lgreenhouse Female Speaker: From the Library of Congress, in Washington D.C. Female Speaker: Our next speaker is Linda Greenhouse. She is currently the Knight Distinguished Journalist in Residence and the Joseph Goldstein Lecturer in Law at Yale Law School, but many of you may know her from her many years covering the Supreme Court for the New York Times, what she did from 1978 to 2008. And she continues to write a bi-weekly column on law for the Times. Miss Greenhouse has received several major journalism awards during her career, including the Pulitzer Prize in 1998, the Goldsmith Career Award for Excellence in Journalism in 2004, and also in 2004 the John Chancellor Award for Excellence in Journalism. She is the author or co-author of three books, "Becoming Justice Blackmun, Harry Blackmun's Supreme Court Journey" which came out in 2005, "Before Roe v. Wade, Voices the Shaped the Abortion Debate Before the Supreme Court's Ruling" which she co-authored with Reva Siegal, and that was published in 2010, and then most recently this year "The U.S. Supreme Court, A Very Short Introduction" which provides an overview of the Court and unmatched insight into how the institution really works. So without further ado, please help me welcome Linda Greenhouse. [applause] Linda Greenhouse: Thank you, and thank you all for coming. I've never been to the festival before, and I sort of had an image of 20 or 30 people sitting around in a little tent. The Court's pretty hot, so I'll take this as a testament to how interested in the Court, not necessarily in me, but maybe I should just start up by orienting people to what this little book is. It's part of a series that Oxford publishes called "A Very Short Introduction", and they are really short. They have about 300 titles, and they asked me to do a Supreme Court title. I guess about three years ago. And the book came out this spring, it came out really on the eve of the healthcare decision, so who knew three years ago that we'd be faced with the Supreme Court dealing with the most closely watched and maybe most contentious case in many, many years, and I'd be happy. And of course the book doesn't say anything about the healthcare case, so in the Q and A, I'd be happy to share some conversation about that with you. But I thought I'd just kind of step back and give a little bit of my take on how the Court has gotten to where it is, not so much current events but really looking back. The book starts with a little history. It's not a book of history, I'm not a historian, I'm a Court watcher is what I think of myself as. Kind of a Court groupie. But one thing that's so interesting about the Court when you kind of step back and look at it is the extent to which the Court has really written its own story. It's the author of its own story, but which I mean that article three of the Constitution which set up the Federal Court System really tells us almost nothing. It's far from a roadmap. It simply says the Judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. And that's it. So the article three, the Judiciary article, doesn't even mention the Chief Justice. We know by inference that there is such an office as Chief Justice because elsewhere in the Constitution we're told that, when the President is impeached by the House and tried by the Senate the Chief Justice shall preside over the Senate trial, and you remember Chief Justice Rehnquist with the sparkled stripes presiding over the impeachment trial of Bill Clinton. But what the Chief Justice's role is, in fact even how the Chief Justice is to be appointed, in the Federal Circuit Courts, the Courts of Appeals, you become the Chief Judge by seniority, so maybe one could have become the Chief Justices by seniority but no. President George Washington thought otherwise, and actually nominated a Chief Justice, John Jay in that case, by separate commission. And so that established the pattern that someone gets nominated to be Chief Justice instead of just rise up through the ranks. And beyond that it's sort of how the Court operates, what it conceives of as its jurisdiction. For instance, many high courts around the world can give what we would call advisory opinions to the Executive branch of their government. Or the Legislative branch can say then, "You know, if we did such and such a thing, would it pass muster?" and they say yes or no, and if the answer's no they go back and re-do it and bring it back again, and it kind of works that way. Our court very early on established that it would not issue advisory opinions. That there had to be an actual case or controversy, an adverse dealing between two or more parties before the Court would take up the case, and that's really quite important in terms of how a power or law developed and the relationship between the branches. Judicial Review, the ability of the Court to examine an Act of Congress and strike it down if it's unconstitutional, we take it for granted. The modern Court has done that with some frequency, and of course was asked to do it this spring in the healthcare case. Well, John Marshall famously declared that it was the power and the duty of the Court to