WASHINGTON Sometime during the first of my nearly 30 years reporting on the Supreme Court, a distinct visual image of a Supreme Court term took hold in my mind and never let go. The nine-month term was a mountain. My job was to climb it.
The slope was gentle when the term began, every first Monday in October; the court was busy choosing new cases and hearing arguments, but it was not yet ready to issue decisions. The upward path steepened in January and February, when grants of new cases, arguments and decisions all came at once, competing for attention. Spring brought a breather as the path flattened out again: All the arguments had been heard, and the decisions were sporadic. The steepest climb came, predictably, every June, with the final outpouring of opinions before the summer recess. And then it was over. I could look down from the mountaintop to see the term whole and clear, while off in the distance the next term loomed, another climb.
But not this year. I am retiring from The New York Times to write and teach at Yale Law School. So this time, I can survey all the mountains, stretching back to the morning in 1978 when I first walked up the court's marble steps mistakenly, as it turned out, because people with business at the court actually use a less majestic but more practical side entrance at ground level.
I had been a political reporter, covering state government in New York from Albany, before I received a Ford Foundation fellowship for journalists to attend Yale Law School for a year. Certainly my Yale master's degree, the ink barely dry as I walked up those marble steps, had given me a useful grasp of legal concepts. But it could scarcely prepare me for the texture and flavor, the sheer dailiness, of life at the court. So much happened behind closed doors.
What did the justices do all day, anyway? I imagined them in earnest conversation with one another, grappling with the great legal questions of the day (in 1978 affirmative action was the most pressing). I learned only gradually that it isn't like that at all, that except for their formal gatherings around the conference table once or twice a week, the justices spend their time, when they are not on the bench, in their chambers, alone or with their law clerks.
Communications among them tend to be in writing, even today, and the ethos of the place discourages one justice from intruding on another's space, physically or verbally. Membership in one of the world's most exclusive clubs can be isolating, a little lonely, which I think is why those justices who enjoy companionship spend a fair amount of their free time on the road, speaking at law schools and judicial conferences.
In The Times' Albany bureau, contact with the capitol's newsmakers was constant, and feedback from them was instantaneous not always pleasant, but essential for understanding competing perspectives and agendas, or simply for avoiding making the same mistake twice. Compared with the frenzied drama of the New York Legislature, the quiet of the Supreme Court press room was the silence of the tomb. In place of the easy banter with politicians that had made the Albany beat so engaging, there was an almost suffocating paper flow. Before I could work my way through one list of newly filed petitions to the court, two more would arrive.
Politics, comfortingly, had presented a moving target an interpretation that seemed wrong today could well be proven correct tomorrow. But when it came to Supreme Court decisions, it was quite possible to get it wrong, flatly and irrevocably. And if I did get it wrong, how would I know? The fact that I received no feedback from those whose activities I was covering was hardly reassuring. It just underscored how different this new environment was going to be.
And yet I came to see my Albany experience as valuable, rather than irrelevant, to my new assignment. Watching the back-and-forth between a state Legislature and the Supreme Court of the United States had given me a real sense of the court as an active participant in the ceaseless American dialogue about constitutional values and priorities, not a remote oracle.
For example, the New York Legislature in the 1970s was determined to channel taxpayer money to parochial schools. A majority of the Supreme Court was equally determined to keep that from happening. Session after legislative session in Albany, I reported on efforts to get around the latest Supreme Court ruling and to do indirectly (by providing textbooks or transportation rather than classroom instruction, for instance) what the court had said could not be done directly.
It was a constitutional pingpong match, foreshadowing, in its way, the recent one between the court and the Bush administration over the handling of the Guantanamo detainees; a battle over principle, to be sure, but also over who would get the last word.
There was another useful lesson for me in the struggle over parochial school aid: the court's makeup changes, and so does the law. As an associate justice, William H. Rehnquist, who wanted to cultivate a much bigger space for religion in public life, planted a few seeds in arid soil. He tended those seeds assiduously as new allies joined the court and the climate warmed, until they germinated in the form of decisions like the one in 2002, Zelman v. Simmons-Harris, which upheld Ohio's system of taxpayer-financed vouchers for parents to use for parochial school tuition. "A program of true private choice," Chief Justice Rehnquist said in his 5-4 majority opinion having established years earlier, in less freighted contexts, that when public money passes through parents' hands, it loses its public character and its use becomes a "private choice."
And then something interesting happened. The voucher movement, even though its constitutional shackles had been removed, stalled almost everywhere, owing not to the intervention of federal judges but to resistance from state courts, teachers' unions and taxpayers. An ambitious legislative campaign by voucher advocates in 2004 ended in defeat in state after state. The court can only do so much. It can lead, but the country does not necessarily follow.
In fact, it is most often the Supreme Court that is the follower. It ratifies or consolidates change rather than propelling it, although in the midst of heated debate over a major case, it can often appear otherwise. Without delving into the vast political science and legal academic literature on this point, I'm simply offering my empirical observation that the court lives in constant dialogue with other institutions, formal and informal, and that when it strays too far outside the existing political or social consensus, the result is a palpable tension both inside and outside the court.
Such periods are fascinating, and inherently unstable. The early New Deal period is a classic example. The public demanded change, and the "nine old men" stood in the way. The "court-packing" crisis ensued; President Franklin D. Roosevelt had to back down from adding new and younger justices and change came from inside the court anyway. Some decisions protecting the rights of criminal suspects, made by Earl Warren's court in the 1960s, placed the court to the left of the country's center (and provided useful campaign fodder for Richard M. Nixon).
A year ago, at the end of a Supreme Court term marked by sharp ideological divisions and attacks on precedent by a newly empowered conservative majority, I thought we were entering such a period; the court appeared to be moving to the right of the public. For example, the 5-4 decision blocking local communities from taking modest steps to preserve the hard-won gains of public school desegregation threatened to unravel delicate arrangements in school districts around the country. That remains a highly problematic decision, but the more muted and centrist tone of the term that just ended has made me less persuaded that the court is on a collision course with mainstream public opinion.
In any event, it is often the court that eventually retreats when it finds itself out of sync with the prevailing mood. That appeared to be the case with the "federalism revolution" that Rehnquist began in the mid-1990s. In a series of 5-4 decisions, the court declared that Congress did not have the power it assumed it had to make federal statutes binding on the states. These decisions, reflecting the chief justice's longstanding goal to re-adjust the post-New Deal federal-state balance, signaled an abrupt jurisprudential shift.
But then 9/11 happened and the national mood changed. Suddenly, the federal government looked useful, even necessary. The Supreme Court's federalism revolution had been overtaken by events. In 2003, Rehnquist wrote for a 6-3 majority that Congress acted within its constitutional authority when it said state governments could be sued for failing to give their employees the benefits required by the Family and Medical Leave Act. It was a decision of enormous symbolic significance. Without apology or much in the way of explanation, the chief justice gave up the fight and moved on.