Why I Hate Being Right about SCOTUS and News Media
Note: Since I am on vacation this week, I am forgoing the typical newsletter and instead sharing an article dealing with a current event. See you next week.
Rinse and Repeat
It happened again.
I shouldn’t really say “happened again,” because it never stopped happening. I’ll put it this way: the establishment news media continues its assault on the credibility and legitimacy of the Supreme Court of the United States by smearing and slandering originalist-textualist jurists on the high court.
Here’s how the story began this past Wednesday as I listened to National Public Radio’s Steve Inskeep:
What do we really learn from recordings of two Supreme Court Justices? A filmmaker has posted clips of secretly recorded conversations with Chief Justice John Roberts and Justice Samuel Alito. Now, NPR has not heard these recordings in their entirety. We cannot independently verify the authenticity and the Court has not commented, but here’s what we do know. Lauren Windsor says she posed as a religious conservative and attended an event where the Justices were. And here is an excerpt from her conversation with Justice Alito that she posted on social media…
Let’s pause to consider these sentences like intelligent people before we discuss the substance of what was recorded.
First, someone secretly recorded conversations with two public officials. This means they (a) were unknowingly recorded; and (b) were asked leading questions by someone posing as something she wasn’t.
A few questions. Weren’t the tactics of James O’Keefe and Project Veritas thoroughly discredited and dismissed by mainstream news organizations as fringe, unethical, and radical for their tactics of recording people (left-wing types) without their consent?
Isn’t it illegal in roughly a dozen states to record a phone call or conversation without the consent of all parties involved?
Isn’t it easy to elicit all kinds of responses from people in private, social settings when one intentionally tries to induce such responses?
A second layer of observations. A taxpayer-supported, respected news organization chose to run with this story containing audio excerpts (a) without hearing them in their entire context; (b) without verifying their authenticity; and (c) despite them being publicized by a novice documentary filmmaker on social media.
Another question or two. Haven’t we heard a thousand stories in recent years lamenting the decline in trust in news journalism? Haven’t we been told that the Fourth Estate is under attack from the Right on partisan, political grounds? Haven’t news organizations like NPR constantly reminded us of how seriously they take the public’s trust and their own high standards for journalistic integrity? And hasn’t NPR recently had their own troubles over credibility and bias due to what their own employees have said?
I start with these two larger observations and subsequent rhetorical questions so that we’re especially clear about not so much what we’re hearing, but why we’re hearing it.
First, we’re hearing it because it is further confirmation of the scarcity of respectable, credible journalism in modern life, including in coverage of the Supreme Court of the United States. Second, we’re hearing it because it reinforces a particular narrative from the progressive left which establishment news media has parroted, promulgated, and reinforced at every turn: SCOTUS is compromised by radical, right-wing, religiously motivated Justices.
I’ve written in Newsletter #21 about the attack on the Court’s legitimacy. Rather than expecting readers to reread the entirety of what I said there, let me provide a few excerpts:
Now I could be simplistic and assert that essentially when the Court rules in favor of a generally conservative company, cause, etc., the court is labeled ‘increasingly illegitimate’ and ‘partisan.’ When the court rules in favor of a generally progressive individual, company, cause, etc., the Court is hailed as ‘just’ and ‘on the right side of history.’
More still:
Let’s face it: while the Court and politicians have no doubt made mistakes of various kinds through the years, much of the entire accusation of ‘judicial illegitimacy’ is simply one end of the ideological spectrum condescending to name-calling. In reality, their rhetoric is what most endangers the legitimacy of the Court, not the Court’s decisions themselves.
And:
Senators who constantly question the Court’s legitimacy during a hearing and every time a ruling is rendered that they disagree with create the perception to the uninitiated that the Court isn’t legitimate.
When more time is spent defending the rights of protestors at the private homes of sitting justices in the process of making decisions rather than investigating whether actual laws concerning such actions are being broken, we delegitimize the proper legal processes that lie at the heart of the entire conversation.
