At a program hosted by the Academy’s New Haven Program Committee, Linda Greenhouse, New York Times columnist, Senior Research Scholar in Law at Yale Law School, and author of Justice on the Brink: The Death of Ruth Bader Ginsburg, The Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court (November 2021), discussed the United States Supreme Court’s transformational year and the challenges to Roe v. Wade. An edited transcript of the opening remarks and Q&A session follows.
2102nd Stated Meeting | December 7, 2021 | Virtual Event
A Morton L. Mandel Conversation
David W. Oxtoby is President of the American Academy of Arts and Sciences. He was elected to the American Academy in 2012.
Good afternoon and welcome. As President it is my distinct pleasure to call to order the 2102nd Stated Meeting of the American Academy of Arts and Sciences. I am pleased to see so many Academy members who have joined us for this Morton L. Mandel Conversation, which is made possible by the generosity of the Jack, Joseph, and Morton Mandel Foundation. Mort Mandel’s vision of a program for civic discourse and membership engagement allows us to gather from across the country and exchange ideas on essential topics. We are grateful for his generosity and for the opportunity to connect Academy members in this way.
I also want to take a moment to express gratitude to Academy member Frances McCall Rosenbluth, whom we sadly lost last month. As one of our most active and engaged members, Frances served the Academy in so many capacities, including as Chair of the New Haven Program Committee. Today’s event was her idea. I hope that you will join me in remembering Frances for her friendship, leadership, and intellectual contributions to the Academy, our nation, and the world. We miss her greatly.
Today’s conversation is in keeping with the Academy’s work on American Institutions, Society, and the Public Good. As an institution, the Supreme Court is central to the challenging questions related to democratic citizenship, inequality, and civil justice, which recent Academy projects have addressed. At this consequential moment for the Court and for our democracy, I am especially grateful that we have an opportunity today to talk about the Supreme Court.
The Academy is proud to have several Supreme Court justices among its members, including Chief Justice Roberts, Justice Sotomayor, Justice Breyer, Justice Kagan, and retired Justices O’Connor and Souter. Historically the Academy rolls have included such influential justices as Ginsburg, Scalia, Rehnquist, Brennan, Warren, Marshall, and Jay, among many others. Today’s program is an opportunity to gain an understanding of this essential and often impenetrable institution and its members from an Academy member whose insights into the Supreme Court are unparalleled.
Our speaker is Linda Greenhouse, Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School and a Pulitzer Prize–winning columnist for The New York Times, where she has written about the Court for more than four decades. Linda was elected to the Academy in 1994. She has made multiple contributions to Dædalus and is a member of the Academy’s Council, Committee on Studies and Publications, and the New Haven Program Committee. Linda is currently serving as President of the American Philosophical Society. Her most recent book, Justice on the Brink, the Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court, was released in November.
Linda Greenhouse is Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School, a Pulitzer Prize–winning columnist for The New York Times, and President of the American Philosophical Society. She was elected to the Academy in 1994.
Let me begin by also mentioning Frances Rosenbluth. She would have been here with us today, and I miss her as we all do.
I will start with a few framing remarks, and then I look forward to a conversation and answering your questions. My husband said to me the other day, “Boy, the Supreme Court just seems to be lurching backward.” I agreed with him, but then I added, “That’s not quite an adequate way of framing what’s going on. The Court is not just lurching backward. It is doing something else.” And it finally came to me what is happening: the Supreme Court has been weaponized.
My newest book is a chronicle of the Supreme Court’s last term – a term with three Trump justices sitting on the Supreme Court, who were handpicked to deliver what they are about to deliver: namely, overturning Roe v. Wade. It is really an incredible moment. I cannot think of another time in the Court’s history like this. I do not hold myself out as a historian, but if you think back, conservative presidents have wanted to project their philosophy onto the Supreme Court, knowing that justices they have a chance to name will far outlast their own administration and will be a major part of their legacy. We all understand that. The Supreme Court has always been an organ of our domestic politics.
