For the last half-century, Americans have been living, mostly without our knowledge, through a fundamental shift in how we understand the way we’re governed. Though the final arbiter of where power lies in our republic, the Supreme Court, has continued its more-than-two-century role with few shifts in its practices, the way the Court has been represented by the press, another of our system’s vital protectors, has undergone a sea shift.

Quietly and without widespread acknowledgment, Supreme Court reporters have interposed themselves between the Court and the public, thanks to fifty years of changes in establishment journalistic practices which have increasingly made reporters tools of national power. They’ve used misrepresentation and innuendo to obscure information about the Court’s decisions, which should be driving a public debate over what institutions have power in our country. Their moves, buried in the 1970s and 1980s and quietly visible in the 1990s and 2000s, accelerated in the 2010s as the justices’ rulings moved from facilitating to stopping to dismantling national authority. Since the end of 2020, with the Court staffed by six justices committed to this decentralizing project, Court journalism has turned into bad literature that functions to smear the Court.

On January 17, this pushback reached an explicit point of reckoning. That day, the Supreme Court heard two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. US Department of Commerce, that present fundamental questions about national administrative authority, the key driver of centralized power that journalists mostly support. But, for the first time, and thanks to the past nine months of concentrated reporting disseminated on television and online, segments of the public may see the decisions in these cases as tied less to these questions and more to the possibility that one or more justices have been compromised by favors and gifts. Explaining this jarring reality begins with understanding the stakes in the cases and their connection to the Court’s larger legal project; and then investigating how the journalists tasked with clarifying that project have instead come to muddy it, running by stealth their own unaccountable agenda at the expense of the American people.

Chevron and the Evolving Role of the Court

The January 17 cases are important because they deal with a precedent, Chevron deference, that concentrates the arrangements or misarrangements of America’s postwar order of expanding government. It refers to the deference national courts should grant administrative agencies when those agencies choose how to apply Congressional legislation. This is mostly the case where specific legislative wording doesn’t exist or can be read in different ways.

In its 1984 decision which set the Chevron precedent, and especially in ensuing judicial interpretations that solidified it, the Court granted national executive agencies latitude to interpret Congress’s delegations of authority to them, reasoning that the national judiciary had no business weighing in. This had the endorsement of judicial “liberals,” who supported administrative law and continued the Court’s rarely broken tradition of deference to the nationally elected branches. It also had the support of judicial conservatives looking to reorient the Court’s jurisprudence away from centralized government, including at the hands of judges. The Court’s first “originalist” justice, Antonin Scalia, was a supporter of the Chevron doctrine.

But, after the appointment of Justice Thomas in 1991 gave the Rehnquist Court a five-justice conservative majority, the general drift of the Court’s decisions moved against Chevron’s deferential logic. The Court’s impetus was the immediate past: nearly 40 years of rulings by the Warren and Burger Courts that had allowed the national government, including judges, to assume unprecedented powers—often in the name of giving Americans rights and with the help of an amenable Congress, compliant states, and a concerned but inactive establishment. In response to this new normal, the Rehnquist Court acted to limit national government expansion and restore power to states. It struck down, more than any Court before, provisions of national legislation and action, and the Roberts Court followed its lead.

Today, this limiting project converges on Chevron, which has allowed bureaucrats to expand their purview across America at the expense of both states and Congress. In response, conservative jurists and thinkers have shifted gears when it comes to the ruling: they’re now willing to use courts to restrain the administrative state and the national government. That shift will likely determine the Court’s decisions on the January cases.

Such transformative cases should be widely discussed, especially since the Court has been explicit about why it’s making its moves.

Woodward and Bernstein weren’t noble truth-tellers. They were stenographers for government operators looking to keep power by giving journalists scoops to sell copy.

And a thoughtful, serious discussion is possible. Overall, both the nature of the Court and the changing reality of national government give conservatives a strong case. Since national courts are politically-appointed bodies that aren’t directly accountable to the public, they can make democratically legitimate but nuanced decisions to shift power from actually unelected interest groups and administrative agencies that seem to run Washington policy. This is a nonprofit-lobbying-bureaucratic nexus that Chevron has helped make impossible to control, likely against the intent and wording of the legislators who created the framework. Still, Liberals might ask: Do you really trust unelected bodies to weigh in on administrative decisions, potentially creating regulatory chaos, especially since the administrators are experts who use their knowledge to provide important practical protections to Americans on the ground?

