Podcast / Contempt of Court / Jul 25, 2023

If You Want to Reform the Court, Reform the Media, Too

On this episode of Contempt of Court, Melissa Murray and Elie Mystal reflect on how the media discusses SCOTUS.

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Reform the Media | Contempt of Court with Elie Mystal
byThe Nation Magazine

The court ended its most recent term completely off the chain. Having already killed reproductive rights, it accomplished another longstanding conservative goal: banning affirmative action in college admissions. That's not even the half of it.

And yet, a lot of the mainstream media coverage suggested that the Court turned *moderate* and worked hard to achieve a mainstream consensus.

Why does the media keep feeding us this bullshit? Let’s talk about it.

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A television monitor shows Ketanji Brown Jackson, nominated for associate justice of the US Supreme Court by President Joe Biden, during a Senate Judiciary Committee confirmation hearing in Washington, D.C., on Wednesday, March 23, 2022. (Al Drago / Bloomberg via Getty Images) (Al Drago / Bloomberg via Getty Images)

The court ended its most recent term completely off the chain. Having already killed reproductive rights, it accomplished another longstanding conservative goal: banning affirmative action in college admissions. That’s not even the half of it.

And yet, a lot of the mainstream media coverage suggested that the court turned *moderate* and worked hard to achieve a mainstream consensus.

Why does the media keep feeding us this bullshit? Let’s talk about it.

[00:00:00] Elie Mystal: In case anyone has forgotten why Supreme Court reform is so critical, let me remind you that the court ended its most recent term completely off the chain. Having already killed reproductive rights, it accomplished another longstanding conservative goal banning affirmative action in college admissions.

[00:00:18] Of course, that wasn’t all. The court went full Republican and damaged gay rights and the right to strike. It took shots at the environment and it overturned President Joe Biden’s Student Debt Relief program just to show that the court sets policy in this country, not the President or Congress, and yet a lot of the mainstream media coverage suggested that the court turned moderate and worked hard to achieve mainstream consensus this past term.

[00:00:49] Why does the media keep feeding us this bullshit? Let’s talk about it.

[00:00:58] Welcome to Contempt of Court, a podcast by the nation sponsored by the New Press. I’m Ellie Masal, the Justice Correspondent for the Nation. Today I want to talk about the unreasonable things the court is doing and why some in the media are so invested in pretending that the court is being reasonable.

[00:01:15] I am joined by maybe the best possible person to think about this issue.

[00:01:20] NYU Law professor, former Dean of Berkeley Law. TV, law Talk and Superstar Professor Melissa Murray. Professor, how are you?

[00:01:32] Melissa Murray: I’m well. Thanks so much for having me on Contempt of court.

[00:01:35] Elie Mystal: Thanks so much for stopping by. Um, let, let’s start with this look in the face of the court’s, kind of surprising decision.

[00:01:46] Not to completely obliterate the Voting Rights Act and the decision not to completely obliterate democracy itself. Many wrote that the court was tacking back to the center and tacking back to the mainstream. You as much as any other human alive right now resisted that narrative. Can you talk about why?

[00:02:09] Melissa Murray: Sure. Um, I, I will also just say like, in the wake of the Supreme Court term, it was such a bonkers term that I felt compelled to leave the country and to go to Ghana and, um, like walk in the footsteps of the ancestors because the ancestors really took a hit with this court this year. And, and we can talk more about that, but.

[00:02:28] You’re right. There were a number of people in the media who heralded a couple of these decisions. Um, Alan versus Milligan, the voting rights case, for example, Moore versus Harper about the independent state legislature theory slash fan fiction slash fever dream. They harolded the fact that the court did not literally jump off the abyss, um, or.

[00:02:49] Sorry. They heralded the fact that the court did not literally jump off the precipice into the abyss as some sign that this court was moderating itself, that it was somehow chastened after last term. And to paraphrase, justice Scalia, don’t you believe it, right. So the term itself is indicative of how this court is.

[00:03:10] Not chastened at all. Right? So typically when you have a blockbuster term, like October term 2021, where the court overruled Roe versus Wade and also expanded the right to bear arms and limited um, or not limited, expanded religious exercise, but limited the establishment clause, you normally see a court tacking back the following term like maybe.

