Saturday, July 26, 2008

A reporter's take on the Court


For three decades, Linda Greenhouse reported on the U.S. Supreme Court for the New York Times. A week after retiring from that post to go on to Yale Law School, she spoke about the court at the Chilmark Library on Martha's Vineyard.

The event was standing room only -- those who had attended both were pleased to conclude that Greenhouse had proved even a bigger draw than Professor Alan Dershowitz advocating for U.S. torture several weeks before.

It hadn't required retirement for attentive consumers of news to discover that Greenhouse had some sensible opinions about what she was covering. Back in 2006, NPR reported some remarks from a speech.

The government, Ms. Greenhouse [charged], "turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha and other places around the world -- [such as] the U.S. Congress."

She also observed a "sustained assault on women's reproductive freedom and the hijacking of public policy by religious fundamentalism. To say that these last few years have been dispiriting is an understatement."

For this candor, she got a reprimand from the New York Times Public Editor. The Times doesn't seem to mind reporters who pimp for C.I.A. assets, but doesn't look kindly on remarking the Emperor's nakedness.

In her Chilmark talk, Greenhouse amplified some of the themes she had explored in a review article and for readers of a Times blog.
  • On "preference drift": In the blog discussion, she endorsed the suggestion from political scientists that new justices whose previous experience had been outside the beltway -- in the executive, and especially the Department of Justice -- were more likely to change their opinions than Washington insiders. In the talk, she suggested that she could see differences between George W. Bush appointees John Roberts and Samuel Alito that suggested they might have slightly difference trajectories as justices. Roberts, coming out of the Reagan and Bush I Justice Departments, "thinks like an advocate, as if he still had a case to win." Alito is a very conservative figure, but he seems to think more like the judge he was previously and, she thinks, might be more likely to change somewhat in office.
  • On "swing" Justice Anthony Kennedy: She finds him a little mystifying, she wrote in her article.

    Speaking personally, it's hard to reconcile his capacious understanding of the human condition in his majority opinion in Lawrence v. Texas, the 2003 gay rights case, with the patronizing and counter-factual attitude toward women that suffuses his majority opinion in Gonzales v. Carhart, last year's so-called partial-birth abortion case.

    At Chilmark, she added that Kennedy is "not as deep as he thinks he is." He can be "a rigid, categorical thinker." Nonetheless, she reminded the audience that Kennedy is the Justice we got instead of Robert Bork and thus he has made an important difference in the Court's stances over the last 20 years.
  • On the court and evolving public opinion. In her article, she described the interplay of the people and the ultimate arbiter of legality this way:

    The court can only do so much. It can lead, but the country does not necessarily follow.

    In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. ... I’m simply offering my empirical observation 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 her blog responses and her talk, she pointed to the trajectory of rulings on the Guantanamo cases as showing the back and forth between branches of government that informs the court's rulings. She was not willing to say that the foot dragging and jurisdiction shifting practiced by the Bush administration in "security" cases amounted to any kind of Constitutional or "rule of law" crisis. If the Guantanamo inmates believed in law and justice (which they probably don't), they might beg to differ.

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