Decisions, decisions: Behind the hard work of high court coverage
It’s an understatement to say there’s a lot to sift in June when it comes to U.S. Supreme Court rulings. For a Monitor team, it’s about focusing on the human impact, including of quieter cases, and honoring public expectations for judicial ethics and high principles.
Coverage of the U.S. Supreme Court has always required deep preparation and a rapid response, as decisions issue forth in quick succession at the end of a term.
Monitor writer Henry Gass and his editor, Yvonne Zipp, start early, sifting through cases the court will hear and setting priorities. As Henry says, they’re looking for not just the two or three big cases in a term, but also the lesser-known ones with “lots of humanity.”
In November, he wrote a Monitor Weekly cover story on a Native adoption case with a tragic history. “That’s a space where the Monitor needs to be,” says Yvonne. In a 7-2 decision in Haaland v. Brackeen, the high court upheld a law that tribes see as essential to their cultural survival.
Anticipating the Supreme Court’s shift on affirmative action, the Monitor rolled out articles all spring on programs to help students of color in California, which banned affirmative action in the 1990s. But the Supreme Court’s decision to uphold Section 2 of the Voting Rights Act in Allen v. Milligan – another big case this term – was a surprise. “It took me a few minutes to actually realize what had happened,” says Henry.
In another case, Moore v. Harper, the court rejected a theory that would have given state legislatures the final say in rules for federal elections. Together, these cases signal that “while the court is certainly deeply conservative, it is not purely partisan,” Yvonne says.
But the justices themselves came under closer scrutiny over ethics amid declining public trust and sharp partisan critiques.
“I feel strongly that judicial ethics and upholding principle is a good thing,” she adds. “We try hard not to go after anybody personally. It’s all about what would lead to a better court, what would help restore trust in the Supreme Court.”
Episode transcript
Gail Chaddock: The U.S. Supreme Court beat is the Boston Marathon of assignments in journalism, both for writers and their editors. It’s months of preparation followed by a Niagara of decisions in June. Among these this year: 6-3 decisions by the conservative majority on affirmative action, student loans, and gay rights, but also some surprises, as several conservative justices joined the three Democratic appointees in a majority on voting rights, election theory, and Native American adoptions.
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Chaddock: This is “Why We Wrote This.” I’m this week’s guest host, Gail Chaddock. We’re talking today with Henry Gass, who covers the Supreme Court and justice issues for The Christian Science Monitor, and Yvonne Zipp, who edits the Monitor’s legal coverage. Thank you both for joining us today.
Henry, can you help us understand how you prepare to cover a Supreme Court term?
Henry Gass: Yes. So every term I talk with Yvonne, and we look through the cases that the court has agreed to take up. Because we can’t cover every case that the court looks at. We pick and choose which cases we want to focus on. And then sort of plan from there.
There are always two or three cases each term [that] are sort of the big cases for that term. We also like to find another case or two that maybe isn’t getting as much attention, but is just as interesting. We like to look for cases that have lots of humanity to them – humanity on as many sides of the story and the case as possible. And we’re also very interested in cases that have lots of complexity, both in terms of the legal questions and the broader context of the case: its history, or its cultural implications for the country.
Chaddock: I was interested in a lot of work you did on an Indian child-welfare case back in November. And all that preparation clearly showed in the fact that on the same day the decision came down, the Monitor produced a very nuanced, deeply reported story. This isn’t a case that affects a lot of lives nationally, but it certainly has a sense of humanity to it. Yvonne, when Henry came to you with this idea, what did you think about the investment in resources?
Yvonne Zipp: Well, I think when it comes to something like Native law, and particularly adoption, which has been used so systematically through the decades to absolutely destroy people’s connections to their tribes and their culture and their history and their religion, that’s gonna be a space where the Monitor needs to be. And then it’s the fact that you’re talking about children who need homes.
Chaddock: That’s right.
Zipp: You have these individual children who desperately need loving families, and then you also have this horrific history where our country has taken something that should have been done [in] the best interest of a child, and used it to destroy cultures. That seemed to be something we needed to look deeply at.
