Linda Greenhouse has spent over four decades years watching the United States Supreme Court. From covering it for the New York Times to examining it as a senior research scholar at Yale University, she has observed the court’s evolution through more than half a dozen presidents and three chief justices from 1978 onward.
Greenhouse spoke about this experience and the state of the court at a talk at UBC last Thursday.
Her talk, called Who Owns the U.S. Constitution?, moderated by veteran journalist Anna Maria Tremonti, was the fourth instalment in the Phil Lind Initiative’s series on uncivil discourse below the 49th parallel.
Polarization was an overarching theme of the discussion, and Greenhouse described the court as “both a cause and a symptom of the problem.” She explained that over the past half-century, the court has been gradually pushed into the political spotlight, beginning with the “judicial wars” that followed the court’s landmark 1954 decision in Brown v. Board of Education of Topeka that found state laws mandating racial segregation in public schools unconstitutional.
Greenhouse said the court’s “decision in Brown wakened those who were not on board with the project of racial equality, to the uncomfortable fact that the Supreme Court had exercised its power to place them on the wrong side of history.” This was the moment that sparked interest, notably among social conservatives, in transforming the court into a political tool, Greenhouse said.
“Richard Nixon ran against the Supreme Court in 1968. And he did so successfully by using crime as a dog whistle for race. People got the message.” Tracing from the later 20th century to the present, Greenhouse discussed how campaign promises to appoint justices that would shape the law according to political preference have come to define the Supreme Court’s composition.
”Capturing the Supreme Court, which Donald Trump did with ruthless efficiency, is, after all, the greatest prize in American politics these days. Congressional majorities and occupants of the White House come and go at regular intervals but appointment to the Supreme Court is forever,” she said.
Polarization and judicial politicization are conversations that transcend borders, Tremonti noted, prompting Greenhouse to warn Canadians to look at the U.S. as an example of what not to do.
Greenhouse said political appointments have left the court, like many political institutions, at a crossroads. She discussed how the widespread outrage following the court’s decision to overturn Roe v. Wade in Dobbs v. Jackson Women's Health Organization last summer invited significant questions about the court’s legitimacy, opining that the majority’s ruling had “almost no law in it” and was instead comprised of mostly non-legalistic, irrelevant historical inquiry.
Greenhouse said there is reason to be optimistic about the highest court in the land, though. Greenhouse said that there is hope to be found in lower courts — many of which have elected judges.
“The public has rediscovered state courts and state constitutions,” she said. Noting that the Supreme Court only decides around 60 or 65 cases a year out of 6000 petitions, Greenhouse said that most of the decisions that come out of the American judicial system start and end in those lower courts.
“More and more Americans are willing to take democracy into their own hands and answer to the question, ‘who owns the constitution and the Supreme Court'