With the new Supreme Court term now underway, including a new justice, public trust in the court is sharply down. Chief Justice John Roberts has publicly fretted about that dynamic, which follows high profile rulings last term on guns and abortion, and an increasing sense of politicization around the court. Linda Greenhouse covered the court for three decades for the New York Times and continues to write about it, including her latest book, “Justice on the Brink.”
Linda Greenhouse covered the court for three decades for the New York Times. Greenhouse, who teaches at Yale Law School, will speak Friday morning to the Jewish Federation of the Berkshires.
Does it matter if public trust in the court is down?
Well, I think it does, because the court, of course, as Alexander Hamilton and many others of our framers pointed out, has no actual power. It's really the power of the norms, developed over more than 200 years, that lead us to accord, respect and you might say obedience to what the court hands us. And so, if the public turns away from the court and thinks the court is acting outside its bounds, is acting to undercut the democratic will of the people. That's a crisis. It's a crisis for the court, and it's a crisis for our democracy.
To what extent do we know if the justices talk about that and let it factor into their rulings at all?
Well, I never like to pretend to know more than I know. So, I actually don't know what the justices say to one another. But what I do know is what they're saying publicly. And as you said, in the introduction, the Chief Justice seems quite nervous about the current situation. And Justice Elena Kagan, who's been on the losing side of the big cases that you mentioned at the top, she's been at the center has said on a number of occasions within the last month or so that unless the court is perceived as acting as a court, instead of acting as another political branch, that's a problem.
You've been watching the court for a long time. Were there other moments in history where it faced this sort of crisis?
Well, my personal history doesn't go back to the 1930s. But yes, famously, there was a crisis, when a bunch of old conservative justices, were striking down major pieces of the New Deal Recovery Program that FDR had launched and that led to a crisis, and it led to a change in the court’s behavior.
What are some of the big cases that you're watching this term?
Well, just last week, a major voting rights case from Alabama was argued, and without getting into the weeds of that case, what's really at stake, is the continued utility of the Voting Rights Act of 1965, one of the crown jewels of the of the Civil Rights era. And if the Court were to adopt the position that the state of Alabama argued to the justices last Tuesday, the Voting Rights Act wouldn't be worth very much. So, we've come to quite a turn there. And then later this month on Halloween, the courts going to hear arguments about the future of affirmative action in higher education.
Is it fair to say the court is likely to rule in a conservative direction on those two issues?
Yes, I think that's quite fair to say, but the devil is in the details. So, the question is, what rationale are they going to give? How far are they going to go? And they could go pretty darn far. If they have the votes, and we saw in the Dobbs decision, the case last June that overturned the right to abortion. If they've got the votes, they can do whatever they want.
How do you see that dynamic changing? Obviously for a while, John Roberts did play something of a swing role. Now the court is 6-3 conservative. Are we likely to see any sort of swing cases in the near future?
Nothing I can name, really. I think we've got an empowered, conservative super-majority. And I don't see a “swing justice,” emerging who's going to be in a position to make a difference, like Justice Anthony Kennedy did for many years when he was the swing justice, and he had four justices to his left and four justices to his right. And basically, the Constitution was, whatever Anthony Kennedy thought it was, we don't have a dynamic like that now. This is really something pretty new in the lifetime was willing to guess pretty much everybody who's listening to this program. So, the American democracy is going to have to figure it out.
What do you think about ideas that have been raised for one way to go about that, which would be either expanding the size of the court or instituting term limits?
Yeah, well, I mean, both of those are ideas that people I greatly respect take very seriously. I'll say about term limits, that wouldn't solve any immediate problem, even if it could be done and I think it could only be done by constitutional amendment, because of course, the term limits would not apply retroactively to the incumbents. Expanding the court, you know, something that Congress is free to do. If there's a filibuster-proof, Democratic majority, I suppose that could happen. But I'm not sure whether that's in the long-term interests of the court or the country. My jury is out on that.
Let me go back to Dobbs for a moment. A lot of attention in that decision was paid to other rights that, you know, possibly the court had also decided in error. I'm paraphrasing here. But do you share the fear that many do, that other rights that Americans have come to count on, you know, could also be in line to be overturned?
Well, it's certainly possible. I think something else will happen. For instance, I think you're referring to the concurring opinion by Justice Clarence Thomas, who raised these issues. I think it's very, very unlikely that the courts going to overturn the 2015 opinion of Obergefell, that recognized a constitutional right to same sex marriage. But I think it's very likely in the coming, in the in the current term, that the court is going to create a big religious carve out to the regime of anti-discrimination laws that protect LGBT individuals. So, there's a case now, that's going to be argued later this term of a wedding web designer, who doesn't want to have to design wedding websites for same sex couples, because she says, as a Christian, I can't possibly lend my support to this. And she's from Colorado. Colorado has a very robust anti-discrimination law that includes, that bars discrimination on the grounds of sexual orientation by people who are in business serving the public. And so, the question is, does she get a religious opt out from an anti-discrimination law that applies to everybody? And that's the kind of thing that I think the court is going to go for, kind of an oblique attack on the rights that it has previously recognized.
It's easy to imagine some really far-reaching impacts of something like that.
Oh, yes. I mean, it's a way of saying, “Well, you know, we didn't quite mean it.” And it's very damaging, if every person in the country can be, as Justice Scalia once said, and I give them credit for this, a law unto themselves, and decide whether their conscience requires them to refuse to obey laws that apply to everybody. That would be a very destructive rule. And it's a rule that when it comes to religion, the majority looks on very favorably, unfortunately. And that's what we're going to have to be dealing with going forward.
Well, who knows when a new justice will join the High Court, but will you be watching the confirmation hearings any differently, given the dissonance between what many of the current Justices said about Roe v. Wade, and then, how they ruled when they had the chance?
Well, no, I mean, I never took seriously what they said about Roe, I think the only one who really took it seriously was, what's her name, the senator from the state of Maine. Yeah, Susan Collins, who seem to believe Brett Kavanaugh. You know, the way these nominees have phrased it is very cagey. It's not that they've been caught out in a lie, they have not. What they say is 'Yes, well, I recognize that Roe versus Wade is a precedent of the Supreme Court, and of course, you know, I respect precedent.' Well, you know, you can you can respect you know, the moon rising at night, you can respect lots of things. But they're not pledging to uphold the precedent, and none of them have. So, you know, you listen to these disavows with a certain cynicism, I would say.
Ketanji Brown Jackson, the latest justice, she's just a couple of weeks into her first term. What kind of profile is she building so far?
Well, she had a most interesting week, the first week of the term. She was a very active questioner, and a very effective one. I was surprised, I mean, not that I don't have high regard for her talent, but usually a newcomer on the court would sort of hang back a bit, but it was really interesting because the other two justices on her side of the street, Justice Kagan, and Justice Sotomayor gave her a lot of running room. And in the voting rights case, she has the lawyer representing the state of Alabama really on the ropes. Meeting him point for point on the history and the interpretation of the 14th Amendment’s equal protection guarantee. I thought she did a fabulous job of that and I have great hopes for her.
