Sandra Day O'Connor has died.

"Sandra Day O’Connor, pathbreaking woman on Supreme Court, dies at 93/The court’s first female justice was known for her independence on the bench" (WaPo).

"Sandra Day O’Connor, First Woman on the Supreme Court, Is Dead at 93/During a crucial period in American law — when abortion, affirmative action, sex discrimination and voting rights were on the docket — she was the most powerful woman in the country" (NYT).

The NYT obituary is by Linda Greenhouse. Excerpt:

Fifty-one years old at the time of her nomination, she served for 24 years, retiring in January 2006 to care for her ailing husband. As the court moved to the right during that period, her moderate conservatism made her look in the end like a relative liberal.

From the WaPo obituary, by Fred Barbash:

She never went far enough in any area of the law to fully satisfy either conservatives or liberals of the day, Republicans or Democrats....

"Does even this trigger-happy Supreme Court want to be seen as stripping from women in mortal danger from their intimate partners whatever safety this 29-year-old law has provided?"

Asks Linda Greenhouse, in "Will the Supreme Court Toss Out a Gun Law Meant to Protect Women?" (NYT).

Research shows that the presence of a gun in the hands of an abuser makes it five times as likely that a female victim will be killed. That inconvenient fact will remain a fact even for a court more attentive to life in 1791 than death in 2023.

The Supreme Court is reviewing a 5th Circuit opinion that that struck down a federal law that criminalized possession of a firearm by someone subject to a domestic violence restraining order.

Amy Coney Barrett "may be giving Justice Elena Kagan a run for her money in the department of well-designed hypothetical questions" — according to Linda Greenhouse...

... writing in "Testing Time at the Supreme Court/The outcome of a property rights case could foretell how much conservatives can expect from the justices" (NYT). 

The California law, enacted in 1975 as the product of Cesar Chavez’s drive to organize the state’s farmworkers, authorizes the union to approach workers in the field before and after the working day for up to three hours on 120 days of a year.

“So let me ask you this,” Justice Amy Coney Barrett said to [the lawyer arguing that any authorization of entry onto private property is a taking]. “What if California had a regulation that permitted union organizers to go onto the property of your clients one hour a day, one day a year. Is that a taking subject to the per se rule?”

Yes, the lawyer replied. His answer was certainly no surprise to the justices listening remotely to the argument. His theory of the case required precisely that answer, as Justice Barrett — who may be giving Justice Elena Kagan a run for her money in the department of well-designed hypothetical questions — surely knew.

Nonetheless, it underscored just how audacious the Pacific Legal Foundation’s position is....

"Reading Justice Gorsuch’s Bostock opinion, I was thrown back to the summer of 2017, when I found myself in a social gathering of a half dozen fellow progressives and one prominent conservative lawyer..."

"... with whom we were all friendly. It was a civil but increasingly pointed conversation as we pressed the lawyer, first gently and then more firmly, on whether he actually supported the Muslim travel ban and other actions of the Trump administration’s opening months that troubled the rest of us. He took the bait in good humor but finally, all but throwing up his hands, he cut the conversation off. 'Look,' he said. 'We got Gorsuch.' Yes, we did."

Writes Linda Greenhouse in "What Does ‘Sex’ Mean? The Supreme Court Answers/We’ll soon find out whether the court inflames the culture wars or cools them as its term winds down" (NYT).

The top-rated comment over there:

Forgive my cynicism, but I suspect that Roberts, being acutely aware of how politically biased his court appears, decided to select this case as a means of deflecting attention from the flood of conservative opinions yet to come. Having determined that they already lost the culture war on LGBT equality, they tossed progressives this bone, fully prepared to nullify it with a decision that it can be ignored by people with "sincerely held beliefs." They will point to this case as evidence of their neutrality.

Justice John Paul Stevens has died.

He lived to the age of 99.

Linda Greenhouse has a long obituary in the NYT. Excerpt:

When he retired in 2010 at the age of 90, Justice Stevens was the second-oldest and the second-longest-serving justice ever to sit on the court. Oliver Wendell Holmes Jr. was about eight months older when he retired in 1932, and William O. Douglas had served 36 years (1939-75)....

