Robert Barnes December 1, 2016

Robert Barnes covers the Supreme Court for The Washington Post, a position he has held since 2006. Barnes has been a reporter and editor for The Washington Post since 1987. He initially joined the paper to cover Maryland politics and spent time in various editing positions throughout the course of his tenure.

He spoke with SCOTUSDaily about how the presidential election affects coverage of the Supreme Court and why people might be surprised to know the high court isn’t the “Hermitville” it’s often thought to be.

How long have you been covering the Supreme Court?
I’ve been covering the court for about 10 years now. I’ve been at the Washington Post for about 30 and spent much of my time as a political reporter and a very long time as an editor, editing various coverage areas. I started covering the court on a bit of a whim. The person who was covering the court for us went off to write a book and my editors asked if I would fill in for him for about a year. I really enjoyed the beat, and I was fortunate that when he came back he decided to go to the editorial page. I’ve been covering the court ever since. I always thought it was an interesting beat. One of my editing gigs was to edit the reporter who covered the Supreme Court for us, and so, once I started doing it, I just really liked it. I sort of found my niche.

And all because of good luck…
Yeah, and I was very glad because I was already trying to think of ways to steal the beat from him.

How has covering the court changed in that time?
Well, the huge change has been technology, and our approach as a digital-first publication now. We used to have lots of time to read opinions or think about the cases that the court accepted before writing. We had one deadline which was at the end of the day. But very soon after I started covering the court, that emphasis shifted, as it has for every reporter who covers the court now. We had to orient toward writing quickly as soon as the court does something. If the court issues a decision, I may write that same story 2 or 3 times during the day as more information becomes available and as I have more time to read the opinion. As I re-craft the story for our print edition, I will often take a different approach from what I’ve written online. I think that shift to a “write-it-as-soon-as-it-happens” approach has completely changed the way almost all reporters cover the court.

Why do you think following the Supreme Court matters? Why do you think we should care?
Well, in recent years the court has decided such important issues. And perhaps because of gridlock in Washington, and the warfare between the executive and the legislative branches and between the states and the federal government, it seems that there have been more and more of these important issues coming to the Supreme Court. There are some who think the court shouldn’t be playing such a large role in American civic life, but that’s certainly what has been happening in recent years. So I think that the interest in the court has increased, and I think the public’s awareness of what the court does has increased.

What do you think might surprise people most about the Supreme Court?
I think the public finds the court to be this very mysterious branch of government, because its arguments are not televised and because they rarely see the justices talking. There is perception that the court is a sort of “Hermitville,” when in fact, the justices do talk quite a bit. They go out on speaking engagements—albeit not ones in which they are challenged very much—but, they are out there talking.

Is there a need to reform the court? 
I don’t think it’s my place to give the court advice on what it should do. I like to live by the adage that I won’t tell them what to do and they won’t tell me what to do.

Do you have a favorite justice?
No, I don’t have a favorite justice. I think that they’re all pretty interesting, and it’s interesting to see how differently they all approach their work. When I first started covering this beat, I was afraid that I would read some tough case and be clueless about what the right answer was, and what I have learned from covering the court for a while is that there is no right answer. If these very smart people looking at the exact same facts can split 5-4 on something, it just shows you that there isn’t a real right answer.

What can you tell us post-election about OT16 and what we might expect?
It seems clear that two of the cases already on the court’s docket might be in danger. The one about transgender students seems to hinge on a decision by the Department of Education and it’s unclear whether the Trump administration would change that guidance from the DOE after taking over. And then the case about religious liberty from Missouri and about a Christian school’s challenge of not getting a grant from the state government, that one seems endangered as well because apparently, after the election, the new Attorney General said that he might seek a settlement of that suit rather than continuing the fight at the Supreme Court.

Do you have any idea when we might see a ninth justice on the court?
I really don’t. If President-elect Trump was ready to name someone as soon as he was sworn in, generally that process takes at least 60-90 days. So I think we’d be getting pretty late in the term when that happened.

How does a presidential election change or affect your reporting?
I don’t think it affects the way that I write about the court, though it does affect the way we write about the court’s future. Most of the speculation before the election—given the polls and given what I think even the Trump campaign thought—was that Hillary Clinton was poised to win. Most of the coverage was about whether there be a liberal Supreme Court for the first time in nearly 50 years; and what kind of issues would come to the court that wouldn’t normally get there; and what Chief Justice John Roberts’ role be if he was the chief justice of a court that was majority liberal. Well, all those questions have gone away.

This election points out again the centrality of Justice Kennedy to the court’s decision making and also the Chief Justice’s role as someone who tries as hard as he can to make the court look less political. So, it goes back to the way it was with, we would guess, 5 conservatives and 4 liberals. And once again, we speculate about what the future would hold. But this time, we wonder whether the court would become even more conservative.