[00:03:33] A more muted term, less big ca less blockbusters, um, and more just sort of anodyne boring cases. But that wasn’t what we saw. Like the court came out of the gate hot to trot affirmative action on the docket. Biden’s student loans the right to strike all of this stuff, and they. Pretty much made clear that it was going to be another barn burner of a term, and if they had their way, they were gonna burn it all down.

[00:03:58] And they kind of did, with the exception of these two glimmers of hope. And the media went crazy for these two cases. Um, you know, I was on m MSNBC and one of the, uh, correspondence, you know, like the court has saved voting rights. And I was sort of like, what? Like that’s the narrative. That can’t be the narrative.

[00:04:18] Um, The court didn’t say voting rights. I can understand why someone would say that because in that moment when we had all been talking about what the court was likely to do to the Voting Rights Act in section two, the fact that they didn’t do it, it was a win for sure, and I will be very clear. Ross Ell of the NAACP Legal Defense Fund, who argued this case before the Supreme Court was arguing uphill and it wasn’t obvious he was going to get a victory.

[00:04:44] So good for him. For securing the bag and getting that victory when it wasn’t always clear that that was going to happen, but this was nothing more than what democracy deserved, right? The. The racial gerrymander that was evident on the face of these maps that were challenged under section two was so glaring and obvious that it couldn’t have been a better case to press under section two of the voting rights.

[00:05:12] Like it reminded me a lot of a case from a couple terms ago, um, flowers versus Mississippi, which was a Batson challenge, where the Mississippi prosecutor literally got rid of. Every single black person available to be on the jury and someone sued him for discrimination and the court was like, yeah, that might actually be discrimination.

[00:05:31] It’s like the most egregious forms of racism they will acknowledge are egregious forms of racism. And so, you know, again, I don’t think they should get points for. Merely ratifying the obvious and and more importantly, I don’t think they should get points for saving democracy when in fact this court on the shadow docket actually allowed those gerrymandered maps to go into effect, and they were used.

[00:05:59] In the 2022 midterm election, and that might have given the House of Representatives to the Republicans. So this court had already done its mischief, it had already seen the gains of its mischief, and then it kind of just pulled back a little and we all heralded them as heroes. And I just say, no, that’s, that’s not a heroic decision.

[00:06:20] Um, it’s a great victory for voting rights. And for these embattled organizations who have suffered so many losses over the last couple of years at the hands of this court. But it was merely the court doing what democracy demanded and deserved.

[00:06:35] Elie Mystal: If the, the analogy that I’ve made is if I kidnap a school bus full of children, right.

[00:06:40] And I, I kidnap the children, I hijacked the bus and I drive the bus full speed towards a cliff. And then right at the end I stop the bus stop. Yeah. Like slam on the brakes. Right. And I get off the bus. What doesn’t happen is that the police hail me as the savior of a school bus full of children. Right. I don’t get to go to the White House and get a metal pinned on me for saving the little kitties.

[00:07:04] Right? Like I get prosecuted for kidnapping them well and

[00:07:08] Melissa Murray: attempting murder, murder, almost driving them off a cliff. Yeah. No, I mean, I, I think that’s right and I think that’s how we should think about it. Um, but I do think there is a media that very much wants to believe that. There is a limiting principle and, and maybe the limiting principle is the court’s own sense of what it can get away with, but as I keep saying, like this is a conservative super majority, and when you have six, they let you do what you want and this court is not going to stop as long as it has six conservative votes in the bag.

[00:07:38] Elie Mystal: Yeah. When you have six justices, you can grab him by the whatever. Um, right. Like that’s, that’s the world we’re living in. Melissa, why do you think that is? Why do you think that there are so many in the media, which you and I, you know, we’re, we, we, which we pretend we know, we play lawyers on tv. Like, why do you think there’s so many people in the media who are invested in the narrative that the court is moderate, that there is a limiting principle that the court can be reasoned with, even in the face of continued evidence that they’re not.

[00:08:11] Melissa Murray: So, you know, I do think this is a problem that’s mostly evident in print media, and that’s only because I think television media doesn’t cover the court as much as it should.

