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The Human Factor on the Supreme Court

Reporter Linda Greenhouse talks about the people behind the law

By Geoffrey Mock

Tuesday, February 14, 2006

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Note to Editors: For audio excerpts from the talk, click here.

Harry Blackmun never wanted to be the signature legal advocate for abortion rights. He was supposed to be a “law and order” conservative, rising to the Supreme Court through the support of childhood friend Warren Burger and vetted by then Assistant Attorney General William Rehnquist.

But careers in law take strange turns, and New York Times’ Supreme Court reporter Linda Greenhouse said Blackmun was willing to follow where history took him.

“It’s my thesis that it was the assignment to write the Roe v. Wade decision, and Blackmun’s response to the public’s response to the decision, that made Blackmun’s legacy,” said Greenhouse, author of Becoming Justice Blackmun, a new biography of the late Supreme Court justice.

“The decision was unusually attached to him personally,” Greenhouse told a capacity audience at Duke Law School Monday. “He received hate mail in the tens of thousands, threatening him. On the other side, he suddenly was made a hero of abortion rights and of a women’s rights movement to which he had never signed up.”

Greenhouse, a Pulitzer-Prize winning journalist who has covered the Supreme Court for The New York Times since 1978, said Blackmun’s journey is an example of the human dimension of the Court, a dimension that is rarely seen in public but underlies much of its workings and influence. She spoke at a session on “Great Lives in the Law,” a public forum sponsored by the law school’s Program in Public Law to explore human achievements in law.

“When Blackmun wrote Roe v. Wade, he viewed the case as an issue of the legal right of doctors to practice medicine in the best interest of their patients without having to go to jail,” Greenhouse said. “He didn’t expect the decision to be so attached to him. He resisted this at first. It was a 7-2 decision, and he saw it as a collective effort.

“But the pressure was so relentless that ultimately he incorporated the decision into his own self-image as the creator of abortion rights law. The more embattled the decision became, the more he identified with it.”

The implications of this personal identification with the decision were enormous, Greenhouse said. It sensitized him to a wide range of issues, from women’s rights to First Amendment issues to rights of the poor.

“Many areas that on the surface didn’t seem to be related to Roe actually were,” Greenhouse said. “The first time the Roe majority broke was over whether states were obligated to pay for abortions for the poor. In his minority opinion, he scolded the Court that ‘there was another world out there’ that the Court had failed.”

Greenhouse also discussed the human drama in the 2003 case of Lawrence v. Texas, in which the Supreme Court struck down state laws against sodomy. Coming just 17 years after a previous case in which the Court dismissed the notion of homosexual privacy rights as “facetious,” Greenhouse noted the arguments marked an important cultural moment. She said that the section reserved for members of the prestigious Supreme Court Bar Association was filled to capacity with many gay men and women.

“The presence of all these gay men and women, all of whom worked for prestigious firms and who in many ways were quietly outing themselves, was remarkable,” Greenhouse recalled. “This was a community that was coming together in a subtle way. The Bowers case [17 years earlier] had been so hurtful that it had become a badge of dishonor.”

Many legal observers praise Greenhouse for her ability to explain technical details of the Court’s decisions to the public.

That’s important, said Duke law professor Christopher Schroeder at Monday’s session, because the Court speaks publicly only through its rulings. Unlike in other areas of government, there are no sources or leaks to provide context or deeper explanation. It’s up to the reporters to interpret the ruling.

Greenhouse, who took one year of law classes at Yale before taking the Court assignment, says that responsibility means she has to mix analysis with reporting.

“When I started I did stories that began ‘The Court ruled today 6-3 that …’ Today, I start by asking myself what does a New York Times reader need to know about what happened today at the Court. I don’t pander to the reader, but I can’t assume they know the context of the decisions or their implications. I build that into the story, and that requires some analysis. …

“I don’t have access to sources at the Court. I would love to have sources. There are questions even now about what the Court is doing that I would like to have answered.”

The big day comes once or twice each June, when the Supreme Court releases its most important decisions in large batches, sometimes five major decisions on a day. Duke law professor Walter Dellinger, who interviewed Greenhouse for Monday’s session, said he’s always astonished to open the Times the next day to find Greenhouse has written three 1,000-word articles in the time he has taken to go through one decision.

“I do it on adrenaline,” Greenhouse said with a laugh. “It’s a day of adrenaline and a lot of focused activity. I try to read the rulings at the Court, underline what I think is important so that when I get back to the office it’s all in my head to write.

“But of course a lot of reporting on the Court is in the preparation. If I’ve done my job right, I’ve followed these cases from the beginning, from the first petition through the arguments, so when the decisions come down I know the details intimately. It’s the preparation that allows me to read the rulings and know what roads the Court has taken and what are the roads not taken.”