Remember the Latin background to the word legitimacy. Essentially, it means “lawful.” In modern times “legitimate” has come to perform some extra semantic work, conveying ideas like fairness or respectfulness. It seems to me that the entire idea of laws and their interpretation should not only be handled with seriousness, but spoken of seriously as well…
Chief Justice Roberts provided a memorable analogy during his confirmation hearings about the work of a judge. He likened it to an umpire simply trying to call balls and strikes. Wouldn’t we be suspicious if an umpire always sided with the home team on bang-bang plays? Wouldn’t we be suspicious if he always sides with the hitter, not the pitcher, or vice versa?
We’ve come to a place where anytime these nine umpires render a decision that works against “our side” people immediately claim that the process must be inherently unfair or even rigged by partisan actors somewhere along the lines. What if the process is, for all its weaknesses, mostly working? What if the Court isn’t perfect, but legitimate? In other words, the law was followed as the majority opinion showed?
We need to understand the broader environment, tactics, and double standards involved in the way SCOTUS coverage is transpiring. It doesn’t mean that those sympathetic to the Court or to the more conservative jurists should condescend to the tactics and standards of their enemies. Rather, they should hold the highest of standards for Constitutional interpretation and jurisprudence, reporting on the decisions of the Court, and actual unethical behavior of justices.
Now to the Justice’s Scandalous Comments
What about Lauren Windsor, the woman who posed as a religious conservative as she baited Justice Roberts and Justice Alito? While readers can listen to the clip for themselves, I’ll highlight the one NPR chose to air:
Windsor to Justice Alito: “People in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.”
Alito: “I agree with you. I agree with you.”
That’s it. That’s the smoking gun. A publicly identified Catholic judge, who has spoken more than once publicly about his Catholic faith (even NPR’s David Folkenflik acknowledged this in the online story), said at a private gathering—in response to someone expressing their desire to see the country become more godly—“I agree.”
As Windsor concedes in the story, Alito said nothing about his rulings, the role of his faith in his jurisprudence, or future cases.
Windsor goes on to acknowledge that she did ask leading questions, with the intention of “eliciting a reaction.” All she managed was the sentiment, “I agree [that people should fight to help make the country godlier].”
Imagine if NPR were to run a nationwide poll asking respondents the following question: “Would the United States be better off if people were godlier?” Given what we know from Gallup, Pew, and other polling operations about public belief in God, appreciation for the Bible, and the like, what do we imagine the results would be?” 50%? 60%? 70%? What do we think Catholic President Joe Biden would say in a private gathering to a zealous, progressive Catholic who asked if he thought that people should try to help the country be godlier?
However, that wouldn’t make the news. Or if it did, it would probably elevate his street-cred as a serious man of faith. Meanwhile, a young “journalist” poses as something she’s not at a private event, seeking out Justice Roberts, Thomas, and Alito, with a set of leading comments/questions and a hidden tape recorder. And all she could get was, “Yep, the country would be better off if people who believed in God stood for what that means.”
Remember that Justice Alito has already under fire about “flag gate,” which makes the timing of this story especially unfavorable. Though the flag debacle is easily set aside as part of the larger SCOTUS attack from the progressive left, the damage has been done. The “right-side-of-history” crowd also remember that Justice Alito wrote the majority opinion in Dobbs.
A final aspect of this story designed to paint justice Alito in the worst possible light is the contrast with Justice Roberts. Roberts was asked a different question concerning the role of the Court in helping keep (or make) our nation Christian, to which he properly responded that this wasn’t the role of the Court. (Listen to the clip for his fuller response.) Inskeep notes the difference in Roberts’s response, though not the question itself, which was different. Never mind that. His response allows Windsor to say of the more moderate Justice, he gave the response of a “responsible jurist.”
