Justice on the Brink with SCOTUS Expert Linda Greenhouse

[MUSIC] >> Bonnie Erbe: HELLO.

I AM BONNIE ERBE.

WELCOME TO "TO THE CONTRARY", A DISCUSSION OF NEWS AND SOCIAL TRENDS FROM DIVERSE PERSPECTIVES.

THIS WEEK IN OUR WOMEN THOUGHT LEADERS SERIES, WE HAVE LINDA GREENHOUSE.

SHE COVERED THE SUPREME COURT FOR THE NEW YORK TIMES FOR THREE DECADES AND IS NOW A COLUMNIST FOR THE TIMES AND A TEACHER AT THE YALE LAW SCHOOL.

HER NEW BOOK, "JUSTICE ON THE BRINK," LOOKS AT HOW THE HIGH COURT HAS CHANGED IN JUST 12 MONTHS, ESPECIALLY THE TRANSITION FROM RUTH BADER GINSBURG TO AMY CONEY BARRETT.

LINDA, LET'S START WITH YOU GIVE QUITE A BIT OF BACKGROUND ABOUT HOW THEY CAME TO THE HIGH COURT.

PLEASE GIVE ME A COUPLE OF MINUTES ON EACH OF THEM AND PARTICULARLY THE PARTS OF THEIR BACKGROUND THAT YOU THINK DRIVES OR DROVE THEIR PASSION FOR LAW FROM A CONSERVATIVE VIEW AND A PROGRESSIVE VIEW.

>> Linda Greenhouse: SURE.

FIRST, LET ME SAY I'M HAPPY TO BE BACK ON THE SHOW.

IT'S BEEN A COUPLE YEARS AND YOU AND I GO BACK A LONG WAY TO THE SCORE OF DECADES AGO.

SO THANKS FOR HAVING ME BACK.

>> Bonnie Erbe: VERY GOOD TO SEE YOU TOO.

>> Linda Greenhouse: SO RUTH GINSBURG, AS PEOPLE KNOW, BEGAN HER CAREER REALLY IS AN ADVOCATE FOR WOMEN'S RIGHTS DURING THE 1970'S WHERE SURPRISINGLY THE SUPREME COURT HAD NEVER YET GOTTEN AROUND TO EVEN RECOGNIZING SEX DISCRIMINATION AS A CONSTITUTIONAL HARM, DIDN'T THINK THE CONSTITUTION SAID ANYTHING ABOUT THE QUALITY OF THE SEXES.

SHE BEGAN HER LITIGATION CAMPAIGN ON BEHALF OF THE ACLU AND WAS VERY SUCCESSFUL.

REALLY PUT HERSELF ON THE MAP.

SHE WAS KNOWN IN MANY QUARTERS AS THE THURGOOD MARSHALL OF THE WOMEN'S RIGHTS MOVEMENT.

JIMMY CARTER NAMED HER TO THE FEDERAL APPEALS COURT IN D.C. AND BILL CLINTON MADE HER HIS FIRST SUPREME COURT NOMINEE.

SO THAT WAS HER STORY.

AMY BARRETT, MUCH YOUNGER.

SHE IS CURRENTLY 48 YEARS OLD, HAS SPENT HER CAREER SORT OF IN THE SHELTERING ARMS OF THE CONSERVATIVE LEGAL MOVEMENT, WHICH IDENTIFIED HER AS, I GATHER, QUITE A BRILLIANT LAW STUDENT AT NOTRE DAME UNIVERSITY WHERE SHE WENT TO UNDERGRADUATE SCHOOL AS WELL AS LAW SCHOOL.

PROPELLED HER TO A CLERKSHIP WITH JUSTICE ANTONIN SCALIA WHO BECAME HER MENTOR.

AND SHE WAS -- DURING HER TEACHING CAREER, SHE TALKED FOR A LONG TIME AT NOTRE DAME.

SHE WAS A FAVORED SPEAKER OF THE VILLA SOCIETY, SHE WENT AROUND THE COUNTRY GIVING TALKS, AND IT WAS SORT OF A NATURAL PROGRESSION THAT PRESIDENT TRUMP, IN THE OPENING MONTHS OF HIS TERM IN 2017, NAMED HER TO A SEAT ON THE FEDERAL APPEALS COURT IN THE MIDWEST, THE SEVENTH CIRCUIT, THAT THE REPUBLICANS HAD BLOCKED PRESIDENT OBAMA FROM FILLING.

THERE WAS A VACANCY THERE.

