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Constitution Day Speaker Considers Implications of U.S. Supreme Court Calling Out Political Actors

September 28, 2017
By Jordan Poll

The University of Michigan’s annual Constitution Day celebration featured a journalist with an insider’s view of the U.S. Supreme Court.

Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes a biweekly column about the U.S. Supreme Court and the law in The New York Times. She reported on the Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author of The U.S. Supreme Court: A Very Short Introduction, as well as a biography of Justice Harry Blackmun, Becoming Justice Blackmun. She also co-authored Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.

Amid lawsuits surrounding President Trump’s travel ban, Greenhouse came to Michigan Law to discuss what happens when the Court calls out political actors for acting in bad faith, and the implications such actions have on the Constitution.

“I’m not going to talk directly about the Constitution, but rather, the living of it,” said Greenhouse, who began by examining the relationship between the Court and state legislatures. “We are seeing federal courts taking hard looks at the actions of state legislatures and finding laws that are invalid under the Constitution,” she said. While it may sound unusual for the Court to exercise its power of judicial review, Greenhouse assured it is not. “What makes these rulings exceptional isn’t the subject matter or even the outcome. It is the Court calling out state legislatures for setting out to violate the rights of others—that really is something rare.”

Greenhouse then focused on cases she described as being “neutral on their face,” but that the Court found to be discriminatory in motive. “In these interesting cases, standing more than 50 years, we have seen determination by the Court not to let itself be fooled by legislative enactments that were ‘fair in form,’” said Greenhouse, referring to Yick Wo v. Hopkins, Guinn v. United States, and González v. Douglas. “If the impact was foreseeably not fair and ill intent shown through, the justices were occasionally willing to look under the legislative rug. Then things changed.”

Palmer v. Thompson also was among the cases she discussed. When Jackson, Mississippi, decided to close all of its pools instead of desegregating them, black citizens brought this action to the U.S. Supreme Court—mainly on equal protection grounds—to force the city to reopen and operate the pools on a desegregated basis. “The plaintiffs lost by a 5-4 vote, which surely would have come out the other way had Earl Warren and Abe Fortas still been on the Court instead of their replacements: Warren Burger and Harry Blackmun,” said Greenhouse. “As the Warren Court era faded, and the Court became more conservative with President Nixon’s appointments to the Burger Court, the U.S. Supreme Court retreated to a see-no-evil posture.”

In evidence of the Court’s shift in stance in recent years, Greenhouse highlighted the statements of Justice Stephen Breyer in Whole Woman's Health v. Hellerstedt. “I read his opinion as a checklist that will have the effect of preventing legislatures from invoking bad or nonexistent science as a cover for policy objectives that violate individual rights protected by U.S. Supreme Court precedent,” said Greenhouse. She agreed with his assertion that judges must not take legislature simply as face value. “They must look at evidence and context when protecting a constitutional right,” she noted.

After starting with a promise to address “the elephant in the room,” Greenhouse turned the discussion to Trump v. International Refugee Assistance Project (IRAP). “What is distinct about this case? There is no problem of escribing through the motives of a multi-member body that were perhaps contradictory or even absent,” said Greenhouse. However, that doesn’t make the Court’s job any easier. “When it comes to presidential executive orders, judicial deference to the president borders on the extreme. According to a recent study, of 152 U.S. Supreme Court and D.C. Circuit cases that involve challenges to executive orders, the executive prevailed more than 70 percent of the time. When it came to questions of foreign invasions, more than 90 percent. Will Trump v. IRAP be the exception? Should it be?”

Greenhouse looked to Boumediene v. Bush for precedent. “Through the frame of this statutory case, the Court set something crucial at stake: the rule of law itself,” she said. “Are we at another such point today? I read Trump v. IRAP as the answer to that question.”

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