Rethinking how we cover the Court

In September 2016, Lorie Smith, a web designer in Colorado, and attorneys from the Alliance Defending Freedom, a right-wing Christian advocacy group, brought a case challenging a state anti-discrimination law, on the grounds that Smith didn’t think she should have to design wedding content for same-sex couples. To that point, Smith had never received such a request, but, according to subsequent court records, one came through the day after her case was filed, from a couple named Stewart and Mike. Later, as a federal court threw the case out, it dismissed the request from Stewart and Mike as irrelevant, noting that the couple hadn’t even been proven to be of the same sex. In a subsequent appeal, the Alliance Defending Freedom hit back, arguing, based on an analysis of Social Security Administration data, that “only a nanoscopic number of women have been named Stewart or Mike since 1880,” and that Smith “faces a 16 times greater chance of being struck by lightning than either name being female.”

Smith did not reach out to Stewart, who sent the request, even though he provided a phone number. (The ADF has said that doing so would have been illegal under the anti-discrimination statute at issue.) Neither, apparently, did any reporter—until last week, when, with Smith’s case set to be decided once and for all by the US Supreme Court, Melissa Gira Grant, a staff writer at The New Republic, called the number. She did indeed reach a man named Stewart. But he professed bafflement at his inclusion in Smith’s case, claiming that he not only did not send the request, but that he has long been married to a woman. “I’m not really sure where that came from,” Stewart (whose last name did not appear in the court record or Grant’s story) said. “But somebody’s using false information in a Supreme Court filing document.”

Grant’s scoop made a splash in the news media: several major outlets soon confirmed it, while Grant went on TV to discuss it. In the end, though, it didn’t make a difference to the outcome of the Supreme Court case: on Friday, the justices ruled, six to three, in Smith’s favor. Writing for the majority, Justice Neil Gorsuch argued that Colorado’s law had restricted Smith’s First Amendment rights to free expression. In a scathing dissent, Justice Sonia Sotomayor wrote that, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” 

Despite Grant’s reporting, neither Gorsuch’s nor Sotomayor’s opinions mentioned Stewart and Mike’s apparently faked request. Legally speaking, it was not especially consequential; Smith challenged the Colorado law on “pre-enforcement” grounds, meaning that her case did not rely on any actual request from a same-sex couple. As Grant wrote after the decision came down, however, the episode—coupled with the Court’s decision, on the same day, to strike down President Biden’s student-loan forgiveness program in a case involving a loan-service provider that reportedly wanted nothing whatsoever to do with any legal challenge—was relevant to a broader debate that has been swirling as to the Court’s legitimacy, or lack thereof. “It feels unnerving to some, even those caught in the crossfire, to see injuries invented wholesale and lies accepted by the highest court in the land; to see rights so openly trampled on the flimsiest of pretense,” Grant argued. Stewart and Mike’s supposed request in the Smith case, she added, was “pivotal” as “evidence of the shabbiness of this session—of the absolute invention that Christian right groups are willing and perhaps even must resort to in order to prevail.”

Grant’s reporting also entered into a broader debate as to how journalists should cover the Court—a debate that is itself inextricably linked to that over the Court’s legitimacy—and the balance that we should strike between this sort of political context and legal niceties. As Smith’s case approached the Supreme Court, she was the subject of profiles in various national news outlets—coverage that Mark Joseph Stern, who writes about the Court for Slate, criticized for indulging Smith’s claims to unilateral victimhood in a case that, unlike past cases involving same-sex couples, did not pit her against any real people. Meanwhile, until Grant came along, no reporter had bothered to establish that two other people who were named in the case were not real at all, or at least weren’t who they were claimed to be. “Time and time again,” Garrett M. Graff, a journalist and historian, wrote in response to Grant’s reporting, “we get coverage showing that the Supreme Court needs to be covered as a more regular political institution.”

