tv Linda Greenhouse Justice on the Brink CSPAN November 22, 2021 1:00am-2:00am EST
we were walking out in a group of older visitors, they said, look, there is linda greenhouse. and they are together. i always think, you know, yes, here we are, one more time together. it is a real privilege to start asking you about your book, which lots of people will see. talking to you about this. before we start, i just wanted to ask you if you wanted to say a few words about what you are trying to do here before we get down to the nitty-gritty. >> thank you. we go back a long way. >> it is not as competitive as people may think. you always had great sources.
we all got the same information at the same time. these opinions come down and everybody gets them. you just do the best that you can. you just kind of situate the project that became this book. i was basically an intense court watcher for the duration of the courts, 2020, 2021 term. the book is a chronicle of that term. the term that began in the shadow of ruth bader ginsburg death. amy comey barrett rapid confirmation and taking the justices seat in the court. a year that was totally encapsulated by the covid pandemic. 2020 elections, all of the
headlines. what i tried to do was really just channel the court in real time. i wrote every chapter, each chapter is a month. so, what happened during that month, it is an honest account. i did not go back at the end and kind of airbrush any think that i may have gotten wrong when i wrote about a case that was argued in november and it was decided in june and the decision did not quite track my perception of the argument. well, that is life. they can see that and say she really nailed it or she missed it. because, to airbrush it out, it would have been a smoother side. but it would have taken all of the fun out of it.
just to my eyes as a decades long court watcher. i spent my professional life. it kind of is what it is and i think it tells quite a meaty tail. >> thank you for that. mainly going to be asking about the substance of the book, but i will also be asking you about the writing. this was quite a challenge to do it the way you did it. have it right and be edited simultaneously as so much was unfolding. let's start in the beginning. i found that your focus early on with new justice amy comey barrett turned out to be so pressing it with a focus on abortion. there were many ways that you could have looked at her in your initial lens as she has first appearing before the crowd at the white house.
both first for her unveiling when president trump has nominated her and for the celebratory moment up on the balcony overlooking the rose garden. let me just ask at this very timely moment for abortion rights in america, how you decided to focus so much on her identity related to abortion even in the introductory part. >> well, of course, abortion was a question that kind of could not be nailed down during the confirmation. a lot was written about her and her affiliation with a particular branch of catholicism with her previous critique spirit her critique even of the
university where she taught for many years. the university of notre dame. an award that is given to a catholic member of public life and joe biden got it and she signed an objection to that. the objection says not a good catholic and you should not honor that kind of belief. there was a lot there. i did not start writing the chapter until after she had been confirmed. no democratic senator showed up for the final vote. it was objecting so vigorously to the nomination being announced.
you could see the democrats struggling with wanting to get abortion somehow onto the record of that confirmation hearing. to me, we know that roe versus wade has been hanging by a thread for years now. to me, that was obviously going to be the story. i think it is the main chapter. the court granted that. >> that is exactly right. >> hanging around on their docket since the previous summer it was always all about abortion proving to be also true cure or in november. >> we happen to be taping this
before november 1 window court will hear the arguments in the texas case and this will air after the texas case, but we will eventually touch on that a bit. i want to go backward to something that you said about religion and how it was so taboo give folks a little bit more context about why it is. you mentioned in the book when the senator asked about her religious beliefs while she was out for the u.s. court of appeals for the seventh circuit and the kind of backlash that happened there. if you would just sketch that out a bit and show what consequences there were when she was nominated to the supreme court. >> 2017 president trump named amy barrett. dianne feinstein was a house democrat on the judiciary
committee. she asked the nominee, ending up with, you know, will you be able to separate your religious beliefs firm your role as a judge. she said it seems to me based on your writings, this is the exact quote, the dogma is loudly within you. this created a huge backlash. of course the constitution provides there should be no religious test for public office this struck a number of people as imposing a religious test. i gather in the parish and so on, there were t-shirts and cops where it became a slogan. and there was so much pushback that dianne feinstein was still
there years later when the supreme court confirmation hearing took place and she could not ask. what was interesting was the democrats had decided that nobody was going to ask. the republican senators assumed that the democrats would be eating up bonded judge. for her religious beliefs. they had all kinds of questions. questions to pose to her along the lines of it's terrible how the democrats are beating up on you. but, senators like senator graham and senator holly asked questions anyway. it was just kind of amusing to watch that unfold. because they wanted an excuse of
the democratic colleagues. they were not nimble enough to pivot and ask more pertinent questions. it was kind of funny if you had twisted sense of humor. >> let me ask her from her own point of view. senator feinstein asked these questions in september of 27 teen. and then judge barrett speaks about what it means when she is giving a speech at a college. she has very put off by what happened. she said everybody has to check their boxes. whether they be religious, racial, sexual, whatever. she pretty much uses that moment to set herself apart.