In 1968, Richard Nixon ran against the Warren Court, against the criminal procedure achievements of the Warren Court. He used crime as a kind of dog whistle. He wanted to talk about race, but he knew he did not actually have to mention race. He got four Court appointments and made very good use of them. That’s okay; we get that is how it works. But it is different when a Republican presidential candidate announces, “I’m going to put justices on the Supreme Court who are going to overturn Roe v. Wade,” and then he does just that – think of it like a targeted guided missile.
So, how did this come about? Well, there’s a long history to it. The Republican Party, since Ronald Regan in 1980, has pledged that its presidential candidates will pick judges and justices who would overturn Roe v. Wade. It has been the signal agenda item for the national Republican Party. Whether individual Republicans believed in it or not, it has been an instrumental choice to rally the base – and it is a small base. According to the polls, only 20 percent of the American public would like the Court to overturn Roe. That means that 80 percent of the American public doesn’t want that to happen.
We have on the Court today seven Catholic justices, and six of them are conservative Catholics. I include Neil Gorsuch even though he is currently an Episcopalian, but he was raised Catholic and in fact attended the same elite Jesuit boys’ school that Brett Kavanaugh did. This is not a coincidence, and I talk about that in my book. For years religion was not mentioned in polite society – though now it is mentioned a little more – because religion is the last taboo. We can talk about people’s sexuality, their gender identity, and their behavior in all kinds of contexts, but we can’t talk about religion. Well, we need to talk about religion. What is striking is that Catholic women in America have abortions at the same rate as non-Catholic women. So, it is not that the Catholic Church is a monolith. It certainly is not. It is not that being a Catholic puts you in any particular position. It certainly does not. It just so happens that these handpicked justices on the Supreme Court are all of a like mind on this subject.
Now this presents a crisis for the Court. My colleague at Yale, Cristina Rodríguez, just published a fascinating piece in the Harvard Law Review, which you can access online. I commend it to you. It is entitled “Regime Change,” and what she is talking about is that there is one regime in our domestic politics – the politics that led to the election by millions of votes of President Joe Biden, a politics that wants government to be in service of the people, a politics that recognizes the social changes that we have seen in our lifetime. And then there is another regime: the regime on the current Supreme Court. And they are at absolute odds to a degree that it is hard to find a historic analogy.
We hear a lot about legitimacy. It has almost become a buzzword: The Court better watch out or it is going to lose its legitimacy. But what does that mean? We really don’t know what that means because we have never seen a situation like this. During this term, we are going to have cases on abortion and on the Second Amendment. The gun rights case was argued last month, and I think there is no doubt that more Americans are going to be enabled to walk around with concealed weapons as a result of the way the Court is going to decide the case from New York. And then we have religion. There is a case being argued tomorrow that will result, I’m quite certain, in the channeling of more public money to pay for tuition at parochial schools.
I will stop there, and I am happy to take this in any way you like. We can get into the weeds on any of these issues or keep it more general. I am very interested in the questions that are going to come from this very special audience.
OXTOBY: I will read our first question that was put into the chat: If the present Court overturns Roe v. Wade, would a future Supreme Court be able to reinstate it?
GREENHOUSE: A future Court could reinstate Roe, but the center of gravity on the conservative side of the Court right now is young, so I don’t think that will change very quickly. It has taken fifty years to undo the right to abortion, and so I think it is going to take a while. As a practical matter, the only remedy lies in our domestic politics. A decision that erases Roe v. Wade can itself be erased by legislation. There is legislation pending in Congress now that would protect the right to abortion. Obviously, the current Congress is not about to do that, so that tells us that people who want to get motivated on this issue had better start working at the grassroots level just like the other side has done for many generations.
AUDIENCE MEMBER: Overturning Roe v. Wade could be a disaster for millions of women in this country, and the impact will be divided geographically. I am wondering about the long-, short-, and medium-term political impact of overturning Roe. As you pointed out, Roe v. Wade has been a focal point for conservative rallying for decades. When they no longer have that as a rallying point, do they need to be careful about getting what they wished for? Could there be a substantial backlash? I imagine women living in relatively conservative areas of the country will be unhappy if Roe is overturned.
