Josh Gerstein says he didn’t expect Politico’s leaked Dobbs draft opinion to be an inflection point in Supreme Court coverage. When Gerstein, Politico’s senior legal affairs reporter, and national security reporter Alexander Ward obtained and published the initial draft majority opinion ending federal protections for abortion last year, “I thought they would just sort of batten down the hatches and pretend like nothing was going on—and I guess I kind of felt like the press would respond in the same way,” he tells me. After the historic scoop came out—never in the modern history of the Court had an entire draft decision of this magnitude been leaked to the press—Gerstein remembers “at least one editor” saying to him, “Oh, no, this is gonna change the way the Supreme Court is covered from here on out.”
Indeed, in the year or so since the Dobbs leak, and amid increasing calls for deeper, more sustained coverage, we have seen “a dramatic increase in the amount of resources that they put into it,” Gerstein notes. The job of the Supreme Court reporter has traditionally been to track cases, and translate the final opinions to readers. But this term, as the conservative supermajority ruled on hot-button issues including affirmative action, LGBTQ+ rights, and student-debt relief, reporters both on the SCOTUS beat and beyond took a broader approach, with more scrutiny of the justices’ business dealings, relationships, and ethical issues. ProPublica published a series of revelatory stories about Justice Clarence Thomas’s undisclosed gifts from billionaire GOP mega-donor Harlan Crow and Justice Samuel Alito’s undisclosed luxury fishing trips with billionaire GOP mega-donor Paul Singer, who later had cases before the Court. Politico reported how Justice Neil Gorsuch in 2017 failed to disclose a property sale to a CEO whose law firm has since argued at least 22 cases before the Court. The Associated Press examined the ethics practices behind Justice Sonia Sotomayor’s staff prodded colleges and libraries to buy her books.
“To some extent this coverage has existed, just not on a consistent basis,” says investigative reporter Jesse Eisinger, the editor of ProPublica’s SCOTUS coverage. Back in 2004, the Los Angeles Times reported on the “wealth of gifts” that Thomas had disclosed. Some details of his relationship with Crow have emerged over the years too. “People understood that the Court had politicking, but not politics,” says Eisinger. “The end result of the coverage focused on the opinions, and not the influence and politics that went into the making of those opinions.” The Court’s most recent session highlighted these gaps in coverage as well; just days before the high court essentially gave some businesses the right to discriminate against LGBTQ+ patrons, The New Republic published a remarkable article that raised the possibility that the plaintiff’s lawyers—a conservative anti-LGBTQ+ legal advocacy group—had falsified evidence. (The reporter Melissa Gira Grant called up the allegedly gay man cited in the Court filing as a client who requested a same-sex wedding website from a website design business owner, only to find the man claiming to have never made such a request, and married to a woman.) The eleventh hour report begs the question: Shouldn’t mainstream outlets give similar scrutiny to the origins of cases in the Supreme Court’s docket from the get-go?
Perhaps now, Eisinger wonders, the post-Dobbs public is more primed for this kind of coverage. “Maybe the reason why it’s resonating has nothing to do with us, but just the moment—that people were ready to read it and see it and acknowledge it. Sometimes you just have to have that. The reporting is much less important than the readers.”
The press has treated the Supreme Court with a unique reverence compared to the other two branches of government. Among the legal experts who have made this point is Slate’s Dahlia Lithwick, who in a recent essay, titled “Imagine if the Press Covered the Supreme Court Like Congress,” noted that the SCOTUS 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.” Lithwick points to scoops related to the Court, aside from Gerstein, largely coming from reporters not directly on the beat. “It speaks volumes about the way the Court has been covered that only in the past year have some legacy news outlets hung out ‘Help Wanted’ ads seeking reporters to cover the Court as though it’s an actual branch of government and not the oracle at Delphi.”
To Lithwick’s point, The New York Times indicated it was rethinking its approach to the beat in hiring Abbie VanSickle of the Marshall Project to, as the announcement put it, “cover the world of the court including its role in politics and the lives of the justices.” The role, Times spokesperson Charlie Stadtlander told me, “is new, expanding the Times’ coverage of the court.” Earlier this month, the Times’ Sunday front page was devoted to an investigative piece—co-bylined by VanSickle—into Thomas’s ethical standards and relationship with an elite circle of “extraordinarily wealthy, largely conservative members,” to whom Thomas granted “unusual access to the Supreme Court.” The Washington Post, too, has been putting more energy into SCOTUS ethics reporting, from scoops on the tens of thousands of dollars that conservative judicial activist Leonard Leo told Kellyanne Conway to pay Ginni Thomas, wife of Clarence, to analysis of justices’ long-running tensions over ethics.
Charlotte Klein
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