i noticed in the book that you actually have a paragraph that describes the thought that many of us had at the time and following up when justice barrett was put on the short list for donald trump in the supreme court that that moment actually put her forward in a way that other potential supreme court candidates did not have. what do you think about how she may have viewed that moment, amy comey barrett. setting herself apart and maybe the favor of the white house. >> there are many factors that went into it. the fact that president trump's white house counsel at the time, also notre dame graduate. in fact, swearing in for the circuit, he showed up at the
event. i think he pronounced that it lives in me, too. it really came from the get-go. appropriate dignity and the situation. it certainly did put her on the screen as a vic odom of religious precedent, you may say politics, you know, sometimes it helps to be a victim. >> you know, lindau, you mentioned her swearing in. he was also sitting right behind her when he was asking those questions.
he chose for the appeals court which i think showed a certain amount of allegiance there. they are separated by about a decade. maybe not that much, certainly was a regulator on the circuit. crossing the path over and over. do you know anything else about the relationship other than the notre dame connection. anything that you discovered about how he may have mentored her in any way. >> no, i don't. what we do know is that the night the justice died, that friday night, september 2020, president trump was in the air coming back from a campaign event. he was on air force one. senator mcconnell had a call patch through to the president and he said, mr. president, you
should nominate somebody right away and that person should be amy comey barrett. >> not yet i am saving the seat. that network went well beyond. that was just kind of the icing on the cake. this inevitability to it. the white house talked about a short list and mentioned some other names. there was really only one name on the list. he was wired from the very beginning.
>> they did exactly what they did, try to put out the breadcrumbs that would suggest a different nominee. i know you just researched into how they told how they had it down in florida. ron desantis was very excited about the possibility. just like he led reporters on a bit of a chase during the selection, he tried to do that a little bit in the amy comey barrett situation. we know from the filings that that then judge barrett had to produce that the president offered her the job right at her interview that monday. >> right. >> trump was very different from bill clinton.
[laughter] >> yeah. >> the vacancy that went to ruth bader ginsburg. >> they were not folding. he really could not make a decision. it went on for weeks, even months. >> justice white announced that. was not chosen until the middle of june. >> it was not, he was not put on a list. he was thinking about almost everyone in the country. so, the explosives of the trump administration on the judiciary in general and on the supreme court specific, it really was one of the many aspects of this whole saga because he and the people around him and his major
cheerleader senator mcconnell would not be deterred. nothing would get in their way from getting a hold of the supreme court and the judiciary as a whole or the 200 federal judges that were appointed during the administration. >> i want to pivot to religion more broadly. before we go, i just have to ask how you decided to use the comparison. as i know, you know, a lot of people watching the show, as linda was writing this, the miniseries, this is america was on the air. linda draws and interesting comparison. why don't you tell us how you settled on that. >> i think the name was new to many people that watch that very popular miniseries. i had done a lot of research and
writing years ago on the history of the abortion issue in the united states. playing a big role. the effort to see that era, equal rights amendment. one way that she she went about it, it led right to abortion. in doing that, she was able to form that alliance between catholics and evangelicals in american politics. being very wary of one another. the catholic church big on abortion. evangelicals very wary of that era. not because of abortions, but the traditional family structure and so on.
you kind of do not want to over simplify it. she was kind of a visible person into the very powerful profamily coalition that was coincidental with the rise of ronald reagan. just the background. towards the end of her, the most public part of her career, lasting until 2016, her last action to endorse donald trump in the run-up to the 2016 election, wanting her to give her a job in the cabinet. first she wanted to run for congress. then she really expected that ronald reagan would award her with some sort of high government position and there would be a miniseries.
