There are Supreme Court commentators, and then there’s Linda Greenhouse.
No one else has Greenhouse’s talent for explaining the significance of the court’s decisions, not to mention her access to seemingly everyone in Washington, D.C., and her sheer talent as a writer. For decades, she has been a familiar face at Supreme Court arguments—think Anna Wintour at Fashion Week or Spike Lee at Knicks games—writing over 2,800 articles for The New York Times and lately writing and lecturing at Yale Law School.
Now, Greenhouse has turned her attention to the slow-motion revolution underway at the Supreme Court, in a new book entitled Justice on the Brink . As the book shows in occasionally excruciating detail, we are living in an unprecedented moment for the court: Three hard-right justices, each handpicked by religious extremists and confirmed under clouds of illegitimacy, are part of a 6-3 conservative majority “on the brink,” as Greenhouse’s title suggests, of radically transforming the way our republic regards civil rights, the equal protection of the laws, and the nature of our democracy itself.
In part, Justice on the Brink argues that this transformation has already taken place with the appointment of Justice Amy Coney Barrett, rushed onto the court after the 2020 presidential election had already begun. Some of my fellow Supreme Court commentators have agreed, arguing that the court now effectively belongs to Barrett.
But this seems premature. Though there have been some rumblings of change, as Greenhouse describes, surely we are still on the brink—not there yet. Far more sweeping changes are coming this term, with the court poised to overturn or limit Roe v. Wade, greatly expand the reach of the Second Amendment, and shrink the reach of the administrative state.
In fact, in Greenhouse’s presentation of the “twelve months that transformed the Supreme Court,” one is struck by how much the court was not transformed. It survived perhaps the greatest threat to its legitimacy: Donald Trump’s outrageous efforts to undo the 2020 election. There was no 2020 version of Bush v. Gore, which handed the election to Bush, contradicted decades of Supreme Court precedent (in particular regarding deference to state courts), and permanently tarnished the court’s reputation. In fact, the Supreme Court swatted away Trump’s frivolous lawsuits, much to the ire of the ex-president, whose outrage Greenhouse reports verbatim. “We got him through,” Trump said of Justice Brett Kavanaugh on Jan. 6, while inciting an insurrection against Congress. “And you know what? They couldn’t give a damn… They’re all going out of their way to hurt all of us, and to hurt our country.”
Not only did the court “fail” to cave to Trump, the already-transformed Supreme Court voted 6-3 to dismiss a partisan challenge to the Affordable Care Act for lack of standing, and 6-3 to exempt a Catholic foster care agency from civil rights laws on narrow grounds, rather than on the broad, far-reaching basis that Christian Right organizations had demanded. Both of those results were judicially conservative, but with results that favored (or at least didn’t trash) liberal interests.
Indeed, Greenhouse states plainly regarding the foster care case, “the winner in Fulton was Roberts.” This was not a court that had been transformed; it was a court that showed surprising resilience in the face of enormous pressure.
True, on the last day of the term, the court announced two hard-right decisions on voting rights (anti) and dark money (pro). But those would have gone the same way before the Ginsburg-Barrett switch, and Chief Justice John Roberts, whom Greenhouse depicts as a pragmatist moderate, has in fact been eviscerating voting rights for decades.
Rather than focus on these high-profile decisions, Greenhouse spends a great deal of time on minor cases—death penalty appeals, various administrative law decisions, an expansion of the rights of religious schools—that, she says, show a steady drip-drip-drip rightward. Perhaps, but here Justice on the Brink reads like too much Greenhouse the court observer and too little Greenhouse the social commentator. Even for a Supreme Court nerd, these smaller matters seem like too many trees, too little forest.
Where Greenhouse’s argument is strongest, however, is in the area of religion. Here, the court really did undergo a revolution when Justice Barrett ascended to the bench, and the proof is in a series of four cases about COVID-19 regulations, and whether religious institutions may be bound by them. The two cases decided with Justice Ginsburg on the court ruled for governments seeking to protect public health; the two with Justice Barrett for churches seeking exemptions from those rules.
What’s more (and here Greenhouse downplays the radical nature of the court’s conservative majority), the court’s hard right claimed over and over again that states were discriminating against religious institutions by holding them to scientifically justified standards. Justice Kavanaugh complained that California’s rules “discriminate against places of worship and in favor of comparable secular businesses,” even though pharmacies (one of his examples) are not epidemiologically comparable with churches, where large groups of people congregate, speak, and sing for an hour. Justice Gorsuch sniped that in Nevada, “it is better to be in entertainment than religion” even though casinos are, in fact, less dangerous than churches when it comes to COVID transmission, and wrote that a California rule that treated churches differently from bus terminals (once again, quite different epidemiologically), amounts to “a State so obviously target[ing] religion for differential treatment.”
This is all, frankly, bizarre. One needn’t be Anthony Fauci to understand that a church is more favorable to SARS-CoV-2 than a bus terminal or a pharmacy. What is going on?
Here, perhaps, is the weakest point in Greenhouse’s book: its refusal to engage, for more than a couple of pages anyway, with the by-now well-established pipeline— first revealed in these pages, later dramatized during Justice Barrett’s confirmation hearings by Senator Sheldon Whitehouse—that connects dark-money religious extremists (mostly extreme-right Catholic, though if anyone points that out, they are immediately accused of bigotry) to the Federalist Society, Judicial Crisis Network, and other shell organizations formerly run by D.C. player Leonard Leo, to the Trump White House and the Supreme Court.
This pipeline gave us all three of Trump’s justices: the one sitting in a seat stolen from President Obama, the one seated under a cloud of uninvestigated sexual assault allegations, and the one confirmed while the corpse of her predecessor was still warm and Senate Republicans explored the farcical far reaches of hypocrisy.
And all this Christian Right, religious extremist money—from where, we may never know—has now shifted the balance of the court for a generation, unless by some miracle the moderate Democrats in the Senate can be persuaded to rebalance it through reform. (Don’t count on it.) As the COVID cases showed, these new justices inhabit a religious-ideological world quite unlike that of most Americans, in which a secularist government hatches plots against churches, and Christians are persecuted.
Belying the claim that it is somehow inappropriate to inquire into those backgrounds, they have all been quite outspoken about grounding their decisions in those beliefs, values, and experiences, Justice Barrett in law review articles, Justice Gorsuch in opinions, Justice Alito in fiery speeches. Senator Dianne Feinstein was right about Justice Barrett: the dogma lives loudly within her. Loudly—not merely vibrantly or spiritually, but with a voice that now can determine the law for hundreds of millions of people.
At a speech at the University of Louisville, Justice Barrett recently complained that much of the public views the court as “a bunch of partisan hacks.” But that is not the real complaint. The problem isn’t that these new justices are partisan or hacks; they are neither. The problem is that they are religious activists hostile to secular culture while complaining of secular culture’s hostility to religion. I’m not sure which is more terrifying: that these intelligent and accomplished jurists are cynically effacing the scientific differences between a church and a drugstore, or that they actually can’t see them.
Either way, as Linda Greenhouse’s volume has shown, the court is indeed on the brink of a new era, unlike any we have seen before.
