The Horse Race Has Started, but It’s Always Been Here

A few days ago, the Philadelphia Inquirer’s indispensable columnist Will Bunch wrote a viral column about all the ways in which the media is already failing to meet the moment with its horse race coverage of the 2024 election. “America,” he cautioned, “is entering its most important, pivotal year since 1860, and the U.S. media is doing a terrible job explaining what is actually happening.”

Bunch deplores the corporate media’s coverage of Donald Trump’s surrender to a Georgia jail last week—all motorcades and pundits and mug-shottery—as the very sort of spectacle that best serves Trump’s interests. He describes the bulk of the programming—around both the election and Trump’s criminal trials—as “including a desperate desire to frame today’s clash in the context of long-lost 20^th-century democratic norms, and to blame any transgressions on a mysterious ‘tribalism’ that plagues ‘both sides.’ ”

In the aggregate, what Bunch is calling for is less spectacle and side bets on the will-he-or-won’t-he chances of a conviction and jail sentence, and more contextualization and explanation of how authoritarian movements rely on breaking democratic norms to amass power and legitimacy.

What struck me in reading Bunch’s diagnosis of the political press corps is that we’ve actually been here before: His critique is equally apt with respect to covering the Supreme Court. Throughout 2016, as then–Senate Majority Leader Mitch McConnell staged an unprecedented blockade of Merrick Garland at the Supreme Court, the bulk of the corporate press either ignored it or grew bored of it. Because there was no historical or political language or framing for what was taking place, it simply became a nonstory or a tawdry repetition of the “both-sides” talking points about Robert Bork.

For the bulk of the past year, as we’ve been confronted with the towering pile of stories about justices accepting luxury trips and gifts from billionaires with a vested interest in the conservative legal movement’s deregulatory project, each successive tale has largely been processed in the media under the rubric “Lifestyles of the Rich and Life-Tenured.” The gifts, the trips, the spectacle of ultra-wealthy yachts and wines are almost never explicitly tied to the larger conversation about which billionaires own which justices and how much they pay to own the court. It’s a spectacle, for sure, in much the same way Mar-a-Lago’s chandeliered bathrooms are a spectacle, but the spectacle isn’t the story here; the bustling marketplace for renting a life-tenured jurist is the story. And how we allowed this to happen? That’s the scandal.

To repurpose Bunch’s critique, anyone who is presently writing and thinking about the Supreme Court who is not locating the chief justice’s refusal to appear to testify before Congress, or Justice Samuel Alito’s inappropriate and ex parte claims about congressional power over the judicial branch, within a much larger conversation about the court and the rule of law is missing the point. As story after story appears, suggesting that the same person who is cultivating relationships between billionaire donors and Supreme Court justices is also working to suppress elections, the failure to understand and then write about the Supreme Court as an institution largely captured by moneyed partisan political interests feels more and more like journalistic malpractice.

An example: Mark Meadows is back in the headlines again for his diligent efforts to subvert the outcome of the 2020 presidential election—but somehow, the fact that Ginni Thomas, the wife of a sitting justice, was texting him to urge that he do precisely this act has fallen away almost completely. Somehow, it’s been cleansed and purified by way of the same machine that insists that Justice Clarence Thomas is a good person and, as such, does not have to be subjected to any rules. The media almost unfailingly counterbalances each tale of wildly improper judicial conduct with an obligatory quote from one of the people intimately involved with that improper conduct about liberal threats to an independent judiciary, simply feeding the both-sides machine without ever noting that the person being quoted is in fact an accomplice to the misdeeds.

We have spent a good bit of time at Slate trying to reimagine a more contextualized way of reporting about the Supreme Court, and as I was rereading Bunch, it occurred to me that if we just keep reporting on the high court as a set of score cards totting up wins and losses for conservatives and liberals, we ignore the fact that the current six-justice supermajority on the court itself represents a threat to democracy and accountability, and that setting up a side beat to cover the justices’ various trips and grifts has largely had the effect of separating coverage of the justices from coverage of the court itself, even though the two are intrinsically connected.

Perhaps an essential component of court coverage in the coming weeks and months should include reference to supreme courts around the world that have either become part of a larger authoritarian creep or been sidelined in order to pave the way for more authoritarianism. Just as we should not be covering politics as though divining the winners is an end in itself, we have to stop covering cases the same way. As Bunch reminds us, the end in itself in the realm of politics is the preservation of democracy. So too the endpoint of a justice system is justice, as opposed to how many votes were logged for and against the Clean Water Act last year.

At some point in the very near future, the atomized coverage of politics and law will converge as Donald Trump attempts to deploy the former to swallow the latter up whole. That means that as much as we must cover the 2024 presidential contest and the Trump trials as national referenda on the future of democratic norms, we must work harder to cover the conservative supermajority on the Supreme Court as an engine of illiberalism, and not as one of two lacrosse teams working out the contours of Chevron deference on the grassy fields of fair play.

Every time we cover a case without mentioning who is paying for it, we’re betting on the horse race. Every time we reference a justice without noting who has been paying for them, we’re egging on the horse race. Every time we accept as principled journalism that which is mere advocacy, we’re tacitly approving of the horse race. And in so doing we’re persistently leaving vital matters of democratic concern, from voting rights to minority rule, on the cutting room floor. Unless we stop scrutinizing the Supreme Court as a mystical doctrinal laboratory that operates only in its opinions and matters for only a few weeks in June, we will continue to tell only a fragment of its story. Cases do not happen in isolated test tubes if the lab has already been paid for by special interests and the chemists are getting bonuses for producing the desired results. Almost all cases on the docket are part of a campaign to alter the constitutional and statutory landscape. That isn’t new. But as Bunch notes, if we don’t cover them as such, and if we cover them as though the only interesting question is who won, and by how many points, we won’t be covering them for much longer.