The essential criticism here—that reporters too often treat the Supreme Court as hallowed institutional ground and its decisions as pure expressions of judicial science, rather than as a political body engaged in politics—is not new. (I’ve written about it numerous times in this newsletter in recent years.) But it has resurfaced during the Court’s most recent term and has perhaps come into sharper focus than before—both in the absence of last year’s all-consuming focus on the Court’s decision to overturn Roe v. Wade, and as a consequence of that decision and its legacy. In May, Slate ran a special weeklong package, titled “Disorder in the Court,” that focused 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.” In an essay headlined, “Imagine if the Press Covered the Supreme Court Like Congress. You can’t, can you?”, Dahlia Lithwick made a compelling case that “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.” Speaking on a panel discussion tied to the package, Lithwick added that Court reporters have “sort of sublimated the Supreme Court’s own anxiety about legitimacy,” rooted in the belief that “the worst possible thing that could happen is to have a Supreme Court that is a joke.”

The debate over coverage of the Court was also fueled, this term, by a series of agenda-setting stories about the justices’ personal ethics—not least a series of scoops in ProPublica about Justice Clarence Thomas’s undisclosed gifts from Harlan Crow, a billionaire Republican megadonor, and Justice Samuel Alito’s undisclosed luxury fishing trip with another billionaire Republican megadonor, Paul Singer. Such stories, as Lithwick has noted, have often been broken open by “outsiders” to the SCOTUS beat. And they have triggered some huffy responses from their subjects. In a rare interview with The Atlantic, Crow said he hoped that the story would simply go away, adding, “I’m not the private person I was. I’m sad about that.” Alito, for his part, responded to questions that ProPublica had put to him via an extraordinary, preemptive op-ed in the Wall Street Journal—despite not yet having read ProPublica’s story.

Justices criticizing reporters is not new either: in 2021, I wrote about a spate of interventions in which several of the justices blamed the media for undermining the Court’s legitimacy by spreading the supposed myth of its politicization. (Alito accused the press of feeding “unprecedented efforts to intimidate the court.”) Setting aside the arrogance and wild inappropriateness of such interventions, they suggest that, in the eyes of certain justices, coverage of the Court is changing, in the direction of treating the body as a more regular political institution. There is, perhaps, some truth to this, though not in any sense Alito might like. The influence of big money on the Court is emerging, if not as part of the traditional SCOTUS beat, then as a beat in its own right. And more outlets and reporters than before seem willing to subject the Court to critical scrutiny. “This term I’ve seen a real cleave in Supreme Court coverage,” the Guardian columnist Moira Donegan observed. “The older establishment media is performing their annual ritual of downplaying the extremism of the court, talking about ‘moderate’ and ‘narrow’ rulings. Younger commenters and newer outlets are much more clear sighted.” Until Grant came along, no reporter had called Stewart. But Grant did come along.

And yet in some quarters, old modes of covering the Court clearly persist. Lead stories on big decisions still frequently relate the justices’ reasoning as if it has been handed down from on high on tablets of marble, without always situating it in its political and social context. And, as the term ended last week, some reporters and analysts performed their typical yearly ritual of assessing what the Court’s decisions said, in the aggregate, about the Court’s direction—an exercise, some critics of Court coverage have argued, that distorts the reality that some cases are far more consequential than others. Some whiplash ensued, as headlines in major outlets variously centered the Court’s “dramatic shift to the right” and the “landmark wins” that Chief Justice John Roberts supposedly scored by “leaning in to both sides” of the bench.

