Smoke, Mirrors, and Attacks on the Law

by | Apr 26, 2023 | Law and Fair Courts

How a Cabal of Academics and Journalists is Working with Democrats to Discredit the Supreme Court

The Cabal You Don’t See

On April 6, 2023, in the last months of what’s likely to be a landmark Supreme Court term, America’s establishment media lobbed a preemptive grenade against the Court’s conservative majority. The vessel was the prominent investigative news site ProPublica. The grenade was a 3,000-word article titled “Clarence Thomas and the Billionaire” detailing Thomas’ 30-year relationship with Harlan Crow, a real estate investor and Republican donor. The “scoop” was that Crow had invited Thomas, his wife, and other guests on at least five all-expense-paid trips and provided the Justice at least six private plane rides. Crow reportedly also sponsored at least two public donations in Thomas’ honor, bought his childhood house with the intent of turning it into a public museum, and gifted him a $19,000 Bible.

Not much in the story will surprise or upset anyone already aware of Thomas’ history or the Supreme Court’s business. Thomas was a “movement conservative” even before his appointment to the bench and has socialized in conservative political circles for 40 years. The ProPublica report didn’t uncover a case where Thomas ruled in favor of Crow, since Crow’s companies never appeared before the court. Even the fact that Thomas hadn’t reported Crow’s gifts, the “smoking gun” of the story, was not news: Until this year justices operated under reporting requirements that were extremely discretionary. In a statement issued two days after the story broke, the Justice assured the public that he would comply with the new guidelines.

Still, Slate, New York Magazine, and the Washington Post condemned Thomas while the New York Times called for Congress to tighten ethics rules for the Court. Democratic Senators called for a Justice Department investigation. Democratic Socialist Rep. Alexandria Ocasio-Cortez demanded Thomas’ impeachment. There was pushback from conservatives but few met the attack head-on. That’s unfortunate because, as with so much of the smoke-and-mirror game coming from Washington and New York, the apparent story here isn’t the real one. Whether you agree or disagree with Justice Thomas’ views, in the real story he’s only a minor player.

The major players are academics and journalists at national institutions who indirectly—but definitely—shape the narrative the country hears about the Supreme Court. Though they project the authority of the Ivy League and establishment media, they don’t make law and aren’t public figures, so their backgrounds and beliefs aren’t deeply examined. But they should be, because even a cursory examination of their actions since Donald Trump jeopardized the Court’s 70-year role as a vehicle for expanding national power makes a pattern plain. For the past six years, these purportedly objective operators have given explicit institutional support to the Democratic Party, helping it delegitimize the Supreme Court with a thousand cuts, both small and large. In the process, they’ve threatened the Constitution’s separation of powers and obscured a real debate over what the court’s role in the federal system should be.

The First Gender Offensive: MeToo (2017-2018)

These players’ first moves against the Supreme Court, like that of the broader establishment against Trump, had to do with gender. When “swing” Justice Anthony Kennedy retired in 2018 and Trump nominated conservative Judge Brett Kavanaugh to replace him, Kavanaugh’s confirmation seemed assured. Though his views were anathema to Democrats and some Republicans doubted his longtime Washington ties, Kavanaugh  was one of the most influential and respected conservative judges on the federal appellate bench and Senate Republicans had the majority votes to confirm him. It took a “MeToo” scandal-linked leak from Democratic institutions, amplified by the press and academia, to send Kavanaugh’s confirmation hearings out of control.

This leak was of a confidential letter sent to a Democratic representative and senator detailing a sexual assault the writer alleged Kavanaugh had committed on her in high school, decades before—an assault the accuser didn’t remember the location of and which the key witness allegedly on the scene refused to corroborate. Ronan Farrow and Jane Mayer ran the first version of the story at the New Yorker on September 14. Nine days later they ran another claim, made after another accuser spent “six days carefully assessing her memories,” of a college fraternity party thirty-four or thirty-five years earlier where she said that Kavanaugh had exposed himself to her. Four more dubious claims surfaced in the days that followed. At the same time, more than 2,400 law professors sent a letter to the Senate opposing Kavanaugh’s nomination and 40 percent of the faculty of Yale Law School, Kavanaugh’s alma mater, signed a letter demanding a full investigation.

