Linda Greenhouse, Looking Closely at the Supreme Court

DATE July 2, 2007 ACCOUNT NUMBER N/A
TIME 12:00 Noon-1:00 PM AUDIENCE N/A
NETWORK NPR
PROGRAM Fresh Air

Interview: Linda Greenhouse, Pulitzer Prize-winning journalist for
The New York Times, on the current Supreme Court
DAVE DAVIES, host:

This is FRESH AIR. I'm Dave Davies, senior writer for the Philadelphia Daily
News, filling in for Terry Gross.

The first full term of the Supreme Court led by Chief Justice John Roberts
ended last week, and it's more conservative cast was reflected in a series of
5-to-4 decisions on a broad range of legal issues, from school desegregation
to anti-trust law. Our guest today is Linda Greenhouse, who's covered the
court for The New York Times for most of the last three decades. Among her
many journalistic awards is the 1998 Pulitzer Prize for beat reporting.

Well, Linda Greenhouse, welcome back to FRESH AIR. Most of us expected this
to be a more conservative Supreme Court. Is it about what we expected?

Ms. LINDA GREENHOUSE: Yes, I think. As I wrote in the paper on Sunday, it's
the court that conservatives had longed for and that liberals feared, so it
was dreams come true and fears realized. I think there were a couple of
surprises in, I would say, not so much outcomes, not bottom-line outcomes, but
in the music of these decisions, the tonality of the court. I think the
majority hung together more than one might have expected. Justice Kennedy was
with the more solidly perhaps conservative four justices in almost all the
important cases. I think that was maybe a bit of a surprise. And the tone,
the aggressiveness of some of the opinions, the reaching out to invite
subsequent challenges and the suggestions that a number of precedents are on
very weak legs right now, that was a bit of a surprise.

DAVIES: All right. Well, let's go over some of the more important decisions
that the court has issued and that you've written about. One of the most
high-profiles ones, of course, came in the area of school desegregation,
striking down plans by Seattle and Louisville. What were these school
districts doing that the court found unconstitutional?

Ms. GREENHOUSE: What the opinion by Chief Justice Roberts found
unconstitutional, and the significance that Justice Kennedy, who joined the
majority for the result but didn't subscribe to the chief justice's analysis,
what the--so we'll call it the plurality. What the plurality found
unconstitutional was that counting by race in both of these school districts,
they both sought to keep the schools balanced, roughly, in proportion to the
racial makeup of the school districts. And in order to do that, when a
student applied to enter a school or transfer to a different school, that
request would be accepted or denied based on whether it would or would not
unbalance the schools, and the court found that unconstitutional.

DAVIES: So the flaw was taking race into account on decisions about
individual students?

Ms. GREENHOUSE: On an individual basis, that's right. Taking account of
individual's race.

DAVIES: And it's interesting that both sides in this case, the minority and
the majority, paid homage to Brown v. Board of Education.

Ms. GREENHOUSE: Well, more than homage. They each claimed that their
analysis was, in effect, compelled by the equal protection analysis of Brown
against Board of Education, which, of course, is a very fascinating situation
for the chief justice. The lesson of Brown was that the Constitution is
color-blind, and it should have been color blind in the era
of...(unintelligible)...segregation and that was the holding of Brown in 1954,
and it should be equally color blind today when these school districts are
engaged in what used to be called benign, rather than invidious,
discrimination. But to take the chief justice at his word, there is no such
distinction, there's no such thing as, quote, "benign discrimination."
Discrimination's discrimination, and he said, in the final line of his
opinion, `If you want to stop racial discrimination, you have to stop
discriminating by race.'

Now, the dissent, of course, claimed very passionately that it was carrying
forward the legacy of Brown, which was equal opportunity, and that Brown tells
us that school districts have to be able to continue affirmative efforts--this
is not an affirmative action case, but affirmative efforts--to maintain
integration or prevent resegregation that, as we know, because of residential
housing patterns and economic patterns, still exists in a very widespread
basis more than 50 years after Brown.

DAVIES: Now, you noted that Justice Kennedy did side with the conservative
majority in this case, but issued a different opinion, which might hold out
hope for a different approach than conservatives might expect. What is
Kennedy's view of this?

