Covering The Court: Thoughts From Dahlia Lithwick
We spent a fair amount of time last week in lovely Charlottesville, Virginia, where we spoke at the University of Virginia Law School (coverage of our talk appears here and here). We spent lots of quality time with UVA Law students — at dinner, at a karaoke bar, and walking around the beautiful grounds.
One of the highlights of our trip was attending a luncheon talk by the fabulous Dahlia Lithwick, who has covered the Supreme Court for Slate for the past ten years (and who also served as a celebrity judge on ATL Idol). Despite suffering from a nasty flu, she delivered remarks that were hilarious and insightful, shedding much light upon media coverage of the Court.
Read more, after the jump.
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Lithwick was introduced by James Ryan, UVA’s academic associate dean (and a finalist, as some of you may recall, in ATL’s law school deans hottie contest). Dean Ryan is just as hunky in person as he is in pictures. He covered the highlights of Lithwick’s impressive résumé: Yale College, Stanford Law School, Ninth Circuit clerkship, Slate (where she is a senior editor).
Lithwick took the podium and apologized for having a bad flu. She mentioned that she lives in Charlottesville, just up the road from law school, and asked if anyone was interested in a babysitting gig. (The line got a laugh — but after the talk, one student approached Lithwick and offered up her babysitting services.)
As a beat, the Supreme Court is strange, said Lithwick. In fact, it’s more than strange; it’s “peculiar, bordering on the pathological.” She mentioned that it’s also a beat in the midst of a sea change, due in large part to technology.
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Ten years ago, when Lithwick first started covering the court, there were only two major online magazines: Salon and Slate. Now there are many. But just as she was then, Lithwick is still the only online reporter with press credentials at the SCOTUS (not counting Lyle Denniston of SCOTUSblog, who covered the Court for MSM outlets before entering the blogosphere, and who was “grandfathered in” as a credentialed courtroom reporter).
One major change wrought by technology is the speed of Court coverage. Lithwick used to be one of the fastest SCOTUS reporters out there, getting pieces up by 3 or 4 PM, well ahead of print reporters who would file at 6 PM to appear in the next morning’s newspaper. Nowadays, however, Tony Mauro gets his online pieces up by around 2 PM — and Denniston gets them up even earlier, sometimes around 12:15 PM.
The Supreme Court is also embracing technology — sometimes successfully, and sometimes not. Lithwick expressed gratitude for same-day transcripts of oral arguments (although poked gentle fun at the Court for taking so long to institute this easy-to-implement change). But she is not a fan of the Court’s policy on audio broadcasting. For more, see this Slate column.
(She also made fun of television coverage of the Court, which relies heavily on courtroom sketch artists’ drawings of gesticulating white men. Fun tidbit: the lawyer featured in the sketch often pays the artist a lot of money for the original.)
The rise of technology helps legal journalists in many ways, but it also poses new challenges. Due to the rise of blogs, law professors who are experts in various areas of substantive law — e.g., Eugene Volokh of the Volokh Conspiracy, Jack Balkin of Balkinization — can immediately share their insightful and informed analyses of new SCOTUS opinions with the world at large. Lithwick wondered: In light of this development, in which experts can speak directly to the public, what role is left for legal journalists covering the Court? Where can they add value?
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One area where they can add value is by providing analysis and context, given the knowledge SCOTUS correspondents acquire about the Court as an institution and the personalities who fill the bench. Of course, more “news analysis” raises the classic tension between reporting and opinion in coverage of the Court. Lithwick wondered aloud about how Adam Liptak, who recently replaced Linda Greenhouse as the New York Times’s Supreme Court correspondent, will deal with being in a beat where he’s perhaps less free than he used to be to allow opinion to seep into coverage. Lithwick also gave a shout-out to Jan Crawford Greenburg, whose book and blog about the Court reflect a definite point of view.
(Lithwick also gave us a shout-out in her discussion of other legal media types: “Thank God for David Lat and the other legal gossip bloggers, who talk about which clerks are sleeping with which clerks. They make me look like this serious, responsible journalist!”)
Interestingly enough, the strict separation between constitutional law and personal opinion is breaking down on the justices’ side of the ledger, too. Lithwick noted how justices are offering more access to the media and to the public — e.g., Justice Antonin Scalia on 60 Minutes, Justice Clarence Thomas’s memoir, the Scalia/Breyer road show. This can be good, insofar as it sheds light upon the judicial decision-making process, but it can also be problematic, insofar as it trivializes the Court and makes it harder to respect as an institution.
Lithwick discussed how legal journalists who cover the Supreme Court are torn between two narratives. “Story 1” focuses on 5-4 splits over ideologically charged issues, describing law as politics by other means. “Story 2” argues that law is different and special, that it transcends mere politics, and that the Court is a unique, apolitical institution. Supreme Court correspondents swing back and forth between “Story 1” and “Story 2.” What will emerge as “Story 3”?
This concluded Lithwick’s prepared remarks. The floor was then opened up to questions.
One question asked Lithwick for her take on Chief Justice John Roberts, whom she seemed to have a soft spot for during his confirmation hearings. Lithwick said that she trusted other Court watchers, people like Ben Wittes, who described JGR as a fairly straight shooter and not a movement conservative. But now that he has been on the bench for a while, according to Lithwick, Chief Justice Roberts has shown himself to be “very, very ideological.” She cited his opinion in the Parents Involved case as an example of his highly ideological bent.
Lithwick said that her biggest disappointment about Roberts is how he’s turned out to be “actually quite mean at oral argument.” Some advocates she has spoken to have said they’re more scared of the Chief than Justice Scalia. She said that JGR has an inclination to ask “gotcha” questions of lawyers.
Another questioner asked Lithwick about how she prepares for covering arguments at the Court. She mentioned that she doesn’t watch every argument, but picks and chooses. Since she has to leave Charlottesville at about 4:30 AM to catch an argument in D.C., she has an incentive to be selective. When she finds an argument she’s interested in, she prepares thoroughly, reading all the filings, interviewing experts, talking to fellow journalists, etc.
We asked her about a topic that we discussed at our talk the prior day: how to make the move from practicing law to writing about it. Lithwick, who practiced family law for a time before moving into writing, quipped: “One thing that really helps is doing doing divorce law.” After representing clients in their “bickering over the pots and pans,” everything else starts to look much more attractive.
Lithwick then described how she left the law and was unemployed for a while. She was crashing on a friend’s couch, subsisting on ramen noodles, when an opportunity fell into her lap. Through this friend, who perhaps wanted to get her off the couch, she was hooked up with Slate, which hired her to cover the Microsoft trial. That freelance assignment eventually blossomed into a full-time gig.
Based on her own experience, Lithwick offered up this advice (to laughter from the audience): “Be really unemployed — until the perfect job offers itself up to you.”
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