tv Linda Greenhouse Justice on the Brink CSPAN December 23, 2021 9:05pm-10:07pm EST
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companies moving overseas on the working class americans. she is interviewed by the executive editor of the hardship reporting project. watch booktv every sunday on c-span2, find a full schedule on the program guide or watch any time on booktv.org. welcome to the viewers and linda greenhouse, an old friend of mine. i'm excited for her new book that's come out and we will have a conversation for about 45 minutes, 60 minutes. i want to start by saying that i've known linda since the late '80s when i started covering the supreme court, and for a long time, we were competitors, friendlyoo competitors come abot competitors. i was at the "washington post" and she was at "the new york times." we then started on the respective book journeys and sometimes we would be at the library doing research together,
but a lot of people from the outside is still new us as competitors and i will never forget one day we decided to have lunch together from the library of congress and the research. a group of visitors that looked like the classic crowd said there is linda greenhouse and joan biskupic and they are together. and i always think yes, here we are, one more time together and it's a real privilege and pleasure to start asking about your book, which lots of people will see but i've got marked in the galleys to talk to you about. before we start, i thought i would ask if you would say a few words about what you were trying to do before we got down into some of the nitty-gritty. >> i've been looking forward to this because you're right we go back a long way.
the supreme court was not as competitive as people might think. some of us got the same information at the same time. the opinions came down at 10:00 in the morning, everybody gets to them and you just do the best you can. it's not like the congressional risk galleries, but anyway, it's a pleasure so just to kind of situate the project that became this book, was basically an intense court watcher for the duration of the courts 2020, 2021 term. the book is a chronicle of that term that began in the shadow of justice ruth bader ginsburg's death and amy's very rapid
confirmation for the seat on the court and going through a year that was totally encapsulated by the pandemic and the 2020 election and all the headlines stuff that any reader would know about. what i tried to do was really just challenge the court in real time. so i wrote every chapter. each chapter is a month. i didn't go back at the end and kind of airbrushed anything that i might have gotten wrong when i wrote about it, the case that was argued in november it was decided in june the decision didn't quite attract my perception of the argument well. that's life. the readers can see that and say she really nailed it, or did she
miss a signal there or something. to airbrush it out would have taken all the fun out of it because it really is through my eyes as a decades long court watcher i spent my professional life since the 1970s so it is what it is and tells quite a tale asking about the substance of the book and the court but also about the writing because this was quite a challenge to do with the way you did it to write it and have it edited to simultaneously as so much was unfolding. let's start at the beginning. i found that your focus early on with new justice amy coney
barrett turned out to suppress the end with a focus on abortion so there were many ways you could have looked at that initial lens as she's first appearing before the crowd at the white house first for her unveiling when president trump nominated her andhi then for the celebratory moment about the balcony overlooking the rose garden. let me just ask in this timely moment how you decided to focus on the identity related to abortion even in the introductory parts. >> abortion was the question that couldn't kind of be nailed down during the confirmation because it was tied up with religion, and religion is the last in american society so a lot was written about her and
her affiliation with a particular branch of catholicism and her previous critiques of roe v wade in her critique of the university where she taught for many years where she gave president joe biden and award given to a catholic member of public life. she didn't start writing the chapter until confirmed and it was a confirmation process and no democratic senators showed up for the final vote.
they were objecting so vigorously to the way the nomination was announced before ruth bader ginsburg was even buried. you can see the democrats struggling with wanting to get abortion somehow onto the record. we know that roe v wade has been hanging by a thread for some years now. the court granted them in the mississippi case for the argument december 1st that had been hanging around on the docket and the previous summer.