AND THE NIGHT THAT RUTH GINSBURG DIED, SEPTEMBER 18, A YEAR AGO, MITCH McCONNELL, THE REPUBLICAN SENATE LEADER WHO WAS SO CAREFULLY ENGINEERED KEEPING THIS SCALIA VACANCY OPEN SO THAT TRUMP WAS ABLE TO FILL IT WITH NEIL GORSUCH INSTEAD OF PRESIDENT OBAMA, BE ABLE TO FILL IT WITH MERRICK GARLAND, MACCONNELL CALLED DONALD TRUMP WHO WAS IN THE AIR, ON AIR FORCE ONE, FLYING BACK TO THE WHITE HOUSE FROM A CAMPAIGN EVENT AND SAID TWO THINGS TO HIM: YOU WILL FOR THE SEAT, EVEN THOUGH OF COURSE ELECTION DAY WAS JUST WEEKS AWAY; YOU WILL FILL THE SEAT AND YOU WILL FILL IT WITH AMY CONEY BARRETT.

AND SO, THAT'S WHERE WE ARE AND THAT IS WHY I TITLED THE PROLOGUE OF THE BOOK, THE CHOSEN ONE.

AND OF COURSE THE CHOSEN ONE IS AMY CONEY BARRETT.

>> Bonnie Erbe: YOU TALK AT LENGTH IN THE BOOK AND WE WILL GET INTO THIS IN A LITTLE BIT, BUT ABOUT HOW AMY CONEY BARRETT CHANGED AND IS CHANGING THE VIEW OF THE COURT ON A LOT OF ISSUES, SUCH AS WOMEN'S RIGHTS.

BUT HOW WOULD RUTH BADER GINSBURG, DO YOU THINK, HAVE FELT ABOUT DONALD TRUMP COMPARING AMY CONEY BARRETT TO HER?

>> Linda Greenhouse: RUTH GINSBURG HAD A CAPACIOUS VIEW OF HISTORY AND OF HUMAN NATURE.

AND, YOU KNOW, I THINK SHE CERTAINLY DIDN'T WANT DONALD TRUMP TO BE THE ONE TO FILL THE VACANCY.

WE KNOW THAT.

SHE SAID THAT.

BUT I THINK SHE MIGHT HAVE FOUND AMY BARRETT SOMEBODY THAT -- WHO SHE COULD TALK TO AND MAYBE TEACH AND WORK WITH.

YOU KNOW, WE HAVEN'T SEEN MUCH FROM JUSTICE BARRETT SINCE SHE CAME ON THE COURT.

IT'S VERY SHORT TIME.

THERE AREN'T THAT MANY DATA POINTS.

BUT I HAVE TO SAY, THERE WERE A COUPLE OF DATA POINTS THAT TELL US THAT SHE'S NOT IN THE POCKET OF THE FAR RIGHT ON THE COURT.

SHE'S WRITTEN A FEW THINGS WHERE THAT I HAVE INTERPRETED AS SAYING TO JUSTICE SAMUEL ALITO, THE LEADER OF THAT END OF THE SPECTRUM ON THE COURT, YOU KNOW, I AM NOT YOUR GIRL.

YOU AND I MAY HAVE A LOT OF THINGS IN COMMON.

WERE BOTH CONSERVATIVE JUDICIALLY AND RELIGIOUSLY, BOTH RELIGIOUS CATHOLICS, BUT DON'T TAKE MY VOTE FOR GRANTED.

SO I THINK SHE MIGHT HAVE GIVEN RUTH GINSBURG CERTAINLY A CHALLENGE, BUT SOMETHING TO WORK WITH.

>> Bonnie Erbe: AND WE ALL KNOW THE FAMOUS FRIENDSHIP BETWEEN THE FORMER JUSTICE ANTONIN SCALIA AND RUTH BADER GINSBURG, IDEOLOGICAL OPPOSITES, YET VERY CLOSE FRIENDS, ESPECIALLY IN THEIR LOVE OF OPERA AND WERE QUITE CLOSE WHEN THE TWO OF THEM WERE ON THE COURT TOGETHER.

AND BARRETT CLERKED FOR SCALIA.

WHAT DO YOU THINK SHE LEARNED FROM HIM ABOUT GETTING ALONG WITH JUSTICES ON THE LEFT?

BECAUSE THE COURT HAS ALSO BEEN GOING THROUGH THE LAST COUPLE OF YEARS THAT, YOU KNOW, STATEMENTS THAT THEY ARE REPUBLICAN JUSTICES AND DEMOCRATIC JUSTICES, AND OF COURSE CHIEF JUSTICE ROBERTS SAID, NO, THERE AREN'T, VERY DEFINITIVELY.

