Can the Supreme Court keep its secrets? With Jodi Kantor of the New York Times

0:07Welcome to another episode of the Mixed Signals podcast from us here at Semaphore where we We are talking to all of the most interesting people shaping our new media age. I'm Max Taney. I'm the media editor here at Semaphore. And with me, as always, is the co-host of this show, the boss, our editor-in-chief, Ben Smith. How's it going, Ben? It's good. I'm glad to be here. Well, I'm glad you've brought your enthusiasm to the show, Ben, because we have a really serious and interesting topic this week. Our guest on the show is Jodi Kantor. She is an investigative reporter with The New York Times, most famous, of course, for breaking the Harvey Weinstein story.

0:44She's now investigating the United States Supreme Court. We break up this show sometimes into episodes that really just focus on the guest. We book an important guest and we ask them all the interesting questions we can think of. That's how we approached our interview with like Mark Cuban. That's how we approached our interview with Malcolm Gladwell. We're just we're happy to have these guys on. They can talk about kind of whatever. But we approach other episodes with a more kind of thematic lens. And I think we wanted to think about this one through a question that both you and I, Ben, have had, which is, is the court leaking more?

1:16Are we learning more about the inside workings of the Supreme Court, a very serious and secretive institution? Ben, what do you think about that premise? Do you think that's a smart way to think about the story that Jody's covering? Yeah, I think the question of is the Supreme Court becoming more transparent? And then more broadly, how does this like closed institution clinging to its prestige and to its secrecy deal with this swarming, crazy media age that we're in? Yeah, one of the interesting things that Jodi has done over the last year or so is gone behind the scenes of these very important decisions and revealed some of the interesting dynamics at play.

1:53One of her latest stories is about the division between the liberal justices on the court and how they're thinking about how they want to push back against this moment of conservative strength and dominance. And she's got these really interesting, fascinating dynamics that we usually don't see reported in the pages of The New York Times. And so I was just curious, and I want to ask her how she's getting that information, of course, without revealing her sources. But if she senses that people close to the justices and maybe the justices themselves are talking a little bit more or are willing to do their jobs more in public than they have been in the past.

2:27Yeah, I can't wait to find out. Let's take a quick break and bring Jodi on.

2:40Hi, I'm Joshua Spania, VP of Marketing at Google, and you might assume I have all the answers when it comes to marketing. The truth, I'm just as curious to learn, discover the answers to everything as everyone else. We are living through a total reset of our marketing industry. The old maps don't work, which means we get to chart a new path forward. It's dynamic, it's fast-paced, and honestly, there's never been a more exciting time to be in marketing. That is why we've started a new podcast, Frontier CMO. It's from Think with Google, and I promise it's not just a bunch of corporate waffle. I'm sitting down with people who really know what's going on.

3:24CMOs, creators, technologists, the lot. And we're having a proper, unfiltered chat about what's working, and quite frankly, what isn't. These are your notes from the Frontier. So do me a favor, search for Frontier CMO wherever you get your podcasts, or watch us and subscribe on YouTube.

3:51Jodi, thank you so much for joining us. It's great to be here. I just wanted to start with a big picture question about the context of your job. How secretive is the Supreme Court? Pretty secretive. The justices might say that it's the most transparent branch of government because they have oral arguments and we read their opinions. But remember that the Supreme Court doesn't have visitor logs. The justices' papers belong to them and they are not released for a very long time. I think we still have not seen Justice Sandra Day O 'Connor's papers from Bush v. Gore, making it hard to know everything about what happened in that case.

4:32Everybody who works there takes a vow of silence. And basically the justices have built something of a moat around themselves that says, we control the lens through which you see us. I'm sure you've noted they give relatively few interviews. Some of them have been on book tour recently and have done a few. But the chief justice, for example, limits the moments in which he speaks to the public at large. When was the last time that he spoke publicly? Do you know? Well, a few months ago, something really important happened, which is that he reprimanded President Trump. It was during the kind of high point for the attacks on judges, the MAGA attacks, and he pushed back publicly.

5:19Now, what's interesting is how different the court's culture is from the general political culture that we're used to day to day. Right. So for the chief justice to have said even something short is a big, big, big deal for him to wade in. If you sort of hear it against the rest of our political discussion, it can sound sort of small. You mentioned that everybody takes kind of a vow of silence. Yet it seems like people seem to be increasingly breaking that vow of silence, in particular to you. And of course, people know about Politico getting the leaked Dobbs decision. Is the Supreme Court leaking more than it has in years past?