say what the law is, and that was an expression of his understanding that the power of Judicial Review was inherent in our Constitutional system, that that wasn't self-evident at all. So that's the power of limits on jurisdiction that somebody has to have. The standing and all the doctors that limit jurisdiction, that's another thing that the Court basically made up. And you know, other courts don't necessarily have that. For instance, a few years ago I took a very interesting judicial trip to South Africa, which has a fabulous Constitution, modern Constitution, and a wonderful Supreme Court. The South African Constitution gives the South African people all kinds of positive rights. A right to housing, a right to education, a right to health, a right to a job, and all this. Our Constitution of course doesn't. Our Constitution is a Constitution of negative rights. The government shall not. The Bill of Rights. The government shall not, shall not, shall not. It's negative rights against the power of the government. South Africa, positive rights, and the Supreme Court there has no limit on jurisdiction. So somebody can come into court and say, you know, the Constitution promises me a job and I don't have a job, what are you judges going to do about that? So, you know, on one hand it's very wonderful not to have these barriers, on the other hand it's quite a problem for a court because the Court cannot actually effect giving that plaintiff a job, and so it's left in this situation where there is lots of promises that have been given that the Court can't fulfill, and so there's a gap that's grown of expectations and failed promises, and you know maybe John Marshall and our early justices saw around that corner, I don't know, but they decided early on that there were going to be barriers to entry to the Court. So the one last kind of historical point I'd like to bring to your attention is the extent to which the modern Supreme Court sets its own agenda, and that's really important, it's a really important and I think overlooked aspect of how the Court behaves in terms of judicial behavior, and how the Court interacts with the rest of the government and the rest of American society. As most courts, the Federal Courts of Appeals and most courts people are familiar with, have to take what comes. And that was true of the Supreme Court for quite a long time, the Supreme Court was basically a court, the high court of error correction. If somebody could persuade the Court that something went amiss in the lower court judgment the Court would have to take that case and have to make some kind of decision. But in 1925, Chief Justice Howard Taft, who first had been President, he's the only President ever to become Chief Justice, and he was a very savvy player of both Judicial and other kinds of politics, persuaded Congress to change that. In 1925 a piece of legislation that's commonly known as the Judge's Bill gave the Court a great deal of discretion over its stock, and that discretion has grown both by statute and by practice in the intervening decades. And so today we have a Court that receives about 8,000 requests for review, they're known as Petitions for Certiorary, every term. And from that 8,000 they take about 80, so the grant of review is a pretty scarce resource, and the Court deploys it very scarcely, and also in a way that you might say reflects the judgment of the Justices as to what needs deciding by them. So, for example, a case that's going to be heard the week after the Court reconvenes next month, October, for the new term. A case called Fisher verses the University of Texas, is a challenge to affirmative action in higher education admissions. You may remember back in 2003 the Court had a major case on this subject from the University of Michigan, and upheld affirmative action to the University of Michigan Law School with an opinion by Justice Sandra Day O'Connor which concluded by saying the country has about 25 years to figure this out and we're not going to get back into this for 25 years. She didn't say that explicitly, but that was the message. Well, 2003 to 2012 is not quite 25 years, but it only takes four Justices to vote to hear a case, and there are four justices who evidently think that it's time to get back into this, and you've probably haven't heard much about this case yet because the airwaves in terms of the Supreme Court have been so filled with healthcare, but once the term begins and the case is going to be argued on October 10, you'll start hearing a whole lot about affirmative action and a whole debate will be rehearsed all over again. And so the Court's ability to sort of tell us what to think about in terms of the legal docket, the legal agenda, is really very powerful, and also what not to think about, a whole range of issues that the Court doesn't get into, it's now been more than five years since the Court, well four years, since the Court decided a case coming out of the detention structure at Guantanamo Bay. Haven't heard much about that lately. So just to segue for a minute to healthcare, the healthcare case was an example, I think, not of the Court engaging in that