BY TIM EIGO

Covering the Court

On February 15, Linda Greenhouse, a Pulitzer Prize-winning reporter for The Times, spoke at Arizona State University. She was there at the invitation of the ASU School of Justice & Social Inquiry, and she presented the seventh annual John P. Frank Memorial Lecture. Her talk—“Change and Continuity on the Supreme Court—arose from research she had done in the archived papers of Supreme Court Associate Justice . That research led to a series of articles in the Times, as well as a book— Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey. Earlier in the day of her lecture, Greenhouse sat down and spoke with ARIZONA ATTORNEY magazine.

18 ARIZONA ATTORNEY APRIL 2007 www.myazbar.org ARIZONA ATTORNEY: Justice Blackmun’s about Blackmun’s tardiness in circulating a estate gave you the opportunity to research dissenting opinion, and therefore holding his archived papers two months before they up Black’s circulating his majority opinion. were made public. Would you have jumped It was very sharply written, and it included at the chance if it had been offered by any Blackmun’s very wounded and defensive justice’s estate, or did you especially prize response. And I thought, “Whoa, has this the chance to peer into Justice Blackmun’s ever seen the light of day anywhere?” As far papers? as I could tell, it hadn’t. So it just kind of draws you in. LINDA GREENHOUSE: His papers were Then there was the decades of corre- reputed to be a fabulous Supreme Court spondence between Blackmun and collection, because he was known as a real [Warren] Burger. That was just a treasure packrat; he saved everything. Compared to trove, because it documented the nature of almost any other collection of Supreme that unusual relationship. Court papers, they were expected to be something special. AZAT: Did it surprise you how thin-skinned I would have jumped at the opportunity Justice Blackmun was? to get into anything having to do with the Court behind the scenes, so it was a fortu- GREENHOUSE: It surprised me. His little ity that it happened to be a very rich collec- notes to himself in this kind of running tion. chronology that he kept for all his years on the Court—not quite a diary, but a AZAT: Was it well organized? “chronology,” he called it—where he would say things like, “The Chief Justice GREENHOUSE: It was, but it was huge. spoke sharply to me today in There were half a million documents, Conference”—it was surprising. almost 1,600 boxes. I had this two-month He was a very sensitive person, and that head start, but that had to include time for had its pluses and its minuses. I have to writing, so let’s say it was really six weeks, or think it was a minus in some of his interac- five weeks, leaving time to write. So where tions with his peers; it was a plus in invest- to begin? ing him with a kind of compassion for the I was able to hire a research assistant, underdog that informed some of his named Frank Lorson, who had just retired jurisprudence. as the longtime career chief deputy clerk of the Supreme Court, so he really knew the AZAT: When you first began reviewing the subject. So between the two of us, we papers, it was with an eye toward writing devised a roadmap to the collection, which articles in the Times. Was it only later that is online at the Library of Congress you thought there was a book in this? (www.loc.gov/rr/mss/blackmun). GREENHOUSE: I didn’t have any idea. I had AZAT: Did you stick to the roadmap? no anticipation of ever writing a book. The day that the first of the articles appeared, I GREENHOUSE: Like any process of original got a call from a publisher—Henry Holt— research, the happenstance happily took from one of their editors, Paul Golob, who over. For instance, there’s a set of files that said, “I want to talk to you about turning are just called “Justice Files.” And they’re this into a book.” every Justice that he served with, in alpha- At first, I said, “No, I have to get back betical order. I started going through those to my day job. I’m way behind. I’ve been on the second or third day, in order. And away for two months.” But we did talk, and the first one I picked up was Hugo Black, he is a wonderful book editor. Not only which was a very thin file, because they only that, but he’s a real Supreme Court overlapped for a year and a couple of groupie, and was very well read in Supreme months. Court material, as a matter of his personal Well, the first document was a memo interest. So it occurred to me that together from Black to Blackmun, with copies to all we could make this work, and working with of the other Justices, bitterly complaining him would be added value to the project,

