The U.S. Supreme Court always remains newsworthy, but the last few years have brought unprecedented change to the institution and the public’s perception of it. Greg Stohr, the Supreme Court reporter for Bloomberg News, has maintained a front-row seat for more than two decades. In this episode, Greg joins Todd Smith and Jody Sanders to recount some of his firsthand observations of history in the making, including his award-winning coverage of the Court’s Bush v. Gore decision. He also recounts his career from law school to journalism, the 2012 case on Obamacare, the CIA leak, and more. Greg then gives his insights on the differences between journalistic writing and legal writing and shares his opinions on the implications of issues currently before the Supreme Court.
LISTEN TO THE PODCAST HERE:
Reporting on the U.S. Supreme Court | Greg Stohr
Our guest is Greg Stohr from Bloomberg News. Greg, welcome to Texas, and thanks for being our guest.
Thanks very much. Good to be here.
If any of our readers have attended the John Hemphill Dinner down here in Austin, you will know that Greg is the featured speaker. He’s the keynote. We are doing this live face-to-face, in conjunction with not only the Hemphill Dinner, but we wrapped up the advanced appellate seminar down here in Austin.
We decided we would take this opportunity to try and visit with Greg while he was in town, and we threaded the needle. We are able to get in this interview, and so we are glad to have you with us, Greg. Tell us a little about your background and your path to the law. You’ve got an interesting situation in that you are a lawyer, but you’ve done something pretty different with your career. Give us your background and tell us about yourself.
I’m originally from St. Louis. I moved out to Washington, DC right after college and worked for a member of Congress for about three years. He was somebody who had a law degree, and I enjoyed seeing the way he thought and that made me think that going to law school would be interesting. I wasn’t sure I wanted to become a lawyer. I had always had journalism in my blood. I had been editor of my high school newspaper.
I applied to law school, I got in, I went to law school, and I liked it. I liked legal issues. I liked debating things, thinking about things, and thinking like a lawyer, as they say. I decided I didn’t want to be a lawyer or at least I was not interested in having clients, but I was interested in staying connected to the law because I had that journalism in my blood, I decided to give legal journalism a shot at that point, and that’s where I ended up.
You didn’t wind up at any law school. You wound up at Harvard Law School. Many of us aren’t so lucky as to accidentally wind up in Cambridge, but that’s quite a feat in and of itself. You had that time in between undergrad and law school, and then you did a judicial clerkship. Tell us about that one.
I did. That was fascinating. Since I am in the state of Texas, I should mention that one of my classmates, in my first-year classes, was one of your senators from Texas, Ted Cruz. I went on to clerk for a federal district judge in Baltimore, a man named Frank Kaufman, who’s now deceased. Any clerkship is fabulous, to see the inner workings and to feel like you are playing a little bit of a role there and just watching how a judge and different judges think is a fantastic experience.
I got to work with a number of judges. Judge Kaufman lent us out to the judges on the Fourth Circuit when they sat, and so I did a little work there. Judge Kaufman was also ill for part of the time, which meant that I was working with Chief Judge Motz, who took over one of the trials that Judge Kaufman had. I feel like I got to see all manner of different styles of judges and get to know a few people.
Knowing that you didn’t necessarily want to do the traditional law path, what did you do after your clerkship?
I had thought seriously about practicing law for at least a little while to pay off some bills, but I decided that it made more sense at that point if I was going to make the jump into journalism, that was probably the best time to do it, so I started looking for jobs. I got lucky that Bloomberg, at that point, was growing quickly and was willing to take a chance on somebody with an unusual background. I landed a job with them, paying almost a living wage. That was 1996 and I have basically been there ever since.
When you started, did you have an emphasis on the U.S. Supreme Court or legal journalism in general?
I was mostly covering the lower courts in DC, the Federal Trade Commission, and the Justice Department. I was part of a team of three reporters who were doing that, and then the Supreme Court beat opened up in January of ‘98, and I said, “I’d like to do that,” and it turned out to be a pretty good fit, so I have been doing it ever since.
