Where Do Conservative Supreme Court Justices Get Their Information?
Thirteen years ago, Justice Antonin Scalia gave an unusually candid interview with New York magazine’s Jennifer Senior. (Candid by the standards of Supreme Court justices, that is, not by Scalia’s standards.) The then dean of the court’s conservative wing discussed Richard Nixon, sex discrimination, and the metaphysical existence of Satan, among other things.
Perhaps the most enlightening topic was the justice’s media diet. “Where do you get your news?” Senior asked. “Well, we get newspapers in the morning,” Scalia replied. “I usually skim them. We just get The Wall Street Journal and The Washington Times. We used to get The Washington Post, but it just … went too far for me. I couldn’t handle it anymore.”
The Journal, at the time, had the most prominent conservative editorial board among major newspapers, while the Times had an even more right-wing reputation. What’s wrong with the Post, Senior asked? “It was the treatment of almost any conservative issue,” Scalia explained. “It was slanted and often nasty. And, you know, why should I get upset every morning? I don’t think I’m the only one. I think they lost subscriptions partly because they became so shrilly, shrilly liberal.”
Scalia went on to explain that he got most of his news on the radio while driving back and forth to work. “Sometimes NPR,” he said, “but not usually.” His favorite radio program was by his “good friend” Bill Bennett, a prominent conservative pundit and former Reagan Cabinet member. “He has a wonderful talk show,” Scalia explained. “It’s very thoughtful. He has good callers. I think they keep off stupid people.”
That glimpse into how Scalia, one of the country’s most powerful people at the time, formed his daily worldview came to mind for me during Monday’s oral arguments in Watson v. Republican National Committee. The case involves a GOP legal challenge to a Mississippi election law that allows mail-in ballots to be counted as long as they are postmarked by Election Day and received by the state up to five days later. More than two dozen other states have similar laws.
The basic legal question—whether federal election laws preempt the Mississippi law and require ballots to be received on or before Election Day itself—is an important one for the upcoming 2026 midterms, and for future U.S. elections where voters can participate by mail. Unfortunately, a significant portion of the court’s conservative justices appear to either not understand how American elections work or actively believe in conspiracy theories surrounding them. It raises significant questions about where the justices get their information.
Justice Samuel Alito led the charge. In a somewhat muddled question, he asked Mississippi Solicitor General Scott Stuart whether it was “legitimate for us to take into account Congress’s desire—Congress’s passage of the Election Day statutes for the purposes of combating fraud or the appearance of fraud.” There is no indication that Congress enacted those statutes for that reason; Alito has a long history of reading his own policy preferences into federal election laws.
In the same breath, Alito also cited friend-of-the-court briefs that claimed “confidence in election outcomes can be seriously undermined if the apparent outcome of the election [on] the day after the polls close is radically flipped by the acceptance later of a big stash of ballots that flip the election.” Though couched in the terms of submitted briefs, Alito was making an unambiguous reference to election-fraud theories around recent presidential elections.
This phenomenon is known as the “blue shift” or the “red mirage,” depending on whom you ask. It is rooted in a basic fact of election administration: Votes that are cast on Election Day are typically counted very quickly, while votes that are counted by mail take longer to count. This is particularly true when states allow ballots that are postmarked by Election Day to be counted for a certain number of days afterward, as in this case.
Only in 2016 did this dynamic become politically significant. Trump had a thin lead in the popular vote on election night that year, which turned into a three-million vote lead for Clinton within a few weeks. The president-elect’s response to this public repudiation was to falsely claim that it was the result of fraudulent or illegally cast ballots in some states. “In addition to winning the Electoral College in a landslide, I won the popular vote if you deduct the millions of people who voted illegally,” he wrote on Twitter.
Four years later, the Covid-19 pandemic upended election administration across the country. Multiple states changed their laws to allow more widespread use of mail-in ballots. Trump, anticipating his potential defeat, spent the run-up to the election spreading misinformation about mail-in ballots. His apparent plan was to declare victory after taking an early lead before all votes could be counted, then mount spurious legal challenges to mail-in ballots in court in the hope of maintaining it.