Questions like these once dominated popular politics. In the 1870s and 1880s, Democrats and Republicans waged politics around the creeds of Jefferson’s small government constitutional principles or Lincoln’s big government ones. In 1912, Theodore Roosevelt ran on a third-party platform that targeted the Supreme Court as a tool of monopoly interests and argued for giving the Executive more power at the likely expense of judicial review. Why can’t the same kind of public reckoning take place today? In part, because the people reporting on the Court have shifted their professional practices and loyalties over the last fifty years in ways that emphasize gossip and spectacle over law and constitutionalism.

Enter the Journalists

Everyone who’s heard of Richard Nixon knows, acutely or dimly, when the change in journalism is said to have occurred: in 1974, when heroic reporters broke up establishment journalism’s ties to Washington power structures and brought down a president. The date is right, but the story, told by reporters and Hollywood studios, is almost exactly backward. What changed in 1974 wasn’t that journalists stopped serving the interests of power. It’s that they realized that appearing to stand against entrenched interests was a wonderful way to aggrandize themselves, even as they continued to align themselves with power.

One of the first people to recognize these shifts was Renata Adler, a New Yorker reporter who in the 1970s made her beat the law. Watching Watergate and its aftermath, Adler noted the subtext: Bob Woodward and Carl Bernstein had received their tips from anonymous sources within Washington intelligence agencies that Nixon was working to bring under White House control. Nixon’s resignation stopped this project, and, though the aftermath of Watergate dredged up revelations that put these agencies into temporary disrepute, the personalized focus on Nixon (taped obscenities, weeping presidential daughters) and on the journalists’ methods (covert meetings, mysterious tips) distracted from a serious reckoning with the agencies’ power. Regarded this way, Woodward and Bernstein weren’t noble truth-tellers. They were stenographers for government operators looking to keep power by giving journalists scoops to sell copy.

Within a few years, this pattern migrated to the Supreme Court, again at the hands of Woodward, who with Scott Armstrong wrote The Brethren. Billed as the first “insider” report on the Court based on anonymous sources including clerks and some justices, the book didn’t have much to do with the law—but it had a lot to do with the personalities of “the nine.” In her review, Renata Adler identified the book’s basic and pervasive problem: since there wasn’t much to report about a Court whose reasoning was public and whose justices sometimes changed their minds while deliberating over a case, the journalists sold copy through crude personalization. In particular, they used “declarative sentence[s] about [justices’] frame[s] of mind” that by their very nature could never be corroborated, e.g. “Burger was furious,” “Harlan was furious,” “Brennan was furious,” “Marshall’s clerks were miffed.”

Adler’s advice was for reporters to exercise caution: “The only scoop there could possibly be about an institution as public as the Supreme Court would be a revelation of crime or corruption,” making “the investigative reporter’s … obsession with … breaking … secrets” irrelevant. She concluded that, though “the Court … survives” the book’s revelations, “investigative reporting, perhaps, might think again.”

But investigative reporting, and American journalism, didn’t think again. Woodwardism became the dominant approach of an increasingly concentrated media apparatus—including the Court. Practitioners in the 90s and early 2000s included lawyer and government operator Edward Lazarus; CNN and New Yorker contributor Jeffrey Toobin; and future New York Times executive editor Jill Abramson along with future New Yorker writer Jane Mayer. Working off often anonymous tips from Court operators, they produced books that mined the justices’ personal interactions and made them germane to the business of the Court. The lack of serious reporting was noticed by reviewers, even in The Times: “[Toobin’s] buddies on the bench didn’t tell him much we don’t already know”; Abramson and Mayer “combine reporting with informed speculation”; Lazarus tells “memorable” “insider stories” about fisticuffs between clerks.

Still, this approach had effects. By writing the suggestively titled Strange Justice about the politics of Justice Thomas’s difficult confirmation and the lives of the people involved, Mayer and Abramson made the issue Thomas’s political and personal links, not his jurisprudence. By (almost certainly) relying on centrist-conservative Justice O’Connor as his main source, Toobin ended up emphasizing her dramatic steering of the Court on “hot-button” issues like abortion and affirmative action at the expense of her participation in the Court’s unprecedented reorientation towards states, which he dismissed as a mostly failed effort. By writing that Chief Justice Rehnquist tried to delay a decision of a case for partisan reasons and that clerks believed some of Justice O’Connor’s votes were based on a personality clash, Lazarus dramatized personalities at the expense of law using claims contradicted by the public record.

