I enjoyed a personal treat last week. On Thursday, I was fortunate enough to meet and listen to Dahlia Lithwick, who gave a lecture at Creighton law school. For those of you that follow the Supreme Court, you probably already know that Ms. Lithwick is the Senior Editor of Slate magazine and that she also writes a bi-weekly column for Newsweek. But even beyond that, if you have ever read one of her pieces covering the Court, you would definitely remember it; she writes in a style that evokes one of the really popular girls, from say, Jersey Shore—if one of those girls was smart and clever and brilliant. She is the only member of the Supreme Court press corps, that I am aware of, that makes liberal use of pop culture and humor without losing the substance. Just last week, in writing about Bond v. United States, she referenced such diametrically different topics as the Lifetime Channel, the 10th Amendment, Wile E. Coyote, sexiness and Justice Samuel Alito, all without losing the sense that it was the Court she was talking about. If you like her politics, you love her. If you dislike them, you wait until no one—especially your conservative friends—are around, when you can huddle up to the screen to read one of her diatribes on the Bush Administration or Justice Scalia. You laugh and laugh some more, because you still love her. But anyway, I digress.
Her lecture covered many topics but centered around one major theme. The Court wants us to believe a certain narrative: that it is not a political institution. That it is somehow above the fray of politics. We in turn, she explained, also want to believe that the Court’s opinions do not change solely based on its membership. It is that dysfunctional relationship between a largely secretive Court and a very open public that Ms. Lithwick dissected. Or as she put it: the Supreme Court is a political institution, “except when it isn’t;” the Court is not a political institution, “except when it isn’t.”
I had the pleasure of interviewing her after the lecture. Okay, interview may not be the right word here; it was more like a conversation. Here is what we talked about.
Me: Anybody who reads a lot about the Court knows that you have a very distinctive voice. You cover the Court very differently from the Adam Liptaks and Lyle Dennistons of the world. When did you come to the conclusion, and how, that the best way to cover the Court and make it interesting for people is through humor and pop culture?
Dahlia: I don’t think I had a, it wasn’t a conclusion. I had no preparation. Slate asked me to cover the Court about four days before I went in. And I hadn’t read that much. So I think I probably just staggered in assuming that there had to people who did what I did. I just couldn’t have believed differently. So I sort of just started to do what I do. I had covered the Microsoft trial right before and I had covered it this way. This very, irreverent, and I don’t know, kind of Village Idiot style, and I felt like I just didn’t have another option.
Me: You just couldn’t do it the other way.
Dahlia: I just couldn’t have done it straight. And it felt to me like, I went in there, and was so mystified and so reverent. And it just needed—something. But I feel like if I had come to the Court having read extensively and knowing the way the Court was covered, I might not have been brave enough to do what I did. Even now I look back at stuff I did the first year and I’m like
Me: What, I know that you sit in on a lot of arguments. Tell me about an argument where the Court’s questions or the attorneys answers were just dazzling. Like you came out the argument and thought, they really got to the core today.
Dahlia: It happens a lot. More than you would think.
Me: Which litigators do you think go in and do the best job?
Dahlia: The one that really sticks in my mind and maybe you will appreciate this because it was pro se. It was Michael Newdow, who argued the pledge of the allegiance case. Because the dude has never been in Court in his life. He was a surgeon. He had no background. You know, the Supreme Court bar is the same 30 people that argue all the cases. And that wasn’t always so. That’s new. And it’s like watching the Harlem Globetrotters day after day. It’s great. There’s Walter Dellinger and he’s great. They are great, they’re great. But to watch someone come in who doesn’t have that skill set. Who isn’t even a lawyer. Who got admitted to the bar just so he could argue his daughter’s pledge of the allegiance case. And then you wait for him to just destroy it, to be awful. And he was incredible. And it was one of those oral arguments where everything you think you know about oral advocacy, you know everything that Seth Waxman ever taught me about how to be perfect, was wrong. Because this guy made every mistake, but he somehow, Michael Newdow convinced the Court, or almost convinced the Court, that the pledge of the allegiance, you know forcing the kids to say the pledge, was unconstitutional. And they kicked it back on a standing question. But it was an amazing argument for watching somebody who knew nothing about the rules of the space. And maybe it speaks to me because I just said the same thing about being a journalist. He knew nothing about the protocol.
Me: That may have made him better.
Dahlia: He was amazing.
Me: How did Margie Smith, I mean Margie Phelps, how did she do?
Dahlia: You know Margie, she is just an interesting problem because she’s just sort of bristling with rage. And I don’t know that she could have won a lot of votes. But I think she antagonized them. I mean I think she both failed to, they would ask hypos, and she would be like, “well that’s just a hypo.” But this is how we play here, you still actually have to answer it. I think there was just a sense that she wasn’t able to pull-in, you know, how passionately she felt about this. I mean Alito just hated her. Breyer just hated her. You could feel just this visceral, like why not let someone argue this case, who—
Me: Who could do it justice.
Dahlia: So I think she lost some votes and she didn’t need to. But for me those are the great arguments. It is when somebody comes in, who has been there from the first moment, the very first death penalty, who sat through the trial, or the state AG, and has lived for this and has lived and breathed this case for seven years. As opposed to, you know, this amazing Supreme Court bar who are, they’re great, but like this is all they do. For me to watch the same, you know Paul Clement and Walter argue every case, it’s just not the same. I mean they are great, but it’s not the same. And I’m not, and people are entitled, and I think now we are at the point where you would be insane not to hire these people. But I miss, I miss the days when people came in and were just, my client is my friend. And I love him and I’ve eaten Chinese food everyday for seven years so that I could afford to, you know, I love those guys and I seem them less and less.