with her on the phone taking the calls from reagan who tells her, sorry, you have done a great job and i am not offering you anything. you see her crushing disappointment. as i watch the rise of amy barrett, much in common. i mean, a mother of many children. i think that it was maybe five. >> you know, living in a very traditional family structure. most lawyers, you know, obviously with ambitions far beyond the confines of the traditional household. they have chosen to live their adult life. all of those kinds of things. glamorous in her way.
very well dressed and so on. it just occurred to me, that in a way, amy comey barrett in 2020 was the fulfillment of what she wanted so much and failed to do back in the early 1980s. that is why i do that comparison >> let me ask you a question about religion and also, i would like you to weave into how much of a back story you want to tell. you are focused on these 12 months. you had to develop a scaffolding for that. and you talk about trinity lutheran as one of the cases you go back to write about.
a really important case where some seeds were planted and unusual divisions emerged among the justices. you address the importance of that case or what we see now in terms of the justices jurisprudence in the religious liberty. tell us why you chose that as a certain starting point that you needed to fill in and just how hard it was to decide how much of a back story you at a given certain areas. >> to answer the last part of your question first, i really looked through the same sort of thought process. what was my readers who i assume to be, you know, more consistent people that just did not have expertise of this matter. what would they need to know to
really understand what is happening. what kind of context do they need. i tried to do it here. the context of the capacity restrictions that many of the states were putting on all kinds of places including religious worship. i think that we will get to that. it came to an important theme as the term went on. obviously, there is something going on with free religion. we know, at least it has seemed to me that enlarging the place in the public square and giving more deference to religious claims, it really is an essential part of the project of the justice. i think he had a few projects over time which is not a criticism. i think that it is quite common that the justice come on the court after a lifetime of
advocacy or whatever. there are certain things that they like to see accomplished or stop from happening or whatever it may be. i am quite sure that religion is one of the chief justices projects. to understand what happened is, i thought it was important to just go back a few years. three or four years to this interesting case of trinity lutheran. a church in missouri ran a preschool. the state of missouri, two things about the state of missouri. one, state constitution provided that no state money should go to churches. number two, the state had a program where it would make recycled tires available to schools for realigning their playgrounds instead of pebbles
or concrete, whatever. rubber tires on your playground. the amount of these tires that the schools had to apply for them and trinity lutheran applied to get on this tire program. they were rejected because they were a church. that was a pre-exercise question that came up. chief justice roberts wrote an opinion that was quite narrow. he said, this is really outrageous discrimination on the basis of religion. this churches being discriminated not because of anything it is doing, but because of what it is, a church. don't worry, we are only talking about playgrounds. this has nothing to do with anything else but are they
eligible despite their nature is a church for this entire program ? the justice, theory new on the court, this was his first term, writes a concurring opinion. a judgment that the church is entitled to be in this program. he said constitutional questions we do not decide specific facts. we cannot draw this distinction. of course, what we are doing is authorizing public money to go to a church and, you know, good for us. i fully support that. i think that the distinction that you are making is ridiculous. >> that was kind of the premise for a much longer, over quite a few months on my chronicle of what the court was doing with religion. >> he was in his first two or
three months. he had come on in april. this was a june 2017 decision. linda uses that case to show about how it hardly was a case about playgrounds because in it becomes the ticket about much broader rulings as the years unfolded. there is something else that happened that gives me a chance to segue into another justice that i want you to address because it is a little bit more of acumen part of your study. they were the only two on the far left that totally dissented from the case. democratically appointed liberals trying to find some common ground. i just want to bring you at this point because she is part of your title. she is part of how you wrote this, why you wrote this.
the extension of justice barrett you were so close to justice ginsberg. i know that you respected her on the law and respected so much about her life. where did you end up coming down on her decision not to retire. >> well, i think that the worst that you can say is -- by that, i mean, she assumed that hillary clinton would go. so did all the rest of us. certainly the entire establishment assumed the same thing. you know, that did not happen and had she managed to hang on for another four months, the story we are talking about would have had a very different clarity. my feeling is had she retired,
started telling her to retire in the beginning of president obama's second term or even towards the end of his first term, i think it was, we would have missed the entirety, just about the entirety of the notorious rpg. most of her career, she was a consensus seeker. not always a consensus builder. her belief was, speak in a modulated tone. don't go bigger than you have to. just try to bring other people along. even try to work. you can learn through him. maybe he can learn from you. this kind of thing. what happened was, in 2007,
2006, actually, when justice o'connor retired, the 2005 term, reclaimed, the court noticeably to the right on the variety of questions, including racial equality, abortion rights and ruth ginsburg started to become quite alarmed and upset and she started writing. so, a few years later when the court, she gave this dissent that, you know, we don't need the voting rights act anymore.