For quite some time, you’ve been very experienced in doing that. We’ll talk about some of the cases that you’ve covered. We want to talk about the court itself. Before we move on to that, I want to ask you about your experience teaching Con Law at George Washington. You’ve been an adjunct there. Are you still doing that?
I’m not. I enjoyed it. I decided it was a huge amount of work. In the course I taught, I was trying to have the students understand how the Supreme Court works. I was using the docket and trying to let them follow cases both at the certiorari stage and at the merits stage. To appreciate the different ways and paths a case can take, it doesn’t necessarily have to be the big blockbuster constitutional ruling. It could be that the court decided to take an off-ramp. That was what the focus of it was. I would tap the people I knew in DC to bring them in and to talk to people. I taught for two semesters. I was able to go over to the court with them each time and meet with a Justice, which was a great experience for them.
Pretty early in your career, it looks like you were recognized for your coverage of the Supreme Court. One of the cases that you were involved in covering early on was Bush versus Gore. You received an award for your coverage of that. What was that like as a young journalist not too long out of law school covering such a monumental case?
That was pretty nuts. I assumed at the time that it was going to be the biggest case I was ever going to cover. I’m no longer sure about that. It was as incredible for me as it was for all the other people who were involved in one way or another. To me, the most amazing, everybody focuses on December 12th, which is the day the court issued the opinion that sealed the election for Bush. That was very dramatic, but at least in my mind, by the time we got to that point, we were all pretty sure that was what was going to happen. It was a question of being able to confirm it when you saw it in the opinion.
The moment that stands out to me was on a Saturday and maybe it was the ninth or something like that. It was the night before the Florida Supreme Court had said the recount could continue. I figured I needed to go to the U.S. Supreme Court the next day because something might happen. I went over there. Up until this time, the Supreme Court hadn’t tipped its hand. It had the earlier case where they had unanimously said not a whole lot.
In the press room, suddenly someone from the public information office comes out and hands us a piece of paper where the Supreme Court issued a stay, saying that the recount had to stop. You had a dissenting opinion by Justice Stevens, and it was at that moment that I realized, “I can see what’s going to happen here.” They are going to rule 5 to 4 and Bush is going to become President because you could finally see the division, and that is what happened.
How do you prepare as a journalist to cover these things? It’s a complex legal issue to know all the background and the issues, and then be able to communicate that to a non-legal audience. What’s your process with cases to break all that down?
I will probably do more work before a decision happens. In fact, I do a lot more work before a decision happens because I know myself and I know I’m not especially good. I’m not sure who is especially good at getting some 40-page opinion or longer and trying to make sense of it all there. The only way that I can make sense of it is to have thought through the things that the court might do with this case, and so that when I see it, when I get the opinion, I know both what it means and how I’m going to say it. It doesn’t always work out that way, but that’s the goal. I do a lot of typing, looking at it, and saying, “That’s not quite right.” Going back and trying a whole bunch of different ways until I feel like I have gotten right what each possibility is going to look like.
That sounds familiar to those of us who practice appellate law. We do a similar process.
I was thinking that and I hadn’t appreciated that there would be that much necessary prep work going into something that may happen. You’ve got the Supreme Court with a pretty limited docket. It’s a limited universe of information to look at. You can at least start with the petition and the response to the merits brief. Once cert has been granted, then you know what the issues are and you can move forward from that, but that is interesting to hear about that level of preparation that goes into it because all we see as a consumer of what you do is the end product.
I work for a wire service, so I have always had to emphasize speed and getting something out almost instantly, but now everybody’s doing that. When I started, my counterparts who work for the big newspapers could get an opinion. They could read it and they could call a few people, they could go to lunch, they could talk about it, and then they could start writing it. None of them are able to do that anymore with any big opinion. Everybody is now, certainly, one of the big opinions. Everybody’s got their Roe v. Wade overturned story ready to go. Even the lower profile ones, all my colleagues are writing an awful lot of stuff in advance and thinking about how they are going to say it, depending on what the court does.