BUT THEIR POLITICS DO DIFFER.

>> Linda Greenhouse: OH, SURE.

AND OF COURSE, ONE THING THAT I'M SURE WAS VERY STRANGE EXPERIENCE FOR JUSTICE BARRETT, SO SHE WAS CONFIRMED AT THE END OF OCTOBER 2020.

THE COURT WAS SHUT DOWN TIGHT.

I MEAN, THE JUSTICES ARE STILL -- WELL, UNTIL THIS TERM, UNTIL OCTOBER OF THIS YEAR, HELD ALL OF THE ORAL ARGUMENTS BY TELEPHONE, NOT EVEN BY ZOOM.

THEY WERE LOOKING AT EACH OTHER BY THEIR HOME TELEPHONES.

THEY MET REMOTELY UNTIL THE LATE SPRING OF THIS PAST SPRING.

SO SHE WAS WORKING FROM HER HOME IN INDIANA AND WASN'T INTERACTING FACE-TO-FACE WITH HER NEW COLLEAGUESO, YOU KNOW, WHATEVER SORT OF ACCULTURATION OR JUST SORT OF FACE TIME WITH OTHER PEOPLE, SHE BEING THE NEWCOMER ON THE BLOCK, I GUESS IS TAKING PLACE NOW.

BUT IT DID NOT TAKE PLACE THEN.

I MEAN, I'LL SAY THIS ABOUT JUSTICE SCALIA: SO, YES, HE AND RUTH GINSBURG FAMOUSLY WERE FRIENDS.

BUT THEY DID NOT INFLUENCE EACH OTHER'S VOTES, SHALL WE SAY.

SKYLEA REMAINED VERY MUCH SCALIA AND GINSBURG WAS VERY MUCH GINSBURG.

AND IN HIS LATER YEARS, I DON'T THINK SCALIA DID MUCH OUTRAGE TO THE LIBERAL JUSTICES.

HE BECAME PRETTY, PRETTY INSULATED, YOU KNOW.

FAMOUSLY SAID HE HAD CANCELED HIS SUBSCRIPTION TO THE WASHINGTON POST BECAUSE IT WAS TOO LIBERAL.

NOW, REALLY, YOU ARE LIVING IN WASHINGTON IS ONE OF THE MOST POWERFUL PEOPLE IN THE GOVERNMENT AND YOU'RE NOT READING THE WASHINGTON POST?

I TOOK THAT AS AN INDICATION THAT HE HAD LOST ANY INTEREST IN TRYING TO INFLUENCE OTHER, OTHER PEOPLE.

>> Bonnie Erbe: NOW, IN THE BOOK, YOU AND OF COURSE MANY OTHERS HAVE CALLED RUTH BADER GINSBURG A ROCK STAR.

WHAT DO YOU THINK GAVE HER ROCKSTAR STATUS?

>> Linda Greenhouse: SO IN THE LAST PHASE OF HER CAREER, TALKING SEVEN, EIGHT, NINE YEARS, THAT'S WHEN SHE BECAME A, QUOTE, NOTORIOUS RBG AND NO ONE WOULD'VE CALLED HER THAT EARLIER, BECAUSE SHE REALLY WAS TRYING TO BE A CONSENSUS BUILDER.

BUT ONCE JUSTICE SANDRA DAY O'CONNOR RETIRED AND WAS REPLACED BY SAM ALITO, WHOSE ARRIVAL REALLY LOOKS THE COURT TO THE RIGHT, AND ONCE JUSTICE JOHN PAUL STEVENS RETIRED, IT LEFT RUTH GINSBURG AS THE SENIOR ASSOCIATE JUSTICE ON THE LIBERAL SIDE OF THE COURT.

SHE BEGAN TO USE HER VOICE AND IT WAS MOST OFTEN A VOICE OF DISSENT BUT IT WAS POWERFUL, QUOTABLE.

YOU KNOW, DID NOT MAKE A DIFFERENCE IN TERMS OF CHANGING VOTES.

BUT SHE WAS SPEAKING OUTSIDE THE COURT.

SHE WAS SPEAKING TO CONGRESS IN THE LILLY LEDBETTER SEX DISCRIMINATION CASE, PAY DISCRIMINATION CASE.

SHE WAS SPEAKING TO HISTORY.

SO I THINK THAT WAS THE RUTH GINSBURG THAT, YOU KNOW, AT THE END OF THE DAY MOST PEOPLE BECAME FAMILIAR WITH.