this kind of thing is so, you know, two young women wrote the life of the notorious rpg. in questioning her with that name that she actually got a big kick out of. .... .... and as a citizen i would have felt cheated knowing it was this back at that time. with president hillary clinton we would not be in the case we
are in. >> you know those days are all correct and i will give you another day, 2010 and that was the year that she became the senior justice among the liberals after justice john paul stevens retired and she took that role very seriously. i think that emboldened her for that 2013 shelby county pulled her opinion that you mentioned and that was right around the time when a lot of liberals began trying to pressure her to step down. 2013 is a far cry from where she ended up in 2020 although obviously with great consequence. there's another cultural aspect i want to ask you about the furry return to abortion and that's what happened to the court during covid time. we are aware of how much the trappings of the institution
helped give the justices their identity. they have so many rituals and a tilting and the meetings together and the confiding in each other and all that disappeared in march of 2020. i do think that was an important development through the 12 months that you focus on. how do you think covid affected them in maybe a substantive way? >> the justices as you know are together because meeting in person with the justices -- while they were together on the bench three days of two weeks out of every month in october
through april and they wrapped up their arguments. they meet in private conference twice a week where they are sitting and there's something about eyeballing your colleagues and they do not schmooze with each other. they have a very formal relationships when they are not scheduled to sit together or to meet together at the conference table but there's just something about personal contact and that was gone and the court canceled the arguments sitting of 2020. they started having arguments again by telephone not even zoom or the nice platform that you and i are on right now because they don't want video so they were just on ordinary telephone lines i think. it had to just change the way of
life they are, the way of life with only one interruption and the interruption was through the anthrax scares in washington in the aftermath of 9/11 anthrax affected the reality of the court and it was immediately evacuated and for the first time since the court building was built in the 1930s the court met elsewhere and the court of appeals building down the street and i think that was very disruptive because they had to leave their chambers for period of a couple of weeks but nobody knew how long this would last. the court started meeting again not meeting publicly but privately this past spring i think in april after a buddy was vaccinated and most of them, not all of them and you may know
better than i didn't come to those conferences and i guess it was phoned in or something but they -- they weren't eyeballing each other like this past spring. >> i lost your sound. can you hear me now? because of some earlier feedback i'm now muted between sessions here. but i don't -- i want to make sure we spend some time on abortion and i'll just say for the oral arguments they had to cancel two sessions because they were just at the beginning of march so was march and april and then so they have that may special teleconference but held conferences. they are creatures of habit and those kinds of exceptions can rattle them and i think you are right, i think it played out in
cases in the cases in the ways that are probably mostly settled that we will never know whether there might have been a little bit more collegiality in some cases as we head to this crucial term with a justice barrett or not and i think it's so important what is developed on abortion and our audience will be seeing this app or we might have gotten a preliminary decision in the texas case on whether the state can try to insulate itself from any kind of judicial review with this unusual mechanism that is built into a six-week ban on abortion and essentially privatized public citizens to be bounty hunters of swords to go after anyone who is assisting a woman and a painting and abortion, so that is what they are speaking on now but as linda said on
december 1 the justices are going to hear a direct challenge to roe v. wade in a mississippi case that bans abortion after 15 weeks and the reason i describe it as a direct challenge to [roll call] is because roe in 1973 versus planned parenthood in 1992 the moment of viability and when government could restrict a woman's access to abortion and viability is typically at 22 to 24 months or 22 to 24 weeks and i guess my question to you on abortion linda is would you have ever predict did that they would have allowed the texas six-week abortion ban to take affect the way it did? right now we are still in it so it's been essentially two months that texas has been to has been departed this right so please
address that and an address where you think they will go on the bigger more substantial case that we will need to arguments on in the mississippi dispute. >> i was shocked with the effective date of the texas law. why? because it would then the most normal thing for them to do because they are ready granted the mississippi case and they set the arguments for mississippi and the question in mississippi is our all restrictions on fetal viability and constitutional so texas has banned abortion after roughly six weeks. that's the question and six weeks is before viability and we know that 15 weeks is viability in the side from the vigilante
stuff about your neighbor can sue your doctor at the heart of the question is can texas restrict access to abortion in this manner? that's a question for the courts to decide. typically when the court has decided something and the question comes up they put that case on hold for an eventual decision to or the first case will be decided so in the normal course what would have happened is in the texas case would have come off and the court would have helped in place that is to say that texas law on the verge of taking effect would not have taken effect that eventually the court would take that case if they felt it was necessary in light of mississippi.
