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UW School of Law Transcript

Gates Public Speaker Law Series: Linda Greenhouse

May 3, 2010

Kellye Testy:

So good afternoon, everyone. I'm Kellye Testy, the Dean of the University of Washington's Law School. And it's wonderful to welcome you and to see such a wonderful crowd tonight. Really happy to welcome you to this event. It's part of the Gates Public Service Law Speaker's Series. And as I think many of you know, but I want to note here today, this event and this series as a whole is funded by a generous gift from the Bill & Melinda Gates Foundation. And that gift was in honor of law school alumnus and public service of general leader in law, William H. Gates, Sr. Obviously, also the namesake of this wonderful building that we occupy. And the Gates program is a significant part of our institution's overall commitment to public service.

In addition to funding five Gates Scholars each year to attend our law school, this program coordinates a speaker series to bring leaders from the public service community so that our students, all of our students, our faculty and legal community can all benefit from their voices.

Past speakers for this program have included U.S. Supreme Court Justice Sandra Day O'Connor and NAACP Legal Defense Executive Director Theodore Shaw. There have been many others, but I won't today name all those persons.

Today's speaker is Pulitzer Prize winning journalist, Linda Greenhouse, who spent more than 30 years covering the Supreme Court for the New York Times. And today I welcome you, Linda. It's wonderful to have you join our distinguished list of public service voices.

I also want to take just minute to thank the director, Michelle Storms of the Gates Public Service Law Program, for all of her terrific work. It's been a wonderful year of speakers, and it's great to be here this spring welcoming Linda Greenhouse for this series.

Introducing Linda today and also introducing our professor, Stewart Jay, who will conduct the interview, is Ron Collins. And Ron has joined the law school recently as the Harold S. Shefelman scholar. Will be working with us on a number of programs and teaching in the spring quarter of next year, Constitutional Law. Prior, he was a Fellow at the First Amendment Center in Washington, D.C. He has written widely on Constitutional law, the First Amendment and also on the Supreme Court. He has two books forthcoming on those subjects. And apropos of today, he's a long time friend of our special guest Linda Greenhouse.

So with that, Ron, let me turn the floor over to you. I thank you. I thank Professor Jay and Michelle Storms. And, Linda, I also give you a very warm, indeed a husky welcome to the University of Washington.

[applause]

Ron Collins:

Well, I'm Ron Collins. And what a joy it is to be here at the University of Washington and to do what I can to help out this wonderful institution. It is a pleasure to introduce an old friend, Linda Greenhouse, and a new colleague, Professor Stewart Jay, both of whom will participate in an interview touching upon many topics today. Those topics will range from journalism to Constitutional law, from Constitutional law to judicial selection and judicial decision making and other things.

And as you will readily discern, this latest installment in the Gates Public Service Law Scholars Speaker Series will prove to be both enlightening and engaging. And in that regard, let me just echo what Dean Testy said about the work of Michelle Storms. And again, a personal thank you for all your help. There are people behind the scenes that make these events possible. And Michelle is certainly one. So a kind thank you.

Before we begin, let me just say a few abbreviated words about both of our participants. Linda Greenhouse is currently the Knight Distinguished Journalist-in-Residence and the Joseph M. Goldstein, Sr. Fellow at the Yale Law School. Linda covered the United States' Supreme Court for nearly three decades for, as you know, the New York Times. During that time she published some 2,800 articles, 2,800 articles for the New York Times, covered 29 Supreme Court terms. Now if you do the math and think of the number of articles she did, and the average length of those articles, it's the equivalent of 22 average size books. Imagine that. 22 volumes on the work of the Supreme Court. I think, I don't know if you know you published that much but it's really quite a remarkable feat.

Linda Greenhouse:

I'm exhausted just thinking about it.

[laughter]

Ron Collins:

Ron: All those royalties you gave up with the 22 volumes. By all measures, her work represents the Gold Standard in legal journalism, combining both technical insight, which always pleased those of us in the bar with accessible pros, which always pleased late audiences.

Not surprisingly, in 1998, Linda was awarded the Pulitzer Prize in Journalism for her consistently illuminating coverage of the United States Supreme Court. And in 2005, Linda published a widely acclaimed book, "Becoming Justice Blackman: Harry Blackman's Supreme Court Journey." And next month, I'm pleased to say, will bring the arrival of her latest book, "Before Roe vs. Wade: Voices That Shake the Abortion Debate Before the Supreme Court's Ruling, " a work co-authored with Yale Law Professor Reva Siegel.

One more final comment about Linda, when she accepted early retirement at the end of the Supreme Court's term in 2008, seven of the nine sitting Justices attended a good-bye party in her honor. That was quite a feat. For as any Supreme Court lawyer will tell you, seven to two is a sweet margin.

[laughter]

Linda will be interviewed today by our own Professor Stewart Jay who has taught at the University Law School for nearly 30 years, a remarkable feat. Before entering teaching, he clerked for the Chief Justice of the United States, Chief Justice Warren E. Burger. Notably, Professor Jay's clerkship coincided with the time that Linda Greenhouse began covering the Court. So you have before you two seasoned court watchers.

Professor Jay's teaching and research interests include Constitutional law and Constitutional history. He is the author of, "Most Humble Servants: The Advisory Role of Early Judges," published by Yale University Press. And he's also the author of the forthcoming, "Mortal Words: A History of the United States Supreme Court."

Ladies and gentlemen, would you join me in extending a warm welcome to Linda Greenhouse and Professor Stewart Jay.

[applause]

Stewart Jay:

Thank you so much for coming.

Linda:

Pleasure.