Ms. GREENHOUSE: Kennedy's view, as a matter of equal protection
doctrine--and this gets a little bit down into the weeds, but it's important
to understand where he's coming from--he said there is a compelling state
interest in eliminating racial isolation. That's really important because the
Roberts' opinion says there is no such compelling state interest, and under
equal protection doctrine, if there's not a compelling state interest, the
government cannot do anything. Kennedy said, `No, our society has a real
stake in eliminating racial isolation.' So they come from very different
starting points, and Kennedy's starting point is the same as the starting
point of the four dissenters, of the Breyer dissent. Where Kennedy differs
from the dissenters is in the next step of 14th Amendment analysis: Once
you've got a compelling state interest, you've got to have a remedy for the
problem that is `narrowly tailored'--that's the term of our--narrowly tailored
to serve that interest, and Kennedy said these plans are basically too blunt
an instrument, it's too crude a technique to count the students by race, to
identify the students by race, and so that's where he departs.

So that leaves him with a range of options that he offers in his opinion.
Such measures as drawing attendance zones with a consciousness of race, if a
school district is carving up the attendance zones, it can do that with the
goal of producing an integrated student body school by school, or where to
place a school or what kind of magnet program to offer, or recruiting faculty,
recruiting students. He offers these explicitly as measures that would pass
his test of being sufficiently narrowly tailored. The dissent, Justice
Breyer's dissent, takes him on point by point on this and says, `These have
been tried, these have failed, these are not sufficient. The measures under
consideration here, the Seattle plan, the Louisville plan are in fact very
modest voluntary integration plans and they meet our test of being narrowly
tailored.' So that's where the difference lies.'

DAVIES: So school districts can still pursue racial integration, but they
must use different means to do it other than racial decisions regarding
individual students. They can still craft boundaries, they can still use
magnet schools, it appears.

Ms. GREENHOUSE: Yes. Now, you know, the dissent or the civil rights
community would say, `Well, that's very nice as an abstract matter but in
point of fact these are deeply political and expensive, types of programs.
You know, anybody that's followed issues involving public schools, especially
in city suburban districts like Louisville, which is a metropolitan school
district that includes the city and the suburbs, you know, where you put a new
school or where you draw attendance zones, these are deeply political, you
know, community issues.' So it's not as if school boards can kind of snap
their fingers and accomplish this, but it certainly does mean something other
than the sort of no-way, no-how bottom line of the Roberts' opinion.

DAVIES: You wrote that Justice Stephen Breyer spoke with rare emotion from
the bench in this case. What did he say?

Ms. GREENHOUSE: Well, he spoke for more than 20 minutes, and he produced a
77-page dissenting opinion, speaking for himself and the other four
dissenters--Justice Stevens, Justice Souter and Justice Ginsburg--he
summarized his opinion from the bench, he read chunks of it. But what he--the
kind of striking thing that he said on the bench that actually was not in his
printed opinion. He said--this may not be quite an exact quote, but, `It's
very rare in the law that so few have changed so much so quickly,' and this
was interpreted as a reflection not only on this particular decision, but
coming on the last day of the term, which had found him and the other three
dissenters in dissent many, many times, I think it was meant to be and was
certainly received as a reflection on the entire term.

DAVIES: You also note some very pointed words that Justice Clarence Thomas
had in one of his opinions addressing some of the issues, right?

Ms. GREENHOUSE: Yes, Justice Thomas wrote an opinion concurring with the
Roberts' opinion, a very personal statement. One thing he said that was a
little bit breathtaking is something to the effect of, `history has taught us
that elites and their racial theories,' as he put it, `don't do any good.' And
then he had a footnote saying, `Justice Breyer is a person of good will, but
his good will will last as long as his tenure on the court.' Whoa! That's
quite strange thing...

DAVIES: Mm.

Ms. GREENHOUSE: ...for one justice to say about another.

DAVIES: What was Justice Thomas saying here?

Ms. GREENHOUSE: I think what he was saying is that--it was a very personal
statement--and what he was saying is the elites--that's his word-- have been
cobbling up these programs for the ostensible benefit of black and other
minority children for many years, and that's a form of discrimination that, in
Justice Thomas' mind, does not actually work to the benefit of these children.
And what he was saying to Justice Breyer is, `You're telling me that these
programs are benign and that they reflect the good will of these elites, but
that's your view and that good will, as you express it, is going to last as
long as your on the court and no longer.' So what that actually was about,
only Justice Thomas knows, but it was a very startling kind of discourse.