the fact that they didn't do that says okay there's an agenda driving a bunch of them. takes only four votes to hear a case that it takes five votes to get it passed and it also underscores the difference that amy barrett's ascension to the court to taking ruth bader ginsburg c.. certainly it would have been 5-0 and a dissenting opinion in the court for the second time who decided not to issue state and every day. met women in texas remain pregnant and the constitution has been violated every day in the state of texas because the court refused to stay with the implementation of this law and
in mississippi -- the mac it's clear in mississippi will be upheld and why else would the court take a it on because there's no conflict of service. the main reason is for the court to hear case and the case is one of more than 6000 filed every day so it's a very precious granting of review and very scarce. after considering it for many months because they don't like the status quo being that the conservative fifth circuit that struck down the mississippi law had to do it because the law on the books as you explained on fetal liability falls flat leon it's based on is unconstitutional so why else would they? how are they going to go about overturning it? it seems to me if they simply
say well 15 weeks is -- a band that starts in 15 weeks is okay but we don't have to overturn roe v. wade. i don't see how that adds up because you said the viability firewall before fetal viability the state can make a woman walk on her hands the state can make a woman jumped through 20 oops and stand on her head and also to step at the end of the day she has an absolute right to terminate her pregnancy. i'm not sure what happens next. one of the most common questions phrased in one way or another at a justice in an oral argument will ask the lawyer is what is your limited and simple and that means you know do we buy what you are selling and what do we do in the next case?
what's the moment of principle and in the states is viability. it's got to come down to how we think about when life begins. some say life begins at conception and some say life begins at implementation and others might say like against the earth i don't know but it all comes down to a philosophical orientation to this question. viability is such a bright line because we all agree on what viability is the developing fetus to move independently outside of a woman's. and the significance of that as a constitutional matter we can't debate the fact that it does what it does but once you get
rid of that everything is open to debate. i see a big tragic mess. >> yes you know from all your research in 1973 with roe in 1993 with casey the justices sought viable that line and the majority said yes by ability that is the way to go because of how slippery it any other point might be. we are getting close to our time but i want to ask you about two sets of people on the court and first you mentioned justice sotomayor and her very passionate dissent both times and the first time around on september 1 on the supreme court initially allowing texas law to take effect and others on the liberal wing dissented but none as strongly as she did and she was the only one more recently
just a couple of weeks ago when the court for the second time let the texas lost in effect and she was the only one who dissented. linda how do you understand this build bridges attitude that justices kagan and breyer have versus, go ahead and burn it down and how do you see that playing out because two of them will probably be around longer and be in the remaining leadership positions on the liberal side justice kagan and sotomayor. >> i think it's a difference in approach so i think both justice breyer and justice kagan think the role they can serve best is is to be able to somehow reach
some of the justices and as far as we know that it happened. there's certainly been cases that have turned out to be more narrowly focused indyke can't sit here and prove that that's because stephen breyer exerted some kind of influence or cast some kind of magic spell on the others but i think sonya sotomayor has given up -- and she tells the truth to the american public as she sees it about the dealings of the majority and to make the record because none of us, none of them and none of us will be here forever but history will be written about the supreme court
and she is on -- 13 executions that the trump administration carried out which is just astonishing. we haven't had executions in the past 20 years and the court denied stopping any of them. she listed all the names. it was a kind of a black lives matter and the like. she wanted to make that record so it's very fascinating. justice ginsburg was with her on a number of those calling out moments and now she's basically alone on it and you know we have got to listen to her because she really has something to say. >> i'm going to close on another liberal justice with justice breyer but before we get to that i was struck by your scrutiny of
justice gorgeous's art. when he first came and he had very sharp elbows. he alienated cheap justice roberts in some ways and i know you've documented yourself with seanez arrogance among some of his other colleagues but then he toned it down a little bit and there's one point where you are right that he was sort of return to his old self by the end of the recent session and he was donald trump's first appointee but he might have been another republican presidents appointee to. he didn't stand out as much as justice barrett did in terms of at the time. how do you understand what he's trying to do? >> well i think he's somebody who really thinks he is right