That ties into another question I wanted to ask you about the difference between journalistic writing and legal writing. As a former judicial clerk, you’ve seen a lot of legal writing. You see it now because you review the documents related to the cases that you are covering. Clue us in as lawyers about that process. You’ve got to act quickly when that case comes out. What do you think is the biggest difference in what you do versus what advocates themselves have to do?
A lot of it is in the wording. There are words I tend not to use if there’s a more vernacular word that I can use in its place. A lot of times, it’s a struggle with editors because I say to them, “You can’t talk about that big election case at the Supreme Court unless you talk about the independent state legislature theory.” That’s a lot of words, but those words are important because they mean something.
It gets easier as you go in the sense that I know how to describe a stay application, without necessarily using the word stay. Stay is a word that most people know what it means but not everybody. It’s easy enough to say block instead of stay and that gets it across. Sometimes it’s a balance because I also don’t want to lose the lawyers who think I mean “state it.” It’s a balance.
There was another significant case. I wanted to highlight the second one that I know of that you received an award and acclamation for your coverage and that was the 2012 opinion on the Obamacare matter. That must have seemed fairly significant, although you mentioned that you didn’t think that you would have another one like Bush versus Gore.
That one is probably on the podium. That one may be the most complicated case that I have had to deal with. It’s certainly up there because there were so many issues we had, words that I was going to use in my story about the Anti-Injunction Act. You had different theories for why the individual mandate was constitutional.
You had issues about whether the expansion of Medicaid was constitutional and then you had these tremendous stakes. It was divisive politically, culturally and economically, and that was one where we genuinely did not know how it was going to come out. It’s the only case that I have covered that had three days of arguments.
I want to say every other case has only had one. Maybe there’s one with two that I’m forgetting. It was just a lot. As much as any case I have ever dealt with, that was one where I spent massive amounts of time doing that thinking that I was talking about beforehand like, “What would it look like if they did X? What would it look like if they did Y?”
When you get an opinion like that because it was a lengthy and complicated opinion, how much of that are you able to digest before you feel like you have to get something out into the world describing it?
Remarkably little. I almost hate to say how little it is. One great thing about covering the Supreme Court as opposed to other courts is that there’s a syllabus at the beginning of it. The syllabus is genuinely good. Once you are used to a syllabus, you know where to go for certain things. I go to that word at the end reversed or, in the case of healthcare, reversed in part and affirmed in part. I know to look at the breakdown of the justices because that’s going to give me a little clue.
If they are unanimous, then probably they didn’t decide something big. The key is that the syllabus has these head notes that give you the gist of it. Knowing what parts of the syllabus I’m going to want to look at makes it faster. When I put my first headlines out to get to cut to the chase, it is virtually always based on my quick read of the syllabus, and I have thought about how to put something out quickly that captures that.
Before we get into details about the last Supreme Court term, another topic I wanted to ask you quickly is your book. It’s A Black and White Case: How Affirmative Action Survived Its Greatest Legal Challenge. This goes back to 2003. You were still a relatively young reporter. You’d been on the job for some years, but that’s quite an impressive feat to put out a book at that stage of your career. Tell us a little about that.
I wanted to give it a try to see if I could do it. There were two cases. It was the University of Michigan affirmative action cases, one involving the law school and one involving the undergraduate school. The stakes were enormous. It was the case where they could have done what they may well do next year, which universities can’t consider race as an admissions factor.
It was one where you can talk to people on both sides of that issue and get compelling stories. You can talk to the student who feels strongly that she was discriminated against because she’s White and she will tell you her story and you can talk to the African-American student who can talk about the benefits of affirmative action and the university officials that talk about how important it is that they have diversity on their campuses.
The answer to most thinking people shouldn’t be knee-jerk obvious, people on both sides have things up. It was, to me, a story that could be told from a lot of different perspectives. What I tried to do was let the people on each side make their case for themselves as well as they could, and hopefully let the reader think about the various perspectives and hopefully have a more informed way of thinking about the issue.