DAVIES: Our guest is Linda Greenhouse. She covers the Supreme Court for The
New York Times. We'll talk more after a break. This is FRESH AIR.

(Announcements)

DAVIES: If you're just joining me, my guest is Linda Greenhouse. She covers
the Supreme Court for The New York Times.

Another important ruling by this court came in the area of campaign finance
law. The McCain-Feingold Law, which the court upheld in a case in 2003. What
did the justices decide in this case?

Ms. GREENHOUSE: The decision in the campaign finance law was addressed to a
part of the McCain-Feingold Law that actually, when the court had looked at
McCain-Feingold for the first time four years ago, had gotten pretty short
shrift. This was the provision that said that corporations and unions cannot
pay for advertising out of their treasuries that names a candidates for
federal office within 30 days before a primary, 60 days before general
election. The only kind of ads they can run are genuine issue ads, not
electioneering. So the question here was, how does that kind of general
language, general prescription, apply to a set of ads that the small
organization called the Wisconsin Right to Life Committee tried to run in the
summer of 2004 when Senator Russ Feingold was running for re-election in
Wisconsin.

This was a test case, because the lawyer for the Wisconsin Right to Life
Committee is a very creative, energetic man named James Bopp, who has kind of
cobbled up test cases testing limitations on campaign election speech for many
years. So he devised these ads for this group to run and brought them forward
saying, `If I don't have a First Amendment core political right to broadcast
these ads, you know, then there's not too much left of the First Amendment.'
And he got five justices to agree with him.

They didn't overturn the provision in McCain-Feingold, but what they did was
kind of turn the tables. They said--and again, in John Roberts' opinion--they
said, `Not only does the organization that wishes to speak, the corporation or
the union, that wishes to speak, not have to prove that it's entitled to
speak, but the burden is on the government, and the government has to show
that there's no substantial reason that anybody would interpret the ad as
something other than a strict electioneering ad,' and this opens a, you know,
substantial--substantial's a big word, and `burden shifting to the government'
is a big shift. This really opens the door to corporate-sponsored and
union-sponsored campaign advertising in the opposite way from what the
sponsors of the McCain-Feingold law had...

DAVIES: So what we're talking about here are these so-called issue ads...

Ms. GREENHOUSE: Mm-hmm.

DAVIES: ...in which you say Senator So-and-so appears to be a horse thief,
call his office and tell him. So you're not telling people how to vote, but
you're clearly distributing a negative message, or in some cases a positive
message, about a particular candidate. The court says now that's fine as long
as you don't explicitly advocate a vote?

Ms. GREENHOUSE: Yeah, they don't precisely say that, but the government has
to show that an ad that names a candidate but doesn't explicitly say `vote for
or vote against' is something other than a genuine issue ad. It's where to
draw the line between what are known as genuine issue ads and what are known
as sham issue ads, and the McCain-Feingold sponsors had tried to craft this in
a way that would rule out the sham issue ads. It's a hard line to draw when
you have very sophisticated people crafting language that is right up to the
line, and what the court decision did is really move the line to enable, I
think, a good deal more of these ads right up to the eve of the election.

DAVIES: Right. So, is anything left now of the restrictions on unlimited
money in which people can make huge contributions and not disclose donors, not
abide by contribution limits? Is there anything left of the law?

Ms. GREENHOUSE: Well, in paper there certainly is, because this was one
section of McCain-Feingold, the first section, which was not directly at issue
in this case, were the limitations on soft money, that is the unregulated
money that, under McCain-Feingold, political parties can no longer accept from
corporations and unions. So as a matter of formality, the soft money limits
are still there. As a matter of reality on the ground, I mean, we'll see.

We're obviously coming into the hot and heavy election season, but as a matter
of reality, I think it's reasonable to expect that the corporate soft money
will simply flow into these advertising campaigns, which are now enabled by
what the court specifically held in this case. So there's kind of a seamless
web that connects the two major provisions of McCain-Feingold, and if you kind
of undermine one, I think inevitably you undermine the other.

