SCOTUS hiding in plain sight

The best Supreme Court coverage (and coverage of any story, for that matter), is not without nuance—it’s true that some liberals have seen cause for hope in Barrett’s record, that some Trumpers (including, apparently, Trump himself) have been frustrated by it, and that there is at least some statistical grounding for such conclusions, according to The Columbia Journalism Review. Ultimately, though—as the Times journalist Jodi Kantor, who wrote the story with the aforementioned “confounding” headline and statistical analysis earlier this year, noted in a recent write-up of Barrett’s sit-down with Weiss—Barrett has almost never voted with the court’s liberals in “major cases.” And while her book tour is taking in mainstream outlets, Willis argued last week that she will mostly sit before friendly interlocutors. Barrett appears to understand “the particular political and ideological persuasions of people” who are willing to pay for her book, Willis wrote. “A publicity tour that kicks off with an exclusive excerpt in the Free Press is a publicity tour designed to appeal to people who approve of this Court’s agenda, and are glad to express their appreciation by opening their wallets.”

That’s a shame because, perhaps now more than ever, there are sharp questions for the justices to answer. Recently, the court has faced a slew of criticism for enabling Trump’s agenda—parts of which would appear to be out-and-out illegal—not least in a major ruling, for which Barrett wrote the majority opinion, that a majority of justices used to curtail the ability of lower courts to issue sweeping injunctions while failing to address the substance underpinning the case at hand: Trump’s blatantly unconstitutional order unilaterally ending birthright citizenship. At least in that case we got a clear rationale—the court has also recently been criticized for overturning rulings against Trump on its so-called “shadow docket,” sometimes without so much as a word of explanation. Last week, in a sight even rarer than Supreme Court justices sitting for media interviews, ten federal judges complained anonymously to NBC News that such behavior has not only left them struggling to divine the court’s will, but allowed for the impression that the justices think they’re a bunch of anti-Trump hacks. Over the weekend, Stephen Breyer, who retired as a justice in 2022, made an unusual public intervention defending a lower-court judge who had been rebuked from the bench for supposedly failing to follow Supreme Court precedent. Any criticism from Breyer was predictably indirect, but various prominent commentators have been more forthright. Last week alone, The New Yorker’s Susan B. Glasser described the court as “Trumpified,” while Politico’s Ankush Khardori and Ezra Klein, of the Times, both attested to its extraordinary “deference” to Trump. Kate Shaw, a legal commentator and recent guest on Klein’s podcast, said that the court has, among other things, essentially allowed Trump to “refuse to spend money appropriated by Congress, remove heads of independent agencies protected by statute from summary firing, fire civil servants without cause, dismantle federal agencies, [and] call up the National Guard on the thinnest of pretexts.”

On the same episode of his podcast, Klein opened by referring to a widely shared essay that he published in the early days of this administration, making the case that observers shouldn’t take Trump’s various shocking actions at face value since, in doing so, they risk rhetorically imbuing him with powers he doesn’t have. Klein’s admonition was not aimed specifically at members of the press, but I noted at the time that it clearly applied to us; I broadly agreed that the media shouldn’t treat Trump’s power grabs as a fait accompli, but also noted a complicating factor: that time and again, Trump has been able to get away with things he really shouldn’t be able to do. One example that I cited was credulous coverage of the birthright citizenship order; fast-forward six months and Trump has not succeeded in implementing it, but neither has the idea been dismissed out of hand. Returning to his earlier essay last week, Klein noted that, for a time, his “bet looked sort of right,” with the courts intervening to curb Trump. The Supreme Court, however, has since reversed that trend.

