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

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

I’m Richard Heffner, your host on The Open Mind. And this is the second of a series of two programs with Linda Greenhouse, 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 us understand better what she recently referred to as “competing visions of the Constitution” and the role of the Supreme Court. Visions she characterizes as “maximalist” and “minimalist”. And identifies, respectively, with Mr. Justice Scalia and Mr. Justice Breyer.

Thank you for staying, I, I … there are so many questions relating to the High Court that I’ve wanted to ask you about. One of them, having to do with the … what you consider the impact of the presence now, and you knew the Court before there was such presence, of two women, actually, on this male-dominated …previously male-dominated court.

Greenhouse: Well, it’s probably male-dominated. But, you know, it’s always hard to tease out their impact as women, as opposed to their impact as, you know, very smart, serious players on the Court. And certainly Sandra O’Connor’s had a major impact on the Court.

Heffner: Philosophically?

Greenhouse: Yes, because she is very much a case-by-case judge. You have to make the case to her every time. And you cannot take her vote, in most types of cases, for granted. So, a lot of cases come down to, you know, “what would Justice O’Connor say?” I think that accounts for a fair amount of an aspect of the Court’s work that we didn’t have a chance to talk about in the previous program but the setting of the Court’s agenda, the Court’s setting of its own agenda, rather … I think I mentioned that the Court … I’m not ducking your question, but it’s just a segue … the Court take only about 80 out of 8,000 cases. So which cases does it take? There are obviously a number of issues that the Court has had in front of it and they’ve chosen not to get engaged. I mean one of them is affirmative action; it’s been 24 years since the Court last looked at affirmative action, higher education, the Bakke Case.

Heffner: Isn’t it about to do so now?

Greenhouse: Well, we’ll see. They’ve been asked to, whether they do it or not, we don’t yet. In the Michigan case. But anyway a lot of people think that the reason the Court has sort of ducked this issue is that there are four Justices who feel strongly that affirmative action has no place in higher education. There are four Justices who feel quite strongly that it does. And there’s Justice O’Connor and neither side knows exactly how she would vote. And so neither side has voted to grant such a case … this is speculation, I mean I don’t know this, but is the kind of received wisdom … neither side has been willing to grant such a case because why run it up the flagpole if nobody’s going to salute. And you might come out with the wrong answer. So I think her approach and her presence has had a measurable impact on the shaping of the Court’s docket over the years.

Justice Ginsberg is a very, very smart lawyer, who came to the Court with probably more relevant experience than almost anybody. She argued … I forget the number, but somewhere between seven and 10 cases before the Court as a public interest attorney, arguing for women’s rights. And really, you know, brought the Court into the modern Constitutional era of women’s rights. And she’s also an expert in Federal Court jurisdiction, civil procedure and so on. They give her a lot of … the kind of tough … not the sexy, necessarily, but like the lawyer’s lawyer type of cases to write the opinions in. So she’s obviously had an impact as well.

Heffner: Well, going back to the matter of four and four and one person in the middle. Is there any other Justice, sitting Justice now who is as questionable about where he would come down, because I gather it would be “he?”

Greenhouse: Well, you know, Justice Stevens is very much a free thinker. I mean he, he’s, I think …comes to every case with a lot of questions and, and he’s probably the most frequent … if there’s ever a lone dissent, you know, and eight to one … these days the one is rather likely to be Justice Stevens. He sees things his own way. You know in the old days before William Rheinquist became Chief Justice, he was an Associate Justice for 15 years … he was always the lone dissenter. He was always the out-rider, back in the day … as my daughter would say. And now he, of course, speaks for a majority, most of the time. So, it’s, you know., partly a function of the individual, also partly a function where the spectrum of opinion is on the Court at any, at any given time.

Heffner: Well, you know, we were talking, last time, and you were writing in your piece in The Times about the competing visions of the role of the Court; about the surfacing of Justice Breyer as a particularly articulate spokesperson for a position that Scalia is a particularly articulate spokesperson for the opposite …

Greenhouse: MmmmHmmmm, MmmmHmmmm.

Heffner: … I think I got my tenses all mixed up there.

Greenhouse: No, I got you.

Heffner: But, you know, I wondered whether Justice Breyer was moved into that position … and you may think this is way out … by the fact that he participated in the unanimous decision by the Court during the Clinton Administration that the conduct of the Presidency wouldn’t be affected by a lawsuit against a sitting President. And that goes so much against the way you describe his position now … thinking about consequences.

Greenhouse: Yeah. Well, you know that’s a good question. And actually it wasn’t … it was nine to nothing, but Breyer wrote a separate opinion. He obviously was not real comfortable with the majority which was written by Justice Stevens.

Heffner: But he voted.

