Dahlia Lithwick reflects on a 25-year career covering the Supreme Court in visit to Duke Law
The veteran legal reporter discussed changes in how the Court approaches its work and in how journalists cover it, and urged students to take the time to discover a career they love.
Legal journalist and commentator Dahlia Lithwick advised students to follow their interests, even if it leads them away from a law career, during a visit to Duke Law School on Jan. 29.
“Do the thing that fills you up,” Lithwick said, recounting how quitting law practice opened the door to a 25-year career reporting on the Supreme Court.
“For me, it was writing and journalism, but for every single person in this room, there’s a thing that fills you up. And if it’s not law, don't be hard on yourself. Nothing is irreversible, but life is too short to be unhappy.”
Lithwick sprinkled advice on making choices throughout the hour-long conversation with Kerry Abrams, the James B. Duke and Benjamin N. Duke Dean of the School of Law, as part of the Lawyers and Leaders interview series. Lithwick and Abrams are longtime acquaintances dating to their time as students at Stanford Law School.
A senior editor at Slate, Lithwick has written its Supreme Court Dispatches and Jurisprudence columns since 1999 and hosts Amicus, Slate’s award-winning podcast about the law and the Supreme Court. She is the author of several books including Lady Justice: Women, The Law, and The Battle to Save America (Penguin, 2022) and has been a visiting faculty member at law schools including the University of Georgia Law School and the University of Virginia School of Law. She also is a contributing analyst at MSNBC.
Lithwick’s career path was anything but straight. She became interested in law after working as a counselor at Paul Newman’s Hole in the Wall Gang camp for children with chronic illnesses. She would go on to co-write a book about the children, I Will Sing Life, and enrolled at Stanford Law School with a goal of working for health care reform.
“I became very convinced that every one of the kids at the camp didn't need better doctors. They needed better lawyers,” Lithwick said. “They were all trying to navigate a healthcare system that made it impossible for kids with hemophilia and HIV and various forms of cancer to get the kind of help and support they needed in a First World country. And so I decided to go to Stanford Law School.”
After a disappointing 1L year Lithwick took time off to work for the Children’s Defense Fund, then returned to Stanford. Following graduation, she clerked at the Ninth Circuit Court of Appeals in Reno, Nevada, then had a brief and unhappy stint at a family law firm that led to an ulcer and a decision to quit. Law students face too much pressure, especially from themselves, to stick with a career path that may not be the right fit, Lithwick said, calling herself “the queen of gaps.”
“There’s such a deep sense of shame around the idea that you could take time off and just be confused for a little while, or that you could leave a job that seemed awesome and not have another thing lined up,” she said.
“If you absolutely hate something, particularly if you have an ulcer and you’re sobbing for huge chunks of the day, then maybe you need to stop.”
Luck met opportunity when Lithwick offered to cover the Microsoft antitrust trial for Slate in 1998 and 1999, during the infancy of internet journalism. Her humorous commentary on the proceedings led to an offer to write about the Supreme Court — a first job, she noted, that she has kept for 25 years.
Asked by Abrams how the Court has changed in its approach to cases over her career, Lithwick said justices have become far more willing to reveal their partisan leanings.
“One thing that's changed is a willingness to overturn precedent and a willingness to sort of usurp for the Court prerogatives that used to be left to other entities. That's descriptively what's going on,” Lithwick said.
“I think the interesting thing is the willingness to just say it in the opinions. The willingness to call each other out to raise, in the pages of an opinion, real questions about the Court's legitimacy and who's squandering it. The naked willingness to give a speech or to give an interview in which you call out your colleagues, in which you call out the press, that's new.
“When we talk about questions around public confidence in the Court and legitimacy of the Court, part of it is what the Court is doing, but a big part of it is how the Court is doing it.”
Reflecting on how press coverage of the Court has changed over the past 25 years, and recent revelations of justices accepting gifts from outside influences, Lithwick said that she and her counterparts in the Supreme Court press corps knew about “decades of judicial ethics violations” but failed to report on them, considering their beat to be the proceedings of the Court rather than its workings. Now, she said, they are scooped by investigative reporters on a regular basis.
It was reporters at ProPublica, she noted, who broke the story in April 2023 that Justice Clarence Thomas had accepted lavish trips and gifts from Republican donor Harlan Crow. And it was Politico that in May 2022 obtained the first-ever leaked draft opinion of the ruling in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade. That coverage earned Politico a Pulitzer Prize for breaking news reporting.
“It's embarrassing when Politico or ProPublica drops a story and we are all like, ‘Oh, actually we knew that 20 years ago but we just didn't report on it because it was somebody else's job,’” Lithwick said.
“The fact that we just felt like it was enough to say this is who won the case, this is who lost the case, this is how doctrine changed, and to know for years and years that things were going on but nobody was covering it ... that is, I think, the single biggest indictment of my own work, of the work of the press corps.
“Because it’s very well and good to have a front page story about what happened to the dormant commerce clause today. But the whole institution changed under our noses and it was nobody’s beat. What caused the change was a bunch of investigative reporters — none of whom are lawyers, by the way — assigned themselves the job of doing deep, years-long investigative projects on what the justices were doing ... where money was coming from, where money was going, what it was being spent on, what groups were producing amicus briefs, what groups were bringing litigation. And, you know, now there’s a story every week.”
Indeed, in a May 2023 column for Slate, Lithwick called out her colleagues and herself for focusing their reporting on the law to the exclusion of the law-making.
“The Supreme Court press corps has been largely institutionalized to treat anything the Court produces as the law, and to push everything else — matters of judicial conduct, how justices are chosen and seated, ethical lapses — off to be handled by the political press. That ephemera is commentary; the cases remain the real story,” she wrote.
“But the vast machinery that has bought and built the present Court is as much a story as the output of that Court. More so, perhaps. So we are thinking about it, in no small part because we should be held accountable for failing to report out stories, like Harlan Crow’s judicial vending machine operation. We should be held accountable because it is the media’s prerogative to treat this Court like any other institution that has players, rules, and motivated operatives.”
Latest book highlights the work of women lawyers
As a legal commentator, Lithwick speaks often on the impact of Court decisions on individual rights, particularly those of women. In her latest book, Lady Justice: Women, The Law, and The Battle to Save America, she highlights women lawyers who worked for the rule of law during the Donald Trump presidency. They include former U.S. Representative and voting rights activist Stacey Abrams, Associate Attorney General Vanita Gupta, human rights lawyer Becca Heller, former Deputy Attorney General Sally Yates, and litigator Roberta Kaplan, who recently represented writer E. Jean Carroll in a defamation lawsuit against Trump that resulted in an $83.3 million jury verdict.
Lithwick told Abrams she hopes a generation of law students will see themselves in the women profiled and be inspired to continue their often-unheralded work.
“In moments in which some lawyer needed to jump into the fray and do a thing, there were a lot of them and a lot of them were women. This is the essential work of the law, and it is the work that any one of us can do any day,” Lithwick said.
“[T]here are many people in the book who didn’t do well in law school, who did worse than I did on their Con Law II exam. But every one of them found a way to pick up the machinery of the law and make the world just and fair and dignity-conferring. Democracy rises and falls on all of us doing, every single day, the work of democracy in whatever lane has meaning to us.”