2,691 Decisions

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WASHINGTON — Sometime during the first of my nearly 30 yearsreporting on the Supreme Court, a distinct visual image of a SupremeCourt term took hold in my mind and never let go. The nine-month termwas a mountain. My job was to climb it.

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The slope was gentle when the term began, every first Monday inOctober; the court was busy choosing new cases and hearing arguments,but it was not yet ready to issue decisions. The upward path steepenedin January and February, when grants of new cases, arguments anddecisions all came at once, competing for attention. Spring brought abreather as the path flattened out again: all the arguments had beenheard, and the decisions were sporadic. The steepest climb came,predictably, every June, with the final outpouring of opinions beforethe summer recess. And then it was over. I could look down from themountaintop to see the term whole and clear, while off in the distancethe next term loomed, another climb.

But not this year. I amretiring from The New York Times to write and teach at Yale Law School.So this time, I can survey all the mountains, stretching back to themorning in 1978 when I first walked up the court’s marble steps —mistakenly, as it turned out, because people with business at the courtactually use a less majestic but more practical side entrance at groundlevel.

I had been a political reporter, covering state government in New York from Albany, before I received a Ford Foundationfellowship for journalists to attend Yale Law School for a year.Certainly my Yale master’s degree, the ink barely dry as I walked upthose marble steps, had given me a useful grasp of legal concepts. Butit could scarcely prepare me for the texture and flavor, the sheerdailiness, of life at the court. So much happened behind closed doors.What did the justices do all day, anyway? I imagined them in earnestconversation with one another, grappling with the great legal questionsof the day (in 1978 affirmative action was the most pressing). I learnedonly gradually that it isn’t like that at all, that except for theirformal gatherings around the conference table once or twice a week, thejustices spend their time, when they are not on the bench, in theirchambers, alone or with their law clerks. Communications among them tendto be in writing, even today, and the ethos of the place discouragesone justice from intruding on another’s space, physically or verbally.Membership in one of the world’s most exclusive clubs can be isolating, alittle lonely, which I think is why those justices who enjoycompanionship spend a fair amount of their free time on the road,speaking at law schools and judicial conferences.

In The Times’sAlbany bureau, contact with the capitol’s newsmakers was constant, andfeedback from them was instantaneous — not always pleasant, butessential for understanding competing perspectives and agendas, orsimply for avoiding making the same mistake twice. Compared with thefrenzied drama of the New York Legislature, the quiet of the SupremeCourt press room was the silence of the tomb. In place of the easybanter with politicians that had made the Albany beat so engaging, therewas an almost suffocating paper flow. Before I could work my waythrough one list of newly filed petitions to the court, two more wouldarrive.

Politics, comfortingly, had presented a moving target —an interpretation that seemed wrong today could well be proven correcttomorrow. But when it came to Supreme Court decisions, it was quitepossible to get it wrong, flatly and irrevocably. And if I did get itwrong, how would I know? The fact that I received no feedback from thosewhose activities I was covering was hardly reassuring. It justunderscored how different this new environment was going to be.

For example, the New York Legislature in the 1970s was determined tochannel taxpayer money to parochial schools. A majority of the SupremeCourt was equally determined to keep that from happening. Session afterlegislative session in Albany, I reported on efforts to get around thelatest Supreme Court ruling and to do indirectly (by providing textbooksor transportation rather than classroom instruction, for instance) whatthe court had said could not be done directly. It was a constitutionalPing-Pong match, foreshadowing, in its way, the recent one between thecourt and the Bush administration over the handling of the Guantánamodetainees; a battle over principle, to be sure, but also over who wouldget the last word.

DAYS OF 5 TO 4 If the Rehnquist court (here in its 2005composition) tacked right, it also gave proof to the idea that thecourt follows the country more often than it leads.

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Supreme Court Correspondent

Linda Greenhouse, who is retiring from The Times after three decadescovering the Supreme Court, will be answering reader questions.

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A CRUCIAL MOMENT Robert H. Bork, in 1987, was not invited to the “intellectual feast.”

There was another useful lesson for me in the struggle overparochial school aid: the court’s makeup changes, and so does the law.As an associate justice, William H. Rehnquist,who wanted to cultivate a much bigger space for religion in publiclife, planted a few seeds in arid soil. He tended those seedsassiduously as new allies joined the court and the climate warmed, untilthey germinated in the form of decisions like the one in 2002, Zelmanv. Simmons-Harris, which upheld Ohio’s system of taxpayer-financedvouchers for parents to use for parochial school tuition. “A program oftrue private choice,” Chief Justice Rehnquist said in his 5-to-4majority opinion — having established years earlier, in less freightedcontexts, that when public money passes through parents’ hands, it losesits public character and its use becomes a “private choice.”

