The Flagpole (Athens, GA)
Interview with Dahlia Lithwick
February 16, 2011

In Part One of Flagpole‘s interview with Dahlia Lithwick, the Supreme Court Correspondent for Slate magazine, Lithwick described the class on media and the courts that she recently taught at the University of Georgia School of Law. She then discussed her view that Republicans in recent decades have been far more successful than Democrats at stocking the federal bench—including the Supreme Court—with ideologically committed judges. At the close of Part One, Lithwick pointed out that Democrats seem to have been unprepared for the reality of having a federal judicial branch one-third composed of George W. Bush appointees.

Flagpole: There’s been no serious effort to correct that, or certainly no success at it.

Dahlia Lithwick: I don’t see it. I think—and I’ve written this, and I hope to be wrong about it—but I think that President Obama is very much of a generation that wants the courts to pull back, and that thinks that the Warren Court overreached, and is… I would almost use the word “embarrassed” at the liberal excesses of the ’60s and ’70s. And that, even though the outcomes were good, right?—I mean, thank God we had Brown—the reasoning was indefensible and the overreach was indefensible. And so, it’s better, in his view, to say, “I believe in the legislature; I believe that the courts should do as little as possible,” and that, you know, elections matter. But, unfortunately, I think he’s contending with the conservative answer to the Warren Court.

FP: Precisely, and as somebody who’s been styled as a constitutional scholar, shouldn’t he know well enough to be able to answer that, and to at least look for corrective measures?

DL: I think that it’s not completely fair to put this on him… I think that one of the reasons that this judicial revolution has been seated, for decades, on the Right, in almost complete silence, is because I don’t exactly know what the Left has been doing since the Warren era. And I think that Obama is not the cause of this; I think he’s a symptom of an inability to say, in one clear and coherent sentence, “This is what liberal judges do… This is why the Court cannot be beholden to popular will.” And we seem completely to have ceded that argument.

And I don’t want to throw the baby out with the bathwater… you know, the American Constitutional Society is working on this; the Center for Constitutional Accountability; there’s all sorts of interesting stuff being done. At Yale there are scholars who are really working on sort of reclaiming the Constitution… So, it’s not that it’s not happening, but I think it’s just been really slow to start to arise, and very, very reactive, as opposed to proactive.

FP: And this is something you’ve written a lot about, of late especially: the conservative “possession” of the Constitution as proprietary to them, and the Left’s inability, or even possible unwillingness, to reclaim it, as you put it, for the sane.

DL: I find it so interesting, because part of it is a function of having a media that is so… “our side and their side,” and we don’t speak to each other and we don’t listen to each other, and there’s not even an effort now to be having a real conversation with each other. We’re just talking amongst ourselves… it’s a huge problem. But I think that a little bit of what’s gone on, particularly with the Tea Party and Glenn Beck’s sort of profound constitutional revisionism—his selecting a handful of, quote, “constitutional scholars” and then just sending them out into the world to become New York Times best-sellers, even though they’re making stuff up—I don’t know that the Left has even cottoned onto how much that’s happened, or how widespread this new sort of Tea-Party love affair with the Constitution has taken root, and how important it’s become in this country…

FP: Can you tell me a little bit about the way that this divide between “us and them” actually plays out within the media who are covering the courts? I mean, there’s absolutely no doubt that the Glenn Becks of the world and their followers see someone like you as a radical left-wing extremist.

DL: It goes to [the idea that] the center has moved. I mean, the center has moved so far to the right that anybody who’s… marginally to the left of Stephen Breyer is, you know, a radical. You see that in Obama’s judicial picks: one person he put up who was moderately liberal was Goodwin Liu in California, who was perfectly analogous to most of the people on the Right that Bush put up. But he’s been blocked, and excoriated; his hearing was just a disaster… he’s been sort of painted as [being] to the left of Thurgood Marshall: a pot-smoking, hemp-wearing hippie. And, you know, he’s a renowned academic… So, I think it’s that ability to say, anyone who isn’t in the center—even though the center isn’t even in the center—is a radical and a socialist who doesn’t love this country is just another really effective way of moving the conversation to the right.