Justice Stevens served for 35 years.

Societal debates over the rights of gay men and lesbians, the role of race, private property rights, environmental regulation and the separation of church and state also made their way onto the Supreme Court’s docket, and Justice Stevens, a soft-spoken Republican and former antitrust lawyer from Chicago, was as surprised as anyone to find himself not only taking the liberal side but also becoming its ardent champion....

[In his early years on the Court his] reputation was that of a very smart, nonideological, slightly quirky loner who, if a case was decided by a vote of 8 to 1, was as likely as not to be the solitary dissenter, caring neither to lead nor to follow....

Linda Greenhouse has noticed "a meme in conservative media" that liberals are using the idea of the Supreme Court's "legitimacy" to flip John Roberts to the liberal side.

She says, in "Who Cares About the Supreme Court’s ‘Legitimacy’?" (NYT).

“There’s a wooing going on,” David French warned in National Review in March under the headline “The Temptation of John Roberts.” His focus was not the census case but abortion and the Mueller report. “According to this construct,” Mr. French wrote, “it’s Roberts the ideologue who would vote to restrict abortion rights. It’s Roberts the conservative who would back the Trump administration. But a chief justice who cared about the institution of the Supreme Court? Well, he guards Roe. He checks Trump.”

In The Wall Street Journal last month, under the headline “John Roberts’s ‘Illegitimate’ Court,” the newspaper’s editorial columnist, William McGurn, wrote: “For those not fluent in modern Beltway, let us translate: It’s a threat, aimed at John Roberts. If the chief justice does not produce the desired progressive outcome, the Roberts court will find itself attacked as institutionally illegitimate.” This week, The Journal’s editorial board took aim at the new development in the census case under the headline “Census Target: John Roberts.” “Whenever you read ‘legitimacy’ in a sentence about the court, you know it’s a political missile aimed directly at Chief Justice John Roberts.”...

[T]he steady flow of right-wing commentary mocking concerns about the Supreme Court’s legitimacy (and I readily admit to having added my voice to those concerns) leaves me with this thought: What about the other justices? Why is it assumed on the right that Chief Justice Roberts is the only conservative on the court who has its welfare in view and who worries about the loss of public confidence if the justices come to be seen as mere politicians in robes?

Maybe the question answers itself....

No, the question shouts out, I'm not the question!

And the "right-wing commentary" is not "mocking concerns about the Supreme Court’s legitimacy." Everyone on the Court is concerned about its "legitimacy," a concept that includes, among other things, a lot of fretting about whether the Court will be perceived as deserving the power it wields, which is, ironically, a very political concern.

"Legitimacy" is a category of rhetoric, and everyone uses it. The most frustrating thing for liberals is that non-lawyer people tend to think that the conservative approach to constitutional interpretation is the right way to do it and that the liberals seem to want to use the courts as an alternative to the legislative process.

The wooing of Chief Justice Roberts that Greenhouse quotes is an effort to get the legitimacy talk working in the liberal direction. It's not a new subject. It's a big, long, old conversation.

"What will the Supreme Court look like when neither side has to walk on eggs to win the favor of the one in the middle?"

"It will be a more conservative court, for sure, and maybe a more honest one. Justices may feel more free to say what they really think, and the public will ultimately judge the result by expressing itself in electoral politics."

Writes Linda Greenhouse in the NYT.

I'm going to look closely at 2 phrases — "more honest" and "walk on eggs."

1. Greenhouse writes "more honest," not "more nearly honest," so — assuming she's in control of her writing — she must see honesty as not absolute: the Court can obfuscate and distort and cheat and still be considered honest, but not tremendously honest, such that one can still hope for "more honesty." If you think a Court that obfuscates and distorts and cheats at all is not honest, then you should write "more nearly honest." I assume that most people who follow the Court closely don't think it is possible or even desirable for the Court to be utterly honest, so you're probably stuck with the nonabsolute meaning of "honest," if you're going to use that word at all.