www.myazbar.org APRIL 2007 ARIZONA ATTORNEY 19 Coveringthe Court because he just seemed so smart about it— appreciate whatever it was he thought he Blackmun maybe erred in the other which was a good judgment on my part, was saying. direction; he was preoccupied with what because it turned out to be true. It was a lot other people thought. So it ended up like of fun working with him. AZAT: His words revealed a man who cared oil and water, which we know is not a good a lot about what people thought. combination. AZAT: Did you ever consider adding other materials, such as the views of scholars or GREENHOUSE: He did, and he probably AZAT: An Arizona lawyer who was also a former clerks? wanted to get his life and work out there Chief Justice, William Rehnquist, died in unmediated: “Here it is, make of it what 2005. Is it too early to say what his legacy GREENHOUSE: No. As I said, I had a day you will.” is? Could it be federalism, or is it that he was job. The deal with the book was, it had to a good administrator and a good colleague, be something I could write over the sum- AZAT: Looming over the entire book was a breath of fresh air after Warren Burger? mer, and turn in the manuscript by the time Warren Burger, the next Term of Court began on the first almost a tragic fig- Monday in October. That precluded roam- ure. Is that overstat- ing the countryside and tracking down law ing the case? clerks and going outside the record. The whole construct was going to be, it’s Harry GREENHOUSE: No, Blackmun as revealed in his collected I agree with you. For papers. Whatever I could extract from that me, that was the I don’t know whether to make a coherent narrative of the man’s biggest surprise. I life. And it was going to stand or fall on that knew Burger; I the Rehnquist so-called basis. wrote his obit. I wrote Blackmun’s federalism revolution is AZAT: Reading the book, Blackmun does obit. So I knew the not sound like a man crafting his legacy in trajectory of both of his papers. their lives and how going to last; it doesn’t they had been close GREENHOUSE: No. He saved everything. early on and had seem to have a lot of Now, the question is why did he decide to drifted apart later on. have them released that soon, only five years But the flavor, the momentum right now. after his death? Typically, it’s been “after the texture of it, the death of everybody I served with.” incredible closeness Some of his law clerks who had been in their young adult advising him on various aspects of his estate lives, and the bitter- said, “Mr. Justice, don’t you think that’s ness of the separa- kind of soon. Don’t you want to wait?” And tion that came through in the letters, the GREENHOUSE: It probably is too early. My he said, no, this is what I want. communications, the Blackmun diary initial take on him was, [he was] probably Of course, he had no way of knowing entries, and so on. That was a surprise, and one of the country’s great Chief Justices. that in that 10-year period [from his retire- I actually ended up more empathetic for He was not only a good administrator, but ment until his death], nobody else would Burger than I would have anticipated, great in the sense that he had a vision and he have retired. He could not have anticipated because he did seem like such an emotion- was able to project that vision onto the that, because that was a historically long ally needy person. And you had to end up Court, and turn things in his direction. period without turnover at the Court. So it feeling like there was a kind of a tragedy I’m not sure whether that will hold up; I made it seem even sooner than it was, there. think it’s too soon to say. I don’t know because his papers revealed the interactions whether the Rehnquist so-called federalism of the exact same people who were on the AZAT: Reading your book, one is given the revolution is going to last; it doesn’t seem Court when he was there. That was a bonus impression that Burger had little awareness to have a lot of momentum right now. obviously as far as I was concerned. of his own motivations and the sources of He ended up his last couple of years So his view of his legacy was revealed. his anger. On the other hand, Blackmun being kind of to the right of the working He must have felt that he had a story to seemed preoccupied with self-awareness. majority at the Court, and was in dissent on tell, that his papers would tell that story, and some of the major cases in his last couple of that he wanted it told in almost real time, so GREENHOUSE: I agree. Burger had no sense Terms. that the people who heard it would be peo- of how he came across to other people, no He certainly had a long tenure; I think ple who had lived through it and could superintending eye on himself. he was a very well-respected figure. What

