Have the Justices Been Captured by Media?

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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.

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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.

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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”?


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