2. "Walk on eggs"? The conventional phrase is "walk on eggshells," and I can't believe Greenhouse means to create a new metaphor so close to the standard phrase. "Walk on eggs" seems very funny to me, because I'm picturing a floor strewn with scrambled eggs, maybe some sunny-side-up fried eggs thrown in there. And it makes me wonder, in the standard phrase, "walk on eggshells," were we supposed to picture whole, uncracked eggs or just the shells from eggs that have been cracked? I think it's the latter — I don't know — which is why "walk on eggs" struck me as silly. I think we're supposed to picture the discarded shells on the floor and a need to walk on them without cracking them. But what's wrong with crunching down on what is trash anyway? Is somebody sleeping nearby whom we're trying not to wake? I'll speculate that's the idea: we're not worried about breaking the shells, but we're catering to the delicate feelings or short temper of some person who'd be disturbed by something as inconsequential as the crack of an eggshell.

Asked to take the DACA case without waiting for it to take its course through the circuit court, the Supreme Court says no.

Or as the USA Today crudely puts it, "Supreme Court snubs Trump, keeps DACA immigration program in place for now."

The Supreme Court did what the NYT applied pressure on it to do, as we discussed here. I took a middle position:

The Solicitor General, seeking to skip over the intermediate appellate court, is perhaps overdramatizing the need for quick action, but [Linda] Greenhouse is overdramatizing the consequence for the Court if the supposedly big-deal case turns into nothing [because of congressional action].

I think she knows this, as she asks: "Will it look that way from inside the justices’ private conference?" She says she doesn't know, but I think it's pretty clear the answer is no. She purports to be sure that "The future of more than the Dreamers is at stake." That's the last line of the column. It's clear that she means that the future of the Court is at stake, but in what way?

"So while filing an appeal [in the DACA case] to the Ninth Circuit, the administration’s lawyers also went to the Supreme Court with a 'petition for a writ of certiorari before judgment'..."

"... a request to the justices to hear the case this spring without waiting. The Supreme Court’s rules reserve this court-jumping procedure for cases of 'imperative public importance.' Only a handful of cases has cleared that bar, including the Nixon tapes case, which effectively forced the president’s resignation and the 1981 case that ratified the agreement that ended the Iran hostage crisis. Invoking those cases, Solicitor General Francisco insists to the court that “that standard has been met here,” an assertion the plaintiffs vigorously dispute...."

Writes Linda Greenhouse in the NYT. She ends with this point, which might cut the other way:

Even if the justices find Judge Alsup’s analysis questionable and the case surpassingly important, there is an obvious reason for the court to stay its hand: the possibility, however remote, of congressional action during the months it would surely take the court to issue a decision. Recruited to a walk-on role in the other branches’ drama, the justices could well find themselves exposed on an empty stage. At least this is how it looks to me, from the outside. Will it look that way from inside the justices’ private conference? I don’t know, but I’m sure of this: The future of more than the Dreamers is at stake.

I don't see the problem of taking a case and then getting superseded by legislative action. Solving this problem with new legislation is the best solution, and the Court's expedited attention to the case might pressure Congress to get its work done more quickly. If it did, would the Justices suffer some loss of prestige — finding themselves exposed on an empty stage?

I don't see the problem. The Court wouldn't be grabbing the case because it wants to glory in the spotlight, but because the case is of "imperative public importance." If it ceases to be a case, because the dispute is resolved by actions taken in political branches, the Court would bow out.

It would not be that the Court embarrassed itself by seeing a matter of imperative public importance when there wasn't one, but that the Congress  — also concerned with matters of imperative public importance  — exercised its own power. At that point, the judicial power would play out in a normal way, applying the law to the changed facts and acknowledging whatever power Congress has.

The Solicitor General, seeking to skip over the intermediate appellate court, is perhaps overdramatizing the need for quick action, but Greenhouse is overdramatizing the consequence for the Court if the supposedly big-deal case turns into nothing.

I think she knows this, as she asks: "Will it look that way from inside the justices’ private conference?" She says she doesn't know, but I think it's pretty clear the answer is no. She purports to be sure that "The future of more than the Dreamers is at stake." That's the last line of the column. It's clear that she means that the future of the Court is at stake, but in what way?