it's h proving to be so true in november.xa >> that's right and a justice of the audience knows, we have andd to be taping this on, before november 1st when the court will hear the arguments in the case and this will air after the court has heard of those and even after the texas case, but we will touch on that a bit. but about how it was so taboo and give more context about why it is. when you asked about the religious beliefs while she was up for the u.s. court of appeals for the seventh circuit and the kind of backlash if you would sketch that out a little bit and show what a consequence it had when she then was nominated to
the supreme court. >> the 2017 president trump named amy coney barrett to the court of appeals for the civil circuit and diane feinstein was the head democrat on the judiciary committee and asked the nominee a series of questions. so, this created a huge backlash of course on the constitution provides there should be no religious test for public office and the religious tests. and i gather in the parish gift
shops there were t-shirts and caps and cups. that became a slogan. there was so much pushback that diane feinstein was still there three i years later when the supreme court confirmation hearing took place and she couldn't ask. what's interesting about that is the democrats obviously had decided that nobody was going to ask. the republican senators hadn't gotten that memo. isn't it terrible how the democrats are beating up on you for your religion. of course none of them had.
biases at the door whether they be religious whether they be religious or sexual. she pretty much uses that moment to set herself apart from others. at the time when she was put on the shortlist for donald trump in the supreme court. it was in a wayre that other potential supreme court candidates didn't have. what do you think about how she might have viewed that moment in terms of her own ability to set herself apart and maybe win more favor with the white house there were many factors. one of them is the fact president trump's white house counsel at the time was also a
notre dame graduate and in fact at the swearing-in for the circuit, showed up at the event. she comported herself with appropriate dignity in the situation but it certainly did put her on the screen as kind of a victim of religious prejudice you might say. it might have been the case in politics into sometimes it helps to be a victim and i do think it
helped her. >> you mentioned don mcgann was at the swearing in and was also sitting behind her when she was asked theep questions. she chose to attend before the appeals court, which i think showed a certain amount of allegiance. now it's separated by about a decade in the ages or maybe not that much, but they were not at notre dame at the same time, but she certainly was a regular around the federal society circuit and would have crossed this path over and over. do you know anything about the relationship other than the notre dame connection, anything you discovered about how he might have decided to mentor her in any way? >> no, i don't, but what we do know is the night justice ginsburg died, that friday night, 2020.
it's right but yet they did exactly what they did even with gore to put out some breadcrumbs that would suggest a different nominee. he had a thing for the judge down in florida and that ron was very excited about that possibility, butom just like he lead to the reporters on a bit of a chase during the selection, he triede to do that a little bt in the amy coney barrett situation and we know from the filings that the then judge barrett had to produce.
senator mcconnell said we are not going to be detoured, nothing was going to get in the way from getting hold of the supreme court and the judiciary as a whole where the 200 federal judges were appointed during the trump administration. i want to pivot to religion more broadly because that is a very deep theme of your book but before weat go, i just have to k hows we decided to use the phyllis schlafly comparison and as i know and you know as linda was writing this, the miniseries the airmerica was on and linda drawls an interesting
comparison. why don't you tell us how you settled on that. >> i think the name was new to many people who watched that popular series but it wasn't new to me because i had done a lot of research and writing years ago on the history of the abortion issue in the united states and phyllis schlafly played a big role in the major effort was to defeat the equal rights amendment but one way she went about it was to say this was before roeet v wade and in doing that, she was able to form an alliance between catholics and evangelicals in american politics that had been very weary of one another.
