The Constitution Is What the Judges Say It Is, Part I

The Open Mind
Host: Richard D. Heffner
Guest: Linda Greenhouse:
Title: “The Constitution Is What The Judges Say It Is”
VTR: 9/26/02

I’m Richard Heffner, your host on The Open Mind. And you’ll see in just a moment why I think now of a very personal story. Years back my wife and I took our then seven-year-old grandson, Alexander, to Washington, DC to see the Capitol’s historic sights. Then, as now, bright and knowledgeable and curious about the world around him, Alexander was delighted when we visited the Supreme Court of the United States, and, thanks to Justice Stephen Breyer, who had been a guest on The Open Mind, were taken on a wonderful tour of the high court.

After that Justice Breyer received us for a few minutes in his own Chambers and as we prepared to leave, reached into his desk and gave our grandson a document he identified as the Constitution of the United States. At which point Alexander looked up, truly in awe, ever so politely asking, “But don’t you need it?”, a query that tickled us all, to be sure, but that might much more pointedly be posed these days by Justice Anton Scalia as he and Justice Breyer now so clearly present what my guest today recently referred to as “competing visions” of the Constitutions and of the role of the Supreme Court, visions she characterizes as “maximalist”, and “minimalist”.

For Linda Greenhouse is the brilliant New York Times writer whose consistently illuminating coverage of the United States Supreme Court brought her the 1998 Pulitzer Prize. And whose distinguished reporting from the High Court over the past generation has helped prepare us for the understanding thoughtful Americans must now bring to ever-intensifying intellectual and philosophical conflict between the Brethren, their competing visions.

Now, Ms. Greenhouse is a 1968 graduate of Radcliff College where she was an Editor of the Harvard Crimson. Later she received a Master of Studies in Law from Yale and in a June 2002 speech before the Association of American Law Schools said that while a quarter century is a long time to do anything in journalism, let alone a beat like the Supreme Court quote, “what has kept me satisfied, indeed, enthusiastic about the job is that it is continual adult education. I’m learning all the time.”

So that what I want first to ask my guest today is just what she has learned in all this time that has changed, or perhaps further confirmed her own thinking about those competing visions of the Constitution and the court. What have you learned?

Greenhouse: Well, I’ve learned a lot in 25 years, I guess about the way the court works; the way we, as Americans expect the Court to answer our toughest problems. Whether the Court can do that or not. And, you know, to some extent they do and, obviously, to a large extent they don’t. What I’m seeing right now on the Court … is … obviously many changes over 25 years … but what I’m seeing right now is very fascinating struggle of ideas and it comes down to, not so much ideology in the conventional sense, but rather a debate over what is the appropriate role of the Supreme Court in American life? How should the Court approach its work? What should its stance be … toward reconciling its precedents with modern needs and so on. And that’s … that debate is personified and really carried forward in a quite elevated and fascinating way by Justice Breyer and Justice Scalia.

Heffner: When you say that it is not the usual kind of conflict, let’s say political conflict, but isn’t it a manifestation of the two men’s, well, maybe I’m wrong in calling them “politics”, but their basic political points of view.

Greenhouse: Well, of course, it depends what you mean by politics. I mean if “politics”, sort of writ large is the way we govern ourselves, I suppose it is. But I don’t see these … I don’t see these debates as …ideologically driven rather driven by …a vision of the judicial function. Sort of who should have the last word? Are judges best equipped to have the last word? These things cut across ideological lines. For instance, there’s a very interesting academic debate going on now about the role of the Court. And the pro-minimalist side is … I’m not exactly sure what its politics are, but I think it’s saying more Democrat than Republican … I’m not … I’m not sure. Cass Sunstein of Chicago, University of Chicago, wrote a very interesting book called One Case At A Time … the … I forget the subtitle … The Case for Traditional Minimalism … what he meant by that is at a time when technology is rapidly changing, when the Court’s getting all these tough questions that, that really are outside the scope of what Justices can conceivably really know for sure … it’s much better to just decide the case in front of you, don’t try to make rules that are going to be binding for future cases, or future Justices … put something out there … as little as you can, and wait and see for events to, to sort of catch up and give you a better sense of whether you were right or wrong. Well, that’s not really ideology; that’s not really politics. That’s a sense of what are the possibilities and what are the limits of the judicial function. And that’s what makes it interesting because we get lots of just plain old raw politics in the country, in Washington. You know, you don’t need … I wouldn’t … I don’t need to amuse myself by finding it out at the Courts … I’m looking for something that’s a little, maybe a little bit different … different cut at, at what’s going on there.