and thinks that the chief justice is too much the compromise looking over his shoulder caring about what people think about the court and many of us might think that kind of goes with the territory for a chief justice but i think justice gorsuch is quite inpatient to get things done if he'd like to get them done so he kind of in a way he and justice alito the two of them control the chief justice i think and tweet him and tease him and just don't show him much respect and i think that's because they are impatient. they don't want to miss an opportunity to go as far as the could possibly know is what i think. >> do you think that justice thomas is now in some ways at
the right place at the right time or do you see him as having driving the agenda among the nine conservatives? >> well, i think his influence, i never viewed him as particularly being intellectual inside the court that the court did they think is intellectual outside of the court. it's astonishing how many law clerks during the trump years have ended up on the federal courts or in other very significant opinions and recently appointed solicitor general in the state of mississippi and is taken over the litigation in the abortion case. justice thomas has a way of identifying issues and signaling to the base and it's incredibly loyal base outside the court and all kinds of issues should be
litigated and placed in the pipeline are brought up to the supreme court so i think he's a asserted a lot of influence in that way, more so -- it's not that thomas court as some people seem to think. i don't agree with that but in a way that trump years became the thomas era of constitutional litigation. >> a smart line to a withdrawn because having watched him since the day he stepped before the senate judiciary committee until now i have observed his influence outside the building but inside the building he really is and wants to be in some ways a nation of one. he is not tried to be super persuasive with his colleagues. he's happy to go his own way. he's not actively working on votes and he has been joined by
justice gorsuch but largely because justice gorsuch was already there when he came to the bench. justice breyer who i know you have known for a very very long time, longer than i have known him and i've known him since he became a justice. you've known him when he was a judge and you may have known him when he was a hired law professor. what do you make about his decision to wait at least a year? people ask about that so much linda. >> i don't have any information as far as talking to him in this past year because i didn't want him to think i was snooping around. i think the disrespectful breyer retire billboards in washington and driving around the supreme
court building which he was not in that it really had a negative effect because it persuaded him that waiting to retire his what he so desperately didn't want to be seen as come as a political act. he had a very successful term last term within the dimensions of what the term was but he wrote some major opinions and he had a lot to say. he hasn't lost his step. he's at the top of his game so i think it's just hard to give it up and it's always been hard for a justice to give it up and we have noticed those of watched the court had noticed as soon as the justice steps off the court the decline tents to set an, not per justice souter. he was only 70 when he retired and he's had a very fruitful
retirement since 2009 but for a lot of them retirement has not been kind. chief justice rehnquist was seen in the last year of his life and he surprised everybody by saying my doctor says i have one more good year and a the doctor told you you had one good year would you want to spend it at the offices opposed to something else? maybe, maybe not. these people are not cartoon characters. they are human and they have human responses to situations in which they find themselves in that how i see stephen breyer. >> i think you are right about david souter. i remember in the 90s it was part of my archival research finding a letter that chief
justice rehnquist is lit -- written to someone. his help declined seriously after he stepped down in 1981 succeeded by sandra day o'connor and every member reading way before he became ill himself in 2005 that you know he thought that stepping down and leaving the bench, especially if you were alone as the chief was without his wife at the time, contributed to a miserable life and he just couldn't let it go. stephen breyer is one of the youngest 83-year-olds i know. he still has a spring in his step and the dozen seem to have lost what it takes to be a justice so i'm sure it's been a dilemma for him but it is a question that even though we are now fully into a new term it
would be completely crazy to leave midterm. the next opportunity would be at the end of this summer in june but yet it's constantly a source of chatter. people outside, obviously liberals and democrats haven't been able to let go of it and i hate to let go of this but we have gone more than the 45 minutes that we were recommended read we are added to our and i wanted to just ask if there's anything else you'd like to mention to people while you have their attention? spirit i just thank you john -- joe. cases that i talk about in the book that are now coming to fruition obviously the abortion
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