That none of these authors’ portraits favored conservatives is unsurprising, since, like an increasing number of journalists, they came from institutions underwritten by the expanding government that judicial conservatives wanted to pare down. For Abramson, a Harvard graduate, The Times, an inside player with government since at least the 1950s, “substituted for religion.” Mayer, a Yale graduate and (like Abramson) a graduate of the Ivy League feeder Fieldston, was part of the Lehman Family, founders and longtime stewards of Lehman Brothers, which had profited from financiers’ use of debt-backed mortgage funding by government. Toobin thrived at Harvard and CNN, which was filled with a rotating cast of Ivy League-educated government operators. Lazarus graduated from Yale College and Law School and went on to serve as chief of staff on President Obama’s FCC. As the Court became more conservative, these practitioners’ and their colleagues’ ideological bent sharpened. Fused with their new reliance on insider sources, it created something that looked less like reporting and more like bad literature—stories with clear villains and heroes and little to do with the law.

Insiderism and Ideology Converge

A pivotal moment for this trend came in 2018, with allegations first specifically reported by Jane Mayer against Justice Kavanaugh, whose nomination was thought correctly to be a threat to Roe v. Wade. The first claim was of an assault the accuser didn’t remember the location of and which the key witness allegedly on the scene refused to corroborate. This was followed by a claim made after another accuser spent “six days carefully assessing her memories,” of a college party thirty-four or thirty-five years earlier where she said that Justice Kavanaugh had exposed himself to her. 

Over the next years, as the Court became more conservative, stories like these proliferated—reliant on insider sources (always ideal for speculation), and reproduced avidly online or in a CNN clip. Joan Biskupic, a CNN legal analyst and a specialist in often-personalized judicial biographies, wrote that Chief Justice Roberts had offended Court employees by moving the late Justice Ginsburg’s belongings to a “dark, windowless theater on the Supreme Court’s ground floor.” Nina Totenberg, a “founding mother” of government-funded NPR, reported that Justice Gorsuch’s refusal to mask had led Justice Sotomayor, a diabetic, to telework. Jodi Kantor, who wrote what The Times praised as “the first book about the Obama presidency to give Michelle Obama her due” before moving into reporting that helped start the #MeToo movement, co-wrote an anonymously-sourced New York Times report reducing the overturning of Roe v. Wade to tensions between the Court’s male and female justices. The ensuing controversy over sources, accuracy, and balance gave these claims lives of their own which distracted from their fundamental problem: these were sentimental stories, Hallmark versions of Court business, which had almost nothing to do with the content of the justices’ jobs.

Can anything be done to bring fundamental debates about law and power in our constitutional republic back to where they belong—with the American people?

Journalists pushing this line also had cover from commentators linked to the academy. These writers, more grounded in scholarship, might have been expected to defend the Court but, as former New York Times Supreme Court reporter, longtime Times commentator, and Yale lecturer Linda Greenhouse wrote frankly, many came up under “titans of liberal constitutional scholarship” who matriculated in the Warren Court era and “staff and even dominate the nation’s law school faculties.” It was Greenhouse, writing about President Biden’s Presidential Commission on the Supreme Court, who condensed this academic cover into a social strategy. Arguing that the current Court had come a long way from the “heroic age” under Chief Justice Earl Warren, acolytes of whom still hold “fast … to a belief in [the Court’s] ability to deliver fair and workable solutions to the problems Americans persist in laying at its door,” Greenhouse concluded that the Commission “lets the public in on the fact that the legal academy is close to giving up on the [current] Supreme Court.”

Some of Greenhouse’s logic, mentioned in rhetorical passing, is eccentric enough—that Americans “persist in laying” problems in front of a Court they’ve authorized for that purpose; that the “public” should have to be “let in” on what academics in publicly funded universities think. But the reportorial absences are what stand out. She doesn’t seem interested in the fact that the commission included only a tiny handful of self-described originalists, or that two conservative commissioners, including eminent establishmentarian Jack Goldsmith, resigned without explanation. Writing a piece filled with rhetorical signals without referencing these facts while relying on “the legal academy” for support isn’t law or reporting or any other kind of analysis. Its closest categorical corollary is social signaling, and its most basic expression is the playground or the lunchroom, where students collect into “in” and “out” groups around mandates from influencers who ignore what they don’t like and promote what they do.

But last year, academic and journalistic errors were taken to a new level. Renata Adler had written that “the only scoop there could possibly be about an institution as public as the Supreme Court would be a revelation of crime or corruption.” In 2023, reporters took this not as a warning but an invitation. Reporting on Justice Thomas and spin-off reporting on other justices has invented the corruption, using techniques perfected over fifty years: speculation about the justices’ personalities and lives, where connections to the law are supplied by the suggestive statements and unsupported opinions of anonymous and named sources. This technique has culminated in purported connections between Justice Thomas’s changing view on Chevron—which matches the change among conservative justices, centrist conservative justices, scholars, state legislatures, and state courts—and his social relationships with wealthy conservatives.

