Infiltrating the Supreme Court

The Supreme Court was once a sedate — even stately — beat for reporters. There was a predictable pace and a familiar timeline for the court’s resolution of cases through cert petitions, briefs, arguments and opinions. There were a couple of major decisions every year. But for the most part, the average news consumer or political observer did not need to pay close attention to the court’s work on a daily basis.

Those days are long gone.

President Donald Trump’s appointment of three justices to the court during his first term created a 6-3 conservative super-majority that is now in the process of fundamentally reshaping American constitutional law. Trump is also aggressively expanding presidential power in his second term, and although he recently suffered a major defeat in the tariff case, the conservative justices have thus far largely endorsed Trump’s efforts.

At the same time, the media’s scrutiny of the court has become sharper and more wide-ranging — now regularly encompassing questions about the ethics, the intellectual integrity and even the partisan leanings of some of the justices.

To take stock of these swirling changes, I convened a distinguished group of Supreme Court reporters to discuss how the media’s coverage of the court has changed in recent years — in tone, in scope and beyond — and how they do their jobs.

We were joined by Josh Gerstein, a senior legal affairs reporter for POLITICO who broke the landmark story on the court’s draft decision to overturn Roe v. Wade in 2022; Jodi Kantor, a veteran investigative reporter for The New York Times who joined the paper’s Supreme Court team last year after a string of penetrating stories on the justices; James Romoser, a Supreme Court reporter for The Wall Street Journal who joined the paper after serving as POLITICO’s legal news editor and, before that, the editor of SCOTUSblog; and last — but most certainly not least — Nina Totenberg, the veteran Supreme Court correspondent whose crisp and authoritative accounts of the court’s rulings for NPR practically defined the beat for decades.

Among other things, we discussed the increasingly politicized and polarized nature of the court, the new and varied forms of media coverage, criticisms of the Supreme Court press corps and what they will be watching in the years to come as the relationship between the court and Trump continues to develop.

This conversation has been edited for length and clarity.

Nina, how do you think the media’s coverage of the Supreme Court has evolved over the last decade or so? The justices seem to face a much more skeptical mainstream media environment than ever before — one that treats the justices as political actors both as a group and as individuals. Is that fair or overstated?

Nina Totenberg: It's fair and not fair. It's not fair in some ways because the court, until relatively recently, had lots of justices on it who couldn’t be pigeonholed as Republicans or Democrats. That's a relatively new phenomenon. As long as Justice [David] Souter was on the court, or [Sandra Day] O'Connor or [Anthony] Kennedy, there was always a center to the court. And [now] there is no center for the most part, on the big, big cases. You can't really say it's because of the media environment.

News organizations have also beefed up the number of people covering the court. It's not just that they do good work, which they do. It's that I can't possibly do what Jodi does and what I do. And I've broken some big stories in my life about the court. But I can't spend my life looking for those kinds of scoops, for want of a better word, because I have so much other work to do. It's rare that we don't have a week with at least a new filing from the administration.

There was a time when I used to cover many other things, because NPR was smaller. We didn't have as many shows on the air, we didn't have digital, we didn't have podcasts. All of that is no longer true. We've got a million different platforms, and the court is a hot beat. I don't have to persuade people to get on the air.

And we have a court that has six conservative appointees who were put on the court by presidents who were conservative Republicans, three of them most recently, and then we've got three Democratic appointees. And because there is no center on the court in a lot of these cases, it's very polarized. There's just no way around that. It's just a very different world we live in today than we did 10 years ago, when it comes to covering the court.

Josh, for so long, it felt like the Supreme Court was like this closed box — and I imagine while reporting on the court, it's been tough to penetrate. But that seems to be changing in recent years. You've all done versions of stories that have demonstrated that. Why do you think that's the case?

