Quote of the Day (Dahlia Lithwick, on Covering Democracy Subversion Before the Next Election)

“If we learned anything from 2016 and 2020, it is that you can’t start covering democracy subversion two weeks before the election. It can’t be, ‘Oh, wait, now I’m starting to realize that they’re closing polling places in minority precincts’ or that people are planning to terrorize election workers with guns. All these democracy subversion questions are kind of invisible to us—they are structural, they are system-wide, they are not interesting. So we just keep erring on the side of covering battles between good guys and bad guys. This is a rich, nuanced conversation about efforts to both subvert the vote and then make the country itself a more fragile, authoritarian place. We are just very bad at covering systems and structures of democracy in the press. It is always going to be more interesting to cover a one-off case and do a breathless account of what happened in oral argument. But we need to be covering entire systems and structures. I don’t think we can tell it as a background story.”— Slate Senior Editor and Supreme Court expert Dahlia Lithwick, quoted by Kevin Lind, “Q&A: Dahlia Lithwick on the Colorado Case, The Election, and the Press,” Columbia Journalism Review, Feb. 7, 2024

Keep this in mind as you watch or read about oral arguments, this week and (maybe) later, concerning Supreme Court rulings related to the 2024 election.

In their questioning of the different counsels, the justices, whether right or left, struck me as concerned with the precedents and punctilios of the law. They seemed blissfully unaware that the candidate at the heart of the Colorado case cared nothing at all about either, or indeed of anything other than seizing power to avoid legal peril for himself.

In either words, they wanted to find a past legal guide to a crisis of a kind and magnitude not previously seen in American history.

They fear a ruling that could take power away from the American electorate, even as they miss the larger point that the appellant in this case was trying to do precisely that in the last two Presidential elections.

They fear a ruling that could involve them in deciding a Presidential race, even though one justice (Thomas) was part of the court majority that decided the critical Florida count 24 years ago and even though several others (Roberts, Kavanaugh, and Barrett) were part of the effort to induce the court to come down in the GOP’s favor.

They fear the application of the Fourteenth Amendment in a realm not seen before, ignoring the clear language of this measure concerning those who foment an insurrection--even though they have long embraced the dubious notion that the amendment's reference to "persons" also applies to corporations.

It might help if the press starts reporting on the state-by-state battles going on right now that will determine if democracy will be subverted this fall. In the meantime, we might ask for a bit more skepticism as the justices practically beg to let this latest judicial c(o)up pass from their lips.

(For more on the Supreme Court justices' questions in the oral arguments on the application of the 14th Amendment in the Colorado primary cases, see Amy Howe's post yesterday on the SCOTUS Blog. It is a fine piece of its kind, but also, alas, illustrating Ms. Lithwick's point that "entire systems and structures" are not being covered by the press.)