Andthen something interesting happened. The voucher movement, even thoughits constitutional shackles had been removed, stalled almost everywhere,owing not to the intervention of federal judges but to resistance fromstate courts, teachers’ unions and taxpayers. An ambitious legislativecampaign by voucher advocates in 2004 ended in defeat in state afterstate. The court can only do so much. It can lead, but the country doesnot necessarily follow.

In fact, it is most often the SupremeCourt that is the follower. It ratifies or consolidates change ratherthan propelling it, although in the midst of heated debate over a majorcase, it can often appear otherwise. Without delving into the vastpolitical science and legal academic literature on this point, I’msimply offering my empirical observation that the court lives inconstant dialogue with other institutions, formal and informal, and thatwhen it strays too far outside the existing political or socialconsensus, the result is a palpable tension both inside and outside thecourt.

Such periods are fascinating, and inherently unstable. Theearly New Deal period is a classic example. The public demanded change,and the “nine old men” stood in the way. The “court-packing” crisisensued; President Franklin D. Roosevelthad to back down from adding new and younger justices, and change camefrom inside the court anyway. Some decisions protecting the rights ofcriminal suspects, made by Earl Warren’s court in the 1960s, placed thecourt to the left of the country’s center (and provided useful campaignfodder for Richard M. Nixon).

Ayear ago, at the end of a Supreme Court term marked by sharpideological divisions and attacks on precedent by a newly empoweredconservative majority, I thought we were entering such a period; thecourt appeared to be moving to the right of the public. For example, the5-to-4 decision blocking local communities from taking modest steps topreserve the hard-won gains of public school desegregation threatened tounravel delicate arrangements in school districts around the country.That remains a highly problematic decision, but the more muted andcentrist tone of the term that just ended has made me less persuadedthat the court is on a collision course with mainstream public opinion.

Inany event, it is often the court that eventually retreats when it findsitself out of sync with the prevailing mood. That appeared to be thecase with the “federalism revolution” that Chief Justice Rehnquist beganin the mid-1990s. In a series of 5-to-4 decisions, the court declaredthat Congress did not have the power it assumed it had to make federalstatutes binding on the states. These decisions, reflecting the chiefjustice’s longstanding goal to re-adjust the post-New Deal federal-statebalance, signaled an abrupt jurisprudential shift.

But then9/11 happened and the national mood changed. Suddenly, the federalgovernment looked useful, even necessary. The Supreme Court’s federalismrevolution had been overtaken by events. In 2003, Chief JusticeRehnquist wrote for a 6-to-3 majority that Congress acted within itsconstitutional authority when it said state governments could be suedfor failing to give their employees the benefits required by the Familyand Medical Leave Act. It was a decision of enormous symbolicsignificance. Without apology or much in the way of explanation, thechief justice gave up the fight and moved on.

I admired Chief Justice Rehnquist as a strategist and tactician; heknew what he wanted and knew his limits, just as in his weekly pokergame he knew when to hold ’em and when to fold ’em. Justice Antonin Scalia,who joined the court in 1986, was a flashier attention-grabber, but Inever had any doubt that William Rehnquist was the brains behind thecourt’s ascendant conservatives. He took his role seriously, but himselfless so (unlike his stuffy predecessor, Warren E. Burger, the firstchief justice of my tenure). When he emerged from behind the courtroom’svelvet curtain one morning in 1995 sporting four gold stripes on eachsleeve of his robe — with some of his colleagues struggling to suppresssmiles — many people saw pomposity, but I saw a wry or maybe evenself-mocking comment on the boredom of basic black after 23 years on thecourt. He had another 10 years to go.

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Sidebar: 3 Defining Opinions(July 13, 2008)

Times Topics: U.S. Supreme Court

Articles by Linda Greenhouse in The Times

Talk to the Newsroom

Supreme Court Correspondent

Linda Greenhouse, who is retiring from The Times after three decadescovering the Supreme Court, will be answering reader questions.

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We had nothing approaching a confidential relationship, but we didchat now and then. On the morning after the 2000 presidential election, Iran into him on the court’s plaza as he was taking his morning walk.Wasn’t it amazing, we agreed, that the outcome of the election was stillin doubt.

The court I began covering in 1978 was populated by men who were, for the most part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures. Harry A. Blackmunhad only a few years earlier been propelled from obscurity when hewrote the court’s 7-to-2 majority opinion in Roe v. Wade. Nine newjustices joined the court during my time there. Of the original group,only John Paul Stevens remains. Three members of the court are younger than I am.

Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor. I had never heard her name before President Ronald Reagannominated her that summer to succeed Potter Stewart. Although I coveredher confirmation hearing, she remained to me basically a blank slate.That didn’t matter. The first time I looked up from the press sectionand saw a woman sitting on the bench, I was thrilled in a way I wouldnever have predicted. Her presence invaded my subconscious. I hadrecurring dreams about her. In one, she asked me my opinion on a pendingcase (something no justice ever did in real life). But mostly, she justhad walk-on roles in ordinary nighttime dramas, her presence signifyingwhat it meant to me to know that there was no longer a position in thelegal profession that a woman could not aspire to.

