Slate’s Dahlia Lithwick on What’s Wrong (and Right) With the Media

Dahlia Lithwick. Photo: Jack Looney

You said recently, in a piece about Merrick Garland, that the secretive nature of the Supreme Court, and the fact that it’s sort of built of paper, can make it hard for stories about the court to compete with stories about subjects like Donald Trump’s tiny hands — in terms of attracting readers. How do you think that affects the way that you and other SCOTUS reporters cover the beat?
I really feel like the answer to that is, ‘Welcome to my breakdown,’ Nick. This Garland thing should be front-page news every day; it’s arguably a constitutional crisis. And it’s not a front-page story; you can go for days and days without hearing anything about it. And then I think, in a weird way, it’s become a story about how successful you can be at just complete obstruction, because people don’t care. And then when that’s the story, it’s a meta-failure. So I always say that it’s fascinating to me that when there’s a confirmation hearing, they send political reporters to cover it, and not Supreme Court reporters. Or they’ll send one Supreme Court reporter and eight political reporters, because it’s a political story.

I think that Merrick Garland has fallen into the sort of well between political reporters and court reporters. You’re seeing almost no stories about the Garland vacancy, because it feels like it’s not a court story, it’s a political story. And yet nobody on the Hill is super-interested in this as a political story.

But I do think the sort of depressing answer is, it’s just not interesting to people. And in a weird way, if Merrick Garland had been an African-American, out lesbian, whatever, this would have been a story. I snottily said on The Daily Show recently I think Kim Kardashian would have had a hearing by now. She just would have — the fact that she’s not a judge notwithstanding. And I think, in a completely personality-driven media moment, this is a process story, and it might have almost been an interesting process story if we’d had a personality-driven confirmation narrative, but we don’t. We have a 63-year-old, eminently qualified white guy, and while it is as equally shocking that he’s not getting a confirmation as it would be for Khloe Kardashian — I just think that materially affects interest, and it materially affects what there is to say.

Do you think the need to find man-bites-dog stories or other weird/provocative details that will catch readers’ eyes shapes court coverage in a general way?
I certainly think it’s killing journalism. Where I see it on my beat is with something trivial, like Justice Scalia asking a question in the affirmative-action case that was clearly artless and certainly not well phrased, but wasn’t him saying black people are stupid — and then that’s the thing that gets tweeted out. That becomes the narrative of that case. When such things happen, I get worried about “The Five Biggest Slams of the Scalia Dissent.” You know what I mean? The listicles. It’s better than nobody reading anything about the cases, but it does do violence to the larger project of, “What is this case about? Why does it matter?” Your eye is just going to the Scalia slam. It’s just going to go to the six most romantic things in Justice Kennedy’s gay-marriage opinion. But I’m not sure that people come away from those things knowing a lot, other than that Scalia’s an asshole. May he rest in peace … I’ve spent 17 years trying to get people to care about the court, and I’m certainly a perpetrator of the “Deploy humor! Deploy metaphors!” strategies. And so I can’t complain about it, because I do some of it. But if all you focused on in the affirmative-action case was that one Scalia question, which was not characterized accurately and which tells the story of how awful Scalia is, then you’ve missed both what the case is about and what the court is doing.

Whatever this case was about, it wasn’t about “African-Americans are stupid.” Put the blame on Scalia for saying it in the most horrible fashion, probably on purpose, but also put the blame on that tendency to tweet fluff before it happens. And one other thing. When the only thing that’s consumed is the one-day tweet and the listicle and the “Seven Awesome Slams From the Obergefell Dissent,” then there really isn’t time to do the piece that we need to do, which is, “Hey, I read all 80 pages of the opinion, and here’s what it means, and here’s why it matters, and here’s what the district court has to do going forward” — all of that disappears. I had colleagues who, a day after reading King v. Burwell, the big Affordable Care Act case, when they had time to file a really deep-dive, thoughtful story, they were told, “It’s all played out. We had this conversation.” I just think that’s the other piece of it. It’s not like there’s no cost to doing the listicle, because then it’s like, “We feel like we covered the case!”

One of the great revelations of my beat, when I started covering it in 1999, and I could really say what I felt, and I didn’t have to give equal time to bad arguments on one side, was how much my colleagues in the press corps would be like, “Oh my God, Dahlia, don’t forget to say this.” Like, “Don’t forget to write about this.” Things they couldn’t put in their pieces. I used to always be like, “No, you write it, damn it. If we all agree that that’s what happened here.” I think it’s a particular form of the same kind of fashionable thing, that you can’t say, “And this case is rooted in a stupid idea that somebody made up in a speech.” When your colleagues are like, “Ugh, I can’t believe this is even in court,” and then they write a piece that’s like, “In a spirited debate, both sides …”

What else troubles you about what you do for a living?
I don’t like about my beat that we cover it case by case. If I could reinvent this beat completely, I would say, “Let’s have a doctrine beat that says, ‘What happened in those Seattle school cases where they did away with the busing? Did the cities resegregate? Did they not resegregate?’ ” We are so bad, with very few exceptions, of doing the “Five years later, what was the impact of those affirmative-action cases?” It goes to the basic attention-deficit disorder. It goes to what I said at the very beginning with Merrick Garland: We can only make things exciting if they’re, like, happening in front of us with funny hats.

But there is an amazing amount of work to be done on “How did the Supreme Court decision five years ago change everything? How did Citizens United change everything?” And we almost never do that. And I can’t fault the beat reporters who are in the court, but I certainly fault myself. There’s no reason that I can’t sit down and do a piece about “What did Citizens United change? What did it not change? What about the super-PACs? Where did the dark money go?” Those are Supreme Court stories too. And related to that is we all do these curtain-raiser pieces the first week of October: “These Are the Seven Cases to Watch This Year.” And we all sort of pick the same cases, and they’re often the affirmative action, guns, whatever. And I think we often miss some really important ones in those lists. And then it becomes sort of self-fulfilling: “Oops! We forgot to talk about this case, but it changed everything.” Some of the cases that have done away with protections in arbitration cases, things that really affect readers on the ground. Those cases are not sexy. A lot of the environmental cases, I’d say. They really affect many more people than, like, even gay marriage — these cases that seem like they’re the most important cases of the year. I think they become symbolic cases, and that’s important.

But we forget to cover the business cases, the regulatory cases, the Clean Air Act cases, that really affect every single person in the country in a deep way.

Do you feel like the way Garland’s would-be appointment has been handled by the press has given cover to Mitch McConnell and the other Republicans?
I think so. I think that if you consider that McConnell & Co. are saying, “Eh, you could have eight justices or nine justices. It doesn’t really matter.” And we’re kind of reporting as if that’s true … or the fact that the work of the Court is so mystifying and invisible that people can’t figure out why it would matter if were shorthanded — all of this dovetails so neatly into the narrative that this can’t be that big a deal because nobody’s writing about it, and nobody’s writing about it, so it doesn’t seem like that big a deal. But I think it’s entirely self-reinforcing.

The Transcripts: A Master Class in What’s Wrong (and Right) With the Media by Those In the Know

Dahlia Lithwick on the Media