In some utterly banal way, the future for everyone and everything is always at stake. But I guess she's warning the Court that she and the rest of the Court-following mainstream media stand ready to criticize. That shouldn't affect anyone on the Court, but it could.

"I’ve built a record that is widely described — well, universally described — as the most conservative of anybody on the Supreme Court. I’ve garnered support..."

"... from every corner of the conservative movement. There’s no ideological daylight to the right of me.... I’m universally regarded to be the most conservative member of the court, which is a label that I accept with, frankly, gladness and gusto."

That's a 2012 quote from Don Willett, who was on the Texas Supreme Court at the time and whom President Trump appointed to the 5th Circuit federal court. The quote appears at the end of a Linda Greenhouse column in the NYT titled "Why Judges Matter."

The title makes it sound like a primer, but Greenhouse collects some recent legal issues and reminds NYT readers that outcomes are going to depend on whether the judges were appointed by a Republican or a Democratic President. Isn't it sad that it's become so obvious that it seems too elementary to go through a why-judges-matter rigmarole?

I remember when it was subtle and arcane and ordinary voters resisted seeing what the cognoscenti knew. Now, the title "Why Judges Matter" looks almost babyish... below the reading level of New York Times subscribers.

But longtime Althouse readers know the real reason I'm blogging this. Judge Willett said the magic word: garner.

We sent you Unclubbable Neil!

Forgive me, but I need to talk about Jeffrey Toobin again. I started the blog-day with a long Toobin-focused post, but now I'm reading Instapundit:

MORE SUPPORT for my theory, expressed earlier, that Ruth Bader Ginsburg was the source in that Jeffrey Toobin anti-Gorsuch piece from last week. If RBG can’t handle having Gorsuch around, perhaps she should retire.

The first link there goes to the same Toobin piece I already wrote about and the second one goes to an Instapundit post titled "I’M GONNA GO WITH 'NOT BADLY ENOUGH'" and linking to a Jeffrey Toobin piece from a few days ago titled "How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices?"

There's something I want to talk about in that other Toobinity:

As Linda Greenhouse observed in the Times at the end of Gorsuch’s first term, he managed to violate the Court’s traditions as soon as he arrived. He dominated oral arguments, when new Justices are expected to hang back. He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs. Dissenting from a decision that involved the interpretation of federal laws, he wrote, “If a statute needs repair, there’s a constitutionally prescribed way to do it. It’s called legislation.” Perhaps he thought that the other Justices were unfamiliar with this thing called “legislation.” Gorsuch also expressed ill-disguised contempt for Anthony Kennedy’s landmark opinion legalizing same-sex marriage in all fifty states. Earlier this year, the Court’s majority overturned an Arkansas ruling that the state could refuse to put the name of a birth mother’s same-sex spouse on their child’s birth certificate. Dissenting, Gorsuch wrote, “Nothing in Obergefell spoke (let alone clearly) to the question.” That “let alone clearly” reflected a conservative consensus that Kennedy’s opinion was a confusing mess.

Perhaps Gorsuch will, as the years pass, prove to be a more clubbable colleague; or perhaps he’ll decide, at least socially, to go his own way....

A more clubbable colleague...



Oh, sorry. I'm supposed to read that like a New Yorker reader, someone who is upper class or striving to feel upper class. Here's the Oxford English Dictionary definition of "clubbable":

Having such qualities as fit one to be a member of a club; sociable.

1791 J. Boswell Life Johnson anno 1783 II. 475 Boswell (said he) is a very clubable man. [Johnson is said to have used unclubable sometime earlier: see unclubbable adj.]

Okay, let's see "unclubbable." (Unclubbable/That's what you are/Unclubbable/That's Gorsuch so far....) "Unclubbable" is the older word, and "clubbable" is the back-formation. The OED defines "unclubbable" as said of a person who is "not suitable for membership of a club owing to lack of sociability or desire to conform; (of a characteristic) that does not inspire friendly relations; unsociable." The oldest usage in print is:

?1764 F. Burney Early Jrnls. & Lett. (1994) III. 76 Sir John was a most unclubable man!