Are any more books in your future?
I don’t think so. People joke about it. The book that I wrote in 2003 may well become dated if indeed the Supreme Court overturns the greater decision. I’m always thinking about it, but at the moment don’t have a plan.
We shouldn’t dance around the issue anymore. We would like to visit with you about the last term. We certainly also want to get your thoughts about what we might expect from the term coming up, but this was a monumental term, to say the least. Everybody reading this knows about the Dobbs’ decision. The big, ongoing controversy, in that case, was the leak. How did the journalistic world react to that? That was unprecedented, to say the least.
To go back to the affirmative action book, I was flipping through and I noticed a place in there where I said, “I wrote this.” The Supreme Court, much like the CIA, is one of the leak-proof institutions of Washington. That’s no longer the case. It was stunning. We have seen, in recent years, some much smaller leaks.
There have been pretty strong signs that some folks on the conservative side of the court that there have been pieces written by like the Wall Street Journal editorial page and some other conservative press expressing worry about how certain cases might come out, including the Title VII LGBTQ Job Discrimination Case and Obamacare.
It seemed like they got a least a sense of what was going on from the conservative side of the court. The Wall Street Journal editorial page, shortly before the leak, wrote something that said, “We think Justice Alito might be writing the opinion. We are concerned that the chief justice might be trying to woo Justice Kavanaugh. No signs that it’s working so far but we are worried about it.”
To leak a whole opinion, I don’t know what to make of that and I still don’t know what to make of that. I can make the case that it came from somebody on the conservative side and make the case that it came from somebody on the liberal side, and I can probably make the case that it came from somebody who didn’t have an agenda.
I don’t think the Supreme Court wouldn’t necessarily have to be an institution that doesn’t even want to talk about past things, but for the most part, they don’t. They don’t want to talk about how they decided on a case and what the internal deliberations were. To reveal something about a pending case and to reveal that much is such a breach of what we are all used to from the court.
I remember in law school reading the book The Brethren, and that being a fairly controversial book even then, twenty years after that had come out, because some of the internal deliberations of the court had been revealed after the fact.
I read that a couple of times myself and it’s a fascinating book, but even that I don’t think was revealing anything that hadn’t happened yet.
As a journalist, when you first get something like that and it’s out there and you don’t know, do you have ways to verify it yourself before you report on that?
We could report that. Politico reported this. They had the opinion there. It certainly looked legitimate and so you could attribute it all to them according to the document they posted. The court made all our lives easier when they said it’s authentic. When the chief said it, it’s authentic in a lot of ways, we could all assume that was the case and then work from there. The question was, “Was anybody going to change sides?”
Do you have any sense internally? I don’t mean with deliberations, but the way that the court treats that information. Has there been any shift in the way that they handle those sorts of things after that?
I don’t have any clear knowledge of that. There was a period in the last term where it sure seemed like the court wasn’t doing much of anything. They were slow on their opinions from the leak up until about the middle of June. It wouldn’t surprise me that they had put in place some new mechanisms to make sure it didn’t happen again, but they managed to get all their work out and nothing else about the abortion opinion leaked. That was the other thing I was wondering. I was like, “Is somebody else now going to report that the morning or the day before, or something like that, the court is prepared to rule that Roe v. Wade is overturned or whatever?”
The court launched its internal investigation. I have seen online chatter expressing some skepticism about what the outcome of that’s going to be. Is there anything that you know that you can tell us or what do you anticipate might happen as a result of that internal investigation?
I’m not sure we will ever find out unless the leaker comes forward. If a law clerk was involved, that law clerk is now out of the building. What leverage the court may have had with the law clerks is reduced. It could be somebody else. It’s also the case that if the court finds the answer, they might tell the public, but they haven’t said they are going to tell the public. Given that I don’t have any more hard information, it’s hard for me to predict whether this is entirely speculative. If say a Justice knew about this in advance, would the court want to make that information public? I’m not so sure.