Greenhouse: He voted. But he … I can’t quote exactly what he said, but his opinion was obviously coming from a position of discomfort. In fact, I remember running into him in the hall at the Court a day or two after the opinion came down and I was maybe feeling sort of cheeky and I went up to him, and I said, “I felt your pain.”

Heffner: [Laughter]

Greenhouse: [Laughter] He just kind of … [laughter] so I think he saw some of the problems in … your talking about the Paula Jones case …

Heffner: Right.

Greenhouse: … in Clinton against Jones that the rest of the courts seemed rather willfully blind to at the time. So, no, I don’t think it comes out of that. I think it … I think Justice Breyer had a very good term last year in the sense of writing a number of opinions and separate opinions that really did seem to spell out the guideposts he set for himself in a lecture that he gave just about a year ago, last Fall at NYU, the Madison Lecture, where he, for the first time, you know, worked through his judicial philosophy and pulled a lot of stuff together and gave kind of an index of what’s important to him as a judge. What we talked about last time, the context and the consequences. And I think having done that in a very systematic way for himself in preparing that lecture, it helped him fit the individual cases into some framework that, that was quite beneficial to him in terms of, of dealing with them during the term. So it was a kind of emergence of Stephen Breyer in a way that there hadn’t been before, I think this last year.

Heffner: Do you think that if we developed … and we touched on this last time … something akin to an official secrets act, I mean a whole series of things that derive from the same kind of thinking, the same philosophy as represented by England’s Official Secrets Act, do you think you could guess as to where and how the present Court would take its or their stand?

Greenhouse: Well, of course, context counts.

Heffner: MmmmHmmm.

Greenhouse: But this is a highly speech protective Court. This is a very strong First Amendment Court. In case after case, whether it’s, you know, speech on the Internet … the Court has overturned a series of Federal laws that have tried to keep the Internet a pornography free zone … at least with respect to children and so on. Last year when the Court struck down the virtual child porn statue; the Court’s been protective of speech in all kinds of context. So that anything like, it doesn’t have to be an … I don’t think we’ll have … obviously don’t think we’ll have an Official Secrets Act, but, but maybe the functional equivalent in terms of Executive Branch behavior … comes to the Court with the presumption of irregularity, I think. The Court will scrutinize anything like that through a very strongly focused First Amendment lens now. When I said context counts, I mean obviously the context in which something like this would come up is the current war on terror situation. And so, in wartime, as we know, government behavior comes to the Court with the presumption of entitlement to deference. And the Court’s history certainly reflects that as well. So we’d have a kind of clash of two instincts … defer to the political branches during wartime and a real skepticism about official limits on free speech.

Heffner: Well, when there is a clear and present danger, the Court does tend to give some space …

Greenhouse: Well, yes …

Heffner: … to the government. Do you think then that in the free speech area there has been a failure on the part of legislators to indicate that there may well be a clear and present danger posed by what is called “free speech”, by media abuses, called that by others. Do you think that the present Court, and you’re saying that it’s a very strong First Amendment court. Is there any indication that anything will give as we point out clear and present dangers in anything other than war and peace?

Greenhouse: Well, if I understand your question … I’m not sure that I do …

Heffner: Pretty, pretty convoluted.

Greenhouse: Yeah. It is. But, you know, it’s going to depend on how these cases come up. And I think in a lot of the public discourse they seem to be presented as all or nothing. And they need not be all or nothing. For instance, there’s a case now, recently decided by the Sixth Circuit Court of Appeals on closing these deportation hearings, these so-called special interest deportation hearings, which the head Immigration judge acting at the behest of the Attorney General back in the … a year ago … announced that all these special interest hearings would be closed. Not only hearings would be closed … that puts it too narrowly, that even the … there would be no public acknowledgement of the existence of these deportation proceedings and they would just, you know, fall into a black box. And obviously this was quite different and was challenged and obviously the government said “we have national security needs that’s why we’re doing this.” Well, what the lower courts have said so far and the Supreme Court hasn’t had occasion to weigh in on this yet. What they’ve said so far is “it’s not all or nothing”; it’s not that they’re all closed. It’s not … certainly not that they’re all open, no judge is going to say, you know, “we’re just going to ignore you national security claim and order these open in the name of the First Amendment.” It’s rather that there’s a presumption of openness in our society to official proceedings, and the government has to make its case on a case by case basis why a particular hearing or proceeding should be closed. Now the government’s arguing “that’s not good enough” because then you would pick and choose the ones we want to close and the ones we don’t want to close and the terrorists sitting there watching us would get a mosaic, would get a road map to what we know and what we don’t know at any given time. That’s their argument. And, you know, they’ll run that up the flagpole and, you know, maybe Judges will see there’s something to that. But, but I just … like going into detail enough to say that it’s not, it’s never been enough to just stamp, you know, National Security on something and, and Federal judges just, you know, salute. There’s always a way of … you have to narrow the issue and really apply it in the context of a real, real controversy.

