Q&A: Justice on the Brink

The Supreme Court finds itself in a full-blown crisis of confidence. Former President Donald Trump changed the course of American jurisprudence by elevating three very conservative jurists (Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh) to the high court, each of them stamped with the archconservative Federalist Society’s seal of approval.

They have already made a major impact on laws around abortion, environmental regulation, and gun rights—and that was just last session. After the Dobbs v. Jackson Women’s Health Organization decision convulsed the electoral landscape in 2022, the Court is hurtling forward in the session that just began in October, aiming to eviscerate voting rights, LGBTQ rights, affirmative action, and perhaps state judicial review.

During her 30-year career at The New York Times, Linda Greenhouse, the doyenne of Supreme Court journalism, provided brilliant reporting and analysis on the work of the country’s high court. In her latest book, Justice on the Brink: A Requiem for the Supreme Court, Greenhouse, now a Yale Law School scholar and lecturer, chronicles the 2020-2021 term that accelerated the Court’s descent into the extreme political partisanship that has marred its reputation. Greenhouse writes that Justice Clarence Thomas, for one, has had extreme ideological shifts on race-based policies and voting rights and has been making the case for these radical changes for decades. And she points out that “after the Court’s reckless erasure of the right to abortion, we can no longer write off such predictions as dystopian fantasies.”

On Wednesday, the Supreme Court heard oral arguments in Moore v. Harper, a North Carolina partisan gerrymandering case. This interview, conducted before this week’s arguments, has been edited and condensed.

Gabrielle Gurley: Is independent state legislature theory a threat to democracy?

Linda Greenhouse: My sense is that the theory [that state legislatures should have independent powers to enact election laws without judicial review by state courts] being put forward is extreme and radical. The voices speaking to the Court are bipartisan, major establishment voices saying, don’t do this, there’s no basis for it. I actually don’t think they will go for it. That’s your bridge too far actually. It just comes out of nowhere. If you want to be originalist about it, at the time of the Founding, the colonies had constitutions and they had supreme courts that interpreted the constitutions and evaluated what the legislatures were doing in light of their assessment of what their constitutions called for. So the notion that in 2022 after all that history, state supreme courts have absolutely nothing to do with elections? It’s just ridiculous; I don’t think it’s going to fly.

Why has the Court taken up another Colorado same-sex marriage case, this time involving wedding websites?

We’re there because Justice Anthony Kennedy, in writing the Masterpiece Cakeshop opinion, didn’t go all the way.

Didn’t go all the way?

303 Creative brought both a free-exercise challenge and a free-speech challenge. The Court is only hearing the free-speech challenge, which I find very confusing because the web designer wants to speak about religion. I’m not really sure how you disaggregate the speech claim from the religion. She wants to be able to say my religion prevents me from serving you, same-sex couples, so please don’t bother coming to me.

In Masterpiece, Kennedy says the problem is that the state agency that reviewed this had some anti-religious comments, and so we have to rule for the baker because he was subject to anti-religious prejudice. They didn’t rule on his actual constitutional claims. He actually was a baker who was baking cakes, and he turned away the couple who wanted him to bake a cake for them.

What’s weird about 303 Creative is she’s not in the business of doing wedding websites. She would like to be in that business, but she’s not. She’s had no customers. She hasn’t turned anybody away. There’s no injury. I don’t think she even has standing because standing in federal court requires at the threshold that you show you’ve been injured and that something was done to you by the party that you’re suing.

So why did the Court accept the case?

Because Justice Samuel Alito and Thomas have been desperately looking for an Obergefell victim, that is to say, a straight person who’s been injured by the fact that same-sex marriage is now a constitutional right. They were so upset that they couldn’t take the case of the former Kentucky county clerk who wouldn’t perform same-sex marriages. She would have been the first Obergefell victim had her case been better presented. (She’s still in court and that case is still alive; it actually may come back.) What we have here basically, I won’t say it’s a phony case. I guess she’s sincere, but it’s being propelled to the Court by a Christian rights litigating group serving up on a platter exactly what Alito and Thomas want to have; a victim, a purported victim. And so that’s why they took it.