That could raise potential impeachment. You think about the breach of confidence and maybe even illegal activity. It could create a much bigger problem than the leak itself, I would assume. We have covered the leak. Dobbs was a major decision and it’s having its own ripple effects throughout the states. Once the opinion came out, the leaked version was fairly true. Was there anything after that that was unexpected or what was your approach to reporting on it after the leak?
In some ways, that was one of the easiest stories I wrote because I prepared. I had the quotes I wanted to use from Alito’s opinion. I had to double-check that they are still in there. It was pretty straightforward. I don’t mean to sound crass on an issue that is so important to so many people, but as a Supreme Court reporter, I’m rooting for something that’s clean that I can understand, and that opinion was very clean and easy to describe what they had done.
There are some questions about it. I have spent a lot of time staring at Justice Kavanaugh’s concurring opinion to see what he is saying about the right to travel here and how that affects the state that’s trying to ban people from going to another state to get an abortion. Like every news organization, we had planned a lot of our coverage for several days out there. The stories were if they do this, here are the stories we are planning on running with.
The thing that was the biggest surprise to me during the term was not so much the Dobbs case. The leak did and the outcome is huge. The Texas case and the way the court handled the Texas case was a moment where there was a law that pretty clearly could not be squared with the existing abortion jurisprudence. That was set up in a way to evade judicial review. It was a pretty strong case that it was Texas defying Supreme Court precedent. The fact that the Supreme Court essentially said, “That’s fine,” both telegraphed what was going to happen in Dobbs.
I don’t see how they let the Texas Law go into effect and then say, “We are leaving Roe in place or we are certainly not,” that they not strike down the Mississippi Law or anything like that. The fact that they created this pathway that the consequences of which we don’t know yet that might be that other states may be able to use it successfully. Some states are trying to do that. It was, to me, a big moment and probably one we will be returning to in future years.
That’s one thing I did want to ask you about, however you want to term it, and a lot of people have started using the term shadow docket at the court. It is doing a lot more in that context. You are used to the traditional opinion, the briefing, the cert, and all the arguments, but they are doing a lot of movement in different cases. It’s not behind the scenes, but off of their main docket. That’s a good example. Have you noticed that as a trend in the last few years?
First of all, there have been so many shadow docket cases. There are a lot of reasons for it, including the fact that when Trump was President, now with Biden as President, anytime they do something, somebody is going to sue. They are going to sue in a friendly court where they may get a nationwide injunction to block the policy they don’t like. That inevitably comes up to the Supreme Court and they have to deal with it.
Some of it, the court has invited itself. It has implicitly encouraged. There’s a certain amount of it where that’s the reality of judging right now. Unquestionably, they are hearing the criticism of it. In three cases the last term, they did something that ended up being a hybrid where they took something on the shadow docket, and they heard arguments in it to give it a little more thoughtful consideration, or at least the appearance of a more thoughtful consideration.
It won’t surprise me if we get more of that going forward. They have got the time to do it. Their docket is not that big. It seems like they have probably got the bandwidth to do it. I have a feeling it’s going to be more of this. It won’t surprise me if we get, for example, another abortion case this term. There are enough issues out there where you could see, either way, a lower court judge might go. You could see somebody coming to the Supreme Court saying, “We need you to act right now.” The court is saying, “This is a big deal.” If we are going to do this and have it at least seem to have a precedential effect, we want to hear arguments about it.
I think about the Texas cases with the inmate executions and the clergy within the execution room, that’s another one that moved through that process quickly.
You had all the COVID restrictions and all the capacity limits that affected houses of worship. You’ve always had a stay of execution cases. There are so many. I’m forgetting some of them. It became like a part of the job. Unlike opinions and argued cases when I can pretty much tell you the days where we’ll get opinions at 10:00 on Monday and Thursday, these emergency docket things can come out at any time, and sometimes they come out at midnight. There’s even one that came out at 5:00 in the morning. That has changed the nature of my job.
