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On February 15, Linda Greenhouse, a Pulitzer Prize-winning reporter for TheNew York Times, spoke at Arizona StateUniversity. She was there at the invitationof the ASU School of Justice & SocialInquiry, and she presented the seventhannual John P. Frank Memorial Lecture.Her talk—“Change and Continuity on theSupreme Court—arose from research shehad done in the archived papers ofSupreme Court Associate Justice HarryBlackmun. That research led to a series ofarticles in the Times, as well as a book—Becoming Justice Blackmun: HarryBlackmun’s Supreme Court Journey.

Earlier in the day of her lecture,Greenhouse sat down and spoke withARIZONA ATTORNEY magazine.

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BY TIM EIGO

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ARIZONA ATTORNEY: Justice Blackmun’sestate gave you the opportunity to researchhis archived papers two months before theywere made public. Would you have jumpedat the chance if it had been offered by anyjustice’s estate, or did you especially prizethe chance to peer into Justice Blackmun’spapers?

LINDA GREENHOUSE: His papers werereputed to be a fabulous Supreme Courtcollection, because he was known as a realpackrat; he saved everything. Compared toalmost any other collection of SupremeCourt papers, they were expected to besomething special.

I would have jumped at the opportunityto get into anything having to do with theCourt behind the scenes, so it was a fortu-ity that it happened to be a very rich collec-tion.

AZAT: Was it well organized?

GREENHOUSE: It was, but it was huge.There were half a million documents,almost 1,600 boxes. I had this two-monthhead start, but that had to include time forwriting, so let’s say it was really six weeks, orfive weeks, leaving time to write. So whereto begin?

I was able to hire a research assistant,named Frank Lorson, who had just retiredas the longtime career chief deputy clerk ofthe Supreme Court, so he really knew thesubject. So between the two of us, wedevised a roadmap to the collection, whichis online at the Library of Congress(www.loc.gov/rr/mss/blackmun).

AZAT: Did you stick to the roadmap?

GREENHOUSE: Like any process of originalresearch, the happenstance happily tookover. For instance, there’s a set of files thatare just called “Justice Files.” And they’reevery Justice that he served with, in alpha-betical order. I started going through thoseon the second or third day, in order. Andthe first one I picked up was Hugo Black,which was a very thin file, because they onlyoverlapped for a year and a couple ofmonths.

Well, the first document was a memofrom Black to Blackmun, with copies to allof the other Justices, bitterly complaining

about Blackmun’s tardiness in circulating adissenting opinion, and therefore holdingup Black’s circulating his majority opinion.It was very sharply written, and it includedBlackmun’s very wounded and defensiveresponse. And I thought, “Whoa, has thisever seen the light of day anywhere?” As faras I could tell, it hadn’t. So it just kind ofdraws you in.

Then there was the decades of corre-spondence between Blackmun and[Warren] Burger. That was just a treasuretrove, because it documented the nature ofthat unusual relationship.

AZAT: Did it surprise you how thin-skinnedJustice Blackmun was?

GREENHOUSE: It surprised me. His littlenotes to himself in this kind of runningchronology that he kept for all his years onthe Court—not quite a diary, but a“chronology,” he called it—where hewould say things like, “The Chief Justicespoke sharply to me today inConference”—it was surprising.

He was a very sensitive person, and thathad its pluses and its minuses. I have tothink it was a minus in some of his interac-tions with his peers; it was a plus in invest-ing him with a kind of compassion for theunderdog that informed some of hisjurisprudence.

AZAT: When you first began reviewing thepapers, it was with an eye toward writingarticles in the Times. Was it only later thatyou thought there was a book in this?

GREENHOUSE: I didn’t have any idea. I hadno anticipation of ever writing a book. Theday that the first of the articles appeared, Igot a call from a publisher—Henry Holt—from one of their editors, Paul Golob, whosaid, “I want to talk to you about turningthis into a book.”

At first, I said, “No, I have to get backto my day job. I’m way behind. I’ve beenaway for two months.” But we did talk, andhe is a wonderful book editor. Not onlythat, but he’s a real Supreme Courtgroupie, and was very well read in SupremeCourt material, as a matter of his personalinterest. So it occurred to me that togetherwe could make this work, and working withhim would be added value to the project,

because he just seemed so smart about it—which was a good judgment on my part,because it turned out to be true. It was a lotof fun working with him.

