Saturday, May 02, 2009

Supreme Court: Supreme Conflict, The Fight for America's Soul

With its closed chambers and formal language, the Supreme Court tends to deflect drama away from its vastly powerful proceedings. But its mysteries hold plenty of intrigue for anyone with the access to uncover them. In Supreme Conflict, Jan Crawford Greenburg has that access, and then some. With high-placed sourcing that would make Bob Woodward proud, she tells the story of the Court's recent decades and of the often-thwarted attempts by three conservative presidents to remake the Court in their image. Among the revelations are the surprising influence of the most-maligned justice, Clarence Thomas, and the political impact of personal relations among these nine very human colleagues-for-life. Written for everyday readers rather than legal scholars, her account sidesteps theoretical subtleties for a compelling story of the personalities who breathe life into our laws. --Tom Nissley
Crawford graduated from the University of Chicago Law School, and was a legal affairs reporter for the Chicago Tribune and Supreme Court correspondent for PBS's NewsHour before becoming the legal correspondent for ABC News. We had the chance to ask her a few questions about Supreme Conflict:

Questions for Jan Crawford Greenburg How hard was it to get the access to justices and clerks that you had for this book? Does the culture of the Court promote that kind of openness about their deliberations?

Jan Crawford Greenburg: Hard! And let me tell you it took some time--they weren't flinging open the doors of their chambers for the first few years I was covering the Court. It takes awhile to build relationships and trust, and I was fortunate enough to do that during the dozen years I've been covering the Supreme Court. As for openness, I think the culture of the Court instead promotes anonymity and privacy. The justices aren't like the people across the street in Congress, or down Pennsylvania Avenue in the White House. They don't hold press conferences or solicit media coverage of their views. They speak through their opinions. I was fortunate that they also chose to speak with me for this important book about the direction of the Supreme Court and its role in our lives. Harry Blackmun's notes must be a treasure chest for Court historians. Could you describe what you found there?

Greenburg: A treasure chest is an understatement. Harry Blackmun took extraordinarily detailed notes--almost breathtaking in their scope and level of detail. (He would even write down what lawyers were wearing when they'd appear in Court to argue a case.) He recorded the justices' comments during their private conferences--when they discuss cases--and he took down their votes. And he kept all the key memos and letters that the justices would send back and forth when they were discussing a case. It was a tremendous window into the Court's inner sanctum, during some of the most pivotal years for the institution. One of the biggest revelations of your book is your characterization of Clarence Thomas as far more influential, even in his first year on the Court, than he's usually given credit for. Could you describe what his role on the Court has been?

Greenburg: Clarence Thomas has been the most maligned justice in modern history--and also the most misunderstood and mischaracterized. I found conclusive evidence that far from being Antonin Scalia's intellectual understudy, Thomas has had a substantial role in shaping the direction of the Court--from his very first week on the bench. The early storyline on Thomas was that he was just following Scalia's direction, or as one columnist at the time wrote, "Thomas Walks in Scalia's Shoes." That is patently false, as the documents and notes in the Blackmun papers unquestionably show. If any justice was changing his vote to join the other that first year, it was Scalia joining Thomas, not the other way around. But his clear and forceful views affected the Court in unexpected ways. Although he shored up conservative positions, his opinions also caused moderate Justice Sandra Day O'Connor to back away and join the justices on the Left. Not every Supreme Court confirmation is a battle, even when the Senate and the President are from different parties. What separates the candidates who sail through from the ones who get put through the wringer?

Greenburg: The recent appointment of Samuel Alito shows a justice with a clearly conservative record can get confirmed--and even pick up some votes from Democrats. Maybe the secret is developing a reputation as a fair and nonpartisan judge on a federal appeals court. At his hearings, liberal and conservative judges who had worked with him on the appeals court testified in his behalf, as did his law clerks--some of whom were self-identified liberals. Alito was the conservative counterpart to Clinton nominee Ruth Bader Ginsburg. She had been an outspoken advocate for liberal causes (including the ACLU), but she'd developed a reputation as a fair and thoughtful judge on the federal appeals court, garnering respect from both sides. How much do Americans know about how their federal courts work? What should they know?

Greenburg: Most Americans, understandably, think about trials and drama when the issue of the courts is raised. But the appeals courts--and the Supreme Court--remain mysterious, even though those courts have an enormous impact on American life. The judiciary is one of the three branches of government, but its decisions take on outsized importance at times. It can provide a vital check against abuse of individual rights by government--but it also can usurp the role of the people when it reaches out and takes on issues that more appropriately belong in the purview of the other branches. Even though you show how our expectations for where new members will take the Court are so often wrong, I'll ask you anyway: What do you expect in the next few years from the Roberts Court?