But, over multiple stories in ProPublica and Times reports by Jo Becker, another specialist on the personality beat, no causal link between the justices’ rulings and their social and personal lives has been uncovered. What revelations exist are either unconnected to Court rulings, involve tenuous links between the justices’ outside associations and cases in front of the Court; or are entirely personal. For instance, one ProPublica piece released before the start of the current term sought to make a connection between Chevron and Justice Thomas’s attendance at retreats attended and hosted by people who lobbied to overturn it, noting that attorneys from one of the nonprofits supported by these people would be pleading one of the January cases. An example of Justice Thomas making actual law, with a recent vote in the name of state sovereignty against the very corporate interests that might welcome Chevron’s dismantling, has gone unmentioned in the reports or ensuing coverage.

It’s not surprising that the driver of this reporting is ProPublica. It was founded with profits from government-backed mortgage securities, a product of the deficit spending conservatives want to reduce. It is run by Stephen Engelberg, an old Times colleague of Jill Abramson’s who was involved with two bombshell series characterized by anonymous government sources and doubtful insinuations. And it is advised by boards that include or have included Abramson and well-regarded liberal or progressive academics with centralizing political agendas. Whatever these actors and their allies are producing, it isn’t journalism. Instead, as the justices work seriously to explain themselves, the journalists are out for a scoop that will protect the institutions that made them.

Can Constitutionalism Come Back to the People?

In the face of this status quo, can anything be done to bring fundamental debates about law and power in our constitutional republic back to where they belong—with the American people? Against reportorial distortions so extreme, by insulated and unaccountable institutional journalists promoting a new generation of believing practitioners, is it possible to course correct?

If it is, the impetus won’t come from the top; and, though the law is not an inherently partisan endeavor, it will likely come from a particular political side. Over fifty years, as legal journalists and academics have come to support national power and its outgrowths, they’ve given favorable coverage to liberal legal theories and Democratic legal appointees. But two areas of resistance have developed aligned with the Republican Party: a pincer movement whose sides have yet to meet.

One, which developed around the time journalists like Woodward started misreporting the Court, is made up of dissenters from within the legal academy: most famously, students and professors who formed clubs that became the Federalist Society to push back against legal theories that the Warren Court’s academic acolytes used to support its rulings. Though no single intellectual movement has had such a tangible effect on politics and academics, the Federalist Society remains, to some degree, popularly limited. Thanks to the trickle-down authority of establishment legal commentators, its main mode of analysis, “originalism” is popularly understood as “going back to 1787” rather than what it functionally is: a theory that stakes out a broad range of specific legal tenets to constrain concentrated power. The deeper principle behind this purpose also remains under-appreciated outside professional practitioners: that liberal jurists’ project of creating nationally guaranteed rights at the expense of the Constitution’s structure of divided powers, aggrandizing the judiciary and administration over representative bodies, amounts to creating “parchment guarantees” of an unconstrained government that can remove them at any time.

The other side is made up of the popular associations that have formed the heart of resistance to concentrated administrative and judicial power since the 1970s like the Eagle Forum, the NRA, Moms for Liberty, and others: organic, organized associations developed or mobilized in response to widely shared problems on the ground. These groups are the most influential and popular political vehicles of their day. But their problem is the opposite of academic constitutionalists’: They’re often dismissed as culture war wagers, making their priorities easy for some to disparage, when in reality their project boils down, explicitly or not, to the constitutional one of who has power—experts funded by national and state agencies who seek to expand their control over family life, religion, and self-defense? Or representatives in legislatures serving the will of the people?

Deeper connections between these groups could disseminate small-government constitutionalism through political organizing and candidate debates, X posts, and podcasts, that would help clarify the stakes of popular politics—forcing the other side to respond and make the debate once again, to some degree, about how we allocate power in our republic. Speaking historically, the foundations of robust constitutional debate until 1910 in this country were not national institutions but popular, partisan, public associating helped by political newspapers and framed by politicians who knew the law and applied it to the questions of the day. These networks functioned to promote what the constitution’s creator, James Madison, called “public opinion”: the sifting of ideas and debate from the ground up in an extended republic. Our new journalistic normal is both a cause and a symptom of the loss of that older reality and of the possibility it offered for genuinely deliberative self-government.