Future decisions of the U.S. Supreme Court will focus on topics such as corporations and wartime executive powers rather than on popular social issues, according to former New York Times reporter Linda Greenhouse.
Greenhouse, who covered the nation’s highest judiciary from 1978 to 2008, spoke at the College of William and Mary Tuesday during a three-day visit to campus as the 2010 Hunter B. Andrews Fellow in American Politics.
She has participated in most of the Marshall-Wythe School of Law’s annual Supreme Court Previews in the last two decades and currently teaches at Yale Law School.
Greenhouse began by discussing the recently decided case of Citizens United v. Federal Election Commission, a 5-4 decision in which the majority ruled that corporations have broad First Amendment rights, especially regarding political advertisements. The decision struck down part of the McCain-Feingold Act of 2002, which in part prevented corporations from running political advertisements prior to elections.
“It changed the rules a little bit, [but] I don’t think as drastically as has been portrayed,” Greenhouse said. “But it was a strong statement about the First Amendment rights of corporations to participate in the political system. What’s interesting about it is the public became quickly engaged by this. The public remains engaged by it, which is pretty unusual.”
The Citizens United decision has been unpopular with the public, with some polls showing that as many as 80 percent of people disagree with the court’s action. In an unusual move, President Barack Obama criticized the decision in January’s State of the Union address.
“The Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections,” Obama said.
Although Greenhouse refrained from discussing the political implications of the Citizens United decision, she noted her own legalistic objections to how the Supreme Court handled the case, siding with Justice John Paul Stevens’s dissenting opinion.
“What I found most disturbing about what the court did with Citizens United was, as Justice Stevens said, they helped themselves to the ability to decide the whole ball of wax — in this case, to strike down the governing precedence in this area of campaign speech,” Greenhouse said.
The court initially heard arguments in the case during its 2008-2009 session on narrow legal grounds.
“The case seemed to be quite narrow,” Greenhouse said. “Citizens United argued that, ‘Even if the law did apply to us, it doesn’t apply to the kind of speech that we’re attempting to engage in, which is the video-on-demand movie. That’s not what McCain-Feingold is talking about. McCain-Feingold is talking about, you know, really dangerous, little 30-second spots that skewer somebody. We made a movie, and if you properly interpret the statute it doesn’t apply to us.’”
According to Greenhouse, Citizens United could have also argued that, as a non-profit organization, the law did not apply to them, another narrow approach that would have maintained judicial minimalism.
However, at the end of its term, the Supreme Court ordered the case reargued on basic constitutional grounds.
“Nobody asked them to do that, and it’s a very, very activist thing to do because the court typically, you know, they wait to be asked,” Greenhouse said. “They’re not a legislature who can go roam the countryside and construct an agenda. They sit to resolve disputes, concrete disputes under Article III of the [U.S.] Constitution.”
One forum attendee asked if there were any other cases in which the court had redefined the grounds of a case. Greenhouse cited the 1989 civil rights case of Patterson v. McLean Federal Credit Union, but noted the rareness of such an action.
“It’s happened a few times, but it’s really unusual, and as far as I’m concerned it strips away the fiction that this is not an activist court,” Greenhouse said. “This is a very activist court, and I think it’s a court that will do whatever the five votes on that side want to do.”
The Supreme Court has had a number of cases regarding executive wartime power and detaining prisoners at Guantanamo Bay, Greenhouse said, further defining the landmark cases in the court’s docket.
She cited specifically a recent situation involving a group of ethnic Chinese Uighurs who were caught up in terrorism arrests but ultimately found to be innocent by the Bush administration. The executive branch was uncertain as to where to release the Uighurs, who could not be returned to China due to fears of prosecution. Both former President George W. Bush and Obama objected to releasing the men into the United States, and the Uighurs’s case was almost decided by the Supreme Court before the United States agreed to release them into Palau and Bermuda, making the case moot.
“Simply by saying they wanted to hear the case, the court did set in motion this sequence of events that compelled the administration to really look under rocks and find a home for these people who had been detained by that time for more than seven years,” she said. “So the court has a kind of a power, even when it’s speaking so softly you can hardly hear it.”
Greenhouse argued that the Uighur case illustrates the current relationship between the executive and judicial branches.
“The Supreme Court basically, in a series of cases since Sept. 11, has rejected every claim of the president, no matter who the president was … to define the regime under which people will be held at Guantanamo,” she said.
Such a shift in focus awaf from social issues such as abortion or gay rights, was difficult to foresee, Greenhouse said, and will likely affect the next appointment to the court.
“Who would have anticipated, a year ago, when Sonia Sotomayor was nominated for the vacancy created by the retirement of Justice [David Souter] that this would be the set of issues?” Greenhouse said. “Not abortion, not some of the hot-button social issues, but something kind of as foundational as the role of the corporation and the role of big government.”
Greenhouse also addressed the timely topic of appointments to the Supreme Court. Stevens, who will turn 90 years old in April and has served on the court since 1975, announced recently that he will retire within the next three years, potentially at the end of this term. His retirement will essentially ensure Obama at least one more appointment.
Greenhouse said presidents can react to Supreme Court vacancies in two ways.
“They can see it as an opportunity — which is clearly what President [Ronald] Reagan did when he tried to put [Robert] Bork in — an opportunity to change the law, or they can see it as a problem to live through and solve and get on to your legislative agenda, or whatever else you really want to do, and I think President Obama’s the latter, not the former,” Greenhouse said. “I think he’s going to try to find somebody who is sort of on-the-face confirmable and not going to take a lot of time and energy because he’s got things he wants to do legislatively.”
Greenhouse said a “creative” appointment would be Harold Koh, the State Department’s senior counsel and an “out-there progressive” who has used international law to help interpret domestic statutes. Although he would be the first Asian-American on the court and ultimately confirmable, Greenhouse said the appointment was unlikely.
“I don’t think President Obama is going to want to do the heavy lifting,” Greenhouse said.
Diane Wood, a federal judge on the Seventh Circuit Court of Appeals in Chicago, Ill., is a likely candidate who would be easier to confirm. Greenhouse said Wood would be more easily confirmed because she is not strongly ideological.
Nevertheless, Greenhouse noted any such appointment would not shift the ideological balance of the court, as Stevens is generally considered among the liberal justices.
“Again, this is not a game-changing vacancy,” Greenhouse said. “The real, real heavy lifting will come when one of the conservatives in the five-justice majority — or Justice [Anthony] Kennedy, as the swing justice — when they retire, that’s when you make the kind of change that happened when Justice Sandra Day O’Connor was replaced by Justice Samuel Alito. That changed a lot.”
Click here to read an exclusive interview with Linda Greenhouse about Sandra Day O’Connor, the allocation of federal power and her experience covering Bush v. Gore.