Stewart:

I think it's just great that you can share so many insights you've had over 30 years. And a personal thank you from me. This is the first time I've ever had the chance to interview a journalist. It's always been the other way around. It turns out too, we didn't actually quite overlap on the court. I was there '77-'78. You showed up in the Fall of '78.

Linda:

That's right.

Stewart:

So we actually missed each other. Not that you would have noticed me, except that I was the long-haired guy off to the right hand side, you know, between the pillars there.

Linda:

Well, it's not that I wouldn't have noticed you, but we would not have had any contact because, as you know, the rule in those chambers, at least as I heard it described at the time, was the rule of 10. A law clerk would be seen talking to a journalist and you had 10 minutes to clear out and leave the building.

[laughter]

Stewart:

I think that probably was the unspoken rule in my chambers, yeah. Well, I was just thinking. You covered the Court for 30 years and through three Chief Justices: Burger, Rehnquist and Roberts. In a sense you saw an entire era with the Rehnquist Court. And thinking of those three Chief Justices: Burger, Rehnquist and now Roberts, is there a different tone in the Court that you've noticed with the three Chief Justices?

Linda:

Oh, yes. I think so. With due regard to your former boss...

Stewart:

You described as stuffy, as I recall, in one of your columns.

Linda:

Yeah. He was a complicated character. But the bottom line was I don't think he was terrifically well-suited to be Chief Justice of the United States. I think, he was very touchy. You know, a lot of people who are insecure kind of masked it with a kind of a pompous demeanor. And inside the Court was not a real happy place, certainly by your time there, there were a lot of internal tensions over his leadership and so on. Chief Justice Rehnquist, to the contrary, was, I think, a very good Chief Justice actually. He had a lot of practice, because he had been an Associate Justice for 15 years before he became Chief, and he had a chance to figure out what worked and what didn't work.

I actually wrote a lower view article a few years ago that I called, "How Not to be Chief Justice: The Education of William Rehnquist, " in which I posited that he took as his model what Warren Burger wasn't in various things. And I think he was regarded by his colleagues as a very fair administrator of the Court. Things ran well.

The kind of raggedness, chaos that you may recall from June of your term. That was a marker of the Burger years where every June, they would simply run out of steam and not be able to decide some cases that would be carried over to the next term, which meant under the Court's rules, they had to be re-argued.

That really never happened in the Rehnquist years. The only time they had re-arguments was when, not that they ran out of time, but they decided to enlarge the question or something like that.

Stewart:

Of course, the docket has shrunk a lot.

Kellye:

And the docket shrank under his leadership, under the Chief's leadership. Stewart: Under Burger, one of the reasons things sometimes got delayed is because there were so many more cases.

Linda:

That's right. The docket during the Rehnquist years, the docket shrank from about 160 merits opinions a year to 75. Big difference. So, maybe a question of Chief Justice Rehnquist recognized the Court's maximum institutional capacity, maybe, as an aspect of his leadership. We could discuss, there were a lot of other reasons why the docket shrank, some of which were external reasons. So, Chief Justice Roberts, I think, has had a somewhat rocky beginning. I think his stated ambition to be just the umpire calling the balls and strikes didn't quite work out that way. The Court is very polarized. I think the Court's reach has exceeded its grasp in a couple of cases they've undertaken to decide. The controlling four or five have been quite aggressive in their use of the Court's discretionary jurisdiction, in molding the docket and taking cases that are guaranteed to be polarizing.

So, that is counter to the Chief's stated aim to speak with a more unified voice and a lower profile. So, there's disconnect there that's pretty interesting, that I'm interested in watching unfold, and I think people who are interested in the Court would be well advised to watch it through that lens.

Stewart: When Roberts made that comment during his confirmation hearings that he wanted to be the umpire who calls balls and strikes and not pitcher bat, he says. He also said he preferred to be known as a modest judge, which he said means an appreciation that the role of the judge is limited.

The judge is to decide cases before them. They are not to legislate. They are not to execute the laws. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judge equally striving to live up to the judicial oath.

Linda:

Yeah, that's nice. That's good. Stewart: Well, number one, is it accurate that Supreme Court Justices call balls and strikes. And two, if it's accurate, and if it's, for example, accurate too that you're supposed to follow precedent, would you say Roberts has lived up to his self billing?

Linda:

Well, no. As indicated, I think that he hasn't. And the role of the... Well it depends on how you define what it means to call balls and strikes. The main marker for a case that the Supreme Court exercises it's discretionary jurisdiction to hear is a case that contains an issue on which the lower courts are divided. So, a lot of smart people in the federal system have looked at this issue and come out differently. So, in that sense, the Court is the umpire, or the resolver of the dispute. It's got to jump one way or the other. So, to that sense, that's simply a benign description of the Court's function to that extent. But does the Court exercise policy choices? Of course it does. It has to.

Because the law is something more than paint by numbers, despite what people say, including Sonia Sotomayor last summer at the confirmation hearing. "I just apply the facts to the law." Well, no, you define the law, and you choose the facts that fit your definition of the law, and you choose the cases, and you make up the country's legal agenda by choosing 75 or 80 cases out of the 8,000 cert petitions that reach you every year.

So the notion that this is just some automatic exercise that Justices do on automatic pilot can't be true. And if we look at the big picture cases that the Roberts Court has voluntarily undertaken to decide, the cases by which the Roberts Court is known so far don't fit any kind of definition of just calling balls and strikes or being on automatic pilot.

The Citizens United campaign finance case this year, where nobody had asked the Court to reexamine the precedents that the Court ended up undertaking to reexamine and in fact overruled. That was purely self generated.