kind of agenda setting as with affirmative action but the case of the healthcare case, a Federal Court of Appeals had declared the law unconstitutional, and so one thing that the Court feels it has an obligation to do in a situation like that is to give the government a chance to defend an act of Congress that the lower court has declared unconstitutional. The Defense of Marriage Act has been declared unconstitutional by a number of federal courts, and appeals from those judgments are now before the Supreme Court not brought by the government because the Obama Administration also believes that that law is unconstitutional, but brought by the House of Representatives which has the right to defend an act of Congress that the President chooses not to defend, and I think it's a sure bet that the Court's going to undertake review of the Defense of Marriage Act. Again, because there were judgments on the books of the lower courts saying that it's unconstitutional. So, again, that kind of agenda setting function, what we're going to be hearing about, debating, talking about, and ultimately getting a decision really lies within the power of the Court and it's a very major, and as I said, underappreciated power because one question it raises, really, is "How do the Justices know what's important? How do they know what they should be deciding?" Well obviously when people bring in appeals to the Supreme Court they kind of lay out the case and the format of one of these petitions, questions presented, they have to tell the Court what it that the what it is that they want the Court to decide. They've got 30 pages to make their case, not necessarily that they should win but the Court should hear them out. But you know, that's very limited, and the Court as an appellate court doesn't have fact finding ability. You know, the Justices live in the world, they don't live the kind of sheltered lives that other government officials who exercise the kind of power that the Justices exercise have. You know, they live in their own houses, they drive themselves to work. You know I used to see Justice O'Connor in Stroniders [spelled phonetically] back when I lived in Bethesda, so you know they're out there. But how do they know what they think they know? And there's one rather recent example of kind of a failure, institutional failure of knowledge that I think is kind of interesting. Was about four years ago, there was a case before the Court. That case was called Kennedy against Louisiana, and the question of the case was whether a death penalty law that imposes the death penalty on somebody who has raped but not murdered a child, so death penalty for a non-murder offense, whether that's constitutional or whether that's cruel and unusual punishment under the Eighth Amendment. So the Court took this case and the Court say if the Amendment shows prudence in similar cases such as the death penalty for people with retardation, the death penalty for people who committed murder as a juvenile and so on, what the Court typically does is, you know, what's cruel and unusual? What's unusual? So the Court kind of surveys the landscape and looks at the different State statutes and decides what's unusual, and then goes on to make an Eighth Amendment judgment. So in the case of child rape without murder, just a handful of states had such a law on the books, so Justice Kennedy wrote an opinion for a five to four Court declaring this Louisiana law unconstitutional, and in the course of this opinion he said, you know, "We've looked at the state laws, there's only a handful of states that have this, and the federal government doesn't have it. And even though Congress has revisited the federal criminal code many times in recent years it's never added child rape as a capital offense." Except that it had, but nobody had told the Court. Just a year before this decision Congress had added child rape as a capital offense in the Uniform Code of Military Justice, the UCMJ, which is the legal code for armed forces. And nobody had brought this to the Court's attention. The Solicitor General, Justice Department official who represents the interest of the federal government before the Supreme Court, had not even filed a brief in the case. Obviously when the case came up nobody in the whole federal legal establishment thought that the government had any kind of stake in it whatsoever, and I found out about it because of somebody I know who's a military lawyer, knew the law and had blogged about it after the Court had already recessed for the summer. So I called up the lawyer and the Solicitor General's office to ask them about this. I said, "So, I see you didn't file a brief in Kennedy against Louisiana." He said, "Yeah, that's right." I said, "I guess that's because you thought there was no Federal interest in the case." He said, "Yeah, that's right." Said, "Suppose I told you that the UCMJ was amended last year to include capital punishment for child rape." And I cannot quote here in this audience. [laughter] Linda Greenhouse: So, this was in my kind of final days as a daily reporter at the Times, wrote a story about it and it led to all kinds of