In recent years, coverage of the Court has been criticized both for being too similar to normal political reporting—in its bothsidesism, insufficient diversity, and self-professed savviness—and not similar enough. (On the recent Slate panel, Elie Mystal argued that while trails of reporters hound obscure lawmakers through the corridors of Congress, many wouldn’t know who Alito was if he was standing behind them.) Coverage of the Court is a broad enough category that both of these criticisms can be true; it’s also true, given this breadth, that there’s room for high-level analysis, conflicting interpretations of the nuances of decisions, and for off-beat reporters to investigate the justices’ affairs without too much seeming amiss. The problem—in coverage of the Court as in coverage of legislative politics—is a question of balance, culture, and tone. Arguably, we shouldn’t want the Court to be covered the way Congress is covered right now: that is to say, often shallowly, with political optics and horse-race considerations commonly elevated above legislative substance. Equally, there is clearly not enough politics in much current SCOTUS coverage. Ultimately, staking out some sort of middle ground would be a good starting point here—with coverage that consistently communicates, if nothing else, that the story of both Congress and the Court is one of political power, and not of some supposed contrast between sordid back-room dealmaking and lofty judicial abstraction.

If coverage of legislative and judicial politics should be about the wielding of power, it should conceive of that power less as a game for insiders and more as an instrument that affects people in the real world. As Lithwick and others have noted, the Court overturning Roe ushered in a wave of such coverage—albeit, perhaps, too late. On the recent Slate panel, Lithwick asked Stern whether this might herald a turning point for the press; Stern responded that we must now show that we can humanize cases whose effects are less visibly startling than those of ending abortion rights. Every case is about real people. Some, as Grant showed, are also about fake people.

Other notable stories:

• For CJR, Adam Piore profiled Air Mail, the media company that Graydon Carter founded in 2019, and Air Supply, its e-commerce vertical. A few years in, “business looks good,” Piore reports. “Air Mail subscriptions are up 40 percent year over year; the number of unique visitors is up 70 percent; total readership is now 365,000. E-commerce is the fastest-growing part of the company.” In 2021, Carter and Alessandra Stanley, his co-editor, “raised seventeen million dollars more from investors. Since then, Air Supply’s staff has grown to seven. Revenue generated from the shop’s sales now accounts for between 15 and 20 percent of Air Mail’s total revenue, Carter told me. He expects that to grow to 50 percent, and he is hoping the site will reach profitability within three years.”
• Over the weekend, Victoria Amelina, a Ukrainian writer, died from injuries that she sustained when Russia shelled a restaurant in the city of Kramatorsk last month. She was thirty-seven. Elsewhere, Elena Milashina, a journalist with the independent Russian newspaper Novaya Gazeta, was brutally attacked, alongside a lawyer, while covering a trial in Chechnya; she suffered brain injuries and was also doused in liquid iodine. (Unusually, top Russian officials expressed concern about the incident.) And top Russian officials also suggested that they might be open to a prisoner swap involving Evan Gershkovich, the Wall Street Journal reporter who was detained in the country in March. 
• Late last week, Fox News agreed to pay out twelve million dollars to settle a lawsuit brought by Abby Grossberg, a former producer who alleged a toxic work environment at the network, among other claims. In other Fox News news, William D. Cohan makes the case, for the Times, that Rupert Murdoch holds absolute power at the network, and that that’s dangerous. And, as the curtain fell on Geraldo Rivera’s Fox career, NPR’s David Folkenflik reflected on how Rivera once hounded him after Folkenflik questioned his coverage, including by telling Jay Leno, on the Tonight Show, “that I had penis envy.”
• The Intercept’s Jimmy Tobias reports that David M. Morens, a high-ranking official at the National Institutes of Health, “used a personal email account in an apparent effort to evade the strictures of the Freedom of Information Act, according to records obtained by congressional investigators probing the origin of COVID-19.” In a September 2021 email thread, Morens said that his personal account had been hacked but told his interlocutors that he would just “delete anything I don’t want to see in the New York Times.”
• And the Wiener Zeitung—a newspaper in Vienna, Austria, that is one of the world’s oldest—ended its daily print run after more than three hundred years in circulation, citing financial pressures. The paper’s final edition featured an interview with Arnold Schwarzenegger and the headline, “320 years, 12 presidents, 10 emperors, 2 republics, 1 newspaper.” It plans to continue publishing online and via a monthly print edition.

ICYMI: Moral panic, queer expression