By admin 
This week, veteran National Public Radio reporter Nina Totenberg briefly published a story stating that Supreme Court Justice Samuel Alito was retiring. This report was wrong, and within minutes, NPR retracted the story. What followed was a day of public self-flagellation from Totenberg, her editor, and NPR itself, followed by a Cersei Lannister walk of shame–level pile-on from everyone else. Was this a significant journalistic blunder? For sure, as Totenberg was the first to admit in her public interview and apology to the justice.
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But was it an egregious, personal error, akin to Totenberg stealing into Alito’s hotel room and absconding with an internal organ, as it has been widely treated? We don’t think so. Indeed, what has been grievously missed in the melee is that this is not really a press story at all—it is a story about court transparency and hubris. This mistake reveals an institution that has repeatedly and systemically sidestepped public accountability by making itself impossible to cover by human reporters and, in so doing, has made itself vastly harder to understand by the very public it is meant to serve.
For decades, the justices have deliberately shielded themselves from public scrutiny, erecting—or refusing to dismantle—bafflingly unnecessary obstacles that stand between their imperial proclamations and the public who must live under their dictates. Conveniently, this muddled and outdated system also lets the justices spend the last two weeks of every June blitzing the public with hundreds of pages of esoteric and dense opinions—opinions that may take away treasured and deeply enshrined constitutional rights. Oh, and any mistaken understandings about what they just said? Well, that’s totally not on them. Unerringly, they blame a sloppy and careless press or an ignorant public for failing to understand. Then they brush off their hands and walk away, leaving the fires to burn behind them.
Let’s back up a moment to paint a picture of what decision days look like at 1 First St. Each year, the court chooses to hand down the bulk of its biggest, most complex, and most controversial decisions during the last weeks of its term. It also chooses to keep secret all information about which of these decisions are coming down and when. What’s more, the court opts to allow neither cameras nor livestream audio of opinion announcements (despite a two-year campaign by many members of the press corps—including one of us—and by Fix the Court to change this). The court instead records these announcements and chooses to release them only to the National Archives—wait for it—months later, usually (although not always) at some point the following October. (The Oyez Project then makes that available to the public.) In other words, news of the court is served ice-cold.
Thus, journalists seeking to cover the handing down of decisions are forced to pick between attending the announcements in person (where they are forbidden from using technology to communicate with their editors) or waiting for the opinions to be posted online or delivered to them via the farcical “running of the interns.” If they choose the latter, they miss the justices’ statements inside the courtroom entirely. The result is that journalists must scramble to cover the formal, public act of the justices reading opinions and dissents from the bench as though they were proclamations from the Oracle at Delphi that must be frantically whispered in a breakneck game of First Amendment telephone. Predictably, this absurd process leads to occasional, although surprisingly rare, mistakes.
It does not, of course, have to be this way. This is not how other courts do it. This is how an imperial court operates, a court that feels absolutely no responsibility to make itself, its rulings, or its processes available to the American public in any usable way. Imperial courts hold themselves to no rules, no ethical requirements, and no disclosure obligations. They likewise give no concession to the idea that the public has an interest in knowing where justices go, what they say, or who paid their way. Imperial courts similarly feel no responsibility to inform the public about matters of the justices’ health and illness, and instead let the public find out about highly consequential judicial retirements in much the same way they find out about the rest of the court’s work: as a breathless “Luke, I am your father” cliff-hanger that is usually piled on at the end of all the other critically important news they dump on us in those last days of June. Or possibly July. But for sure, at some point, they’ll get around to letting us know.
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Not only do these pointless intentional obstacles to court transparency create an environment in which the press corps is needlessly set up to fail, and the public is needlessly left to sort through the mess, but they also give the justices cover to behave in ways that would draw real scrutiny if they occurred in almost any other public institution. Without cameras or timely released transcripts or audio, moments of pettiness, score settling, or open contempt for colleagues or parties by the justices can, and have, gone almost entirely unnoticed. Just last week, Alito went rogue during the opinion hand-down in one of the court’s major immigration decisions. According to reports from inside the courtroom, the justice was “visibly frustrated” and “testy” as Justice Sonia Sotomayor read her dissent to his opinion from the bench, apparently rocking in his seat, staring at the ceiling, and closing his eyes while she spoke. Then he went off script to essentially say in a public session that he could have disputed more of her points if he had wanted to. This highly unusual break in protocol reminded other court watchers of a truly bizarre moment in 2015 when Justice Antonin Scalia spoke out of turn from the bench not only to offer an off-the-cuff rebuttal to Justice Stephen Breyer in an important death penalty case, but also to add seemingly gratuitous snipes about a completely unrelated same-sex marriage case that had been announced a week earlier.
The justices continue to insist that there is no tension among them and that they agree cordially on all things. One way a court can handle rumors of interpersonal bickering is to stop behaving badly in public sessions. The other way—as chosen by this court—is to close those sessions and bury the audio for months.
Finally, if you think the obstacles to orderly press coverage and the absurdities of decision-day theater are bad, remember that they are nothing compared to how the court does its own substantive work. The justices do this increasingly on the fly and in the dark. A new ProPublica analysis found that during the court’s previous term, starting in 2024 and ending last June, the justices for the first time decided more cases through the so-called shadow docket than they did in open court. In other words, SCOTUS resolved more cases through the anonymous, brief-skipping, oral-argument-skipping, and opinion-skipping “emergency docket” than it did through its traditional decisionmaking process.
None of this is inevitable. All obstacles we have described—from the opinion-release blackouts to the ongoing mysteries of judicial travel to the unsigned midnight orders on the shadow docket—are avoidable. They also each serve the same purpose: to keep the public distant, confused, and grateful for whatever miserly scraps of information the justices deign to release to us. A single mistaken headline, corrected within minutes, led to a flurry of news coverage and a public reckoning for a respected reporter. The court, meanwhile, has been making life-altering decisions for millions of Americans without warning, without cameras, and, increasingly, without so much as a signature affixed to the reasoning. Further, when a member of the court makes an error in an opinion, they can quietly tweak it in-house to correct it. No public self-abasement necessary.
Accountability and transparency are always, always a good thing in any institution, including the media. They are a cornerstone to public understanding and trust. But when it comes to the highest court in the land, accountability seems to flow in just one direction. The way everyone responded to this error—by turning a simple mistake into a ritual flogging—only bolsters the toxic notion that the press is forever viciously intruding on the secret, sacred work of perfect jurists. But this work is, let’s recall, done by a branch of government that serves the public. If we’re really going to start doling out blame for the public’s misunderstanding of the court’s work, we should perhaps begin by looking at the institution that has made the promotion of informational chaos and confusion its business model.
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