Josh Gerstein: Well, I think there's a few different reasons. I do think there's more partisan suspicion on the court, at least than there had been in recent decades. I think at least Justice [Clarence] Thomas has sort of come out and said this — but there's a general sense that whenever anything goes wrong at the court, there is a suspicion on the part of the Republican appointees that maybe the Democratic appointees are responsible for it, or vice versa. That has a tendency to perhaps have justices want to rebut each other, and if justices want to rebut each other, it probably follows that their clerks or their friends also are more willing to enter the debate.

But by and large, I think the coverage has changed because of two things. One, I just think it's more aggressive than it was at one point. As Nina was saying, more resources are being applied by the news organizations who can do that.

I used to use a comparison to Congress and say, if we were going to send reporters to Congress and ask them, “What are you going to do up there?” And they would say, “Well, I'm going to cover every time the House and Senate are gaveled in and read the bills that are submitted and go to the congressional committee hearings and write them up,” we would think that's a pretty narrow way to cover the Congress.

The bulk of the coverage of the Supreme Court for many decades — not every story, but the vast bulk of it — was that the petitions have come in, the briefs have come in, today we're having oral arguments, and then we wait until May or June for the big decisions, and then the decisions come out. That was sort of the way, a very literal way, that the court was covered. I do think that’s changed. I think that our story on Dobbs and the draft decision in Dobbs played a role in shifting the way news organizations look at the court.

I'll say one thing in defense of those of us who do have to cover on a day-to-day basis. As Nina was saying, that job of day-to-day coverage has gotten harder and more taxing. There are so many more emergency applications that are coming in. They come in at all hours. They come in all months. We've had justices point out, just in the last year or so, that their summers are not what they used to be. So if people thought it was sort of a banker's hours job, that is no longer the case.

Totenberg: It used to be a little bit stately, and you could do other things. You could actually make a doctor's appointment and be pretty sure you'd make it there. But that isn't the case anymore. It just isn't.

Gerstein: Exactly what Nina said. The summers are now filled with these applications. It's obviously gotten more intense under Trump. But as people know, the phenomenon over the last three or four presidential terms has really accelerated where so much of the litigation is taking place on the shadow docket, the interim docket, the emergency docket, and those things have to be covered. So that part of the job has become much more intense.

The one other thing that I think has also shifted attention to the court: This may seem a little weird, but I actually think Congress has become less important over the last 20 years. News organizations have been slow to adjust in dialing down their coverage of Congress, because Congress doesn't do a whole heck of a lot anymore. That's part of the reason why the spotlight has shifted to the Supreme Court, because they’re now called on to resolve all kinds of things that, in another era, Congress would have given clearer direction on or put forward legislation on. They find themselves having to try to figure out whether these 50-year-old laws, like the one that came up in the tariffs fight with President Trump, are applicable to situations that they probably were not originally intended to cover.

Jodi, as an investigative reporter, you've covered a whole variety of topics. You've covered and broken a whole string of Supreme Court stories. In October, you joined the Times’ Supreme Court team. What is it that drew you to the court as an investigative target?

Jodi Kantor: I'm hitting my fourth anniversary of working on the Supreme Court, and I hadn't been in the market to do it at all. I live in New York, not Washington. I am a law school dropout, giving me an especially distinguished background with which to probe the court.

But one night in the wake of Josh's Dobbs story, I got a call from someone I knew only medium well, and it really was the proverbial great tip. This person said, “Call this guy. He has a story about the Supreme Court. You have to get him to share it.” And the guy, his name is Reverend Rob Schenck — POLITICO also did a very illuminating story about him — and he had formerly been a pretty extreme anti-abortion activist. He's also a minister, and he had a story to tell about putting together a secret lobbying effort aimed at the Supreme Court and even, he said, obtaining the results of the 2014 Hobby Lobby decision early. As Jo Becker and I worked on that story, it really opened my eyes to the possibilities for covering the court.

