Lithwick’s Whimpers

I was never a fan of Dahlia Lithwick. Not because she’s a woman.* I couldn’t care less. But because she has proven herself intellectually dishonest, a genderless choice that’s become pervasive among the unduly passionate, more dedicated to serving their cause than trying to be minimally accurate in their writing.

But she made a decision to write about why she won’t be going back to her “beat” at the Supreme Court for all to see, and that raises a very different problem.

The enduring memory, a year later, is that my 15-year-old son texted—he was watching it in school—to ask if I was “perfectly safe” in the Senate chamber. He was afraid for the judge’s mental health and my physical health. I had to patiently explain that I was in no physical danger of any kind, that there were dozens of people in the room, and that I was at the very back, with the phalanx of reporters. My son’s visceral fears don’t really matter in one sense, beyond the fact that I was forced to explain to him that the man shouting about conspiracies and pledging revenge on his detractors would sit on the court for many decades; and in that one sense, none of us, as women, were ever going to be perfectly safe again.

Whether this actually happened or is just a polemic device to serve her cause, that Lithwick thought it a good idea to raise whether she was “perfectly safe” or feared for her “physical health” sets the tone. Not about Kavanaugh, but about Lithwick. This is beyond crazy. Is her message that her son had reason to be concerned that Kavanaugh, during his Senate confirmation hearing, might leap from the table, run over to LIthwick and rape her? Remember, it’s not her son who tells this story, but Lithwick. Why would she relate something so utterly bizarre if not to reflect her own feelings?

Does Lithwick really believe that Kavanaugh is a crazed rapist who will throw her to the ground in dark alley behind One First Street? Why don’t the women on SCOTUS share her fear?

Two of the three female justices spoke out this summer to support their new colleague. They hailed him as a mentor to his female clerks or as a collegial member of the Nine and urged us, in the case of Justice Sonia Sotomayor, to look to the future and turn the page. It is, of course, their actual job to get over it. They will spend the coming years doing whatever they can to pick off a vote of his, here and there, and the only way that can happen is through generosity and solicitude and the endless public performance of getting over it. I understand this.

So the women on the Supreme Court she so admires are whoring themselves for a fifth vote, willing to tolerate this pariah in their midst because it’s “their actual job to get over it”? Even in the depths of her despair paranoia, Lithwick “understands” this. How generous of Lithwick to let Justice Sotomayor off the hook. But that doesn’t mean Lithwick has to “forgive,” as if her forgiveness is very important to the Supreme Court.

I haven’t been inside the Supreme Court since Brett Kavanaugh was confirmed. I’ve been waiting, chiefly in the hope that at some point I would get over it, as I am meant to do for the good of the courts, and the team, and the ineffable someday fifth vote which may occasionally come in exchange for enough bonhomie and good grace. There isn’t a lot of power in my failing to show up to do my job, but there is a teaspoon of power in refusing to normalize that which was simply wrong, and which continues to be wrong. I don’t judge other reporters for continuing to go, and I understand the ways in which justices, judges, law professors, and clerks must operate in a world where this case is closed. Sometimes I tell myself that my new beat is justice, as opposed to the Supreme Court. And my new beat now seems to make it impossible to cover the old one.

I have no idea whether this is just a performance for the sake of the whimpering masses or whether Lithwick’s purpose was to add paranoid delusions to her list of infirmities, but it’s deeply disturbing that such narcissistic irrationality has come out of a pundit who purported to inform the public about the Supreme Court.

My job as a Supreme Court reporter used to be to explain and translate the institution to people locked out of its daily proceedings. I did that reasonably well for 19 years, I suppose.

Law is hard, and “translating” what happens at SCOTUS for the benefit of non-lawyers (“locked out”?) is a pretty big deal, as it’s important that they have at least a serviceable understanding of what the law is. Up to now, most of Lithwick’s writing could be attributed to her the limits of her abilities and her lack of any actual legal experience. Like so many pundits, she told the story as best she understood it. At least that’s what one would suppose.

But her explanation now, of her inability to report on a court because there is a justice whom she refuses to “normalize,” provides a very different explanation. Her shoddy punditry wasn’t merely a product of the shallowness of her experience, as filtered through the excesses of her bias.

