Supreme Court justices don’t often discuss their media diets, but the occasional glimpses we do get hint at an institution where Fox News Brain is a common and perhaps incurable affliction. In a 2013 interview, for example, Antonin Scalia made a big deal out of having canceled his Washington Post subscription because it was “slanted,” “nasty,” and “so shrilly, shrilly liberal.” He also named as his favorite talk radio host his “good friend” Bill Bennett, who once asserted that a failsafe way to reduce crime would be to “abort every Black baby in this country.”
Other details are similarly discouraging. In May, Clarence Thomas joked that he’d resign the moment he starts doing his job as poorly as The Media does theirs, and his wife Ginni’s coup-curious hobbies leave little doubt about which channels their TVs are probably tuned to. Before becoming a justice, Neil Gorsuch moonlit as a blogger for the National Review. If Sam Alito doesn’t watch Tucker Carlson every night, his ability to channel that trademark strain of simmering resentment is among the great coincidences of our time.
Conservative media’s influence on judicial thought, however, is not a new phenomenon. In his book Too Close to Call, a tick-tock of Florida’s disastrous 2000 presidential election that the Court ultimately handed to George W. Bush, author Jeffrey Toobin recounts a troublingly revealing nugget about the mindset of Justice Sandra Day O’Connor. On December 4—the same day the Court issued its first opinion in Bush v. Gore—O’Connor absolutely teed off on the Gore campaign at a private party in Washington.
“You just don’t know what those Gore people have been doing,” said O’Connor, a Republican appointee, whom Toobin describes as “livid” and speaking “with fervor.” “They went into a nursing home and registered people that they shouldn’t have. It was outrageous.” The vibes here are consistent with her widely-reported morosity at an Election Night watch party, when she proclaimed news of Democratic candidate Al Gore’s apparent victory “terrible” and left the room.
Toobin, seemingly surprised, notes that this particular rumor had “circulated only in the more eccentric right-wing outlets.” Whatever the precise origins of this mysterious little tale, it seems to have remained in those circles ever since. A 2001 report by Michigan Congressman John Conyers refers briefly to “absentee vote forging” by nursing home attendants in Alabama, but does not suggest the issue was (1) widespread or (2) mattered in a state Gore lost by 15 points. A dissenting opinion from a 2001 U.S. Commission on Civil Rights report on Black voter disenfranchisement in Florida chides the Commission for ignoring “allegations involving fraudulent absentee ballots in nursing homes,” but nothing related to illicit “registration” practices (??) with which O’Connor was so preoccupied. At the very least, it’s safe to say that whatever she was referring to here, it was not among the 10,000 most consequential scandals of the 2000 election to which you’d hope a Supreme Court justice with the power to decide it would be attuned.
Toobin, charitable as ever, says it was “unclear” where she had picked up on this “unproven accusation,” about which she was evidently angry enough to vent before an audience. His own description of its provenance, though, seems to yield an obvious answer.
It is not, of course, a breach of a judge’s ethical obligations to read. But this anecdote is a reminder that America’s insular, sprawling, and conspiracy-addled conservative media ecosystem can be as influential for honest-to-God Supreme Court justices as it is for, say, your average January 6 Capitol tourist. As professor Richard Neumann noted in a 2004 law review article on the subject, the appellate record in Bush v. Gore “contained no allegations of evidence of this kind.” Yet O’Connor had apparently heard, absorbed, and accepted it as an important fact by the time the case came before her. In modern parlance, it was enough that many people were talking about it.
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