Spurred by the institutional leaks and reports, Democratic activists organized by the Center for Popular Democracy arrived on Capitol Hill to trail senators down the halls, camp outside their offices, and scream during judiciary hearings. 293 were arrested. Two women, one the co-executive director for the Center for Popular Democracy, followed moderate Republican Senator Jeff Flake to an elevator, “blocked the [elevator] door, preventing it from closing as they yelled their protests…with a bank of cameras suddenly trained on him.” Later that day, Flake unexpectedly reversed a previous position and agreed to let the FBI open an investigation into the 35 year old claims, which garnered its own criticisms from Democrats for lack of thoroughness. (The clear but unstated benefit of a longer investigation would be to paralyze confirmation proceedings until the 2018 midterm elections might shift Senate control.)

Like the ProPublica story about Clarence Thomas, the Kavanaugh allegations were extremely thin: The first was doubted even by one of the accuser’s parents and both lacked corroborating witnesses. But thanks to heavy pushes from Democrats and selective reporting from the establishment media and academia, the function of the allegations was to make the confirmation hearings about gender not law.

The players doing this reframing had their own histories with the Supreme Court, though no one reported on them. Jane Mayer and New York Times executive editor Jill Abramson had written Strange Justice, an account of Thomas’ controversial confirmation hearings in 1994, which agreed with the controversy-generating charge that he had sexually harassed his former Equal Opportunity Employment Commission employee Anita Hill.

The law professors who came out against Kavanaugh came from a similar ideological place. According to a 2015 study from the Harvard Kennedy School, “Not only do all of the [top 14 law] schools lean to the left, the skew is fairly extreme in several of the schools”; and according to a 2017 Kennedy School study only 15 percent of law professors are conservative. Finally, the Center for Popular Democracy was hardly “popular.” It was founded in 2012 in the Center for American Progress, the most influential voice in staffing the Obama White House in 2008 which also received funding from the fortune that founded and helps fund ProPublica. George Soros, a smaller donor to the Center for American Progress and to ProPublica, also helped fund the Center for Popular Democracy.

After Justice Kavanaugh was narrowly confirmed, these players and their allies doubled down on their gender-based narrative. Linda Greenhouse—the Yale law lecturer, longtime New York Times Supreme Court reporter, and author of an admiring biography of Roe v. Wade decision author Harry Blackmun— compared Kavanaugh to a former justice associated with the Ku Klux Klan and urged him to move Left on gender issues to clear his name.

Ruth Marcus, the center-left Washington Post columnist, wrote an entire book on the Kavanaugh hearings, calling the allegations an “indelible” stain on the Court—never mind the fact that unwarranted probes into murky private lives are what center-Left legal experts used to condemn. Jane Mayer told Elle that she was still hunting down evidence of Kavanaugh’s alleged assaults. Prominent feminist journalists like Rebecca Traister moved into legal writing, urging Democrats to make the 2020 reelection campaign of moderate Republican Senator Susan Collins entirely about her decision to confirm Kavanaugh. Legal columnists like Yale Law graduate and Slate senior editor Dahlia Lithwick moved from law to gender commentary with a piece explaining why she hadn’t attended Supreme Court oral arguments since Kavanaugh’s confirmation: “None of us, as women, [are] ever going to be perfectly safe again.”

Others took the gender push further. Leah Litman, a law professor who along with a number of other women had accused a prominent conservative federal judge of harassment and who had written a piece in 2018 opposing Kavanaugh’s confirmation, alleged in the New York Times that Chief Justice John Roberts demonstrated gender biases by cutting the three liberal women justices off in argument more than the four conservative men. Since even liberal accounts of the Court emphasize that the purpose of Justices’ questioning is to advance points with each other and that justices in the minority tend to speak more, a conservative Chief Justice pushing his side isn’t surprising. But the function of the piece, like all of these pieces, was to define the Court through the lens of gender discrimination, not legal debate.

This was also the not-so-subtle stand of Democratic Washington: In the name of gender ideology, anything goes. As Senate Minority Leader  Chuck Schumer put it in 2020 as the justices considered an abortion case, “I want to tell you Kavanaugh — you have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” Who in the establishment was going to criticize him for making that threat? Legal academics and journalists?

