Ask the author: Linda Greenhouse’s The U.S. Supreme Court: A Very Short Introduction
From 1978 to 2008, Linda Greenhouse covered the Supreme Court for The New York Times, winning a Pulitzer Prize in 1998. In addition to teaching at Yale Law School, where is she is currently a senior research scholar, Linda also continues to write a bi-weekly column for the “Opinionator” blog of the Times. She is also the author of many law review articles, the book Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, and the co-author (with Reva Siegel) of Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling. Linda was gracious enough to answer a few questions about her latest book, The U.S. Supreme Court: A Very Short Introduction, which was published earlier this year by Oxford University Press as part of its “Very Short Introductions” series.
1. Given the introductory nature of this book, one can imagine that you very well may have written it without the need to consult any outside resources. Was this predominantly a pedagogical exercise for the benefit of readers, or did you learn anything in the course of writing the book that surprised you as well?
Actually, I learned a lot. This book was decidedly not something I dashed off from the top of my head. For one thing, I can’t pass myself off as a historian of the Court. So I dug into both secondary and primary sources (particularly Maeva Marcus’s wonderful documentary history of the Court’s first decade) in order to achieve a comfort level that then allowed me to compress everything into a short chapter. I also spent a lot of time in the political science literature on public opinion, which I found fascinating, and that exploration enabled me to add some good political science readings to the seminar I teach on the Court for first-year law students at Yale.
2. Such a concise volume is surely the product of difficult decisions about what to leave out; was there anything you wished you could have included or spent more time on?
I would have liked to spend more time on both constitutional and statutory interpretation and, for the latter, the interplay between the Court and Congress. There’s obviously a huge amount to say about both, which leads me to your next question.
3. Had you finished the manuscript this summer rather than last, what would you have written about this Term, particularly the health care decision?
The Affordable Care Act case this past Term brought into play basically everything that’s important and interesting about the Supreme Court – interbranch relations, statutory and constitutional interpretation, public opinion, politics, history, and of course, judicial behavior and the Court’s internal dynamic. So yes, of course I was sorry not to have such a resonant current example to draw on. On the other hand – what a good time for a book about the Court to come out – people are really interested.
4. You make note of how personnel changes on the bench can lead to changes in the law. For instance you note that Ledbetter v. Goodyear was decided when Justice Alito had been on the bench for only eighteen months, and that if his predecessor, Justice O’Connor, had been casting a vote instead of him, the case might have been five to four the other way. There is a temptation to see such outcomes as more than a little arbitrary. How do you counsel new or jaded Court watchers to keep their faith in the judicial process?
As you suggest, it hasn’t been easy to keep the faith – although I’m not sure that you mean to suggest that this is the ultimate goal, and I don’t think it is. Of course, as a citizen, I’d like to believe that there’s something other than raw politics going on up there, and the burden is on the Court to persuade us of that. Maybe more than Ledbetter – which would have come out differently had Sandra O’Connor still been on the Court, but at least it didn’t overturn a precedent – I’d cite Gonzales v. Carhart for your point about the impact of new Justices and the changes they make. Of course, the majority in that case claimed to be distinguishing and not overturning Stenberg from just seven years earlier – but the completely objective Congressional Research Service’s Annotated Constitution sees it otherwise, and lists Gonzales v. Carhart among Supreme Court decisions that overturned prior Supreme Court decisions. Maybe the Court thought it could fool some people, but it couldn’t fool C.R.S.
5. You reference one case in which the Court had its facts wrong (Kennedy v. Louisiana). How anomalous is that? What do you think about the recent stories about the Justices going outside the record and the briefs to do their own research?
I understand why it’s problematic for Justices to go outside the record and do their own research, but actually it doesn’t really bother me. Why should the Court’s ability to reach a fully informed decision be compromised by a failure of advocacy, such as occurred to everyone’s embarrassment in Kennedy v. Louisiana in 2008 – that was the Eighth Amendment case about the death penalty for the rape of a child, and no one told the Court that Congress had recently added child rape to the list of capital offenses in the military justice system. It seems to me that as long as Justices cite their sources and aren’t just flying on instinct, that’s OK and sometimes better than the alternative.
6. You write that although the number of Justices on the bench has fluctuated in the past, it is not likely to change in the future. Is this due to a political climate that would make such a change impossible, or is nine simply the best possible number?
I don’t think there’s any perfect number of Justices, but I just can’t imagine Congress getting back into that thicket.
7. You mention in a paragraph about the Court’s agenda setting when it fills its docket that it often chooses to review cases that are either not among those “that the public perceives as the most important,” or represent an “atypical slice of a big issue” and therefore do not function as helpful precedents in deciding related cases. Why does this happen, and has this been a consistent feature of the Court’s docket?
This is a point that Fred Schauer made in his excellent Harvard Law Review Foreword a few years ago. He asked why on earth the Court took the crazy “Bong Hits for Jesus” case when it had been years since the Court had taken a case about students’ rights, a contested subject that could really use some work. I think the Court does more than a bit too much error correction, granting cert. when four or five Justices really don’t like the outcome below. And I think there are too many agenda-driven cert grants – Fisher v. University of Texas being a prime current example. I suspect this has always been the case, but when the Court is only deciding seventy cases a year, this kind of thing stands out more than it probably once did.
8. You have written elsewhere about the need to improve public understanding of the Court. Aside from books like yours, what do you see as the solution?
Recognizing that we’re never going to have a population of 200 million SCOTUSblog junkies, the depth of public ignorance about the Court is alarming. I wrote about this recently. In that column, I suggested that the chief Justice hit the road and do a little public outreach instead of running off to Malta. That’s no real solution, I realize. I think Justice O’Connor is on the right track to point to the lack of civics education in our public schools. The Court and its cases can make a terrifically engaging subject in high school with the right teachers and materials. There’s no magic wand, but we have to start somewhere, and school would seem to be the place to start. I was quite taken by Andrew Hacker’s piece in the New York Times the other day questioning why we make everyone learn algebra in order to graduate from high school. Good question. I think learning about the Supreme Court (and the rest of the government, of course) is more vital to a functioning democracy than algebra – at least I hope so, because I can’t remember a single thing I ever learned about algebra.