WSJ Calls for Keeping Judiciary in Shadows

Ari Paul

A New York Times investigation (9/15/24) has given us great insight into Supreme Court Chief Justice John Roberts, who—unlike the president and the speaker of the House—enjoys a great deal of shielding from press scrutiny. The paper reported that when a flurry of cases about the January 6 attempted insurrection at the Capitol reached the court, the “chief justice responded by deploying his authority to steer rulings that benefited [former President Donald] Trump.”

The paper’s investigation drew “on details from the justices’ private memos, documentation of the proceedings and interviews with court insiders” from all partisan stripes. They spoke, reporters Jodi Kantor and Adam Liptak said, “on the condition of anonymity because deliberations are supposed to be kept secret.”

It was splashed on the cover of the Sunday print edition for good reason: The Supreme Court is a mysterious institution, and Roberts has long been thought of as a more temperate and prudent judicial conservative, a breed apart from the partisan hacks appointed by Trump. The investigation gives us some illustration of what happens behind closed doors, and drives home the point that Trump has benefited legally from the normal channels of American power, not just the followers of his MAGA cult.

'Damaging to the comity'

The Wall Street Journal (9/15/24) called the New York Times report (9/15/24) on the Trump immunity deliberations "slanted in the way readers have come to expect from the Times."

Roberts is probably not a happy man these days. Joining him is the Wall Street Journal, which continues to drive home the point that Supreme Court operations, for the sake of the republic, must be hidden from the public and remain a murky affair. Anyone shining the light too brightly is burning through the Constitution.

In an editorial (9/15/24), the paper said that the most "damaging to the comity at the court…are leaks about the internal discussions among the justices." The editorial board said that an “account of the private conversation among the justices after an oral argument…is a betrayal of confidence that will affect how the justices do their work.” It speculated that this “leak bears the possible fingerprints of one or more of the justices.”

Much of the editorial is a defense of the conservative justices in the Trump cases, as is the paper’s partisan lean. But it goes further, saying that the “intent” of the Times investigation “is clearly to tarnish the court as political, and hit the chief in particular.” It went on:

The story in the Times is part of a larger progressive political campaign to damage the credibility of the court to justify Democratic legislation that will destroy its independence. That this campaign may have picked up allies inside the court is all the more worrying. We are at a dangerous juncture in American constitutional history, and Mr. Trump isn’t the only, or the greatest, risk.

In the rest of the Murdoch-owned press, the New York Post editorial board (9/16/24) republished snippets of the Journal editorial and Fox News (9/16/24) also bashed the leaks.

'Malice aforethought'

For Alan Dershowitz (Wall Street Journal, 10/30/22), the public doesn't have a right to know that their reproductive rights are about to be taken away, but they do have a right to know who would dare inform them of such a thing.

A news article painting the Supreme Court as a politicized part of government in 2024 is a little like a scientific inquiry into whether water is wet (CounterSpin, 5/19/23), and it’s easy to disregard the Journal’s anger at the Times as a mixture of partisan feuding and journalistic envy.

But something else is at work: The Journal has a track record of advocating that the court operate without public scrutiny. When Politico (5/2/22) reported that a draft court decision would soon overturn Roe v. Wade, the Journal went into attack mode.

Trump-defending legal scholar Alan Dershowitz took to the Journal (10/30/22) to advocate finding out who the leaker was, saying, “Learning and disclosing the source of the leak would strengthen the high court by preventing future breaches.” In a later piece (2/1/23), Dershowitz asserted that “the argument for compelled disclosure is strong because the source didn’t seek to expose any wrongdoing by the government.”

In direct response to the Politico report, the Journal editorial board (5/3/22) called the leak “an unprecedented breach of trust, and one that must be assumed was done with malice aforethought.” It added that the response to the report was “intended to intimidate the justices and, if that doesn’t work, use abortion to change the election subject in November from Democratic policy failures.” A Journal op-ed (6/24/22) called the leak an “act of institutional sabotage.”

Sheltered from citizens

What is going on here is a seemingly bizarre, but not unprecedented, case of a journalistic institution opposing the actual act of real journalism. When the Guardian (6/11/13) reported on widespread National Security Agency surveillance, thanks to a leak by Edward Snowden, or when Chelsea Manning was sentenced for leaking intelligence information to Wikileaks (PBS, 8/21/13), a few journalists absurdly asserted that both the leakers and the outlets acted irresponsibly in exposing secret documents (FAIR.org, 5/1/15, 1/18/17, 5/25/17,  4/1/19).

But other than spot news, journalism is the publishing of materials that weren’t meant to be public. Reporters commonly get their scoops because someone in power gave them a heads up that shouldn’t have happened—a tip on a grand jury indictment, details of an upcoming corporate merger, etc.

Like its campaign against the leak to Politico, the Journal’s outrage against the Times story isn’t just rooted in its allegiance to conservative policy-making in all three branches of government. The editorial reaction here is the defense of the idea that the court is not a normal branch of government, that it is an esoteric council of secret elites who must operate in the shadows away from the citizenry and, of course, the press.

In other words, the Journal is against, of all things, journalism that exposes how powerful institutions function.

Featured image: New York Times photo illustration from its report (9/15/24) on Chief Justice John Roberts' deliberations.