That plan fell apart, however, when Fox News election experts called Arizona for Biden on election night and demolished his hopes of proclaiming an early victory. (Whether this plan would have worked anyway is also doubtful, since Trump’s postelection lawsuits were consistently rejected by the courts.) Trump spent the postelection period claiming that he lost because of fraudulent mail-in ballots. He has renewed that crusade since retaking office, as well, even though he personally votes by mail in Florida.
One of the conservative legal establishment’s main goals when filtering through prospective judicial nominees is finding ones who will resist what they call the “Greenhouse effect.” The mildly clever term refers to the now-retired New York Times legal reporter Linda Greenhouse and the perception among some legal conservatives that certain moderate justices were motivated by favorable press coverage. Some commentators have taken it more literally, as Patrick Buchanan complained in a 2008 column about John Paul Stevens and the death penalty.
This is the effect on aging and weak-minded Republican justices, like Harry Blackmun, David Souter, Anthony Kennedy, Sandra Day O’Connor and John Paul Stevens, of the lure of fawning publicity, if they will but recant their convictions and embrace the agenda of the left.
The Faustian bargain these justices are offered is favorable media, comparisons to great liberal jurists of yesterday like Louis Brandeis and Hugo Black, and repeated references to how they have “evolved,” and “grown,” and are being accorded a strange “new respect.”
When they accept such media favors, these justices, nominated by Republican presidents to restore constitutionalism to the court, begin to receive ovations at establishment dinners and turn up on the most desirable party lists. Where once they were the “clones of Scalia,” suddenly, they are jurists of “independent thought.”
While there was no evidence to support this perception, legal conservatives strongly believe this story. As a result, they have gone to great lengths to create their own counter-establishment of sorts to push Republican judicial appointees in the other direction. Those who toe the line, so to speak, are feted at annual Federalist Society galas in D.C. or met with approving public remarks by conservative legal columnists and scholars. When the Smithsonian opened its museum on African American history a decade ago, Republicans sharply criticized it for not paying sufficient tribute to Justice Clarence Thomas alongside Justice Thurgood Marshall, the court’s first Black justice and a titanic figure of the civil rights era.
Conservative justices who stray from orthodoxy, on the other hand, are met with stern rebukes. Legal conservatives have never really forgiven Chief Justice John Roberts for voting to uphold the Affordable Care Act, despite his many other achievements for their cause. Justice Neil Gorsuch also received immense blowback for writing a majority opinion in 2022 that extended federal workplace-discrimination protections to gay and transgender Americans. Justice Amy Coney Barrett has also received an outsize share of criticism for perceived ideological slippage. To be a member of the conservative legal elite is to constantly have to prove and re-prove your bona fides to a social circle that lives in constant fear of the next David Souter.
Alito, to my knowledge, has never given Americans a Scalian glimpse into his preferred news sources. But it is worth noting that right-wing media outlets are often awash in spurious claims about voter fraud in particular and vote-by-mail in general. Leading Trumpworld figures like Steve Bannon have used conspiracy theories about undocumented immigrants casting fraudulent votes by mail to justify draconian restrictions on the polls, all in an effort to suppress and intimidate Democratic voters ahead of the 2026 midterms.
A good way to tell that these voter-fraud fears are unfounded is that Trump and his allies never point to relevant examples of it. Paul Clement, the lawyer who represented the Republican National Committee, could only draw upon distant historical anecdotes in passing. “Postmarks have their own problems,” he claimed at one point, noting that in Illinois, it is possible to get a letter postmarked after polls close at 8 p.m. local time. “Now I’m not here to say that there could ever be voting fraud in Chicago,” he quipped, to mild laughter, in an apparent reference to rumors about the 1960 presidential election.
