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.”
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.”
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.
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.
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.
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 post-election lawsuits were consistently rejected by the courts.) Trump spent the post-election 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.
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.
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.”
Conservative justices who stray from orthodoxy, on the other hand, are met with stern rebukes. Legal conservatives have never really forgiven Roberts for voting to uphold the Affordable Care Act, despite his many other achievements for their cause. Gorsuch also received immense blowback for writing a majority opinion in 2022 that extended federal workplace-discrimination protections to gay and transgender Americans. Barrett has also received an outsized 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.
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 PM 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.
“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?”
Justice Neil 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.”
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, Chief Justice John Roberts and Justice Amy Coney 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.
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?”
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.
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