A Behind-the-Scenes Look at the Conservative Supreme Court

Linda Greenhouse, the longtime New York TimesSupreme Court reporter, has been called the dean of SCOTUS reporters; however, she rejects this honor, giving deference to others like NPR's Nina Totenberg.

But given her longevity and rich history with the court, I wanted to know what one case stood out for her during her over 30 years of covering the high court. She said there were several but chose Lawrence v. Texas.

That case is one of the most monumental in LGBTQ+ history. In a 6-3 decision, the court ruled that state laws banning sodomy were unconstitutional and a violation of the right to privacy.

"When Justice Anthony Kennedy announced Lawrence, there is a bar section in the courtroom, where members of the court's bar are seated," Greenhouse told me during a phone call. "It was the last day of the court's session, so LGBTQ bar lawyers knew that the Lawrence decision was going to be handed down that day, so they came and filled the seats."

"And when it was announced, people were crying, most notably the lawyers seated in the bar section. I ran back to the phone, called my editor with the news, and he started to cry too. Somebody who was in the room that day said that after Lawrence was announced, conservative Justice Sandra Day O'Connor was looking up and down the aisles of the lawyers crying in the bar section, and she seemed surprised there were so many gay lawyers that had appeared before the court."

Greenhouse knows the court, better than anyone perhaps, which is why her new book is a must-read. Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court, looks back at a year that changed the face, dynamic, and direction of SCOTUS.

"We just completed a wild term with three new justices and with the death of the iconic Ginsburg, who was replaced with someone who is almost the complete opposite of her," Greenhouse said. "That's why I decided to write this book, because of how dramatic the whole year was. That, and it sounded like a great pandemic project."

Public health, and as it pertains to rulings on mandates, is one of the things Greenhouse feels is being affected by the court elevating religion "over discrimination, equal rights, and America's health. Now all you need to do to get the court's attention is show religious motivation," she explained.

"When the court left in place the decision that allowed a lawsuit to move forward against Kim Davis, the Kentucky clerk who was jailed in 2015 after refusing to issue marriage licenses to same-sex couples, everyone knew that it wasn't worth the court's attention," Greenhouse pointed out.

"When the court refused to take the case, Alito and Thomas took the opportunity to make a statement and a billboard out of it. They said that religious people were being victimized by the Obergefell gay marriage case in point."

With that said, Greenhouse thinks the court will leave marriage equality alone. "I don't think gay marriage is going to be overturned, but they made it clear that they now have a victim of gay marriage in Davis," she said. "I think that's the outcome of any LGBTQ rulings in the future will be about religious discrimination, as long as discrimination is in play; thus, you wonder what the future holds for small business owners and others who refuse to participate in gay weddings. They will claim religious discrimination, which a conservative court is sympathetic to."

I told Greenhouse about a column I wrote on Justice Amy Coney Barrett using the term "sexual preference" rather than sexual orientation during her confirmation hearings. Was that a dog whistle to the right? "I don't feel that Coney Barrett has an agenda against the LGBTQ community; however, I am as anxious as you are to see how she does handle LGBTQ cases that the court chooses to hear," Greenhouse said.

As for gun and abortion rights, Greenhouse sees ominous signs. She explained that the court really hasn't done anything on guns since the Heller case in 2008, in which the courst held for the first time in American history that the Second Amendment protects an individual right to own a gun for personal "self-defense." "The court has said recently that the Second Amendment has become a second-class right," she said.

Greenhouse talked about the New York gun case on which the court heard oral arguments at the beginning of the month. The case is a challenge to a 108-year-old New York State law requiring anyone who wishes to carry a handgun in public to demonstrate proper cause before they can obtain a license allowing them to do so.

"That case could go a long way to limit the government's power to regulate guns," Greenhouse noted. "The Heller law is not long for this world, since the court will likely rule against New York State."

And,what does Greenhouse see as the future of abortion rights? "I don't think the court will overturn Roe explicitly, but will it overturn if functionally," she said. "Behind the scenes, the justices debated for months in private conference inside the court about taking the Mississippi case [involving the Mississippi law that bars most abortions after 15 weeks]. They don't have to take any case, so when they decided to take Mississippi after all that debating internally, they clearly had a reason for doing it."

Concerning Roe v. Wade, I asked Greenhouse if Chief Justice John Roberts would continue to play the moderate and side with the liberals on abortion cases. "I'm not sure Roberts won't dissent," she said. "He would not be sad if Roe v. Wade went away."

Finally, Greenhouse devotes time to the late Justice Ruth Bader Ginsburg. She points out that the majority conservative court could have been avoided if Ginsburg resigned when first diagnosed with pancreatic cancer. "I'm not a doctor, and there's different kinds of pancreatic cancer, and I've lost many friends to it; however, in 2009, she was treated, and she was given a diagnosis that it wasn't going to end her life immediately," Greenhouse theorized.

"Was she being selfish? No, she was simply placing her bets, and one of those was on Hillary Clinton being elected in 2016, and when that didn't happen, she was trying to hang on until January 2021 when Biden would be sworn in."

Greenhouse said we should be glad that Ginsburg stayed on the court, because her voice became one of the most important and powerful on the court during those last nine to 10 years of her term. "She was a powerful dissenter to Scalia, Alito, and Thomas, who lurched the court to the right," Greenhouse said.

Finally, I asked if Justices Sotomayor, Breyer, and Kagan might feel a bit powerless given the 6-3 advantage of the conservatives on the court. "First, I think that there is something to be said for the fact that there really is no leader on this court. You have some, like Thomas, vying for that. But I can't name a single leader," she said.

"But power is another story. And the liberal justices have the power of their voices. And through their dissents, they are writing history. They want to make sure that what happens in court is understood by people in the future who try to interpret this court's decisions."