This Term, Don’t Watch the Justices—Watch the Journalists

To save Chevron deference, the biased media is systematically distorting the business of the Supreme Court

ProPublica’s ongoing “investigation” into Justice Clarence Thomas, with its most recent report released a week before the start of the current Supreme Court term and then updated with a follow-up October 5, was a quiet demarcation point. For the first time, stories on Justice Thomas’ social milieu and his financial disclosures centered on upcoming, landmark cases that will be heard this January and that have the potential to reshape government.

This direct linking of contested reporting to upcoming legal outcomes is a sign of media overreach that’s likely to widen once the case is heard. And it offers conservatives an opportunity to not just defend the court but to push a different narrative: About the growing distortion of establishment court reporting and the journalists who have brought it to its peak.  

Reporting with an Agenda

The “clincher” of ProPublica’s story turned on an anecdote.

In 2016, at a regular retreat where Justice Thomas often socialized with conservative donors Charles and (the late) David Koch, he reportedly brought up the 1984 court ruling shorthanded “the Chevron Deference”: A linchpin of forty years of administrative expansion which the court is set to reexamine this term in two cases, one of which it added to the docket several months ago, the other last week.

He spoke about “his revised view” of overturning Chevron, according to someone there, “‘like he assumed most of the people in the room knew his position.’” The suggestion of this anecdote, read against the rest of the piece, is that Thomas was colluding with groups of conservative activists, especially the Kochs. They had allegedly influenced his view on Chevron by socializing with him, possibly funding a plane trip, and inviting him to events to speak, and they therefore knew his “revised view” or “position” on the doctrine.

In the wake of the story, Sen. Dick Durbin (D-IL), the chair of the Judiciary Committee, called on Thomas to recuse himself from one of the cases, in which Koch network staff attorneys are arguing to overturn Chevron, and 50 House Democrats followed suit, backing the request with dire rhetoric. As Durbin put it, “Justice Thomas’s gaggle of fawning billionaires expands and their influence on the court grows larger.”

Since then, ProPublica has released a follow-up report that Justice Thomas may have broken federal disclosure law over the plane trip and trips to a California retreat, swirling the Court’s upcoming review of Chevron in more clouds of suggested corruption.

What makes this outpouring of assertion and condemnation so obviously flawed is the fact that, if you want to understand why Justice Thomas altered his position on Chevron, you can read his opinions explaining his reasoning. You can also read those of the conservative justices, centrist conservative justices,  scholars, state legislatures and state courts which have mostly shifted from supporting Chevron to opposing it. None of these moves owe their start to Koch donations or private retreats—they’re a strategic shift by a political-intellectual movement looking for the best way to limit national government.

And yet this reality receives only silence from ProPublica and other establishment proponents of “objective journalism” who report on the court. Instead, they’re explicitly linking a legal doctrine and an upcoming case with purported judicial corruption and wrongdoing.

In the process, they’re distorting the business of the court, replacing law with innuendo.

Symptom of Deeper Rot

But what makes this distortion even more disquieting is that it isn’t new, even though its political ramifications are newly obvious. Instead, it’s the logical end of a nearly half-century establishment sell-out when it comes to court reporting that’s gradually become deeply political.

Like a lot of today’s establishment journalism, the roots of the sellout are with the dean of Washington reportage, Bob Woodward, whose 1979 book, The Brethren, brought the dubious techniques he’d honed in his Watergate reporting—especially a reliance on anonymous leaks—to reporting on the court.

In the process, Woodward and his co-author Scott Armstrong produced a story of personality clashes, behind-the-scenes manipulations, changing decisions, and hurled obscenities—less the story of a court of law than one of life at court. It was sharply criticized on the front page of the New York Times Book Review on these grounds, as well as on the logic that techniques “well suited to investigation of breaking stories of a criminal nature . . . are entirely unsuited” to the Supreme Court unless there is “a revelation of crime or corruption.”

But later generations of insider reporters sold books using Woodward’s and Armstrong’s methods— despite continuing acknowledgments that these methods uncovered very little new about the court or elicited information that was sometimes outright disproved by the public record. This selling out increasingly took on political colors, since more and more journalists benefited from institutions owing their existence to the national government an increasingly conservative court wanted to curb.