[00:08:23] Right. So, you know, it’s not because they’re doing like an especially bang up job of it. I, I just don’t think the court registers in television media as forcefully as it registers for print media. And, you know, there are at every major newspaper, every national newspaper, certainly someone who is on the Supreme Court beat.

[00:08:40] And you know, I think those people very much wanna believe in this Chassin court. And I think it’s easy for them to believe in it, in large part because I. You know, I think they may not have as much at stake in what the court does. It’s a very homogenous beat. Um, lots of men, lots of white men, a handful of women, very few people of color, and when much of what the court is doing is rolling back the 20th century where women and people of color made the most forceful gains.

[00:09:12] I think if you don’t have those people covering the beat, you could miss what’s at stake for the millions of people who are going to be affected by the court’s decision. And it’s very easy to sort of fall into the trap that the court is somehow tacking left or tacking to the center. Um, even when there’s very little evidence of that is the case.

[00:09:32] Elie Mystal: I mean, I, I, I cannot emphasize enough how white this beat is, right? Um, the people of cover of color who cover the court, and I don’t just mean like, you know, the people of color who, you know, report on politics and then sometimes get a court story kind of rolling across their desk. I mean, the people of color who are employed primarily at a mainstream media organization to cover the court, like it’s their job, don’t exist.

[00:10:02] Pretty much every court watcher who’s who, who’s, who’s a person of color is gonna show up on this podcast because

[00:10:10] Melissa Murray: Yeah, it’s a fair, I mean, like, there, I think, you know, there’s, um, there’s Kimberly, there’s there’s Atkins store. Um, for sure. There are a couple of women who I think do a bang up job, like Linda Greenhouse has always held the court’s feet to the fire.

[00:10:22] Um, I think Dahlia Lithwick does an amazing job. Marches have absurd. I don’t know that I would call. Slate Legacy Media and the way I think of the New York Times or the Washington Post, but maybe I should, um, maybe that’s my own, you know, bias and predilection. But I think if you think of those sort of legacy newspapers, like the Gray Lady, the Washington Post.

[00:10:41] You know, the people covering the court. Um, I, I think it is a relatively homogenous group. I think it’s changing. Um, you know, Abby Van Sickle, who is a former Berkeley law student, um, is at the New York Times. I think that’s a really great development for that beat. Um, I think Anne Marimow at the Washington Post does a terrific job as well.

[00:11:01] But more of that, and you can go further and, and I think people who. Recognize that the court’s decisions actually have real time impacts on certain constituencies, like immediate impacts. I mean, we just saw that decision in 3 0 3 Creative, like what, a week and a half ago, and now there’s a hairdresser in Michigan.

[00:11:22] He’s like, I’m only gonna. Provide normal haircuts to normal people. It’s like there’re gonna be a lot of really farkakte haircuts in Michigan because like, I, I don’t like what, what is normal under these circumstances? Like, and, and like, why would the court ever open the door to someone saying like, I’m just not gonna serve people because I think they’re not normal. They’re nonconformist in some way.

[00:11:44] Elie Mystal: And you’re touching on a point that I, that again, that, that would be made more if. Um, white cis hetero men were not kind of in charge of all of our coverage. And that point is the idea that the solution to public humiliation and indignity must needs be to lawyer up.

[00:12:06] File a lawsuit, wait five years and hope that maybe Neil Gorsuch, um, looks kindly on you, is not an idea that works in a right space country. Right? And so I think, you know, when, when I hear white guys read it back to me, What I always hear are things like, oh, the market will provide, the market will fix these things out.

[00:12:27] Or, or you can just go to another salon. You can just go to another web designer stuff. And it’s because these people, it’s because these people have never been denied services, right? It’s because these people have never been in this store where the person has walked behind them. You know, reminding them that they can’t afford anything in the store.

[00:12:44] It’s because they never have to worry that they will go into a Panera and not be able to get a fricking sandwich because of the color of their skin. And when you don’t ever worry about that, when that’s not real to you, then these Supreme Court decisions are also. A level of remove from your real life.

[00:13:04] You can think about them as a theory, you can think about them as a game. Cause it’s not gonna impact you on Saturday when you go to the Starbucks.