DAVIES: There was also a decision involving separation of church and state.
This involved the taxpayer's right to challenge government expenditures that
they believe may violate the church/state separation of the Constitution.
Briefly, what was this about, and what's the significance of this decision?

Ms. GREENHOUSE: This was a lawsuit challenging the Bush administration's
expenditure of funds, expenditure of federal money in support of its
faith-based initiative. The basic principle in the law is that taxpayers,
simply by virtue of being taxpayers, who don't like some government policy
don't have the right to go into court to challenge it. They don't have
standing as a legal matter. But some decades ago, the court carved out an
exception to that general principle, and said that when it comes to the
establishment clause, the separation of church and state, there's a special
rule, and if the government is spending money in a way that, somebody alleges,
breaches the barrier between church and state, the taxpayers who don't like
that can come into court and challenge it.

Now, this precedent has stood for 40 years or so, but it's taken quite a few
hits, and it took a big hit in this case. The majority did not directly
overturn it, but they limited it. They said, `OK, the precedent stands for
only enabling taxpayers to challenge direct congressional enactments.' If
Congress passed a law saying the White House shall have a faith-based
initiative program, that would still be open to challenge under this opinion.
But because here President Bush had set up the office of faith-based
initiatives and was carrying out those initiatives through a series of
executive orders and through the expenditure not of targeted congressional
money but just general executive branch appropriations, the court said, `The
old precedent doesn't apply and there's no standing and this suit is thrown
out; we're not reaching the merits of it.'

DAVIES: So it gives the executive branch greater latitude to enact programs
which may embrace faith-based organizations, it seems.

Ms. GREENHOUSE: Without being open to challenge in court, right.

DAVIES: Right.

Ms. GREENHOUSE: Right. And what both the dissenters said, and Justice
Scalia, in an opinion concurring in the judgment said, `That doesn't make any
sense, you know. Money is fungible. These are congressional appropriations.'
The dissenters said standing should apply to both. Justice Scalia said it
should be all or nothing, and what he simple wanted to do was overturn the old
precedent and cuff off standing to sue, to challenge any of these programs no
matter what their origin was. So, you know, maybe both of those were a little
bit logically more coherent than what the court came up with.

DAVIES: Linda Greenhouse covers the Supreme Court for The New York Times.
She'll be back in the second half of the show.

I'm Dave Davies, and this is FRESH AIR.

(Announcements)

DAVIES: This is FRESH AIR. I'm Dave DAVIES, filling in for Terry Gross.

Last Thursday marked the end of the first Supreme Court session, chaired by
Chief Justice John Roberts. We're speaking with Linda Greenhouse, who covers
the court for The New York Times. She wrote Sunday that its decisions show
that Roberts' court is the Supreme Court that conservatives had long yearned
for and liberals had feared.

On the abortion issue, the court upheld the federal ban on the procedure that
opponents call partial-birth abortion, and this was after, I guess, a few
years back the court ruled the other way on a state ban of the procedure.
What does this ruling tell us to expect from this court on the abortion issues
as years proceed?

Ms. GREENHOUSE: What the ruling tells us is that, with Justice Alito
substituted for Justice O'Connor, this is a court that's now--narrowly, but
quite decidedly--more receptive to government limitations on access to
abortion. So the polarity of the court changed on this and also the language
of the court changed. This was an opinion by Justice Kennedy, who had been a
dissenter seven years ago, the last time the court looked at one of these
laws. He now writes for the majority in language that really hasn't been
heard from the court before in its decades of consideration of abortion laws.
What he was basically saying is this ban on this procedure is actually good
for women because women don't necessarily know what they're doing, he said,
and so the fact that they're not going to be able to make this particular
choice is actually a favor to them.

DAVIES: What's the likelihood of a reversal of Roe v. Wade?

Ms. GREENHOUSE: Well, I don't think this really tells us much about that.
There are people who say that if the court keeps whittling away in this way,
there may not be much left to Roe against Wade, you know. Time will tell
about that. But I think it's reaching a little bit to jump from this to
saying, `OK, there's now five votes to overturn Roe,' because Justice Kennedy
is still on record--in 1992, he was part of the majority that voted to
reaffirm Roe against Wade and he's obviously never liked this particular
procedure. He was at a center in 2000, but I think it's over-reading his
opinion to say that he's now a vote to overturn Roe.