Heffner: That interests me because … I admit I have thought that the minimalist, maximalist conflict was a reflection of basic attitudes toward the nature of human nature. Basic attitudes, therefore, toward matters politic.

Greenhouse: Well, human nature is interesting. Justice Scalia has … who, who I identify in this article you referred to, as a maximalist, there are many ways to label Justice Scalia … that’s maybe not the one that pops into people’s minds. But what I meant by that is since he believes in rules. Since he believes that the Constitution, in its text and its original understanding, as understood by him, confines us and binds us for today, there’s no sense, from his point of view being coy or diffident about that … just, it’s, it’s there and that’s the rule. And if somebody doesn’t like it, you know, too bad and that’s just the rule. What he has said in explaining that is a kind of a … a self-analysis … he said in a well-known lecture he gave at Harvard, that by, by binding himself in that way, he then protects himself from what might be his own visceral or intellectual responses to a particular issue because he has set forth clearly what his rules are and even if he has doubts that, as an original matter, he would come out that way or he would want the Court to come out that way, he’s constrained and he won’t stray from the straight and narrow path of text and original understanding.

What Breyer would say to that and one way in which Breyer is a minimalist … he doesn’t feel himself bound in that way. He takes much more account of context and consequences. He’s very interested in “if we as the Supreme Court do this, what context are we operating in, what are the likely consequences to be for the health of our democracy?” basically. And so his constraints are much wider. His field of play is much wider and in that sense more dangerous because he doesn’t wake up in the morning with a rule that’s telling him how to decide a particular kind of case. He’s got to get down into it and come to his own understanding of context and consequences, figure it out case by case, and put it out there and see what happens. So, he’s, he’s not quite … as soon as they … I, I have the feeling that Scalia’s afraid to let himself roam un-tethered from original understanding. And Breyer … sort of welcomes it.

Heffner: Well, you say “welcomes it”. And you say it may be more dangerous point of view. Dangerous but desirable? Dangerous and undesirable?

Greenhouse: Well, you know, I’ll take a cop out and say it’s probably just as well that there’s not all one kind of Justice on the Court, it’s probably good for the country that we do have a range. What I mean … “dangerous” … I don’t mean, you know, dangerous for the country. I mean Scalia seems to think that he’s got a safe harbor. His rules give him a safe harbor. And if he were left free to roam the Constitutional landscape, un-tethered by his rule, who knows what might happen. Who knows how he might vote.

Heffner: Well, let me ask you this question … you’ve watched him, you’ve been there, reporting on the Supreme Court for longer than he has been on the Supreme Court …

Greenhouse: This is true.

Heffner: Has he saved himself from that danger? From that the danger of deciding … not one thing today and another thing tomorrow, but letting his own intellect, and it is great, prevail …

Greenhouse: Well …

Heffner: …today as well as tomorrow?

Greenhouse: He would probably say so. I mean, for instance, in the flag burning case of the late eighties, I guess that was … he voted with the majority, the five to four majority, that found that there was a First Amendment right to burn the flag as an expression of political sentiment. Now as a … you know, as a political creature … I doubt that that would have been his instinct. I mean I would rather think he can’t stand flag burners. But he felt compelled by his understanding of what the framers would have meant by politically …political expression protected by the First Amendment that he had to part company with Chief Justice Rheinquist and his other usual allies … well, the Court was actually … I don’t want to oversimplify … the Court was quite splintered on that. But, but it was not a vote that people would have expected from Scalia. And a more recent case … was an interesting case called Kyllo … the question was, does it violate the Fourth Amendment for the police to use one of these new fangled thermal imaging devices and train it at a house and get … a private home … and see the heat patterns and it’s usually used to see if there’s a marijuana growing operation, which requires high …which requires high intensity lights. And Scalia said, basically, “the framers thought your home was your castle, this is not the old fashioned kind of invasion, but it’s a high-tech invasion and you need a warrant.” It’s a Fourth Amendment matter. And so I think, you know, whatever his view as a citizen might have been, he view as a Judge constrained him to vote in that way.

