The media’s Supreme Court coverage is a long-running scandal

What’s needed now is accountability for both justices and journalists

Journalists have long cried foul when major organizations reveal embarrassing facts about themselves over a holiday weekend, knowing that fewer people are paying attention to the news.

This time, the major organization was the Washington Post.

The Post’s story on Saturday revealed that it knew THREE YEARS AGO that Justice Samuel Alito’s home had displayed an upside-down American flag in January 2021, just weeks after a right-wing mob had flown that same extremist symbol while storming the Capitol. Alito’s wife admitted it to the Post at the time, and the Post kept her admission secret until this past holiday weekend, revealing it only after the rival New York Times broke the story of the Alitos’ upside-down flag.

The Washington Post explained its inexplicable failure this way: 

“The Post decided not to report on the episode at the time because the flag-raising appeared to be the work of Martha-Ann Alito, rather than the justice, and connected to a dispute with her neighbors, a Post spokeswoman said. It was not clear then that the argument was rooted in politics, the spokeswoman said.”

Not rooted in politics? Really?

No wonder the Post didn’t identify its own spokeswoman by name. It didn’t want to embarrass her.

Semafor’s Ben Smith got an interview Sunday with Cameron Barr, a former senior managing editor at the Post, who took responsibility for the decision. Barr said it was a “consensus” among him, Supreme Court reporter Robert Barnes “and others that we should not do a single-slice story about the flag, because it seemed like the story was about Martha-Ann Alito and not her husband.”

Barr said he suggested a story on the neighborhood dispute, using the flag as a detail, but that story never took shape.

It’s unclear why the Washington Post didn’t consider putting the Alito flag detail in one of its many stories about calls for Justice Clarence Thomas to recuse himself from Jan. 6 cases because his wife, Ginni Thomas, was involved in secret efforts to prevent Joe Biden from taking office as president.  

Semafor’s Smith wrote that the news outlet’s “cautious and deferential” approach toward the Alitos reflected “a pre-Dobbs world.” By that he meant that the 2022 Dobbs decision, which revoked a woman’s constitutional right to an abortion, caused fewer journalists to treat the justices as if they were above politics.

But if reporters thought the “pre-Dobbs” court was nonpartisan, they were fooling themselves. The court has made a series of key rulings in recent decades that have handed Republicans major advantages, including:

• The Bush v. Gore decision to block a recount in Florida in 2000 and award George W. Bush the presidency

• The Citizens United ruling of 2010 that was rocket fuel for the political influence of wealthy donors and corporations

• A 2013 ruling written by Chief Justice John Roberts that gutted the Voting Rights Act and cleared the way for voter suppression laws

• A 2019 pro-gerrymandering ruling also written by Roberts that let political parties draw election maps to their unfair advantage. (The court takes the position that it can strike down gerrymandering if it’s done for racially discriminatory reasons rather than partisan ones, but a ruling last week written by Alito kneecapped the ability of plaintiffs to prove racial bias.) 

Smith is right that many reporters in recent decades treated the justices differently from, say, the speaker of the House. But it’s wrong to think that was an acceptable mindset rather than intellectual laziness that has contributed to the current peril for our democracy.

Last year, the ProPublica nonprofit news outlet published eye-opening reporting on the secret vacations and other favors given to Thomas and Alito by billionaires. Some of those freebies happened decades ago – when the New York Times and Washington Post could have uncovered them if they had tried hard enough. Or if they had tried at all. 

Chief Justice Roberts has also come under scrutiny over his wife Jane’s $10 million in commissions as a recruiter for law firms, some of which had business before the court. That revelation came in a whistleblower complaint filed by a disgruntled former colleague of the justice’s wife – not from investigative reporting.

The soft touch of the media toward Supreme Court justices isn’t just a right-wing problem. National Public Radio’s Nina Totenberg covered the Supreme Court for decades while maintaining a close personal relationship with Justice Ruth Bader Ginsburg. That was unethical. Totenberg even wrote a book called “Dinners With Ruth,” in which she detailed their friendship with Ginsburg and also said she “loved” Justice Antonin Scalia. No wonder she wasn’t uncovering the fact that Clarence Thomas got a $267,230 loan from a friend to buy a luxury RV, with some or all of the debt “forgiven.” 

That RV deal was revealed last August by the New York Times, which apparently has decided to compete with ProPublica to provide much-needed oversight of the Supreme Court. It would also be helpful for the Times to disclose the timeline of its reporting on the Alitos’ upside-down flag as well as an “Appeal to Heaven” flag at the Alitos’ vacation home that the Times later revealed. Did the Times get its original tip at the same time the Post did? If not, when?

What’s needed now is full accountability – for both the Supreme Court and the news outlets that cover it.