And I think to my way of thinking anyway, the most telling case of the Roberts Court so far, which I'm sure is very familiar to folks here, the Parents Involved case, the Seattle and Louisville Schools case, where the Chief Justice's opinion, for which he could not hold a Court, way overreached, in my opinion, in finding that there was no compelling interest in the school systems of Louisville, Kentucky and Seattle to maintain integration in their public schools. No compelling interest.

And Justice Kennedy said, "I can't sign this opinion. This is more complicated than that." He said, "Of course there's a compelling interest." Kennedy said, "I don't think these plans are sufficiently narrowly tailored to serve that interest." But it's.

Chief Justice Roberts that wanted to speak for at least a Court, at least for five. He wasn't going to be able to speak for nine. He could have agreed with Kennedy and not written such a sweeping opinion as he did in overriding the democratic choices made by those two school systems that had had a lot of experience in dealing with these tricky issues.

Stewart: You described Roberts in that case as head edged, and you compared him to the young William Rehnquist when he was an Associate Justice. When he first came on the Court, he was a striver, shall we say. He really had an agenda, and he wrote some very extreme opinions. And your point seemed to be that later on, as the Chief, he somewhat mollified his views, like in the Miranda case, for example, kind of for the good of the Court, or for the good of the nation.

Linda:

Right. I don't think William Rehnquist ever mollified his views, in the sense. I don't think he ever changed his mind about anything, but he changed his strategy, or he developed a different sense of his role. And once he became Chief...

Stewart:

You don't think he changed his mind on Miranda?

Linda:

No. He certainly didn't change his mind. The Dickerson case that you're referring to...

Stewart:

I mean from 1972, did he change his mind?

Linda:

No, he didn't change his mind at all, but the case as it came to him... For people that don't know this case, a case called US against Dickerson. So, the question was when Congress in the years after the Miranda decision passed a statute that basically purported to overrule Miranda in saying that voluntary confession was fine. You don't have to give these warnings. So the question was, was that statute constitutional. And that question came up to the Court, and then it put to the test, well, was Miranda a constitutional hold in or not, and did Congress act within its own power in basically saying, forget Miranda? So, the Chief Justice writes an opinion saying, in fact, the Court has the last word on the meaning of the Constitution. Miranda has become stitched into our culture. Everybody has learned to live with it and Congress doesn't have the right to tell the Court how to interpret the Fifth Amendment.

I mean, I read that not as any kind of endorsement of Miranda but it was sort of an acquiescence to the fact that we have been living under Miranda for 40 years. But it was a statement of judicial supremacy which is very consistent with the Rehnquist Court and a whole line of federalism cases. So it was a reaffirmation that this is a Supreme Court says what the law is.

Now that's a disputed view. That's not necessarily the only way to read the Court's role and Congress is a coordinate branch of government that certainly under Section Five of the 14th Amendment has the authority to say what the law is, you know, to that extent, but the Supreme Court in these recent years has thought otherwise.

That's what that case was about, not the Chief Justice changing his mind about Miranda, I think.

Stewart:

And the Family and Medical Leave Act?

Linda:

Oh, so that's an interesting case, too. So that was a case of Nevada again, and the question there was when Congress and the Family and Medical Leave Act found the states to apply the protections of that act to their own employees. Did Congress have the authority to do that and did that violate some notion of state sovereignty? And there was a couple of recent precedents that indicated that answer to that was no, Congress didn't have the authority. And yes, it did violate the states sovereignty so it was quite a surprise when Rehnquist came out with the opinion saying that that's OK because this cuts to the core of equal protection. This is...

Stewart: He said it would prevent sex discrimination in the long run.

Linda:

Yeah.

Stewart:

But the evidence really wasn't any more substantial than in cases in which it doesn't support...

Linda:

That's correct and there I think it was a question of... Well, would he have had the votes to rule otherwise and I think not. I think Hips was six to three, right? So even if he had the other view and wanted to project the other view because he didn't have the votes to make it stick. I think that was an instance of his leadership as Chief Justice having a choice do you follow every one of your aspirations to their logical conclusion right off a cliff? And I think had the Court ruled otherwise in Hips, it would have called into question Congress' authority over core equal protection matters and would have been truly unsettling in its implications, even if not in the actual holding. I think he bore that in mind. It's a very interesting aspect of judicial performance in that case.

Stewart: Now a minute ago, you criticized Roberts. I guess the Roberts' group on the Court for taking deliberately divisive cases. Would you like to elaborate on that? What cases do you have in mind and what's so wrong about taking a case knowing that it's going to be very close if you think the case is important. For example District of Columbia versus Heller, the Second Amendment case?

Linda:

Well, I wouldn't say... Normatively, to use that buzz word. Not that's there's anything wrong with it it's just inconsistent with an announced desired to speak humbly and speak for a majority. So you can say yeah, it's really important or more particularly if you think it's wrongly decided below, which seems to be the case. Stewart: Did he really say in his conformation hearings that he wanted to be modest in the sense of speaking for a broad majority or just modest in his own approach to cases?

Linda:

Yeah. I think he said that not at his actual hearing but in other venues that he would like to be kind of a unifier of the Court and speak... He believed that it was good to have the Court speak with one voice and he would like to be the leader of such a Court. So I guess my only point would be you don't do that by stepping into cases like Parents Involved the Seattle and Louisville case where for instance there was no conflict in the circuits. Again, the chief marker of a cert ruling case. There had been three federal circuits that had looked at voluntary integration plans that were at issue in that case and all of them had said, OK, but yet the Court took it anyway.

Stewart:

Do you think that's because Roberts has a particularly strong view about race?