With certain cases, we knew what was gonna happen. With the affirmative action case, we got started around February or March. Henry and Ira Porter, who [is] our higher education reporter, came up with a series of articles that we’ve been rolling out all spring. It did not feel like a leap to send Ira to California, which had banned affirmative action in the ’90s ahead of time. So he went in May and he went to UC-Santa Barbara, which has implemented a number of programs to help get students of color and first generation students back on their campus. I mean, Ira had 2,000 words written a month before the decision came out. There was sort of no reason to wait, so we just got started early.
Chaddock: This really takes us to the heart of what makes Supreme Court writing so challenging and interesting, which is [that] all of this preparation, all of this research comes together in the month of June, at 10 in the morning. Can you help our readers imagine what that’s like as an editor?
Zipp: You have a list of the cases that we’re following. because you won’t be able to remember them. And everyone at 10 a.m. is just glued to SCOTUSblog.
Chaddock: Explain to our listeners what SCOTUSblog is.
Zipp: SCOTUSblog, they are like uber Supreme Court reporters. You know, our reporters do many things throughout the year. SCOTUS blog, that’s what they do. And so you have your list of cases and you’re waiting to hear what the names are, and if a name comes out and you have no idea what it is, you kind of breathe. And the thing about the way the cases come out is the most junior justices, their cases come out first, the opinions they’ve written. So you can’t relax until you get to the end of the day. You’re grabbing for the opinion as fast as you can, and you are just scanning as quickly as possible to see what has happened on this case that you have spent months waiting for.
They don’t tell you which cases are gonna come out on which days, so you try to make sure that you have enough reporters and editors assigned to every single scenario, so that if, say, as happened on the last day, the religious liberty vs. LGBTQ rights case comes down and the student loan program is declared to be dead in the water, you don’t have Henry trying very hard to figure out what in the world he’s gonna do, because he can’t write both on the same day.
Chaddock: Henry, same question. Where are you at 10 o’clock in the morning in June? What are you thinking about?
Gass: I’m also on SCOTUSblog, if anything else, for the reason that the Supreme Court website itself isn’t great. The [court] website has crashed on more than one occasion in June since I’ve been covering the court. And so SCOTUSblog is actually a bit more reliable. You’re just waiting for opinions to come out, and talking with the team [members], who are also sitting there waiting to see what happens and go from there.
Chaddock: Are you ever surprised?
Zipp: I was shocked when Allen v. Milligan came out. This was a case looking at Section Two of the Voting Rights Act. The chief justice has not traditionally been a huge backer of the Voting Rights Act. So when Allen v. Milligan came out and I saw that Chief Justice John Roberts wrote the opinion, I really thought I knew what I was gonna be reading, and I was 100% wrong.
Chaddock: How long was that opinion, by the way?
Zipp: Yeah, it was not short. Even if you’re a fast reader, that’s a lot to go through.
Chaddock: That’s exactly the point I’m getting at. One of the great images – there are two great television images in journalism. One of course is the weather reporter being blown away in the storm. The other is the Supreme Court reporter on the steps, with a fist full of papers, reading frantically.
Zipp: Um-hmm.
Chaddock: Henry, how merry were you when you realized the outcome you had probably prepped for, was not what you were about to write on?
Gass: It took me a few minutes to actually realize what had happened. You never want to be too confident in those first minutes of getting an opinion, because oftentimes it’s very legalese. You think it might mean something, but you’re not sure. It can be tricky, but we always get there in the end somehow.
Chaddock: Was there a moment in this process where you suddenly realized: I know where to go with this story?
Gass: For me, that’s usually pretty straightforward. The story is: This surprising thing happened. The Supreme Court did what people didn’t really expect it to. And you sort of go from there.
Chaddock: What did we learn about this Supreme Court from that decision that might change some minds out there that it’s just a partisan body and they’re out to undermine voting rights?
Zipp: I think that actually that decision and another case, Moore v. Harper, which would have upended how we run federal elections and would’ve given state legislatures, which are quite partisan, sole authority – both of those cases, elections experts have looked at those as really strengthening democracy.