Heffner: Well, of course, I can attempt at least to be less convoluted in the question because it’s very meaningful to me. I spent a lot of time being Chairman of the film rating system …20 years … that was my sentence. The Congress, as you’ve pointed out, has several times now attempted to pass legislation that would be protective in its estimation of our children. The Courts have systematically gutted that. Do you think that if they were written better, if they didn’t do all or nothing at all”, that there would be a sentiment on the High Court now, as you observe it, to let some of this get by.

Greenhouse: Yes, I do think so. They have be written, you know, a fair amount better, but you can read the Court’s decisions in this area as a kind of a road map to what’s troubling … I mean what troubles them are vague standards and prohibitions on speech that sweeps so broadly that in the name of protecting children, it deprives adults, or the adult Internet community or the adult library using community or whatever of access to material that is Constitutionally protected for adults. And that’s been the flaw in the statutes, but actually the last one that the Court looked at in this last term, it ended up with a very equivocal, splintered decision and set the case back to the appeals court … one of these Internet cases, and it’s possible that, as it comes back up, the Court would say, “Okay, you fixed … we told you what the problem is and you fixed it.” Again, it’s not all or nothing.

Heffner: So you don’t think that it’s intransigence now. A Court that just isn’t going to move …

Greenhouse: No, no. I mean they’re looking … I mean these are nine Justices who don’t agree on, you know, all that much. They’ve all managed to, to kind of come find some common ground in this First Amendment area by being quite nuanced and quite fact-specific. You know, it’s not just … they’re not just out there sloganeering. And so, there is room … I’m sure there’s room for Congress to come back with a more narrowly tailored sort of approach.

Heffner: And Roe v. Wade? What’s it’s life span going to be in your estimation?

Greenhouse: Forever, as far as I know. I think that’s pretty well settled …

Heffner: You do feel that way?

Greenhouse: I do. I do feel that way, yeah. Put it this way, I have a hard time imagining the Supreme Court that would overturn Roe against Wade. And if that ever happened, you know, I think the political system would take care of it and make abortion available nonetheless. You know, Roe against Wade says there’s a right to abortion. The opposite of Roe against Wade is not a prohibition against abortion. So, I think the right to abortion, at least for those who can afford it. That’s obviously another big question … for those who have access …

Heffner: That’s quite a right.

Greenhouse: … you know, it, it … there will never be a time in this country when there’s not availability of abortion. I’m quite sure of that.

Heffner: For the rich, or the poor. Or just the one?

Greenhouse: Well, Richard, for I mean … I say that there are many counties in this country without abortion providers. It’s difficult, especially for young woman, people in rural areas and so on. I don’t want to, you know, minimize the burdens that states have managed to put it, but this is a country where, because the voters of spoken on that … access to abortion is pretty much taken for granted. And so the Supreme Court’s really not going to be in a position of taking that away.

Heffner: The Lord giventh and the Lord taketh back? No?

Greenhouse: No, I don’t think so.

Heffner: Okay. I asked the question; I got your answer. Are there other flash points where you think fundamental changes, reverses may take place, could take place.

Greenhouse: Well, of course, you know the voucher case, the Cleveland voucher case last term was a major step in authorizing, under the Constitution states to make public money available to support tuition to religious schools. In that way the majority that wrote that opinion … Chief Justice made it … kind of grew it out of recent press incidents. So this was obviously the thinking on the court. If you read the majority, you won’t find any embellishment of sharp break with the past. It was then the lesson that you just step back and look at the last ten or 15 years. It was quite a … quite a serious beak because certainly back in the eighties that was not the case. This majority would not have prevailed on, you know, so the estate that the way of religion in public life is a flash point. That’s in play, definitely.

Heffner: Any others?

Greenhouse: Well, you know, one thing debated in the country that I think is growing is capital punishment. And it was in 1976 that the Court said that capital punishment within a certain, certain framework is, is alright, does not violate the Constitution. Last term the Court said it does violate the Constitution for defendants who are mentally retarded. I think the Court is kind of in a dialogue with, with the larger society on this question. I … no way do I expect the Court to go back to what it said in 1972 in the Ferman and say, “Capital punishment is unconstitutional.” But I think that some Justices are troubled by the application of the death penalty in a country particularly by the lack of access to decent defense lawyers that a lot of defendants seem to have. So, I think the Court is kind of watching the situation pretty carefully.

Heffner: I read a speech that Justice Scalia gave and I would say, of course, he doesn‘t fit into that category. He’s pretty one-sided; he’s made up his mind.

