JUSTICE ON THE BRINK
Author: Metropolitan Books
Linda Greenhouse’s new book on the Supreme Court opens in October 2020, with the drama of Justice Amy Coney Barrett’s appointment by Donald Trump. By rights it should have started in 2009, when Barack Obama was president, Democrats controlled the Senate and Justice Ruth Bader Ginsburg was diagnosed with pancreatic cancer — her second cancer diagnosis in a decade. Ginsburg lived another 11 years, spectacularly beating the odds even after a third diagnosis in 2018. But in retrospect, nothing is clearer than that she should have resigned expeditiously after learning she had a cancer that has an average five-year survival rate of 10 per cent.
Ginsburg was playing Russian roulette with the future of abortion rights and civil rights. If a majority of the justices overturns Roe versus Wade in the current Supreme Court term, Ginsburg’s death in 2020 will be the most immediate cause. Mitch McConnell and the Republican Senate played a key role by blocking the appointment of then-Judge Merrick Garland toward the end of Obama’s term and then confirming Justices Neil Gorsuch, Brett Kavanaugh and Barrett. The vacancy created by Ginsburg’s death, however, was the crucial moment for a court on which Chief Justice John Roberts had migrated to the centre in the interest of preserving the court’s institutional legitimacy.
Greenhouse, who covered the Supreme Court for The New York Times for 30 years, from 1978 to 2008, is the acknowledged dean of living Supreme Court journalists. Her stated goal in Justice on the Brink is not analysing Ginsburg’s choice to retain her seat but “chronicling the life of the Supreme Court from July 2020 through June 2021.” She does an excellent job of describing the court’s jurisprudence during that year, interspersing short biographical observations of the justices and filling in useful background.
The challenge the book faces, therefore, doesn’t derive from Greenhouse’s admirably clear account of the court’s business. It’s the unfortunate fact that, in the year under consideration, the most important news about the Supreme Court consisted of things that the court’s activist conservative majority did not do.
With constitutional democracy on the line, and a sitting president outrageously denying the validity of the vote that would put him out of office, the Supreme Court did not overturn the valid and legitimate results of the 2020 presidential election, despite being invited to do so by Trump’s campaign lawyers. The court did not invalidate the Affordable Care Act, despite being asked to end Obamacare by Trump’s Department of Justice. And the court did not reverse 30-plus years of First Amendment precedent by creating a constitutional right to automatic exemptions from neutral, generally applicable laws, despite being expected to do so by just about every court watcher, myself included.
To make Greenhouse’s challenge greater still, in all these important cases, Barrett voted with the “don’t do it” side. By far her most important opinion since joining the court came in the crucial free exercise case Fulton v. City of Philadelphia, which dealt with whether a Catholic adoption agency was entitled to be exempt from regulations requiring it to treat gay adoptive parents like straight ones. Instead of providing the decisive vote for the exemption sought by the Catholic agency, Barrett wrote separately to question the idea of applying strict judicial scrutiny to all neutral, generally applicable laws that burden religion. This surprising, and thoughtful, opinion likely foreshadows the future direction of the law, to the evident frustration of Justices Samuel Alito and Neil Gorsuch. It means, almost certainly, that religious conservatives will not attain a victory that looked imminent — because Barrett will not deliver it.
As a result of covering the 2020-21 Supreme Court term, Justice on the Brink is quite literally a book about the highest court (and Barrett) being on the brink of potentially doing extreme things, like overturning Roe — without actually having done them yet. If the book had been delayed a year and extended through June of 2022, it could have included what are likely to be profoundly consequential, dramatic moments.
In the next half year, the court will decide what to do about a brilliant but dastardly Texas law that effectively bans abortion by enabling private parties but not the state to sue providers. The justices will take on the even bigger case of the Mississippi abortion law that outlaws abortion after 15 weeks’ gestation, also in direct contradiction to Supreme Court precedent.
Barrett’s appointment very well could turn out to be the springboard for the Supreme Court overturning Roe v. Wade. The court would then face a legitimacy challenge unmatched in more than a generation. The political and constitutional fights that would follow an overruling of Roe could shape national politics in other important ways. The Roe decision itself, after all, contributed to the realignment of the American political order by underwriting a new coalition of Protestant evangelicals and Catholics, groups once implacably opposed.
If some or all of this drama occurs in the months and years ahead, one can only be comforted by the knowledge that Linda Greenhouse will be here to write about it. Justice on the Brink will have been prologue. The action — terrifying in its prospect — lies ahead.