DAVIES: You know, it's often noted that the court tends to move incrementally
because of its respect for precedent. Stare decisis, that intimidating Latin
word which means you've got to respect where previous justices have ruled in
the past. To what extent, would you say, this court is more likely than past
courts to reverse precedent and strike out in more radical legal directions?

Ms. GREENHOUSE: That's kind of a work in progress. We certainly saw some
tension in the court this term. We have Justice Scalia out there, really
needling very overtly, somewhat surprisingly, the chief justice, saying, `Look
what you're doing. This doesn't quite make sense. You're trying to shave
this precedent. You're overturning it functionally without acknowledging it.
Why don't we just overturn it and be very clear about it?' This came up in
several cases. The chief justice was holding back against that, so there's
obviously a dynamic in play on the court today that is going to continue
working it's way out.

A lot of energy there, a lot of feeling, I think, on that side of the court,
that, you know, `Our moment has come and we ought to push it as far and fast
as we want to, as we can.' On the other hand, within that group there's also a
feeling that, you know, the court has limited political capital, and
incremental is more palatable, is more saleable, it's more comfortable, and
`we're working on a long timeline and we've got some time here.' So that's one
thing that's going to be really interesting going forward. This was just the
end of the second year of the Roberts court. I think we'll have many decades
of the Roberts court, and that's really something to watch.

DAVIES: You said justices think of the court as having political capital.
That sort of goes against the grain of our notion of this esteemed body.

Ms. GREENHOUSE: Well, no. I don't want to be misunderstood. I don't mean
they think of themselves as politicians, but, you know, as we know from past
decisions, you know, the court doesn't have an army to summon the court. It
makes decisions and really relies on long-term public support for them to be
accepted. I mean, that's part of the lesson of Brown against Board of
Education. So I think history tells us that when the court gets far out in
front of what the public is willing to support, it's weakened as an
institution, and there's a political reaction against that.

Many people think that's what happened during the Warren court years, that the
Warren court pro-defendant decisions on criminal procedure, principally, set
up a political dynamic that enabled Richard Nixon in 1968 to run in part
against the court very effectively, and that ushered in this very long period
of response and reaction that we see playing out now almost 40 years later. I
mean, this is a very, you know, profound and interesting set of issues that
are hard to--you know, I don't want to be glib about it. There's a great deal
of scholarship on this.

DAVIES: You've written about a particularly harsh tone that Justice Scalia
has taken in some of his opinions directed at the Chief Justice Roberts. Can
you think of an example and maybe give us a sense of the significance of these
exchanges?

Ms. GREENHOUSE: Well, as we were saying before, Justice Scalia has been
prodding and pushing Chief Justice Roberts to overtly be able to tackle
precedent, overturn precedent that both of them don't like, and the chief
justice has hung back on that. So within recent days we've seen Justice
Scalia really turning up the heat, and in one concurring opinion, he said to
the chief justice, `This faux judicial restraint is judicial obfuscation.'
What he's saying is, `You've really'--this was in the campaign finance
case--`You've functionally overturned this part of McCain-Feingold without
having the guts to say so openly, and it would be a lot better for the whole
system if we just labeled and came out front with what we're doing.' So that's
what he meant by this `faux judicial restraint.' He's kind of needling him
because Chief Justice Roberts is going around giving speeches about the
utility, the desirability of what he calls judicial restraint.

So, you know, Justice Scalia's an equal opportunity offender. He's willing
to, you know, insult anybody and has done that pretty consistently over the
years, and it was just interesting that the new chief justice is not exempt
from this.

DAVIES: My guest is Linda Greenhouse. She covers the Supreme Court for The
New York Times. We'll talk more after a break. This is FRESH AIR.

(Announcements)

DAVIES: Our guest is Linda Greenhouse, who covers the Supreme Court for The
New York Times. We're talking about the just-completed term of the court, the
first term chaired by Chief Justice John Roberts.

