The Media’s Supreme Court Brain Worms Are an Embarrassing Disservice to the Public

On Tuesday, the Supreme Court rejected independent state legislature theory in a 6-3 decision, in which as many Republican-appointed justices joined the majority as dissented from it.

On Monday, the Court decided not to hear a case that would have threatened an African-American majority congressional district in Louisiana. A couple of weeks prior to that, the Court ruled that Alabama had violated the 1965 Voting Rights Act by packing African-American voters in the state into a single district.

In 2021, a majority including Justice Clarence Thomas rejected a challenge to the Affordable Care Act. The year before that, the Court decided that Title VII of the Civil Rights Act of 1964 protected gay and transgender employees from adverse employment decisions on the basis of their identity. And a few years before that, it created a constitutional right to gay marriage.

Yet even in the face of countless decisions by the originalist majority-Court, year in and year out, demonstrating that it’s anything but a partisan monolith, the press continues to treat it as such.

A PBS segment from last August fretted that the “U.S. Supreme Court’s increasingly partisan divide”  was raising “questions about ethics.” At The Atlantic, Adam Serwer has accused the justices of “lying” when they explain that differing judicial philosophies — not partisan allegiances — explain their votes.

And on the day of Amy Coney Barrett’s confirmation to the Supreme Court in October 2020, the New York Times ran seven consecutive opinion pieces panicking about her ascension, with some advocating for court-packing and others advocating for the Court’s replacement altogether.

Even on Tuesday, as some progressives on Twitter celebrated the Court’s most recent decision, others insisted that the ruling wait was part of a nefarious effort to lull observers into thinking the court to be “surprisingly moderate,” as FiveThirtyEight’s Nathaniel Rakich put it.

It feels like the Supreme Court is getting its liberal-friendly rulings out of the way early—perhaps in a bid to get (premature) favorable coverage for being “surprisingly moderate.” This strategy worked in 2021! https://t.co/JvAxhfbYHR

— Nathaniel Rakich (@baseballot) June 27, 2023

“Remember, justices are politicians — they know how to work a news cycle!” he added in a follow-up.

This kind of conspiratorial analysis is embarrassingly endemic to the media’s coverage of the Court and is a disservice to the public. For the originalist wing, it’s “heads, you’re a partisan hack; tails, you’re a clever partisan hack.”

Because the media is unwilling to engage with the similarities and differences among the originalist wing’s members’ judicial philosophies, or the fact that the justices are bound by the facts of each individual case, they attribute decisions they oppose to political allegiances and those they favor to political machinations.

Rakich’s mental gymnastics are gratuitous. In truth, the cause of the Court’s decisions is simple: The justices, each of whom brings their own approach to interpreting the law, vote according to those interpretations. Justice Neil Gorsuch has a civil libertarian streak. Justice Thomas is irreverent of past precedents. Justices John Roberts and Brett Kavanaugh generally advocate narrower rulings. Their different tendencies lead to divergent votes in disparate cases.

Curiously, the media never raises concerns about why the Court’s liberal wing almost never finds itself divided on the controversial cases that so often split the originalists. Its march in lockstep is ignored while the originalist wing’s is fabricated. Partisanship and political motives can only be attributed to Republican appointees; it’s a frightening abandonment of reason that can only be chalked up to the partisan motives that the press projects onto conservatives.

Some of the shrillness can doubtlessly be traced back to the perceived gamesmanship of Senate Republicans around the Court. They refused to confirm Merrick Garland during Barack Obama’s last year in office, but had no such qualms when Donald Trump nominated Barrett ahead of the 2020 presidential election.

But anyone with historical context knows that Republicans are only responding to Democrats’ politicization of the confirmation process. Robert Bork, Thomas, and Kavanaugh all endured unspeakable smears that Republicans never leveled against Garland. And in any case, partisans’ preference for certain nominees over others does not render those nominees partisan actors. Just ask Trump, all three of his nominees declined to even hear his case to overturn the results of the 2020 presidential election.

The media’s insistence on teaching the public to view Supreme Court decisions through the lens of partisanship is far more to blame for increasing distrust of the Court than those decisions themselves. When the media devotes an inordinate amount of time to telling the public it should be suspicious of the judiciary, it should come as no surprise when it is.

Whether it’s laziness or malice or just pure partisan brain worms that’s the cause of this misleading coverage, those in a position to remedy it have a responsibility to do so.

This is an opinion piece. The views expressed in this article are those of just the author.