Politico’s story was spot on.
Josh Gerstein, who co-bylined last month’s seismic scoop about the leaked court opinion against abortion, was awake and online on Friday, knowing it was possible that the Supreme Court’s official decision overturning Roe v. Wade could be handed down. He didn’t think the ruling was likely until next week — but with an iced tea at the ready (his caffeinated drink of choice), he logged on from home to a Zoom call with his editors at 10am, and started to refresh the court’s website to see what opinions would be released.
When the court ruled on Dobbs v. Jackson Women’s Health Organization at 10:10am, “we just kicked into gear,” Gerstein told me, recalling the moment that he realized that the court had overturned Roe, as his May 2 story telegraphed.
Gerstein described Friday as “crazy and chaotic” — words that I’m sure were applicable to most newsrooms as journalists worked to cover the decision and explain exactly it means to audiences across the country.
Will we ever know POLITICO’s source?
Ever since Politico’s scoop, speculation has swirled about the leaker and the possible motive for the leak. The number one question Gerstein said he received on Friday was what he believed the impact of the leak was. “It’s a little tough to say,” he admitted.
When I asked whether Gerstein has spoken to the source of the leaked opinion since the official ruling came out, he declined to answer. However, he did suggest that one day, it is possible we will all know who the source is. When I asked Gerstein whether the person would eventually out themselves, he replied, “I don’t think I can answer that directly. But I do think in most of the situations, that part of the story does get told. In most of these types of stories, Watergate or what have you. But we shall see.” Gerstein added that as a reporter, he tends to believe that “history moves in the direction of more information coming out.”
“Too much credence” or not enough?
Not only is Gerstein one of the two reporters who broke news that the court was set to overturn Roe (the other reporter is Alexander Ward), he is also one of the most respected legal reporters in the industry. So I asked him what the media can improve on as it covers this tectonic moment.
Gerstein said that he believes the news media is putting too much focus on Justice Clarence Thomas’ concurring opinion in which he invites the court to reconsider other landmark cases. “Just because the liberal justices say that this ruling means that same-sex marriage or contraception — the right to those things is about to be taken away — or advocacy groups say that, that doesn’t tend to mean that is the most immediate fallout,” Gerstein said. “I think the press gives a bit too much credence to that sort of thing, which is somewhat speculative.” Gerstein argued that, instead, “there are many concrete other things” the press can draw attention to “that will flow out of today’s decision without needing to necessarily say the sky is falling about all kinds of other things that may or may not develop years down the road.”
When I asked Jeffrey Toobin, CNN’s chief legal analyst, about this, he said it’s a “fair point” and that he certainly agrees “there is a lot to say about the implications of Dobbs itself.” But, Toobin said, “Thomas is the senior member of the court’s conservative majority. His explicit endorsement of overturning those precedents is definitely newsworthy. It would be one thing if the liberals alone were saying the sky is falling, but Thomas is the one making the claim.”
“I’ve spent my entire journalistic career covering the legacy of Roe,” Toobin added to me. “It’s always been the biggest issue at the Supreme Court. At one level, the fight over Roe is over, but there will only be more litigation coming out of Dobbs, not less. Same with Bruen and gun control. Every law on the books is going to be challenged.”
Most major news outlets have a process in place for ingesting and distributing bulletins like the SCOTUS ruling. CNN viewers could see it happen in real time: At 10:10am, Jim Sciutto said the ruling was in, and awaited the DC newsroom’s assessment of what it said. Chief legal analyst Jeffrey Toobin, who was already at the anchor desk for a segment about the 1/6 hearings, set the table for the news by saying it would be a “flashbulb memory,” a where-were-you-when moment for the country. Then at 10:12 Jessica Schneider reported the decision and the coverage began.
>> NBC, then ABC, then CBS all broke into regular programming between 10:12 and 10:13am.
>> Fox News cut off a segment with Reince Priebus to break the news, with Shannon Bream reporting from outside the court.
>> MSNBC initially fumbled the news by belatedly cutting into NBC’s special report that was already in progress. But then the network went into breaking news coverage, commercial free, for four straight hours.
The prime time coverage from Fox was precisely what you would expect from the right-wing channel. Hosts portrayed anti-abortion activists as the part of the country under attack from “radical” liberals. Here are four banners that aired during the 7pm and 8pm hours that really illustrate the tenor of coverage:
>> “RADICALS SWARM HOME OF CLARENCE THOMAS”
>> “PRO-LIFE MOVEMENT TARGETED BY RADICAL LEFT”
>> “ROE IS DEAD. ACTIVISTS THREATEN A ‘NIGHT OF RAGE'”
>> “ROE IS DEAD: PRO-LIFERS CRY TEARS OF JOY AS ABORTION ACTIVISTS RAGE”