This is a part of Disorder in the Court, a weeklong series on the legal press and the most explosive Supreme Court in generations: how we cover it, how we’ve failed, and how we can do better.
You can write that the Supreme Court is delegitimizing itself only so many times before you’ve made yourself ridiculous. If the high court is not in fact behaving in a fashion that makes its decisions respected, the real question is: Why are we all zealously watching and reporting on its decisions as though they are immutable legal truths? Why are we scientifically analyzing every case that comes down as if it holds value? The obvious answer is that these decisions have real consequences—something the past year has showed us far too graphically. But if the Supreme Court is no longer functioning as a real “court,” why are we mostly still treating its output as if it were simply the “law”?
In some sense, the answer is that the Supreme Court’s power and prominence is mediated by the journalists that report on the institution, and we as journalists rely on the court for legitimacy and prominence in return. Someone has to translate legalese to the public. But the way journalists report on the institution—mostly by explaining the “law”—has set incredibly circumscribed boundaries around how the court’s political activities are viewed. The Supreme Court press corps has been largely institutionalized to treat anything the court produces as the law, and to push everything else—matters of judicial conduct, how justices are chosen and seated, ethical lapses—off to be handled by the political press. That ephemera is commentary; the cases remain the real story.