Today, this trend has created a perfect storm of bad journalism when it comes to commentary on the Supreme Court.

In the past few years alone, New York Times Supreme Court commentator and journalistic eminence Linda Greenhouse, as well as longtime New Yorker reporter Margaret Talbot, have explained Justice Alito’s landmark opinion in Dobbs vs. Jackson Women’s Health Organization as flowing from “religious doctrine” and his purported “demographic”-related aggrievement. Greenhouse has contrasted Alito’s approach with Justice Sandra Day O’Connor’s and argued that O’Connor’s centrism was influenced by personal interactions with Justice Thurgood Marshall. UCLA Law Professor Richard Hasen has argued in the Times that Justice Roberts’ recent agreement with Democratic appointees in a Voting Rights Act case is part of his response, “consciously or unconsciously,” to “increasing attacks” against the Court.

The New York Times’ Jo Becker and ProPublica have spent months filing stories implying with no evidence that Clarence Thomas’s social connections affected his rulings. The New Yorker’s Jane Mayer has emphasized derivations of these stories involving Nazi memorabilia, giving life to these anecdotes, which have absolutely nothing to do with legal decision-making.

Of course, in every one of these instances a different, textually grounded, and legally sound analysis is on offer to explain the Justices’ decisions. Justice Alito’s opinion in Dobbs draws from decades of complex, contested reasoning; Justice O’Connor’s centrism was extremely selective and often motivated by either concerns with public opinion or women’s rights; Justice Roberts’ recent Voting Rights ruling was based on a clear distinction between overturning statutory and constitutional precedents; and Justice Thomas’s views both track with and have helped shape the views of the intellectual legal movement he has been a part of for forty years.

But the establishment journalists writing about the Court aren’t interested in texts or legal reasoning. They’re interested in using “scoops” or personalized stories to de-legitimize judicial decisions, and their new aggression in the face of a six-justice conservative majority shouldn’t distract from the fact that many of them have been slowly working up to this pitch for thirty years.

Swamp People

Jane Mayer, who reliably quotes Richard Hasen in her New Yorker pieces, co-wrote a 1994 book accusing Thomas of sexually harassing Anita Hill that even largely supportive reviewers noted “combine[s] reporting with informed speculation.” Later she helped break sexual misconduct claims against Brett Kavanaugh, and broke a story alleging the cognitive decline of Senator Dianne Feinstein, widely castigated by Democrats for her relative centrism, which helped retrospectively justify Feinstein’s being passed over (purportedly by choice) for the post of Judiciary Committee chair in favor of ardent Court attacker Dick Durbin.

Jill Abramson, the former Times executive editor and former colleague of current ProPublica editor-in-chief Stephen Engelberg, co-wrote the 1994 book with Mayer and serves on the Journalistic Advisory Board of ProPublica.

Linda Greenhouse, longtime colleague of Abramson and Engelberg, wrote a complimentary book about Justice Blackmun, the author of Roe v. Wade, before pushing her personalized explanations for the Court’s conservative legal shift on abortion.

Margaret Talbot, Mayer’s colleague at the New Yorker, formerly executive editor at the insider Washington magazine the New Republic, pushed similar explanations about Justice Alito’s jurisprudence that she’d earlier run about his colleague Justice Amy Coney Barrett.

The re-examinations of Chevron deference have energized  journalists in this cohort, since they’re connected not just by employment but often by family, wealth, or education to industries underwritten by the national government that conservative jurists want to shrink. They sit on the same boards, attend the same festivals, participate in the same activities, sit for the same interviews, and run the same agenda. Judging by the written words of people opposed to the current Court, if they can’t push Justice Thomas into a recusal over Chevron, they want to delegitimize the Court’s ruling in the eyes of the public by connecting it to allegations of improprieties against Thomas. Or else they want to persuade the more establishmentarian justices, Roberts and Kavanaugh, to push back against their conservative colleagues out of concern for the Court’s reputation.

Conservatives should take the opportunity of journalists’ coming overreach to tell a different story: not one about the alleged corruption of a single justice, but about the journalistic distortions of a group of reporters who shape the news about America’s laws.

Matt Wolfson, an investigative journalist, writes at oppo-research.com and tweets @Ex__Left.