance suggested that she take over. Without any antitrust experience, Lithwick found herself in the trenches covering one of the trials of the century. 

Twenty-five years on, Lithwick is a senior editor at Slate and is still filing explanatory missives on the Supreme Court, in addition to hosting the Slate podcast Amicus. As well as covering the court, Lithwick has, increasingly, become a prominent critic of the way journalism about the institution works. Rather than approaching the court with reverence for the law as handed down by the justices on metaphorical tablets of marble, Lithwick has argued that the press should cover the institution like Congress: a political arm of the government that should be questioned and held to account. “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,” she wrote last year.

As 2024 has dawned, a drove of extremely political cases have been working their way through the court system, all with huge stakes. Yesterday, a federal appeals court rejected Donald Trump’s claim that he is immune from facing charges that he worked to subvert the 2020 election; he is now likely to appeal to the Supreme Court. Tomorrow, the justices will hear oral arguments in a different case, deciding whether the state of Colorado was right to remove Donald Trump from its primary ballot. The case—which hinges on  a constitutional amendment, written following the Civil War, banning insurrectionists from holding federal office—is both intensely legalistic and intensely political, Lithwick says. 

Last week, I spoke with Lithwick about the Colorado case and the upcoming court docket, the stakes of the next presidential election, and the necessity of covering the systems and structures that govern our democracy—even if they can seem boring. Our conversation has been edited for length and clarity.

KL: What are your impressions of the Colorado case? How do you think it is going to go?

DL: It is a very hard case as compared to all the other ones of Trump’s because it’s not backward-looking—What happened? Let’s determine facts—but a huge, structural case about what the framers of the Fourteenth Amendment meant by “insurrection” and by “officer.” It lives squarely between the world of law and politics. One of the things that the court has to figure out is whether it wants to insert itself as an institution in the middle of a political debate. It is living in the tension of what it is that we ask our legal structures to accomplish, and what are the limits of that. 

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I don’t think this is the vehicle that the Supreme Court will use to decide the outcome of the 2024 election. My sense is that this is both an intensely political case about the branches checking each other, and there are legitimate claims that the underlying process in the Colorado courts didn’t afford due process to Trump. In other words, if you’re going to do something that is the death penalty for a presidential election, you can’t do it with this little process. My instinct is that there are five votes on the current Supreme Court, at least, who do not want to see Donald Trump as the president in 2024—if he legitimately hasn’t won—and I don’t think this is the vehicle that they would choose to do it. It is the biggest, most dramatic intervention, and it would have the biggest fallout.

How should the press think about covering the Colorado case and others pertaining to the election?

If we learned anything from 2016 and 2020, it is that you can’t start covering democracy subversion two weeks before the election. It can’t be, Oh, wait, now I’m starting to realize that they’re closing polling places in minority precincts or that people are planning to terrorize election workers with guns. All these democracy subversion questions are kind of invisible to us—they are structural, they are system-wide, they are not interesting. So we just keep erring on the side of covering battles between good guys and bad guys. This is a rich, nuanced conversation about efforts to both subvert the vote and then make the country itself a more fragile, authoritarian place. We are just very bad at covering systems and structures of democracy in the press. It is always going to be more interesting to cover a one-off case and do a breathless account of what happened in oral argument. But we need to be covering entire systems and structures. I don’t think we can tell it as a background story.

How do you frame reporting on the courts, and legal disputes more broadly, that makes clear both the stakes and the specific legal nuance to your readers?

When Dobbs [the 2022 decision ending the constitutional right to an abortion] came down, I remember doing a briefing with a group. I told them that the answer here isn’t just adding seats to the court. It’s democracy reform: it is reform of the Senate; it is reform of the Electoral College; it is getting rid of dark money. We know what we have to do to make democracy function properly. Somebody on the call said, Well, the people don’t care about democracy, nobody cares about Electoral College reform. As long as that stuff is boring, it is as though we’re watching the Tom and Jerry cartoon instead of the documentary. It is super fun to watch two guys bash the other over the head with sticks and watch the bump grow.

I have not figured out a way to make dark money in politics—the Koch network bringing Clarence Thomas to their events so that high donors get to spend time with him, and him changing his position on the Chevron doctrine—into a story. Or anything other than a one-off, sublimely well-reported story that ProPublica, Politico, The Guardian, and the New York Times are starting to do. Every time one of those publications does a story about democratic subversion and everybody shrugs—because Who cares?—we are failing.

You gave a talk at Columbia Journalism School’s graduation last year (I was among the graduating class) and discussed how reporters from other beats broke major stories about the Supreme Court—particularly around undisclosed gifts from wealthy interests to justices—as opposed to court reporters doing it. What led to that happening, and what can journalists learn from that experience?

I think that the Supreme Court press corps had a narrow aperture for what its responsibility was. There was a sense that its job was to cover the cases—What’s happened in oral argument; here’s what the decision held. We had this pristine beat, covering the law itself. The justices who produced it are nameless, faceless actors in a sausage-making factory, and we just write about the sausage. It became clear that there wasn’t a beat that was asking, Who are these justices, how do they get on the court, how do they decide cases? and Who’s paying for what, why is it never disclosed, and why are we constantly told that probing these things is somehow destabilizing to the rule of law? We were so busy guarding the henhouse that it took us years to realize nobody was covering the foxes.

We’ve really seen a change both in investigative journalists being sicced on the court and the raft of important stories that have subsequently come out. Stuff is starting to happen, but the critique was another version of what I said before, which is that we’re so busy covering this structure, we forgot to cover all of the systems and subterranean money. We failed to cover it, or we covered it incidentally. It is incredibly boring to write about how a handful of dark-money groups essentially captured the Supreme Court. But the fact that the press didn’t think that was a front-page story day after day, as it happened, for decades? That’s on us.

Is there anything else that you wanted to share about reporting on the court or reporting on 2024, generally?

Every journalist I know right now is in this deep ontological state: Is it my job to predict the horrors, or is it my job to bolster hope? I can’t define it better than that. When I write a piece where I’m not sure that the lawsuits are going to get us there, am I just fomenting more doubt and helplessness? I really felt it in the 2020 election. I spent a whole summer writing, Oh my God, he’s [Trump] going to steal the election, he’s not going to believe the vote count. People that I respect a lot were like, Hey, don’t foster a loss of confidence in voting. Your job is to tell people to go out there, vote en masse, and make this a rout. The question I can’t answer for myself as a journalist, and I suspect most people on the “democracy beat” can’t answer, is: How do you calculate the balance between the necessity for journalists to be like cheerleaders? I don’t say that in a disparaging way, but to keep saying that the systems are holding, the systems held in 2020, judges are basically going to do the right thing, it is okay, and vote. And at the same time, tell the truth and explain what the stakes are in concrete, fact-based ways.

We, as journalists, are in this shitty moment where we are creating the reality that we describe. We have both the responsibility—and I think it’s a hair-on-fire, five-alarm responsibility—to say these are the stakes and, at the same time, say there are correctives. How much of my job is to do that, and how much of my job is to say, This guy is going to steal the election again? As it really is with all things, I can name it, but not answer it for you.

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Kevin Lind is a CJR fellow.