20 ARIZONA ATTORNEY APRIL 2007 www.myazbar.org Coveringthe Court his lasting contribution is going to be, I GREENHOUSE: I came up with it after writ- time for the Court to take a back seat to think we’re probably decades from being ing the last lines of the book. Blackmun, late Congress, and say “You’re right, you really able to really assess that. in life, had given a speech saying he had felt have the right to overturn Miranda legisla- like a cork bobbing on the waters of a mov- tively.” He just wasn’t going to say that. AZAT: As for Sandra Day O’Connor, she ing stream. It was sort of an odd image, but So that wasn’t a matter of changing his got the appellation “swing vote.” Was that it gave me this little thing to play with view. That was a matter of his strategic sense accurate? metaphorically about swimming and the of where the Court ought to be at a given water and reaching the shore and becoming moment. GREENHOUSE: She never like that “swing Justice Blackmun. vote” label, and I guess I’m wary of it also, AZAT: In some areas, you found that the because it sort of implies that a person AZAT: In contrast, you’ve said before that Court itself resisted change. In the book, hangs back and waits to see which way the Chief Justice Rehnquist probably never you deal to some extent with the gender wind is blowing, and then they swing in a changed his position on anything while on discrimination cases that came down. In certain direction. And I don’t think that was the Court. But Justice O’Connor left the almost every one, as you note, the Court her M.O. Court a far different person than the person found the State action was so extreme that I think rather she brought a very partic- who began on the Court. it violated the most basic level of scrutiny. But was that simply a safe harbor that GREENHOUSE: I allowed the Court to avoid naming gender think when she a suspect class worthy of strict scrutiny? first started, she had a few fixed GREENHOUSE: If you look at Frontiero [v. ideas [as in the Richardson, 411 U.S. 677 (1973)], the key Sandra Day O’Connor had a affirmative case, yeah, there was resistance. I think action cases, there’s always been some internal resistance sense of how the law plays out such as Shaw v. on the Court to the multi-tiered Equal Reno, 509 U.S. Protection scrutiny, so they just weren’t on the ground that made her 630 (1993)]. going to go there. You wouldn’t When you look at the VMI case, though perhaps less beholden to a set have predicted [518 U.S. 515 (1996)], when Ruth that she would Ginsburg wrote for the Court a kind of of ideological givens. write for the intermediate-level scrutiny-plus—I forget Court in the her exact formulation—that functionally the University of Court has really come 95 percent of the Michigan affir- way. So maybe the label doesn’t matter any- mative action more. ular perspective, which was not so much a case, reaffirming or even strengthening doctrinally impelled one, but a practical Bakke (438 U.S. 265 (1978)). But she came AZAT: Last June, you gave a speech at your sense, maybe based on the fact that she was to that position through her study of and alma mater, Radcliffe, at which you made the only member of that Court [during her understanding of where the country was on strong statements about the current White tenure] who had ever served in elective some of these issues, and what was really in House administration. You’ve gotten criti- office. So she had a sense of how the law the longer-term interest of the country. Do cized severely for that. Did you expect that? plays out on the ground that made her per- you want to just be very rigid about this and haps less beholden to a set of ideological say, “No way, ever, no matter what”? So I GREENHOUSE: No. Not at all. I didn’t write givens, that made her seem less predictable. think she changed in that respect. that to be provocative and edgy. It wasn’t I think [the term “swing vote” is] in a I think Chief Justice Rehnquist could received that way by my audience at all. It way sort of short-circuiting the contribution sort of modulate his vote, if you will, but was only, frankly, NPR and a bunch of sanc- she really made, which is to bring a real dose not necessarily his views. He could vote timonious media minders that I think dis- of pragmatism to the Court. And I think strategically, for instance in Dickerson [v. torted it and made it into something that it that accounts for a number of her more United States, 530 U.S. 428 (2000)), that wasn’t. important votes. refused to overturn Miranda. Not that he liked Miranda any better, not that he AZAT: But some of the issues you discussed AZAT: Your book title, Becoming Justice wouldn’t have voted the other way as a mat- at Radcliffe, it could be argued, are matters Blackmun, is intriguing. How did you come ter of first impression. But he just didn’t that could be taken up by the Court. Isn’t a up with it? think, in terms of the relationship between reporter overstepping when she voices pub- the Court and Congress, that this was the lic opinion on those topics?