Journalists scrutinize power. It's job number one, and we can't have a Supreme Court-sized exception in the middle of our compact with the public. I began to realize that there were all sorts of everyday questions about the court that we really don't have answers to. How partisan are the justices, at the end of the day? How much of the work do the clerks do and how much do they do? What are their relationships with one another? Does the chief justice have a strategy for dealing with the Trump era, or is he kind of figuring it out as he goes? The Supreme Court has this quality of being so central, as Josh says, to what's going on and yet hidden and mysterious, and so I began to feel a calling.

One story for me led to the next, but at the same time, what I and a lot of others internally here were pushing for was a kind of reformulated approach to Supreme Court coverage. I don't think we should cover the court the same way we cover Congress or the executive branch. I think form should meet content.

Josh, you mentioned that your story on the Dobbs draft sort of influenced the way the media approached the court. Is that because the reaction from the public was so strong?

Gerstein: That was part of it, but I think it also led to coverage in the immediate aftermath and speculation that the court is maybe more partisan in a crude kind of way than people expected. Maybe it has to do with the fact that the leak itself, to many people, seemed more like the kind of thing that was likely to happen in the executive branch or in Congress — and would be kind of unremarkable, frankly, in those places.

But it sort of turned the prism a little bit through which people look at the court. It did lead to the kinds of stories that Jodi is mentioning. A lot of us didn't realize that it's not the same kind of lobbying that people do in Congress, but there's a form of lobbying that goes on around the Supreme Court. It's probably done in a gentler way, but it still involves money and people and a lot of those stories, I think people just began to realize had to have been going on in the background and were largely being overlooked.

James, can you talk a little about how you go about doing your job on a day-to-day basis, and how the changes in the political and media environments in recent years have influenced your approach? It used to be the case that all you really needed to know as a news consumer was the outcome of the decision and perhaps the composition of the majority, but expectations seem to be much higher these days even for daily coverage.

James Romoser: At the risk of repeating what others have said, I definitely think there is a heightened demand from readers for coverage that takes them inside the court as much as possible and goes beyond what's written on the pages of its rulings. Obviously, covering the rulings themselves remains a big part of the job. It remains a very reading-heavy beat. There are a lot of briefs to read, and it's important to cover the decisions incisively, because that is the substantive work of what the court is doing.

But that being said, readers and members of the public increasingly appreciate that the Supreme Court is not a monolithic, cloistered institution that acts as a council of oracles handing down abstract legal decrees. Rather, it's a body of nine individual human beings susceptible to their own motivations. They're flawed people. They're subject to ethical lapses, and they're interesting people. All nine of them are very interesting people.

Partly because of so much publicity around confirmation hearings these days, and partly because of the court's outsized role in policies that affect everyday Americans, people are more interested in what these human beings are up to. What are they doing behind closed doors? Who is influencing them? What are their interpersonal relationships like? An astute Supreme Court reporter needs to try to delve deeply into all of those topics.

Also, we're in a moment of very significant constitutional reordering, a lot of big jurisprudential changes. It's really not enough to know, “Oh, there was just this decision in this case that had this outcome and announces this new rule.” Often it's at the tail end of a much longer saga, and it comes freighted with a much more complicated and necessary background.

Romoser: To double-click on Josh's point that the Supreme Court is becoming increasingly important as Congress becomes less important and less influential, a lot of that power shift is arguably of the Supreme Court's own making. The Supreme Court, through its decisions, has in some ways aggrandized power to itself.

There's a legal scholar named Mark Lemley who has written about what he calls the Imperial Supreme Court. Decisions like Loper Bright, which have stripped power from the administrative state, other decisions over the course of the last two decades that have stripped power away from both state legislatures and from Congress — that's a dynamic that's really important to remember, too. It's not just that Congress is calcified and can't get anything done, and that the Supreme Court is reluctantly filling the vacuum. The court, in many ways, is enhancing its own power through its own decisions.

Totenberg: This court is full of people who do not, obviously, really love each other a lot. They get along because they have to get along, up to a point. When I was first covering the court, when Warren Burger was Chief Justice, it was very clear to me that other members of the court, regardless of their ideology, did not love Warren Burger very much. But the rest of them actually did seem to get on pretty well.