[00:13:13] Melissa Murray: No, I, I I think that’s right. The immediacy, the visceralness of the impact. It, it’s not there. I mean, I don’t, which is not to say I don’t think people can’t be compassionate or empathetic in some way.

[00:13:24] Um, but I, I do think when you understand the stakes fully, I. Because you live that life, you can bring a kind of immediacy to your coverage that articulates those to everyone who isn’t necessarily experiencing that. And I think that’s what’s missing from the coverage. The other thing I think I’ll say about, you know, the sort of, I.

[00:13:43] Penant for an deep investment in this idea of a 3 33 moderate court, is that in some ways there are three sets of constituencies on the court. I mean, there’s definitely the three liberals. Mm-hmm. But even among the six conservatives, there is like the sort of weird internee scene warfare that I think might be characterized as.

[00:14:07] Bush era conservatives versus Trump era conservatives. So, you know, I would group the Chief Justice, Amy Coney Barrett and Brett Kavanaugh in that bush conservatism bucket. And that’s perhaps unsurprising since those guys actually did work, works on Bush’s legal, um, legal team when he was trying to rest the presidency from Al Gore.

[00:14:29] But I think Thomas. Alito and Gorsuch, to some extent are more firmly footed in the Trump camp, which it’s not to say they were appointed by Trump, but that the sort of ascendant, conservative legal movement that really came into full flower in the Trump administration is the vision of modern conservatism and ju jurisprudence that these guys have always subscribed to, and it’s now found expression in the jurisprudence of this court.

[00:14:52] And what you’re seeing as moderation, if you will, is really just a kind of. Inter-family conflict about whether we’re gonna be Bush conservatives or whether we’re gonna be Trump conservatives.

[00:15:05] Elie Mystal: I, I, I agree with you. Except for Barrett. I think that Barrett is Barrett.

[00:15:10] Melissa Murray: She, she may straddle the

[00:15:11] Elie Mystal: line bar. I think she may straddle the line that Barr talks like a bushy, but votes like a Trumpy, right?

[00:15:15] Like she, she,

[00:15:16] Melissa Murray: not all the time, cause like there are times when I think she’s like, you know, very much side eyeing Sam, side eyeing Sam Alito. And that could just be because she’s like, like you hate women. Um, and I don’t know, but like, I mean she’s had some very sort of, Pointed aside at Alito in her separate writings.

[00:15:32] Um, but I think you’re right. Like she could go either way. Um, I will say one thing about her is that she is incredibly cagey. You cannot predict I. Her behavior based solely on what she does at oral arguments, because there have been so many oral arguments where, you know, you’ve listened to her, you’ve listened to the questions, you’ve listened to her responses, and you’ve like, okay, maybe she’s reasonable.

[00:15:53] Like, nope, nope, she’s actually not. She is, she’s totally in the bag with the other guys.

[00:15:56] Elie Mystal: I, I don’t wanna be quoted on this as I say this live on the podcast, um, but I’m pretty sure that there was only one case where both. Roberts and Kavanaugh were in the dissent. That has led to media coverage. That’s all about, oh, Roberts regains control of the court.

[00:16:16] But the thing that people are missing is that once again, it, this is Brett Kavanaugh’s court as much as anybody, he is the swing justice. So I want to, to the extent that there is one, so I wanna get your opinion on Brett Kavanaugh’s Concurrences.

[00:16:34] Melissa Murray: So, I think Ruth Marcus’s book, Supreme Ambition is perhaps the best psychological portrait of Brett Kavanaugh that we have to date.

[00:16:44] And I would highly encourage everyone to read it. Um, this is a guy who wants to be liked. And, you know, I, I say that having experienced it, like, I mean, I like, as I said in my testimony at his, um, confirmation hearings, I’ve had lunch with him and dude wants to be liked and that’s not a crime. Like lots of people wanna be liked, but I think you see it come across in his separate opinions, like as an initial matter.

[00:17:07] These separate concurrences that he writes are rarely ever substantively useful. They don’t advance the ball in any way. They’re just like, a lot of times they just repackage and. Synthesize other cases, things, as colleagues have said at one point, this, this term, he issued a concurrence that literally had bullet points that I was like, like I literally copied and pasted all of this from someone else’s work.