6:05You know, I don't know that we can say that. And here's why. There is actually a pretty long tradition in journalism of trying to figure out what is going on inside the locked box of the Supreme Court. Bob Woodward has done it. Jeffrey Toobin has done it. And when I started on this beat a couple of years ago, one of the things I reread was this behind the scenes story that Linda Greenhouse did about Bush v. Gore. At the time, it just felt like the ultimate important decision. So I think journalists for a long time have wanted to understand this institution. Nine of the most powerful people in the country who make decisions that govern our lives work in silence.

6:52And listen, I mean, job one in journalism is to scrutinize power. So, I mean, to be honest, mine is only one of many, many, many attempts over the years to understand this place. It feels to me like I'm learning a little bit more about the inner machinations of the court. And obviously the Dobbs decision and what happened there was a huge kind of precedent-breaking situation. If you're not sure if it's leaking more than it used to, what does it feel to us as media consumers that it is? I think I can only talk about what I'm trying to do. And what I'm trying to do is establish an independent lens through which we can view the justices.

7:31These chops are so singular to be confirmed for life to that high an office. There's essentially no accountability because we want the justices to be truly independent. And they serve for a very long time. We're the only constitutional democracy without term limits or age limits for these judges. So part of what I'm interested in doing is not just covering this decision or that decision, But answering fundamental questions about the institution and the justices, the traditional coverage, which I and everybody else has relied on for years and colleagues like Linda Greenhouse and Adam Liptack have done it masterfully.

8:14And now Ann Maramow is doing it with Abby Van Sickle. That's a case by case approach, right? It's totally focused on the law. This decision just came out. What does it mean? Et cetera, et cetera. What I'm really focused on are two other things. What is this institution? What is this place? It's really different from the rest of the culture. How does it work? What does it mean to hold power for 40 years at a time? And then also, who are these justices? Like, they're individually confirmed. The famous phrase about them is that it's nine separate law firms inside the building. And there's very little else.

8:53They each have four clerks. The clerks are like, I don't know, 28 years old or something. Like they are the principals. They don't have the chief of staff and 20 assistants that a president or a governor or even a senator has. It's really just them. So who are these nine people? I don't think we see any of them quite clearly, especially in this era of distortion and attack. Who's working hard? Who's not? What are their relationships like with each other? How do they conceive of their own responsibilities? In a job that's designed without any accountability, how do they assure their performance and their standards?

9:37How are they dealing with conflicts of the age? How do you organize your work when the job is so unusual and the stakes are so, so, so high? How do they relate to you? Like, do they appreciate your project of making them, you know, known and visible, or do they hate it? Oh, I mean, Ben, if you could get them to answer that, I'd be fascinated. I can only say generally, which is my experience as a reporter for many years, is that nobody likes being scrutinized. Nobody likes being written about. It's hard. Like, it's hard. You know what I think is very hard about it is that I see the culture that surrounds them, and I think it's really extreme.

10:22And I don't mean so much ideologically, although that's certainly true in a way too. What I mean is that the obsequiousness and reverence shown the justices is extraordinary. Everybody wants their vote. And that actually transcends ideology because if you're a conservative lawyer arguing in front of the court, you want the liberal justices' votes. And if you're a liberal advocate, you want the conservative justices' votes as well. So there is this kind of bowing and scraping that happens towards the justices that is very marked. But then there's also attack, right? It's also this, like, frankly sick culture that we live in where somebody shows up outside of Justice Kavanaugh's home and tries to hurt him.

11:16And people say unkind things about Justice Barrett's children. So I am trying to be neither of those things, right? I'm certainly not trying to be the obsequiousness and certainly not trying to be the attack. I'm trying to hold up a mirror to these people so that we can see them. And I don't know, maybe so that they can see themselves. Are some of the newer justices taking a more outward-facing approach? like a more public approach, do you think? I was paying attention, of course, to Amy Coney Barrett's book release. You wrote about this, about how she wanted to explain kind of how the court works to people.

11:57I was reading another one of your stories in which you talked about how Justice Katondri Brown-Jackson was really seemingly writing for the public in a lot of her dissents. Are the younger justices taking a more kind of outward and public-facing approach? I think you're really smart to notice that. And I'll post your point a little further, which is that Justice Barrett and Justice Jackson have been, in my observation, the two most outward-facing justices recently. And they are both talking to the public about the court, but with different messages. The entire thrust of Justice Barrett's book and book tour is, trust us even when you disagree with the decisions.

12:40We're doing these jobs honorably. The court has integrity. here let me walk you through how I make decisions and she's clearly trying to promote trust in the court and Justice Jackson in her opinions you know she speaks more forcefully in her opinions than she does in other settings and she is saying she's used the word disillusionment and remember this is a very formal culture in which every word has weight when she says that she is dissenting with disillusionment. To me, that sounded like her saying, don't trust this court. Do you think her tactics are effective? You write that she is kind of trying to reach the public, to reach people through these Supreme Court live streams.

