In a pre-Dobbs world, the Washington Post deferred to a Supreme Court justice

The Scoop

In January 2021, the Washington Post’s Supreme Court reporter and his editors agreed: The upside-down American flag seen flying outside Justice Samuel Alito’s Virginia home was not, on its own, a story.

Earlier this month, that same story broke in The New York Times, which reported that Alito said his wife had raised the flag — a symbol adopted by supporters of former President Donald Trump who believed the election had been stolen from him — amid a neighborhood dispute.

Nine days after the flag scoop, a deadpan Post report acknowledged that the D.C. paper learned of the upside-down flag incident more than three years ago, but chose at the time not to report on it.

The decision was a matter of “consensus,” said Cameron Barr, the former senior managing editor, who said he takes responsibility for the decision not to run the story. The Post’s then-editor-in-chief, Martin Baron, told Semafor that he had been unaware of the story at the time.

“I agreed with [Supreme Court reporter] Bob Barnes and others that we should not do a single-slice story about the flag, because it seemed like the story was about Martha-Ann Alito and not her husband,” recalled Barr of the deliberations.

Instead, Barr said, he suggested a story on the bitter neighborhood dispute that Alito told them had prompted his wife to raise the flag. They would use the flag itself, he thought, as a detail in the story. But that story never took shape.

“In retrospect, I should have pushed harder for that story,” Barr said in a phone interview with Semafor Sunday.

Ben’s view

Coverage of the Supreme Court can be divided into pre-Dobbs and post-Dobbs — or, more specifically, into the period before and after May 2022, when Politico published a leaked draft of the decision that would overturn Roe v. Wade’s federal protection of the right to an abortion. The leak and its aftermath exposed the court’s internal politics and further damaged its carefully-cultivated reputation as an institution above the partisan fray.

The ruling also played into a long-running argument among journalists: Should justices be covered as politicians appointed to powerful roles? Or should they be seen as a class apart — jurists covered for their ideas, rather than their personalities or interests?

Barnes, who is now retired, was part of a generation of Supreme Court reporters made up largely of institutionalists who afforded justices a level of distance from the day-to-day of political coverage unknown to almost any other contemporary government figures.

The deeply polarized American moment and the Roberts court’s life-altering rulings appear to have resolved that argument in favor of making the justices’ private actions subjects for investigative reporting. Well before the Times’ coverage of Alito, ProPublica won a Pulitzer Prize for a series revealing that Justice Clarence Thomas had relied financially on a conservative donor.

“Stories about the court are different than they used to be,” Barr noted.

The Post’s move was cautious and deferential, and very pre-Dobbs. Now, it’s hard to imagine.

Room for Disagreement

Chris Geidner, who covers the Court for his Law Dork Substack, wrote that “a truly remarkable — and truly disappointing — aspect of this situation, to my mind, is the fact that the had to have, at least passively, made the decision to report this news over the past three-plus years,” he writes — even as the Post broke news on the involvement of another justice’s spouse, Ginni Thomas, in efforts to overturn the 2020 election.

Notable

• “Any judge with reasonable ethical instincts would have realized immediately that flying the flag then and in that way was improper. And dumb,” a federal judge wrote in the Times.

• “People who are judges on the Supreme Courts have personal lives, they have families,” Texas Republican Sen. John Cornyn said in Alito’s defense. “And I don’t think they’re necessarily responsible for everything their families do or say.”

• A review of public opinion research in Science found that “knowledge of the Court, and support for key democratic values, no longer protect the Court after in the way they once did. These findings suggest that at least part of the public increasingly sees the Court as politicians in robes, with troubling implications for its role in our democracy.”