The Court’s Witness: Linda Greenhouse

Linda Greenhouse is a Senior Research Scholar in Law, the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School. She covered the Supreme Court for The New York Times between 1978 and 2008 and currently writes a biweekly column on law. She is a 1968 graduate of Radcliffe College (Harvard), where she was elected to Phi Beta Kappa. She earned a Master of Studies in Law degree from Yale Law School (1978), which she attended on a Ford Foundation fellowship.

The Politic: What is your immediate reaction to last week’s ruling in Citizens United vs. the FEC?

LG: My immediate reaction is that the court has finally come out of the closet, and it’s no longer the minimalist court that Chief Justice Roberts likes us to think it is. They had a couple of precedents that they didn’t like and they had five votes to overturn those precedents, so they just went ahead and did it.

The Politic: A response last week from legal scholar Richard Hasen hit along those same lines, saying that the court was shifting from principles of “constitutional avoidance” and “judicial minimalism” to outright activism.

LG: Yes, Rick Hasen and I have discussed this matter on multiple occasions, and I agree. If you look at the first 15 or 20 pages of Justice Kennedy’s majority opinion, it’s very defensive, on why they had to reach the ultimate issue, why they couldn’t have found an off-ramp out of this highway, short of overturning the Austin case and part of the McCain-Feingold law, and it’s not persuasive. It’s simply not persuasive on its own terms. Justice Kennedy says, “the government asks us to interpret the statute in a way that would have us functionally rewrite the statute, and we can’t do that.” Well, they did exactly that, in a more extreme way last term when they rewrote a provision of the voting rights act because they didn’t have 5 votes to actually overturn the provision at issue, so I’m not persuaded that we had to do this.

The Politic: What lasting effects do you think this will have on the court?

LG: Well, they had their first taste of wine. So, what I’m interested in is to try to think through what might be next in their sight. Let’s assume there are quite a few precedents that this crowd doesn’t like very much, so does it now mean that everything they don’t like, whether it’s abortion or civil rights statutes is now fair game? I think it’s a plausible concern.

The Politic: Should corporations be granted the same free speech rights as humans?

LG: In my personal opinion, no. Granting the fact that corporations are persons in some aspects of law, I think that the notion that they have the same free speech rights as individual citizens and that we have to invoke the equal protection guarantee to make sure that the burdens that are not put on individual citizens are not put on corporations is essentially taking an idea that has some foundation and running it right off a cliff.

The Politic: Will Perry v. Schwarzenegger, the challenge to California’s Proposition 8 Initiative, end up in front of the Supreme Court? If so, what do you see as the likely outcome?

LG: Well that’s a tough question. I always assumed it would end up in the U.S. Supreme Court, and that it would come up under the court’s discretionary docket. I think it does not depend so much on what Judge Walker does, because it’s going to go to the Ninth Circuit after, but on how the opinion is framed. If it were to end up in the Supreme Court, right now, I don’t know. Justice Kennedy of course wrote Lawrence v. Texas in 2003, which was a very powerful statement about gay rights.. It’s close. I could see it go either way.

The Politic: In an article you wrote for The New York Times, you say that “the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.” In what instances have you observed the court straying too far from present social or political consensus?

LG: There was a series of Supreme Court decisions in the 1990s that overturned acts of Congress on the ground that Congress didn’t have the constitutional authority to have passed those laws in the first place. I made a big deal about it because I just thought it was really fascinating. There was a pushback against that. Congress pushed back, and the political system pushed back. The court stopped doing it. They tended to be very technical decisions, but subgroups of the population were very interested. That maybe was an instance of the court overreaching, that you could call a Federalist revolution. Then, a lot of people cite Roe v. Wade as the court overreaching. That’s not my view in that instance. There was a huge debate going on about abortion at the time, and the court actually had plausible reasons to think that it was following public opinion in Roe.

The Politic: What was the difference in the political environment surrounding Roe v. Wade and that surrounding a case like Brown. v. Board of Education? What made people think that the court could have been overreaching in Roe, but not in Brown?

LG: Well, of course there can be many reasons. One reason could be that equal protection, which is what Brown is based on, is hard wired into the Constitution, and it’s just a question of, did equal protection mean “separate but equal”? One could have disagreed with Brown, and of course many areas in the South took decades to come around to it, but you couldn’t appropriately argue that it wasn’t the business of the Supreme Court to decide the issue of the rights of black citizens. Of course, the Constitution doesn’t contain the word abortion. So, there’s always the argument that the court was out of line in doing anything about abortion, yay or nay. The Constitution doesn’t say anything about giving the court the right to step into that area. That’s not my personal view, but it certainly distinguishes the Roe controversy from Brown v. Board.

The Politic: What about capital punishment? The Constitution says nothing about capital punishment, but the Supreme Court has time and time again had to rule on cases about it. Is the use of capital punishment constitutional? Does it violate the 8th amendment?

