Greenhouse had emailed me about an earlier post, where I'd said "Greenhouse misstates the authorship of Casey," and she took the position that she knew Kennedy wrote it, because she was there in the courtroom when the opinion was announced, and Kennedy led off and read that "no refuge" line. I didn't think one person reading part of the opinion was complete proof he'd written it, but what was devastating to Greenhouse's assertion was that the Court's announcement of the opinion was recorded, and the audio and transcription are available on line, and Justice Kennedy did not go first — O'Connor did — and the line "Liberty finds no refuge in a jurisprudence of doubt" was never spoken at all.
Somehow, Linda Greenhouse — a journalist with great confidence in her facts ("I would caution you against challenging my facts") — had constructed a false memory!
How did Linda Greenhouse respond? Here, with her permission, is the new email:
Ann, I guess it's fair to say that each of us was right and each of us was wrong. I'll leave it at that, confident that your charming commenters will carry the torch. I have to say I'm really surprised at my mis-memory of the Casey hand-down -- I would have sworn it on a stack of U.S. Reports. And I take it that you agree there's not another person on the planet who could have written what Kennedy wrote -- neither your favorite passage nor mine. LindaI responded:
Thanks. But I won't agree that no one else but Kennedy could have written that. What's the evidence? It seems to be the assumption that he did write that. I'd love to know the true story of how passages like the "jurisprudence of doubt" and the "heart of liberty" ones came to exist and to find their way into a case, but I would want real research into the subject. It's one thing to think up such lines, another to decide they belong in a case, and lines are drafted and tweaked. I wouldn't look at those lines and say obviously that part was a one-man job and Kennedy's that man.Confronted with proof that she'd made a mistake and after cautioning me about challenging her facts, Greenhouse took the position that she and I were both wrong and right, that somehow we'd come out even. I'm not agreeing to that. I didn't say anything that was wrong. I have a way of blogging that keeps me out of trouble like that. I don't make assertions about things I don't know.
Whatever happened to all the speculation that O'Connor brought a woman's insight onto the Court? What about the role of clerks? They're people on the planet too. And I'm curious -- as my original post showed -- about the mystery of the lack of mystery that you flagged when you said: "The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights." It's a mystery I felt motivated to explore, not to make assumptions about.
Over to you, charming commenters.