Four summerslater, I was pregnant. Encountering me in a hallway, Justice O’Connorasked me when the baby was due. “Just before the first Monday inOctober,” I replied. Sandra Day O’Connor, mother of three, laughed. “Oh,keep your legs crossed,” she urged. “Don’t let that baby come out untilthe First Monday!” Some 30 minutes into the first Monday in October1985, my daughter, Hannah, came into the world. I later learned thatright before going on the bench that morning for the term’s openingsession, Justice O’Connor called the court’s public information officeand asked: “Has anyone heard from Linda? Did she have her baby today?”

(Yearslater, my daughter bluntly reminded me that today’s young women havethe luxury of taking for granted the pioneering accomplishments of aSandra Day O’Connor or Ruth Bader Ginsburg.When I observed that I was out of college before I ever met a woman whowas a lawyer, the teenage Hannah regarded me with compassion. “Face it,Mom,” she said. “You’ve led a sheltered life.”)

Continuity andchange, the entwined spirals of a double helix, are the court’s DNA.Continuity is anchored by the gravitational pull of precedent. Who wouldhave believed that William Rehnquist, long a vocal critic of the Warrencourt’s Miranda decision, could write a majority opinion in 2000 notonly reaffirming it but proclaiming that the Miranda warnings had become“part of our national culture”?

The pull of precedent ispowerful but scarcely all-powerful when a shift of personnel orperspective breaks the spell, allowing the forces of change to exerttheir counterpull. The road from Bowers v. Hardwick, the 1986 decisionthat dismissed a claim of gay rights as “at best, facetious,” toLawrence v. Texas, which 17 years later located the privacy rights ofgay men and lesbians at the heart of constitutional due process, waspaved, I have no doubt, by the justices’ experience of knowing gay menand women in their personal and professional lives.

But with somany important cases decided by such close margins (the two leadingcases of the past term, on the rights of the Guantánamo detainees andthe Second Amendment right to own a gun, were decided by votes of 5 to4), perhaps fragility, rather than stability, best characterizes thecourt today, and that is a reminder of the stakes involved in anySupreme Court vacancy. The galvanizing battle over the nomination of Robert H. Borkin 1987, a conflagration at the intersection of law and politics thatheld the country spellbound for three months, was the most rivetingpublic event I ever witnessed at close range. Although Judge Bork was,of course, defeated, in many ways the Bork battle has never reallyended, with today’s ceaseless judicial confirmation wars being carriedon by ideological combatants too young to remember the original.

PresidentReagan nominated Robert Bork, a well-known conservative, to the “swing”seat on the court being vacated by Justice Lewis F. Powell Jr. I knewBob Bork. He had been a professor of mine at Yale, an urbane and wittyman who bore little resemblance to the instant portrait painted by hisopponents. (“In Robert Bork’s America,” Senator Edward M. Kennedyfamously said in response to the nomination, “there is no room at theinn for blacks and no place in the Constitution for women, and in ourAmerica there should be no seat on the Supreme Court for Robert Bork.”)The day he was nominated, I left a message on his home answeringmachine. “Congratulations, and keep your sense of humor,” I said. “Ithink you’ll need it.”

His sense of humor failed him. As thehearings went on, he became testy and abrupt. When he said that servingon the court would be an “intellectual feast,” he was simply beinghonest. It would have been more politic, but less candid, to claim thathe was motivated by a desire to serve the cause of justice. He and hissupporters emerged from defeat filled with bitterness, persuaded that hehad been dealt an unfair hand.

To the contrary, I thought thenand think now that the debate had been both fair and profound. In fivedays on the witness stand, Judge Bork had a chance to explain himselffully, to describe and defend his view that the Constitution’s text andthe intent of its 18th-century framers provided the only legitimatetools for constitutional interpretation. Through televised hearings thatengaged the public to a rare degree, the debate became a nationalreferendum on the modern course of constitutional law. Judge Bork’sconstitutional vision, anchored in the past, was tested and foundwanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

Ithas made a substantial difference during these last 21 years thatAnthony Kennedy got the seat intended for Robert Bork. The invectiveaimed at Justice Kennedy from the right this year alone, for hismajority opinions upholding the rights of the Guantánamo detainees andoverturning the death penalty for child rapists — 5-to-4 decisions thatwould surely have found Judge Bork on the opposite side — is a measureof the lasting significance of what happened during that long-ago summerand fall.

It is also a reminder of something I learned observingthe court and the country, and listening in on the vital dialoguebetween them. The court is in Americans’ collective hands. We shape it;it reflects us. At any given time, we may not have the Supreme Court wewant. We may not have the court we need. But we have, most likely, theSupreme Court we deserve.