Linda:

Yes.

Stewart:

He made the comment in that case, or the quotation is, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Linda:

Yeah, and that wasn't even original with him.

Stewart:

Right. But it's a good quotation.

Linda:

Yeah, it's a good sound-byte. But as Kennedy says in his concurring judgment, you know, that's not the answer to a complicated issue like this. That's simply not enough to say. Yeah, I mean, what's interesting about Parents Involved is that the same issue had come up to the Court a few months earlier in a cert petition from a First Circuit opinion that upheld a volunteer integration plan in the Boston suburbs. And certainly here was denied. Well, so what changed between I guess December, 2005 and March, 2006 or whenever it was that they granted cert in the Kentucky legal cases? What changed was Sandra Day O'Connor left the Court and Sam Alito came on the Court.

So there seem to be a working majority to do what the Court ended up doing. It was very aggressive and it was very deliberate to tee that up and get hold of it, and go as far as they could go. The same thing a year ago with the Section Five Voting Rights Act case. The northwest Austin case, where the question was, "Did Congress had the authority to extend Section Five, the pre-clearance section of the Voting Rights Act for another 25 years?"

The answer would seem obviously to be yes and the lower court said yes. And the Bush administration says because that case came up with what's call a course mandatory appellate jurisdiction. The Court didn't have to take the case for plenary review in order to affirm that judgment and the Bush administration said just affirm.

Affirm vote. As the case comes up on your jurisdictional statement. They didn't do that. They granted plenary review. They argued it. It seemed perfectly clear from the argument that the Court was about to do something quite drastic. And to clear a pony rights act unconstitutional somebody blinked. I assume it was Justice Kennedy.

Stewart: You read the first part of that opinion and it sounds like their going to declare Section Five to be unconstitutional.

Linda:

They certainly were about to.

Stewart:

You're reading along and all of a sudden...

Linda:

Never mind.

Stewart:

Never mind, we're going to decide this on statutory grounds.

[crosstalk]

Is this one of those instances in which that first part of the opinion was originally going to be the opinion for the Court and then they couldn't get together the majority so it then changes?

Linda:

Well, I don't know the inside of it, but the ultimate result was your plausible on it's face. They basically rewrote the statute on it. And the way we have to go from here... You know, it's like very implausible. And inconsistent with the way the argument unfolded and inconsistent with granting plenary review to the case in the first place. So something obviously happened that warranted what I have to think was the Chief Justice's desire to weigh into this and curb Congress' ability to do what it wanted to do under Section Five of the 14th Amendment, but just wasn't able to do it in that case. Now they may have another chance. There's another Section Five case that I read just the other day has been filed and will work its way up. That may not have the out that was provided in the statutory re-writing. In that case, the case we're talking about the challenge to Section Five had been brought by a little sewer district that was not like a real jurisdiction, but if the case is brought by some other jurisdiction then it had already tried to opt out and was not able to opt out or whatever.

We're talking too much technicality for a general audience, but the...

Stewart: Let me ask you a step back question kind of thing. I know you thought my old boss was stuffy. But who would you rather have on the Court right now running it, Warren Berger or John Roberts? I mean, after all, on just about every case you mentioned, Warren Burger would have come out the way you wanted to come out. For example, in the Swan case, there is at least dictum in his opinion, that voluntary busing was perfectly OK, wouldn't have had any problem whatsoever.

Linda Greenhouse:

Well that was what 1970...?

Stewart:

Three, I think, '74.

Linda:

You know, query what he would say in 2010. I mean, '73 was awful close to it. I think it's just very hard, it's all kind of situational. Stewart: You would agree though, that he was not a doctrinaire, like either Roberts or Rehnquist, maybe because he didn't have the vision that they did about the way the Constitution should be shaped.

Linda:

Yes, I think that's fair.

Stewart:

Today with the Court so polarized, as you mentioned, and there are so many five to four decisions, as I think probably every litigant before the Court realizes, the key person often is Justice Kennedy. And so many arguments seem to be directed at Justice Kennedy these days.

Now as an observer of the Court, could you give some advice to the would be litigants in the audience here? What makes Kennedy tick? How do you get to him? What seems to influence him in terms of how he decides cases?

Linda:

Well I think Justice Kennedy is a very categorical thinker. In other words, if something falls into his category of fair and right and good, then it's yea. If something falls into his category of unfair, stigmatizing, whatever, then it's nay. So I think the challenge to a litigant would be to try to frame your case so that it falls into the category that's going to produce the answer from him that you want to produce. And so...

Stewart:

How do you know that? I mean we never discern any trends from the way he decides cases or things he says on the bench?

Linda:

Well he certainly thinks of himself, and is, a very speech protective, free speech protective Justice. I think statistically probably the most speech protective member of the Court for some years now. So if you've got a case that, you know, hinges on expression, speech, whatever, you want to make sure that it's framed that way. Now, I mean it's not always so clear. So the case form the state that was just argued to the Court last week, Doe against Reed, on the anonymity of the petition signers. So the people claiming the right to anonymity claim it under the First Amendment as a free association right. So how this plays with Justice Kennedy is not clear to me. I don't think it's clear from the argument.

So I don't mean there's always an easy answer. But he does have a sense of fairness that may not be somebody else's sense of fairness. So in the gay rights line of cases, in Romer and in Lawrence, those cases spoke to him about a regime that was basically unfair in treating gay men and lesbian as something less than equal citizens. So he's clear on that.

On the race issues, he's never, to my knowledge, he's never voted to uphold a government program that counts citizens by race, affirmative action, school cases, you know. So what's that about? I think he has a deep sense that for the government to count by race is inherently stigmatizing and belittling of all people.