Greenburg: To be more conservative than the one led by Chief Justice William Rehnquist. John Roberts himself is a solid judicial conservative who believes the Court has too often taken on issues that belong in the realm of elected legislatures. He is advocating a more restrained approach, with greater consensus among the justices. In addition, Justice Alito replaced key swing-voter Sandra Day O'Connor, the Court's first female justice. O'Connor's vote often carried the day on the closely divided Court--and she typically sided with liberals on social issues like abortion, affirmative action, and religion. Alito is more conservative, and I expect to see the Court turn to the right on those and other issues.

--This text refers to the Hardcover edition.

From The Washington Post
Reviewed by Emily Bazelon
Scoops at the Supreme Court are hard to come by. The court's traditions and prerogatives favor secrecy, and the justices are in a better position to control the flow of information than their counterparts in the upper echelons of the other, leakier branches of government. They have small staffs whom they instruct not to talk and who rarely disobey. As a result, when the justices themselves lift the veil on the court, it's hard to check the veracity of their assertions and to gauge their self-interest.

The most famous exception to the court's rule of silence is Bob Woodward and Scott Armstrong's The Brethren (1979), which exposed the personal rivalries of the Burger Court and altered the institution's image. Any book about the court that claims to "break news," as Jan Crawford Greenburg's Supreme Conflict does, invites comparison. Greenburg's book delivers -- not in major new ideas or big-picture revelations but in the details. If you follow the court closely or want to chatter about it at a cocktail party, Greenburg has some tidbits.

An ABC News reporter and lawyer, Greenburg interviewed nine of the 11 justices who have served on the court in the last three years. Her juiciest bit, which comes from retired justice Sandra Day O'Connor, exemplifies both the appeal and the problem of the justice-planted story. O'Connor told Greenburg that she retired in July 2005 not because she'd determined the time was right but because then-Chief Justice William Rehnquist told her it was. O'Connor had expected Rehnquist to tell her that he planned to leave the court that summer. He was 80 to O'Connor's 75 and gravely ill with cancer. But Rehnquist told O'Connor that he wanted "to stay another year," Greenburg reports. "And I don't think we need two vacancies," he added. That meant O'Connor either could step down immediately, earlier than she'd planned, or stay for two more years, longer than she wanted.

This explains what has seemed a surprising turn of events: the retirement of a vigorous justice at a moment when everyone expected the departure of the sick old chief. The timing mattered. O'Connor retired as instructed, and Rehnquist's death later that summer left the court with the two simultaneous vacancies he'd sought to avert. This set in motion John G. Roberts Jr.'s elevation to the chief justice spot (he'd originally been chosen to replace O'Connor), Harriet Miers's crash-and-burn nomination to succeed O'Connor, and Samuel A. Alito Jr.'s runner-up confirmation. In the end, O'Connor was not succeeded by a woman, as she'd dearly hoped and as President Bush had originally intended.

There's no particular reason to doubt O'Connor's version of her resignation story, but there's also no real way to verify it. Greenburg doesn't seem to have talked to Rehnquist before he died; he won't, of course, be talking to anyone else. So O'Connor gets the first and last word. Nor does Greenburg tell us O'Connor's rationale for acceding to Rehnquist's wishes or wonder about it herself.

There's nothing wrong with this; Greenburg's reporting has brought out new information, and the rest of us are free to speculate about O'Connor's truthfulness and her thinking. Still, it's worth noting the trade-offs this sort of reporting entails -- in this case, perhaps, access in return for the decorous handling of O'Connor's disclosure -- especially in light of the court's guarded norms.

Greenburg's other, smaller scoops benefit from reporting within the less secretive executive branch. Attorney General Alberto Gonzales, who didn't get chosen to replace O'Connor because of conservatives' fear that he'd be the Hispanic version of the leftward-moving Justice David H. Souter, tells an associate, "Part of me wants to get on the Court just to prove them wrong. They think I'd be like Souter? I'd never be like Souter."

After Roberts was picked for the chief justice spot, Andrew H. Card Jr., then White House chief of staff, kicked off the second search for O'Connor's successor with the pronouncement, "No white guys." Card then asked White House counsel Harriet Miers's own deputy to vet her -- "an egregious managerial mistake," Greenburg argues, that "compromised the advice Bush would ultimately get."

Once nominated, Miers disappointed her handlers by failing to master constitutional law in three weeks of cramming before her scheduled confirmation hearing. Greenburg also dishes that Miers was apparently the last to know of her own withdrawal; Card had to visit her twice before she got the message. In moving on to the steadfast conservative Alito, Greenburg tells us, the White House went with the white guy whom Bush's "legal advisers, including Miers, had preferred all along."

Greenburg ends on a familiar but salient point. In tapping Roberts and Alito, Bush accomplished what has eluded previous Republican presidents: a pair of picks likely to remake the court in his own conservative image. Out of the confirmation process, Bush got his court, Greenburg got her book, and the rest of us get choice details about the court's inner workings.

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