Linda Greenhouse accidentally proves conservatives right

Reuters

US Supreme Court Chief Justice John Roberts (L) stands with fellow Justices Anthony Kennedy (2nd from L), Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan (R) prior to President Barack Obama's State of the Union speech on Capitol Hill in Washington, January 28, 2014.

Article Highlights

  • In her column this week, Greenhouse writes that she has long insisted that law rather than politics drives the court's decisions.

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  • This critique of the court is itself pretty ideological and not very self-aware.

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  • It would be nice if Greenhouse were next to acknowledge that conservatives have had a point about excessive judicial power all these years.

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Linda Greenhouse has been providing liberal spin on the Supreme Court for the New York Times for decades, first as a reporter and now as an opinion columnist.

She recently attacked the court for its "dangerous" conservatism -- and, in the process, inadvertently confirmed that conservatives have been right all along about the real dangers the court poses.

Greenhouse has long been an influential voice. In 1970, she publicized the claims of an academic that American law had never been concerned with protecting the lives of unborn children. Those claims have long been discredited. They nonetheless left an enduring mark, having made their way into Roe v. Wade, the court's landmark abortion case.

Greenhouse was enough of a fixture of the legal landscape that when conservatives in the 1980s complained about how media coverage had pulled the justices leftward, they called it "the Greenhouse effect."

In her column this week, Greenhouse writes that she has long insisted that law rather than politics drives the court's decisions. The court under Chief Justice John Roberts has, however, stripped away this illusion by issuing "polarized" and "ideological" rulings, she argues. It has dismantled campaign-finance regulations, and its decisions on the Voting Rights Act and affirmative action have demonstrated "its obsession with race and drawing the final curtain on the civil rights revolution."

She also faults the court for a recent ruling about prayers at the beginning of town-board meetings. "The country didn't need to have the religious culture wars reignited, but thanks to the court, that's where we now are," she writes. Because other towns may change their practices in response to the ruling, "the Supreme Court's 'O.K. to pray' is being quickly and unsubtly turned into a right to pray."

This critique of the court is itself pretty ideological and not very self-aware.

If the court had ruled the other way on the Voting Rights Act -- upholding it in full, rather than dismaying liberals by striking part of it down -- it's hard to believe Greenhouse would have found that decision evidence of a racial fixation.

She concedes that the affirmative-action case she discusses was decided 7-1, which is hardly polarized. Her objection is to the court's having taken up the case at all. But the concession makes a hash of her argument. We're left to believe that the court's conservatives took up the case because they're so relentlessly ideological, and then absentmindedly settled for a consensus decision.

Her discussion of the town-prayer case is similarly baffling. Is the court supposed to issue its rulings with an eye on which controversy the country "needs to have"? Couldn't a decision striking down the town's practices have ignited controversy, too? (Would she have condemned such a decision for any ensuing controversy?) And what's the difference anyway between saying it's OK for a town board to start its meetings with a prayer and saying it has a right to do so?

Yet if conservatives leave Greenhouse's history and flawed arguments aside, they'll find much to agree with in what she says. She's right, for one thing, that to evaluate the court's work, it isn't enough to look at voting patterns arrayed on a chart. It's necessary to make, well, judgments, which "invites pushback and debate." (As I trust the above paragraphs have demonstrated.)

She's also right that the Supreme Court often acts in ways that reflect the policy views of the justices better than they do the Constitution -- although this tendency is hardly unique to the conservative justices or a novelty of the Roberts court. Think, for example, of those liberal justices of years past who have voted to declare the death penalty unconstitutional even though the Constitution explicitly countenances it. I share the view that we should abolish capital punishment, but they were acting outside their legitimate authority.

Greenhouse is right, finally, to "wonder whether the Supreme Court itself has become an engine of polarization." But again, her tense is off: The court has fueled polarization for a long time. Roe, especially, inflamed American politics. It nationalized an issue that had previously been handled at the state level; it imposed an extreme policy, effectively making even late-term abortions legal; and it told pro-lifers that their deepest beliefs were in violation of the country's fundamental charter. Greenhouse writes that the court has been "wrong in refusing to give the political system breathing room to make fundamental choices of self-governance." That's exactly what Roe, and many other liberal rulings, have also refused to do.

For conservatives, then, the critique that Greenhouse presents as a revelation is old hat. We've said for a long time that the court decides policy questions it has no business settling, that it therefore has an outsized role in American life, and that its self-aggrandizement can distort our politics.

It would be nice if Greenhouse were next to acknowledge that conservatives have had a point about excessive judicial power all these years. But these are dangers that people can, perhaps, see only when they lose in court.

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