Closing the loop on the last term, were there any other cases that stood out to you in terms of your coverage of them or their significance?
I went in thinking that the big cases were abortion, the Second Amendment case involving the right to carry, and the case about the EPA and its ability to regulate greenhouse gas emissions from power plants and thinking those were in that. For Bloomberg, it has some significant business implications, so that was up there.
In all three of those, I’m pretty sure which way abortion was going to go. I’m pretty sure which way guns were going to go. I figured EPA was going that way too, otherwise why would they have taken this case? In all three of them, the court went pretty big in its analysis and legal reasoning. The Second Amendment is now no longer using these. We are going to have some lawyers here. Tears of scrutiny to consider gun regulations. They are looking at history and tradition. History and tradition are going to be hugely important for this court and assessing what constitutional provisions mean.
In the EPA case, I didn’t think that the Chief Justice would write an opinion that was this big. They gave a pretty robust endorsement to this notion of a major questions doctrine that if Congress is going to delegate some major question to a federal agency, it’s got to be clear about it. The court said it didn’t do that in the case of the climate change regulations that the Obama administration tried to put into place. It was noteworthy, especially at the end of the term. This is a rather bold court right now. It’s not a court, not in every single case, but it’s not a court that’s afraid to seriously change some doctrine.
Looking ahead, we are about to start a new term. What cases do you have your eye on that have caught your attention that you are looking forward to tackling?
There are five or six that are pretty big in my mind already. We alluded to the affirmative action cases involving Harvard and North Carolina that could outlaw the use of race as an admissions factor. There is a big Clean Water Act case that they are going to hear on the first day of the term about the extent that the federal government can regulate things like wetlands that are near a big body of water, near the so-called water of the United States and what connection that the wetland has to have to that.
There’s a big Voting Rights Act case having to do with whether a state either can or must consider race in drawing congressional districts and think about whether we could draw two majority Black districts in our state rather than one. You get a lot of attention from interesting cases. A case about a Colorado website designer who says she’s going to design websites for weddings but doesn’t want to design them for same-sex weddings. The question is whether that Colorado’s anti-discrimination law which bars public accommodations from discriminating on the basis of sexual orientation.
Whether she’s subject to that or whether she has a First Amendment right to not do that. There’s one other case that I should probably take a breath because it is a big deal about whether state Supreme Courts have the ability to say that those congressional districts that the legislature drew are so partisan they violate the state constitution and that could be a tremendously important case in election law.
It could kick off a lot of litigation here in Texas if that’s the way that decision comes out. We have a strong, if not disorganized, state constitution. I know some folks who might be interested in tackling that litigation. They are going to be watching that case closely and the others, too. One thing that we have to be reminded of, as I said at the beginning, we have come off a two-day appellate conference. We did hear some reports on some of these cases, but we have to get outside of Texas from time to time and be reminded that there are these cases that have this much broader sweeping effect, potentially, and can lead to a lot of litigation in a lot of other places.
In fairness, in a typical Supreme Court term, roughly half the cases involve Texas.
I don’t mean to forget to mention that either because it is true.
We interviewed Kannon Shanmugam. He was talking about the shift from a court that was over the last couple of decades, more or less in equipoise, where you had a 5/4 court with a swing justice, depending on who it was, to one that’s more heavily weighted to a 6/3 court. Now there’s not necessarily a swing justice. Do you see implications from that beyond what we have talked about going forward in the next few years and next few terms, because this was the first term we have had with that lineup? Where do you think that that’s headed?
We are headed for a lot of conservative decisions. If you are a liberal on this court and let’s assume that Ketanji Brown Jackson is in line with Kagan and Sotomayor on the biggest cases. It’s one thing that you need to pick off one conservative justice to win a case. To pick off two is hard to do. It’s often the procedural stuff where Roberts and Kavanaugh or maybe Barrett aren’t willing to go as far as quickly as the Thomas, Alito, Gorsuch wing of the court, but that’s almost more a matter of pace than of the ultimate result. A lot of those happen on things like stay applications.
