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This is On the Media. I'm Brooke Gladstone. The Supreme Court's approval ratings have plunged to historic lows since Roe v. Wade was overturned last year and ProPublica's bombshell reporting on justice Clarence Thomas's failure to disclose gifts from billionaire Harlan Crow is unlikely to earn back the public's faith in our highest court. Last week, Slate published the series of articles addressing this "Disorder in the Court" and in the Legal Press Corps. Slate's law and court reporter Dahlia Lithwick contributed an article called Imagine if the Press Covered the Supreme Court like Congress. Welcome back to On the Media, Dahlia.

Dahlia Lithwick: It's so good to be with you again, Brooke.

Brooke Gladstone: As part of Slate's new series called Disorder in the Court referring to both the high court and the legal press, you observed that you can write that the Supreme Court is de-legitimizing itself only so many times before you've made yourself ridiculous. The real question is why are we all zealously reporting on its decisions as though they were immutable legal truths? You basically say the Supreme Court is no longer functioning as a real court. What do you mean?

Dahlia Lithwick: Well, you can start with Bush v. Gore, which was an opinion that was supposed to be rooted in law, but the court was careful to say, "Never use this opinion because it's only good for this one election." You can start with Citizens United when the court on a completely crazy theory opened the spigot for huge dark money in campaigns and the world we live in since then.

You can set the timer to Shelby County when the court decided to overturn a big chunk of the Voting Rights Act, which had been authorized over and over again with explicit findings that it was necessary by Congress, or you can go to Dobbs just around this time last year where the court with the stroke of a pen said, "Roe was a mistake. Casey was a mistake. There's no such thing as a right to abortion. Work it out in the States." At any one of those moments as a country, one could have said, "Wait, these are terrible illegitimate decisions. Why are we not talking about structurally this question of how the court got to be this way?

Brooke Gladstone: Okay, you refer to terrible illegitimate decisions. I'm not going to dispute the terrible part, but let's focus on the illegitimate part. A lot of people thought, for instance, that Roe v. Wade wasn't a great decision. Ruth Bader Ginsburg thought it was a terrible basis on which to protect abortion rights. She would've much preferred equal protection for instance. Were they wrong to revisit the nature of some of these laws?

Dahlia Lithwick: If the question is can and should a constitutional court ever look back and error-correct, of course, and that is how we got Obergefel, marriage equality. That's how you get Brown vs. Board. The court at some point has to reverse Dred Scott. I think the bigger question you're asking is what do you do with the court that in the course of a really few short weeks, last June decided to do precisely that in about five different areas of the law, decided there's no such thing as the lemon test. That's the test that separates Church and State, there's no such thing as Roe v. Wade. We are going to radically change the law of the Second Amendment. This year the court is going after a precedent that's been recently affirmed, but that has been the law for decades on affirmative action. We are going to radically change the way that agencies like the EPA can regulate climate change because we've invented this new thing called the Major Questions Doctrine. Stay tuned listeners, that's going to be the way that the court gets rid of the Biden Administration's student loan forgiveness program later this year.

What do you do with the court that willy-nilly says, "Everything that was the law for decades is now up for grabs and we are going to reach out and take cases not properly before us to make sure that the new law, as we see it, is the law of the land." There are many, many, many cases in recent years of things that are false that then get baked into the doctrine and then are taken as truth.

Brooke Gladstone: What are the wrong facts that the high court is bringing to new cases?

Dahlia Lithwick: The best example I can offer is the case last year of Coach Kennedy, the famous praying football coach who wanted to pray with his students on the 50-yard line right after high school football games. You may recall that the school district in question said, "Look, Coach Kennedy, we have again decades of law that say that you cannot proselytize with students in public schools. Is there a way that you can do your prayer in a private area after the game?" Coach Kennedy's response was, "No, I have religious freedom rights." When that case was decided by the US Supreme Court, in his opinion, Justice Gorsuch time and time and time again referenced Coach Kennedy as having a private moment of prayer just between him and his God. Justice Sonia Sotomayor in decent was apoplectic, Brooke because TV cameras were capturing Coach Kennedy on the field surrounded by players lifting their helmets aloft.

She kept saying, "You cannot call this private," and appended photos to make that point. We are now seeing, by the way, all around the country, for instance, in Texas, massive, massive reversals of decades of law on proselytizing students who the court has always said are super suggestible and should be protected from proselytizing simply because Justice Gorsuch inserted into his opinion the utterly fallacious notion that this was a private moment of prayer between an educator and God. It was not true, and yet that is the law.

