Linda Greenhouse knows what judges know

BY ANDREW KALLOCH

Linda Greenhouse

Linda Greenhouse, the Pulitzer Prize-winning reporter who covered the Supreme Court for the New York Times from 1978-2008, was the keynote speaker at the Third Annual Women’s Law Association Conference on Friday, February 20.Greenhouse’s speech, “What Judges Know,” focused on the struggle of coming to a consensus about the role of women in the judiciary and the process by which judges are informed about the realities of the world. Greenhouse opened with a historical vignette that evoked the tension of asserting the importance of women in the law while simultaneously fighting against gender stereotyping.

Greenhouse recounted that when Judge Shirley Abrahamson was nominated to Wisconsin Supreme Court in 1976-becoming, at the time, the only female judge in Wisconsin at a time when only eight woman had ever sat on Article III courts-reporters asked Abrahamson, “Were you appointed because you were a woman? Were you appointed as a token woman? Do you feel you represent women on the court? And do you think women on the court will make a difference?”

Greenhouse recalled the challenge that the questions posed to a woman whose appointment was based on merit. Indeed, Abrahamson, the only woman in her law school class, graduated first in the Class of 1956 at Indiana Law School. Greenhouse described the difficulty in answering these queries. “The questioner usually has a list of positive qualities associated with women. Naturally I want these qualities attributed to me, but I have spent a lifetime fighting these stereotypes.” Ultimately, Abrahamson told reporters that she would bring all her life experiences to the bench, including “being female.”

Greenhouse noted that even today, in an era in which over 25% of the federal judiciary is female and twenty of the State Chief Justices are women, “The question of whether [gender] makes a difference remains a delicate one.” Indeed, Greenhouse opined that we “cringe from the stereotypes implied in the question,” while at the same time responding to unfriendly reproductive rights cases written by men by saying “women would never write that.”

Taking a page out of Professor Cass Sunstein’s ’78 playbook, Greenhouse used statistics to showcase differences in the jurisprudence of men and women. According to Greenhouse, women rule in favor of sex discrimination claimants significantly more often than male judges. However, males become more favorably inclined toward sex discrimination claims when sitting on panels with at least one woman. “Are the male judges just being polite or politically correct? That hardly seems likely,” Greenhouse said, while simultaneously wondering whether younger women on the bench who don’t “see themselves as barrier-breaking pioneers” will continue to be so friendly to sex discrimination cases.

Fundamentally, Greenhouse concluded, the answer to the question, “How do judges know what they know or what they think they know,” can only be answered in the broadest terms-i.e. that the worldview of a judge is influenced by all her life experiences, including the experiences unique to one’s race, sex, and class.Greenhouse used Justice John Paul Stevens’ dissent in the 2007 case of Scott v. Harris as an example of this phenomenon. Stevens, the Courts oldest member and the lone dissenter in Scott, chastised the majority, stating, “Had they learned to drive when most high-speed driving took place on two-lane roads rather than on superhighways-when split-second judgments about the risk of passing a slow poke in the face of oncoming traffic were routine-they might well have reacted to the videotape more dispassionately.” Scott v. Harris, 550 U.S. 372, 390 (2007).

Thus, Greenhouse stated, Stevens’ approach to the question of whether the police conduct was reasonable was undeniably colored by his own experience as a young driver seventy-five years ago. Moreover, Greenhouse cited a survey taken after Scott, in which people were shown the video of the police chase and asked to determine whether the police were reasonable in their actions. The data showed statistically significant differences in opinion based on race, gender, and even where the survey participant grew up.

Greenhouse also cited Gonzales v. Carhart (550 U.S. 124) (2007), as another example of a judge assuming an incorrect worldview based on his life experiences or lack thereof. In Carhart, a case concerning the constitutionality of the ban on so-called “partial-birth” abortions, Justice Anthony Kennedy ’61 declared that it was “self-evident” that woman who use partial birth abortion must suffer more sadness. Greenhouse noted that Kennedy offered no citation or factual background for his assertion, instead presuming the truth of “post-abortion syndrome,” despite the fact that the syndrome is not recognized by any medical or psychological organization.The best judges, Greenhouse noted, are those who are willing to learn from their mistakes and accept truths that are not immediately apparent from their own worldview. As an example, Greenhouse cited Justice Sandra Day O’Connor’s discussion of viability in abortion cases.

In 1983, O’Connor wrote that because technology was making viability closer and closer to conception, “The Roe framework, then, is clearly on a collision course with itself. City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 458 (1983). However, six years later, the American Medical Association submitted an amicus brief that stated, “there is an ‘anatomic threshold’ for fetal viability of about 23-24 weeks of gestation.” Webster v. Reprod. Health Servs., 492 U.S. 490, 554 (1989). O’Connor never mentioned the “collision course” again.

In response to a question about the worldview’s of the Roberts Court, Greenhouse noted that the decision in Ledbetter v. Goodyear Tire (550 U.S. 618 (2007)), which held that an employee’ claim of sex discrimination was time-barred, symbolized the “parsimonious nature of the Roberts Court’s philosophy about access to court for citizens.”Greenhouse continued, “They [the Ledbetter majority] don’t appear to know much about the workplace…I don’t believe Justice [Samuel] Alito has ever cashed a paycheck that has not been issued by the Federal Government. Any woman my age can tell stories of learning of pay discrepancies long after they started.”

While criticizing the Court for its worldview in Ledbetter, Greenhouse did laud the Court’s improved use of technology. Greenhouse said that Chief Justice John G. Roberts ’79 has helped make the Court, “More accessible to the public than at any time in our history,” by posting transcripts of argument on the Court’s website. Greenhouse was also adamant that the use of cameras in the Court would not take away from the Court’s prestige.

Despite her storied tenure as the Court beat-writer, Greenhouse, a 1968 graduate of Radcliffe College, is not a trained attorney. She received a Masters in the Study of Law from Yale in 1978, a one-year program designed for “non-lawyers who want to obtain a basic familiarity with legal thought and to explore the relation of law to their disciplines,” according to YLS. Greenhouse joked about her lack of academic credentials, stating, “I’m not a lawyer but I played one on TV for many years.”

Greenhouse also spoke briefly about her career path, insisting that while “from the outside my career may look well-planed…it really wasn’t planned, it kind of happened.” She noted how the Supreme Court beat was actually “pretty family-friendly” as it rarely required travel or work on the weekends. Indeed, despite Greenhouse’s “mad crush” on John F. Kennedy and political campaigns (an obsession that she says led her to seek a career in journalism), she declined to cover the 1988 Presidential campaign for the Times, in part because she had a two year old daughter.

While celebrated for her decades of service as a reporter, Greenhouse’s career has not been without controversy. During a speech at Harvard in 2006, Greenhouse slammed American action at Guan
tanamo Bay and Abu Ghraib, and noted the “assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” Her comments were widely criticized for compromising her journalistic objectivity.

Greenhouse responded forcefully to questions about the importance of objectivity, stating, “I thought it was my job to process the material and come to some view about the significance of a decision and synthesize it for the reader. It is the job of the journalist to take everything you are hearing and…to use some intelligence and assess it.” She added that neutering the voice of the journalist was antithetical to the Founding generation’s vision for the First Amendment. The job of the journalist, the Pulitzer Prize winner declared, is “to inform, not just to be a megaphone for the spin machine.”

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