You know, most people who are talking about these court decisions don't
actually read the opinions, much less, you know, the arguments that led to
them. We get that information from you and others who write about it. And
being where you are, you are at the vortex, I'm sure, of a storm of spin,
where everybody faxes and e-mails you their view of what the court has done,
and you've got to make sense of it and give us all a rational and balanced
view. And I wonder, as you look at all the commentary about what this more
conservative court has achieved in the last term, is there anything that you
feel that the commentators have misread, exaggerated, gotten wrong?

Ms. GREENHOUSE: Oh, that's an interesting question. No, I mean, people try
to find the good and the bad in court decisions that serves their interest,
and I think in a number of these decisions, there's enough ambiguity to make
intellectually respectable arguments on both sides.

I mean, for instance, the school integration case, it was interesting as the
day went on to see the civil rights community find more and more comfort in
Justice Kennedy's separate opinion, saying, `See, we still have something left
here.' Whereas the other side, the plaintiffs who had brought the case and
challenged the plans, were saying, `Look we've got the color-blind
Constitution that we've always thought was the correct way to interpret the
14th Amendment.' You know, I wouldn't say either one is completely right or
completely wrong, but it was just interesting to watch the divergence get
wider as the day went on and people had a chance to read and consult each one
another and decide how they wanted to pitch this to the public.

DAVIES: As the court term ended, the court agreed to hear a case involving
detainees held at Guantanamo Bay, and this I gather was something they had
declined to hear in April but decided they will hear these detainees' petition
to seek redress in the federal courts. What's at stake here, and was this a
surprise?

Ms. GREENHOUSE: This was a huge surprise. In fact, it apparently has not
been since the 1940s that the court did what it did on Friday, which was grant
a petition for a rehearing--that is, take a case that they had formally
denied, turned down, just a few months ago, reconsidered without any
intervening lower court decision and said, `You know, on reconsideration,
we're going to hear this case.'

What this case is is the fundamental challenge by the Guantanamo detainees,
two large groups of them, to the legislation that stripped the federal courts
of jurisdiction to hear any cases from the Guantanamo detainees. So the
question is, do these individuals have a right to get their cases into federal
court? It's the third time that this issue, in one guise or another, has come
to the Supreme Court. In both of the last two decisions, 2004 and then just a
year ago, the court rebuffed the administration, and said, `These people do
have some rights.' Of course, they didn't define substantively what the rights
were, but they had the ability to assert some rights. So these is the playing
out of something that's been building up for a long time, and it just is
fascinating that the court, at the very end of its term, said, `Well, it's now
up to us again, and we're going to hear this.'

DAVIES: And how do you read this? Why do you think they decided to take it?

Ms. GREENHOUSE: Well, I wish I knew. I have--I mean, there's a theory.
When the court turned it down in April, there were three justices--Justice
Breyer, Justice Souter and Justice Ginsburg--who wrote a dissenting statement
and said, `We think this is very important. We think we should take this. We
dissent.' There were two other justices--Justice Stevens and Justice
Kennedy--who issued what they called a statement respecting the denial,
saying, `We agree it's important, but we think these detainees should,' quote,
"exhaust their available remedies." That means they should go through the
appeals process that was set up by the two federal laws that issued the
Detainee Treatment Act and the Military Commissions Act, `and then at the end
of the day we'll be open to hearing them.'

My theory as to what happened--this is very complicated so bear with me for a
couple of seconds but it's really interesting--there are events moving on
parallel tracks, and in the federal appeals court for the District of Columbia
circuit, right now, that court has under submission, awaiting decision, a case
challenging the adequacy of those very same appeal procedures. In arguing
that case, which was argued in May, the federal government had to come in and
define exactly what, in its view, those procedures are, and this is all on the
public record, and they filed briefs and they had arguments, so on, and the
appeals court and the argument seemed a little bit skeptical that these were
sufficient. And I think the justices are well aware of this because the
detainees' lawyers filed extra papers with the Supreme Court, making sure the
justices knew about this. And these extra papers included a statement from a
military officer who had sat on one of these tribunals and had found the
procedures very inadequate.

So the court, although nothing formally had happened yet, the justices, or at
least these five justices, had a pretty good idea of what game was afoot, and
I think thought, you know, `This is going to come to us sooner or later.
We're going to have to take it. We might as well just take it now. There's
something there that really needs our review.'