I wrote the mildest kind of piece a couple of years ago, an analytical piece, and the chief justice denied something that I had not said. Any real politician would have sort of understood that this goes with the territory. These guys don't understand that at all, and they get very upset.

I think we occasionally overdo looking at their families, for example, if there actually is a conflict of interest. There are stories that I greatly admire that have been written by my colleagues, but there are some I think where we just don't quite have the goods, and they still may get onto the front page. Maybe that's me being unfair.

But I do think that all of the Thomas stuff was very well reported, hugely well reported by the Times, by the Post, by all the people who've done those big stories. ProPublica spent months and months and months at it. I don't think I fully understood until then that I could actually try to get flight [logs].

Did you take some issue with sort of the tone of the reporting?

Totenberg: I think that the pieces that have been about Jane Roberts and what she does for a living now since she didn't want to be a lawyer, because then she would have had a conflict of interest being in a big firm, which is what she did before — I don't expect people to not be able to work because they happen to be married to somebody who is a Supreme Court justice. And even assuming that it's correct that you make a lot of money doing that, I also don't think you should be barred from making a lot of money from doing that, if you're not a crook doing it.

Does anyone else want to weigh in? I'm curious because as a consumer, I do detect gradations in the quality of some of these stories. Some observers have argued the narratives concerning corruption around the court are overblown.

Kantor: My experience is that committing to more penetrating coverage of the court doesn't mean that every story, or even most stories, are about wrongdoing. I'm very interested in deliberations and the question of how the law is really made. The justices might say they're the most transparent branch of government because of oral arguments and opinions, but we all know that there are cases in which the story told in the opinions and the arguments is exactly the same as what really happened and then there are cases in which it's not. The gap between the two is very interesting to me.

Another instance to mention is that I profiled Justice Amy Coney Barrett earlier this year, and part of the reason I did it was because I did feel she had been reduced to kind of a caricature. When she was appointed, both the right and the left saw a woman with seven children and decided they knew what that meant, even if they came to different conclusions. And as we could all see, she was a much more complicated and fascinating figure than sort of advertised when she first came on the scene.

When I published that story, it reached a lot of readers who I think had been very disapproving of her nomination, and they were surprised by some of what they read, in part because they don't necessarily follow the ins and outs of the court as closely as the rest of us do. I got a lot of surprise notes from readers saying that they felt kinship with her in reading the story, and that the story made them trust her more. Even though they may not have agreed with her opinions, they felt she was a really hard-working, sincere justice.

Gerstein: Some of the perception of the corruption and the ethics stuff obviously comes from the coverage. Some of it is actually driven by the court's own tendency towards secrecy. I have not spent a lot of time covering the Hill; I did spend a long time covering the White House. If you're there as a reporter, you're used to getting a copy of the president's schedule. You're used to being able to see most of the people that come into the White House and walk past the stakeout going into the West Wing. Those sort of basic day-to-day checks are absent at the Supreme Court.

I don't know if the average reader knows it, but the court does not put out a schedule for any of the justices for any of the events that they're going to. Even public events where they're going to be, literally thousands of people in attendance. There's no official announcement by the Supreme Court. Sometimes the host of the event will announce it. Sometimes they don't. It varies.

More recently, I think the court would point to security concerns for why they handle it this way, but this has sort of been the historical practice. I don't know. Nina can probably chime in on that, but there's just a default secrecy around the court that increases suspicion. The court's finances are almost completely opaque. The court's operation is almost completely opaque. The court's payroll is almost completely opaque. Even the clerks — the way we know who the clerks are is because somebody leaks them to David Lat every year. It's just a bizarre, default secrecy that I think doesn't actually do the court any favors.

Totenberg: I'm not sure that they would say that none of them understand it. Some are more politically savvy than others. But it's quite striking that — and I've written this, this is not a secret to any of you — but it's quite striking that it took as long as it took to get an ethics code that everybody would sign. And it's not even a great ethics code.