AZAT: Did you ever consider adding othermaterials, such as the views of scholars orformer clerks?

GREENHOUSE: No. As I said, I had a dayjob. The deal with the book was, it had tobe something I could write over the sum-mer, and turn in the manuscript by the timethe next Term of Court began on the firstMonday in October. That precluded roam-ing the countryside and tracking down lawclerks and going outside the record. Thewhole construct was going to be, it’s HarryBlackmun as revealed in his collectedpapers. Whatever I could extract from thatto make a coherent narrative of the man’slife. And it was going to stand or fall on thatbasis.

AZAT: Reading the book, Blackmun doesnot sound like a man crafting his legacy inhis papers.

GREENHOUSE: No. He saved everything.Now, the question is why did he decide tohave them released that soon, only five yearsafter his death? Typically, it’s been “after thedeath of everybody I served with.”

Some of his law clerks who had beenadvising him on various aspects of his estatesaid, “Mr. Justice, don’t you think that’skind of soon. Don’t you want to wait?” Andhe said, no, this is what I want.

Of course, he had no way of knowingthat in that 10-year period [from his retire-ment until his death], nobody else wouldhave retired. He could not have anticipatedthat, because that was a historically longperiod without turnover at the Court. So itmade it seem even sooner than it was,because his papers revealed the interactionsof the exact same people who were on theCourt when he was there. That was a bonusobviously as far as I was concerned.

So his view of his legacy was revealed.He must have felt that he had a story to

tell, that his papers would tell that story, andthat he wanted it told in almost real time, sothat the people who heard it would be peo-ple who had lived through it and could

appreciate whatever it was he thought hewas saying.

AZAT: His words revealed a man who careda lot about what people thought.

GREENHOUSE: He did, and he probablywanted to get his life and work out thereunmediated: “Here it is, make of it whatyou will.”

AZAT: Looming over the entire book wasWarren Burger,almost a tragic fig-ure. Is that overstat-ing the case?

GREENHOUSE: No,I agree with you. Forme, that was thebiggest surprise. Iknew Burger; Iwrote his obit. Iwrote Blackmun’sobit. So I knew thetrajectory of both oftheir lives and howthey had been closeearly on and haddrifted apart later on.But the flavor, thetexture of it, theincredible closenessin their young adultlives, and the bitter-ness of the separa-tion that came through in the letters, thecommunications, the Blackmun diaryentries, and so on. That was a surprise, andI actually ended up more empathetic forBurger than I would have anticipated,because he did seem like such an emotion-ally needy person. And you had to end upfeeling like there was a kind of a tragedythere.

AZAT: Reading your book, one is given theimpression that Burger had little awarenessof his own motivations and the sources ofhis anger. On the other hand, Blackmunseemed preoccupied with self-awareness.

GREENHOUSE: I agree. Burger had no senseof how he came across to other people, nosuperintending eye on himself.

Blackmun maybe erred in the otherdirection; he was preoccupied with whatother people thought. So it ended up likeoil and water, which we know is not a goodcombination.

AZAT: An Arizona lawyer who was also aChief Justice, William Rehnquist, died in2005. Is it too early to say what his legacyis? Could it be federalism, or is it that he wasa good administrator and a good colleague,a breath of fresh air after Warren Burger?

GREENHOUSE: It probably is too early. Myinitial take on him was, [he was] probablyone of the country’s great Chief Justices.He was not only a good administrator, butgreat in the sense that he had a vision and hewas able to project that vision onto theCourt, and turn things in his direction.

I’m not sure whether that will hold up; Ithink it’s too soon to say. I don’t knowwhether the Rehnquist so-called federalismrevolution is going to last; it doesn’t seemto have a lot of momentum right now.

He ended up his last couple of yearsbeing kind of to the right of the workingmajority at the Court, and was in dissent onsome of the major cases in his last couple ofTerms.

He certainly had a long tenure; I thinkhe was a very well-respected figure. What

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I don’t know whether the Rehnquist so-calledfederalism revolution isgoing to last; it doesn’t

seem to have a lot ofmomentum right now.