What are your observations about the affirmative action cases? Is affirmative action dead, too?

It’s unlike the voting rights case, which for technical procedural reasons they had to take. The Voting Rights Act is unusual law. The kinds of cases that come up under the Voting Rights Act go directly to a special three-judge federal court, composed of two district judges and one appeals court judge. Appeals from those go directly to the Supreme Court. There’s no intermediate stop; they fall with what’s called the Supreme Court’s mandatory appellate jurisdiction.

That means the Court has to do something with them. They can’t just deny cert, which the court does thousands of times a year to ordinary cases. The court is under no obligation to take most cases, but is under an obligation to take a voting rights case.

But on affirmative action, there’s no conflict in the circuit courts. The two lower courts in the Harvard case ruled for Harvard. The high court was so eager to take the University of North Carolina case that it took it in what’s called “cert before judgment.” It took the case without waiting for the Fourth Circuit Court of Appeals to hear it, it’s just direct from the district court. Even to agree to hear these cases was a very aggressive act in service of the agenda that they have.

They’re going to find some way to carry out that agenda. I would fully expect they’ll say, you can’t use race in university admissions. The question is how much further than that they’ll go, and what did they mean by using race? That was the fulcrum of the argument. Remember, all the stuff about, well, suppose a student in an essay says, yeah, I’m Black and let me tell you about things I’ve had to overcome. Is the admissions officer or the admissions committee supposed to just shut their eyes and ears to that? Can you not take any account of somebody’s experience of being one race or another?

Chief Justice John Roberts wrote in Shelby County v. Holder, which struck down the Voting Rights Act’s preclearance provisions, that “the country has changed.” Does he dare assert that decade-old sentiment again in likely striking down Section 2 of the Voting Rights Act?

We know the history: He tried to derail Section 2 at the very start of his career in the Reagan White House. It depends how far they go. Potentially, this really could be a pretty fatal blow to what’s left of the Voting Rights Act and what’s left after Shelby, which, of course, he wrote. Then there’s the Brnovich case from Arizona, which was Section 2 of the Voting Rights Act in a different context that produced an Alito opinion with that great dissenting opinion from Justice Elena Kagan. Roberts assigned it to Alito and he was totally on board.

How do you size up the GOP’s long march to the Dobbs v. Jackson Women’s Health Organization decision?

Abortion has been the ultimate organizing tool for the Republicans. They actually had nothing else other than tax cuts to bring to the table during these decades. They had no affirmative agenda. There were times in the march toward Dobbs when the Republicans overreached. The most obvious was Planned Parenthood v. Casey in 1992. The winning hand in Casey was dealt by three recently appointed Republican justices, Sandra O’Connor, Anthony Kennedy, and David Souter. That was a real blow to the right. In the 2016 Whole Women’s Health case, which struck down hospital admitting privileges in Texas, the law was aimed at shutting down abortion clinics and it managed to shut down half of them. The Court said, no, you can’t do that. So it’s a complicated story of fits and start, but the Republicans never took their eyes off the ball.

There’s this myth of backlash, oh my God, abortion—no. The so-called backlash was manufactured by the Republican Party, and it took much of succeeding decades to polarize the country and to produce partisan realignment on the issue.

Alito wrote the Dobbs opinion and he badly wanted Roe gone.

It’s as if time stopped at the precise moment when Sam Alito and his gang wanted time to stop. My view of Dobbs is that there is no law in Dobbs. I’ve written this—it’s performing law. It looks like a judicial opinion. What it is is a religious tract, dressed up to look like 60 pages of so-called law. The giveaway is when Alito says at the very beginning that abortion presents a profound moral issue. That’s his view and that is the view of his church. It’s not the view of a lot of other people. He says we can’t possibly know how the public will react, and, even if we did know, we would have no authority to tailor our actions to take that into account.