There were probably at least five people, maybe six, who wanted to have a better ethics code than they got, but they were not willing to do anything unless they were all going to do it. Because some members of the court would say, “Well, I'm not going to sign your ethics code.” And you just have to say that that is obviously what was going on. Can I prove it 100 percent? No, I have to frame it as an analytical framework, but it's the same one you all have. And the chief can't make anybody do anything.

The ethics code — I feel like  the announcement came and went. Has it actually been effective in any way?

Romoser: I think the ethics code was seen from the beginning as lacking real teeth, and I'm not sure if it's had a meaningful impact on the court's practices or the practices of any of the individual justices. We still see some hiccups from time to time. Just recently, Samuel Alito had to recuse belatedly in a case because he had a conflict of interest that the initial round of conflict checks apparently missed.

Jodi, can you talk a little bit about bringing your investigative reporting skillset to this body? Without giving away any sort of secrets, what does that mean as a practical matter? How do you identify concrete targets and then go about reporting them out?

Kantor: You know, a lot of them are honestly just common sense. Adam Liptak and I wrote a behind-the-scenes story about the court's Trump-related decisions before the election. We were really focusing on the immunity decision, and we were asking the totally obvious common sense question, which is, “How did the court decide to award President Trump such broad immunity?” And also, what more can we learn about the making of this opinion?

Chief Justice John Roberts has a reputation as a very clean, accomplished judicial draftsman, but this opinion was criticized by legal scholars, including conservative scholars, as disjointed. I think because the question was so obvious, we were able to get some answers.

In terms of getting people to cooperate with you, or just your being committed to getting to the bottom of it?

Kantor: I would also say in terms of reception by readers.

I really appreciated what Josh said about secrecy. Another thing that distances the court is language. These opinions are not easy to read. Oral arguments are not easy to understand. And this isn't criticism, it's just fact. They're speaking in the Latin of the law, and it's very, very hard for regular people to penetrate. So there is something really powerful about coming back to a very simple question like “How did you give the president such broad immunity, and what can we learn about how this decision was produced?”

Nina, one criticism over the years of the Supreme Court press corps is that they have been perhaps too immersed in the social world that surrounds the court. Several years ago, the book that you wrote about your friendship with Ruth Bader Ginsburg prompted some pointed reactions. What do you make of these criticisms, and were you surprised about the response to the book?

Totenberg: My view has always been: The more I can get to know any of these people, the better off I am now. As it happened, Justice Ginsburg had been my friend for about 50 years. And I wasn't about to ditch her because she got named to the Supreme Court midway through our friendship.

But having said that, I would have to say that I loved knowing her, and as a woman of a certain age, I particularly loved knowing her. But it was not an asset. It was a “de-set” to have her as my friend. I was probably more timid about asking the kinds of things that other people do more often, because she was my friend, and I didn't want to poach on that.

The worst coverage I got about it, I have to say, was from our own ombudsman. Not once, but twice, and maybe three times. She seemed to think it would be a great idea if we just shifted beats every two or three years. I've had a lot of beats in my life, but covering the court is definitely the most interesting. Maybe not the most fun, but it is the most — and right now it's very — interesting.

I thought the same thing when I covered the Hill somewhat. I wanted to know those folks, because if you were friends with them, they would tell you stuff. You know, Pat Leahy was a great source. If you knew enough to ask, they knew enough to tell you, and they would tell you, “I can't tell you this, but I can tell you that.”

I’m curious, are the justices themselves more socially cloistered than they used to be?

Kantor: I can't answer a question about their social lives, but I think a parallel question that might get us a little further is to ask about the effect of the security cordons that they're under. That's been a huge change. Unfortunately, it's necessary, given the threats and violence that we've seen against all sorts of public officials. As we know, there was quite a serious one against Justice Kavanaugh a few years ago.

My Washington reporting experience, including on the White House, tells me that heavy security really separates you from the rest of the world. It's very hard to be spontaneous. I think it affects different justices in different ways. You know, Justice Barrett still has pretty young children in the house.