not because of abortion per se but as they saw it as a threat tot the traditional family structure and so on. there were many hands in this, but they brought the two groups together in a very powerful profamily coalition that was coincidental with the rise of ronald reagan, so just some suge background on phyllis schlafly. to the most public part of her career that lasted really until 2016 and old age her public act was to endorse donald trump and the run up to 2016. she wanted to run for congress
and her husband kind of put the kibosh on that. he tells her sorry, phyllis, you've done a great job and i'm not offering you anything and you see her crushing disappointment. so you know, as i watched the rise of amy coney barrett, much in common. a mother of many children and phyllis schlafly's case it was maybe five. moving in a very traditional family structure, t both lawyer, both obviously with ambition far
beyond the confines of the traditional household in which they had chosen to live their adult lives. all those kind of things and phyllis schlafly was quite glamorous in her way with the hair on her head and a very well-dressed. so it just occurred to me that in a way, amy coney barrett in 2020 was the0s fulfillment of wt phyllis schlafly went through so much and failed to do back in the early 1980s. so that's why i drew that comparison. >> i'm going to ask you a question about religion and i'd like you to weave in a little of your response on how much of thn back story you wanted to tell. you were focused on these 12
months but you had to develop a scaffolding for that and you talk about trinity luther as one of thel cases you go back to write about a religion case from 2017. some seeds were planted and a usual division emerged among the justices. if you address the difference of that case for what we see now in terms of the justices jurisprudence and religious yliberty, tell us why you chose that as a certain starting point that you needed to fill in and how hard it was to decide how much of a backdrop over certain areas you are actually writing. >> to answer the last part of your question first, i went through the same kind of thought process i did when i covered the supreme court on a daily basis as a reporter, which is what
would my readers, who i assumed to be smart interested people that just didn't happen to have expertise in this matter, what would they need to know to understand what's happening and i try to to do that in my reporting and i tried to do it here because in the context of covid and the capacity restrictions various cities and states were putting on all kinds of places including religious worship and we will get to that but that became an important theme obviously there's something going on with religion and we know it's an essential
part of the project of chief justice roberts i'm quite sure that religion is one of the projects so to understand what happened in this term i thought it was important to go back a few years to this interesting case called trinity lutheran. the church in missouri had a preschool and the state of missouri, two things, one the state constitution provided no state money should go to churches, number one. number two, the state had a
program where it would make the rubber from used tires available to schools and instead of dirt and pebbles and whatever. but there was a limited amount so they had to apply for them and trinity lutheran applied for the preschool to get on this entire program. so that was the free exercise question that came up. they said this is outrageous discrimination on the basis of religion. the church is being discriminated against not because of anything it's doing, but because of what it is, of
church. don't worry, we are only talking about playgrounds. this case has nothing to do with anything else, but are they eligible despite their nature as a church for this tire program. so, just to writes a concurring opinion we cannot draw this distinction and what we are doing is authorizing public money to go to a church.
he wasn't just in his first term, the first two or three armonths in april this was junef 2017 decision, but there is linda uses the case to show how it was a case only around playgrounds because it ends up being a ticket too much broader rulings as the years unfolded. ruth bader ginsburg were the only two on the far left to fully dissent from the case.
she is part of the title and how and why you wrote this and the departure and the ascension. you were so close to justice ginsburg and i know you respected her on t the law and o much about her life. where did you end up coming down on her decision to retire? the worst you can say is that she placed a bad bet. she assumed hillary clinton was going to get elected in 2016 so it all the rest of us, certainly the entire establishment and.
president obama's second term or first term i think it was, we would have missed the entirety of the notorious rpg. what do we mean by that? she was a consensus seeker if not only the builder. her belief was speaking a modulated tone, rule narrowly, don't grow bigger than you have to, just to try to bring other
people along and if you have nothing in common, you know, you could learn from him, he could learn from you. >> 2007, 2006 actually, when justice sandra day o'connor retired given the calendar year 2006 and was replaced by justice alito, george w. bush. the court launched immediately and noticeably to the right a variety of questions including racial inequality and ruth ginsburg started becoming quite alarmed and upset and started writing increasingly. a few years later when the court
cut the guts out of the act in the shelby county case, she gave this dissent saying you don't need the voting rights act anymore it's like throwing away the umbrella because it stopped raining and this kind of thing. that was the last eight or so years of her tenure, and this happened at a time when we needed her voice. something was happening at the court. something was happening in american politics into somebody was going to have to call it out. just speaking as a citizen, i would have been -- i would have
felt cheated knowing i had missed that and as i say, with the changes of not too many votes and president hillary clinton wouldn't be in the state that we are in today. 2010 as the years she became the senior justice among the liberals and after justice john paul stevens retired and took that role really seriously. oi think that also emboldened r for the 2013 shelby county versus holder opinion. the liberals began trying to pressure her to step down and 2013 is a far cry from where she ended up in 2020 although obviously with great
consequence. there is another cultural aspect i want to ask about before we returned to abortion, and that is t just what happened during e covid time. we are so aware how they give the nine justices their identity. f in march of 2020, i do think that was an important development through these 12 months that you focus on and how do you think that covid affected them in a substantive way? >> it had to because meeting in person they get together on the
bench three days of two weeks out of every month between october through april. they meet twice a week where they are sitting. there's something about eyeballing your colleagues. the court canceled the argument on 2020 like this 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.
