Journalist: High Court may head to the center

by Matthew Kelly | 11/21/03 6:00am

Pulitzer Prize-winning journalist and longtime New York Times Supreme Court correspondent Linda Greenhouse said the most recent Court term is "a possible retreat to the center," during a speech yesterday at the Rockefeller Center.

Centering on four recent cases, most notably Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action policies, and Lawrence v. Texas, which struck down a Texas sodomy law, Greenhouse noted an overall shift to the left for the Rehnquist Court, which many have called conservative.

Greenhouse said that other considerations, such as nuance, context and realpolitik are becoming more important, as justices move away from solely deciding cases on the basis of law.

"It wasn't doing sociology, it was doing law, but no member of the Supreme Court is only a keeper of law," Greenhouse said of the affirmative action cases.

Observers including Greenhouse expected the Court to rule in favor of Lawrence, as many inside the court have come to personally know homosexuals, including some on the Supreme Court staff.

Greenhouse believes the Lawrence case encouraged the Massachusetts Supreme Court to rule in favor of gay marriage last week.

"They [the justices] gave the State courage and cover," she said.As for the impending legal battle for gay marriages in other states, Greenhouse predicts a long and protracted legal and political debate.

"I think it's the opening chapter, and certainly not the last word," she said.

Greenhouse saw firsthand the change in opinion on the bench regarding affirmative action between the time the Supreme Court took the case and the time oral arguments began.

Whereas it seemed affirmative action was almost surely going to be abolished, the Court only overturned the undergraduate admissions policy in the case Gratz v. Bollinger.

The justices upheld the Bakke decision of 1978, and they also decided that diversity in higher education is beneficial not only to the school in question but to the country as a whole.

"I think the justices had a chance to sit and reflect," Greenhouse said of the perceived change in opinion. "They had a chance to contemplate where the consensus took them to where the Court wanted it to be."

She credits the record number of amicus briefs filed by "unusual suspects," such as the military and Fortune 500 companies.

"The briefs gave the justices a societal reality check," Greenhouse said.

Greenhouse is looking forward to cases regarding captives held at Guantanamo Bay as part of the war on terrorism, because, she said, not only the country but also the world is awaiting the Supreme Court's decision.

"The Court is what our commitment is to justice in the good and bad times," she said. "It's as much about them as it is about us."

She said that the Guantanamo cases will be scrutinized much like the Koremastu case that allowed Japanese internment during World War II.

The speech, entitled "What Got Into the Court and What Happens Next? Reflections on a Fascinating Supreme Court Term," also examined the impact of two lower-profile cases. Greenhouse, however, stressed the importance of Brown v. Legal Foundation of Washington and Nevada Department of Human Resources v. Hibbs, even if they were not as well-publicized.

Hibbs, decided May 27, reversed a decade-long trend of what Greenhouse called the Federalism Revolution of the Rehnquist Court.

The case pitted the 11th Amendment, which protects states from lawsuit in federal court, against the 14th Amendment, which provides for equal protection under the laws. Hibbs was terminated for not reporting to work after his wife became ill, an action he was permitted to take under the Family and Medical Leave Act.

While the Court had previously upheld the 11th Amendment rights and sex discrimination cases are always held to the highest scrutiny, the Court ruled strongly against the state of Nevada. One judge was especially adamant in defending women's rights to equal protection under the laws.

"Justice [John Paul] Stevens' language was so strong regarding sex discrimination that maybe [Justice] Ruth Bader Ginsburg was his ghostwriter," Greenhouse said regarding his concurring opinion in the Hibbs case.

Greenhouse sees Hibbs playing a role in an another upcoming challenge to the 11th Amendment: Tennessee v. Lane.

Even though the Americans with Disabilities Act stipulates that public services must be wheelchair accessible, Tennessee had yet to built an elevator in a state courthouse. Lane, a handicapped man, was arrested for not appearing at his court date, because he not crawl up a flight of stairs, according to Greenhouse. Lane filed suit against Tennessee, which insists that under the 11th Amendment, the state cannot be sued.

Brown, decided March 26, challenged the state practice of taking interest on lawyers' trust accounts, commonly referred to as IOLTA, to pay for legal services for the poor.

According to Greenhouse, 15 percent of the total funds for legal services are procured by means of IOLTA.

Conservatives challenged the practice on the basis of the Fifth Amendment, which requires the government to recompense individuals for private property that was seized for public use. Because the Court had previously ruled by a 5-4 majority that IOLTA was in fact property, it was expected that the Court would overturn this practice.

But in what Greenhouse called a surprising outcome, with Justice Sandra Day O'Connor as the swing vote, the Court ruled that because the interest was small enough, it did not constitute "taking."

Greenhouse said Brown was especially important not only because of its effects on legal services budgets, but also because of its impact on other landmark Court decisions later in the year.

Greenhouse has continuously covered the Supreme Court for the Times since 1978, save two years during which she was the Times Congressional correspondent. Previously, she covered New York state and city politics. As a Radcliffle College senior, she was editor-in-chief of The Harvard Crimson.

Following her speech, Greenhouse took questions from the capacity crowd in Rocky 2. When asked if the highly-contentious Bush v. Gore case that divided the Court along party lines had any lingering effect on justices today, Greenhouse said the justices have made great efforts to reconcile in the months after that difficult decision.

"They have all come to think of it as a bad hair day," she said.