GREENHOUSE: I would not take to the bank the assumption that there will be an effective countermobilization. There are many obstacles, one of which is gerrymandering at the state level. We see that going on right now, right in front of our faces, as a result of the 2020 census and what the Republican Party is trying to do to lock up majorities in legislatures around the country. I can see mobilization on both sides. What do I mean by that? If Roe v. Wade is overturned, it means there is no constitutional right to an abortion. But it would not be a constitutional prohibition against abortion unless the Court should deem that the fetus is a person entitled to the protections of the Fourteenth Amendment, and that is a real movement on that side of the street. I don’t think it is 100 percent likely, but there could well be a mobilizing tool on the other side. I think we are going to see a very multilayered and complex political reaction if the Court does what we think it is going to do.
AUDIENCE MEMBER: My question is about the context in which the Supreme Court is operating. Of all our institutions, it is the one strongly grounded in precedent. You noted the unique constellation of justices who are currently serving on the Court, and you said there has not been a particular precedent for this constellation that we see before us now. Are there any other inklings that you can glean from the Supreme Court’s history that might help us understand what may be coming even though we don’t have a definite road map?
GREENHOUSE: One episode from American history that people often raise is the struggle between Franklin Roosevelt and the Supreme Court. But that was different, I think, in every way that counts. For instance, when Roosevelt comes into office, he inherits a Supreme Court that is grounded in the past, though the justices were not picked for that reason. They had gotten old, we had the depression, and FDR was elected with overwhelming political majorities. But the Court stands in his way and eventually he prevails by doing what I mentioned in my opening remarks: he tries to weaponize the Supreme Court to get the New Deal programs upheld instead of overturned. Those were programs that Congress, by very strong majorities, had given the president, reelected with very strong majorities, the power to enact. In other words, the Court was simply being asked to ratify what the people wanted. Today we have a Court that is going to exercise its power to do exactly what the people don’t want. We may have people joining our program today who are better historians than I am, and I welcome their intervention, but I cannot think of a historical parallel for what is going on now.
OXTOBY: Let me ask a question related to that. Last week, Justice Sotomayor expressed concern that the public reputation of the Court will not survive the “stench” of the decision on Roe v. Wade. What would you say is the public’s perception of the Court, how concerned should we be about its legitimacy, and how concerned are the justices about that?
GREENHOUSE: The American public usually pays very little attention to the Court. The Court is remote, much of what it does is highly technical, and it doesn’t affect anybody’s daily life. Now, however, people are paying attention. I see Mary Beth Norton on the call, so I defer to her knowledge of the history here.
We saw that when the Court allowed the Texas vigilante law, SB 8, to go into effect on September 1 without a hearing, without any kind of review, the Gallup poll indication was that public respect for the Court had plummeted from a high of 50 percent, which is pretty good given that Congress is down around 12 percent, to 40 percent. So, the Court has the public’s attention. Does the Court care about this? I think some of the justices do and some of them don’t. I think the general perception, and I share it for what it’s worth, is that Chief Justice Roberts is attentive to what people think about the Court. I think he is quite attentive to what history is going to say about the Court that has his name on the door – the Roberts Court.
I believe Amy Coney Barrett was one year old when Roe was decided. She was raised in a very conservative Catholic community, with the notion that abortion is an atrocity of historic dimension, and it is part of everybody’s obligation, if they are in a position to do anything about it, to get rid of it. That is a different kind of thinking, and that agenda outweighs what might in an ordinary kind of case be the Court’s concern about its “legitimacy.” Should we care? Yes, I think we should care, but we need to care in a clear-eyed way. I think many of us grew up in the shadow of the Warren Court, imbued with the notion that the Court at the end of the day is a force for good in the country. The Warren Court had basically harnessed the Constitution as an engine of social progress and social reform. But not, I might add, having anything to do with women. The Warren Court never once recognized discrimination on the basis of sex as being a constitutional harm. We will set that aside. But on race and on criminal defendants’ rights, the Warren Court was an anomaly in the span of American history and there is a regression to the mean that does not capture the dimensions of what is occurring. We need to detach ourselves from the notion that the Court is a force for progress. It hasn’t been, and it is not going to be right now.
AUDIENCE MEMBER: I would like to align myself with a comment Linda just made about the history of the Court. For years I taught constitutional history, though I haven’t in a long time. And I always discovered that when the students at Cornell came into my class as worshippers of the Supreme Court, thinking the Court was a force for positive advances, I would always say, “Sorry, this is not what the history of the Court has been.”
