BOB: When certain gases, chiefly carbon dioxide, fill the atmosphere, causing the Earth’s surface temperatures to rise, that is called The Greenhouse Effect. When public opinion -- or, more specifically, elite opinion -- envelops Washington and influences the deliberations of the Supreme Court, that is also called the Greenhouse Effect. It’s a mordant joke, first coined by conservative economist and columnist Thomas Sowell and popularized by appeals court judge Lawrence Silberman. Observing the tendency of justices to get more liberal over time, Silberman chalked it up to pandering to the liberal elites, as personified by Linda Greenhouse, who covered the court for the New York Times for 30 years. Do the press and the liberal intellectual establishment really influence the court? For an answer, let’s go to the horse’s mouth. Linda Greenhouse, welcome to On the Media.
GREENHOUSE: Thank you, Bob. So what was happening was that Anthony Kennedy, a rather new justice at that time, was sitting in the seat that the Reagan administration had intended for Robert Bork. Justice Kennedy turned out not to be all that much like Judge Bork, in fact he was a good deal to the left of where Judge Bork would have been on important things and the conservative establishment in the country was beside itself. It couldn't directly attack Anthony kennedy as sitting supreme court justice, so they constructed a kind of bank shot to go after the quote liberal media, as personified by the New York Times. It was really directed at Justice Kennedy and I have to say in the intervening decades he has made their worst fears come true, he was the author of the same sex marriage decision last June, he voted in the majority with Chief Justice Roberts to preserve the Affordable Care Act from that ridiculous contrived attack that was mounted against it this past term.
BOB: Before we get to whether the court consciously or unconsciously was trying to curry favor with you personally --
GREENHOUSE: Oh certainly not.
BOB: Let's talk about the phenomenon of justice's rulings become more liberal over time. It's pretty well documented, is it not?
GREENHOUSE: Well you have to be a little more granular. The smartest work on this has been done by Michael Dorf who's a law professor at Cornell, and Lee Epstein who is a professor at Washington University in St Louis, and Michael Dorf had a good insight. He said it's almost exclusively those justices who've come from elsewhere in the country have not had previous connections to Washington who come in mid life to sit on the US Supreme Court, it's a very different kind of life than they've had and that is not surprisingly a life changing experience that tends to open their minds to new ideas. Whereas, those justices who came up in the federal government, justice department, White House council office, inside the beltway, actually don't change. So if you look at somebody like Justice Sam Alito, came on the court in 2006, he I believe has never cashed a paycheck that wasn't issued by the federal government. As a young lawyer he worked in the solicitor general's office he became a federal prosecutor, he became a federal judge. And then, at a relatively young age, he was maybe mid 50s, went on the US Supreme Court. He is not going to change. Chief Justice Roberts I don't believe is going to change. Some people he has, but I actually don't think so. So you really have to look very closely at what life experiences they bring to their tenure on the Supreme Court.
BOB: Well one way of explaining that is that they come to Washington and leave their provincial settings and they begin to expand their view judicially. Another way is what President Nixon dismissed as just spending too much time on the washington cocktail party circuit with all the elites who they subsequently tried to impress through their judicial decisions.
GREENHOUSE: Both of those are amusing and obviously neither of them is exactly accurate. So take somebody like John Paul Stevens, who was appointed by Gerald Ford. John Paul Stevens was not a provincial, he was from Chicago where his family owned the biggest hotel in Chicago. He was highly educated, he had been a Supreme Court law clerk and a federal judge. He comes to Washington, he was a rather typically moderate type Republican of his day. By the end of his very long tenure of more than 30 years he was probably the most liberal member of the Supreme Court. On the other hand, the Supreme Court had veered sharply to the right while he was sitting there. So if you had put John Paul Stevens back in the era of the Warren court he would have been someplace in the middle. So it pays to look with some care at each individual story.
BOB: Nonetheless, as an institution, the press is populated mainly with liberals, I think there's been enough survey data to validate the claims of left to right along those lines. Does this not begin to insinuate itself into the deliberations of the court?
GREENHOUSE: I wouldn't say so. I mean I would challenge anybody to look at my own coverage of the court over 30 years and to do a political valence to it, but I think that the press obviously plays a very important role. Because as the press informs the justices about what's going on in the country and in the world for one thing, and informs the court about the potential impact or actual impact of its decisions. So the media is the mediator between the court and the country. So I wouldn't dismiss the importance of that role at all.
BOB: The court it has been observed has more than one audience. There is the law itself, and then there's the general public. And the presumption here is that the court isn't playing to the general public but very much has on its mind how it will be regarded by this particular class of scholars and the media. Is there no evidence of that?
GREENHOUSE: Well there's no direct evidence of that. It's a 2 way street. They're living in the world and they are part of the elite class, in a kind of a feedback loop, and it's not surprising that over time that's who they pay attention to.
BOB: Linda thank you so much.
GREENHOUSE: You're welcome.
BOB: Linda Greenhouse, who still writes for the new York Times, is the Joseph M Goldstein senior fellow at Yale Law School.