Linda Greenhouse: The Post-Scalia Supreme Court

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March 22, 2016 — Linda Greenhouse, longtime New York Times Supreme Court reporter, discussed the current polarization of the court, the nomination of Merrick Garland, and the legacy of the late Justice Antonin Scalia.

Today’s politically divided Supreme Court is anomalous in U.S. history, said Greenhouse, who currently teaches at Yale Law School. She used the Burger Court, which she covered in the 1970s and 80s, as a point of comparison. With its cohort of moderate justices, anybody framing a case before the court “had to assume that they were making an argument that had to get at least some of those people,” she said.

The Roberts Court is also unusual in that its liberal justices were appointed by Democratic presidents, while its conservative justices were appointed by Republican presidents. “Dwight Eisenhower appointed Earl Warren and William Brennan, the two most liberal justices of the second half of the 20th century,” said Greenhouse. “JFK appointed Byron White, who although he was quite liberal on federal power and civil rights, was very conservative on social issues – he dissented in Roe V. Wade, he dissented in Miranda.”

I’m deeply concerned about the consequences of the politicization of the court.

As a result, the public was “able to look at the court not as a reflection of our political polarization…It gave a message that the court was about law and not politics,” said Greenhouse. “I’m deeply concerned about the consequences of the politicization of the court.”

Greenhouse argued that the Roberts Court has allowed itself to “become a tool of partisan warfare.” In taking up United States v. Texas earlier this year, a case about whether the president has authority to defer deportation of parents with children who cannot be deported, the court added a “gratuitous question” about whether the president had violated the Take Care Clause of the Constitution, said Greenhouse. The court has turned a statutory case about the reach of immigration laws into a “major constitutional confrontation,” she said. “That said to me that the court is veering out of control in our political environment.”

Greenhouse addressed several questions about the composition of the court, including whether the legal background of the judges themselves could be problematic. “The last former politician on the court was Justice Sandra Day O’Connor – she was quite conservative for most of her tenure on the court, but she was someone who believed in compromise…that seems to be lacking on the current court,” she said. “The Warren Court – certainly highly effective in accomplishing its agenda – at its height had no members who had formerly been [federal] judges of any kind.”

Regarding Scalia’s legacy, Greenhouse said that although he was a “colorful figure,” she thought he “degraded the discourse of the court” through his “snarky” dissenting opinions and a counterproductive “originalist understanding of constitutional interpretation.”

In the post-Scalia era, a new normal is emerging, said Greenhouse. “We have six justices, including the chief justice, looking in one direction, and we have Justice Alito and Justice Thomas off by themselves on the right wing fringe.” In March, the court reviewed a Massachusetts court ruling that stun guns were not protected under the Second Amendment. Although the case was sent back to the Massachusetts court as an unsigned ruling in favor of gun advocates, Justices Alito and Thomas still wrote a ten-page “screed,” she said.

Regarding President Obama’s selection of Merrick Garland, Greenhouse said he was a brilliant choice – being a judge that Republicans had previously praised – and that Republican refusal to even meet with him is simply “playing to the base.” Their behavior is “truly unprecedented,” she said. On the day of Scalia’s death, “the sun had not set before Mitch McConnell said ‘no matter who the president sends up, we’re not going to confirm that person.’ That has never happened before.”

Bork got a week-long hearing and a vote on the floor…they didn’t shut the door in his face.

She furthermore described the use of Joe Biden’s 1992 remarks as “cynical,” as there was no Supreme Court vacancy to fill at that time. The rejection of Robert Bork, nominated by President Ronald Reagan, was also an inaccurate comparison, as “Bork got a week-long hearing and a vote on the floor…they didn’t shut the door in his face.”

During the question and answer session, Greenhouse also discussed the process of deciding cases, the purpose and effect of oral arguments, gender balance and diversity on the court, the court’s decision in the 2000 presidential election, and Citizens United, among other topics. Listen to the full audio recording above.

Article and photo by Nilagia McCoy of the Shorenstein Center.