So the question becomes: Is the Supreme Court a social club, where the old members have their established manner and the new man must fit in? One thing that's very unclublike: The Court doesn't get to decide if it wants to let the new person in. He's been sent in by the President and the Senate, who got their power from the people, and we're a diverse bunch, quite rowdy and ornery many of us. You wouldn't want me in your club, and I'm a lot nicer than many — probably millions — of very rude folk who vote.  

We sent you Unclubbable Neil and you're stuck with him. We clubbed you over the head with him.

Is forced prayer the answer to the National Anthem problem?

I'm watching the opening ceremony for the Ravens vs. Steelers game on TV right now because I wanted to see how they'd handle it. The plan was in place, with an announcer on the public address system saying:

Before the singing of the National Anthem, please join Ravens players and coaches and the entire Ravens organization to pray that we as a nation, embrace kindness, unity, equality, and justice for all Americans.

All the players shown on camera then took the position that we've seen players use in the protests during the National Anthem. So the position that meant protest was supposed to transform into meaning supplication toward God.

This was coercive prayer, and I don't know what kinds of religious-freedom objections the players and coaches and spectators might feel: Is there something wrong with using prayer this way, to fix a political (and commercial) problem?

The Ravens coach,  John Harbaugh — who is a vocal Catholic — made the sign of the cross, and I wondered if there were others whose religion impels them to pray in some special way that was not provided for here and still others who are nonbelievers and troubled by the burden of coerced prayer.

From the fans, I heard loud booing, which I interpret as calling bullshit on the instrumental use of religion to preserve the protest gesture they don't like. Management might have thought the prayer packaging would silence the crowd, lest they sound as though they are objecting to religion. Surely, religion will be respected. They thought wrong. Public displays of religion are often the insincere use of religion as a means to an end and sometimes it works, but it didn't work this time, judging by the boos.

But perhaps that was only a minority booing, the booers will be seen as disrespectful, and the pre-anthem kneeling in prayer will become the ongoing solution to the National Anthem problem. I kind of doubt that, because I associate political liberals with a longstanding objection to prayer before football games. Here, read what Linda Greenhouse wrote in the NYT about Santa Fe Independent School District v. Doe, the football prayer case. (Yes, this was about teenagers and public school, so there are big differences, but the point is that political liberals tend to have strong compunctions against coerced prayer and little sentimental empathy about football prayer.)

After the prayer at the Ravens game today, there was a particularly patriotic version of the National Anthem, complete with a call to "remove your hats as we honor our nation" and the "military who protect us" and a flyover A-10s — with fireworks — as the anthem — which was "written right here in Baltimore" — was sung in luscious harmony vocal trio from the US Air Force Heritage of America Band. The crowd in the stadium responded to all of that with great enthusiasm.

The players and coaches, of course, rose from the kneeling position before the anthem-related section of the opening ceremony began.

Linda Greenhouse tells Republicans — about the Supreme Court — you broke it, you own it.

The title of the column is "The Broken Supreme Court."

It's the old "Pottery Barn rule" — associated with military strategy and Colin Powell. The rule is normally invoked before an action is taken, so it works to support an argument against taking action. If you pick up that ceramic plate in the store, you might break it, and the sign wants you to know/believe that you'll have to pay for it. Actually, I think the signs had the more humorous, alliterative wording: "You break it, you bought it."

The real meaning of those signs was: Don't break anything. Be careful. The signs don't create legal liability. It's not that — to use contract law — the sign is an offer and the breaking counts as acceptance. And stores normally eat the loss when a customer breaks something. But maybe the signs encourage people to be more careful handling the merchandise.

But Greenhouse is deploying the old saying after the thing she's deeming breakage has occurred. Too late now to be extra careful! But Republicans were warned in advance of their resistance to Obama's nominee (Merrick Garland) and their going-nuclear vote to confirm Neil Gorsuch. Greenhouse is writing now not to stop anything or to convince any Gorsuch supporters that Republicans have broken the Court. She's saying: We should hold Republicans responsible for what the Supreme Court has become. And, of course, she has the opinion that it's become something awful. And it can always, henceforth, be contrasted to The Court That Might Have Been — The Court That Should Have Been — the Court with a 5-person liberal majority with Merrick Garland in the seat formerly known as Scalia's.

