“Ask the Author” with Jan Crawford Greenburg: Part 2

Last week, we invited readers to submit questions to ABC News’s Jan Crawford Greenburg about her new book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.

Jan’s responses are in, and this entry is Part 2 of our discussion with her; part 1, which ran yesterday, can be found here, and the conclusion of this edition of “Ask the Author” will run tomorrow.

You discuss at length the various ebbs and flows of the career of Justice O’Connor – you describe how she swung first to the right in response to Justice Brennan and then to the left in response to Justices Scalia and Thomas. One reader wonders what you used to piece this narrative together. Could you tell from case notes, as found in Blackmun’s or other papers, or by talking to law clerks? Did the Justice open up and tell you about this? Or was it merely by looking at voting patterns and reading the tea leaves?

All of the above. The papers of Justice Blackmun were an astonishing resource, but they’re so vast that it would be difficult to sift through them without the interviews for direction. (It would be like finding the proverbial needle in a haystack.) So I interviewed scores of law clerks about their thoughts on the justices, asking for specific cases that could illuminate this point or that. Then I’d go and dig up the file in the Blackmun papers, and there it all would be. The interviews were crucial, because the divisions between the justices occurred in some of the most obscure cases—ones that never even made the newspapers at the time. And you’d never know from reading the opinions later, since some of the drafts never saw the light of day. I also turned to the Marshall and Brennan papers. All those documents came alive when combined with interviews of clerks and justices themselves. Justice O’Connor did not open up and discuss this with me, but other justices did, and they confirmed what I was seeing in the documents.

A reader was curious about your ability to talk to law clerks, and I’ll copy the question verbatim: I would like to know the extent to which you obtained information from former law clerks to the Justices. How did you seek them out? How much did they talk, and did many refuse to talk? Was their information accurate and reliable, or was it colored by understatement or overstatement? I’m interested to know how strictly they adhere to their “code of silence” following the clerkship.

Well, I touched on this a bit in the last question. I have to say that most of the clerks were highly reluctant to talk about any of their own private interactions with their justice. Most were quite firm about not discussing internal deliberations—what a justice instructed, how he viewed a case or who he may have taken issue with. I didn’t press them on that, because I wasn’t looking to persuade a clerk to violate the code. And I was talking to the justices themselves, so I didn’t need to rely so much on their clerks. (My discussion of Bush v. Gore is a perfect example—it all came from the justices themselves, and I was able to get a pretty complete picture of how the jumbled opinions came about, without anyone violating any codes of silence.) That said, I did speak with scores of clerks. Many of them agreed to talk because they wanted me to understand the real role of their justice or what they believed his or her legacy should be. They also were much more willing to discuss other justices, perhaps because that was not seen as violating the code of silence. As for whether they overstated their own role, well, I certainly didn’t feel that way during my interviews. But I wasn’t really asking those questions. I was looking for more specific guidance on individual cases.

You state of John Roberts that “if Bush were looking for the anti-O’Connor, he could hardly have done better”; you also say that a few leaders of liberal interest groups “just couldn’t convince anyone” that Roberts “was a solid conservative.” We’re now one and a half terms into his tenure – do you think they were correct? Have you seen any hints of areas where he may be substantially more conservative than even Rehnquist? Considering the cases on the docket this term, what should we be looking for in terms of outcomes that would indicate where the Roberts Court would break from the precedents of the Rehnquist Court?

Yes. John Roberts is nothing like O’Connor. (Except both enjoy golf.) He likes rules and guidelines. He thinks the Supreme Court should provide clear direction to litigants and lower courts. He believes a case-by-case approach is irresponsible. John Roberts is a solid judicial conservative who sees the law much like Antonin Scalia and who will be much less result-oriented than William Rehnquist. (It’s impossible to see Roberts writing Dickerson, for example.) But he’s collegial and congenial—Scalia without the elbows. As a result, I think he’ll be a highly effective leader as he tries to remove the Court—as he puts it–from some of the hot-button social issues. We’ve heard him talk a lot about unanimity and consensus and writing more narrowly. He gets high marks on both sides of the aisle for those goals–even though it would produce a quite conservative outcome. Despite Scalia’s “lots of luck” admonition, I think Roberts can probably pull it off on some of the statutory cases. It’s easier to make the case that you compromise your principles when Congress can step in and change things, anyway. But I think it’s different for constitutional cases. We will not see the consensus and unanimity there. That will be clear this term in the partial birth abortion case and in the school race cases, just to name two controversial ones where the Court is poised to go in a different direction.

Looking forward, Roberts’ real challenge will be reining in Justice Kennedy, so that he is not presiding over the “Kennedy Court,” with every case a battle between left and right over AMK’s vote. Roberts’s goals of narrow opinions and consensus must be viewed in the context of constraining Kennedy—not constraining Thomas and Scalia, as some have suggested. Roberts needs Thomas and Scalia go along with him, to be sure, but I think the idea of constraint and narrowness is targeted more at limiting Kennedy’s power to dictate the Court’s direction—as O’Connor determined the Court’s direction in the Rehnquist era. I expect Roberts to get takers on both sides for that approach. The liberals know Kennedy is no O’Connor—he’s more conservative, and they will lose his vote much more often than they lost hers.