I think one thing that’s nice about the Supreme Court press corps—and I think it’s a last bastion of pretty nonpartisan coverage, and there are costs to this—but I think they have really worked hard, as a group, to keep the inflammatory rhetoric out of it, try to just report the facts… I think, to a one, this press corps are wonky and academic: what they like to do is read briefs; they like nothing better than a good footnote in a brief—this is not a bunch of people who are, you know, throwing flaming torches.

I think we’re a very collegial group, and I think that, as a consequence, the coverage of the Court has been dispassionate and fair—now, sometimes, that’s a problem; sometimes, you want to say, “Wait! Citizens United was really bad!” And you leave that to the editorial writers, because we really don’t want to be seen as partisan. But I think, by and large, in a media that is so riven, maybe it’s nice that there’s this little bubble of sanity in Court coverage. We’ve talked about this a lot in class: I mean, is it a good thing or a bad thing that we still cover the Court in the voice of Linda Greenhouse? That is, dispassionate and neutral. And, as I say, there are costs. But I think one of the problems is that now, you have Michele Bachman saying, “Oh, the framers all worked to their dying days to eradicate slavery”—just complete revisionism—and because we’re not answering, there’s a real question in my mind about who is answering that. Who’s pushing back? I’m the first person to say, the conversation about the Constitution is long overdue. Wonderful—let’s talk about the 14th Amendment and why we have birthright citizenship—but I think that the one-sided conversation that’s happening, that is both seen as utterly persuasive and, in my view, a lot of it is revisionist; I think that’s very, very scary.

FP: As to the press corps, let me bring up the subject of how many women there are covering the Supreme Court, very prominently—there’s you and, as you said, Linda Greenhouse, Jan Crawford Greenburg, Nina Totenberg…

DL: Marcia Coyle, Joan Biskupic… It’s amazing—it’s an amazing press corps for being, I want to say, 50–50. I can’t think of a lot of other political beats that are as completely… not only gender-split, but some of the sort of “deans” of the Supreme Court press corps are women. And the dominant voices are women, and so, it’s a really great beat for women, and women have just thrived there. You look at a world where there’s still disproportionate male bylines, and it’s nice to see that the Court is a place where it’s almost completely inconsequential what your gender is. That really, I think, has rewarded women.

FP: Is that something that your students have taken note of, or that you’ve discussed with them?

DL: We’ve talked about it a little bit; probably not enough. I think, sometimes, when people probe this issue, they spew out this even more sort of sexist, you know, “The reason women excel at this is ’cause they’re really good at research!”

…I do think that, stereotypes aside—and I think women lawyers will tell you these are the same stereotypes that really hamper women in law—is the idea that they want nothing more than to go through boxes of documents and synthesize, because they don’t have opinions, and they don’t have an endgame; they just really like to, you know, do the work. And that’s just not true…

But I guess I do think that this is a beat that’s great for moms. I mean, every person you’ve named has had children on this beat—Jan has four! This is a beat that gives you your summer off, largely; there’s never a 2 a.m. Supreme Court emergency, unless someone dies; there’s no expectation that you miss dinner with your family; I mean, you can do this and have a family, and there’s very few beats that you can say that about. It’s a really sane schedule, and you know it months in advance; it’s not gonna change. And I think that’s not inconsequential; I think it draws women. And then, this is a beat where people stay forever. I was joking with my class—I’ve been doing this for 12 years and I’m still one of the youngest people in the corps; people don’t leave! I mean, Linda [Greenhouse] did it for 30 years…

And some of it goes to what we were talking about before, in terms of how conflictual and broken-down the media is, and how we happen to be in a moment in the media where being controversial is more important than being factual, and screaming is more important than talking, and sound bites are more important than nuance. And if you believe that all of that is true, if you can find a beat that doesn’t reward those things… I think the Court is that beat. I think the Court is really one of the last bastions of civil disagreement: it’s not that people who cover the Court don’t have opinions, but they’re not setting each other on fire every morning. There’s just not a premium on that kind of punditry. And forgive me, but I think some of that is really male: this super-aggressive shouting at each other. It seems to me that, given the choice, most women I know don’t want to engage in that. Now, maybe that’s a ridiculously gendered statement, and certainly there are a lot of women in the media who do want to engage in that, but I think that, for those of us who just think that disturbs the public and the press, and the institution we’re covering, the Court is a nice beat to be in, because we don’t talk that way—ever. Not even after Bush v. Gore!