Totenberg: They can't really even drive anywhere by themselves.

Kantor: Yeah. I mean, appellate court judges are a little removed by design, and always have been. But I think a good question for the justices, especially some of the longtime justices, would be about how heavy security has changed their lives, and whether there are unintended consequences.

How significant has the ramp-up in security been? And how recent? I don't think this is something that people generally appreciate.

Totenberg: Oh, it's been big. It's been big in the last few years. I mean, you try to open one of those doors of the cars that they're driven everywhere in. I can't pull it open. It's a tank.

Gerstein: I would urge people not to try to do that.

Totenberg: It's serious. You could run into people at the supermarket 10, 15 years ago, easily. In the last five to seven years, that's just not going to happen. You're not going to just be waiting for your flight from LaGuardia, and there's Tony Kennedy sitting there.

I think it's not fun for them. But it's a very serious situation, because there are a lot of crazy people in the world.

One last question I wanted to pose to all of you, given where we are and the significance of the tariff decision. This is the first time, after a year of generally favorable court rulings, that Trump has been firmly rebuked in some capacity. What are you going to be paying attention to in the months, years to come, in terms of Trump's relationship with the court?

Romoser: The big thing for me is Trump's immigration policies. I think the next phase of the dynamic between the Supreme Court and Trump will be defined by immigration fights. Most notably on April 1, the court will hear arguments on his attempt to end automatic birthright citizenship, which is going to be a huge fight. And waiting in the wings and coming up with the court pretty quickly will be other policies, including his mass detention of immigrants without bonds, and his attempt to invoke the Alien Enemies Act. The extent to which the court pushes back on the central planks of his immigration agenda will really define the relationship between the court and the president.

Totenberg: What I really don't know is whether this year of Trump policies has, in any way, shape or form, changed the conservative members of the court who are more conservative than anybody that I covered until they were appointed. I just have no sense whatsoever as to whether the reality that surprises me of the first year of the Trump administration actually surprises them.

Kantor: To add to that, I'd like to know as much as possible about how the conservative center of the court countenances President Trump. I mean, these three votes really hold outsized power, and we don't know that much about how the Chief Justice and Justice Kavanaugh and Justice Coney Barrett view President Trump.

How do they view him legally? How do they view his tactics? What sort of overall philosophy are they developing for dealing with this administration's testing of constitutional boundaries?

Totenberg: The Chief looked so awful at the State of the Union. I've never seen him scowl or have a furrowed brow like that for so long. Do any of you have any sense of why? He's usually a pretty cool cat. He doesn't show much. But he certainly didn't look happy to me.

Romoser: I saw a lot of commentary suggesting that Roberts looked especially grumpy at the State of the Union. I would voice a note of dissent. I definitely don't think he looked happy, but I just think he looked like a man who didn't really want to be there with Trump, but was trying his best to keep his best possible poker face. I don't know what we're expecting him to look like. If he smiled, people would comment on that.

Totenberg: I just didn't expect this.

Romoser: I mean, he always has a bit of a grimace on the bench. In my view, I don't think we can read much into it. I'm not suggesting that he or any other justices actually enjoy sitting at the State of the Union for two hours.

Totenberg: They could stop, you know. There are two years, I can't remember which years, in modern times, where they didn't go at all. Nobody went.

Kantor: Well, now it's an awkward situation where half the court goes.

Totenberg: It’s always pretty much the same people these days,

Gerstein: And when they get there, they live in fear of what happened to Justice Alito, that they're going to be caught on camera reacting. So I agree with James that you end up with this sort of deer in the headlights look where you don't want to grimace, and you don't want to smile. And you know, we're even trying to figure out were they clapping? Were some of them clapping? Were all of them clapping? And why not?

Romoser: As someone who's played a few hands of poker in his life, I can attest that sometimes trying to maintain a poker face ends up making you look grumpy.

Totenberg: It is a little bit Kremlin-esque covering the court.