Rather, Lithwick reported on the Supreme Court while laboring under a disability that precluded her from a rational grasp of law and the Supreme Court. Thankfully, she’s revealed herself as someone who shouldn’t be a pundit, and probably shouldn’t be allowed to write for Slate at all. There is no calling for someone to write about law through the lens of paranoid delusions. I wish her well and hope she gets whatever treatment will serve to return her to reality, but she has no place writing about law.

*I have every expectation that I will be ripped to shreds for being sexist, as criticizing the feelings of a woman is obviously misogynistic to some. On the other hand, when a woman happens also to be a Supreme Court pundit and writes something outrageously irrational, does she get a free ride because she’s a woman? I believe too strongly in equality to treat Lithwick any differently than I would treat anyone else.

23 thoughts on “Lithwick’s Whimpers

  1. Richard Kopf


    Superb piece of writing, Scott.

    For Lithwick (and Greenhouse), it has never been about law. It has always been about Harry Blackmun’s “Poor Joshua!”

    Finally, if you are labelled a misogynist for this post, then call me one too. Oh, wait, that would be redundant!

    All the best.


    1. SHG Post author

      The list of pseudo-pundits could go on a for a while, and is hardly limited to women. But few have ever chosen to make a deliberate point of using their flagrant irrationality as a cry for tears and applause.

  2. L. Phillips

    She could have saved a great deal of time and effort by simply writing that since the game isn’t being played by her rules she is taking her ball and going home.

    1. SHG Post author

      By conflating every feelings (whether real of contrived) into some sort of threat of harm, how can you not feel her pain?

  3. Kathryn Kase

    Thank goodness the NAACP LDF did not choose to sit out litigating in the Supreme Court in order to protest Clarence Thomas’ nomination. Then again, they’re damn good lawyers, they’re used to hostile environments, and they get justice done notwithstanding.

    1. SHG Post author

      Nobody has to like any particular justice, but it’s the court we have. Ironically, I fully expect Kav to be far more open to criminal defense args than Garland would ever be. Since none of the justices invite me to dinner anyway, it’s really not personal.

  4. Nigel Declan

    I used to read her Slate columns and listen to the associated podcasts, as they at least provided a decent overview of the arguments presented to the court. She had clear biases, but she seemed to make an effort most of the time to at least pay lip service to the arguments she disagreed with and their merits.

    One day, seemingly out of the blue, Trump D.S. set in and she announced that she would no longer be “unbiased” in her reporting. She did an absolute hatchet job on whatever case she was discussing, and I immediately stopped reading and unsubscribed.

    It is unclear from her current trajectory whether she is on track to end up as Shaun King with a modicum of legal knowledge or as bizarro Nancy Grace.

    1. SHG Post author

      In the olden days, even the most biased reporter was obliged to pretend to report fairly. But that was before the awakening of the media, to only report its truth so the groundlings wouldn’t get the wrong idea. I suppose.

      1. Schmendrick

        In the days before that, each city had a democrat and republican paper, and sometimes more than that! And if you go back far enough, cases got reported by people sitting in the courtroom and scribbling down what they thought they remembered afterward.

        The wheel turns. Or, if you prefer, “to everything / turn turn turn / there is a season / turn turn turn.”

        1. SHG Post author

          Things change. Sometimes for better. Sometimes for worse. This is worse. Much worse.

          Saying things change contributes nothing of use.

  5. wilbur

    Someone needs to help Young Lithwick get a grip on reality, get over his “visceral fears”, and start to use his intellect.

    I’m assuming that anecdote wasn’t completely made up just to make a point.

  6. DaveL

    They will spend the coming years doing whatever they can to pick off a vote of his, here and there, and the only way that can happen is through generosity and solicitude and the endless public performance of getting over it.

    I’d venture to say that the three ladies on the court can figure out another way to bring a judge around to their way of thinking other than “generosity and solicitude”. Justice Ginsberg in particular went five for six arguing before the Supreme Court, and to my knowledge she never once baked them a bundt cake.

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