>> Bonnie Erbe: AND ALL THE MEDIA COVERAGE OF HER, OF COURSE, TOO, THE DOCUMENTARY WHICH WAS RELEASED AS A FEATURE FILM, ETC., ETC., CONTRIBUTED AS WELL TO HER STATURE AS A ROCK STAR?

>> Linda Greenhouse: OH, SURE.

YOU KNOW, AND I SAY IN THE BOOK, YOU KNOW, I THINK THERE WAS A POINT AT WHICH THE CULTURE NEEDED HER, NEEDED SOMEBODY TO CALL OUT THE DRIP, DRIP, DRIP OF THE CONSTANT INCREASE IN CONSERVATISM OF THE SUPREME COURT, SOMEBODY NEEDED TO PUT DOWN SOME MARKERS.

AND THOSE OF US ON THE PROGRESSIVE SIDE OF THE STREET WHO MAY HAVE BEEN DISMAYED AT WHAT WE'VE SEEN ACTUALLY FROM THE COURT, WE NEEDED SOMEBODY TO GIVE VOICE TO THAT.

AND I THINK THAT HELPED PROPEL HER, HER ROCKSTAR STATUS.

>> Bonnie Erbe: WHAT WAS THE MOST IMPORTANT DECISION SHE EVER ISSUED?

>> Linda Greenhouse: ARE MOST IMPORTANT, MAJORITY OPINION FOR THE COURT, WAS IN THE VIRGINIA -- VIRGINIA MILITARY INSTITUTE CASE.

SO THIS WAS A STATE-SPONSORED MILITARY UNIVERSITY THAT ACCEPTED ONLY MEN.

AND THERE WAS A LOT OF FEDERAL GOVERNMENT -- WOMEN AND THE FEDERAL GOVERNMENT, THE CLINTON ADMINISTRATION SUED VMI AND RUTH GINSBURG GOT TO WRITE THE MAJORITY OF OPINION THAT REALLY SORT OF RAISED THE BAR FOR NEW -- GAVE NEW DEFINITION TO WHAT CONSTITUTES UNCONSTITUTIONAL SEX DISCRIMINATION.

AND THAT WAS AN ENORMOUS SATISFACTION TO HER IN NO SMALL MEASURE BECAUSE SHE GOT CHIEF JUSTICE REHNQUIST TO COME ALONG BECAUSE IT WAS VERY SURPRISING BECAUSE HE WAS NOT VERY PARTICULARLY OPENING TO ANYBODY'S CLAIMS OF DISCRIMINATION, LET ALONE TWO WOMEN.

BUT SHE WAS PERSUASIVE TO HIM.

>> Bonnie Erbe: DO YOU THINK AMY CONEY BARRETT HAS THE POTENTIAL TO BECOME ROCKSTAR OF THE RIGHT ON THE COURT?

>> Linda Greenhouse: OH, SHE ALREADY IS!

I MEAN, I QUOTE IN THE BOOK SOME ARTICLES FROM CHRISTIAN PUBLICATIONS WHERE WOMEN ARE WRITING, FINALLY, WE CAN LOOK AT THE SUPREME COURT AND SEE SOMEBODY WHO LOOKS AND THINKS LIKE US.

>> Bonnie Erbe: HOW DO YOU SEE HER ROLLING ON WOMEN'S RIGHTS, EQUAL PAY, YOU KNOW, THE RIGHT TO HEALTHCARE, WHICH A LOT OF PEOPLE SEE PARTICULARLY AS A WOMEN'S RIGHT, WOMAN'S RIGHT AND OF COURSE ABORTION, EITHER CHEMICAL ABORTION OR SURGICAL ABORTION?

>> Linda Greenhouse: WELL, THE DATA POINT WE HAVE ON ABORTION IS NOT VERY CHEERING.

SO AS YOU KNOW, AS PEOPLE NO, ON SEPTEMBER 1, THE SUPREME COURT ALLOWED THE TEXAS VIGILANTE LAW SB8 TO GO INTO EFFECT BY REFUSING TO GRANT THIS DAY THAT THE ABORTION PROVIDERS IN TEXAS WERE BEGGING FOR.

IT TAKES THE VOTE OF FIVE JUSTICES TO GRANT A STAY.

SO CLINICS GOT FOUR VOTES, CHIEF JUSTICE ROBERTS IN THE THREE LIBERAL JUSTICES TO HIS LEFT, YOU KNOW, AMY BARRETT COULD HAVE GIVEN THAT FIFTH BOAT.

BRETT KAVANAUGH COULD HAVE GIVEN THAT TO VOTE.

THEY DID NOT.