A potential silver lining of this development, Klein argued, is that “maybe we’re not going to have the constitutional showdown many feared.” I also wrote about this fear in the early days of the administration, as talk of a “constitutional crisis,” and debate as to whether the US was in one or not, crested in the media; some experts argued that we were already at that point, with the administration appearing to have defied certain lower-court orders, but others cautioned that the sort of big-bang institutional conflict—the Supreme Court telling Trump to do something and him saying “make me,” for instance—that would signal a true crisis had yet to arrive, and straight-news reporters seemed reluctant to definitively use the term in their copy without attributing it to someone else. Since that moment, the debate seems to have quieted down somewhat, though from time to time, it gets revived. Search for the words “constitutional crisis” this morning, and the top results are all about Barrett: last week, Weiss prompted her to weigh in on the debate, and she dismissed the premise, adding, “I don’t know what a constitutional crisis would look like.”

Barrett did then offer up a definition—“We would clearly be in one if the rule of law crumbles,” she said, “but that is not the place where we are”—but her initial skepticism was actually sound: the concept of a “constitutional crisis” is nebulous, so much so, I argued earlier in the year, that the media coverage organized around it risked coming across as fussy, at best, unhelpful at worst. As some journalists did point out at the time, a constitutional crisis need not be ushered in by a big bang to be a crisis: one wisely noted that the idea exists as “a slope, not a switch”; others suggested that the court rubber-stamping Trump’s behavior might represent an even graver crisis than all-out conflict between the two. It is, to be sure, still early in Trump’s second term, and the court has yet to substantively weigh in on a whole host of matters. But it seems peculiar to me—even if I didn’t love the initial constitutional-crisis news cycle—that the volume seems to have been turned down now, given that, by really any credible definition, such a crisis is now here. (Whether the rule of law has yet “crumbled” is, perhaps, debatable, but the administration weaponizing it to go after its bêtes noires looks pretty crumbly to me.) Klein declared over the weekend, in a compelling essay headlined “Stop Acting Like This Is Normal,” that we have already entered the “authoritarian consolidation stage of this presidency.” Inconveniently for a media industry that organizes coverage around defined “news pegs,” perceived novelty, and breathless “BREAKING NEWS” hype, such phases can be murky and repetitive and don’t always announce themselves explicitly (though Trump, a master of hype, announces his true intentions all the time). Many media critics have taken the press to task for not communicating the gravity of the threat with sufficient urgency or honesty. So far in Trump’s second term, I’ve been hesitant to endorse that conclusion, at least in its less nuanced forms. But it increasingly feels inescapable.

My hesitation was mostly grounded in the fact that it was still early, and in the clear-eyed coverage that I felt I had seen so far. But the latter often felt delayed itself, after years of more or less complacent media treatment of the institutional threat of Trumpism. And this observation did not apply only to Trump and his movement—as I wrote earlier this year, I also found the constitutional-crisis debate to be unhelpful because it risked obscuring the ways the US constitutional system might have been in crisis already, no few of which have been downstream of the flagrantly political conduct of the Supreme Court. Naive coverage of that conduct has been one form of long-running media complacency. There have been signs that such coverage has grown more hard-headed in recent years, though here, too, pinpointing a “big bang” inflection point is difficult. The death of Antonin Scalia, in 2016; the ruling overturning Roe v. Wade, in 2022; and the growing scandal around justices’ extracurricular entanglements, in 2023, could all plausibly stake a claim. But none marked a total rupture with the media practice of putting justices on pedestals.

On CBS yesterday, there were moments to like in Norah O’Donnell’s interview with Barrett; on the whole, O’Donnell teased out at least some of the tension between the public’s increasingly political conception of the justices and the justices’ explicitly apolitical conception of themselves. Equally, however, it was possible to imagine a much more aggressive version of the interview that would have better met this moment—albeit, perhaps, not one to which Barrett would have agreed to subject herself. At one point, O’Donnell pointed out that Barrett is a “scholar of the Constitution” before reading her a section on the power of Congress to levy tariffs. “You’re a scholar of the Constitution, Norah,” Barrett replied, with a beaming smile. “You’re making me one,” O’Donnell laughed. In this exchange, Barrett was dodging a question that O’Donnell was right to put to her. Numerous bigger questions about the state of that Constitution, sadly, went unasked.

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