22 ARIZONA ATTORNEY APRIL 2007 www.myazbar.org GREENHOUSE: The thing I was most criti- G REENHOUSE: cized for was saying that the Bush adminis- Well, it’s naive for tration had turned its attention to creating a anybody to think law-free zone in Guantanamo instead of that a person upholding the rule of law. Well, that was doesn’t have two years after the Court ruled in Rasul views. I guess I against Bush (542 U.S. 466 (2004)), that feel sorry for any- the administration was wrong to maintain body that’s either the position that American law did not so drowning in extend to Guantanamo. So far from being a their own sancti- pending case, it was res judicata. mony or having I didn’t state that to be edgy. I just such a limited view thought I was stating an obvious fact— that they really maybe an inconvenient fact, but that’s what think that a jour- the Court ruled, by a vote of 6 to 3. nalist or anybody else goes through AZAT: Looking back, then, you don’t think life never coming you violated any Times policies? to a conclusion about anything GREENHOUSE: Personally, no. I’m sorry my that they observe. editors didn’t feel that they could publicly But I do accept stand up for me in what I thought was a the conventions of kind of a swiftboating. I’m still angry about the trade that it, actually. that’s not part of the day job. But AZAT: In your book, you quote a commen- should I be free to tator who suggests that in DeShaney v. go talk to a group Winnebago County (489 U.S. 189 (1989)), of my fellow alum- Blackmun was finally “speaking without any nae on the occa- pretense of dispassionate neutrality” when sion of receiving he began his dissent “Poor Joshua.” Did their major annual award, and make a few to press beyond the bounds of existing you feel the same as you spoke at Radcliffe, personal observations? Yeah, I think I have political consensus, you’re going to get a that the time for dispassionate neutrality was that right. So be it. big problem. If he plays it to the middle, past? you’re not. AZAT: Have you gotten feedback from peo- If you want a good political fight, it’s GREENHOUSE: I wouldn’t say that. I’m not ple outside the press? easy to generate one. If you don’t, it’s easy at war with the notion that the role of a to avoid one. daily journalist, which is what I am, is not to GREENHOUSE: Yes. There was enormous inject your own passion into what you’re pushback. I think a lot of people are just AZAT: Have the confirmation questions covering, and I don’t think I do that. confused by the notion that it’s not enough and answers become too devoid of mean- I actually didn’t think I did that at to judge somebody by their actual pub- ing? Radcliffe. If you read the whole speech lished work, but you have to be their instead of the soundbites that NPR pulled babysitter and judge what they say, wherev- GREENHOUSE: Yeah, but in a way it’s out, it wasn’t about politics, it was really just er they may go, even in Phoenix, Arizona. become a teachable moment for the public, a generational sort of narrative. because the questions the senators ask, even AZAT: Shifting gears: Over time, have you if they don’t get very informative answers, AZAT: I did read the whole speech, and it found the Senate confirmation process for flag both for the public audience and for the was clearly generational, as you spoke to justices to be less informative and more nominee, “Here are the hot-button issues, those who had graduated with you in 1968. stage-managed? here’s what’s important.” And not that nonfiction is autobiography, I think it’s useful for the public to hear but do you feel you have reached a certain GREENHOUSE: Well, they’ve gotten more that, even if they end up scratching their point where you’re “becoming Linda toxic. But in my view, that all begins with heads and they don’t know what the nomi- Greenhouse,” especially as you spoke to the President, and it depends how the nee makes of it, at least they hear it unmedi- your fellow alums? President wants to play it. If he wants to use ated as part of the political discourse. And I AZ the power of Supreme Court confirmation think that has a value. AT

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