from those conferences it was zoomed in or phoned in or something. i am now mutated between the sections here but i want to make sure we spend time on abortion and for the oral arguments, they had to cancel two sessions because they were at the beginning of march. so they are creatures of habit and those kind of exemptions can rattle them, and i think you're
right. they play out in the cases that are more settled. it might have been a little bit more collegiality in some cases as we headed into this crucial term with just or not. our audience will be seeing this after we might have gotten a preliminary decision in the texas case on whether the state can try to insulate itself for any kind of judicial review in d the mechanism that it's built into a six week ban on abortion and essentially privatized public citizens to be bounty hunters of sorts to go after anyone who has assisted a woman in obtaining an abortion. that is all unfolding as we are speaking now, but as linda said,
december 1st the justices are going to hear a direct challenge in a mississippi case that bands abortion after 15 weeks into the reason i describe it as a direct challenge is because in 1973 in kc versus planned parenthood in 1992, the moment of viability was the cutoff for when the government could restrict a woman's access to abortion and viability is typically 22 to 24 months. excuse me, 22 to 24 weeks. would you have ever predicted that they would have allowed the texas six week abortion ban to take effect the way it did ask it's been nearly six months
since women have been deprived of this right and then address where youn think they will go with the bigger more substantial case that they will actually hear the arguments on in the mississippi dispute. >> i was shocked because they had already granted the mississippi case. the question in mississippi is the restrictions on the availability of abortion aste unconstitutional. so, texas has banned abortion after roughly six weeks. that's the question.
your neighbor can sue your doctor and all that. at the heart of the question, can texas restrict access to abortion in this manner? typically when the court has already decided something and they put that case on hold for the eventual decision in light of in the first case that's going toci be decided. so, in the normal course of things, what would have happened is the request for a stay in the texas case would have come up and the court would have stated just how things have played on the verge of taking affect would not take effect, but eventually the court would take that case if they felt it was necessary in light of what they are doing in
mississippi. the fact that they didn't do that says okay there's an agenda driving a bunch of them. it takes only four votes to hear a case that it takes five votes to grant a stay and it also just underscores the difference that amy coney barrett's ascension to the court in ruth bader ginsburg's seat what is meant because certainly as justice said in her dissenting opinion. the state of the implementation of the law and what eventually is going to happen in
mississippi i think it's clear. why else would the court have taken the case because there is no conflict in the circuits. the main marker for the court's willingness to hear the case accept about 70 cases out of the 6,000 that are filed every year, so it's a very precious review and scarce. they. granted the case without a conflict, without considering it for many months because they don't like the status quo being that i even as the circuit that struck down the mississippi law had to do c it because the law n the books as you explained about the viability is unconstitutional so why else would they take the question is how are they going to go about
overturning it. it seems they simply say 15 weeks is okay but we don't have to overturn roe5 v wade. i don't see how that adds up because h as you said, the viability firewall, before viability the state can make a woman walk on her hands, make a woman jumped through 20 hoops, stand on her head and do all kinds of stuff but at the end of the day she has an absolute right to terminate a pregnancy. once that firewall is breached, i'm not sure what happens next. one of the most common questions in one way or another that a justice and oral argument will ask what is your limiting principle that means if we buy what you're selling, what do we
do in the next case? what is the principal once you say it's not viability? it's got to come down to whatever we think about when life begins. that gets us right back into religion. somebody might believe it begins at conception. some might believe that it begins at implantation. somebody might believe life begins you know, at birth. i don't know. but it all comes down to somebody's religious and philosophical orientation to the question. as a constitutional or a moral matter but we cannot debate the fact that it is what it is.
