EDITOR’S NOTE: This is one of four interviews with reporters who have made a specialty of covering the U.S. Supreme Court at a crucible time in the history of the Court and the press.
A witty and insightful examiner of the Supreme Court for Vox, Ian Millhiser is capable of working a Muppets reference into a tweet about a thorny case. He’s also taken a deeper dive into the Court and its long shadow in “The Agenda,” his 2021 book that warns of the wide-ranging consequences possible with the institution’s new far-right majority. He holds a law degree from Duke University and clerked for Judge Eric Clay of the United States Court of Appeals for the Sixth Circuit.
Hurley is one of four veteran Supreme Court reporters who answered questions from Storyboard about the challenges and strategies of covering complex and significant rulings under intense deadline pressure. His answers have been edited for length and clarity.
I’m no Supreme Court historian, but it seems clear this term is remarkable, both in terms of the impact of rulings but also how those rulings are being decided, announced and even leaked, as in the Politico scoop involving the abortion case. The coverage, including yours, has also been remarkable: insightful, clear and so fast. As I’ve asked your beat colleagues, the question is whether, or how much of, the public is paying attention? When you write, who do you think about reaching, and how do you weigh the best way to reach them?
I think the public is paying closer attention to the Supreme Court than at any other point in my lifetime. A Marquette University poll recently showed that the Supreme Court’s approval rating dropped nearly 30 points since Amy Coney Barrett was confirmed and Republicans gained a supermajority on the Court. That’s consistent with numerous other polls showing the Court’s approval at historic lows. You simply do not see those kinds of massive swings in polls unless the public is paying attention.
Regarding my own audience, Vox readers to be people who already are familiar with the stories that receive the most headlines; they either want an in-depth dive into those stories or want to read about undercovered issues. For that reason, I tend to spend a lot of time on high-stakes cases that aren’t receiving a lot of coverage elsewhere. In the 2020-21 term, for example, I probably brought in 10 times as many readers for my coverage of Collins v. Yellen — an astoundingly complex housing case where the plaintiffs sought a remedy that could have triggered a global economic depression (they lost); that drew far more readers than my coverage of Brnovich v. DNC, a major voting-rights case that was widely covered by many outlets.
It’s not that Brnovich wasn’t important; it was a hugely significant blow to democracy and I covered the hell out of it. It’s just that I’m competing with a dozen other Supreme Court writers whenever one of the most closely followed cases are handed down. On these more obscure, but still very important cases, I can often shape the public’s understanding of the case and what it says about the Court because I’m the only one or, at least, one of only a few reporters focused on it. And I think that I’m providing more of a public service when I shine a light on issues that most of my readers aren’t already aware of.
I’m a former sportswriter who couldn’t dribble a basketball the length of a court without an oxygen mask. Like so many reporters, I didn’t have expertise or education in my beat subject. But, like you, many of the Court reporters I read earned a law degree. I’m curious how that education helps you write about the law for a wider audience or if there are ways it becomes a hindrance?
Supreme Court journalism is unlike many other kinds of reporting because the justices almost never speak on-the-record to a reporter. Their aides rotate out every year so it’s not worth the effort to source up even if you could find a clerk who is willing to talk. And all the important news is released to the public at the exact same moment. So it’s not a job that rewards reporters who are good at chasing scoops.
Instead it rewards reporters who have intimate knowledge of the Court and the legal doctrines it plays with, and who can explain the stakes of each case and the implications of legal arguments in a clear and accessible way.
The Supreme Court beat
There are some non-lawyers who, after many years of covering the Court, have learned so much that they do that job very well. But the easiest way to gain that familiarity with the Court and the canon of cases that the justices will frequently refer to in their opinions is to go to law school. That said, I try very hard not to succumb to what many folks on Twitter refer to as “elite lawyer brain.”
Because the overwhelming majority of lawyers do not practice in front of the Supreme Court, law school trains lawyers to think of Supreme Court decisions as authoritative rulings on what the law is, rather than as political decisions by powerful presidential appointees. If I’m arguing a case before, say, the United States Court of Appeals for the Sixth Circuit, the judges are bound to follow the Supreme Court’s decisions even if they are wrong. So there’s no point in me writing a brief saying something like “as we all know, the ‘major questions doctrine’ is just something that Republican appointees to the Supreme Court made up because they want the power to veto regulations handed down by Democratic administrations.” I may be right about that, but lower court judges aren’t supposed to consider the politics behind the law; they’re supposed to take the Court’s decisions at face value. Lawyers often aren’t trained to analyze Supreme Court decisions as political documents because that’s typically not useful in their practice.
But I’m a journalist. It’s my job to accurately describe what’s going on at the Supreme Court as best that I can — not to make an argument that helps my client prevail before a panel of judges who are bound by certain rules and norms. My legal training gives me a base of knowledge that helps me do my job, but law school primarily taught me how to analyze cases like a lawyer — and not how to distinguish between decisions that are rooted in law and decisions that are rooted in politics.
Legal writing is a specific beast, but are there any facets that you can apply toward writing for a wider audience?
Legal writing was far and away my lowest grade in law school. On the first day of class, my legal writing professor gave a big speech about how legal writing is unlike any kind of writing, and she claimed that students who think they are good writers tend to perform very poorly because they think they can just write like normal people and don’t follow the rules of legal writing. As it turns out, that was horrible advice! I believed my professor and wrote every assignment in her class in an impossibly turgid style that adhered robotically to every writing convention she told me to use in class. And I got mediocre grades on every assignment.