[00:17:28] Um, it was just like the most mediocre thing you could possibly do. So they’re not especially substantively interesting. They don’t advance the ball in any way. But I do think what they do is. Frame him consciously in the eyes of the public as someone who is more reasonable. Like in the Dobbs concurrence for example, he’s like very clear, like, you know, yeah, we’re taking away women’s rights and we’re getting, we’re giving this back to the states.

[00:17:55] But you know what, this is great. Because now women can go to their state legislatures, which we allow to be totally gerrymandered, and they can petition them and like, and get more rights. That sounds great. And or, or Congress can expand this even though we’ve also done some gerrymandering there too. And like, I mean just, it’s just bonkers.

[00:18:14] But I mean, I think he’s sort of trying to explain the most extreme parts of the court in language that appears more modulated, more moderate, and puts him in the middle as. I’m not a dick like Sam Alito, I’m an okay guy. I’m a father of daughters. I’m the guy who gave you your first all female chambers at the Supreme Court and, and I think he’s really like, that’s something that really matters to him.

[00:18:39] And I think those concurrences are intended to do that. And it also could be like, you know, some bde, like he is the swing justice and everything. He’s the fulcrum around which the court pivots. And maybe that’s also being expressed here as well. He just feels. The need to weigh in because like sometimes his concurrences are literally superfluous.

[00:18:58] Elie Mystal: Part of the reason why it works is because the media, I think, is generally illiterate when it comes to. Reading a Supreme Court opinion and understanding what actually happens, right? Like the Kavanaugh Con concern, concurrences work, because the media doesn’t actually understand that so much of what he’s saying are just are, are, are, are inoperable.

[00:19:20] Right? When Kavanaugh says, like in, in the Dobbs position, oh, this will decrease litigation. Um, at the Supreme Court, like that’s just, that’s wrong on its face. And anybody who has been paying attention would know that. But a lot, a lot of the people in the media don’t so

[00:19:35] Melissa Murray: well, it’s not just that they don’t know that they don’t go back and then, Like sort of assess like, I mean, like he said in Dobbs, like, we’re solving this problem and we’re settling conflict, but then we’ve got women dying in parking lots and you know, 10 year olds being forced to give birth and like fact check that, like it maybe Brett Kavanaugh is literally full of it, and maybe we should say that, but like nobody does.

[00:19:57] Um, and also I, I think people don’t, as you say, don’t read those concurrences as invitations. He’s actually inciting conservatives to cultivate. You know, construct, create, manufacture cases, make that, that will allow the court to move any more clearly. Right. Word, direction when the heat is off.

[00:20:19] Elie Mystal: So how do you think that we, we should go about fixing the media illiteracy, because I do not wanna be the person that says the.

[00:20:27] You need a law degree to cover the Supreme Court, right? If you don’t need a rocket science degree to cover nasa, then you shouldn’t need a law degree to cover the Supreme Court. And yet the inability of many people who covered the Supreme Court to even read an opinion and tell you what’s actually happening, um, is frustrating to me and I think leads to, to really bad coverage of this institution.

[00:20:48] So how do you kind of square that circle where you don’t want to gate the coverage behind? Three years and six figures of debt, um, of law school. But also you need people who understand what’s going on.

[00:21:02] Melissa Murray: So one, I, I think there actually are a number of people on the Supreme Court beat who do have. Law degrees, like I, I can think of one who has an actual full on JD and a number of people have MSL degrees of masters in the study of law, which is like basically a one year program that you do sort of just become literate in the law to understand that, you know, I.

[00:21:22] Like, I always love when, um, I get calls to cover the court, like, you know, a verdict’s coming down. I’m like, no, a verdict is not coming down. They are issuing a decision. It’s not a trial court. Um, so I mean like, just so you understand, like a verdict’s not the same as a decision. Like, you know, these are two different things.

[00:21:37] And so I think there are a lot of people who do that. But I think you’re asking a more, a different question, which is about not just. The beat reporters, but the audience too. And it’s like, you know, these opinions are 125 pages. Like when you get all of the separate opinions woven in, when you know Justice Thomas, like, I actually should have written a majority opinion, so I’m gonna write a concurrence that’s 12 times as long as the majority.