The Legitimacy Offensive: Biden’s Presidential Commission and Insider Gossip (2020-2021)

In 2020, after President Trump secured a six-justice conservative court majority and Joe Biden won the White House, Washington Democrats became more aggressive about attacking the legitimacy of the Court. Their main weapon was the Presidential Commission on the Supreme Court, created by President Biden in response to Democratic pressure to “pack the court” with Democratic-appointed justices, that laid out “the principal arguments in the contemporary public debate for and against Supreme Court reform.”

This measured description of the Commission didn’t match its eventual report. According to Linda Greenhouse, “taken as a whole, the commission’s work lets the public in on the fact that the legal academy is close to giving up on the Supreme Court.” She wrote this as a number of former commissioners or witnesses for the commission took to the pages of newspapers and magazines to push for shifts as radical as passing legislation limiting the Court’s jurisdiction and making all federal judges eligible to be part of a “rotating” Supreme Court of 16 justices.

Again, the reports of establishment reporters like Greenhouse and the short clips that found their way to Yahoo weren’t the whole story. This “bipartisan commission” was comprised of well-known “progressive” legal academics and moderate conservatives. Prominent center-leftists didn’t make an appearance. No recognizable name from the originalist perspective, which has dominated conservative legal scholarship since the 1980s with its arguments that courts should follow the founders’ intent and defer to elected legislatures, appeared on the list. Finally, two conservative commissioners resigned before the commission released its report, a shift only reported by the New York Post.

But the purpose of the Commission” wasn’t accuracy. It was meant to use institutional heft to drive home a point: That the Supreme Court had lost “legitimacy” among academic authorities and needed radical reforms. And this point got picked up avidly by institutional allies: Emily Bazelon, a creative writing fellow at Yale Law School and a staff writer at the New York Times Magazine, was regurgitating it there within a year to a wider audience.

At the same time, establishment media players reinforced this point in a different way. Longtime NPR chief Supreme Court correspondent Nina Totenberg grabbed headlines with a disputed story from court “insiders” claiming that Obama-appointed Justice Sonia Sotomayor wouldn’t attend oral arguments because Trump-appointed Justice Neil Gorsuch wouldn’t wear a mask during the COVID pandemic. Then Totenberg grabbed more headlines when she refused to retract the piece after a court denial, and was eagerly backed by allied voices (“I am embarrassed for the Supreme Court,” wrote Dahlia Lithwick in Slate.)

CNN and former USA Today senior Supreme Court analyst Joan Biskupic published a book on the court’s new conservative majority that reviewers acknowledged was heavy on backroom gossip, painting a Court rife with personality disorders. In both reports, the court wasn’t a body of people committed to different ideas of its role in the Constitutional system. Instead, as the New York Times’ opinion page put it, the court was “just one more Washington institution” in need of reform.

Like a few years before, the academics driving this point had histories. As Greenhouse explicitly said, “the titans of liberal constitutional scholarship” who “dominate the nation’s law school faculties” had clerked on the liberal 1960s Warren Court, which had expanded judicial power at legislatures’ expense as the Kennedy-Johnson Administration had done for the executive branch. Now many of these veterans of the era which peaked with Roe v. Wade either sat on the commission or had taught the scholars who sat on or testified for it.

The journalists driving this point had histories, too. Nina Totenberg was a longtime friend of Justice Ruth Bader Ginsburg and a “founding mother” of NPR, itself an outgrowth of national government funding by the Kennedy-Johnson administration. And Joan Biskupic had published complimentary biographies of liberal and “swing” justices Sonia Sotomayor and Sandra Day O’Connor and critical ones of Chief Justice Roberts and Antonin Scalia. But this wasn’t context included in the short snippets on ABC or NBC that came from their reporting.

The Gender-and-Legitimacy Offensive: Dobbs v. Jackson and Another Pincer Protest (2022)

By this point, in the months before and after the Court’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, moderate and center-left establishment legal voices alike were jumping the shark. Jeannie Suk Gersen, a center-left academic and New Yorker writer known for her support of civil liberties, compared Texas’ abortion restrictions to a “totalitarian regime” and warned of the court hurting its “fragile legitimacy” by overturning Roe.