SO SB8 TOOK EFFECT AND IT'S STILL IN EFFECT AS WE SIT HERE TODAY.

SO I DID NOT FIND THAT A VERY HOPEFUL SIGN.

THE OTHER ISSUES THAT YOU RAISE, YOU KNOW, EQUAL PAY AND SORT OF WOMEN'S PLACE IN THE WORKPLACE AND THAT KIND OF THING, WE JUST DON'T KNOW.

I MEAN, SHE'S NEVER WRITTEN ON THOSE TOPICSHE HAS MANAGED TO RAISE SEVEN CHILDREN WHILE BEING FULLY EMPLOYED, SO LET'S ASSUME SHE'S GOT SOME EMPATHY FOR AND UNDERSTANDING OF, YOU KNOW, WOMEN NEEDING A WORKLIFE BALANCE THAT'S SUPPORTED BY SOME KIND OF LEGAL PROTECTION.

BUT WE DON'T KNOW ENOUGH TO REALLY SAY.

>> Bonnie Erbe: WHAT DO YOU SEE THE COURT DOING, THE RECONFIGURED COURT, WITH AMY CONEY BARRETT DOING IN THE TEXAS CASE AND IN THE JACKSON , MISSISSIPPI CASE?

>> Linda Greenhouse: THE TEXAS CASE AT THIS POINT IS REALLY PROCEDURAL.

IT IS WHETHER THE FEDERAL COURTS HAVE JURISDICTION TO ISSUE AN INJUNCTION AGAINST THIS LAW BEFORE IT TAKES EFFECT.

SO BEFORE, BEFORE THE LAW, THE VIGILANTE LAWSUIT SAYS THE LAW ENABLES HAVE ACTUALLY TAKEN PLACE, AND SO THE CLINICS, THE PROVIDERS ARE REALLY PRETTY MUCH ANYBODY WHO WOULD BE AN A DEFENDANT IN HIS PRIVATE CIVIL LAWSUITS WILL HAVE SOMEBODY TO SUE.

'S ARE JUST SETTING THAT ASIDE, IT'S A PROCEDURAL THICKET.

SETTING THAT ASIDE, THE MISSISSIPPI CASE IS REALLY THE MONEY CASE.

SO THE QUESTION THERE, AS PEOPLE NO, IS THE CONSTITUTIONALITY OF MISSISSIPPI'S LAW THAT BANS ABORTION STARTING AT 15 WEEKS OF PREGNANCY, IN OTHER WORDS CONSIDERABLY BEFORE THE FETUS IS VIABLE.

FETAL VIABILITY, WHICH WAS ESTABLISHED AS THE KIND OF FIREWALL, ALMOST 50 YEARS AGO IN ROE AGAINST WEIGHT ITSELF, THAT'S WHAT'S PROTECTED THE RIGHT THAT, YOU KNOW, STATES CAN MAKE WOMEN DO ALL KINDS OF THINGS AND LISTEN TO PHONY SCRIPTS AND, YOU KNOW, STAND ON THEIR HEAD AND CRAWL IN THE CLINIC OR WHATEVER, WHATEVER.

BUT THE END OF THE DAY, BEFORE FETAL VIABILITY, THEY COULD TERMINATE THE PREGNANCY AS A MATTER OF A CONSTITUTIONAL RIGHT.

IF THE COURTS CANNOT REACH THAT FIREWALL, THEN I THINK ROE V WADE IS BASICALLY GONE.

SO WHAT'S AMY BARRETT'S ROLE IN THIS?

WELL, MISSISSIPPI'S APPEAL AND THE STATE APPEALED BECAUSE OF COURSE THE LOWER COURT HAD TO STRIKE THE LAW DOWN BECAUSE IT'S FLAGRANTLY UNCONSTITUTIONAL UNDER CURRENT LAW, THE PETITION WAS FILED BY THE STATE BACK IN THE SUMMER OF 2020 WHEN RUTH GINSBURG WAS STILL ALIVE.

THE COURT TOOK IT UP IN THE FALL AS JUSTICE BARRETT WAS COMING ONTO THE COURT.

THEY WENT OVER IT AGAIN AND AGAIN AND AGAIN.

MY BOOK CHRONICLES THIS, WEEK AFTER WEEK THEY TOOK IT UP IN THEIR PRIVATE CLOSED-DOOR CONFERENCE, WHAT TO DO ABOUT THIS CASE.

THE COURT HAD RECEIVED MANY PETITIONS LIKE THIS OF THESE CRAZY LAWS THAT THE LOWER COURTS HAD INVALIDATED AND OF COURSE THE SUPREME COURT NEVER TOOK UP ANY OF THE STATE APPEALS BECAUSE THERE WAS NO CONFLICT AMONG THE LOWER COURTS.

