(James Block photo)
Courts reporter supreme on the law and the press
In two campus appearances, former New York Times correspondent Linda Greenhouse looks back on three decades at the Court
| 24 September 2008
Had there been any dissenters to the decision to have Linda Greenhouse deliver the Jefferson Memorial Lecture last Wednesday, they had only to drop by the previous day’s Institute for Legal Research-sponsored panel discussion, at which she was the featured attraction.
Greenhouse, the New York Times’ celebrated Supreme Court reporter from 1978 until her retirement this year, was one of a distinguished group of practitioners and academics in journalism and the law who gathered at the Bancroft Hotel to explore the interplay of courts, politics, and the media. And while a lively dialogue on that topic took shape as advertised, the substance came wrapped in what jurist William Fletcher — referring only to his own remarks, but managing to capture the general tenor of the afternoon — called “a love letter to Linda Greenhouse.”
Fletcher, who serves on the U.S. Ninth Circuit Court of Appeals and was a college classmate of Greenhouse, recounted how, on her first day as the Times’ high-court correspondent, she innocently walked up the iconic building’s marble steps and entered through the bronze front doors, only to discover that “no, you’re supposed to go in the side door.”
“If the justices on the court knew then what I’m sure they learned soon and by now absolutely know 30 years later,” said Fletcher — “if they’d known this was Linda Greenhouse coming, they would have opened the front door for her.”
“I’m not so sure,” demurred Greenhouse, whose clear-eyed coverage of the court — beginning when Chief Justice Warren Burger presided over a bench that included the likes of Thurgood Marshall, William Brennan, and Byron White — must at times have displeased some of its nine sitting judges.
But Fletcher, a former professor at Berkeley’s School of Law, pressed on. “The sophistication of Linda’s analysis over the years is unmatched by any legal reporter on the court,” he said. “She knows the court better than almost anyone — including, I think, some of the justices.”
James Block photo
Greenhouse noted that she’d had only a year of law school when she ascended those steps in 1978, and “climbed a steep learning curve” as she strove to report on the court’s internal workings and interpret its often-cryptic rulings. Among her biggest surprises was the fact that the court was “not a debating society, as I’d imagined,” but “an institution of formal, almost scripted interactions” to which the standard conventions of journalism didn’t apply. For a former political reporter accustomed to covering the New York State Legislature, the lack of open discussion among the justices — who presided over “nine separate operations” — made for “a very strange atmosphere.”
Yet if the Supreme Court is unique in American jurisprudence, suggested several panelists, opacity is a trait it shares with courts at all levels of the U.S. judicial system. Recently retired Los Angeles Times legal reporter Henry Weinstein, for example, complained about the refusal of many courts — including Fletcher’s — to give advance notice of the release of their decisions, thereby hampering reporters on daily deadlines in their efforts to translate complex legal rulings into meaningful, in-depth journalism. Fletcher said he and his colleagues had never discussed the issue.
And if reporters are handicapped by the secrecy and abstruseness of the judicial system, they can find themselves handcuffed by their relative isolation from one another as well. On the eve of her lecture on “The Mystery of Guantanamo Bay,” Greenhouse singled out the plight of Gitmo detainees held there without basic constitutional protections as a prime example of the difficulties faced by reporters attempting to cover multifaceted issues from their own narrow perspectives.
“It’s been a real challenge for any interested reader to pick up the paper and understand that what’s been going on these last five or six years has been an extremely dynamic three-way dialogue among the court, the executive branch, and Congress,” said Greenhouse.
“It’s very complicated and very dense stuff,” she acknowledged, “but it’s been made harder by the fact that everybody’s in their own little silo.” And she served up some fodder for critics of the Times’ coverage of the Bush administration’s legal assertions during its “war on terror”: “I’d often be drawn into conversations in the newsroom with White House or congressional reporters, and you would get the sinking feeling that they didn’t have a clue what the essence of it was.”
Constitutional scholar Gordon Silverstein, a Berkeley political scientist and “recovering journalist” who’s worked for the Wall Street Journal and the San Francisco Chronicle, wondered if the contractions afflicting the newspaper industry might have the perverse benefit of tearing down the walls that separate reporters, thus leading to more integrated coverage. Shrinking news staffs, he suggested, could force reporters “to follow an issue across institutions, without worrying about turf wars.”
That’s less of a problem for lean online outlets, said Emily Bazelon, legal writer for the Web magazine Slate — which she called “the procrastination tool of choice” for those with desk jobs. Slate, with just a handful of writers and an overall staff of about 30, offers reporters more freedom to engage in “thematic” coverage than is typical at a major newspaper like the Washington Post — Slate’s parent outlet — while still reaching some two-thirds as many readers as the Post itself.
