In early May, Politico reporters Josh Gerstein and Alexander Ward broke the news that the landmark 1973 abortion ruling Roe v. Wade was likely to be overturned by the U.S. Supreme Court later this year. Their reporting was based on the leak of a complete copy of a draft majority opinion written by Justice Samuel Alito that had been circulated among his fellow justices in February.
Within hours, protestors were congregating on the steps of the U.S. Supreme Court and Democratic officials were racing to the microphones to express their outrage about the possible end of Roe. Notable for its absence was any mention by Democratic leaders and their allies in the mainstream media of something they have been harshly critical of Republicans for violating in recent years: norms.
In fact, a narrative quickly emerged among the mainstream media suggesting that any concerns about how norms might have been violated by this unprecedented leak were merely efforts to avoid dealing with abortion rights.
Brian Stelter at CNN embraced the misdirection effort immediately, writing in his Reliable Sources newsletter the evening the story broke, “Let’s be very clear that the mysterious nature of the leak is nowhere near as important as the actual meaning of the draft opinion.”
Others followed suit, acting as if it was impossible for people to ponder two issues at once—the leak and the potential overturning of Roe: Julia Ioffe of Puck tweeted, “The focus on the fact of the leak—rather than the dismantling of women’s reproductive freedom and bodily autonomy—is so very Washington. Process over substance. Horse race over issues.”
Leftist media critic Dan Froomkin couldn’t believe that anyone even thought the leak worth writing about. “How,” he asked, “could the most esteemed editors of our leading national publications decide, upon learning that Roe v. Wade is presumably about to be repealed, that the most important second-day story is ‘Roberts directs investigation into leaked draft’?” Kasie Hunt of CNN agreed, criticizing Senate minority leader Mitch McConnell for calling the leak “an attack on the independence of the Supreme Court.” McConnell, declared Hunt, “focuses on the leak here instead of the draft opinion itself. This is in no small part because he knows absolutist stances on abortion are unpopular and make it harder for Republicans to win elections that will put/keep them in power.”
There were exceptions to this narrative. SCOTUSblog, which covers the Supreme Court the way ESPN covers sports, noted, “It’s impossible to overstate the earthquake this will cause inside the Court, in terms of the destruction of trust among the Justices and staff. This leak is the gravest, most unforgivable sin.”
But most of the mainstream media sided with the approach of veteran media analyst Jack Shafer, who characterized the leak as a necessary blow to an institution that “depends on the press to fetishize the mystery of the temple.” Shafer argued in Politico that the leak was warranted because Congress has effectively punted its duty to legislate on abortion, giving the Court that power for nearly 50 years. “Would Congress scream murder if one of its bills under consideration leaked to the press? Of course not. Its draft legislation gets aired all the time,” Shafer wrote. “The leak has obviously dinged the Supremes’ legal supremacy for the moment. They will recover. But the upside of the leak is grand. The public has gained a new awareness of where a court majority plans to take the nation after a half-century of legal abortion.” He noted that the leak also had a possible political motivation: “Getting a two- or three-month preview of that plan in a midterm year straight from the horse’s pen amounts to a journalistic coup of the highest order. The government works to keep you in the dark. The press to shine the light. Heaven bless the press.”
Should we bless a press that celebrates the destruction of norms when it suits their political views but sanctimoniously scolds their political opponents when it does not? This Supreme Court leak made transparent something else in addition to the inner workings of the Court: It revealed yet again just how ideologically homogenous and partisan the mainstream media’s views are when it comes to abortion, and how willing they are to celebrate the violation of norms when it suits their cause. When CBS News reporter Kate Smith was covering the confirmation hearing of Justice Amy Coney Barrett, she frequently injected her political views into her reporting. In late April, she left CBS to become Planned Parenthood’s first ever “senior director of news content” and called the leaker of the Alito opinion “braver than anyone I know.” (She also offered “a big, hearty f–k you to everyone who said I was overreacting by saying this could happen.”)
A great example of the way abortion causes media to abandon any pretense of balance was provided by the Denver Post, which interviewed activists only from abortion-rights groups such as Planned Parenthood, instructed its female readers to avoid “crisis pregnancy” centers that might suggest alternatives to abortion, and included information about how readers could donate money to pro-abortion groups—all in an ostensibly straight news story.
This ideological monoculture in the mainstream media leads to some remarkably tin-eared reporting. NBC News reporter Yamiche Alcindor offered the following thoughts while standing outside the abortion clinic in Mississippi that is at the center of the Supreme Court case: “While conservatives are celebrating the possible end of Roe v. Wade, some women here tell me they feel ‘gutted,’ ‘devastated,’ and ‘like someone has died.’” Like someone has died indeed.
Although we don’t yet know who was responsible for the leak, it’s more likely than not that it was someone with a political motivation. As the Wall Street Journal noted, “the end of April is the customary if unofficial date inside the Court for changing a vote, so the leak shortly after that date suggests the motive is to ramp up the outside pressure.” The media’s near-universal support for unlimited abortion rights allowed them to avoid examining the short- and long-term effects of the erosion of trust within the Supreme Court that the leak will cause. If strategic leaks from inside the Court become a regular occurrence, it wouldn’t merely affect politically volatile issues such as abortion. Many cases that come before the Court have a direct impact on the nation’s commercial and financial industries. Leaks that help bad actors game the markets or undermine the rule of law could have serious long-term consequences.
As well, reporters focused on signaling their support for abortion conveniently ignored the norm-violating statements of Democratic Party leaders that undermine the legitimacy of the Court. U.S. House Speaker Nancy Pelosi and Senate Majority Leader Charles E. Schumer described conservative members of the Court as “in no way accountable to the American people.” Representative Jamie Raskin called them “handpicked and gerrymandered by theocrats and autocrats.” (When asked about the leak, President Joe Biden’s press secretary and soon-to-be MSNBC employee Jen Psaki claimed the president “doesn’t have a particular view” on whether the leak was harmful.) Meanwhile, abortion activists have posted conservative justices’ home addresses online and security will be stepped up to protect them after new threats.
Cultures are created by the willingness of those who participate in them to follow certain rules, both written and unspoken. Reporters who decry norm violations only when the other side commits them understandably create a culture of mistrust in journalism. Worse, they fail to realize that protecting the Court’s institutional norms is even more crucial at a time of political extremism and polarization in the other two branches of government. The media that celebrate their destruction are making things worse—and giving us a new definition of hypocrisy along the way.
Photo: Jarek Tuszyński
We want to hear your thoughts about this article. Click here to send a letter to the editor.