ALL THESE KINDS OF LAWS ARE FLATLY UNCONSTITUTIONAL.UT YET, IN MAY, AND MY MAY CHAPTER IN THE BOOK STARTS WITH THE LINE, I THINK IT IS -- IT WAS ALWAYS ABOUT ABORTION, OKAY, IN MAY THEY DECIDED TO HEAR THE CASE.

NOW, WHY WOULD THEY DECIDE TO HEAR THE CASE?

IT'S BECAUSE THERE IS A CRITICAL MASS OF OF THEM, WHETHER IT'S FIVE VOTES, SIX VOTES, WE DON'T KNOW.

THEY WANT TO CHANGE THE SET SETTLED LAW.

THEY WOULD USE THIS CASE AS A VEHICLE TO DO WHAT A NUMBER OF THEM HAVE WANTED TO DO FOR ALL LONG TIME, WHICH IS TO TAKE A WHACK OUT OF THE RIGHT TO ABORTION.

AND AS I SAID, MY VIEW IS ONCE YOU START PREACHING THAT VIABILITY FIREWALL, YOU DON'T HAVE A WHOLE LOT LEFT.

>> Bonnie Erbe: A LOT OF PEOPLE HAVE ARGUED THAT VIABILITY IS VERY FRAGILE CONCEPT UPON WHICH TO LAY A CONSTITUTIONAL RIGHT.

ORIGINALLY, IT WAS BROKEN DOWN INTO THREE TRIMESTERS IN THE FIRST TRIMESTER, THE WOMAN AND HER DOCTOR HAD COMPLETE CONTROL OR SOMETHING THERE ONTO A KIN.

AND IN THE MIDDLE TRIMESTER, IT WAS A MIXTURE OF THE WOMEN'S RIGHTS AND STATES RIGHTS.

AND IN THE THIRD TRIMESTER, IT WAS ALL STATES RIGHTS.

AND OF COURSE, THIS WAS 50 YEARS AGO.

BUT DO YOU THINK THAT WAS TOO FRAGILE A PLATFORM UPON WHICH TO LAY A WOMAN'S RIGHT TO CHOOSE?

>> Linda Greenhouse: THE WAY THE CONSTITUTION LAW IS NOW, WE READ THROUGH THE LENS OF PLANNED PARENTHOOD AGAINST CASEY, WHICH IS A CASE IN 1992, THAT REAFFIRMED THE RIGHT TO ABORTION, BUT KIND OF REALLY RECONFIGURED THAT TRIMESTER LAYOUT OF -- THAT YOU JUST GAVE.

SO WHAT IS SAID, WHAT PLANNED PARENTHOOD AGAINST CASEY SAID, AND THAT'S REMAINED THE CURRENT LAW SINCE 1982, IS THAT BEFORE FETAL VIABILITY, THE STATE DOES HAVE AN INTEREST IN PROTECTING UNBORN LIFE.

BUT IT CANNOT INVOKE THAT INTEREST TO STOP A WOMAN FROM HAVING AN ABORTION.

IT CAN SEEK TO PERSUADE HER NOT TO GO AHEAD WITH IT BY MANDATORY COUNSELING, WAITING PERIODS, DIFFERENT KINDS OF OBSTACLES, AS LONG AS THOSE OBSTACLES DON'T PRESENT WHAT THE COURT CALLED AN UNDUE BURDEN ON ACCESS TO THE RIGHT.

SO THE VIABILITY, YOU KNOW, BASELINE, I DON'T THINK IS FRAGILE.

I THINK IT'S BAKED INTO HOW WE UNDERSTAND THIS QUESTION, AND IT'S REALLY IMPORTANT BECAUSE, YOU KNOW, A TYPICAL QUESTION THAT A JUSTICE WILL ASK A LAWYER FROM THE BENCH DURING AN ARGUMENT IS, OKAY, COUNSEL, WHAT'S YOUR LIMITING PRINCIPLE BY WHICH THE JUSTICE MEANS, YOU KNOW, IF WE DECIDE THE CASE YOUR WAY TODAY, WHAT ARE WE COMMITTING OURSELVES TO FOR THE CASE AFTER THAT IN THE CASE AFTER THAT?

BECAUSE THE COURT REALLY DOES NOT SIT TO RESOLVE INDIVIDUAL ROOTS DISPUTE!

THE COURT IS MAKING LAW.