Greenhouse writes:

Going forward, it will be next to impossible for people to look at decisions that may appear on the Republican Party’s agenda — on voting rights, as a prime example — without seeing the Supreme Court as a partisan tool....

That's true, if by "people," you mean the coastal elite of the United States and partisan Democrats in the Blue Islands of Flyover America.

But I think it's easily possible for many Americans to see the Supreme Court as a legitimate, independent branch — and not in spite of but because of the election. The death of Antonin Scalia, less than a year before the presidential election, made what we want from the Court a big issue in the campaign. Denying the outgoing President his choice gave Americans our choice. What sort of person belongs on the Court? Candidate Trump committed to a list of names, and Hillary Clinton had endless opportunities to criticize his choices and offer her own, and the people voted. It seems to have been the decisive issue for many of us. The kind of Justices Trump promised to nominate — and Gorsuch was known and named — are what Americans think belongs on the Court.

Greenhouse thinks — or purports to think — that the process was too political. But would she say the same thing if Hillary had won — with her stress on the abortion rights and gay rights issues — and seized the nomination? I imagine that Greenhouse would read the election as a resounding endorsement of the liberal approach to constitutional interpretation and would cheer it on. Let's have more of it.

And I would not have a problem with that. In fact, the process is political: The President has the power to nominate and the Senate must confirm. That much politics is in the Constitution.

But here's the tricky part. Once the nominee is confirmed and goes on the Court, he (or she) becomes independent. There's life tenure, and the Justice has sworn to follow the judicial method and to stick to deciding cases according to the law. It's not supposed to be political.

So the other way that it's possible for people not to see the Supreme Court as a partisan tool is if they believe what the nominees always say in the confirmation process: Partisanship and political preference have no place in the work of a judge. It's what Gorsuch assured us. It's what everyone else on the Court assured us. And it's what Merrick Garland would have assured us.

Now, it's probably not what Linda Greenhouse believes, nor is it what her compatriots in the coastal elite believe. And I can tell you it's not what is generally believed on the higher altitudes of the Blue Island where I live. But I at least understand how many of my fellow Americans can believe it.

And how can nominee after nominee sit before the Senate and swear they will do something if no one can possibly think that it's true? It's possible.

And that's why the Supreme Court isn't even broken, let alone the sole possession of the Republican Party.

"Donald J. Trump’s victory saved the chief justice from irrelevance."

"A President Hillary Clinton... would have nailed in a five-justice progressive majority and left Chief Justice Roberts where no chief justice has been in modern memory: in a minority on his own court."

Writes Linda Greenhouse in the NYT.

The lists of 21 potential Supreme Court nominees that the Trump campaign put out include established and well-respected stars in the conservative judicial firmament.... The chief justice will have a reliable ally....

[Roberts] needs to make it clear that the Roberts court is not a tool of partisan politics....

I hope he understands the election not only as a gift but as a warning, and that he can summon the qualities of leadership to move the court he clearly cherishes to safer ground, for its own institutional well-being and for ours.

I'm just trying to imagine what Linda Greenhouse would have said if President-elect Hillary Clinton were set to nail in that 5-justice progressive majority. Justice Ruth Bader Ginsburg's name would have come up, I think, as the rising leader of that progressive majority. Would Greenhouse have warned her that she'd better take pains to eradicate the impression that the Supreme Court follows partisan politics?

The word "sacrifice" is in issue this week, so let's look at 14 examples of the use of the word "sacrifice," mined from 186 posts with the tag "sacrifice" in the 12-year archive of this blog.

1. Back in November 2013, President Obama said this (in the context of staying in Washington until Sasha finishes high school):

"Cause she's, you know, obviously they-and Michelle-have made a lot of sacrifices on behalf of my cockamamie ideas, the running for office and things."