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his lasting contribution is going to be, Ithink we’re probably decades from beingable to really assess that.

AZAT: As for Sandra Day O’Connor, shegot the appellation “swing vote.” Was thataccurate?

GREENHOUSE: She never like that “swingvote” label, and I guess I’m wary of it also,because it sort of implies that a personhangs back and waits to see which way thewind is blowing, and then they swing in acertain direction. And I don’t think that washer M.O.

I think rather she brought a very partic-

ular perspective, which was not so much adoctrinally impelled one, but a practicalsense, maybe based on the fact that she wasthe only member of that Court [during hertenure] who had ever served in electiveoffice. So she had a sense of how the lawplays out on the ground that made her per-haps less beholden to a set of ideologicalgivens, that made her seem less predictable.

I think [the term “swing vote” is] in away sort of short-circuiting the contributionshe really made, which is to bring a real doseof pragmatism to the Court. And I thinkthat accounts for a number of her moreimportant votes.

AZAT: Your book title, Becoming JusticeBlackmun, is intriguing. How did you comeup with it?

GREENHOUSE: I came up with it after writ-ing the last lines of the book. Blackmun, latein life, had given a speech saying he had feltlike a cork bobbing on the waters of a mov-ing stream. It was sort of an odd image, butit gave me this little thing to play withmetaphorically about swimming and thewater and reaching the shore and becomingJustice Blackmun.

AZAT: In contrast, you’ve said before thatChief Justice Rehnquist probably neverchanged his position on anything while onthe Court. But Justice O’Connor left theCourt a far different person than the personwho began on the Court.

GREENHOUSE: Ithink when shefirst started, shehad a few fixedideas [as in thea f f i r m a t i v eaction cases,such as Shaw v.Reno, 509 U.S.630 (1993)].You wouldn’thave predictedthat she wouldwrite for theCourt in theUniversity ofMichigan affir-mative action

case, reaffirming or even strengtheningBakke (438 U.S. 265 (1978)). But she cameto that position through her study of andunderstanding of where the country was onsome of these issues, and what was really inthe longer-term interest of the country. Doyou want to just be very rigid about this andsay, “No way, ever, no matter what”? So Ithink she changed in that respect.

I think Chief Justice Rehnquist couldsort of modulate his vote, if you will, butnot necessarily his views. He could votestrategically, for instance in Dickerson [v.United States, 530 U.S. 428 (2000)), thatrefused to overturn Miranda. Not that heliked Miranda any better, not that hewouldn’t have voted the other way as a mat-ter of first impression. But he just didn’tthink, in terms of the relationship betweenthe Court and Congress, that this was the

time for the Court to take a back seat toCongress, and say “You’re right, you reallyhave the right to overturn Miranda legisla-tively.” He just wasn’t going to say that.

So that wasn’t a matter of changing hisview. That was a matter of his strategic senseof where the Court ought to be at a givenmoment.

AZAT: In some areas, you found that theCourt itself resisted change. In the book,you deal to some extent with the genderdiscrimination cases that came down. Inalmost every one, as you note, the Courtfound the State action was so extreme thatit violated the most basic level of scrutiny.But was that simply a safe harbor thatallowed the Court to avoid naming gendera suspect class worthy of strict scrutiny?

GREENHOUSE: If you look at Frontiero [v.Richardson, 411 U.S. 677 (1973)], the keycase, yeah, there was resistance. I thinkthere’s always been some internal resistanceon the Court to the multi-tiered EqualProtection scrutiny, so they just weren’tgoing to go there.

When you look at the VMI case, though[518 U.S. 515 (1996)], when RuthGinsburg wrote for the Court a kind ofintermediate-level scrutiny-plus—I forgether exact formulation—that functionally theCourt has really come 95 percent of theway. So maybe the label doesn’t matter any-more.

AZAT: Last June, you gave a speech at youralma mater, Radcliffe, at which you madestrong statements about the current WhiteHouse administration. You’ve gotten criti-cized severely for that. Did you expect that?

GREENHOUSE: No. Not at all. I didn’t writethat to be provocative and edgy. It wasn’treceived that way by my audience at all. Itwas only, frankly, NPR and a bunch of sanc-timonious media minders that I think dis-torted it and made it into something that itwasn’t.