[00:22:01] Um, we don’t have the attention span for that. I mean, like, this is a nation, I think, and an audience that would love for the justices to just say their peace on TikTok. And like, I really do, like,

[00:22:15] Elie Mystal: oh my God, I just died a little bit inside.

[00:22:17] Melissa Murray: Uh, but, but I think that’s the problem. Like we don’t have the attention span to sort of stay with the decision, to read through it, to parse it, to think about it, and then to come back and put the pieces together.

[00:22:29] I mean, you know, on our podcast, strict scrutiny, we are covering the court in such. Granular detail over successive terms that we can say, oh, this is just like what happened back then. They’re actually tacking on to what happened in October term 2020. Like, we can do that because we are deep diving every single week.

[00:22:50] You know, people in, even on the courts beat, I don’t know that they’re doing that kind of granular, granular, in-depth coverage, and I definitely don’t think the audience has an appetite for it. Un, unless you’re listening to our podcast and, and you like that part. I mean, we are trying to develop an audience with that appetite by sort of, you know, making it a little more fun, trying to make it more accessible, but making clear, like you’ve got to stay on their next and staying on their next means, you’ve got to know what they’re doing.

[00:23:19] Elie Mystal: My little piece of advice for people who want to become more literate about Supreme Court decisions, wanna learn how to read them better and understand what’s going on, is always read the dissent first. The dissent will tell you where all the bodies are buried. Yeah. In the majority opinion. And just so you know, like in terms of like the structure of what happens, They write a majority opinion, then they write the dissent.

[00:23:44] Then the majority opinion is edited to take into account what the dissent says. So even the justices themselves are in a way, reading the dissent first. Read the dissent first, and then go back to the majority opinion. And then you can just base. I mean, if you’re, you know, if you’re not a person that has to kind of talk about this for a living, you can get away with just reading the case syllabus after that.

[00:24:07] Because the dissent will tell you where the bodies are buried. Then you read just the, you know, the one page syllabus of the case, and you’ll figure out what’s going on in a more kind of like, yeah, you don’t have to take your whole day reading 125 pages of. Clarence Thomas, making up words about the Friedman’s Bureau

[00:24:23] Melissa Murray: or you can just listen to strict scrutiny and we’ll do the heavy lifting for you.

[00:24:27] Elie Mystal: Yes, or you can just listen to strict scrutiny. Professor Melissa Murray, thank you so much for joining me today. I really appreciate your time and your intellect, and your wit and your insights.

[00:24:37] Melissa Murray: Always a pleasure. Thanks so much for having me.

[00:24:45] Elie Mystal: I think it’s important for people to understand that what the court is doing right now is extremely fucked up. They are changing entire cannons of law rapidly and not just in one or two cases, but in opinion, after opinion, after opinion. They are remaking our society right in front of our eyes. And they’re remaking it in accordance with a strict Christo fascist ideology, which perfectly dovetails with the Republican party political agenda.

[00:25:20] There’s not a historical doppelganger or president for what we are seeing today. The much reviled lochner court of the 1920s kept their bullshit to the business realm and left the cultural stuff alone. The Tanny court of the 1850s helped to trigger a civil war, but that was largely through one opinion, the Dred Scott Case that propped up the cultural institution of slavery.

[00:25:49] Even Tanny wasn’t getting into the weeds of which specific businesses were allowed to be racist. And by how much? By contrast, this court. The Roberts Court has made itself the final arbiter on everything from issues as big as, can we save the planet? Answer no to issues as small as, do I have to cut your hair?

[00:26:13] Answer no, because Jesus never forget, nobody elected these assholes to make these decisions for the rest of us.

[00:26:23] Next week we’re going to talk about some ways the assholes we did elect Congress can stop this historically unprecedented power trip from the Supreme Court. Contempt of court is an original series from the nation with support from the new press. The show was produced by Babette Thomas, an executive produced by Ludwig Hurtado.

[00:26:46] Our original music was made by Ellington Peet.

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Elie Mystal

Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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