We are in a completely different world than we were before Ruth Bader Ginsburg died, where you had a conservative court. It was conservative, where John Roberts was the one who controlled how far they went. Now, I’m not sure who it is who controls how far they go. Maybe it’s Brett Kavanaugh. In some cases, Neil Gorsuch sometimes surprises. They have to get two of those conservatives on the liberal side, which is a tall order.
Another thing that we have seen with the transition of the court, particularly with the Dobbs decision, is you’ve seen a lot more about the justices’ personal lives in the news than maybe you had before, Justice Kavanaugh with protests. You’ve seen a lot about Justice Thomas and his wife in the news. Is that something that you think is going to continue a little bit more scrutiny on the justices outside of court?
Justice Thomas is a category unto himself because of his wife’s activities. That will continue to the extent there are revelations that she was involved in the effort to overthrow the election results. It’s hard to say. I was about to say, “Passions will cool a little bit.” I listed a bunch of cases for you, including some where people have strong emotional views on them. That seems to be the case. To me, we end up with another term where the court does some big things say, “You can’t use race in admissions.” That is going to be an issue that people feel strongly about.
To the extent, we are talking about protests outside justices’ homes. I’m not ready to predict whether that’s going to continue. It might. Unfortunately, it’s not just protests. It also, at least one case, involves somebody who was there apparently attempting to murder a Justice. I should say allegedly, but the indication he was armed and he was there. Hopefully, that does not continue, but in the world we are in, it’s hard to say with confidence that that thing won’t happen again.
When the court has been in session in normal times or pre-COVID times, have you made it a habit to attend arguments or the readings of orders and opinions in the courtroom?
I try to go to as many arguments as I can. I have only been up in the courtroom for opinions a small number of times. The reason is that in pre-COVID times, they would hand us a copy of the opinions in the press room, and that would be the fastest way to report on them. If I’m up in the courtroom, I’m way behind. On opinion days, I would always be down in the press room.
I loved going to arguments. Unfortunately, even this last term, I went to only a small number of arguments. They did open them to those of us who have Supreme Court press credentials. A combination of things, including the requirement that we get a COVID test beforehand, and the availability of the livestream has meant that there are many times a reason why I don’t go to the court and instead cover it off the livestream. It’s less fun and, in some ways, more efficient.
That livestream, that’s been audio only the whole time, hasn’t it?
I could see how that would have certain limitations. We have the good fortune of our state Supreme Court arguments are all broadcast live on video and available for later viewing, which is we are used to this open attitude about our courts. We had a panel of our immediate three chief justices of the Texas Supreme Court talking about how this is the way we do things in Texas.
One of the overarching concerns about cameras in the courtroom and the biggest that you hear is you will have people playing to the camera, and in our experience that hasn’t turned out to be the case. I can speak for lawyers generally, I wish the Supreme Court would start broadcasting, but in my understanding of how that institution works, it’s not very likely to happen anytime soon.
There’s not even a guarantee the livestream will continue. I knock on the wood table here. I think it will, but the court did that because it had to. When it started hearing arguments by telephone, that was the only way any of us could hear what was going on. They opened this last term up to a small number of reporters and nobody else could hear what was going on, so they started doing livestream from the courtroom and we don’t know yet what the plan is for October 2022.
Are they going to open the courtroom up to everybody again? If they do that, are they going to continue the livestream? I’m not sure why they wouldn’t do that, but there is no guarantee and there’s been a lot of resistance on the court to opening things up to cameras. I don’t expect to see that in my time covering the Supreme Court. I do think the livestream experience with it, everything I saw was people liked it. They got a lot out of it and I’m not aware of any instance where it was abused in any way that might cause them to say, “We should stop doing this.”
What brings you to town is that you are the keynote speaker for the Hemphill Dinner. By the time this is posted, your talk will be completed. I wondered if, for those who aren’t able to go, we might be able to give them a little bit of a preview. You are going to be having a conversation on stage, but is there anything that you are going to be covering that would be of interest to our readers?