AZAT: But some of the issues you discussedat Radcliffe, it could be argued, are mattersthat could be taken up by the Court. Isn’t areporter overstepping when she voices pub-lic opinion on those topics?

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Sandra Day O’Connor had asense of how the law plays outon the ground that made herperhaps less beholden to a setof ideological givens.

GREENHOUSE: The thing I was most criti-cized for was saying that the Bush adminis-tration had turned its attention to creating alaw-free zone in Guantanamo instead ofupholding the rule of law. Well, that wastwo years after the Court ruled in Rasulagainst Bush (542 U.S. 466 (2004)), thatthe administration was wrong to maintainthe position that American law did notextend to Guantanamo. So far from being apending case, it was res judicata.

I didn’t state that to be edgy. I justthought I was stating an obvious fact—maybe an inconvenient fact, but that’s whatthe Court ruled, by a vote of 6 to 3.

AZAT: Looking back, then, you don’t thinkyou violated any Times policies?

GREENHOUSE: Personally, no. I’m sorry myeditors didn’t feel that they could publiclystand up for me in what I thought was akind of a swiftboating. I’m still angry aboutit, actually.

AZAT: In your book, you quote a commen-tator who suggests that in DeShaney v.Winnebago County (489 U.S. 189 (1989)),Blackmun was finally “speaking without anypretense of dispassionate neutrality” whenhe began his dissent “Poor Joshua.” Didyou feel the same as you spoke at Radcliffe,that the time for dispassionate neutrality waspast?

GREENHOUSE: I wouldn’t say that. I’m notat war with the notion that the role of adaily journalist, which is what I am, is not toinject your own passion into what you’recovering, and I don’t think I do that.

I actually didn’t think I did that atRadcliffe. If you read the whole speechinstead of the soundbites that NPR pulledout, it wasn’t about politics, it was really justa generational sort of narrative.

AZAT: I did read the whole speech, and itwas clearly generational, as you spoke tothose who had graduated with you in 1968.And not that nonfiction is autobiography,but do you feel you have reached a certainpoint where you’re “becoming LindaGreenhouse,” especially as you spoke toyour fellow alums?

GR E E N H O U S E :Well, it’s naive foranybody to thinkthat a persondoesn’t haveviews. I guess Ifeel sorry for any-body that’s eitherso drowning intheir own sancti-mony or havingsuch a limited viewthat they reallythink that a jour-nalist or anybodyelse goes throughlife never comingto a conclusionabout anythingthat they observe.

But I do acceptthe conventions ofthe trade thatthat’s not part ofthe day job. Butshould I be free togo talk to a groupof my fellow alum-nae on the occa-sion of receivingtheir major annual award, and make a fewpersonal observations? Yeah, I think I havethat right. So be it.

AZAT: Have you gotten feedback from peo-ple outside the press?

GREENHOUSE: Yes. There was enormouspushback. I think a lot of people are justconfused by the notion that it’s not enoughto judge somebody by their actual pub-lished work, but you have to be theirbabysitter and judge what they say, wherev-er they may go, even in Phoenix, Arizona.

AZAT: Shifting gears: Over time, have youfound the Senate confirmation process forjustices to be less informative and morestage-managed?

GREENHOUSE: Well, they’ve gotten moretoxic. But in my view, that all begins withthe President, and it depends how thePresident wants to play it. If he wants to usethe power of Supreme Court confirmation

to press beyond the bounds of existingpolitical consensus, you’re going to get abig problem. If he plays it to the middle,you’re not.

If you want a good political fight, it’seasy to generate one. If you don’t, it’s easyto avoid one.

AZAT: Have the confirmation questionsand answers become too devoid of mean-ing?

GREENHOUSE: Yeah, but in a way it’sbecome a teachable moment for the public,because the questions the senators ask, evenif they don’t get very informative answers,flag both for the public audience and for thenominee, “Here are the hot-button issues,here’s what’s important.”

I think it’s useful for the public to hearthat, even if they end up scratching theirheads and they don’t know what the nomi-nee makes of it, at least they hear it unmedi-ated as part of the political discourse. And Ithink that has a value.

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AZAT