2. From a 2006 NYT article  about couples who choose not to live together:

Carolyne Roehm, the New York socialite and author, is similarly unwilling to sacrifice control of her space. Ms. Roehm, 54, said she is perfectly happy with her extreme version of the L.A.T. relationship, with Simon Pinniger, 53, a businessman who lives 1,700 miles away in Aspen, Colo. 

3. "Sacrifices have to be made," said a father who sold his motorcycle and got a minivan.

4. But another father put out a book in 2012 about the selfish reasons to have children:

Children cost far less than most parents pay, because parents overcharge themselves. You can have an independent life and still be an admirable parent. Before you decide against another child, then, you owe it to yourself to reconsider. If your sacrifice is only a fraction of what you originally thought, the kid might be a good deal after all.

5. The NYT reported something Iran President Mahmoud Ahmadinejad said in the U.N. in September 2009:

“The engine of unbridled capitalism, with its unfair system of thought, has reached the end of the road and is unable to move... Selfishiness [sic] and insatiable greed have taken the place of such human concepts as love, sacrifice, dignity and justice. The belief in the one god has been replaced with self-belief.”

6. Here's Obama in April 2011:

"To meet our fiscal challenge, we will need to make reforms. We will all need to make sacrifices. But we do not have to sacrifice the America we believe in. And as long as I’m president, we won’t.” 

7. An Orwellian banner hanging at the Wisconsin protests of 2011:

"All shared sacrifice is equal, but some must share the sacrifice more than others."

8. From a 2006 USA Today column:

"For someone rallying the planet to pursue a path of extreme personal sacrifice, [Al] Gore requires little from himself."

9. In 2012, Frank Bruni had a whole column in the NYT about the failure of the presidential candidates to use the word "sacrifice."

It’s odd. We revere the Americans who lived through World War II and call them the “greatest generation” precisely because of the sacrifices they made.... [T]he last president to make a truly robust call for sacrifice was ridiculed for it. That president, Jimmy Carter, suggested only that we turn down our thermostats a tad and guzzle a bit less gas, and in July 1979 observed, “Too many of us now tend to worship self-indulgence and consumption.”

Then came Ronald Reagan, whose many great contributions to America were coupled with less great ones, including the idea, which has dominated our political discourse ever since, that we should speak only of morning in America and that optimism, like virtue, is its own reward....

Conditions, all in all, are ripe for a serious conversation about sacrifice. But this presidential campaign has been noteworthy for its nonsensical insinuations or assurances that although we’re in a jam, we can emerge from it with discrete, minimal inconvenience.... We live in a sacrifice-free bubble of volitional delusion.

Obama has lately taken to speaking of “economic patriotism,” which is in some sense his euphemism for sacrifice....

10. From a speech President G.W. Bush made in December 2005:

It is also important for every American to understand the consequences of pulling out of Iraq before our work is done. We would abandon our Iraqi friends and signal to the world that America cannot be trusted to keep its word. We would undermine the morale of our troops by betraying the cause for which they have sacrificed. We would cause the tyrants in the Middle East to laugh at our failed resolve, and tighten their repressive grip. We would hand Iraq over to enemies who have pledged to attack us and the global terrorist movement would be emboldened and more dangerous than ever before. To retreat before victory would be an act of recklessness and dishonor, and I will not allow it.

11. From the Democratic candidates debate, April 27, 2007:

SEN. CLINTON: This is not America's war to win or lose. We have given the Iraqi people the chance to have freedom, to have their own country. It is up to them to decide whether or not they're going to take that chance. And it is past time for them to demonstrate that they are willing to make the sacrifice, the compromise that is necessary to put together a unified government and provide security and stability without our young men and women in the middle of their sectarian war....

12. In 2006, the NYT "public editor" said this when Supreme Court journalist Linda Greenhouse revealed some of her political opinions:

[J]ournalism [is] a calling ... that requires sacrifices and special obligations. Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.

Which made me say:

Greenhouse's speech didn't seem that out of line to me, because I am so used to hearing law professors express all kinds of personal and political opinions about the Supreme Court, and, obviously, I do it all the time myself. I'm trying to imagine a law school where the professors felt they needed to make sacrifices and suppress and submerge their opinions. Actually, it's a scary place! Do you really want us to become more devious?