hand wringing, and Louisiana asked the Court for a rehearing, and the Court took new briefs, and so on and so on. And they did not actually re-hear the case, they re-issued the opinion with the same five to four, with a little footnote acknowledging, "Oh by the way, we take notice of this, but it doesn't change our opinion." So, you know, doesn't add up to anything, but I wanted to mention as an example of the limits of the Supreme Court's knowledge because they can't send people out into the field to say, "What the real story behind this, that or the other thing?" They rely on the briefs as an appellate court. Any appellate court does. They're not fact finders, and so when you see the Court exercising the power to set the country's legal agenda it does kind of leave you scratching your head, you know. Well, how do they know what's important? So one way they might know what's important is what they bring to the Court from their own personal or professional backgrounds when they get nominated and confirmed to the Court. And that's an interesting subject because the collective biography of Supreme Court Justices has changed a great deal over time. Back in the old days, for instance. Well in the old days they were all Protestant white men, so we'll take that as a given. Nobody thought about diversity as we might think about it today. But they did think about other kinds of diversity. For instance, they thought a lot about geographic diversity, that there always had to be a Southerner on the Court, and a Westerner and so on. And no we really don't think about that at all. I mean, most of the Justices today are from the sort of northeastern quadrant and we don't really think about that. Justice O'Connor and Chief Justice Rehnquist were both from the rather small state of Arizona. We don't think about that. So I think that reflects the fact that we're no longer a country that's really, you know, caught up in the geographic differences among us. And you could say the same thing for religion. So right now, as you may know, Justice Stevens who retired two years ago was the last Protestant on the Supreme Court, and we now have a Supreme Court of six Catholics and three Jews. I mean, how did that happen? Well, there are some ways you could suggest that it happened, but what it certainly reflects is that we don't care that much anymore about, sort of counting by religion. We do, of course, are still very aware of race and ethnicity and gender, so the fact that there are now three women on the Court, you know that says something. That's approaching a kind of a normalization of the notion that women can rise to the highest ranks in the legal profession. I think we're still waiting for more diversity in the Court, and race and ethnicity. But the point I actually want to make going back to how does the Court know what it knows, is until Elena Kagan joined the Court and succeeded Justice Stevens two years ago she had never been a judge. She came from the Dean's Office at Harvard Law School. Every single member of the Supreme Court for the first time in our history had as the last thing on their resume a seat on a Federal Court of Appeals. And that's really astonishing. I mean there are lots of ways to be a lawyer in this country. For instance the Warren Court, at the height of the Warren Court, there was not a single member of that court who had been a judge. A judge of anything. And Justice Brennan came on the Court and had been a judge on the State Supreme Court in New Jersey. But Earl Warren had never been a judge. He was three time Governor of California, he had run for Vice President on the national Republican ticket, he's a major political figure. There were Senators, there were former Cabinet members, there were all kinds of people who had been deeply involved in the life of the country who end up on the Supreme Court. Justice O'Connor, who retired in 2005, she was the only member of the Court that she served on who had been in elective office. She had been the majority leader of the Arizona State Senate. And there's nobody now who's ever had to face the public and, you know, for some of them I'm sure that's a good thing. [laughter] Linda Greenhouse: But it, you know. It's kind of a narrowing of a professional biography that's pretty interesting. And what that reflects is the current state of our confirmation process, I think. Presidents don't want to take a chance, and how do you not take a chance? Well, you get somebody who's already been acting as a judge and you get to look at how they performed as a judge, and how they deal with legal materials, and how they comport themselves and so on. That kind of a very rough proxy for how they might behave on the U.S. Supreme Court, of course because the lower courts are bound by Supreme Court precedent, and they cannot sort of go off on their own frolic. And once you're on the Supreme Court, you know, they all pay homage to this notion you've heard, "stare decisis," to stand by precedent. But it doesn't mean they have to. They really can do whatever they can cobble up five votes to do. So a very sort of precedent-bound seeming lower court Judge doesn't necessarily