Now one can dispute that, obviously. But that's his view. So if you've got that kind of case, you've got to labor if you're trying to uphold a program that takes race into account, labor probably unsuccessfully, but I guess it would be worth the effort to show him why what you're arguing for does not have the stigmatizing effect that he's afraid of.

Stewart: And how would you analyze his opinion in the case involving the death penalty for a child rapist? That was a very, very difficult thing for him to write I imagine.

Linda:

Yes. And the question there is if he knew now what he didn't know then would he have written the same opinion? So this is the case that came down two years ago, Kennedy against Louisiana, where the question was does it violate the eighth Amendment to have the death penalty for the rape of a child that doesn't result in death? Stewart: And it was a particularly horrific crime, this too.

Linda:

Yes.

Stewart:

The opinion goes into great detail about what was done to this young girl and it's really, really horrible.

Linda:

Well as the rape of a child would always be really horrible. So he applies, five to four majority written by him, applies the methodology that he had developed earlier in Atkins, the retardation case, in Roper the child murder case, which is you count by states. And the eighth Amendment says no cruel and unusual punishment, so what's unusual? Something unusual is the case that is the type of punishment that is not meted out very often. So he counts by states and he says there's just a mere handful of states that have a death penalty for this kind of crime when death doesn't result. And he says Congress has revised the Federal Criminal Code quite often in recent years, but yet Congress has never added the death penalty for the rape of a child. Well the only problem was...

Stewart:

It was wrong.

Linda:

It had. Within the last couple of years had added it to the Uniform Code of Military Justice that applies to the military. And nobody had brought this to the Court's attention. The Solicitor General hadn't even filed a brief, not recognizing any federal interest in the case. It was just a mistake. So, you know. Stewart: It was part of the methodology to count the states, but it was also, there was a part of his methodology which was well, quite apart from the number of states involved, we have duty to decide whether or not this is cruel treatment. And this is the part where Scalia most mocked Kennedy in saying it's just sort of whatever your gut tells you is right or wrong in a given situation.

That's a pretty powerful criticism. And then when you take into account that this is one of those unusual cases, unlike say, Lawrence, where you have states repealing sodomy statutes, that's the trend. Actually states had been reinstating the death penalty for child rape in relatively recent years.

Linda:

Oh yes.

Stewart:

And then you have the federal government. So is it possible that the trend could go in the other direction, or do you have cases, or are cases like this kind of a one way ratchet, in other words? We can never have the death penalty for a child rapist after this point? Whereas if the case hadn't been decided, maybe 10 years would have gone by and we would have half the states with child rape statutes.

Linda:

Well I think the counting by states methodology is problematic, partly for that reason. I mean it's a double-edged sword. But also I think this case brings up the issue of what's it, going back to Coker against Georgia, so one of the very post-Furman death penalty cases, the question comes up, can you ever have the death penalty for a crime in which death does not result? That was the rape of an adult woman. And the Court declared that statute unconstitutional and suggested, although if you really parse the opinion, it doesn't quite say that, but the received learning from Coker, at least, as I thought of it, as I think most people thought of it back in its own time, is that there's a bright line, when death has not resulted, capital punishment is not constitutional.

Stewart:

Right.

Linda:

Although we know in that case the court did emphasize, I don't know how many times, that it was an adult victim, in those case. This is very different. This is a child. I'm just wondering though about this, the entire methodology that sort of freezes things in place. And let me give you an additional fact that I got off a series in the New York "Times" a couple of years ago that one of my students sent me in my free expression class this quarter. Pedophiles now have very extensive Internet chat rooms, et cetera, in which they communicate. The things that are said on these sites are extraordinarily disturbing including large percentages of people in a discussion agreed that they would have full sexual intercourse with a child, say eight years of age.

Isn't conceivable that states looking at that kind of phenomenon and knowing that you really can't curb the speech, would say to themselves: "Good heavens, we had no idea the problem was as bad as this and these people are encouraging each other to act." et cetera, et cetera. Isn't it time to step in with the ultimate penalty? If your going to have the death penalty in other words...

Linda:

You mean for expression?

Stewart:

No, for raping a child. In other words, if people are willing to openly talk about raping children when they actually do rape children. If we're going to put some people to death in this society for murder, why is it such a leap to think that putting a person to death for the horrendous mistreatment of a child is really all that different?

Linda:

Well, there's a lot to say about this. There's a kind of hysteria right now on this subject but the fact of the matter is, a great majority of these crimes, I mean ninety-nine percent of them occur within the home as with this case. This defendant was I think, the step-father.

Stewart:

Step-father, yeah.

Linda:

It's very, very common. It's not the case that children get snatched off the street by people who have been excited by each other in chat rooms.

Stewart:

It's true, but why does that make a difference?

Linda:

Well, because...

Stewart:

Because the chat room discussion was all about having sex with relatives and kids that they knew.

Linda:

The family dysfunction is really the problem, not predators roaming the streets. These people are attacking their own kin and its tragic and horrible but I'm just not sure the death penalty is the answer to that.

Stewart:

Oh, I'm not sure at all either. I'm just wondering from the standpoint of constitutional law of the supreme court has now said that states absolutely don't have the option. That's the interesting thing.

Let's go back to another speech case. The court just recently has excepted the violent video case from California. Now what up with that? There's no split in the circuits. This is a case in which California passes a law making it illegal to rent violent video games to minors under the age of eighteen. The ninth circuit found it to be unconstitutional and now the court has taken cert.

What do you think is going on?