Brooke Gladstone: Earlier you mentioned something called the Major Questions Doctrine that's been used by this Supreme Court to limit the power of federal agencies. You put that in the list with other things that aren't true.

Dahlia Lithwick: That's exactly right, Brooke. This basically says that an agency like the EPA has to point to "A clear congressional authorization when they claim any authority from a statute." In the court's view, agencies consistently overreach, and so they need specific congressional authorization to do what they are doing. It essentially means that no agency can do anything unless it's been super expressly authorized. What that means is, because we all know that Congress can't get anything done, agencies can't do things. That is again, going to be the basis for, I suspect, setting aside the Student Loan Forgiveness Program, but the real nut of the thing is this, there's no such thing as the Major Questions Doctrine. It is not rooted in the Constitution. It is not a decades-old or even years-old test. It is something new. Your quietness freaks me out.

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Brooke Gladstone: Your words freak me out, Dahlia. Okay. Public approval for the Supreme Court at its lowest level in over half a century, you've written about a seismic shift in the institution and you say a turning point for you was the increasing use by this court of something called the Shadow Docket.

Dahlia Lithwick: Steven Vladeck, who teaches law at UT Austin and has an amazing book called The Shadow Docket, and Will Baude, who's a law professor actually I think invented the term "The Shadow Docket." What they were clocking that the rest of us were missing was that in recent years, the US Supreme Court were deciding more and more cases on an emergency basis. We've always had a "Shadow docket." We've always had an emergency docket. It was used for executions.

Suddenly in the Trump years, cases were rocketing to the high court, and instead of being argued in public, instead of having extensive briefing and finding of facts, the court was deciding seismically important cases on the emergency docket often at midnight, often with two unsigned paragraphs.

The example that I offer is SB 8, that Texas "Vigilante abortion bill," that would have given folks a bounty for turning in someone who aided and abetted an abortion. Even before that term started, the court on the Shadow Docket upheld that. The court had in an unsigned late-night order essentially said, "Cool, cool, cool Texas. This law is perfectly fine." We literally didn't know the reasoning, we just knew that the court had decided it. Once the court, in effect, blessed this vigilante law that for one-tenth of the childbearing population in the United States overturned Roe v. Wade long before Dobbs did.

That's how that term started. By the way, the court's approval ratings are the lowest they've ever been since Gallup polling began. The American public almost was ahead of the legacy media in recoiling at the notion that a court whose job is principally to show its work was not showing its work, was just throwing out the law and saying, "Here's what the new law is." When the Dobbs opinion was leaked, that was also seismic at the court.

Brooke Gladstone: Why was that so significant?

Dahlia Lithwick: We've just never had the totality of an opinion leak to the press in advance of publication. That's never happened. We've never had, in my lifetime, the kind of back-biting amongst the justices that immediately followed. Justice Alito saying, "Now our lives are in danger." Justice Thomas saying, "Stuff like this would never have happened under Chief Justice Rehnquist. He was a much better chief." Just palpable mistrust within the institution and the incandescently stupid probe into who leaked the opinion, which could not have been handled worse. We had the law clerks subject to deep, deep scrutiny and penalties of criminal sanctions, and the justices were taken to tea and asked polite questions and offered macaroons.

To have that result in a statement that, "We did our best, [chuckles] but we can't find the leaker," was just catastrophically bad for the court's legitimacy. I cannot believe, and this is maybe the most important thing I can say, that a court that by designs has neither the power of the purse nor the sword. The only power it has is the public's willingness to suspend disbelief and say, "This is not a partisan political institution. This institution is different." For the court to be so far down the road of, "Hey, we're a partisan political institution, but there's more, we'll do more partisan political things," it's actually heartbreaking.

Brooke Gladstone: You've noted that the Supreme Court Press Corps focuses on a handful of cases every year and leaves, "Matters of judicial conduct" pushed to the side to be handled by the political press. You've noted how Politico and ProPublica and others have covered that. You observed that the whole idea of the Shadow Docket was first noted by legal academics, not by reporters. How would you divide this labor?

Dahlia Lithwick: I think we have to cover both. The cases are essential and in the next four weeks when the court decides affirmative action and the Alabama gerrymandering case and decides 303 creative, that's the case about whether folks can discriminate against LGBTQ couples, that all has to be covered and the Supreme Court Press Corps will do it ably. Also, there's a whole bunch of other vectors that the Supreme Court Press Corps can't do alone. I've been really heartened by the fact that the New York Times is hiring for somebody to cover the court as a political partisan institution. The New Republic hung out a sign saying, "Hey, we need people to do this." ProPublica, Politico. There's a phenomenal piece in the New Republic about Barry Side, the guy who gave that massive, massive chunk of money to Leonard Leo.

