In 1979, Renata Adler, a New Yorker staff writer and Yale Law School graduate, wrote a negative review of The Brethren, Bob Woodward’s and Scott Armstrong’s book on the inner workings of the Supreme Court, for the front page of The New York Times Book Review. Today there is no chance that a review like Adler’s would appear in The Times because it so clearly anatomized the flaws of Supreme Court journalism — most recently evident in coverage of flags flown above homes of Justice Samuel Alito. Understanding how the attack on Alito fits into long-term journalistic malpractice involving the Court means examining the trends Adler pinpointed and tracing them to the present.
In her review, Adler honed in on the basic problems of applying investigative reporting to Supreme Court law. Unlike any other branch of government, Adler pointed out, the Court is obliged to announce the reasons for its decisions at length to the public, and its justices, appointed for life and free from outside lobbying, sometimes change their minds in deliberation. This means that “the only scoop there could possibly be about an institution [so] public ……would be a revelation of crime or corruption,” rendering “the investigative reporter’s … obsession with … breaking … secrets” misguided when it comes to the justices.
In lieu of actual secrets, Adler showed, Woodward and Armstrong sold their 1979 book using the self-dramatizing “gossip” of bad literature. Mostly this took the form of unverifiable statements about one or the other justices’ moods or feelings (“furious,” delighted,” “especially upset,” “enraged,” “exceedingly upset,” “tormented,” “elated”). Or else it focused on the justices’ “characters” (that some justices thought another justice “evil or stupid,” that another justice cheated at basketball). Surveying the accumulated anecdotes that made up the book, Adler concluded that “investigative journalism, perhaps, might think again” about its approach to the Court.
But it hasn’t. Today, Woodward’s approach has become the norm, for two reasons. On the one hand, establishment journalism and its media outgrowths, funded by a handful of corporations indirectly dependent on the national government, has become, in the words of one prominent practitioner, “like any corporate culture, where [reporters] know what management wants, and no one has to tell you.” On the other, the Supreme Court has become America’s most reliable defense against national government expansion. The mismatch between the aims of justices and journalists, some of the latter of whom are also connected to government-funded law schools staffed by liberal legal scholars, could not be more stark. It has been reflected in Court coverage, where journalists have begun regularly using the gossip of bad literature to suggest “crime or corruption.”
Since 2018, Justice Kavanaugh has been accused of a high school assault that the alleged key witness refused to corroborate. He has also been accused of indecent exposure at a dorm party after another accuser spent “six days carefully assessing her memories.” Justice Thomas has been labeled a servant of wealthy Americans based on his social relationships, in spite of at least two recent major cases in which he ruled against corporate interests. Justice Gorsuch has been tarred over a property in which he owned a stake. Chief Justice Roberts has received flak over his wife’s work in the legal recruiting field based on comments from an ex-colleague let go from her firm.
This mis-coverage is supported by recent academic work featured by mainstream journalistic outlets on the role of advocacy groups like the Federalist Society in promoting conservative Supreme Court picks. The scholarship tells the public what it already logically knows: that any effort to promote a dissident legal view in Washington takes money. Its real function is to allow ethics experts to decry the justices and Democrat politicos to tie the Supreme Court to a broader “dark money scheme.” The deeper aim of the exercise is cruder still: as New Republic editor Michael Tomasky, an influence on the Biden White House, put it last year, “The Democrats Need to Destroy Clarence Thomas’s Reputation: They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.”
The recent attacks on Justice Alito represent recognizable continuations of this playbook. Liberal neighbors of the justice were sources for The New York Times’ Jodi Kantor, a “star” reporter known for driving highly political narratives, for a story about a politically symbolic flag the justice’s wife had put up after a dispute with a neighbor in 2021. This gossip had already been known to reporters at the Washington Post based off a tip, but they had apparently decided not to run a story on the subject because it seemed to be a private argument involving Mrs. Alito. Kantor, though, released her story front-page and top fold of The Times on May 17, around a month before the end of the Court’s term, when the biggest cases are announced. Kantor then ran a story on another flag at Alito’s vacation house, front page, bottom-fold, on May 23.
From this jumping-off point, The Times featured ethics experts tied to government-funded universities, one of whom said Alito’s flag “raises a question,” and a senior judge tied to Democrats who opined that Alito lacks “reasonable ethical instincts.” A Democrat senator drew on years of academic seeding-of-the-ground to call Justice Alito a “minion” of the Federalist Society. A Democrat representative introduced a resolution censuring the justice on the logic that it “kind of put[s] a scarlet letter on him” and, presumably, on any decisions he helps the Court reach.
Scarlet lettering is an accurate description of the agenda of the journalists covering the Court. In this process, the reported-on issue (a high school encounter, social connections, an ownership stake in a home, a spouse’s job, a flag) is less important than the political play its serves — one in which anecdotes lead to corruption allegations and condemnation of the Court. Jo Becker and Jodi Kantor at The New York Times, Jane Mayer at The New Yorker, and Stephen Engelberg at ProPublica are major pushers of this journalism. For their efforts they have been rewarded with front-page coverage and their outlets with Pulitzer prizes from journalists who live in the same small world of advisory boards and conference speaking slots, prize committees, and book receptions.
Any political attempt — say, from the House of Representatives Judiciary Committee — to question these journalists about a coordinated attack on the Court’s credibility would lead to accusations of McCarthyism. But there is another possible approach that would cast any investigation in a different light. The interconnected entanglements of these journalists are numerous and easily provable. They could be used to build a case for corporate collusion — e.g., the existence of a journalistic cartel — that could just conceivably lead to an antitrust investigation based on laws passed by Congress more than a century ago.
The Court, in the end, is dependent on democratic processes. The journalists targeting the justices should be as well.
Matt Wolfson, an ex-leftist investigative journalist, tweets @Ex__Left and writes at oppo-research.com.
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