Federal Courts and Nominations

Greenhouse assesses the direction of the Roberts Court: “The government wins”


In a Harvard Law School lecture sponsored by the American Constitution Society, Linda Greenhouse, former Supreme Court correspondent for The New York Times, discussed “the Roberts Court at Five.”

Greenhouse, the best-selling author of “Becoming Justice Blackmun,” recently published “Before Roe v. Wade” with Yale Law School Professor Reva Siegel, examining the voices that shaped the landmark 1973 Supreme Court decision. Greenhouse will return to HLS with Siegel later this fall to discuss their book.

Greenhouse said her recent work has been “a journey back through the looking glass into a different constitutional universe when you could plausibly make arguments to the Court that simply couldn’t be made today.”

As the Roberts’ Court enters its fifth year, Greenhouse remarked that critics might argue that it is “silencing or simply not hearing the voices of ordinary people seeking to vindicate their rights in court or to exercise their rights as citizens.”

When recapping last term’s decisions, Greenhouse said that the Citizens United case, in which the Court  ruled that corporations are free to make unlimited campaign contributions, perhaps most illustrates the Roberts Court’s tendency to favor business over the individual, “to amplify corporate voice in our electoral marketplace.”

“In the John Roberts cosmology,” Greenhouse said, “the government wins.” She added that in the area of criminal law this is “particularly evident” in Berghuis v. Thompkins, which “relieved the government of much of the burden of proving a waiver of Miranda.”

Between the corporation and the individual, Greenhouse suggested, the Roberts majority consistently favors industry interests. Citing a Constitutional Accountability Center study, she said that in the 19 closest cases from the past five terms, the Court has sided with the U.S. Chamber of Commerce 74 percent of the time. According to the same study, Justice Samuel Alito voted with the Chamber in 100 percent of those cases.

However, Greenhouse hasn’t observed a clear pattern on the Roberts Court “when it comes to a contest between Congress and the states—or a dispute over the reach of federal power generally.”

Greenhouse said that the Court’s second newest member, Justice Sonia Sotomayor, has become a reliable vote in the Stevens-Ginsburg-Breyer bloc. In eight cases decided 5-to-4  last term, Sotomayor allied herself with the other three justices.

As to whether the Court will allow cameras into its courtroom, Greenhouse said the chances are slim. “It’s abundantly clear that the Roberts court would like to close doors, both literally and figuratively.”

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