We have covered an awful lot of it. I suppose one thing that I do expect to get into is how much Twitter has changed in covering the court. I talked a little bit earlier about how even newspaper reporters are having to do stuff quickly now. We are now in a world where many people, including me, get their news from somebody’s tweet. A tweet that is composed 30 seconds after something happens is rarely as thoughtful as a tweet that’s composed an hour after something that happened.
The tweet that’s composed 30 seconds after may be the one that gets retweeted and everybody sees. I do my best to be ready for anything that might be happening, but there are all sorts of stuff that I’m not ready for, the stuff that’s happening in real-time arguments. I’m trying to figure out what was the meaning of that question that Justice so-and-so asked or whatever.
I think there is some. As much as I love it, I love Twitter as I’m a baseball fan, and I love the trade deadline watching Twitter, seeing so many other things, too. There’s a real danger when you are dealing with complicated legal stuff. Even when it’s smart people who know a lot about the subject and are tweeting about it and saying something about it. There’s a real danger that we are all getting our information a little too quickly instead of getting the version that has a little more seasoning to it.
That’s a great observation. It’s so true. We are Twitter people, here on this side of the table. I’m on board with what you are saying about getting your sports news over Twitter because Saturdays, especially in college football season, I’m tuned into what’s going on.
Todd and I aren’t breaking any news on our Twitter feed either.
I can tell you that half the people who are attending this weekend’s Texas-Alabama game were on my flight coming here.
I believe it. I saw my first red Roll Tide shirt driving in to go to the conference and I thought, “We are about to be taken over.”
As we conclude, if you have any tips or war stories that you’d like to share. You’ve shared a lot of great stuff, but if you have anything else that you’d like to share with our readers here in the last couple of minutes.
The story that does come to mind to go back to the 2012 healthcare case was that was a moment of a complicated decision. The dynamic was the main way we thought the case was going to be decided. Did Congress have the power to require people to have insurance under the constitutional commerce clause? The Chief Justice wrote his opinion, the way he laid it out was, first he said, “No, Congress doesn’t have that power under the commerce clause.” He then said, “It does have it under the taxing power.” There were a couple of news organizations that, unfortunately for them, ran with the first part of Roberts’ opinion, just saw that and assumed Obamacare was struck down.
I will credit one of my counterparts. David Savage of the Los Angeles Times, one of my friends in the press room, was somebody who very much likes talking about how cases might come out and what the possibilities are. David was the one who put it in my head that there’s a world where the chief will say, “Congress can’t do it under the Commerce Clause power, but Congress can do it under the Taxing power.”
The key to covering that case was to turn the page of the opinion to the next page, where Roberts said, “But they can do it under the Taxing power.” My tip is maybe to turn the page before you read the whole syllabus. I will confess that I’m glad I didn’t get bogged down in whatever they did with the Medicaid expansion and the spending clause power because that would have completely thrown me off. I did at least turn the page enough to know that he had upheld it under the Taxing power and so that was a good thing.
It’s been a real treat for us to visit with you, especially live and in person. Thanks for carving out some time for us. We certainly look forward to hearing your conversation with Lisa Eskow. She is the Co-Director of the U.S. Supreme Court Clinic at the UT Law School. She’s knowledgeable about what’s going on at the Supreme Court. That will be a great conversation, and again, thanks for coming to Texas and doing the Hemphill, and thanks for visiting with us.
Thanks very much. It was a lot of fun.
About Greg Stohr
Award-winning journalist who has covered the U.S. Supreme Court for Bloomberg News since 1998. Was on the scene for the Bush v. Gore decision, the Obergefell gay marriage ruling and the Obamacare blockbusters, and has interviewed multiple Supreme Court justices.
Wrote a well-received book on the 2003 University of Michigan affirmative action cases. Enjoys making arcane legal issues understandable and meaningful in both print and electronic media. One-time co-host of the Bloomberg Law radio program and adjunct professor at George Washington University Law School.
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