WHAT YOUR LIMITING PRINCIPLE?

SO A VERY USEFUL LIMITING PRINCIPLE, THE ESSENTIAL ONE HAS BEEN VIABILITY.

BEFORE VIABILITY, THE WOMAN HAS THE RIGHT.

IF YOU GET RID OF VIABILITY AND YOU WILL PULL THE 15 WEEK BAN, WHY NOT A 12 WEEK BAN, WHY NOT A SIX WEEK BAN WHICH IS THE TEXAS ?

WHY NOT A ZERO WEEK BAN?

SOME STATES ARE TRYING TO PROHIBIT ABORTION AT THE MOMENT OF FERTILIZATION.

SO THAT'S WHY IT'S SO TROUBLING THAT THE COURT AGREED TO HEAR THIS CASE.

AND MY ADDITIONAL CONCERN IS THAT IF THEY UPHOLD THE MISSISSIPPI BAN IN SOME MANNER WITHOUT EXPLICITLY SAYING, AND WE HEREBY HOLD THAT GO AGAINST WEIGHT IS OVERTURNED, THE PUBLIC WON'T UNDERSTAND THE REAL DIMENSIONS OF WHAT HAS OCCURRED.

SO IT'S UP TO PEOPLE LIKE YOU, PEOPLE LIKE ME, INFORMED PEOPLE THAT HAVE FOLLOWED THIS ISSUE TO MAKE CLEAR THAT PEOPLE UNDERSTAND THE DOOR THAT THE COURT WILL BE OPENING TO THE ULTIMATE ERASURE OF THE RIGHT TO ABORTION.

>> Bonnie Erbe: IF THE COURT DOES THAT, WHAT DOES IT SAY ABOUT PRECEDENT?

WELL, THAT'S WHO THEY HAVE TO JUMP THROUGH.

AND CAMINO, THE FAMOUS LINE FROM CHIEF JUSTICE REHNQUIST WAS THE RULE FULL OF STARI DECISIS, WHICH IS THE LAND TERM FOR PRECEDENT, IS NOT AN INEXORABLE COMMAND, MEANING WE HONOR IT IN PRINCIPLE, BUT WE COULD GET AROUND THE IN PRACTICE, RIGHT?

BASICALLY, IF WE FIND THAT THE CASE WAS WRONGLY DECIDED, DECIDED ON THE WRONG CONSTITUTIONAL PREMISE, NOT WORKING, ONE THING THAT MISSISSIPPI SAYS IN ITS BRIEF IS, OH, LOOK AT ALL OF THE CONFLICT AND CONTROVERSY OVER ROE V WADE.

IT'S BEDEVILING THE LOWER COURTS AND DO YOU REALLY UP TO GET RID OF IT.

IT'S BEDEVILING THE LOWER COURTS BECAUSE STATES LIKE MISSISSIPPI KEEP PASSING FLAGRANTLY UNCONSTITUTIONAL LAWS THAT KEEP AND ROILING THE WATERS AROUND THE RIGHT TO ABORTION.

IF THEY JUST, YOU KNOW, WOKE UP AND ACCEPTED SETTLED LAW, EVERYTHING WOULD BE FINE.

SO, YOU KNOW, THAT'S THE SITUATION THAT WE ARE IN.

>> Bonnie Erbe: YOU TALK A LITTLE BIT ABOUT IN THE BOOK -- WERE YOU TALK IN THE BOOK ABOUT THE SHADOW DOCKET.

PLEASE EXPLAIN WHAT THAT IS.

>> Linda Greenhouse: THE SHADOW DOCKET IS KIND OF, YOU KNOW, CATCHY, SLIGHTLY PEJORATIVE WORD FOR SOMETHING THAT EXISTS IN EVERY COURT, WHICH IS AN EMERGENCY DOCKET.

WHEN THINGS COME UP THAT YOU CAN'T WAIT FOR THE ORDINARY MONTHS' LONG PROCESS OF GRANTING AND HEARING A CASE TO PLAY OUT, AND SOMEBODY HAS A PLAUSIBLE CLAIM TO IMMEDIATE RELIEF OF SOME KIND, AND INJUNCTION, STAY, WHATEVER.

SO THERE'S NOTHING WRONG WITH IT IN THE ABSTRACT.

WAS DIFFERENT IN THIS COURT, WHAT REALLY CAME TO A HEAD DURING THE YEAR THAT I CHRONICLE IN THE BOOK IS THE COURT STARTED USING THE SO-CALLED SHADOW DOCKET NOT JUST FOR PROCEDURAL PURPOSES, BUT TO ACTUALLY MAKE NEW LAW.