Linda, I am a great admirer of your recent column about gaslighting in the Court because I listened to that argument, and you were so right about what the various members of the Court said. But I also think that Justice Sotomayor was right on when she talked about “stench” because one of the most reviled Court decisions ever, and it was intended at the time to resolve a major problem, was Dred Scott. I have never heard anybody make that analogy and I wonder, Linda, what your response to that analogy would be.
GREENHOUSE: It is so interesting because on the anti-abortion side of the street Roe v. Wade has been commonly analogized to Dred Scott. One of the things that we heard from Brett Kavanaugh during the argument last week was that the courts overturn precedent, the courts overturn these terrible cases, Brown v. Board overturned Plessy v. Ferguson, so what is the problem with overturning precedent? That is the other side of the coin. One side has analogized Roe to Dred Scott and now they are saying that overturning Roe would be analogous to Brown v. Board overturning Plessy v. Ferguson. Please stop me from going down that road of thinking! Dred Scott brought us the Civil War. There are a lot of things going on in the country today, and some people think we may be tending toward a cultural civil war if not an out-and-out shooting one, and this would be part of that ammunition.
AUDIENCE MEMBER: If I could add one more comment: Taney was really trying to resolve what is a very contentious issue through a judicial decision. If Roe is overturned, then it does the opposite. It takes what has been a judicial decision back to the states. If the Court does what we think it is going to do, then Sotomayor is absolutely correct: in the long run, the decision is going to lead to a denigration of the Roberts Court in the same way the Taney Court has long been denigrated. Although the Taney Court had many interesting and good decisions, it is known by Dred Scott.
GREENHOUSE: One thing that occurs to me when people say that this will turn the issue back to the states the way the Court should have done in 1973 is that Justice Brett Kavanaugh has been busy saying that the Constitution is neutral, and so we should be neutral too. We need to remember that the vote in Roe v. Wade was seven to two, and not five to four as most people think. And the seven included three of Nixon’s appointees. It was not a political issue. It had broad support in the public and, in fact, the NORC survey in the immediate aftermath revealed that support for legalized abortion actually went up in the country after Roe. There was not a spontaneous backlash, which is the mythology, but rather a carefully cultivated backlash with the goal of partisan realignment that eventually occurred. The Republican Party carefully nurtured a base that was opposed to Roe, but it took the better part of a decade for that to occur.
Let me mention one more thing and then we will get to more questions. The first justice who was named to the Court after the Court decided Roe was John Paul Stevens. He was President Gerald Ford’s only appointee to the Court. He succeeded William O. Douglas, who was a member of the majority in Roe. John Paul Stevens was a Republican appointee. He did not get a single question in his confirmation hearing about abortion. Why not? Because it wasn’t a political issue. The things that we assume today were true are actually the opposite. It is very counterintuitive, but worth keeping in mind as we go forward.
AUDIENCE MEMBER: Linda, could you say a little bit about what you think the effect of overturning Roe will be on related issues? Roe built on a series of contraception and other decisions about the right to privacy and the notion of the right to procreate. And since then, thinking about reproduction in the context of fundamental rights has included reproductive technologies and, to some extent, the right to die. We have seen this in the states in the last decade that have tried to pass so-called personhood amendments to make an embryo a Fourteenth Amendment person, and they always fail in the conservative states because of the unintended consequences of outlawing in vitro fertilization. There are just too many people who are grandparents now because their kids were able to use IVF. I wonder if you could speculate on how they are going to accommodate the overturning of Roe jurisprudentially in the face of all these other kinds of effective issues.
GREENHOUSE: That is an interesting and deep question. Amy Barrett raised that question during the argument when she said to the Mississippi solicitor general, who was arguing on behalf of the state law, “Well, if we buy your argument, what else is at stake?” He answered, “Nothing else” and gave a crazy and ridiculous reason. He said, “It is because these other cases have a bright line that we can understand what they are about, like same sex marriage.” This is an outgrowth of the whole fundamental rights chain of cases that you mentioned. You are either married or you are not married, so the courts don’t have to get into the weeds on that. But obviously, that is not the answer; it makes no sense. We are dealing with fundamental rights in a subset of due process, and the Court is going to have a problem. They are going to try to do something tricky and technical and talk about rational basis review and deference to state legislatures, but there is no logical boundary, it seems to me, if they go down that road. And they are going to have a challenge in the writing. Let’s assume they conferenced on the case last Friday, as they do every week with the cases that they have heard during the week, and they took their straw vote, and somebody has been assigned to write the majority opinion. Who is going to write and what are they going to say? This could be very important going forward.