Many of those who spoke — a group that included Boalt law professors Jesse Choper, Goodwin Liu, and moderator Harry Scheiber as well as legal historian Molly Selvin — agreed on the need to improve the way the courts’ work is communicated to consumers of news, from everyday newspaper readers to judges themselves. They also reached a kind of consensus on the need for journalists to adopt a phrase employed earlier this year by the Washington Post’s Dana Milbank. In a column about the firing of Arlington National Cemetery’s public-affairs director over press coverage of military funerals, he contradicted one assertion of Army officials by stating flatly: “That, however, is false.”
“When you think back to our last four or five years,” mused Greenhouse, “we might have been saved an awful lot of trouble if more journalists, listening to officials paid with taxpayer money to lie to the public, had written those four little words.”
Yoo ‘an enabler,’ not a policy driver
Greenhouse, who joins the faculty of Yale Law School in January, struck a more scholarly tone for the Graduate Council’s 2008 Jefferson Lecture, which drew more listeners than could legally be accommodated in Barrows Hall’s Lipman Room. (Those turned away could watch on a closed-circuit TV set up in Moses Hall.) Whether despite or because of her dependence on arcane legal terms and her meticulous parsing of complex court rulings, most everyone in attendance remained through the hourlong talk.
Taking the podium on Constitution Day, she expressed the intention to “extract, I hope, a coherent narrative and find some meaning in what’s been going on” in and around Guantanamo Bay, which has been a focal point both for vocal clashes between the White House and civil-rights advocates and for more subtle, legalistic arguments over the application of habeas corpus and the rights of prisoners held in connection with its “war on terror.”
Reading prepared remarks, she began by recalling Supreme Court Justice Stephen Breyer’s “optimistic view” in a lecture in April 2003 — 19 months after 9/11, and just weeks after the U.S. invasion of Iraq — “that the American political and legal system, working together, would find a way to keep the country safe while not abandoning its fundamental legal principles.”
“Our legal system is open,” Breyer declared. “And if the government claims that the court lacks jurisdiction to decide a particular matter, the court, and not the government, will decide if that is so.”
At that time, Greenhouse observed, no post-9/11 cases had yet reached the Supreme Court. Breyer, she said, was simply “expressing what he assumed to be a foundational, incontestable proposition: that while the law that would eventually apply in this crisis would emerge through a process of ‘bubbling up’ out of the interaction of all interested and affected parties — ‘the democratic process at work,’ as he put it — ultimately, the courts would decide.”
Today, she went on, in the wake of “four major Supreme Court decisions, two congressional efforts to strip federal judges of the authority to rule, and a steady stream of executive-branch actions aimed at maintaining the status quo while displaying a patina of accommodation, Justice Breyer’s forecast appears to have been not only optimistic, but a bit naďve.”
For much of the next hour, Greenhouse guided her audience through the legal “trench warfare” waged by the Bush administration — including the author of the notorious “torture memos” and other Justice Department opinions, the Law School’s John Yoo, the mention of whose name elicited scattered groans — and her conclusion that “there are no winners in this tale.”
While the Bush administration “has lost and lost and lost again” in its legal duels over Guantanamo Bay — aimed chiefly at securing presidential authority to hold hundreds of detainees at Guantanamo Bay indefinitely as “enemy combatants,” lacking both the protection of the Geneva Conventions and the due-process rights afforded under the U.S. Constitution — “not a single detainee has ever been released by order of any court, or any other body in a position of authority, against the wishes of the administration.”
Had the White House taken a less absolutist posture from the outset, Greenhouse concluded, the conservative Supreme Court “probably would not have felt pressed to abandon its historic posture of deference to the executive [branch] in wartime.” Instead, it rallied around the view of then-Justice Sandra Day O’Connor, who wrote in a 2004 ruling that “a state of war is not a blank check for the president.”
As for Yoo — who figured prominently during the question-and-answer period — she termed him “an enabler” and “a bureaucrat who was writing memos,” not a key player in the White House’s thinking about wartime powers.
“I don’t think it’s a John Yoo problem. I think it’s a problem of the higher-ups at the very top of the administration who happened to receive the kind of cover that those memos gave them to go ahead and do what they wanted to do anyway,” Greenhouse told one questioner. “So if it’s a matter of assessing responsibility and accountability, I would go much higher than a deputy assistant attorney general in the Office of Legal Counsel.”