NYT Op-Ed Suggests Supreme Court Decisions Alone May Not Suffice

In an ominous essay for The New York Times, longtime legal writer Linda Greenhouse argued that Chief Justice John Roberts should enhance public trust in the Supreme Court by embracing “spontaneity” because “deciding cases may not be enough these days.”

“The current chief justice maintains exquisite control of his public persona, to the extent that it is hard to think of a spontaneous John Roberts act,” Greenhouse, a former reporter and columnist at the Times, wrote. “But some spontaneity is called for now.”

Greenhouse faulted Roberts for his refusal to compromise judicial independence by participating in a private one-sided meeting with Senate Democrats. She also cites his perceived failure to force Justices Samuel Alito and Clarence Thomas to recuse themselves from Donald Trump’s immunity case due to their spouses’ privately held beliefs.

Greenhouse never explicitly defined “spontaneity,” but she suggested it would include a shift from merely deciding cases to embracing judicial activism.

“Deciding cases is indeed the court’s job,” Greenhouse wrote. “But deciding cases may not be enough these days, when the Supreme Court has plummeted in public esteem to near-historic lows … and every week seems to bring a new challenge to its image of probity and detachment.”

Greenhouse elaborated on the progressive judicial philosophy she argues Roberts should embrace in a separate article for the History News Network.

“We need a Supreme Court that envisions the Constitution as Ruth Bader Ginsburg envisioned it, as an engine of social progress instead of as a roadblock to structural reform,” Greenhouse wrote. She goes on to call the court’s recent protections of religious freedom “off-ramps from civil society for those with religious objections to following the nondiscrimination principles intended to bind us all.”

This push for leftist activism stands in contrast to her condemnation of the court’s reliably conservative justices, whom she calls “five activist justices to [Roberts’] right.” Greenhouse questioned why Roberts doesn’t exert more power over Justices Samuel Alito and Clarence Thomas in particular, though the justices are not subordinates to Roberts.

“I’ve been asked quite often why Chief Justice Roberts doesn’t just instruct Justices Alito and Clarence Thomas … to recuse themselves from the cases on Donald Trump’s prosecution arising from the 2020 election and the 2021 attack on the Capitol,” Greenhouse wrote.

Greenhouse does not point to any behavior of the justices that warrants their recusal. She instead cites recent smear campaigns against the justices’ wives, including Martha-Ann Alito’s display of an “Appeal to Heaven” flag previously flown at George Washington’s command. But the Supreme Court’s code of conduct does not require political neutrality from spouses.

Greenhouse maintains that Roberts’ failure to “jawbone them” into recusal demonstrates a failure in leadership, comparing him to Chief Justice William Rehnquist.

“We’ll never know, obviously, but I think [Rehnquist] would have drawn on his deep well of capital inside the court and found a way to let Justices Alito and Thomas know that recusal from the Trump immunity case would be highly advisable even if not required,” Greenhouse wrote. “If there is a blueprint for addressing the issues now swirling around the court, it has eluded a chief justice who might not have acquired the institutional capital to call on in a time of need.”

Roberts’ inability to force Alito’s and Thomas’ recusal is not a matter of lacking “institutional capital” but rather of the parameters of his role. Roberts may hold a unique position in terms of administration and presiding over court sessions, but he is not the boss of the other justices. Individual justices decide their own recusals.

Greenhouse argued for an overreach not only of the chief justice’s authority but also of the Supreme Court’s. Her assertion that merely “deciding cases may not be enough these days” contradicts the role of the judicial branch of government. The constitution and legal precedent have established the judiciary as a bastion of impartial decision-making, not spontaneity in addressing public perception.

The Federalist requested comment from Greenhouse for clarification on what she meant by “spontaneity” and “deciding cases may not be enough these days” but received no reply.