DAVIES: Your piece in Sunday's New York Times on this court's ruling had a
very interesting graphic that accompanied it, which was a depiction which
showed the five justices--pictures of all nine justices showing the five who
ruled in a majority on a given case in full color, and then the four minority
in a faded kind of color. What was fascinating about it was you could see
that Justice Kennedy was the swing vote every time. Is he now the target of
every attorney arguing a case before the Supreme Court? The goal is to get
Justice Kennedy?

Ms. GREENHOUSE: Well, yes, and that's been the case. When Justice O'Connor
was also on the court, the goal was to pitch to the two of them, and now it's
just Justice Kennedy, so. Yes, he voted with the majority in all 24 of the 24
5-to-4 decisions, so nobody--I mean, that tells us, nobody's going to win a
5-to-4 case without him, so certainly the lawyers pitch their arguments to
him. There are some issues that he's not, you know, gettable on. He's a
person of firm views. He's been on the court a long time. So it's really a
very interesting situation.

DAVIES: Well, Linda Greenhouse, thanks so much for speaking with us.

Ms. GREENHOUSE: Thanks very much, David.

DAVIES: Linda Greenhouse covers the Supreme Court for The New York Times.

Coming up, Ed Ward remembers Doc Pomus, who wrote hits for Elvis Presley and
Ray Charles. This is FRESH AIR.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

Review: Ed Ward on "The Pomus and Shumann Story: Double Trouble
1956-1967"
DAVE DAVIES, host:

These days songwriters are usually also performers, and often stars. Back in
the 1950s, though, songwriting was mostly a job that involved working in an
office and selling what you produced. Doc Pomus was one of the best, both at
writing and selling to clients as diverse as Elvis Presley and Ray Charles.
Rock historian Ed Ward says a new collection captures his long career.

(Soundbite of "Hushabye")

THE MYSTICS: (Singing) Ohhhhh, ohhhh
Ohhhh ohhhh
Hush hush, hushabye
Oh, my darling,
Don't you cry
Guardian angels up above
Take care of the one I love
Ohhhhh ohhhhh
Hush, hush, hushabye
Ohhhhh ohhh

(End of soundbite)

Mr. ED WARD: Doc Pomus was born Jerome Solon Felder in Brooklyn in 1925, and
at six he contracted polio. While he recuperated at home, he fell in love
with music and pursued it throughout high school. At the age of 16, he heard
a Big Joe Turner record and his life was transformed.

He began hanging out in Greenwich Village while attending college in Brooklyn,
and one night a band leader invited him up to sing. Naturally he chose a Big
Joe Turner song, and the crowd loved him. Soon he was singing in clubs all
over New York, using the name Doc Pomus, which he invented to avoid
embarrassing his family and using that name on the songs he started writing.
Jazz critic Leonard Feather, who was also a songwriter, caught him one night
and invited him to record a couple of his songs on the Apollo label, Feather
songs, of course. Soon, though, Doc was recording his own stuff, although he
never really had a hit.

In 1955, his cousin introduced him to her latest boyfriend, a young man named
Mort Shuman, who was fascinated by this short, portly white guy with leg
braces who sang at black clubs. Doc encouraged the kid to start writing
himself, and soon a partnership was formed. Doc, whose performing career was
going nowhere, was always looking for writing partners, especially after his
idol, Big Joe, recorded a song he'd written with Reginald Ashby.

(Soundbite of "Boogie Woogie Country Girl")

"BIG" JOE TURNER: (Singing) Well, I'd know it was you
Dungaree, red jacket, shirt
If you'd be my
Boogie woogie, boogie woogie, boogie woogie country girl
Well, I mean, what I mean
My boogie woogie country girl

Now, if you dig that music
With the beat, rock 'n' rolling
You can be my
Boogie woogie, boogie woogie, boogie woogie country girl
Well, I mean, what I mean
My boogie-woogie country girl

On Saturday night...

(End of soundbite)

Mr. WARD: The song did well, and Atlantic Records, which had released it,
encouraged Doc to do more. By himself, he wrote a more personal song than
he'd ever done and submitted it to Ray Charles, who recorded it immediately.