Linda:

I think it's pretty strange. It's a very strange grant of cert. It's an aggressive grant of cert. There's been six or seven reported opinions on statutes like this that have been cropping up everywhere. This is the new fad. It's whatever our troubles are in our country we trace them to violent video games. I don't think so but states seem to think so. I think there are people on the court who would like to have a say on the culture wars and this is kind of a...

Stewart:

Well, I'm wondering about that because I'm thinking, for example that probably at least three of the four would be Breyer, Scalia and Alito. I picked Breyer out because in the various Internet sex cases he's actually been quite sympathetic to regulation.

In this case, as least as I read the facts of it, this is simply saying is that if you're a video game place you can't rent to somebody who's under the age of eighteen. It doesn't prevent parents from renting and giving it to kids. It doesn't prevent adults from having access to the material.

Third, the argument is not so much that kids watch this stuff, get violent and go out and do something. It's just that it's really, really disturbing. The description and the opinion of the games that are banned, these are not games that I would have wanted my younger children to have been playing.

Could this be a case in which someone like Breyer says, "All California is doing is really trying to facilitate parents controlling the access of their kids to extremely disturbing types of games and what's the big deal with that?"

Linda:

I doubt that very much. I really do. I think the way the court is oriented today, I cannot imagine Stephen Breyer would have voted to grant in this case and I cannot imagine that if Sam Alito cobbles together a majority that Breyer would be part of it. Actually, I think California's justification of this law is based on junk science. They put up a bunch of supposed social science evidence of the harm to children of playing these games. To brief an opposition to cert written by Paul Smith on behalf of the video game industry it refutes that and shows it's junk science, there's no basis for it.

If you look at Richard Posner's opinion for the seventh circuit in a case a few years ago that struck down a similar ordinance passed by the City of Indianapolis, he says: "In this violent saturated culture, this notion that you are somehow going to protect our youth by keeping this one modality of transmitting violence away from them is not only factious on it's face but is doing a disservice to children." Well they're not children, it's up to age eighteen!

Stewart:

It's doing a disservice to children who can't play a game on which they are virtually killing people who actually resemble human beings?

Linda:

Well, it's pretty funny that these states that are happy to ban this game are much more reluctant to ban guns that really do kill people.

Stewart:

I'm curious though, when your kids were young, twelve or thirteen or something like that, would you have wanted them playing "Duke Nukem?"

Linda:

Playing what?

Stewart:

These are games in which you essentially are a shooter. You're like the guys in a helicopter that recently were a big part of...

Linda:

When my daughter was a little kid, I assure you, she didn't have the cash or ability to walk into a store and rent a video game. I like think I was in control of what was going on in the house.

Stewart

Ah! You see that's the problem. Lots of parents are not in control because they literally can't be there.

I don't quite understand why this law has such the objections you're are talking about. This is not a law that keeps adults from having access to things and it doesn't prevent parents from controlling access of their kids to very violent stuff.

When you say, "It's junk science," as I read at least the opinion, I haven't looked at the studies, they're all correlative studies. Kids who play violent video games tend to be more violent and so Posner says, that could be that they are playing video games because they're violent in the first place. Well, that could be true.

As a parent, I would be persuaded from that correlative evidence to keep my kids away from particularly hideously violent games.

Linda:

Fine. I don't think the state of California is a nanny, though.

Stewart:

That true but we're talking about a commercial product sold at a video store and basically, all California is saying is: "Bring your parent in to check it out."

Why is this really, in other words, harming the self expression of children that they can't play without their parent's permission, a game in which they're pretending to kill individuals who look remarkably human? Isn't sometimes that you just take the first amendment too far? To a point where people would say, "Well, that's not why James Madison wrote the first amendment." So kids could get...

Linda:

The first amendment is hard love in all it's manifestations. That's true.

Stewart:

Isn't there a huge difference though between political speech and making sure we have full access to the media for all of that and essentially saying: "You're under eighteen and want to watch an extremely violent video game? Get your parents to come in and sign a permission slip or something or rent it for you."

Linda:

Wow, you remind me of my old law professor Robert Force. He made a distinction between political speech, which has real protection, and all this other kind of squishy stuff which doesn't.

Stewart:

I'm talking about the distinction between minors and adults. We do have a long tradition, in example in the area of speech and sex, of allowing states to keep kids from having access to sexually related material. The old Ginsberg decision from the 1960s.

Linda:

Right. Do you think that case would come out the same way in light of modern use of obscenity?

Stewart:

Oh yes. Because Ginsberg is a case about literally a dirty book store in New York. And selling dirty books to kids. We don't even have a comparable setting of that. They get them off the Internet, that's a whole different deal. And the problem there is then adults are affected. Adults are then prevented from having access to things when you have Internet controls.

Saying a kid can't go into and adult bookstore and rent the material, I think Ginsberg would come out exactly the same way today.

But here's my point. It seems to me that when you talk about junk science and how little it supports the evidence about violent videos. Well my heavens it's even worse, isn't it, in the case of sex. I mean, what evidence is there really at all that shows that watching dirty movies or whatever causes any kind of violence to occur? Their really isn't any evidence. But still, we have this long list, long line of cases protecting children from having access.

Linda:

Well that was the point of my question that you know, the Ginsberg case is from 1960...?

Stewart:

67 or 68, something like that.

Linda:

Before the modern law of obscenity developed in the Court, and the courts today give so much wider berth for definition of obscenity than it did back then. And I actually am not sure the case would come out the same way. But in any event, what California is asking the Court to do in this case is to carve out of the First Amendment, make an exception, the same exception for violence that is made for sex. And I just don't see that.