AUDIENCE MEMBER: My question is about unintended consequences. There could be economic consequences if Roe v. Wade is overturned. I’ll give a few examples. BMWs are manufactured in the United States in South Carolina. I assume South Carolina will be one of the states that would not support Roe v. Wade. I don’t know for a fact, but I suspect that most BMWs are sold in blue states. You could have an economic boycott of BMWs because of a reaction against states restricting a woman’s right to choose as a basic principle in this country. Another example: Austin, Texas, is a big technology center and Tesla is supposed to move its headquarters there. If I walk around MIT and ask young women if they would like to work in Texas, they may say, “Are you kidding? That state goes against my principles.” Is an economic consequence a possibility?
GREENHOUSE: I think there are some data on the extent to which Americans are sorting themselves into where they choose to live. You could certainly see a brain drain or even a refusal to add brains to some of these states. You raised the issue of boycott and that is interesting because for the states that attempted to pass anti-LGBT legislation in the past few years, corporate America rose up and said, “We’re not going to put up with this” and those states backed off. Why did corporate America rise up? Because they have gay people in their workforce and gay people as their customers. Georgia, for example, has a huge movie and television film industry because they give some of the best tax credits in the country. For a brief time, there was a Hollywood boycott of Georgia. It didn’t last very long because the tax incentives were simply too appealing to the producers who finance these films or TV shows. I wrote a column during the past year that said, “Hey, corporate America, you were so effective in protecting LGBT interests. How about doing the same thing for women’s rights to reproductive freedom?” We have American Airlines based in Texas and Dell Computer based in Texas: silence has been their answer.
AUDIENCE MEMBER: Perhaps because Roe v. Wade was alive and well. The marketplace is very strong and if your employees and customers say, “I’m not going to fly American,” then that is a big problem.
AUDIENCE MEMBER: I would like to focus on two people: Kavanaugh and the Chief Justice. The Chief Justice is a scholar and a historian, and he has gone through Dred Scott in great detail, drafts one, two, three, four, and five, and how it got worse as Taney rewrote it. He also confronted Trump during Thanksgiving four years ago. And I think back to the Affordable Care Act and how he worked through that. Is the Chief Justice predisposed to the continuation of the Roberts Court in high esteem? Then I go to Kavanaugh and the exchange with Senator Collins at the time of his confirmation, in which he said that he was not of a mind to overturn Roe v. Wade. Do you see any opportunity that Kavanaugh and Roberts could get together with the other three and do a five to four that would be a very narrow treatment or salvation of Roe v. Wade?
GREENHOUSE: The Chief acting alone is powerless to stop what is happening even if he were inclined to because he has the five to his right, including Kavanaugh. Part of what I chronicle in my book is his loss of control, and that was initially manifest in the religion area, when the Court, with the new majority once Amy Barrett came on to replace Justice Ginsburg, flipped and chose religion over public health in striking down the capacity limits on indoor gatherings that included indoor gatherings for worship. Roberts was in dissent in those cases with the three justices to his left, and Kavanaugh was in the majority. Kavanaugh is a very thin reed. As you mentioned, in his interactions with Susan Collins he didn’t have the mind to overturn Roe. He didn’t acknowledge any desire to overturn Roe, but I wouldn’t purport to say I knew what was in his mind. And certainly, in his questions last week and his casual, “Oh, well, we’ve overturned this, and we’ve overturned that, so what’s the problem with overturning precedent?” I did not hear any willingness from him to give the Chief Justice cover, assuming the Chief Justice wants cover. As a citizen, I would certainly be happy, but as an analyst of the Court I would be shocked if it came out five to four to retain the right to abortion.
AUDIENCE MEMBER: So, chances are slim to none?