Justice Brett Kavanaugh, one of the four justices who are younger than that joke, echoed Alito’s concerns by invoking a brief submitted by NYU law professor Richard Pildes, who argued on policy grounds that states should not accept otherwise lawful ballots after Election Day. To do so, Kavanaugh suggested, would “destabilize the election results.”
“If the apparent winner the morning after the election ends up losing due to late-arriving ballots, charges of a rigged election could explode,” Pildes had argued in the relevant passage quoted by Kavanaugh. “The longer after Election Day any significant changes in vote totals take place, the greater the risk that the losing side will cry that the election has been stolen.” Kavanaugh then asked whether that claim should “factor into how we think about how to resolve the scant text and the maybe conflicting or evolving history here?”
Stewart replied that while he “respect[s] the perception,” it was “helpful” for his case that “there has not been much of a showing about actual fraud from post-Election Day ballot receipt itself.” Kavanaugh was not deterred by that obstacle. “Well, I think Justice Alito referred to and I think this quote refers to the appearance of fraud,” he persisted. “And is that a real concern? Is that something we should be thinking about, confidence in the election process?” (Ironically, the high court no longer places much weight, if any, on lawmakers’ concerns about the appearance of corruption when drafting campaign finance laws.)
Gorsuch went in an even more fanciful direction. He raised a hypothetical where a “large portion” of a state electorate mails in their ballots on or around Election Day. “Then the day after the election, a story breaks that one of the lead candidates engaged in an inappropriate sexual escapade or perhaps is concluding [sic] with a foreign power,” he continued. “Again, not far-fetched, I think. And the competing candidate immediately goes on the airwaves and urges voters to recall their ballots and to tell the common carriers not to deliver them.
“And many common carriers will do that with anything that you send through them,” Gorsuch claimed. “FedEx, you just call them up and say I want it back. In that hypothetical, did the election happen on Election Day? Oh, by the way, it swings the election.” Stewart explained that, in his view, the election still happened on Election Day. “When somebody submits their ballot by mail, it’s final.” He also noted, much more relevantly, that Mississippi does not allow ballot recalls.
It is unclear whether Mississippi’s law is doomed or whether the court will hand down a seismic and suppressive change to mail-in voting. While Thomas also appeared skeptical of voting by mail, Roberts and Barrett asked more ambiguous questions that did not clearly tip their hand. The court’s three liberal justices, for their part, took no issue with the law in question and sharply criticized Clement’s arguments against it.
Another important caveat is that oral arguments can be an imperfect guide for how the Supreme Court will ultimately decide a case. Sometimes justices ask questions and raise hypotheticals that do not actually represent their views on the matter before them, often to test weaknesses in each side’s argument. But their questions can still be revelatory enough at times to be concerning.
During oral arguments in Trump v. United States, the infamous “presidential immunity” case, Alito asked another slightly too specific hypothetical question about the dangers of not granting immunity to presidents. “Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement,” he asked, “but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”
That was, despite Alito’s denials, an unambiguous reference to Trump’s own refusals to cede power. It reads like a justification for granting him immunity: If he knows he won’t be imprisoned for his crimes after leaving office, maybe he won’t try to carry out another coup attempt like the one on January 6, 2021. This is an absurd, lawless argument—and it also formed the unspoken rationale behind the court’s eventual decision to invent presidential immunity for Trump.
There are persistent rumors (and a very real book release slated for October of this year) that suggest the 75-year-old Alito is planning to retire at the end of this term, thereby allowing Trump to choose his successor and maintain the conservatives’ grip on the high court. Senate Democrats can’t do much to stop their Republican colleagues from confirming a nominee to replace Alito if he steps aside before the midterms. If there is a confirmation hearing this year, I hope that one of the senators asks about the nominee’s media diet.
What newspapers and magazines do you read? What news channels do you watch? What about digital media? A Supreme Court nominee won’t tell the Senate anything specific about how they’d rule in future cases. But we might learn a lot about them by learning which sources of information they trust to inform and influence their view of the world—and how susceptible they are to misinformation and propaganda.