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Tuesday, March 28, 2023

The real problem with Amy Coney Barrett promising the Supreme Court isn’t partisan.

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I am not going to waste your time or mine asking whether Justice Amy Coney Barrett’s remarks this past weekend—when she stood next to Mitch McConnell in Louisville and intoned that the “court is not composed of a bunch of partisan hacks”—mean she is irredeemably clueless or just that she believes we are. I don’t much care. A celebration of McConnell—who blocked Merrick Garland’s appointment to the Supreme Court in 2016 and then described it in June as “the single most consequential thing I’ve done in my time as majority leader of the Senate”—is not a perch from which to serve up platitudes about judicial independence. McConnell manipulated the size of the court, not once but twice in the past four years, and Barrett accepted those spoils. McConnell has also already pledged that if a vacancy appears and the GOP wins the Senate next year, he will block any Biden nominee in 2024 and very likely in 2023 as well. He is indeed the patron saint of an independent federal judiciary, so long as the jurists there are all dependent on him.

The court has been so busy being partisan these past few weeks—it functionally ended legal abortion in Texas, reinstated the “Remain in Mexico” policy, and struck down the eviction moratorium—that it should have been hard for any of its members to find the time to give fatuous speeches about being nonpartisan. And yet, listening to Supreme Court justices busily instruct us on how to think about Supreme Court Justices seems to have occupied an outsize amount of judicial time this past summer. The terrible optics and annoying sophistry of Barrett’s specific remarks aside, there is real harm suffered when justices—and here Barrett is hardly alone—take it upon themselves to blame the press for things they have brought upon themselves. That, and not the cynicism, was the real problem with Barrett’s Kentucky foray into media criticism.

Let’s start with the fact that the Supreme Court press corps is almost never advised of these appearances. They weren’t in Barrett’s case, as Gerg Stohr noted that evening. There is no transcript or video available of the speech. Journalists on the scene included an AP reporter who published an account, along with local education writer Jess Clark, who penned an article that clarified that “press were allowed at the event but were not permitted to record audio or video other than for note-taking purposes. Reporters were not allowed to ask questions.” Clark also tweeted that the press had been moved to the back of the room, where they were unable to hear.

There’s a long, long history of Supreme Court justices throwing punches at the press, often while barring reporters from their events. In 2004, Justice Antonin Scalia famously had to apologize to two Mississippi reporters covering a speech he gave, after a U.S. marshal seized and erased the recordings on their tape recorders because they violated the justice’s preferred policy of no recorded speeches. In 2003, reporters were famously barred from recording a speech Scalia gave as he accepted a freedom of speech award. In 2009, when Justice Anthony Kennedy gave a speech at the prestigious Dalton School in Manhattan, his chambers insisted on giving preapproval to any article written about it in the student paper. The list goes on.

Andrew Cohen has detailed the rank insanity of justices who roam around D.C. in a bubble of silence and then swan off around the globe to give off-the-books speeches that are never recorded and not reported in full. I wrote back in 2006, after several justices received blowback for allegedly off-the-record talks in foreign lands, that they seemed to be deeply confused both about the distinction between public and private and about how the internet works:

Some justices still seem to think that if they say something very far away, or to an audience without visible tape recorders, it won’t be made public. Consider, for instance, that some justices—many of whom utterly reject the value of foreign law—reserve their most substantive legal speeches for foreign audiences. Why is Justice Ginsburg yelling at congressional Republicans from South Africa when she can just open the window of her chambers and shout across to the Capitol? Whether it’s a good thing or a bad thing, the combination of the Internet, bloggers, and bored law students means that everything a justice now says—whether it’s at a private prayer service in Mississippi or a Hadassah meeting in Reykjavik—is public. And what Supreme Court justices say, particularly when they are taking brickbats to unnamed others, is news, whether or not you destroy every tape recorder in the room. In fact, giving speeches without publishing transcripts or permitting recording devices is now doubly fraught, in that we are left to trust the reports of the listeners alone.

The extra hypocrisy sauce in Barrett’s case is that she went on to use the occasion to trash-talk the press. Again, since there is no transcript, we still cannot perfectly report on what was said. But according to those in the room last week, among Barrett’s knocks on the (constitutionally protected) free press was her claim that she actually doesn’t read it. She also reportedly blamed the media for pushing the narrative that the court is partisan, as opposed to the, er, partisan court: “The media, along with hot takes on Twitter, report the results and decisions,” she said. “That makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong based on whether she liked the results of the decision.”

The problem with this critique is that it comes just as the court has produced a record number of unsigned, barely reasoned shadow docket opinions that are in fact anything but nuanced. If some of the justices spent more time crafting actual coherent and principled decisions and less time giving partisan speeches about their awesome lack of bias, efforts to shift the blame onto the media would be less galling. But, coming from a court whose members can barely be bothered to sign their names to their orders anymore, the suggestion that reporters are too lazy to read and understand them is laughable. They are giving us shockingly little to go on—and for the record, whether Barrett reads them or not, there are plenty of reporters who really do strive to report the court’s complicated opinions accurately.

I join the millions of you who believe that producing Onionworthy speeches about an unbiased judiciary while kissing Mitch McConnell’s ring is doing absolutely nothing to improve public confidence in an independent judiciary. But I add this final gloss: When the same jurists tasked with protecting the First Amendment and a free press are blaming that press for polarization they themselves foment, it’s not merely vexing and Trumpy. It’s also dangerous. The court’s plummeting approval ratings—and new polling shows historically low public approval—are a genuine source of concern for the rule of law. The conservative supermajority blaming reporters for that is an very old very cheap trick. No matter what the speeches say, they are the authors of their own misery.


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