GREENHOUSE: I would be happy to be surprised by the decision. One thing I’ll mention about Kavanaugh, which I think is a real giveaway for him, is what happened a couple of terms ago with the last major abortion case that the Court had. It was a case called June Medical. Louisiana had a law that required doctors who perform abortions to have admitting privileges in local hospitals. It was an outrageous law on two grounds. One, the law was obviously intended to shut down the abortion infrastructure because Louisiana hospitals were simply not credentialling doctors. Two, a couple of years earlier the Court, in a case called Whole Woman’s Health, had struck down the exact same law from Texas. The abortion clinics in Louisiana came to the Court with an emergency application: put the Fifth Circuit opinion on hold, grant a stay so that we have time to file our appeal. And the Court granted the stay by a vote of five to four because Justice Ginsburg was on the Court at that time. Kavanaugh dissented. He wrote a separate opinion explaining his vote, in which he said, “Well, you know, the doctors should just take a little more time and get those credentials.” If he had read the District Court opinion that had struck down the Louisiana law, he would have known that some of these doctors have been trying to get privileges for five years. He just wanted to cover himself and look reasonable. So, when push comes to shove, I am not expecting anything from him at all.
AUDIENCE MEMBER: If they overturn Roe, the only places to get a legal abortion between the two coasts will be Colorado and Illinois. Is any member of the Court thinking about the societal and economic impact of this? It is just extraordinary the impact that this is going to have.
GREENHOUSE: There were around 140 amicus briefs filed in the case, and several of them on the prochoice side make those points. So, the Court can’t claim ignorance or surprise.
AUDIENCE MEMBER: Why did the Republican Party take it upon themselves to make antiabortion a major characteristic of their philosophy? Is there anything to be learned from that?
GREENHOUSE: My colleague Reva Siegel and I have done a lot of work on this, and we have written that what was going on in the second Nixon administration was an effort to do in the North what the Republican Party had successfully done in the South. What do I mean by that? The southern strategy was to use race to peel the traditionally Democratic white voters away from the Democratic Party and turn them into Republicans. The idea cooked up by people like Pat Buchanan and Kevin Phillips – you might recognize these names – was we can go after the historically Democratic voters among the urban ethnic white Catholic population, who are traditionally Democratic, and we can play the abortion card just like we played the race card and lure them over to the Republican Party. The book that Reva Siegel and I published, entitled Before Roe v. Wade, is a compilation of original source documents from what was going on in the pre-Roe era. The book describes an episode in which the Republican Party set up a table at the back of a Catholic church social hall so that people coming out of mass could change their registration. This was in California. Of course, the effort didn’t happen overnight, but after about a decade they started making real inroads, and the evangelical religious right joined in that effort.
AUDIENCE MEMBER: Most of us do not want to wait until we have a different Court, which could take twenty or thirty years. What are your views either about the commission that Biden appointed, which I think has reported or is about to report, or something akin to a constitutional convention that would remove life tenure and make it impossible to have the kind of packing for thirty or forty years that we are now dealing with?
GREENHOUSE: I support getting rid of life tenure. It’s an anomaly in the world. There is no other country that has endowed its constitutional court judges with life tenure. But that is a long game. Our Constitution is the hardest constitution in the world to amend. But even if that could be done, we have incumbents. On the Court packing issue, I have not seen that as a productive road to go down because one side can pack a few more in and then the next side will pack a few more in. I think the answer lies in our domestic politics; there are legislative solutions to most of these problems. But the problem is the legislative lockup in Congress right now. I am not an advocate of telling the American public what to do, but if I were, I would say pay attention to your local races.
OXTOBY: Linda, just to follow up on one point: the American Academy’s report, Our Common Purpose, from our Commission on the Practice of Democratic Citizenship, recommends eighteen-year terms for Supreme Court justices and says that a constitutional amendment is not required for this change. Is this something that you would support?
GREENHOUSE: Personally, I would support this. And though I understand the argument that a constitutional amendment is not required, it is a contested notion and saying that it is not required does not mean it is not required. This change would be litigated, and the argument would be that a constitutional amendment is required. But I am all in favor of going for it and seeing if it works.
