EDITOR’S NOTE: This is the first of four interviews with reporters who specialize in covering the U.S. Supreme Court during a crucial time. Other interviews will follow each day this week, with links to all as they post.
Politico prised loose a historic scoop earlier this year when it published the draft of an upcoming U.S. Supreme Court decision that would overturn an equally historic ruling: Roe v. Wade. Part of the story’s depth-charge impact came from the foreshadowed decision: a majority ruling in Dobbs v. Jackson would upend 49 years of legal abortion and have tusami-like conesequences on a wide range of health-care options for women across the country.
But some of the shock waves sprang from the journalistic rarity of the Politico report. While there have been occasional leaks of upcoming decisions in the past, the Supreme Court’s workings are typically armored in secrecy. Justices seldom give interviews; when they do, it’s not with the press in friendly environments such as law schools or gatherings of people who support their interpretations. Until almost 2010, high court clerks worked on computers without internet connections, Cases are decided with no warning as to which decision may be released when, leading to a tradition dubbed the Running of the Interns.
Politico’s scoop proved accurate and prescient. The Dobbs ruling has left individual states scrambling to dismantle or protect reproductive health services. At the same time, the leak itself has set off a scramble to determine the source and has prompted questions about the sanctity and independence of the Court.
The institution’s unique nature as the third, and presumed impartial, branch of U.S. government can be seen as positive or negative. Vox’s Ian Millhiser, a Supreme Court beat reporters who also has a law degree, made the case to me that the case that the Court is more transparent than other branches, usually opting to publish the reasoning behind its decisions.
But whether it’s transparent or opaque, or perhaps a mix of both, the Court creates a unique ecosystem: It functions works at a distance from most citizens, speaks a highly specialized language and yet yields almost limitless power over every aspect of society. Because of that, it is anxiously watched by the powerful and powerless, who must both heed its decisions.
The Supreme Court beat
That creates a challenging environment for journalists who cover the Court. They operate as rapid-response analysts, slicing through layers of complexity to get to the heart of lengthy and arcane-seeming cases. They have to translate politics, process and jargon to explain the real-world impact of rulings — all under deadlines that melt away in minutes.
Recent events has shone a bright light on the shaping of the Court and the import of its decisions on issues ranging from reproductive rights to gun control to immigration to affirmative action to same sex marriage to separation of church and state and more. The coverage of the Court by top journalists has been just as bright.
As I read and listen to that coverage — authoritative, clear and so very fast — I marveled at their mastery. Four veteran Supreme Court reporters agreed to answer questions about how the importance of court coverage in today’s political environment and how they practice their craft in a 24/7 news cycle. The Q&As have been edited for length and clarity.
Today we hear from Robert Barnes of the Washington Post. This will be followed by email conversations with Lawrence Hurley who recently joined NBC after several years at Reuters, Ian Millhiser of Vox and Mark Sherman of the Associated Press, with links to all the interviews. The Q&As have been edited for length and clarity.
Robert Barnes of the Washington Post began covering the Court in 2006 after holding down other reporting and editing roles at the paper. Previously covered in Storyboard for working wordplay into a story about a free-speech case, he has written everything from probing recaps to stories that put cases in context, such as his recent profile of Edward Blum, a stockbroker-turned-conservative-activist behind some of the Court’s most crucial recent decisions.
I’m no Supreme Court historian, but it seems clear that this term — especially the stretch encompassing Dobbs, Bruen, Carson and West Virginia v. EPA, among others — is remarkable, both in terms of the impact of rulings but also how those rulings are being decided, announced and, in the case of Dobbs, leaked in advance. The coverage, including yours, also has been remarkable: insightful, clear and so fast. The question is whether, or how much of, the public is paying attention? When you write, whom do you think about reaching and how do you weigh the best way to reach them?
There was incredible interest in the court this term, for all the reasons you mention. My stories online probably had a higher number of views than ever before. In times where blockbusters such as Dobbs are going to be extensively covered, Supreme Court reporters can provide context, history and a detailed analysis of the reasoning of the justices.
The challenge of reporting any Supreme Court decision is to make it accessible for non-lawyers but not so simplified that it is wrong or loses nuance. Sometimes it is important to note what the court doesn’t settle in a decision, what questions it leaves for the next case and the difficulties it might create for lower courts trying to apply it.
As a technical matter, sometimes on a big decision such as Dobbs or the EPA case, I might republish the story four or five times during the day, adding reaction and analysis. I try at some point to stand back and read the thing as a new reader might.
How did you come to covering the Supreme Court?