When the ruling was leaked in May 2022, Neal Katyal, Barack Obama’s former acting solicitor general, called it the “hugest step back for women in decades” on MSNBC. Linda Greenhouse in the New York Times and Margaret Talbot in the New Yorker put the decision down to the justices’ Roman Catholicism and misogyny (not the first time Talbot had made the claim that year). Washington Post columnist Jennifer Rubin wrote that Chief Justice Roberts’ concern over heightened attacks on the Court was “whining,” quoted Leah Litman comparing Roberts to “a first year law student,” and argued that the court was destroying its “integrity.”

Slate’s Mark Joseph Stern accused the court of “dilettantism” and “cruel disregard.” CNN commentator Fareed Zakaria, referencing a joke that Dobbs author Justice Samuel Alito made before a conservative audience about the decision in July, called Alito’s words “disgusting,” “undignified,” “scandalous,” “cheap,” and a threat to the Supreme Court’s “dignity.”

Meanwhile, actual threats to the court’s dignity were happening each day outside conservative justices’ houses. After the ruling was leaked, protestors organized by the far-left ” groups Ruth Sent Us and Vigil for Democracy released the location of the conservative justices’ houses online and descended on them for months-long protests.

“The vast majority of people here are pro-choice,” said one resident of Kavanaugh’s neighborhood, “and the very vast majority of people here think that these protesters have gotten out of control.” Police converged on the streets and an armed man was arrested before he could attempt to assassinate Judge Kavanaugh, who was also harassed at a restaurant by protestors demanding the owners remove him.

Reaction in the Washington establishment was mute. Biden White House press secretary Jen Psaki said, “I think the president’s view is that there’s a lot of passion, a lot of fear, a lot of sadness from many, many people across this country about what they saw in that leaked document.” Attorney General Merrick Garland declined to enforce a 1950 federal law making protests outside the justices’ homes illegal. And the press, again, only wanted to discuss the crisis to the court posed by the leak it itself had run. According to CNN chief legal analyst Jeffrey Toobin, “I really don’t know how or if the institution is going to recover.” The nearest establishment criticism of the protestors came from Ruth Marcus, in a Washington Post piece titled, tellingly, “Even Conservative Justices Have a Right to Privacy.”

As usual, a lot was being left out by the people pushing arguments and hyperbole. As even center-left legal academics had once acknowledged, many of the Supreme Court’s expansive decisions that began in the early 1960s and ended with Roe in 1973 had almost no precedent nor constitutional support, and their legitimacy is surely as debatable as the harms of overturning them.

What’s more, leaking, double-dealing, and backstabbing on the Court are far from unprecedented—yet it’s always survived. What is unprecedented is public harassment of justices with tacit establishment support. Finally, explaining judges’ decision-making off of characteristics like religion, gender or ethnicity is what Democrats have traditionally deplored.

But who was going to say this? Legal thinkers like Gersen and Katyal, who had come up in law schools dominated by liberal legal theorists? Columnists like Zakaria or Rubin, who move in the same environment and get fed what these experts tell them? CNN experts like Toobin, a former colleague of Jane Mayer’s who, despite his best efforts to get kicked out, remains a card-carrying member of  established media? The Biden administration, which was rallying its troops behind just such government expansions on fronts ranging from race to environmentalism, and wanted to get out the Democratic vote in November?

The Ethics’ Offensive: Justices and their Wives (2022-2023)

In 2022 and early 2023, establishment tactics against the court shifted in an even more personal direction. In this new narrative, conservative justices were delegitimizing the court with their marriages and personnel decisions.

The first spouse at issue was Clarence Thomas’ wife, Virginia “Ginni” Thomas, a conservative organizer even before she met and married her husband whose work has extended to pro-Trump organizations. Her supposed breach was in sending Trump allies and Arizona officials concerned texts and emails in the 2020 election’s aftermath, urging them to support President Trump’s claims of a stolen election.

The second spouse at issue was John Roberts’ wife, Jane Sullivan Roberts, a prominent legal recruiter whose ex-colleague accused her of conflicts-of-interest for placing lawyers at firms with business before the Supreme Court. Finally, Chief Justice Roberts was himself attacked for not disclosing past court payments to a security consulting firm which Roberts contracted to sign off on the court’s investigation into the Dobbs leak.

