Today’s Supreme Court is seen as an outsider institution in Washington: either a bastion of limiting government in a government town or a rogue assaulter of what Washington insiders like to call “the common good.” But this perception may be increasingly obsolete, thanks to a trend which the justices seem unable to combat and sometimes even encourage: their growing perception of dependency on an aggressive “fourth estate” of establishment journalists.
As a result, the Court increasingly looks like a partisan hothouse of “personalities” — or, in the recent description of a sympathetic interviewer of two sitting justices, “a really good preschool.” The fallout from this perception affects not just the justices but also the country, denying citizens a clear view of the body responsible for adjudicating the powers of government.
The media’s heightened scrutiny of the Court started in earnest in 2018 with the nomination to the bench of Justice Brett Kavanaugh, rightly seen as a new vote to overturn Roe v. Wade. Since then, no aspect of the justices’ lives has been off-limits — whether RV purchases or publishing strategies, spousal employment or house sales.
It’s difficult to judge the effect of this heightened scrutiny, especially in light of the uncertain influence on public opinion of the Court’s decision to overturn Roe. Still, whatever the reality, some of the justices think this coverage is having an effect. For instance, liberal justices in the Court’s minority have begun using the media to try to arrest what they see as the Court’s self-harming conservative momentum — diminishing the legitimacy of the institution itself.
The liberal justices’ argument is straightforward: the Court’s conservative majority is dismantling the Court’s standing by overturning precedents and expanding judicial power over other branches of government. Their arguments take different forms, often mixing law and passion. Justice Sonya Sotomayor, commenting on the possibility of overturning Roe, wondered whether “this institution [will] survive the stench that this creates…” Justice Elena Kagan, in her student loan debt decision dissent, wrote that the Court “violates the Constitution.” Most recently, retired Justice Stephen Breyer, a Democratic appointee, was paraphrased by a NY Times interviewer that “the court has taken a wrong turn… and it is not too late to turn back.”
These are perfectly viable arguments for legal advocates to make — but only so long as legal reporters do their jobs of putting them in context. For example, the precedents the liberal justices reference are roughly 40 to 50 years old, all of them representing sweeping expansions of executive authority at or near the time they were created by justices appointed by presidents who expanded national power. The justices overturning these precedents today, on the other hand, assumed their positions thanks to presidents and advocates committed to using the Court to curb national government growth.
This context shows that what’s happening on the Court is consistent with what’s always happened there: justices appointed by presidents with different political views using legal reasoning to push the American system of government in different directions. And this is what’s being systematically obscured by journalists in pursuit of headlines, clicks, and ideological points.
The creation of this journalistic blackout zone, aided by liberal justices, has put conservative justices in a unique bind. Since at least the 1930s, when the justices moved into their current headquarters, a building intended to symbolize “the greatest tribunal in the world,” the justices have been installed but also imprisoned in their majesty. How should they respond to the unprecedented attacks on the Court while staying true to their legal beliefs — all without compromising their dignity as members of the world’s “greatest tribunal”?
John Roberts and Amy Coney Barrett, and its most overt manifestation is a 2024 bipartisan public relations offensive mounted by justices Barrett and Sotomayor to convince the public that “we don’t have red robes or blue robes”; that “[we] work to accommodate each other”; that [we don’t] feel guilty looking across the… table at one another”; and that “[we are] part of an arranged marriage with no possibility of divorce.”
While well-intended, this PR offensive has serious drawbacks. First it diminishes the justices’ legal stature by presenting them as fractious-yet-tamed personalities. Second, it flies in the face of a fact that’s obvious to a cursory observer, even if its underlying causes may not be: the Court is political, because its members are appointed by politicians with broadly different views of the Constitution which the justices then run through the sieve of legal reasoning. This is as the Constitution’s framers intended it: the Court as a legal-philosophical coolant on popular politics that’s also reflective of them. By failing to acknowledge this reality, the justices increasingly risk looking like fighting politicos, some of whom use high rhetoric to conceal their fractures, which opens them to the charge of hypocrisy.
But there’s another, greater, inadvertent danger inherent in some of the justices’ commitment to papering over differences, one that was captured in an exchange between justices Barrett and Sotomayor, as reported by the NY Times:
“We don’t speak in a hot way at our conferences,” Justice Barrett said…
…Justice Sotomayor… registered a partial dissent.
“Occasionally someone might come close to something that could be viewed as hurtful,” Justice Sotomayor said. When that happens, she said, a senior colleague will sometimes call the offending justice, suggesting an apology or other way of patching things up.
[…]
“I’m glad that Justice Sotomayor brought up that sometimes we do need to apologize because we are human,” Justice Barrett said. “And so sometimes you say something that comes across maybe in a way that you didn’t intend.”
This personal, even therapeutic way of describing how the justices go about their business represents a concerning break with Court history. For more than two centuries, the justices’ intellectual and legal struggles to allocate power in America’s federal system have created professional and personal frictions among them — to the point where a history of the 1940s Court was titled Scorpions. Sometimes, the fissuring has produced real analytical clarity, with sharp exchanges cutting through dense cases filled with specific facts to show their long-term effects on the allocation of power in America.
This was most recently and famously true at the hands of Justice Antonin Scalia, who is praised by liberals and conservatives alike for channeling his frustrations into biting dissents that attracted public attention and transformed constitutional law. But, on today’s bench, where maintaining comity in the face of relentless scrutiny may become a rationale for preventing a full expression of views, could a Justice Scalia even exist?
Fortunately, options to arrest the Court’s move toward becoming a prisoner of journalistic perception exist among conservatives outside the Court. These figures can make the case that what’s happening on the bench has nothing to do with house sales or publishing schedules, bipartisan ideals or personal dysfunction, but rather is a completely precedented legal tug-of-war between two visions of how government should function.
Senators Mike Lee and J.D. Vance are strong contenders to make this case. Lee, a former law clerk, lawyer, and longstanding constitutional thinker, is committed to decentralizing government power. Vance, a Yale Law School graduate and a vocal proponent of America First and President Trump, is recognized even by establishment journalists for his bipartisan work on specific issues that tackle corporatism and help constituents on the ground.
Both have the name recognition, independent stature, and legal knowledge to stand on behalf of the Court — and on behalf of Americans who should have the full story about the Court’s debates and their ramifications so that they can decide the future of the Court, and the country.
Image: Carol M. Highsmith Collection, Library of Congress
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