13:27Do people think that that's worthwhile? Do the court watchers think that this is something that's working? Well, just to summarize the reporting a little bit for anyone who didn't read the story, my story was really about the fracturing strategy. on the liberal side of the court. And it was about how Justice Lena Kagan is a true diplomat. I mean, devoted from the beginning of her career on the Supreme Court to winning conservative votes. And so even though she can be a very forceful writer, and even though she can be very critical of conservative decisions, she has mostly chosen the traditional Supreme Court way of decorousness in public and persuasion behind the scenes.

14:09Justice Jackson has really been willing to challenge the court and the justices publicly. And she has, on purpose, with great, I think, thoughtfulness, broken a rule of the Supreme Court, which is you're not really supposed to trash your colleagues or the court. It's fine to criticize the legal decisions, but you're supposed to sort of criticize ideas, not people, and not do anything to lower the faith in the institution. So as far as whether it's effective, I mean, I definitely don't want to settle that dispute because I wrote that story really, really trying not to take sides. And in fact, my editor, Roz Helderman, and I had people read it internally and we would ask them, does this lean Kagan?

14:55Does this lean Jackson? Because we don't want to seem like we have some private view, you know, that's visible in the text. The only institution where words are weighed more carefully than the scripted word is the investigations desk of the New York Times. We could do the Washington Bureau of the New York Times, which I am now thrilled to join. We could devote this entire podcast to the similarities between the New York Times. The Times is a little leaky. Times is a little bit easier to penetrate, I think, than the court. Maybe, maybe, maybe. But back to your question about Justice Jackson, I'll ask a question, which is to say, how many people really listen to the oral arguments or read the opinions?

15:36Yeah. These things don't really take place in English, right? Like some cases do that have very relatable scenarios, but this is a highly technical court that is often speaking in the Latin of the law. And I think even Justice Jackson's most populist opinions, like they're not that easy to understand. The material is inherently very dense. So I think that question of could a justice really have a kind of mainstream conversation with the American people and how would he or she do that is pretty interesting. I mean, we are, you know, in this social media age that has been just unbelievably corrosive to every institution.

16:22And The Times very much among them, journalists among them, you know, and basically this sort of pulling the flawed individuals out from behind the faceless institution that you thought you could trust is in some sense like the basic populist move of undermining institutions. Do you worry that both the kind of prevailing social media culture and specifically your work essentially do that and undermine trust in the institution? First of all, our attempts to find out what happened at the court are pretty selective, right? Like, this is not a reality show in which what justices do every day is broadcast.

16:59These are very specific inquiries. Like, Adam Liptak and I have done two kind of behind-the-scenes case stories. One was about Dobbs. One was about largely the immunity decision. And we said that these are, like, the two essential cases of our age. and we don't think the public can wait, you know, 40 years or whatever it is to find out what really happened. So I would say those inquiries are selected. They're targeted. I am not asking around about forthcoming opinions, like the stuff that's being decided, like the tariffs case is a good idea. I'm not making phone calls to find out. Wait, why not?

17:42Isn't that your job? I don't, as an investigative journalist, you have to decide where to aim and you have to craft queries that have a chance of actually succeeding. Not only do I think that wouldn't succeed, but Ben, it's not worth it because it's going to come out anyway. Like, if I only have so much capital and so much time, what I'm trying to do year after year in investigative journalism is take things that are on the secret side of the ledger that are in the public interest and that we need to discuss, and I'm trying to move them over to the public side. So if something is going to become public anyway, I'm not going to spend my effort on it.

18:26It sounds a little, though, like maybe you've also come to believe part of your job is at some level also kind of propping up the mystique of the court. Because there's also a school of political politics that says these are just politicians in black robes. We should cover them like everybody else. Before we get to that, your previous question, I want to say one more thing. One of the big things I learned during the Weinstein investigation is that there's a difference between privacy and secrecy. And we often confuse the two. take Weinstein's victims. Did they deserve privacy? Of course. Of course.

19:02We weren't going to drag them out into the light against their will. Was secrecy a good thing in that system? Absolutely not. Absolutely not. So I'm not trying to, like, I don't know, pull the pants down on the Supreme Court and strip the deliberative process of any confidentiality. I'm saying this institution is so important that we need a better way of understanding it. Well, we have a lot more that we want to get to with Jody, but we have to take a short break. So we'll be right back after this.

19:42In this week's branded segment from Think with Google, I spoke with Google's VP of Marketing, Josh Spanier, about what he saw at CES. So Josh, you were at CES at the beginning of this year. Why does that event matter for CMOs? So CES gives us a real view into how people are going to be living their lives and spending their money in two, five, even 10 years time. I know from the outside, it looks like a giant toy show. There's smart rings and foldable laundry robots and flying cars. But I was chatting with Shelley Palmer, who I interviewed for my new podcast. He's an AI visionary and tech leader.