Establishment media coverage was intense. During 2022 the New York Times ran no fewer than 12 articles on Ginni Thomas’ activism. Jeffrey Toobin called it “problematic” and “extraordinary” while Jane Mayer wrote a New Yorker profile asking (rhetorically) whether she was a “threat to the Supreme Court.” The Jane Sullivan Roberts story was run in the Times and picked up by Forbes, Newsweek, and the American Bar Association Journal. The other Roberts story, which was broken by Joan Biskupic on CNN, was run by the Washington Post, Politico, and the Atlantic. Amazingly, this was all before the ProPublica report in April 2023 about Justice Thomas and Harlan Crow.

What wasn’t being emphasized, as usual, was as telling as what was. Ginni Thomas’ intense activism had been documented for years, nor did she participate in any legal action to overturn the 2020 election. Jane Sullivan Roberts had voluntarily left her partnership at a top Washington law firm when her husband was appointed Chief Justice to avoid even the appearance of impropriety, and the ex-colleague who’d raised the ethics issue had been laid off by her firm and filed a grievance lawsuit years before. The Chief Justice using a Washington security consulting firm he trusted to insulate the court from more inquiries that would further erode its standing was a practical, even adroit, move from any commonsense standpoint. What’s more, as with Justice Thomas’ ties to Harlan Crow, Roberts wasn’t required to disclose the firm’s past services to the court.

What about the Law?

Getting lost in all of the leaks, “revelations,” protests, commissions, scoops and official silences is the purpose of the court: Functioning as the last resort for interpreting how our constitutional system should work. Until 1960—with a few glaring exceptions—the court played a restrained role, leaving state and national legislatures to work out most conflicts through democratic debate. Tellingly, those pre-1960 exceptions have been condemned by the same cabal of establishment commentators who also praise the expansive Warren Court of the 1960s and condemn today’s court for wanting to return power to Congress and the states. The reason these players give for the contradiction, when they do, is that the Warren Court expanded its authority in ways that serve their moral vision. But the more practical reason for the contradiction isn’t hard to find, and it’s about power.

The administrative state and the institutions it funds shaped these peoples’ lives, and in more ways than one. Linda Greenhouse’s father taught at Yale and she grew up in the era when JFK and LBJ poured funding into these universities for research while making professors partners in government. Jane Mayer is directly tied to one of the families that reaped profits from government-underwritten mergers and deregulations in the 1990s and 2000s. Ruth Marcus has family ties to the Obama White House. Merrick Garland owes his advancement to the Ivy League and Democrats and has family ties to Democratic-appointed Supreme Court justices.

ProPublica was founded with profits from government-encouraged, mortgage-backed securities that ended with Too-Big-To-Fail—profits which also fund the Center for American Progress and indirectly support the Center for Popular Democracy. Journalists and commentators like Nina Totenberg, Joan Biskupic, Fareed Zakaria, Jeannie Suk Gersen, Jeffrey Toobin, Dahlia Lithwick and Neal Katyal are all establishment-minted: These institutions educated, rewarded, and now leak to them.

Younger scholars like those who testified in front of Biden’s Court Commission, many of them progressives of color, came through Ivy league institutions in the affirmative action era and see the Court’s moves as threats to racial equity. Younger reporters, also more progressive, run in the same circles and aren’t going to eat their own. None of these people are objective reporters, because a Supreme Court that wants to limit the power of the establishment and return power to the states and the people will never be their friend.

That’s why these accredited professionals trained in legal reasoning are producing reports that read like political pornography: Relying on extraneous details, unfounded innuendo, false logic, and a drip-drip of strategically timed leaks to obscure the fact that there’s no real story there at all. On the rare occasion someone in this world points that out, it’s a small pebble submerged in the stream of suggestion that’s finding its way to two-minute clips on ABC or a short article on Yahoo. This stream reinforces a perception that the Court is off the rails, giving Democratic politicians and activists the institutional ammunition to do pretty much whatever they like in response.

Whither the Court?

Where does this leave our legal system? Despite the constant urgings from a permanent class of unelected commentators, it’s unlikely that Democrats will have the political power or the public support to seriously change the court. The immediate question is whether Chief Justice Roberts, an institutionalist deeply concerned with perception, will succeed in persuading conservative colleagues to change their legal approach in the face of these attacks.

To limit that possibility, conservatives need to protect the Supreme Court. That means targeting not just the Democrats and their activists but the cabal operating from the institutions; the people who can say what they like without any reporting being done about them. The facts about these operators are out there in the open—all we have to do is bring them to public notice.

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