Stewart:

It's actually Attorney General Jerry Brown asking this. It's not exactly Robert Bork asking.

Linda:

No it isn't. You know, I have a healthy respect for the power of video games. I once suffered from a major addiction to the wonderful game of Tetris.

[laughter]

Which of course has neither violence nor sex, it's just little pieces that you put together. But after I played this for a few months, I couldn't look at a skyline without seeing little Tetris figures.

[laughter]

And when I finally started crawling out of bed in the middle of the night to go down and play a round of Tetris I stopped cold turkey. I was just afraid of the power of my addiction. So I do, you know, understand the problem, but I just don't think it's the government's business.

Stewart:

All right. Well speaking of your night time activities, you once wrote a column in which you said when Justice O'Connor came on the Court, you were sort of mesmerized by her presence. But then you had dreams about her, she inhabited your dreams. Does that still happen?

Linda:

No.

Stewart:

Is Chief Justice Roberts now inhabiting your dreams or?

Linda:

I don't think so. I've had a couple of dreams about the President, but...

Stewart:

Now that it's been 10 years or so since Bush versus Gore was decided, have your views on that case changed at all over time? Do you think it still was largely a political job and unprincipled?

Linda:

Well I don't think I ever actually said that. Those are two things.

Stewart:

I'm just assuming that you thought that, but maybe I'm wrong about that.

Linda:

No, actually, I didn't. I mean I think it was unprincipled, in the sense that the plurality who declared that the problem was equal protection had never in their judicial careers ever seen anything else that they thought violated a principle of equal protection. So you know, to that extent.

Stewart:

Always a first time, I mean.

[laughter]

Linda:

I actually never was one of the people who thought that it was apolitical hatchet job in the sense that five Justices woke up one morning and said "By God, we're going to do whatever it takes to put George Bush in the White House." I really don't think so. I think it was more a matter of one of those studies of cognition where the difference between the majority and the dissent was one of perception of the extent of the political crisis that was facing the country. Where five of them I think were really persuaded that what was going on in Florida had no end in sight and was plunging the country into a political crisis. And the four who ended up in dissent thought well we have a law that deals with this, it goes into the House, and it's messy, but you know, the political system will work it out. And that is my opinion.

Stewart:

But is it better then just to have remanded it back to the Florida court and said "You can't use the standard you're using, figure out something different, " even though they knew the time was out?

Linda:

I mean I'm not justifying the opinion, but what I'm saying is I'm not a person who thought it was simply raw politics and I think the problem that they had in terms of continuing a recount is that it was running, you know, it was right up against the deadline for the Florida legislature to be certifying its electors. And so time was running out and they had a, somebody had to pull the trigger on it, I guess. I mean if one were of that mindset to think that there was a crisis that fell to the Supreme Court to solve, I don't personally agree, but you know, I am willing to accept that that was the sincere belief of the five.

Stewart:

Well we now have a looming confirmation proceeding. Of course we don't know who is going to be appointed yet. You once quoted Justice White as saying that "every time a new Justice comes to the Supreme Court it's a different court." With the Court so polarized now, and with this being Stephens' replacement, is it likely to be a different Court next year, do you think? And if so, how so?

Linda:

Well yes in the sense that Stephens had assumed for himself a certain role, and he, as the Senior Associate Justice, if his side was prevailing, he had the chance to assign the opinion and kind of shape the way the Court expressed itself. In for instance, the detainee cases in which he wrote a number of the majority opinions on. He played a heavyweight role based on his seniority and experience that someone's not obviously going to step into his shoes. I mean the Senior Associate Justice upon his departure becomes, if I'm not wrong, Justice Scalia. And after him, Justice Kennedy. And only after him, Justice Ginsberg. So it just kind of shakes up the order of things. Stewart: But Kennedy it sounds like is going to get a lot more opportunities to assign himself opinions, then maybe. I would imagine Scalia and Roberts will be together considerably.

Linda:

Right, right. Although of course a lot of opinions like that, Justice Stephens assigned them to Kennedy anyway, to hold him. So I'm not sure how much that will change. But it's just a different dynamic.

Stewart:

The President recently said, a quite startling statement, that without naming any particular cases, that some of the decisions back in the Warren Court were inappropriate, they were too aggressive on the part of the Court. What's he thinking about? Do you have any idea?

Linda:

That was a sound bite that was a casual remark by him on an airplane. And it's provocative.

Stewart:

Barak Obama makes casual remarks?

Linda:

I would like to see a fuller transcript or get some sense of what he really meant. I wasn't satisfied with the stories I read about that. I think they were extrapolating and ascribing to him a kind of a thought-out view that he wasn't expressing. You described that he said they were inappropriate. I don't think he said they were inappropriate. I think he said they engendered push back, which is objectively true. I don't think he was saying they were wrong. But I'm not sure what he was saying because he made like a 15 second remark and people were writing a thousand words about it.

Stewart:

Do you think it would be for the better of the country if he did not nominate someone from the Northeast power corridor?

Linda:

The better of the country?

Stewart:

In other words, isn't it time we got at least one judge on the Court from the West?

Linda:

Yes, I think, well Kennedy is from the West Coast. Stewart: Well not any more but I take your point.

Linda:

Yes. No I think it's surprising how it's all kind of devolved into the Harvard - Yale corridor. You know, whether the country is better or worse off, I don't know but I think it would be helpful to have a little more diversity of resume on the Court. Stewart: Can you elaborate? How so? What have we lost from having the Northeastern's Ivy League types run the Court for so long?