Justice John Paul Stevens

LG: Well, there’s a quite strong scholarly argument that in the Furman v. Georgia case in 1972, when the court declared the death penalty laws of states unconstitutional, that the court did overreach there. People say the court misread what it thought was a consensus, and obviously it did, because within four years with Gregg v. Georgia in 1976 when the court reauthorized capital punishment, there were 38 states that immediately jumped in and reenacted death penalty laws, so that’s almost like a test case. What do I think about capital punishment? There’s really not one justice on the court today with the exception of Justice Stevens, who will say that capital punishment is unconstitutional. Now Justice Stevens might not necessarily say that capital punishment is unconstitutional in theory, but he came to an opinion much like the one that Justice Blackmun came to at the end of his career, which said that theoretically, perhaps in another world one would be able to devise a system of capital punishment that would be fair, proportional, and all of the things we would hope for in a criminal justice system. However, in his long experience in watching this experiment, it seems to be beyond the ability of human beings to accomplish that. That opinion was different from the view of Thurgood Marshall and William Brennan, who thought that capital punishment was simply unconstitutional. But in my own close observation of capital punishment over my years covering the court, theoretically the Constitution does not flat out prohibit it, I don’t believe, but we have yet to devise a system of capital punishment that does not, in its implementation violate constitutional rights.

The Politic: Do you mean to say, for instance, that the system has disproportionate effects on minorities?

LG: Yeah, I think that’s part of the system’s problem. I think that we have a serious problem of inadequate defense representation. If you look at the biographies of people who end up on death row, obviously the crimes are usually very terrible. But if you look at who these people are, you just have to wonder about a deeper kind of causation that is not really addressed by simply executing them. But I don’t mean to be a bleeding heart. If I were judging these horrible home invasion cases going on right now in Connecticut, I would have to ask, have those offenders forfeited their right to live in human society? There’s certainly a strong argument that they have. So, it’s a really tough issue and I don’t feel like I have a really good answer, but I know just from studying a lot of these cases that there is just an awful lot that went wrong over the years that just makes you wonder if you can devise a system that can really separate out those most deserving of the death penalty from those who are less deserving, and I don’t think we have.

The Politic: Justice Byron R. White liked to say that every time a new justice comes to the Supreme Court, “it’s a different court.” How will Sonia Sotomayor change the face of the Supreme Court? How different do you predict she will be from Justice Souter’s moderately liberal record?

LG: It’s very early. I know very little about the current internal dynamic of the court at this time, but obviously she is smart, extremely hard working and extremely well prepared. I did read the transcripts of arguments she has participated in, and she knows every case very well. She is certainly going to have an impact. But at the end of the day, if there are five people who are just trying to get something done, as in Citizens United, they’re not too interested in other peoples’ arguments once they have five votes. I would feel a bit naïve to say right now that she is really going to shake up the place and have a big impact; it depends on the whole institutional dynamic in any given term and around any given issue, so I just don’t know.

The Politic: To what extent do you believe that the court has become politicized? How much does public opinion affect the way judges vote?

LG: Well, Barry Friedman wrote a book that’s 682 pages on the subject, called The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. But Barry Friedman’s thesis, which I agree with, is not that the court wakes up in the morning, puts its finger in the wind and says, you know, “what’s blowing today?” but that over time, the court tends to situate itself in the mainstream of public opinion and it reflects public opinion, which makes sense, because the justices get on the court through the political process of the president nominating them and the Senate confirming them. And as a part of the government, the court is really limited to its power to persuade, its power to command the respect of the public, which it has succeeded in doing to a remarkable degree over the years. In social science polling, the court is always the most respected arm of government. The court really has been pretty successful in reflecting not necessarily the opinion of the moment, but the tenor of the time, and I think that’s not surprising.

The Politic: Do you agree with people who say that sometimes the court’s decisions are influenced by liberal media bias?

LG: Well, no, the whole “Greenhouse Effect?” Properly understood, they are referring to me not as an individual but as sort of an embodiment of Eastern liberal media, namely The New York Times. No, I don’t think that’s the case, but it’s certainly true that over time, the court certainly cannot be completely at odds with the American public. I mean, that’s what happened in the Roosevelt court-packing crisis. I hear people speculate that if we were ever to pass a health care bill with a mandate that the court would declare it unconstitutional, but I would be completely shocked if that ever happened, because that would really be a return to the 1930s, where the court was standing in the way of major social legislation that the public had called for. So, I would be extremely surprised if that ever happened again.

The Politic: In writing of the Supreme Court’s relationship with society, you say, the Supreme Court is often a follower: it ratifies or consolidates change, rather than propelling it, although in the midst of a heated debate about a big case, it can appear otherwise. What do you mean by this?

LG: Well, I think I probably had Roe v. Wade in mind. Abortion reform had been going on for 15 years by the time the court decided Roe, so when people say that historically, the court started it, no, they didn’t. The court doesn’t start much. It can’t, really. Cases reach the court after years of debate. Just look at Proposition 8. It’s coming up ten years after Lawrence v. Texas and five years after the start of same sex marriages in San Francisco City Hall. So, things get to the court only because they have been working their way up through the rest of society, and it’s worth keeping that in mind.

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