At The Post, reporters become editors and go back to being reporters all the time. I personally think that is a healthy thing. After I had returned to reporting after years of editing, including editing Supreme Court coverage at one point, I was approached about covering the court for a year. The fulltime Supreme Court reporter was going on book leave. I found that I loved the beat.
Fortunately for me, the returning correspondent went to the editorial board and I continued to cover the court.
When you began reporting on the Court, what was the largest challenge the beat posed and how did you approach that challenge?
There were several challenges. One is that I had never covered any court as a full-time beat. Another is that I started after the term had begun, so I missed a critical part of the fall preparation for the cases ahead. Another is that the beat requires a tremendous amount of reading, instead of interviewing. It is a very different type of reporting. It took time to get used to the fact that I often did not talk to any source for days on end. That could hardly be more different than the life of a political reporter.
A number of Supreme Court practitioners and law professors were extremely patient and helpful to me — I’ll mention the recently departed Walter Dellinger as one — and I asked everyone I met or talked to who else I should meet. One positive is that practically everyone who is knowledgeable about the court loves to talk about the court.
There are excellent Supreme Court reporters who studied law and excellent Supreme Court reporters who didn’t; you’re in the latter camp. Are there any ways you believe a non-legal background helps you in your current role? Or any way it creates obstacles?
My somewhat flippant response to those who ask how I can possibly cover the Supreme Court if I don’t have a law degree is to remind that The Post also covers NASA but we don’t have any astronauts on staff.
On one hand, it certainly would have been an advantage to have gone to law school; thank God for online legal dictionaries.
On the other, those of us who cover the court are reporting on the court’s actions — not practicing law. I don’t write for lawyers; I write for the general public. I try to always keep in mind that if I wasn’t familiar with a legal term or court precedent before I started covering this beat — or at least couldn’t give a confident definition of it — I should not use it in a story without explaining. Sometimes lawyers I’m interviewing lapse into legalspeak because they are confident I’ll understand it. But that’s not good for readers. I ask them to explain things to me as if I were their client, and that works pretty well.
I’m sure I don’t do this enough, but I also try to keep in mind that people don’t generally know how courts work. Chief Justice Roberts has said he tries to write opinions so that his intelligent sisters, who are interested in public affairs but did not go to law school, can understand the court’s reasoning. I think that’s a pretty good standard. It was also a great relief to realize that I did not have to come up with my own conclusion about a case. When nine of the smartest lawyers in the country split 5 to 4 on something, it kind of lets you off the hook in finding the “right” answer.
How do you prepare for these major decisions so you can turn a thorough story around so quickly? Do you make educated guesses on when a decision may be released? Do you prewrite based on what you believe to be likely outcomes?
The Post, like just about everywhere else these days, is a 24/7 operation. We must report almost immediately on the court’s actions. Every Supreme Court reporter writes background on the important cases and likely sketches out several possible ledes on what the court might do. I also work with editors to craft versions of alerts that are sent to your phone and email.
We do not get any advance knowledge about when specific cases will be decided. No one believes that, but it’s true. We only know, along with the public, when the court has scheduled decision days. Generally, the biggest ones will come at the end of the term but not always. So there is a lot of time spent preparing for various outcomes.
Fortunately, my editors would rather we be right than be the first to report something, and they never send an alert or publish a story until I’m satisfied I understand the outcome, which in some decisions is more difficult than you might think.
The Supreme Court seems like one the most opaque of the nation’s political institutions. Its operations are protected by secrecy; its justices give few interviews, and when they do it’s often in highly vetted environments. How does that create challenges for — or maybe free up? — those who write about the Court? How does it influence coverage of the Court as an institution?
It can be frustrating.
I’ve said in the past that writing about the Supreme Court requires some educated speculation. It’s not enough just to say the justices did not give a reason for their actions — which we see a lot in the so-called shadow docket cases involving emergency petitions before the court — and leave it at that. In those situations, we can draw on what the court has done in the past when it has provided reasoning. Context and history are important in such cases. But the justices in decisions involving argued cases do lay out their reasoning; dissenters disagree and say why.
I get irritated with some justices who say the media only report outcomes of the cases —who won and who lost. Good Supreme Court reporting always includes the justices’ reasoning, even if not in the terms or depth the justices would like.
But I certainly don’t think the lack of access frees up reporters to write what they want. Reporters wish the justices would explain themselves more and give more interviews.
Is there any journalism written about this term, or about a specific decision, you found particularly powerful?
I’ll let others handle that one. Certainly no one would dispute that the Politico scoop on the Dobbs draft opinion was the most influential piece in this or any other term in recent memory.
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Trevor Pyle was a newspaper reporter in the Pacific Northwest for several years, and is a communications officer for a regional nonprofit.