Linda:

Personally, I miss Justice O'Connor's voice and grounded sense of things. Not necessarily because she grew up on a ranch in remote Arizona, but because she had served in an elected office, she had run for office. She was a state court judge. She never lived on the east coast until she was named to the court. So, I think that's a perspective that was helpful.

Stewart:

But it sounds like everybody now wants kind of a career judge. There will be a tremendous impetus for that. What's happened to the idea that you get an Earl Warren, who...

Linda:

Well that's right. What has happened to it? I think one thing that's happened is in our polarized state, presidents and senators think they want to know what they've got, and they think they'll know what they've got if they have a sitting judge who has a body of opinions, a body of work.

That's not necessarily true, it seems to me, because things look very different from the perspective of the Supreme Court from what it does on the lower courts where you're really applying Supreme Court precedent to the cases in front of you. You're not establishing precedent. So, I'm not sure how enlightening it is to just limit your search to city federal judges, but I think that's happened.

Stewart:

The president is now constrained. I'm just thinking about, back to Stevens. Stevens was nominated in '75. He had a very brief confirmation hearing. I think he was appointed and then confirmed in about three weeks. He got not a single question about Roe versus Wade, and he was confirmed 98 to nothing. Now, that's not going to happen again.

Linda:

No. I think no matter who the president nominates, there will be a couple dozen republican votes against, as there were against Sotomayor for no particular reason. So, that's where we're at. Stewart: What does that say to us about, as a culture? Have we now reached that point where you have to have some kind of a track record, but the track record has to be extremely innocuous in some fashion? The peculiar thing to me is that, with Scalia, for example, and then Thomas, we pretty much got exactly what we expected from them. Are there really any more surprises in appointments these days?

Linda:

Well, we've had the last couple, but foreseeably there could be. People define surprises different ways. Some people say David Souter was a surprise. I don't think he was, actually. Stewart: Well doesn't Souter kind of prove the point though? After Souter, it seems like the motto is, we don't want anybody like that again. We don't want anybody who is unknown to us, and although Roberts had barely been on the DC circuit, they sure knew plenty about him from inside the Department of Justice.

Linda:

Right.

Stewart:

They knew he was a true believer, and they knew Alito was a true believer. And they certainly knew before that, Scalia and Thomas were true believers. Have the conservatives been better just at putting the people on the court, that they know what they're going to get. Putting Souter aside, who they recognize was a mistake.

In other words, I guess I'm putting this badly, but is Obama in the position where he can't pick somebody like that. He has to pick somebody who is, in some ways... Maybe an Elena Kagan. We don't really know very much about her views, but you know she's smart. But you can't really pick someone who has an especially strong record on things.

Linda:

Well see, you could argue it another way. You can say, well, if there's going to be 30 republican votes against the nominee anyway, pick any old nominee. Because no matter who you pick, they're going to vote against, so just go ahead and do what you want. Stewart: We have some questions here. I don't know how well you know Justice O'Connor, but here's a really good question. Maybe you know her personally enough to answer this. Do you think O'Connor regrets retiring when she did, i.e. because of the trajectory the Court has taken since.

Linda:

Justice O'Connor is a very forward looking person, and she doesn't waste time regretting what can't be undone, but I think she's expressed herself publicly in some dismay about what the Court's been up to. So, she did what she could, she had to do, but I think it's not turned out the way she would've wished.

Stewart:

One person wants to know what you read to gain insight on the Court's decision making processes, other than the opinions, of course. Maybe you can give the audience some suggestions of books that you would recommend on the Court that you found to be particularly insightful. Other than your own book, that is.

[laughter]

Linda:

My own knowledge of the Court really comes from all those years of close observation, not secondary literature. But if people are looking for a good one volume modern treatment of the court, I think Jeffrey Toobin's book, "The Nine" is quite good. It's a good read. I think Joan Biskupic's new biography of Justice Scalia is quite good. So, there's books out there.

Stewart:

Who do you think is the best writer on the Court now now and why?

Linda:

I think Justice Ginsberg is a very good writer. She's very precise, takes a lot of care with it, writes in very accessible declarative sentences. Justice Stevens is a good writer.

Stewart:

What do you think of Scalia?

Linda:

Well, he's a very quotable writer in dissent. When he's writing for the Court, when he has the majority opinion, yeah, he's OK. Nothing special.

Stewart:

One last general question, because we're pretty much out of time. You wrote on your retirement from the Times that for the previous 29 years or so, each year was like a mountain. So, you start the year, you start climbing. And I guess the mountain has some ups and downs as you go up, and then you finally get to June, and I suppose it's the last couple hundred yards until you get to the top of Everest.

And you probably felt like you were out of breath and struggling to get to the top. And you also said that you were suffocating in paper. That's another reminiscence you had of the Court. And you said, 'My job was to climb the mountain, so this time, I can survey all the mountains.' And I have noticed that your writing in the last two years has changed rather substantially from the 2800 or so before that. You've now become much more of a critic of the Court.

Linda:

Well, I've been hired to be a commentator, not a reporter. Stewart: Right. What I'm wondering is, two years later, have you been able to see the mountains, and what did you see that you didn't see when you were down in the trees?

Linda:

Well...

Stewart:

Or down in the foothills, I suppose.

Linda:

The task I've set myself now is to really try to pay as much attention as I can to the evolution of the Roberts Court, which obviously is evolving. So, whether we'll ever have a period, as we did with the last 11 years of the Rehnquist Court with no change in personnel, so you could see the whole national court do its work. And to that extent, you had a perspective on it. Because it's still changing, no, I don't feel that I'm at the end of a paragraph even, let alone a whole story, which makes it interesting. Changing every...

Last updated 8/4/2010