Greg Stohr November 9, 2017

Greg Stohr is an award-winning journalist who has covered the U.S. Supreme Court for Bloomberg News since 1998. He was on the scene for some of the country’s pivotal moments over the past two decades, including Bush v. Gore, the Obergefell gay marriage ruling and the two Obamacare blockbusters. He has written a book on another Supreme Court showdown, the 2003 University of Michigan affirmative action cases. A former judicial clerk and Congressional and campaign press secretary, he graduated with honors from Harvard Law School in 1995. Stohr enjoys trying to make arcane legal issues understandable and meaningful — and we are so thankful that he does!

Stohr spoke with SCOTUSDaily this week about the term so far and what we can expect in the coming months. We take a look back at his most memorable moment covering the court in which the justices shocked him with a supreme exercise of power. Stohr also points out some of the things he wish more people understood about the high court, including its nuance and discretion when it comes to selecting the cases its decides on.

Earlier this year, Justice Ginsburg noted that this term promises to be “momentous.” Can you speak as to why she may have made that prediction?
I think she was mainly talking about this very significant mix of cases the justices have this term. The partisan gerrymandering case, the case of the Colorado baker, and for a while we had the travel ban, but now that’s gone. When I look at this term, I think to myself, whatever is going to end up as the most important case of the term, it’s going to be a really good one. It may not be about gay marriage or Obamacare, but there’s a really deep mix of interesting cases to choose from.

This time last year we still only had eight justices on the court. But now that we’re back to a full bench with the addition of Justice Gorsuch, how do you think having this new justice changes the dynamics that we’re seeing on the court?
Well it changes the dynamics on multiple levels. The biggest of which is this term there is certainly plenty of potential for the court to decide some very big things, and probably some very big things on a 5 to 4 vote. And then secondly of course, having a new figure on the court means everyone is having to get used to that new figure. We all are watching the courtroom dynamics and the interactions between Justice Gorsuch and various other people on the court. That’s always a fascinating process to watch and to see what we can figure out about relationships and what that’s going to mean for the court’s decisions.

There have been recent reports of backlash to some of Gorsuch’s public appearances and to some of those interactions he’s had with some of his colleagues during arguments.  Is this business as usual when it comes to a new justice or is this a little bit different than what we’ve seen in the past?
I think it’s beyond question that Justice Gorsuch was more assertive than the average new justice when he took the bench in April. There were a couple of cases back near the end of last term where I thought it was pretty clear where Justice Kagan in particular seemed a bit taken aback by his positions. And she pushed back pretty hard on him which is not something you usually see with a new justice, at least not that quickly. I mean usually most justices on the court will say, “Hey, my first couple of years I felt like I didn’t belong there. And I was really trying to feel my way around.” You don’t get any of that from Justice Gorsuch. He dove right in and in some ways acted like somebody who has been on the court for quite some time.

In your time covering the Supreme Court, what have you seen that’s surprised you the most?
I suppose I would point to the Bush v. Gore case, which to me is certainly the most memorable moment of my time covering the court. And it was surprising just for the same reason that it was surprising to everybody else: the presidential election came down to a 5 to 4 Supreme Court decision. When the justices stayed the Florida Supreme Court order and stopped the recount, at that moment you could see the divisions on the court.

Was it surprising because it was unexpected or because it was such an exercise of power?
Because it was such an exercise of power and because that exercise fell along the ideological divide of the court. We don’t know who all the justices voted for in the election but it’s at least highly plausible that the person they voted for was also the person they voted for on the legal issue in the case before them. To see that really laid bare that as much as the justices do try to base their decisions on the law, at the end of the day, there are some issues where it is hard not to think that their personal preferences play a role in how they get to the decisions that they do.

Are there any solutions to improving transparency or access to the Supreme Court that you might support? Whether it’s cameras in the courtroom or live audio or any other measures you might be interested in?
Well, I would be interested in having all of them because I think it is in the public’s interest to make the court as transparent as possible. From the standpoint of a reporter, the things I’m most interested in are things like fast transcripts so I can write my story more accurately and completely. From the public’s standpoint, and from the standpoint of other reporters, having same-day audio seems like it would go a long way towards letting more people know about the court. Obviously, the justices have really resisted the idea of cameras in the court and they’ve certainly resisted the notion of live audio of the proceedings in the court. I’d be shocked if 100 years from now we didn’t have those things, but at this point it doesn’t look like that’s going to happen any time soon.

What is one thing you wish more people understood about the Supreme Court?
I think one thing that is not generally understood very well is how important it is when the justices decide what they’re going to decide. And that happens on a couple different levels. First of all, they spend a lot of different time looking at the 7,500 requests for review that they get every year and they only take a tiny percentage of those cases. The decision about which of those cases to take is tremendously important. And then secondly, we tend to sometimes think about Supreme Court decisions as if there were only two options: either they agree with one side or they agree with the other side. But in most cases, there are a panoply of options that the justices can choose from. They can choose to resolve cases narrowly, or choose to decide on Issue A or Issue B — and that’s also tremendously important. So those decision-making exercises involve a good deal of judgement and discretion that I think often get lost as we have a tendency to just look at the bottom line of who won and who lost in a particular case.

Do you have a favorite Supreme Court justice?
I don’t want to pick a favorite, but I will mention one justice who I like an awful lot and that is Justice Souter. I’ve only met him a couple times, but he is a very pleasant—and as we saw from his appearance at the Harvard Law School bicentennial—a very funny man. I was just reminded in watching video from that event that it was enjoyable covering him as a justice.

But I don’t have a favorite justice when it comes to the substance of the opinions. I’m firmly agnostic on those issues. Some justices are easier to cover than others—Scalia was always highly quotable in arguments, and Kagan and Alito always seem to ask questions that crystallize the core issue in a case—but that’s all about style.