Posts
WASHINGTON — Sometime during the first of my nearly 30 years reporting on the Supreme Court, a distinct visual image of a Supreme Court term took hold in my mind and never let go. The nine-month term was a mountain. My job was to climb it.
The slope was gentle when the term began, every first Monday in October; the court was busy choosing new cases and hearing arguments, but it was not yet ready to issue decisions. The upward path steepened in January and February, when grants of new cases, arguments and decisions all came at once, competing for attention. Spring brought a breather as the path flattened out again: all the arguments had been heard, and the decisions were sporadic. The steepest climb came, predictably, every June, with the final outpouring of opinions before the summer recess. And then it was over. I could look down from the mountaintop to see the term whole and clear, while off in the distance the next term loomed, another climb.
But not this year. I am retiring from The New York Times to write and teach at Yale Law School. So this time, I can survey all the mountains, stretching back to the morning in 1978 when I first walked up the court’s marble steps — mistakenly, as it turned out, because people with business at the court actually use a less majestic but more practical side entrance at ground level.
I had been a political reporter, covering state government in New York from Albany, before I received a Ford Foundation fellowship for journalists to attend Yale Law School for a year. Certainly my Yale master’s degree, the ink barely dry as I walked up those marble steps, had given me a useful grasp of legal concepts. But it could scarcely prepare me for the texture and flavor, the sheer dailiness, of life at the court. So much happened behind closed doors. What did the justices do all day, anyway? I imagined them in earnest conversation with one another, grappling with the great legal questions of the day (in 1978 affirmative action was the most pressing). I learned only gradually that it isn’t like that at all, that except for their formal gatherings around the conference table once or twice a week, the justices spend their time, when they are not on the bench, in their chambers, alone or with their law clerks. Communications among them tend to be in writing, even today, and the ethos of the place discourages one justice from intruding on another’s space, physically or verbally. Membership in one of the world’s most exclusive clubs can be isolating, a little lonely, which I think is why those justices who enjoy companionship spend a fair amount of their free time on the road, speaking at law schools and judicial conferences.
In The Times’s Albany bureau, contact with the capitol’s newsmakers was constant, and feedback from them was instantaneous — not always pleasant, but essential for understanding competing perspectives and agendas, or simply for avoiding making the same mistake twice. Compared with the frenzied drama of the New York Legislature, the quiet of the Supreme Court press room was the silence of the tomb. In place of the easy banter with politicians that had made the Albany beat so engaging, there was an almost suffocating paper flow. Before I could work my way through one list of newly filed petitions to the court, two more would arrive.
Politics, comfortingly, had presented a moving target — an interpretation that seemed wrong today could well be proven correct tomorrow. But when it came to Supreme Court decisions, it was quite possible to get it wrong, flatly and irrevocably. And if I did get it wrong, how would I know? The fact that I received no feedback from those whose activities I was covering was hardly reassuring. It just underscored how different this new environment was going to be.
And yet I came to see my Albany experience as valuable, rather than irrelevant, to my new assignment. Watching the back-and-forth between a state legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle.
For example, the New York Legislature in the 1970s was determined to channel taxpayer money to parochial schools. A majority of the Supreme Court was equally determined to keep that from happening. Session after legislative session in Albany, I reported on efforts to get around the latest Supreme Court ruling and to do indirectly (by providing textbooks or transportation rather than classroom instruction, for instance) what the court had said could not be done directly. It was a constitutional Ping-Pong match, foreshadowing, in its way, the recent one between the court and the Bush administration over the handling of the Guantánamo detainees; a battle over principle, to be sure, but also over who would get the last word.
There was another useful lesson for me in the struggle over parochial school aid: the court’s makeup changes, and so does the law. As an associate justice, William H. Rehnquist, who wanted to cultivate a much bigger space for religion in public life, planted a few seeds in arid soil. He tended those seeds assiduously as new allies joined the court and the climate warmed, until they germinated in the form of decisions like the one in 2002, Zelman v. Simmons-Harris, which upheld Ohio’s system of taxpayer-financed vouchers for parents to use for parochial school tuition. “A program of true private choice,” Chief Justice Rehnquist said in his 5-to-4 majority opinion — having established years earlier, in less freighted contexts, that when public money passes through parents’ hands, it loses its public character and its use becomes a “private choice.”