The reality is that good persuasive writing is good persuasive writing, whether it appears in a legal brief, a magazine feature or an academic article. I do think that some of the conventions of legal writing are useful. The best litigators are very good at structuring arguments, using headings and subheadings to signpost where they are going, and at laying out all the facts and legal concepts that a judge needs to understand in order to decide a case before they apply the law governing a particular case to the facts of that case , and I do incorporate these sorts of organizational techniques into my writing.
But I do so because clearly structured essays that make smart use of headings and subheadings are just good persuasive writing in any context, not because legal writing is some arcane skill that only people who took a class on it can understand.
How and why did you transition from studying law to writing about it?
I suppose that I’m still studying the law. Most of what I write is a kind of short-form legal scholarship, explaining how shifts in legal doctrine will change people’s lives in very concrete ways.
That said, I went to law school intending to be a Supreme Court litigator. I largely abandoned that plan (although I did write several briefs trying to convince the Supreme Court not to repeal the Affordable Care Act) after Sam Alito was confirmed to the Court and I realized that, if I did become a litigator, I would spend my entire career playing defense against a Court that is increasingly aligned with the Republican Party and its values.
When the Court hands down an arcane and largely incomprehensible decision that will change millions of peoples’ lives for the worse, someone needs to explain to the public what just happened.
I read a lot of fantasy novels. One of my favorite sub-genres is stories about sorcerers who learn to speak demonic languages and summon infernal beings to do their bidding at great risk to themselves and others. That’s more or less what Supreme Court litigators do for a living. And since law school taught me to speak fluent demon, I eventually decided that the best use of my talents was to translate demon to English for a general audience.
When the Court hands down an arcane and largely incomprehensible decision that will change millions of peoples’ lives for the worse, someone needs to explain to the public what just happened. And I decided that I would serve the public more in that role than if I were just another guy in a suit begging the justices not to do some infernal thing, and repeatedly being ignored.
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 likely outcomes?
As a rule, I never pre-write for an opinion. My theory is that a dozen outlets will have pieces up within 10 minutes of a decision that just describes the outcome of the case, and there’s not much to be gained from competing for a small slice of the pie of readers who want to know the most basic things as soon as possible.
Instead, I try to be the first person to publish an in-depth analysis of every important decision — ideally within two hours of the decision being handed down. That means that the questions I’m answering aren’t things like “was Roe v. Wade overruled?” but more subtle questions like what the immediate impact of the decision will be, what rights the Court’s Republican majority is likely to come for next, what implications the Court’s decision has for other issues that aren’t currently before the Court and which justices are likely to be in play when those issues arise.
The only way to answer those questions is with a close reading of the Court’s opinion, so I try not to prejudice my analysis of that opinion by writing something in advance which may not fully capture the nuance or the significance whatever the Court just did.
The Supreme Court is 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?
I’m an outspoken critic of the Supreme Court. But one thing that I will give it is that it is the most transparent branch of government. Typically, when the Court engages in policymaking, it publishes a lengthy essay explaining why it did so, and it often publishes additional essays by justices who disagree with the new policy and explain why. What other branch of government does that?
I think that the Court is perceived as being less transparent because its members rarely speak to the press. But a lot of the scoop-chasing that congressional and White House reporters engage in involves trying to be the first person to report something that everyone is going to learn about anyway. If a congressional reporter corners (U.S. Senator) Joe Manchin in a hallway and gets him to say on the record that he will vote against the Build Back Better Act, I suppose it is useful to have that piece of information a little sooner. But does anyone think that Manchin is going to keep his vote on a major bill secret forever?
I’m an outspoken critic of the Supreme Court. But one thing that I will give it is that it is the most transparent branch of government.
Similarly, I’m glad that the draft opinion in Dobbs was leaked because it was good to see the Court humbled a bit. But it’s not like the Court was going to keep the fact that it was overruling Roe v. Wade a secret. Nor did we really need a leaked opinion to know that Roe was doomed; that much was obvious the minute (former associate justice) Anthony Kennedy announced his retirement under a Republican president.
In any event, I hope that the leaked Dobbs opinion doesn’t persuade Supreme Court reporters to spend their time chasing leaks rather than doing the important work of explaining how the Court’s opinions will change people’s lives. As I’ve said, the Court’s opinions are often quite arcane and their implications aren’t always readily apparent even to most lawyers. It’s important that journalists help people understand how the most powerful institution in the United States government is shaping our lives.
Is there any journalism written about this term, or about a specific decision, you found particularly powerful?
It’s not a book about this term in particular, but I highly recommend Elie Mystal’s “Allow Me to Retort: A Black Guy’s Guide to the Constitution.” It’s the most entertaining book about the Court that I’ve ever read. And Elie is masterful at providing clear explanations of what the Court has done while sweetening the message a bit with dark humor.
I hope that the leaked Dobbs opinion doesn’t persuade Supreme Court reporters to spend their time chasing leaks rather than doing the important work of explaining how the Court’s opinions will change people’s lives.
Beyond that, I think that much of the journalism profession really stepped up after Dobbs with outstanding reporting on what it means to live in a country without abortion rights. All the reporting on 10-year-old rape victims denied abortions, or women being forced to lie bleeding in a hospital room until the non-viable fetus in their uterus dies, or people who aren’t even pregnant being denied medication for their arthritis because that medication can also be used to terminate a pregnancy is essential.
One reason that the Court has gotten away with becoming the most powerful policymaking institution in the United States is that it frequently hands down decisions that are covered heavily the day of, and then journalists move on. But it’s important that every voter understands what this Court just did to the country, and I’m gratified to see so many excellent reporters helping us all understand the implications of Dobbs.
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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.