Means and Ends
One of the great moral challenges for all people is the discerning the relationship between means and ends. Christians understand that our moral aims and goals are inseparable from the means we use to attain them. While the Bible doesn’t exhaustively address questions of means in a way that translates clearly into contemporary life, it sufficiently addresses question of virtue, character, and more to help us choose means wisely.
We should be grateful that American law recognizes some of the important moral distinctions that we find in both the Old and New Testament. Motives and means matter, as well as ends. Sometimes evidence is inadmissible when obtained improperly. Sometimes people’s dignity and very lives are preserved by a measure of privacy, though privacy can certainly become idolatrous.
Even Windsor herself acknowledges that part of her exchange with Alito could not be shared because another judge walked up and began speaking, and she wanted to protect his privacy. (One suspects she wouldn’t have if she had recorded him saying something juicy and sinister—like conservative- or religious-sinister.) After all, her ethics aren’t in question because her tactics were “in service of reaching a greater truth and in service of a public good.” Indeed, this is how any public figure justifies being a hypocrite, liar, or tyrant.
But ethics don’t matter when it comes to the Cause ™. No need to pearl-clutch over journalistic practices. Windsor says we should be more concerned about the Justices’ ethics and views, and the harm they’re doing. “Look over there, not here. That’s the real issue.” Again, we are reminded why it was so easy during the Trump presidency for norms and conventions to be set aside. It wasn’t simply that Trump himself was a different kind of president. It’s that the time of political turmoil we had entered (Sometime in second Obama term?) created an environment where beating your opponents, or at least, moral posturing whenever it suited, was more important than things like ethics, decorum, good-faith negotiation, and respect for institutions.
This latter issue is perhaps the most important. It isn’t “respect” or “trust” at the exclusion of all other concerns. Institutions must earn and keep earning people’s trust. When they act in bad faith, mess up, refuse to course-correct or stay true to their original purposes, people lose respect and trust. Ironically, this is what mainstream news organizations claim has happened to SCOTUS.
Perhaps improvements could be made; which human endeavor couldn’t stand a few? However, who nominates Justices? Presidents. Who interviews and consents to their appointment? Senators. And who stands back and reports on all these proceedings, including the ongoing work of the Court? Journalists.
When you begin a new story with, “Now we haven’t heard all of these tapes, and we’re not even 100% sure they’re authentic, and they were obtained using borderline unethical and sometimes illegal practices, but we’re going to go ahead and tell you about it,” you know things have gone south. When the urge to be first, not right, exceeds everything else, this is the telltale sign of a dysfunctional news ecosphere.
Never mind the importance for public figures to be allowed their own personal views on various moral, religious, and spiritual questions. And never mind Windsor. She isn’t the problem; she’s a symptom. Our political and news media environment is the deeper disease.
A Final Irony
As I was writing this piece I noticed where the Supreme Court unanimously preserved access to mifepristone, the abortion bill. The light-yellow tablet accounts for two-thirds of all abortions in America, which, sorrowfully, have increased since the fall of Roe v. Wade in 2022. Let me try to chew gum and type at the same time.
Pro-lifers, our work was always bigger than ending Roe v. Wade. It was always bigger than stopping abortions. It was making abortion unthinkable. Our work has only just begun.
SCOTUS critics, the Justices agreed that those bringing the suit didn’t have standing to do so. Sounds like they’re doing that whole legal-thing. It turns out that the “conservative Justices” aren’t just in the bag for religious America, pro-life organizations, or even the Republican party (which increasingly seems schizophrenic on some pro-life questions).
For all its flaws, our Supreme Court has been functioning reasonably well. We do have Justices who have both progressive judicial philosophies and personal views (from what we can tell), and we do have Justices with more conservative judicial philosophies and personal views (from what we can tell). And they all exist along something of a spectrum, which seems to come through in their rulings across time.
How is that different than what we’ve seen from the Court in the past? But then again, that’s not the story. “Don’t look over there. Look here.”