Heffner: I don’t think it’s an unfair question … but you may. How would Linda Greenhouse have voted?

Greenhouse: In Kyllo?

Heffner: Yeah.

Greenhouse: I don’t really … you know, lots of times I don’t … I don’t think it’s an unfair question, but … this sounds coy, but it’s actually honest. I don’t … I have the luxury of not having to decide the cases …

Heffner: [Laughter]

Greenhouse: You know, I think I would have voted with the majority. But I think there were, like most Supreme Court cases … you know, very solid arguments on the other side. By the time a court … by the time the Supreme Court takes a case … the main marker the Supreme Court uses for deciding whether a case is worthy of its attention … and the Court only takes about 80 out of 8,000 cases that reach it every year … so this is a very scarce resource that the Court deploys when it takes a case … is, is this a question in which the lower courts are divided? And it’s almost always the answer is “yes.” Almost always. So that’s the case … you know, obviously there are strong arguments on both sides that have impressed thoughtful judges on both sides. So I usually, you know, I read the stuff, and read the briefs. I mean, obviously, my viscera decide me one way or the other, but more often than not, I just wait and see what happens.

Heffner: But I would go back to the question I posed at the very beginning of this program … have you learned things that have changed your basic “fix”, your basic mindset on the role of the Supreme Court? Let’s leave it at that.

Greenhouse: Well, yes, I mean inevitably … since I started covering the Court I was … I’m not a lawyer … I didn’t have … I had one year of the Fellowship at Yale Law School that you mentioned … but I … and I had been a political reporter. So I didn’t come to the Court with a very sophisticated understanding of what I was about to see unfold. You know, one thing that’s engaged me a lot in the last six or seven years is the … is the debate the court’s having now about our fundamental identity as a country … the relationship between the Federal government and the states and the relationship among the three branches of government … this big Federalism debate is animating the court right now. I’ve learned a lot about, sort of, I don’t know, political theory … ideas about what is the authentic nature of our basic arrangements? That, that kind of stuff that I can’t say I had a settled view about it before though as a, you know, as a Yankee, I wasn’t inclined, you know, to, to be a kind of a states’ rights person. But I didn’t have a sense of how that argument plays out in Constitutional terms. So it’s been quite a privilege, I think, to have a ringside seat at that.

Heffner: Well, it was so interesting to read your review in the Sunday Book Review section of The Times … Narrowing The Nation’s Power, the book written by a Federal Judge, John Noonan, Jr. and …when you read that, and as you wrote this, you obviously had to express or be aware of where you came down on this matter of States’ rights. As you just said, you’re, you’re … you didn’t come from the South, you came from the North. What is your feeling about what the Court has been doing recently? He is very negative about that.

Greenhouse: He is very negative. And where I think he has the Court dead to rights, and I should say he’s a, you know, very interesting, independent minded judge who was put on the Federal Court of Appeals in San Francisco by President Reagan. He’s a real free thinker and he obviously came to the point of view … the very negative point of view he expresses in this book on … through working through these issues himself. He’s not marching under anybody’s label. But where he has the Court absolutely dead to rights, I think, is his allegation that the majority in this Federalism case is the majority that’s been narrowing the nation’s powers … that’s his phrase … are hypocrites, at least in some sense. And what sense is that? The sense is they claim to be texturalists, you know … “don’t bother me with elaborations and so on, just show me the text”. And one major thread of these Federalism cases is sovereign immunity, which the Court views as protected by the 11th Amendment. What does the 11th Amendment say? It basically says people can’t sue states in Federal court. That’s oversimplifying, but basically you can’t … the Federal judicial power does not extend to hearing cases by private citizens against states.

