Opinion: Oh, Sure, NOW You Care About the Supreme Court

(May 14) --Have you heard the latest about Elena Kagan? She might be pro-choice! She might be pro-life! She might be gay!

Actually, she's not gay, but that's not the point (just as it's not the point when assessing her qualifications). The point is, people can't stop talking about the Supreme Court. It's important! It matters! It makes decisions that affect everyone in the country!

Of course it does. But where were all these people during the 2008 election? Not talking about the Supreme Court, that's for sure.

I remember, because I was watching for it, geeky former lawyer that I am. I remembered the hullabaloo when Justice John Roberts was confirmed, then Justice Samuel Alito. President George W. Bush had changed the makeup of the court significantly, and it showed. Whoever was going to be the next president would have the opportunity to change the court again -- to reverse the conservative trend, or push it even further.

There wasn't much during the primaries -- fine, I get it. Obama-Hillary was exciting, and let's face it, nuances of judicial precedent never make exciting soundbites. (Perhaps if the pro-choice Rudy Giuliani had not imploded by New Hampshire, things would have been different.) But when the showdown between Barack Obama and John McCain kicked off, the court just wasn't on the radar.

I wondered about that in the spring of '08, when McCain quietly made a speech vaguely against "activist judges" but filled with code words strategically aimed for the right wing. I wondered about that in the summer when Sarah Palin was sprung on an unsuspecting world as the Republican vice-presidential nominee and a pro-life icon. And I wondered about it in the fall when Katie Couric flummoxed Palin by asking her to name a specific Supreme Court case with which she disagreed. (She couldn't.)

While there was nonstop coverage of Palin (which actually hasn't stopped since), the discussion never veered into questions of how Roe v. Wade could be overturned by a McCain court or even why specific Supreme Court cases might be important. Even when Dahlia Lithwick -- a top thinker and go-to on all things SCOTUS -- got a Newsweek cover out of it in September '08, it was less about the court than a tart essay about Sarah Palin (with a sexy-lipstick-themed cover, no less).

It's not that Lithwick wasn't writing about the court -- that's her specialty. It's that outside of that specialty, it just wasn't a hot topic. It wasn't ignored per se -- The New Yorker assessed it thoughtfully in its endorsement of Obama (halfway in). The New York Times included it comprehensively in its Election Guide. There were some posts on The Huffington Post -- but it never caught fire. You know when something catches fire. Think "lipstick on a pig." Think death panels. Think balloon boy.

And now, think Elena Kagan. Even as I write this, MSNBC is showing Kagan on-screen with a huge lower-third chyron: "KAGAN'S RECORD." (Nothing makes you want to review jurisprudence like not having any.) Here's the tip-off for a popular subject of discussion: the fact that there's nothing to talk about is itself talked about. And Kagan -- professional, qualified, if slightly boring Kagan -- is being talked about. Why? Because who sits on the Supreme Court is important. And the media knows that ... now.

Ah well. Better late than never.

Rachel Sklar is the editor-at-large at Mediaite.com and was the founding media editor at The Huffington Post. She is a former lawyer who writes about media, politics, culture, technology, feminism, philanthropy and Jews. Yep, that about covers it.

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