she did. justice kagan and justice breyer versus go ahead and burn it down and how do you see that play 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 the role they conserve best is to maybe
modulate, somehow reach some of the justices to the right and as far as we know, that is there certainly been religion cases, eother cases that have turned ot to be more narrowly focused than one might have expected. because either stephen breyer had some kind of influence or magic spell all the others. i think she's given up on that goal and she has a different goal. that is to tell the truth to the american public as she sees it about the failings of the majority to call them out and to make a record. because none of us are going to be here forever.
just on the string of the 13 executions that the trump administration carried out in its last seven months, which is just astonishing, there's not been a federal execution for 17 years and suddenly there were 13 of them if the court did not intervene to stop any of them. she at the end of the day for the last execution listed all the names. it was a kind of save the names and she wanted to make that record. so it's very fascinating. justice ginsburg was with her on a number of those calling out moments. >> i'm going to close on another that will be justice breyer but before we get to that, i was
struck by your scrutiny of the justices arc when he first came in, he had some very sharp elbows. he elevated chief justice roberts to in some ways as i know you've documented yourself was seen as arrogant among some of the other colleagues but that he sort of toned it down a little bit, and there is one point where you are right that he was returned, sort of returned to his old self by the end of the recent discussion. he was the first appointee but he might have been another republican president's appointee. he didn't stand out asde much as the hard right at the time and how do you understand what he is trying to do?
>> i think that he is somebody that really thinks he's right and thinks that the chief justice is too much the compromise looking over the shoulder, caring about what people think aboutle the court. many of us might think that's the strength route goes with the territory if your name is on the door, but i think justice gorsuch was inpatient to to get the same things done he wanted to get done and justice alito, the kind of troll the chief justice and tweak and tweeze him -- tease him and i think that's because they are patient and don't want to miss an opportunity to go this far is what i think. a. >> do you think that justice
thomas is in the right place at the right time and do you see him as having more driven the agenda as the conservatives? >> i think his influence, influential inside the court and he's influential outside of the court. he is had more than 100 law clerks and it is astonishing how during the trump years they have ended up on the federal courts or in other very significant opinions including now thesi recently appointed solicitor general in the state of mississippi that's taken over the litigation and the former clerk justice thomas has a way of identifying issues signaling to the base.
the votes he is been joined by justice gorsuch but largely because he was already there when he came onto the bench. and justice breyer, whom i knowl you've known a long time since he became a justice and you knew him when he was a judge and maybe even when he was a harvard law professor. >> people askedut about that. this past year i think that the really rather disrespectful billboards of in washington and
the building he wasn't in but aside from that really had a h negative affect because i think it persuaded him that were he to retire it would have been seen as a political act. that's number one. number two, hee had a very successful term within the dimensions of what the term was. >> the in the last year of his
the client seriously after he stepped downn in 1981 replaced by sandra day o'connor and i remember its way before he became ill himself in 2005 that stepping down and leaving the bench especially the chief without one —- was without his wife at the time turned into a miserable life and cannot let it go and stephen breyer is one of the youngest 83 -year-olds that i know. and doesn't seem to have lost what it takes to be a justice. but it is a question going into a new term it would be crazy to leave midterm with that missed opportunity that
is constantly the source of chatter. liberals and democrats haven't been able to let go of it so i just want to ask you if there is anything you would like to mention why you got their attention? >> that is the most important parts of it. and the parts that i talk about in the book so with always a work in progress then
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