That was most disingenuous thing I’ve ever read in a Supreme Court opinion because it had been two months since the Politico leak and the country was in flames over what was coming down to the extent that the Court had to surround itself with an eight-foot-tall fence because it was so afraid of the public reaction before Dobbs came down.

What do the Politico leak and the allegations now that Alito leaked the Hobby Lobby decision say about the culture of the Court?

It’s misleading to put them in the same boat. Dobbs was the actual draft opinion. It’s much less clear what happened at Sam Alito’s dinner table. I don’t know anything about either of them, obviously. But Dobbs speaks to something really awry in the culture of the Court. I was at the Court basically every working day the Court was working for almost 30 years. It never occurred to me that something like this would happen. It was just profound shock.

Is the role of the Federalist Society in pushing slates of judges on a Republican White House something new in American history or have there always been groups who take it upon themselves to aggressively advance certain people to the Court?

The relationship between the Federalist Society and the Trump administration was just bizarre. No lawyer could get nominated for judgeships that wasn’t feted and served up by the Federalist Society. There’s no precedent for that, and I feel confident saying it is unique in American history.

Could Amy Coney Barrett and Brett Kavanaugh morph into possible swing votes, or are they fully embedded in the far conservative wing?

On Amy Barrett, we don’t actually have a lot of data points. I don’t know. I thought her departure from Alito in Fulton v. City of Philadelphia, the foster care/religion case, was quite interesting. We have to wait and see about her. Progressives are so desperate to see some moderating force on the right wing of the Court that they’ve kind of focused on Brett Kavanaugh. He goes through the motions about his decision-making, saying things like this case is very hard, there are two very compelling arguments on both sides, I understand the arguments of both sides, I hear you, but then he always ends up on the right-hand side. I’ll use the word “performance” again here, not that he is necessarily insincere in what he’s doing. But I don’t think the progressive side of the street can look to him for rescue.

What are your early impressions of Justice Ketanji Brown Jackson?

She’s in a fascinating position. I’ve written that when she was first nominated the Times asked me to write an op-ed, on what her impact on the Court would be. I was flummoxed by the question, because it didn’t seem to me that she would be in a position to have any influence as a newbie, as one of three progressives on the Court.

But when I heard her in the voting rights case, second day of the new term, and the way that she just bore in on the kind of phony originalism that the lawyer for the state of Alabama was putting forward, I came to a different conclusion than that; hers is a voice that nobody on the current Court has heard.

After Justice Thurgood Marshall retired in 1991, Justice Sandra Day O’Connor wrote a little essay about his influence on her. She said, you know, we served together for ten years and for ten years I sat with him around the conference table and listened to the stories that he told about his amazing life and career. She came to miss him at those meetings and yearned “to hear, just once more, another story that would, by and by, perhaps change the way I see the world.” O’Connor had been firmly in the anti–affirmative action camp, pretty reliable conservative at that time, and she served on the Court for another 15 years. And during that time, she saved affirmative action in the University of Michigan cases, she saved the right to abortion. She did change.

With Ketanji Jackson, I don’t think she’ll change the way Sam Alito sees the world, but she’s going to put it out there. She’s young, she’s going to be there a long time, and so she’s in a very interesting and potentially consequential position on the Court.

What does this tumult mean for Chief Justice Roberts: Is he as isolated as some commentators appear to believe?

A chunk of that is premature because if you look at the cases that are on the docket to this term, John Roberts is going to be a winner. The voting rights and the affirmative action cases, these are the core of what he cares about—and he’s on the winning side. And he can assign those opinions himself and he’s going look like he’s got his mojo back, right?

He was on the outs with Dobbs. The first substantive chapter in my book, “The Triumph of John Roberts,” remains basically true—except for Dobbs. There’s really nothing else that he’s lost on that he cares about. That is part of his project. I think our empathy for the embattled chief justice may be a little bit premature. We journalists love a compelling narrative. The narrative of the chief justice alone in his lair with Thomas and Alito running circles around him? It is a pretty good story, but I honestly don’t think it’s true.