Brooke Gladstone: Just a quick note here, Barry Side, who's a 90-plus-year-old manufacturing magnate, gave Leonard Leo who helped to choose Trump's judicial nominees for the Federalist Society, $1.6 billion to build up Leo's Dark Money Network to influence the court.

Dahlia Lithwick: I think we are going to see the advent of an immense amount of reporting on, "Where's the money? How is Leonard Leo, who has been in and out of a bunch of front groups that are pouring money into amicus briefs, into academic work that lifts up ideas like the ones we talked about, the major questions, doctrine-- Who are these people?" Why are we only hearing about Harlan Crow's gifts? Now, when this was all reported in 2011, 2012. This was all out there.

Brooke Gladstone: Well, it wasn't all out there. Justice Thomas did not report a lot of this stuff.

Dahlia Lithwick: He didn't report, but the LA Times caught him out not reporting. I mean, there's been a whole series of articles about-- In fact when for years and years he wasn't reporting money that Ginni Thomas was paid from the Heritage Foundation, he was caught out by it and went back and amended his filing. The idea that this all started this fall when ProPublica reported on Harlan Crow is simply not true. It's that, I just don't think anybody saw it as their beat. Sheldon Whitehouse, the Senator from Rhode Island has been making this argument at every confirmation hearing for years now.

Maybe the most succinct articulation of the problem that I find myself in is when Harlan Crow gets caught out for spending half a million dollars on these cruises that Clarence Thomas is taking and not disclosing and says, "Well, but I have no business before the court," it was Senator Whitehouse who said, "Oh my God, your business is the court." There's a photograph that's been disseminated again in that ProPublica reporting of Harlan Crow, Clarence Thomas, Leonard Leo, Mark Paoletta, all people who are involved in this enterprise of making sure that these millions of dollars that are slashing around are going to get certain political outcomes at the court. Whether it's busting unions, circumventing voting, affirmative action, ending Roe-- Whatever it is, not connecting the dots the way that portrait connected the dots is what Senator Whitehouse says is a signal failure of the media. Nobody should be hearing this on your show for the first time.

Brooke Gladstone: Do you reflect on any of your own reporting and wish you'd approached it differently?

Dahlia Lithwick: Yes. Look, I've been doing this for 23 years. I genuinely believed that my job was the kin to science reporting, translating complicated doctrines so people can understand it. I have no regrets about years spent doing that. When people say to me, "Wait a minute, you mean we knew that Harlan Crow was giving Thomas gifts and Thomas was not disclosing them since 2011 and you didn't write about that?" I do have regrets. The fact that Ginni Thomas was intimately involved, not just in texting Mark Meadows about the 2020 election, but in getting in touch with state officials, urging them to set aside election results, we know all this, and I didn't sound the alarm that there is a machine at work that is simmering right under the part of the court that I did cover as this oracular balls and strikes institution to the extent I can defend myself.

As long as the court was more or less conducting itself as an oracular ball and strikes institution, I was okay squinting a little and saying, "Look, everybody knows that the justices are not umpires." It's my job to explain the law and somebody else will figure this out. The idea that we are now sitting a top of this mess of ethics violations in a moment where John Roberts gave a speech in which he more or less was the human shruggy emoji just like, "Nothing to see here, we're fixing it," and then by the way, adds that the most heartbreaking moment for him as Chief Justice was the decision to put fencing up around the building last year as though the greatest suffering post-Dobbs was the suffering of the justices themselves. The level of complete self-delusion in a statement like that is breathtaking.

The idea that I didn't think that part of my job was discomforting the comfortable or holding powerful people to account or powerful systems to account and that it wasn't my job to follow the money, it wasn't my job to figure that out, yes, I have regrets.

Brooke Gladstone: Dahlia, thank you so much.

Dahlia Lithwick: I'm sorry you sound so sad. [laughter] Thank you for having me.

Brooke Gladstone: Dahlia Lithwick, writes about the courts and the law for Slate. She's also the host of the podcast, Amicus. Slates New Series on the Courts and the Legal Press is called Disorder In The Court. Coming up, a beloved hip-hop group experiences a digital resurrection, this is On the Media. This is On the Media, I'm Brooke Gladstone.