(Soundbite of "Lonely Avenue")

Mr. RAY CHARLES: (Singing) Now, my room has got two windows
But the sunshine never comes through
You know it's always dark and dreary
Since I broke off, baby, with you

I live alone on a lonely avenue
Little girl, since you said you're through
Now I feel so sad and blue
It's all because of you
I could die, I could die, I could die
I could die, I could die, I could die
I live on a lonely avenue

My pillow is...

(End of soundbite)

Mr. WARD: Suddenly Doc was hot. Before long Doc refashioned a song Elvis had
turned down called "I'm a Man," and turned it into Fabian's debut, "Turn Me
Loose," which I'll spare you. Somehow this 25-year-old former blues shouter
could tap into teenage angst, and his writing partner, Mort Shuman, could come
up with melodies that were just right. A bunch of kids from Belmont Avenue in
the Bronx were the next to benefit from their talents.

(Soundbite of music)

DION: (Singing) Oooh, oooh, wah-ooh
Oooh, oooh, wah-ooh
Each time we have quarrel
It almost breaks my heart
`Cause I'm so afraid
That we will have to part
Each night I ask the stars up above
Why must I be a teenager in love?

One day I...

(End of soundbite)

Mr. WARD: When he did write something personal, Doc made it universal. He was
married by now, and Wilma, his wife, loved to dance, which because of his
legs, Doc couldn't do very well. Still, on weekends he'd take her to a dance
hall and sit while she danced with others, and then when the band leader
called the last dance, get up and stumble around the floor with her. He
turned this experience into one of his most memorable songs, written for The
Drifters.

(Soundbite of "Save the Last Dance for Me")

THE DRIFTERS: (Singing) You can dance every dance
With the guy who gives you the eye
Let him hold you tight
You can smile every smile
For the man who held your hand
'Neath the pale moonlight

But don't forget who's taking you home
And in whose arms you're going to be
So, darling, save the last dance for me
Mm

Oh, I know that the music's fine
Like sparkling wine
Go and have your fun
Laugh and sing
But while we're apart
Don't give your heart
To anyone

But don't forget who's taking you home
And in whose arms you're going to be
So, darling, save the last dance for me
Mm

Baby, don't you know I love you so...

(End of soundbite)

Mr. WARD: Before this record came out, Doc and Mort visited England, where
they were celebrities, based on several early British rockers' versions of
their US hits, and while they were there, they ran into Lamar Fike, one of
Elvis' Memphis mafia, who'd been visiting Elvis in the Army in Germany. They
quickly demoed up a couple of songs and gave them to Fike, and soon they were
contributing material to Elvis himself.

(Soundbite of "Double Trouble")

Mr. ELVIS PRESLEY: (Singing) Some guys fall in love with one girl
I gotta fall for two
There's just so much loving
That one heart's supposed to do
So I go around with my heart dragging on the ground
Dogging me around
I'm the sorriest sight in town

I got double trouble
I got double trouble
I got double trouble
Twice as much as anybody else
Oh, yeah

(End of soundbite)

Mr. WARD: I didn't say it was good material, but it was what Elvis and the
Colonel liked. By the time "Double Trouble" came out in 1967, Doc and Mort
were on different tracks. Mort had married a glamorous Israeli singer and was
running around Europe with her. Doc had had a fall and now had to use a
wheelchair. "Double Trouble" was their last collaboration, and Mort moved to
Europe to promote his latest discovery, the Belgian songwriter Jacques Brel.
Doc had become divorced. He ran a poker school out of his apartment and
stopped writing songs for almost 10 years until Mac Rebennack, Dr. John,
coaxed him out of retirement. He also began teaching songwriting to a new
generation, including Willy DeVille.

Doc Pomus died of lung cancer in 1991, just as his star was rising again. He
was one of the last of the old-time pop songwriters, and fortunately lived
just long enough to see himself appreciated for it.

DAVIS: Ed Ward lives in Berlin. You can hear the songs Ed played on the CD
"The Pomus and Shuman Story: Double Trouble, 1956-1967."

(Soundbite of "This Magic Moment")

Unidentified Singer #2: (Singing) This magic moment
So different and so new...

(End of soundbite)

(Credits)

DAVIES: For Terry Gross, I'm Dave Davies.
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