get onto the Supreme Court and just stick to the way things have always been done. But it's a rough enough proxy that gives Presidents a kind of comfort level and I think if somebody's been a judge that means they haven't been running around the countryside giving provocative speeches. They haven't been writing provocative articles. They're kind of a known quantity, and kind of that's what it's come to. The confirmation process, you know, is a very depressing subject. I mean, it's depressing in the lower courts really from both sides. I mean, the Obama Administration's been very slow to nominate judges to the lower courts, and the Senate has been terrifically obstructionist in a way that's really very new. There's always been fights over the Federal Court of Appeals, but this in is blocking nominees to the district courts, to the trial courts, and I think with an eye toward sort of making sure there's not a Democratic bench of judges on the lower courts who are plausible Supreme Court nominees if a vacancy occurs. There's kind of a new paradigm. It used to be, and I used to give talks about this, that as long as the President stayed within the sort of boundaries of the existing political consensus and nominated somebody within those boundaries, didn't try to push the envelope and achieve by Supreme Court nomination something that couldn't be achieved through the political process, that President was in safe territory. So you think of, for instance, Bill Clinton's two nominees, Ruth Bader Ginsberg and Stephen Breyer. They got confirmed with almost no controversy because, you know, Clinton could have gone far to the left if he chose. There were certainly, you know, potential nominees who were to the left of Ginsberg and Breyer, but he went to the middle and they were confirmed with, at most, a handful of opposition votes. But in President Obama's two nominees, where he really used the same strategy, both Sonia Sotomayor and Elena Kagan were totally mainstream nominees. Sonia Sotomayor had I believe 17 years as a federal judge. I think more judicial experience coming to the Supreme Court than any nominee in recent history. You know, highly qualified. Elena Kagan high qualified. I think, and my numbers may be off a tiny bit, I think in Sotomayor's case she got seven Republican votes. I think Kagan got five. So, you know, what is going on with the confirmation process? Well, I'll tell you a little story that I heard about the Sotomayor process that really is a wakeup call for how broken the system is. So it had appeared right after her nomination that she was going to get a lot of Republican votes, maybe most Republican votes in fact because she was, you know, a very attractive nominee. -- Place here just a little bit of water, excuse me. And Mitch McConnell, the Senate Republican leader was quite upset by the idea that many in his party might vote to confirm her. That wasn't the record that he was trying to make. So he went to the National Rifle Association and he asked them to, quote, "score the vote," so if any Washington insiders are, you know, that scoring the vote means it's a vote that an interest group, whether it's the N.R.A. or the ACLU or whatever will list on their final run-down on the Congressional session how did members of Congress do the issues that really matter to us. And so that matters a great deal to the adherence of that particular interest group. And the N.R.A. had never scored a vote on a Supreme Court nomination, and they had no reason to even take any interest in Sonia Sotomayor's nomination because, of course, as a lower court judge she had never been in a position to make any judicial policy on gun rights or, you know, gun issues. But they agreed to go along, and they scored the vote, and that's what accounted for the fact that she only got a handful of the Republican votes. So, you know, I can no longer give my little spiel about as long as the President stays within the mainstream because mainstream doesn't matter anymore. It's really, it's all politics, and part of it goes back to the battle over Robert Bourque, which maybe some of you are old enough to remember in 1987, where President Regan did try to use that appointment of Robert Bourque who was a leading conservative intellectual of his day, to press beyond the bounds of what the Regan administration could have gotten from a Congress that, where the Democrats had just taken back the Senate. It was a huge fight, and it was really a fight over defining the mainstream. You know, is it part of the mainstream to have a judge who criticizes Griswold against Connecticut, the 1965 decision that established the right to birth control? Most people think that was a pretty good decision, but Bourque thought it was a very bad decision, and so the Bourque battle focused on a few key things like that. It was a big Constitutional teachable moment for the country, and people have drawn very different lessons from it. But I think what it told us is that the, quote, "mainstream" remains a very contestable concept. So what's going to happen next with this confirmation process? I mean, I was a little surprised. The New York Times