I think what is important, particularly with the Voting Rights Act case, is that while people may feel that they know what an individual justice thinks about a particular case, that doesn’t mean that the justices are going to just go ahead and do what they want. You could make the argument that perhaps the lawyers had not done a very good job of making their case. Because they thought that they had a sympathetic year at the Supreme Court.
Chaddock: Journalists aren’t the only ones that guess wrong.
Zipp: Yeah. And I look at that case and Moore v. Harper together as an example of, while the court is certainly deeply conservative, it is not purely partisan. The commitment to the Constitution in both of those cases, came through more than, “we’ve gotta make sure our side wins, let’s put this thumb on the scale.” The split is such that you can’t just have one justice come over and join the more liberal wing. You have to get two.
Chaddock: This has been an unusual year for Supreme Court justices, who’ve seen protesters outside their homes, record low levels of trust with the public, and unusual scrutiny of ethical standards on the high court. This session, the justices themselves became the issue. Henry, what do you think prompted this surge of scrutiny on ethical standards on the high court?
Gass: What really prompted it was a ProPublica story in April about this billionaire conservative donor who had for decades subsidized these luxury vacations for Justice Thomas and his wife. This donor had given a real estate deal [to] Justice Thomas, and had paid for some private school tuition for a child that Justice Thomas was raising. All of these gifts hadn’t been disclosed by the justice over the decades. Then, in June, ProPublica came out with another story about another undisclosed trip that Justice Alito had been subsidized for by a different donor who had cases before the court. So that’s sort of what triggered the intense scrutiny on these sorts of ethics controversies by the justices. But it’s sort of part of an overall general increase in public scrutiny of the court that’s been building for several years. You mentioned the protests outside of homes and death threats that really came about after the rulings last term around, with Dobbs and uh, with New York State Rifle Association v. Bruen, which ended up expanding gun rights and the ability to carry a gun outside the home. Which were very controversial decisions that affected a large number of Americans. That really intensified scrutiny on the court, and made the court look very political. And I think these controversies around ethics [are] in part a consequence of that.
Chaddock: Do you think it’s going to go anywhere?
Gass: I don’t think that the court is going to reform its ethics guidelines, no. One thing I think that the stories did reveal is how different the court’s ethical requirements are compared to every other branch of government. The justice pretty much police themselves when it comes to what they disclose, in their annual disclosure reports, which again, are much less frequent than, say, a member of Congress has to disclose gifts and things like that. They don’t have to recuse from cases if they don’t want to. They don’t have to explain when they recuse or when they don’t recuse.
Not very long ago, most Americans didn’t know much about the court, and weren’t interested in knowing much about the court. There was a C-SPAN poll in 2017 [that] found that over half of US voters couldn’t name even one Supreme Court justice. And that’s changed a lot just in the last few years. We’ve had four Supreme Court confirmations in five years. There’s been a lot more attention on the court, a lot more political atmosphere around the court. And I think that the court as an institution isn’t used to it.
Chaddock: Look forward to reading what you write about that.
And Yvonne, I just wanted to ask you a related question: how do you edit stories on judicial ethics in this political climate without looking partisan?
Zipp: I feel strongly that judicial ethics and upholding principle is a good thing. When we write about it, we’re looking at: What would lead to a more transparent court? What would lead to more ethical decisions? We’re not going: “Oh my gosh, that person over there. Look at what he did!”
Chaddock: Right.
Zipp: We try hard not to go after anybody personally. It’s about what would lead to a better court, what would help restore trust in the Supreme Court?
Chaddock: Beautiful. Henry, thank you. Thank you for your work. Yvonne, same thing. Thank you very much for being with us.
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Chaddock: And thanks to our listeners. You can find more, including our show notes, with a link to the stories we discussed in this podcast at CSMonitor.com/WhyWeWroteThis. This episode was hosted by me, Gail Chaddock, edited and produced by Clay Collins and Jingnan Peng. Alyssa Britton was our engineer, with original music by Noel Flatt. Produced by the Christian Science Monitor. Copyright 2023.