And then something interesting happened. The voucher movement, even though its constitutional shackles had been removed, stalled almost everywhere, owing not to the intervention of federal judges but to resistance from state courts, teachers’ unions and taxpayers. An ambitious legislative campaign by voucher advocates in 2004 ended in defeat in state after state. The court can only do so much. It can lead, but the country does not necessarily follow.
In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I’m simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.
Such periods are fascinating, and inherently unstable. The early New Deal period is a classic example. The public demanded change, and the “nine old men” stood in the way. The “court-packing” crisis ensued; President Franklin D. Roosevelt had to back down from adding new and younger justices, and change came from inside the court anyway. Some decisions protecting the rights of criminal suspects, made by Earl Warren’s court in the 1960s, placed the court to the left of the country’s center (and provided useful campaign fodder for Richard M. Nixon).
A year ago, at the end of a Supreme Court term marked by sharp ideological divisions and attacks on precedent by a newly empowered conservative majority, I thought we were entering such a period; the court appeared to be moving to the right of the public. For example, the 5-to-4 decision blocking local communities from taking modest steps to preserve the hard-won gains of public school desegregation threatened to unravel delicate arrangements in school districts around the country. That remains a highly problematic decision, but the more muted and centrist tone of the term that just ended has made me less persuaded that the court is on a collision course with mainstream public opinion.
In any event, it is often the court that eventually retreats when it finds itself out of sync with the prevailing mood. That appeared to be the case with the “federalism revolution” that Chief Justice Rehnquist began in the mid-1990s. In a series of 5-to-4 decisions, the court declared that Congress did not have the power it assumed it had to make federal statutes binding on the states. These decisions, reflecting the chief justice’s longstanding goal to re-adjust the post-New Deal federal-state balance, signaled an abrupt jurisprudential shift.
But then 9/11 happened and the national mood changed. Suddenly, the federal government looked useful, even necessary. The Supreme Court’s federalism revolution had been overtaken by events. In 2003, Chief Justice Rehnquist wrote for a 6-to-3 majority that Congress acted within its constitutional authority when it said state governments could be sued for failing to give their employees the benefits required by the Family and Medical Leave Act. It was a decision of enormous symbolic significance. Without apology or much in the way of explanation, the chief justice gave up the fight and moved on.
I admired Chief Justice Rehnquist as a strategist and tactician; he knew what he wanted and knew his limits, just as in his weekly poker game he knew when to hold ’em and when to fold ’em. Justice Antonin Scalia, who joined the court in 1986, was a flashier attention-grabber, but I never had any doubt that William Rehnquist was the brains behind the court’s ascendant conservatives. He took his role seriously, but himself less so (unlike his stuffy predecessor, Warren E. Burger, the first chief justice of my tenure). When he emerged from behind the courtroom’s velvet curtain one morning in 1995 sporting four gold stripes on each sleeve of his robe — with some of his colleagues struggling to suppress smiles — many people saw pomposity, but I saw a wry or maybe even self-mocking comment on the boredom of basic black after 23 years on the court. He had another 10 years to go.
We had nothing approaching a confidential relationship, but we did chat now and then. On the morning after the 2000 presidential election, I ran into him on the court’s plaza as he was taking his morning walk. Wasn’t it amazing, we agreed, that the outcome of the election was still in doubt.
The court I began covering in 1978 was populated by men who were, for the most part, older than my father. Thurgood Marshall, William J. Brennan Jr. and Byron R. White were historic figures. Harry A. Blackmun had only a few years earlier been propelled from obscurity when he wrote the court’s 7-to-2 majority opinion in Roe v. Wade. Nine new justices joined the court during my time there. Of the original group, only John Paul Stevens remains. Three members of the court are younger than I am.
Amid all that change, nothing touched me as much as the arrival in September 1981 of Sandra Day O’Connor. I had never heard her name before President Ronald Reagan nominated her that summer to succeed Potter Stewart. Although I covered her confirmation hearing, she remained to me basically a blank slate. That didn’t matter. The first time I looked up from the press section and saw a woman sitting on the bench, I was thrilled in a way I would never have predicted. Her presence invaded my subconscious. I had recurring dreams about her. In one, she asked me my opinion on a pending case (something no justice ever did in real life). But mostly, she just had walk-on roles in ordinary nighttime dramas, her presence signifying what it meant to me to know that there was no longer a position in the legal profession that a woman could not aspire to.