AUDIENCE MEMBER: Turning back to abortion, one of the things that hasn’t been talked about much is that people sometimes make mistakes. I thought I was using all the proper birth control and I wasn’t. Having a kid before I was married would have ruined my career. The second experience was more complicated because the amniocentesis showed I would have a seriously disabled child. My college roommate had a seriously disabled brother, and she said her parents never paid attention to her. She urged me to get an abortion. People’s personal stories are powerful, but they are seldom talked about. These examples show that people should have at least a right to choose.
GREENHOUSE: Thank you for telling those stories. About half the pregnancies in this country are unintended, and nearly half of those end in abortion, for all kinds of reasons. In terms of amniocentesis, some people have said, “Well, the Mississippi law bans abortion after fifteen weeks and fifteen weeks is enough time.” That was the Chief Justice’s comment during the argument. When I was pregnant at the age of thirty-eight, you needed to wait eighteen or twenty weeks before you could have amnio. In the early days of the abortion reform movement, there were these speak-outs where women would mass together and tell their stories, and they were quite effective and that has been echoed in briefs that have been filed. But it is one thing to tell a story. You need people to listen, and we don’t seem to have a majority on the Supreme Court that is willing to listen to those stories.
AUDIENCE MEMBER: Linda, I would be interested to hear your thoughts about Justice Barrett’s question about the easy availability of adoption. How does that issue fit into the question of whether to overrule Roe?
GREENHOUSE: Her question left me gasping for breath. The argument to which she was responding is that the availability of abortion as part of a woman’s ability to control her reproductive life has enabled women to be full participants in the economy. And she said, “Well, not really. You can have the baby, but you don’t have to be a parent.” To the two lawyers who were arguing against the state, the clinic’s lawyer and the federal government’s lawyer, she said, there are these “safe haven laws,” and you can leave your baby in a basket. There’s adoption. Why don’t people talk about adoption? said this mother of seven, two of whom are adopted.
AUDIENCE MEMBER: I didn’t listen to the whole argument like you did, but did other members of the Court pick up on this? Do you expect to see this issue play a role in the Court’s decision?
GREENHOUSE: I don’t think they picked up on it in the argument. It really came from out of the blue. Will it play a role in the decision? I think if Justice Barrett writes separately, she is going to say something about it. What is so strange about what she said is that she was attempting to disaggregate that which cannot be disaggregated. That is, once you have a baby, you are a parent whether you leave the baby in a basket or give the baby away to somebody else. You are a mother after you give birth and that will remain with you for the rest of your life. She has to know that. She gave birth to five children. When the argument was over, I had to leave my office and take a walk in the cold winter sunshine because my head was spinning.
AUDIENCE MEMBER: This question is more about damage control than anything else. One of the characteristics of Roe v. Wade is that it falls in what Charles Black once described as the unnamed rights, which have in some sense their source in a remarkably conservative opinion of Justice McReynolds in the 1920s. When Roe was decided, it excited some really aggravated criticism, not from the right but from constitutional scholars – John Hart Ely comes to mind as a fairly balanced and respected character. I’m wondering whether these characteristics of the opinion give any basis for thinking that maybe the Court could survive the “stench.”
GREENHOUSE: If I understand the thrust of your question, I am going to have to reject your premise. There has been a mini-industry in law schools since 1973 about what is wrong with Roe v. Wade. I’m here to say that the reason Roe is the pressure point in our culture is because of the politics surrounding it, which I described earlier, and because it is about women.
AUDIENCE MEMBER: I totally agree. I do not mean to be aligning myself with those critics. What I am asking is whether the whole of the Court’s work is going to be impugned by what happens or whether it can be contained in the strange characteristics of unnamed rights that are not in the Constitution directly but have been recognized by the Supreme Court in the past.
AUDIENCE MEMBER: The mention of the people in “leave it to the people” struck me as incredibly disingenuous since clearly the people mean state legislatures, and we know where many state legislatures stand on this issue. There seems to be a cloak over the states’ rights argument so that it sounds all red, white, and blue – give it back to the people. Would you comment on that obfuscation if you agree with me?