has a wonderful interactive tool up on the website where it has one of these clouds of how many times particular words were spoken by anybody speaking at either the Republican National Convention or the Democratic National Convention, and you could put in any phrase into this and see how many times various words were spoken. So I used the tool and I typed in "Supreme Court", and it came up zero times for the Republicans and zero times for the Democrats. So, you know, even though we all know that whoever wins this November is most likely going to be in a position to shape the future of the Supreme Court. Nobody mentions, I mean not just Romney and Obama, but nobody who spoke at either of those conventions mentioned the words Supreme Court. So, you know, I hope you being in this tent means you're interested enough in the subject to kind of think about it. It's very, very strange. But one thing I will mention is there's an insipient debate going on in the country over life tenure for Supreme Court justices. Nothing is going to change right away, but it's a conversation that we haven't heard for quite a long time, if ever really heard it fully fleshed out. You know, it's very interesting, the emerging democracies in the world and many old democracies too that have constitutional courts have adopted many, many ideas from the U.S. Constitution and the U.S. Supreme Court. The one thing that none of them has adopted is life tenure for their high court judges. They all have either a term of years or an age limit. And so, you know, there are a number of scholars and some politicians starting to scratch their heads and saying, "Does life tenure on the Supreme Court really muster the interests of the public?" For one thing, if they had a term of years or an age limit, I think we wouldn't have, it would certainly lower the temperature of the confirmation battles because you knew you wouldn't be investing in somebody who'd be there for 30 or 35 years, long, long outlasting not only the Presidential Administration but the era in which that nomination occurred. And, you know, things change a lot from one decade to another in terms of what's important and how we see things, so I just, you know, I bring that to your attention because you might not have heard about it, because it's still in sort of the legal literature, but it's just interesting to try to think a little bit outside the box of do we have the best of all systems and the best of all possible worlds. And, you know, of course the answer is not necessarily. We can always be more perfectible. The last thing I'll mention is the relationship among the branches. The Judiciary of course being one of the three branches, and certainly the framers in devising the notion of the separation of powers expected there to be tension and interplay among the branches. And is there ever, as we saw in the whole healthcare debate and healthcare case. But the one point I'll leave you with on that is that it's a very changeable kind of situation. Sometimes one branch is up, sometimes one branch is down. I think in the early Guantanamo period right after 2001 when the prison in Guantanamo Bay was filling up we had a kind of a clash of two institutions that were sort of alpha institutions on steroids at that time. We had the White House claiming huge unreviewable power to do whatever they wanted at Guantanamo and we had the Supreme Court kind of getting up on its hind legs and saying, "not quite so fast." There were certain norms and due process that apply, even in a war time, even to a situation like this. The Executive and Congress had to step back a little bit. They pushed back, the Supreme Court pushed back, there were three rounds of decisions on Guantanamo ending four years ago. It's now all devolved into the lower courts, and the Supreme Court I think has decided, "Well, they've said enough. They've made their point." Congress responded to some extent, the Executive responded, and they have nothing more to say about it at this point, so that inter-branch conflict is sort of died down, and now we have a new one coming up. We have the Commerce Clause. We have a major challenge in the part of the healthcare decision that dealt with Congress' authority under the spending clause to attach strings to the grant of federal money. It was the first time when the Court invalidated the structure of the Medicaid expansion, the part of the healthcare law. It was the first time in history that the Supreme Court ever said that the strings attached were too, quote, "coercive" to pass Constitutional muster. So the inter-branch conflict has shifted onto a new playing field. I don't know exactly where it's going to go. You can make all kinds of arguments about it, except to say to watch that space. And it's a reminder that, I mean not only obviously that the Court is important, but that the dynamic within which the Court operates, the political as well as the cultural, social, legal dynamic, is ever-changing and ever-fascinating. So I'm going to stop with that, and there are two mics, and I'll invite your questions until we run out of time, and my time keeper's going to tell me when