AND THAT'S WHAT THE COURT DID IN THIS LAST TERM IN SOME RELIGION CASES.

YOU KNOW, I MEAN, THEY ARE NOT GOING TO DO IN THE MISSISSIPPI CASE.

UGLY THEY GRANTED THAT CASE FOR REVIEW.

IT'S BEEN FULLY BRIEFED AND WILL BE FULLY ARGUED.

SO THE PUBLIC IN A WAY, THE PUBLIC IS INVITED INTO THE CONVERSATION.

WITH TROUBLING IS WHEN THE COURT MAKES LAW KIND OF IN THE MIDDLE OF THE NIGHT IN CASES THAT THEY HAVE NOT FORMALLY GRANTED.

THE PUBLIC MAY NOT EVEN BE AWARE OF THE CASES AND ALL OF A SUDDEN WE'VE GOT A RULING THAT KIND OF DROPS OUT OF THE SKY AND, YOU KNOW, AT MIDNIGHT.

AND THE COURT HAS BEEN USING AND I THINK MISUSING THE SHADOW DOCKET IN THAT WAY.

BUT THAT'S NOT GOING TO HAPPEN IN THE MISSISSIPPI CASE.

>> Bonnie Erbe: AT LEAST THEY MAY HAVE A DECISION THAT WILL NEED MODIFICATION AND COULD DO SO UNDER THE CLOAK OF THE SHADOW DOCKET.

I SUPPOSE THAT'S POSSIBLE.UT I'M JUST SAYING, THEY ARE USING THIS TO GET OUT OF EXPLAINING THEMSELVES WHEN THEY MAKE INEXPLICABLE DECISIONS.

AND THAT SEEMS VERY TEMPTING WHEN IT COMES TO ABORTION, BECAUSE IT'S SUCH A CONTROVERSIAL TOPIC.

>> Linda Greenhouse: WELL, WHAT IT REALLY IS, IN THE LAST TERM, AS I SAID IN RELIGION -- >> Bonnie Erbe: WHICH IS SO RELATED TO ABORTION.

>> Linda Greenhouse: YEAH.

YOU KNOW, DURING THE PANDEMIC, A LOT OF STATES, LOCALITIES IMPOSED VARIOUS CAPACITY LIMITS ON THE NUMBER OF PEOPLE WHO COULD GATHER INDOORS FOR VARIOUS REASONS, INCLUDING IN HOUSES OF WORSHIP.

AND SO, CHURCHES BEGAN BRINGING, YOU KNOW, COMPLAINING ABOUT THIS, SAYING THIS VIOLATES OUR RIGHT TO FREE, EXERCISES, YOUR DISCRIMINATING AGAINST RELIGION, YOU LET PEOPLE GO TO THE MALL, BUT YOU'RE ONLY LETTING 60 PEOPLE IN MY CHURCH.

I REALLY WANT TO HAVE 100 PEOPLE, THIS KIND OF THING.

AND WHEN RUTH GINSBURG WAS STILL ALIVE AND ON THE COURT, THE COURT REJECTED THESE CASES BY VOTES OF FIVE TO FOUR, WITH CHIEF JUSTICE ROBERTS AND THEN THE FOUR LIBERALS.

ONCE AMY BARRETT CAME ON THE COURT, ALMOST IMMEDIATELY, ON THANKSGIVING EVE OF 2020, THE SHADOW DOCKET CASE, THE COURT FLIPPED.ND BY A VOTE OF 5-4, OVERTURNED NEW YORK REGULATION LIKE THIS AND THEY KEPT DOING THAT WITH THESE COVID CASES.

YOU KNOW, GRADUALLY SORT OF MAKING, AS I SAID, NEW LAW AND, YOU KNOW, NEW POWER BEHIND THE FREE EXERCISE CLAUSE OF THE FIRST AMENDMENT.

AND IT'S PRETTY AMAZING.

THIS IS THE THING THAT REALLY RUNS THROUGH MY BOOK, WHICH IS WHAT THEY WERE DOING WITH RELIGION IN THE COVID CONTEXT, IN THE LGBT CONTEXT, AND OTHER CONTEXTS, AND THAT'S GOING TO CONTINUE INTO THE CURRENT, THE TERM THAT WE ARE IN NOW FOR SURE.

>> Bonnie Erbe: THANK YOU SO MUCH, LINDA GREENHOUSE AND THANK YOU FOR YOUR BOOK, "JUSTICE ON THE BRINK".

AND THANK YOU FOR YOUR TIME TALKING ABOUT IT.

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