So what did the Court do this last term? Actually, after Judge Newman wrote this book, but it kind of validates his premise. They decided a case called Federal Maritime Commission against The Port of Charleston in which they said, “Okay, we’ve said the 11th Amendment says you can’t sue states in Federal Court. Well, guess what … you also can’t bring actions against states before Federal administrative agencies.” Well, there’s nothing about that in the 11th Amendment. I mean that is completely un-tethered from any concept of the text or the original understanding. It’s based on a view that the Court expressed in yet another un-tethered case a few years of a kind of a free-floating background concept of sovereign immunity that, you know, maybe it’s in the air, maybe it’s in the water, but it doesn’t seem to be in the Constitution. So, I think the majority is fair game for criticism like that, personally.

Heffner: You mean you’re suggesting that textualism is as textualism does? That we can pick and choose what we want and identify it with a particular point of view?

Greenhouse: Well, well, not exactly, I guess because the majority can’t claim to find this in the text because it’s not in the text. You know, you and I can read the text. So, since it’s not in the text and the text doesn’t help them, they invoke a sort of … as they say a background principal of sovereign immunity that they, they claim, you know, was just kind of around at the time the Constitution was enacted and I guess the Framers didn’t have to put it in the text because it was just sort of understood, and so, you know, there it is. But this is very sweeping stuff and, and the reason I got so interested in the Noonan book … is it’s, it’s also quite nuanced and subtle and not particularly the stuff of, you know, headlines or, or, you know, sound bites on evening news. And so I think a lot of people out there ought to know about it, would perhaps like to know about it, but don’t have a handy way of finding out about it, without sitting down and doing a big database search or something. So I think it’s very good to get these … what’s happening on the Court sort of out for discussion. It’s, it’s very important.

Heffner: Well, that leads me to another question, obviously. Do many other newspapers, many other popular publications other than The New York Times do what it does, and that is take key, crack reporters and let them be trained and then work on the court and report on the Court? Was it … somewhere I read or heard that there had been four out of five days or five out of five days that you had a front page story in The New York Times about the Court.

Greenhouse: Oh, well, that would happen to anybody … you know late in the term, when …

Heffner: But wait a minute … does it happen in many other newspapers? Are Americans brought face to face as New York Times readers are with an analysis of what’s going on in the highest Court of the land?

Greenhouse: Well, I think, you know, in the Court, when it comes to the Court deciding the really big cases of the terms. I mean last term, for instance, the Cleveland voucher case, or capital punishment for the retarded … that case. Yeah, I think that’s page one news in every newspaper in the country now.

Heffner: And interpretation?

Greenhouse: Well, you know, you put me on the spot. I mean I don’t … I …

Heffner: Yeah. I’m not asking you to be modest …

Greenhouse: No. I don’t read it all …

Heffner: I want to find out …

Greenhouse: But I have the luxury of having a lot of space and a broad mandate. So that where some other papers might have to, you know … stories like this might be … have to be shoe horned into the, you know, into the paper. If I suggest to the editors that I think something is really important, and I … and I do that … I don’t do that lightly because I don’t like to cry “Wolf” and I like to maintain my credibility … you know I’ll get the space that I feel I need. I, I can’t remember the last time when I thought something was really a big deal, and the Editor said, “We don’t agree and, you know, we’re cutting this in half”. I mean that doesn’t happen. It’s a bit of a negotiation, but I do try to maintain my credibility and other people … people for other organizations don’t necessarily have that kind of freedom.

Heffner: Which is such a grand thing as you must … as you must embrace it.

Greenhouse: Well, it’s, you know …

Heffner: You certainly use it.

Greenhouse: It’s very, you know … a place on The New York Times front page is a very valuable piece of real estate … so, yes, I don’t take it lightly.

Heffner: Using that piece of real estate in a sense now, is what we have been talking about, the notion that the Constitution is what the judges say it is?