that is. Thank you. [applause] Linda Greenhouse: I can't quite hear you. Is the mic-- I was at Politics and Prose bookstore the night you prophecies that the Supreme Court would pass the medical healthcare bill. Female Speaker: Would uphold it, right? Linda Greenhouse: Yes, and that Roberts would make the decision, and I congratulate you on your guesses. [laughs] [applause] Linda Greenhouse: Thank you for remembering. [laughs] Male Speaker: Linda, welcome back to Washington. Linda Greenhouse: Thank you. Male Speaker: You mentioned appointment for life. Have there been, historically, term limits for age or health or [unintelligible] Linda Greenhouse: For Congress? Male Speaker: No, for the Supreme Court. Linda Greenhouse: Oh, for our Supreme Court? Male Speaker: Yeah. Linda Greenhouse: No, article three of the Constitution grants life tenure to all federal judges, so that would not be an easy fix. But one thing that's interesting is, of course, every state has a Supreme Court, and of the 50 states only one state, Road Island, has life tenure for their high court judges. Male Speaker: Have any of their terms been interrupted because of competency? Linda Greenhouse: For competence? Yes-- Male Speaker: Or for health. Linda Greenhouse: Justice Douglas had to retire after he had a stroke. You know, there's a feeling that there have been Justices that have stayed too long. I think that's not too likely to happen these days because we all do live in kind of a fish bowl, even though the Court is not on television. There's enough, you know, they sit in public three times a week when the Court's in session, so it's kind of hard to, you know, somebody's like very obviously not competent, it's hard to conceal, but I think it has been a problem over time, from time to time. Female Speaker: Prior to the healthcare ruling the conventional wisdom was that Justice Kennedy was the swing vote on the court. Of course, with the ruling now, with the Chief Justice's decision, how do you see the Chief Justice's role as a swing vote now going forward into the upcoming term. Thank you. Linda Greenhouse: Well, that's a fabulous question, and I've spent a huge amount of time thinking about just that, and I don't have a decided answer. I never thought, as the first questioner indicated, I never thought that Justice Kennedy would be the deciding vote. In this case, you know, he's always been hard over on the federalism, state's rights agenda. Sean Roberts never was, although he gave his vote on the Commerce Clause to the other four conservatives, but I always thought he was going to be the, quote, "decider" on this one. You know, does it indicate that he's kind of changing his tune and tacking more to the middle? This term will tell, because this term, unlike the healthcare case, this coming term which has affirmative action and almost certainly voting rights, so two big race subjects, and race has been his subject just like federalism has been Kennedy's, and from, you know, Roberts is entering his eight term now as Chief Justice. Early in tenure in the parent's involved case in 2007 where he said, you know, "The way to stop discrimination by race is to stop discriminating by race." He said, "Invalidating an effort by two school systems to keep their public schools from re-segregating," that told us he's really eager to get into these subjects, and so, you know, what I expect kind of from attacking to the middle by him on those I don't think so, but I'm not 100 percent sure. I think there's, I'm not taking on too long about this, but it is the question of the moment. I mean, this is where the Roberts Court, the rubber is about to meet the road. I think there's a distinction to be made between what a judge, you know, deeply believes, and he deeply believes that it's wrong for the government to classify or count people by race, even for what one would consider benign purposes. So what a judge believes and then how a judge chooses to behave. And, you know, there are various off ramps from these cases that he could take, but I have the feeling from the healthcare case that he's not completely in charge. That he was kind of scrambling to stay afloat as the four more conservatives indicated that they were willing not only to strike down the mandate but to invalidate the entire law. The entire law. Hundreds of provisions that had nothing to do with the mandate. That was a very, very radical stance that they took, and I think it left him kind of thinking, "Whoa, where do I go with this?" Again, I have no inside information. Nobody's leaked anything to me, but I'm just kind of projecting. So it's just a fascinating moment. Yes. Male Speaker: Thank you very much for your presentation. I have a question about the Citizens United decision which you haven't really spoken about today, and particularly since that decision affects how politics works here, and particularly how money plays in politics, whether you anticipate looking forward in the next few years as we engage nationally in a conversation about how money plays into politics, what role will see the Court playing in whether you see particular issues or particular ways in which the