GREENHOUSE: I do agree with you and, as I said earlier, we start with the notion that there are not any other fundamental rights that we just leave to the people. But even assuming that this were a right that we could leave to the people, the legislatures do not represent the people today because of gerrymandering. It a bizarre way to talk about something that has been recognized as a constitutional right for almost fifty years. It fits in with the other line of questioning during the argument last Wednesday, which was that of neutrality. The Constitution doesn’t mention abortion so the Constitution must be neutral. Well, the Constitution doesn’t mention marriage, the Constitution doesn’t mention travel, the Constitution doesn’t mention education: all these things in our constitutional history have been recognized as rights. So, the notion of neutrality fifty years after Roe is just bizarre.
AUDIENCE MEMBER: I want to go back to something that Linda said earlier. Most of us grew up thinking of the Court as a force for good, and that certainly was true in my case. Assuming that what we expect to happen does happen in some form or other, what should we be thinking of the Court now?
GREENHOUSE: I am sorry to say that the Court has been captured by a minority in this country. I used the word weaponized earlier. The Court has been captured and weaponized. The power that we have invested it with could not be accomplished through the working of democratic legislation. And that is a tricky and dangerous place to be in a country as on edge as our country currently is.
OXTOBY: Let me ask a question about a slightly different topic: affirmative action. Many of us are associated with colleges and universities. Do you have any expectations for this term or for this Court about where things may be headed for affirmative action?
GREENHOUSE: The case regarding Harvard’s admissions policies is pending at the Court, pending because the Court hasn’t granted it. When the petition was ready to be acted on, the Court, instead of granting it or denying it, kicked the can down the road and asked the Biden administration for its views. That is a strange thing to do. If the Court were to grant the case, the Biden administration would be perfectly free to inform the Court of its views. Earlier this year I imagine the Court was thinking we already have abortion, we already have the Second Amendment, maybe we don’t need affirmative action right now. The Biden administration has not yet filed its response to that “invitation.” They are expected to do so within the next few weeks.1 So, the question would be: if the Court were inclined to grant the challenge to Harvard’s admissions policies, would it be granted in time to be argued and decided this term? The cutoff for that would be by the end of January. If they grant a case after the end of January it gets carried over to the next term. Are they going to grant this particular case? There is another case pending, which is a request to hear on an accelerated basis the challenge to the University of North Carolina’s admissions policy. So that is about a public university and not a private, but basically the constitutional and legal questions are the same. I doubt they will take the Harvard case because the case went to trial. It was a very extensive trial that lasted for weeks. And there is a very extensive record, and the facts are not good for the challengers to affirmative action. Is there a majority on this Court that would like to get rid of affirmative action? Absolutely there is. And there are conservative foundations that are funding this litigation all around the country, so if they don’t take one case or another case, they will have the raw material. It is just a matter of time. It was Justice Anthony Kennedy who kept affirmative action going in the last round in the University of Texas cases. He’s gone, and so I think affirmative action is living on borrowed time.
AUDIENCE MEMBER: Linda, you speak of the Court as being weaponized. Do you think that if the January 6 insurrection had been more successful that the Court would have solidified a future authoritarian dictatorship?
GREENHOUSE: No, but I would not take a whole lot of comfort in that. There were quite a few cases that came to the Court both before and after the election, brought by Republicans challenging various aspects of the ways in which the pandemic deadlines were extended, mail-in ballots were made more available, and so on. And there were some justices who were quite tempted to take these cases in the name of a constitutional theory that had not previously been endorsed by a majority of the Court. State legislative supremacy in deciding how to conduct elections is still sitting out there. And that is a very freighted question because we see what is going on in some of these state legislatures with their voter suppression agendas. So even though we avoided anything that endorsed Trump’s moves this time around, leaving Trump very angry with his three justices who didn’t do what he put them there to do, we are not in the clear if things keep going as they are in state legislatures and in their voter suppression efforts. I haven’t directly answered your question about January 6 because I do not have a concrete enough idea of what the Court would have been asked to do. So, I will just leave it as saying I wouldn’t rest easy that the cases growing out of the efforts to undermine our democracy will come out the way we would like them to come out.
- 1The Biden administration filed its response on December 8, 2021. As expected, the administration urged the justices not to grant review in the Harvard case.