Greenhouse: Well, I mean, you know, no matter what he thinks of it as a citizen, or as a Roman Catholic; I mean it was an interesting speech. What he says there is that in his opinion anybody who … any Judge whose Catholicism … religious based opposition to capital punishment would trump his obligation as a Judge to interpret the Constitution, ought to leave the bench. Some people thought that was a very controversial statement. To me it seemed like garden variety civics. I mean I thought he was simply saying “You know I’m here not as a Catholic, but as a Judge and my job is to interpret the Constitution.” The way he interprets the Eighth Amendment’s “cruel and unusual punishment” clause is in his understanding of the intent of the Framers and capital punishment was part of the fabric then and so obviously they didn’t mean …they didn’t mean capital punishment when the raised the possibility that some punishments might be cruel and unusual under the Eighth Amendment. And that’s his view.

Heffner: And I was going to say, “we’re stuck with it”, but I won’t. That’s passing a judgment which is not my business. But I was fascinated by … the report here of the speech, the quote “you want to have a fair death penalty,” U.S. Supreme Court Justice Antonin Scalia asked an audience of nearly 500 academics and others, “you kill, you die. That’s fair.” It’s that absolutism again …

Greenhouse: Yeah, you know, he’s his own worst enemy … I mean, he’s being very flip there I think. It actually was quite a thoughtful and interesting speech. But that’s Scalia. I mean, you know, he goes for the kind of, the kind of sound bite. But, but beneath that he was dealing with an interesting issue. What’s a judge’s proper stance in a kind of moral universe where his loyalty to … where there’s two different calls on his loyalty. And Scalia was saying, “You know, my loyalty, I took an oath to the Constitution. That’s where my loyalty as a judge, and you know, this is my Constitutional view.”

Heffner: Let me ask you one question covering an area that is so important. The Gore election, or mis-election, or stolen election … whatever one’s perspective can be. What did that do to the Court? Did it do as much damage as I would have imagined?

Greenhouse: Evidently not. You know, the surveys have indicated …surveys taken quite soon after the fact, when the wounds were still raw in the country … that didn’t change people’s view of the Court. People that didn’t like the Court still didn’t like it. People that liked the Court thought it was fine. There was not a diminution in the Court’s standing in the public eye. And within the Court I think … although wounds were obviously pretty raw, there, too, I think people made a very concerted effort to stay on track and get back to business and they did. I don’t think there’s really a lingering issue there. You know, they don’t have the luxury of kind of sulking in their tent, when there’s only nine of them and you’ve got to be able to call on or hope you can anybody’s vote in the next case. It’s not like Congress where you know there’s 435 members of the House and the whole caucus can go up and sulk in the Cloak Room somewhere. The Court can’t do that, so they, they got back to work

Heffner: Is that different from episodes of the past where there have been bitter conflicts that held on, that continued?

Greenhouse: Well, there’s a very bitter conflict now over these Federalism cases that I think is more bitter than Bush against Gore was, in the sense that the dissenters in the Federalism cases … Breyer, Sauter, Ginsberg and Stevens have said, “You know we just don’t agree with this and we’re never going to agree with it. And we’re going to keep dissenting and we’re going to keep dissenting. That’s unusual. That bespeaks some real hard and deep feelings that are lingering on the whole side of the docket.

Heffner: Sauter, what role does he play in all this?

Greenhouse: He’s a very thoughtful, careful judge. Speaks with a lot of authority, you know. He’s not what some people expected although everything he is on the Court, he flagged it all in his confirmation hearings, which were very fascinating, and he’s a good old-fashioned Yankee Republican.

Heffner: How do you explain his nomination?

Greenhouse: Oh …that’s …

Heffner: Given what you just said.

Greenhouse: Oh, that’s easy. He was, he was Warren Rudman’s protégé in the New Hampshire Attorney General’s office. Rudman has always been crazy about him and had a goal to get him on the Court some day. Got him on the First Circuit and then when Justice Brennan retired suddenly in the middle of the summer, unexpectedly because he had a stroke, Senator Rudman got his buddy, David Sauter’s name in play. And John Sununu who new, certainly that Sauter was a good deal more liberal than he was, couldn’t say no, because Sununu was the former Governor in New Hampshire, and Sununu was a New Hampshire product. So that’s what happened there.

Heffner: It is all happenstance? I mean somebody has a stroke. Someone else is in the …

Greenhouse: Yeah.

Heffner: … seat of power?

Greenhouse: Happenstance. Fate. Yeah. Absolutely. Sure. You couldn’t plot this out, that’s for sure.

Heffner: You can’t plot out the Supreme Court of the United States.

Greenhouse: No, and that’s why people would say, you know, “who’s Bush going to name and who’s going to retire” and this and that and the other thing. Who knows? It’s all a product of the dynamic of the moment. And we can’t forecast that.

Heffner: Well, a simple answer to that is come back in six months, six years and we’ll do another program. Thanks, Linda Greenhouse so much for joining me today.

Heffner: 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.