Greenhouse: Well, yes. I heard a very interesting talk last week by Chief Judge Douglas Ginsberg of the DC Circuit, the Federal Court of Appeals in DC. And he was talking about Constitutionalism, you know what is the Constitutional system? And he said, “let’s compare us to England. England, as you know, does not have a written Constitution. We are, you know, we wrap ourselves in our written Constitution.” He said, “What’s the difference in sort of the legal culture of these two societies.” He said, “there’s almost no difference. The only difference that you can really point to is England has an Official Secrets Act and is much more protective of Government information. We may be going in that direction here but, but leaving that aside, his point was that the Constitution isn’t so much the words on paper, but it’s what the, what the culture has made of it … the legal culture, the political culture, the popular culture, and so, it’s what judges say it is, but it’s also how we live it. You know, it’s a broader … to say “it’s what judges say it is” is a little too reductive, I think. It’s a, it’s an on-going enterprise of living under a rule of law. In our case it happens to be written in the small little pocket book that Justice Breyer gave to your grandson. Although that’s not the half of it. After 220 years, it’s all encrusted with interpretation and precedent and Amendment and this and that. And in England they don’t have the written document, but they have hundreds of years of precedent and legal interpretation and the political culture that respects the rule of law … certainly as much as we do. So, it’s a kind of … I thought it was a very interesting side-by-side comparison.

Heffner: Let me pick you up on something you said … you mentioned or he mentioned the Official Secrets Act … or you mentioned that as one of the differences between us. But you said, “we may be coming to that.” I’m not taking you literally.

Greenhouse: No, no, obviously.

Heffner: What do you mean?

Greenhouse: Well, I mean the … you know, the current events we’re all living through where this Administration seems to have embraced the notion of official secrecy and carried it, I think, far beyond anything we’ve seen in this country for a long time. So …

Heffner: Appropriately? In your estimation?

Greenhouse: Well, lower Federal courts who have looked at some of this, don’t think appropriately. And, you know, I think there’s a pretty good argument that they’re … they’re certainly pushing the envelope. I think they’re pushing it, you know, judges are pushing back. It’s … it’s pretty interesting … but …

Heffner: You say, they’re pushing the envelope … judges are pushing it back.

Greenhouse: MmmHmmm. MmmmHmmm.

Heffner: And now the Administration clearly is pushing back again in terms of its nominees to the Federal judiciary.

Greenhouse: Oh, that’s a whole other … yes … I mean that’s not … sure … that’s politics … that’s not secrecy. But just, you know, in the secrecy …

Heffner: No, I mean of people who … if you can guess what a man is going or a woman is going to do once on the bench … appointments that are probably designed to build support for the position that the Administration is taking now.

Greenhouse: Well, you know, my …

Heffner: Fair game?

Greenhouse: Yeah. They have the right to do it. And the Senate has the right to subject that to strict scrutiny and, you know, may the best nominee win. I mean I don’t fault … I don’t fault anybody for trying in that instance.

Heffner: Yet you did take a position, seemingly, if that’s not unfair to you … in this review, you do take a position that’s favorable to Judge Newman’s concern about narrowing the nation’s power …

Greenhouse: MmmmHmmm.

Heffner: Do you feel that’s not in our interest?

Greenhouse: Well, you know, that’s a little presumptuous, I mean …yeah …

Heffner: Well, it’s presumptuous of me …are you saying that?

Greenhouse: No, I mean it would be presumptuous of me to say what’s in our interests. But I think …

Heffner: Why?

Greenhouse: You know, I think the Court has gone pretty far with this and as I said, when … my remarks about the Federal Maritime Commission case this term, I thought … I really thought that was … I thought the Court would draw a line there. I thought it was an easy line to draw and the fact that … what I call “The Federalism Five” … the majority in these long stream of five to four cases, the fact that they went over the line … I don’t see what the stopping point is and, you know, I think it’s very problematic.

Heffner: Wasn’t the stopping point, if there were going to be one … didn’t that take place with Gore versus Bush or Bush versus Gore?

Greenhouse: [Laughter] Ah, you know, what to make of Bush against Gore. I mean that … I’ve …

Heffner: But you’re saved by the fact that I’ve just gotten the cut signal, so now, I have to ask if you’ll come back, if you’ll stay here, if you can do that … do another program … I won’t put you on the spot, maybe we could do it another time …

Greenhouse: Sure, no, I’ll do another program.

Heffner: Good. Okay. Thank you very much.

Greenhouse: You’ve seduced me.

Heffner: Good. Thank you, Linda Greenhouse for staying today on The Open Mind, and coming back next week. And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.