13. From a 2006 review of a book about how religion works:

[Daniel C.] Dennett, anticipating the outrage his comparison will make, suggests that this how religion works. People will sacrifice their interests, their health, their reason, their family, all in service to an idea "that has lodged in their brains." That idea, he argues, is like a virus or a worm, and it inspires bizarre forms of behavior in order to propagate itself. Islam, he points out, means "submission," and submission is what religious believers practice. In Mr. Dennett's view, they do so despite all evidence, and in thrall to biological and social forces they barely comprehend.

14. When we first encountered Edward Snowden in 2013, he spoke of himself in terms of "sacrifice":

He has had "a very comfortable life" that included a salary of roughly $200,000, a girlfriend with whom he shared a home in Hawaii, a stable career, and a family he loves. "I'm willing to sacrifice all of that because I can't in good conscience allow the US government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they're secretly building."

More email from Linda Greenhouse: "Ann, I guess it's fair to say that each of us was right and each of us was wrong."

So, you may remember yesterday's post, "What Linda Greenhouse emailed me about what I blogged about what she wrote in The NYT about Justice Kennedy," in which I challenged Linda Greenhouse — who'd said "I would caution you against challenging my facts." The fact in question was whether Justice Kennedy should be given sole credit for writing "Liberty finds no refuge in a jurisprudence of doubt," the first sentence of the main opinion in the 1992 abortion case, Planned Parenthood v. Casey, which was published by the Supreme Court as a joint opinion of Justices O'Connor, Kennedy, and Souter, with no one person identified as having written that opinion.

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. Linda

I 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.

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. 

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.

Over to you, charming commenters.

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.

Linda Greenhouse notes the "dry, almost clinical tone" and lack of "poetry" in the Supreme Court's pro-abortion-rights opinion.

The case was about clinics — Texas imposed a requirement that led to the closure of many abortion-providing clinics — so what was notable about a clinical tone?

As Greenhouse puts it:

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.

Greenhouse does not quote the most poetic/mysterious/meditative lines in Casey (which even contain a variant of her word "mysterious"):

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

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.

Kennedy has had many years to think about whether that "exalted" tone is a good idea. (I put "exalted" in quotes, because that's what Justice Scalia called it, in his dissenting opinion in Casey.) And the 4 Justices who joined Kennedy yesterday were not around for the poetic exaltation of privacy rights that seemed appropriate to O'Connor, Souter, and him back in 1992. Ginsburg, Breyer, Sotomayor, and Kagan are all post-Casey additions.

Kennedy, as the senior Justice in the majority, had the power to take the writing assignment for himself. He opted to hand it to Stephen Breyer, probably the least likely in the set of 5 to infuse it with inspiration. If the opinion reads as clinical, it's a choice, by Kennedy and Breyer, to make it so.

The others — the women, interestingly enough — could have written poetically in concurring opinions. Only Justice Ruth Bader Ginsburg chose to write a concurrence, but it was very short and not particularly exalted, though does contain some French. ("When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.")

And I have a problem with Greenhouse's phrase "stood up for abortion rights." I support abortion rights — and other rights too — and I don't think talking about judges standing up for abortion rights helps to preserve rights. It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.

Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology. The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences.

And, of course, the Justices know that our belief in the rights they talk about are fading even more quickly than usual as we look to a presidential election where it seems we are able to choose which faction of the Supreme Court will get new votes. They know they need to allay our suspicions and that any poetry in the pro-abortion-rights opinion would become a weapon for those who want to defeat the presidential candidate — Hillary Clinton — who would give them another ally in their political cause... if that's what it is.

UPDATE: Linda Greenhouse emails me about this post and I respond, here.

"Do you hold Chief Justice John G. Roberts Jr. responsible for the ascendancy of Donald Trump?"

"The thought never crossed your mind? Then you probably haven’t been reading the conservative blogosphere...."

"There are few sights more disconcerting during a Supreme Court argument than smart justices playing dumb."

Linda Greenhouse expresses dismay over the Justices' [feigned] difficulty over the "lawfully present"/"legally present" distinction in immigration law.