What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy.

On Tuesday, I wrote a post titled "Linda Greenhouse notes the 'dry, almost clinical tone' and lack of 'poetry' in the Supreme Court's pro-abortion-rights opinion."

I quoted her writing:

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, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

And, among other things, I said:

And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.

It's indisputably true that the opinion Greenhouse quoted was published under those 3 names with no one Justice identified as the author. But I received an email from Linda Greenhouse that said:

Ann, fyi, Kennedy wrote the line in Casey that I attributed to him.  Yours, LG

I wrote back:

Is there a citation for that? 

And:

Shouldn't the article state your reason for attributing that line to him, as opposed to saying that it's how the opinion begins, as if he isn't one of 3 authors? Are you relying on extraneous knowledge? If so, shouldn't you say that in the article as oppose[d] to citing the opinion?

Here's Greenhouse's reply:

Jeffrey Toobin, "The Nine," p. 65. But Ann, I'm afraid you confuse the practice of journalism with writing for a law review. There is no convention that requires me to annotate my factual assertions. In any event, when Casey was handed down on June 29, 1992, each of the triumvirs read from the part of the joint opinion that he/she had written. Kennedy led off and started his oral announcement with "Liberty finds no refuge..." (causing a good deal of confusion in the courtroom, as you may imagine, since no one yet knew the bottom line of the case.) Souter read from his stare decisis portion, and O'Connor from her undue burden analysis. The authorship of each portion was clear from that public performance. Perhaps you were not in the courtroom.  I was.  Consequently it would have been completely superfluous for me to write: "As Jeffrey Toobin later reported..." Of course you are completely free to trash my opinions and my writing style.  I would caution you against challenging my facts. Yours, Linda

I responded:

I'm not saying you need a law review style citation, only that when you refer to the opinion — "the Supreme Court ..., in Planned Parenthood v. Casey" — and then say only "'Liberty finds no refuge in a jurisprudence of doubt' was Justice Anthony M. Kennedy’s mysterious opening line in that opinion," you appear to be referring to the opinion, which has three authors, and crediting only one of them.

I don't mind that you might choose to make an additional factual assertion without specifying how you know, but the text doesn't make an assertion that we know Kennedy alone wrote a particular sentence in the joint opinion. It just refers to the opinion and gives Kennedy sole credit for it, erasing the presence of O'Connor and Souter.

I'd like to add your explanation in an update, with your permission.

And she said:

Sure.

So there you are. What do you think? I've been cautioned against challenging Linda Greenhouse's facts — I thought we weren't entitled to our own facts — but I've got to say I don't think she's actually afraid that I confuse the practice of journalism with writing for a law review. I think it would be comforting, not fearsome, for me to have merely bumbled into a state of confusion about the difference between journalism and law reviews. Oddly, I'm not writing a law review article at all. Indeed, I eschew the practice. I'm blogging, and blogging is not a place to feel warned off challenging what people write in The New York Times. Nor is it a place for reining in criticism because there happens to be a "convention" within the journalism profession.

And I will be picky. To say "There is no convention that requires me to annotate my factual assertions" is not to say that there is a convention that requires her to refrain from annotating her factual assertions, and I continue to think that the problem was not so much the failure to support the assertion (to say how she knows Kennedy wrote that particular line) but the failure to make the assertion, to say that something is known about Kennedy and that she is not merely making a reference to the published opinion.

Sidenote: The word "triumvirs" is interesting in light of my concern about erasing O'Connor. "Triumvirs" means 3 men sharing an official position. (Toobin, by the way, used the word "troika" in the same context. "Triumvirs" harks back to ancient Roman leaders, the triumvirate. "Troika" gestures at Russian carriages with 3 horses.)

Anyway, whether one is in the courtroom when the Justices read from the writings they release to the public, it's a matter of opinion to say "The authorship of each portion was clear from that public performance." A joint opinion was released, and any reading needed to be done by one individual and not a chorus of 3.

No one said I'm reading the part that I wrote. I know that, even though Greenhouse guessed right and I was not there that day in 1992, but like everyone else on the internet, I can listen to the recording of the public performance at Oyez.com. Whatever feels clear within Greenhouse's memory, the fact is, it wasn't Justice Kennedy who "led off," it was Justice O'Connor. And when Kennedy got his turn, he did not — as Greenhouse put it — "start[] his oral announcement with 'Liberty finds no refuge....'"

I'm listening to the announcement recording and reading and searching the transcript, and it doesn't begin with or even contain the sentence "Liberty finds no refuge in a jurisprudence of doubt." That's how the written opinion begins, but Greenhouse seems to have constructed a false memory of what she experienced in her privileged position in that courtroom a quarter century ago.

I know! I've been cautioned against challenging her facts. But I've got to do it. I've got the transcript.

The Justices don't read the written opinion when they do the announcement live. They've got a different text, and the drama of "Liberty finds no refuge in a jurisprudence of doubt" is confined to the written opinion. Justice O'Connor — who went first, not last — did not indulge in any mystifying phraseology. If the audience felt confused at first, I suspect it was only because O'Connor stated that the court below was (mostly) affirmed, which meant that Planned Parenthood had lost, before she got to the straightforward "we conclude that the central holding of Roe should be reaffirmed."

O'Connor said that "Justice Kennedy and Justice Souter will have -- also have something to say about the judgment in these cases," and not that Kennedy and Souter will be talking about the part of the opinion they wrote. Kennedy's speaking begins with the workmanlike sentence: "The -- the essential holding of Roe versus Wade, the holding that we today retain and reaffirm has three parts." Further in, he's more high flown. And he does read the line from the opinion that I said, in my blog post, was the most poetic line in the case: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Perhaps that line was special to him, something he wanted to say out loud, but I don't, from that, feel that he's claiming personal authorship.

Greenhouse says "The authorship of each portion was clear from that public performance," and Greenhouse thinks O'Connor wrote the undue burden analysis, but Kennedy's recitation covered that material. So much for being there. I'm going to believe the transcript and listening to the recording, as any sensible person, including Greenhouse, will.

Now, what about Toobin? Toobin did talk to some of the Justices for his book "The Nine: Inside the Secret World of the Supreme Court" — though, as David Margolick wrote in his review, readers are left "to ponder which of those justices talked to him for this book, and which did not."

And talk to him some of them clearly did. Without their off-the-record whispers, there would be no “inside” story of any “secret” world to tell in “The Nine: Inside the Secret World of the Supreme Court.”

Margolick guesses who talked:

Reading Toobin’s smart and entertaining book, these hunches quickly solidify. Sprinkled throughout are quotes, facts, anecdotes, insights and interior monologues that could only have come from particular justices — most conspicuously, O’Connor, Breyer and Kennedy — along with flattering adjectives about each. Toobin, of course, never names names.

Here's the relevant bit about Casey, which does trace the "Liberty finds no refuge" quote to Kennedy. (Click to enlarge.)



So Toobin, based on his secret sources, refers to "Kennedy's section of the joint opinion" as containing the quote "Liberty finds no refuge in a jurisprudence of doubt." Maybe somebody who really knows told Toobin the truth and Toobin accurately reported it. But the Court released a joint opinion, and there's something deeply disturbing about letting Toobin and his secret sources supersede the Court's public, written presentation. At least let us know that's what you're doing. If you just say you're talking about Planned Parenthood v. Casey, that's a 3-Justice opinion in my book, which is volume 505 of the United States Reports.