Four summers later, I was pregnant. Encountering me in a hallway, Justice O’Connor asked me when the baby was due. “Just before the first Monday in October,” I replied. Sandra Day O’Connor, mother of three, laughed. “Oh, keep your legs crossed,” she urged. “Don’t let that baby come out until the First Monday!” Some 30 minutes into the first Monday in October 1985, my daughter, Hannah, came into the world. I later learned that right before going on the bench that morning for the term’s opening session, Justice O’Connor called the court’s public information office and asked: “Has anyone heard from Linda? Did she have her baby today?”
(Years later, my daughter bluntly reminded me that today’s young women have the luxury of taking for granted the pioneering accomplishments of a Sandra Day O’Connor or Ruth Bader Ginsburg. When I observed that I was out of college before I ever met a woman who was a lawyer, the teenage Hannah regarded me with compassion. “Face it, Mom,” she said. “You’ve led a sheltered life.”)
Continuity and change, the entwined spirals of a double helix, are the court’s DNA. Continuity is anchored by the gravitational pull of precedent. Who would have believed that William Rehnquist, long a vocal critic of the Warren court’s Miranda decision, could write a majority opinion in 2000 not only reaffirming it but proclaiming that the Miranda warnings had become “part of our national culture”?
The pull of precedent is powerful but scarcely all-powerful when a shift of personnel or perspective breaks the spell, allowing the forces of change to exert their counterpull. The road from Bowers v. Hardwick, the 1986 decision that dismissed a claim of gay rights as “at best, facetious,” to Lawrence v. Texas, which 17 years later located the privacy rights of gay men and lesbians at the heart of constitutional due process, was paved, I have no doubt, by the justices’ experience of knowing gay men and women in their personal and professional lives.
But with so many important cases decided by such close margins (the two leading cases of the past term, on the rights of the Guantánamo detainees and the Second Amendment right to own a gun, were decided by votes of 5 to 4), perhaps fragility, rather than stability, best characterizes the court today, and that is a reminder of the stakes involved in any Supreme Court vacancy. The galvanizing battle over the nomination of Robert H. Bork in 1987, a conflagration at the intersection of law and politics that held the country spellbound for three months, was the most riveting public event I ever witnessed at close range. Although Judge Bork was, of course, defeated, in many ways the Bork battle has never really ended, with today’s ceaseless judicial confirmation wars being carried on by ideological combatants too young to remember the original.
President Reagan nominated Robert Bork, a well-known conservative, to the “swing” seat on the court being vacated by Justice Lewis F. Powell Jr. I knew Bob Bork. He had been a professor of mine at Yale, an urbane and witty man who bore little resemblance to the instant portrait painted by his opponents. (“In Robert Bork’s America,” Senator Edward M. Kennedy famously said in response to the nomination, “there is no room at the inn for blacks and no place in the Constitution for women, and in our America there should be no seat on the Supreme Court for Robert Bork.”) The day he was nominated, I left a message on his home answering machine. “Congratulations, and keep your sense of humor,” I said. “I think you’ll need it.”
His sense of humor failed him. As the hearings went on, he became testy and abrupt. When he said that serving on the court would be an “intellectual feast,” he was simply being honest. It would have been more politic, but less candid, to claim that he was motivated by a desire to serve the cause of justice. He and his supporters emerged from defeat filled with bitterness, persuaded that he had been dealt an unfair hand.
To the contrary, I thought then and think now that the debate had been both fair and profound. In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”
It has made a substantial difference during these last 21 years that Anthony Kennedy got the seat intended for Robert Bork. The invective aimed at Justice Kennedy from the right this year alone, for his majority opinions upholding the rights of the Guantánamo detainees and overturning the death penalty for child rapists — 5-to-4 decisions that would surely have found Judge Bork on the opposite side — is a measure of the lasting significance of what happened during that long-ago summer and fall.
It is also a reminder of something I learned observing the court and the country, and listening in on the vital dialogue between them. The court is in Americans’ collective hands. We shape it; it reflects us. At any given time, we may not have the Supreme Court we want. We may not have the court we need. But we have, most likely, the Supreme Court we deserve.