Court might continue to exercise a role in that conversation? Linda Greenhouse: Well, I think for us to get on a different path with respect to money and politics we need a different Supreme Court, because-- [applause] Linda Greenhouse: The Court this last term was given an invitation, and you sound like you know a lot about this so you probably know the Montana case, the Court was basically served up on a silver platter an opportunity to skim back at least a little bit on Citizens United. So the state of Montana came in and said, you know, "You said in Citizens United that there's no proof that money causes corruption in politics, but we, Montana, we're here to tell you that it happened to us when our state was controlled by the mining interests and so on, and senators were bought and sold, and so we have this hundred plus year old statute on our books that prevents corporate spending on politics and the question is whether that's still Constitutional under Citizens United." And the Supreme Court just said, didn't even bother to take the case, they just said, "No, Citizens United governs here, and even though you're coming to us no longer hypothetical but you've got historical proof, that's not enough, and goodbye." So I think that tells us that there's no appetite for the Court to get back into this. Yeah. Male Speaker: Hi Linda. What do you see is the biggest change in the Supreme Court since you started writing about it till the present? Linda Greenhouse: Biggest change in the Court. Well, you know, when I started covering the Court in 1978 it was still sort of within the long shadow of the Warren Court. It still wasn't clear. The Court, the Burger Court, the still early Burger Court then, still had to tell us what the legacy of 50s and 60s on the Court was actually going to be. For instance, that was before the time that the Court made a big turn on affirmative action issues and so on. So I think the biggest change has just been in how conservative the Court has become. How far to the right the spectrum has shifted. If you take Justice Kennedy as what political scientists would say "the meaty in justice" [spelled phonetically], he's very much to the right to Justices who would have been in the middle of even the Burger Court. Justices like Potter Stewart or Lewis Powell. So I think that's been the biggest change. And I see we only have two minutes left, so give me short questions, I'll try to give really short answers. Sorry. Male Speaker: So one thing you mentioned was the collective biography of the justices, but another related issue perhaps is the collective biography of their law clerks, and to that end I was wondering, your research into Justice Blackmun. Did you come across any of his thinking on the issue, I know he was not the first but one of the first to have a female law clerk who has done quite well for herself. So I was wondering if you had come across any of Justice Blackmun's thought on hiring law clerks. Linda Greenhouse: Well, Justice Blackmun over his time, he did have more women law clerks than any other justice of his time. I don't know the current statistics actually, but I think women make up about a third of the law clerks. And, you know, they're all from Harvard, Yale, Chicago, there's not a lot of educational diversity among the clerks, but it certainly is a major prize. Especially now that I read recently that the law firms are paying a bonus of almost a quarter of a million dollars to sign a law clerk as a first year associate. So it's a pretty amazing situation. Male Speaker: My question was whether you think that the way that the healthcare decision is commonly perceived might be somewhat off base, just in terms of its been typically interpreted in terms of kind of the partisan issue, is the law upheld? Is it not upheld? But the Court did strike down Congress' spending power, which is kind of an extraordinary thing as you alluded to earlier, and also cut back on Congress' power under the Commerce Clause. Both of which could have very long-lasting future effects on Congress' power to regulate. And I'm wondering if maybe that is at least as significant as what they actually did with the law itself. Linda Greenhouse: Well, theoretically you're right, but I don't think, and I guess I have to make this my last answer, but I think the way the Court dealt with the Commerce Clause issue. I mean yes, five of them including John Roberts said, "This law exceeds Congress' power under the Commerce Clause because it's so unusual." In other words, they didn't cast doubt on the precedence like Wickard against Filburn that gave Congress the power that is exercised under the modern understanding of the Commerce Clause. So I think there's a sense in which it may be a one-off. The spending clause could be more important, but we don't know. I mean, we'll have to see. So my time is up and I'm really sorry that I had to do my signing before this event because I have to catch a plane, so I won't see you at the signing table. But thank you very much for coming. [applause] Female Speaker: This has been a presentation of the Library of Congress. Visit us at LOC.gov. [end of transcript]