20:21And he swears by, and I agree with him, that the ability to see patterns amongst all the gadgets is actually really, really compelling for near term and into the future. So what did you learn from that conversation? Well, the gadgets aren't really the thing. Stuff gets announced. Some of it launches. Some of it doesn't launch. What you're really looking for are business model changes, the new paradigms that are emerging. So two that I saw and we spoke about, one is around agentic commerce. Google announced during CES and just after CES a whole bunch of partnerships with Shopify, with Walmart, with Target around agentic commerce.

21:00Super interesting building the new protocols for machines doing the shopping for you where appropriate. And then separately, I also saw a lot of expansion of what you might call intelligent ecosystems. These are technologies from different companies coming together, meshing together to enable you to do more interesting and engaging things. And again, with Google and Gemini leading the way. They're really fascinating forerunners of where we're all going to be in the near and medium term. And where can people listen to the whole thing? You can listen to my conversation with Shelley Palmer in my new podcast, Frontier CMO, on YouTube or wherever you download podcasts.

21:39Or you can sign up for my weekly newsletter over on LinkedIn. Great. Thanks, Josh.

21:55Are the most interesting people on the court right now women? I feel like the focus of your reporting over the last several months has really been about three justices in particular, it seems like Kagan, Jackson and Barrett. And it seems like they are doing stuff that seems to be the most consequential in some ways, at least as it relates to the reporting. But I'm curious, are the most interesting and important people in the court right now the female justices? I don't agree that they're necessarily more interesting than the others, but I think it's true that I have been drawn to them. Sorry, let me think about your question for one sec because I want to give you a good answer.

22:35Talking to you is like talking to a Supreme Court justice, Jodi. You really measure your words out. You know why. People just come on this podcast and yap. Yeah, but remember, well, I'll tell you something when we're done. No, no, say it now. No, no, no. I have to tell you when we're done. Okay, I'll say it now. I think when you're an investigative reporter, one thing you have to think about is that one of your sources or somebody associated with the court could be listening to this at some point. You know, this work is pretty sacred to me and I would never want to give anybody the wrong impression.

23:10Yeah, usually three or four of the justices will listen to a mixed signals episode. That's what I hear. We got a Trump tweet once. So, you know, some member, important member of the federal government was listening. Okay, so to answer your great question, I don't know if I would go with the statement that they're the most interesting people on the court. Because, for instance, the question of how the chief justice is countenancing the second Trump presidency is a pretty interesting question. But what I would say is that, first of all, for the first time, we have four female justices, and that's significant.

23:42I am definitely drawn to making sure that women in public life are seen. Like, if you take Justice Barrett, she was stereotyped by the right and the left when she came onto the public stage. I think what happened is that people saw a woman who had seven children, and they decided they knew what that meant. And she's a really complex and interesting figure. I think she's kind of caught between multiple projects that sometimes conflict with one another. I think what I would say is that I just, I definitely want women in public life to be seen and seen accurately and with depth. But I'm not going to shy away from writing about the men on the court.

24:28I'm really curious, how did the leak of the Dobbs decision change the court? I'll give you a really simple answer, which is that Justice Thomas publicly compared it to adultery, like what he, which is a pretty, again, these people choose their words really carefully. Like the thing you just said, Ben, about how people just come on this podcast and talk. That is the least Supreme Court equality you can imagine. So like for Justice Thomas to give a speech in which he says this betrayal is tantamount to adultery and you can never really look around this house the same way again, I suspect that he was being very sincere in that statement.

25:12On a more mundane front, you had lined up, I think Max reported this, you'd lined up in a interview with Amy Coney Barrett on The Daily, which she then bailed on. Did she say why? I am so sorry she canceled that interview. And it's because I was so excited about the questions. We had huddled for weeks, the Supreme Court editor, Roz Halderman and I, and the team from The Daily. And what we really wanted to do was draw Justice Barrett out. We had questions that we thought were original and interesting and not overly prosecutorial, like that's not really what we do or what The Daily does. But these justices are, I mean, they're really, really smart.

25:54And the chance to ask her to think on her feet about some big questions about the law and the culture, that was really exciting. So I'm sorry she canceled, but I mean, I'll go right back to covering her as I did before. And like, of course, would never want anyone to think I would cover her differently because she canceled. Part of it is what we were talking about on this show and one of the reasons why you're choosing your words very carefully, Jodi, which is that podcasting is a pretty loose format. Even an edited show like The Daily or a minorly edited show like this one, it's loose and there are a lot of opportunities to choose the wrong word, right?