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'Justice on the Brink' author considers the impact of Trump's 3 Supreme Court picks

DAVE DAVIES, HOST:

This is FRESH AIR. I'm Dave Davies, in today for Terry Gross.

If politics in the United States seem a little unhinged and dysfunctional these days, the nation's highest court is also at a time of transformation. While a new law in Texas effectively bans abortion and controversies over voting rights loom, the court now has a supermajority of conservative justices. Three of them are picks of Donald Trump, the first president since Nixon to place three justices on the court in one term. Our guest, veteran journalist Linda Greenhouse, is one of the nation's leading analysts of the Supreme Court. She has a new book about the first completed term of the new court, exploring how the justices have handled critical constitutional issues and how the personal dynamics among them have evolved under pandemic restrictions that prevented face-to-face contact for much of the term. She says the first year of the court was not quite the term conservatives had hoped for, nor the term liberals had most feared. But much is yet to come.

Linda Greenhouse is a graduate of the Yale Law School. She reported on the Supreme Court for The New York Times for 30 years, winning the Pulitzer Prize for her coverage before retiring from the paper in 2008. She now writes an opinion column for the Times and teaches at the Yale Law School. Her latest book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And Twelve Months That Transformed The Supreme Court."

Well, Linda Greenhouse, welcome back to FRESH AIR. There have been many visits. Good to have you again.

LINDA GREENHOUSE: Oh, good to be here.

DAVIES: I want to start by talking about the recent arguments on the Texas abortion law, but let's just set a bit of context here. You know, I mentioned in the intro that we have three new conservative justices, and people will remember that they came in some ways in controversial ways. In 2018, the one that was not particularly controversial was when Anthony Kennedy retired and was replaced by Brett Kavanaugh, although the confirmation hearing was controversial. But the other two were controversial. In 2016, in February of Obama's last year in office, Antonin Scalia died, and Mitch McConnell, the Republican leader of the Senate, refused to consider Obama's pick, held that Supreme Court appointment for President Trump, who appointed Neil Gorsuch after he was inaugurated.

And then in 2020 - February of 2020, six weeks before the presidential election, Ruth Bader Ginsburg died. And Mitch McConnell, the Republican leader of the Senate, insisted on filling that vacancy quickly. Trump appointed and the Senate confirmed Amy Coney Barrett to that post. And I want to begin by talking just a bit about her because her background is particularly relevant to this discussion of the abortion case. You know, she didn't spend a lot of time on - as a judge. She spent a lot of her career in academia. But there was a - some public record of her views on abortion. What do they tell us?

GREENHOUSE: Yes, they were not - it was not a judicial record. But as a Notre Dame law professor, she has signed a couple of statements that denounced Roe against Wade. She has signed a statement of protest when the University of Notre Dame gave a special award to then-Vice President Joe Biden because - the statement said, you know, he wasn't a good Catholic because he supported the right to abortion. So her personal views - there's no secret at all about her personal views. And of course, the question remains as to what role those views have in informing her constitutional jurisprudence when it comes to reproductive rights. And we'll soon see.

DAVIES: Now, the Texas law essentially bans abortions when a heartbeat is detectable, which effectively kind of means that most women are not in a position to get an abortion before then. But the enforcement mechanism is particularly odd. It allows private citizens to sue anyone involved in securing an abortion and collect $10,000 plus legal costs from the one who broke the law. This is a particular problem for the justices, and when they heard the case in recent days, many of them, including Amy Coney Barrett, expressed some concern. What was going on here?

GREENHOUSE: Well, this is an astonishing law. I mean, there's so much wrong with it. It's like, where to begin? But the more immediate background is that on September 1, as the law was about to go into effect, basically shutting down access to abortion in the second-most populous state in the country, the court was asked urgently by abortion clinics, by abortion providers in the state to put the law on hold to enable them to file a full ordinary appeal. And the court refused to do that. It takes five votes to grant a stay, and there were only four votes. And so the law went into effect, and it's been in effect for more than two months. And it was pretty clear that there's a majority of the court that at least has been rendered uncomfortable by - I think, by the conjunction of the court having made a mistake on September 1 - let's just say it - and allow this law to come into effect without Supreme Court review and the nature of the law itself, the vigilante enabling.

DAVIES: The court recently heard oral arguments on this Texas law, which effectively bans abortion in the state. Do you want to just explain what this law does and why it's been hard to challenge?

GREENHOUSE: The law does two things. As you said, it bans abortion early, early in pregnancy, before most women even know they're pregnant. But the weird thing about this law is that it purports to take the state out of the enforcement business, and it enables any citizen of Texas or anyplace else to file a private civil lawsuit for damages against anybody - not the woman - but anybody who provides or assists in providing the abortion, can sue them for damages. So the challenge for the courts is, who can be sued? Who's the defendant? How do you get a case up to the courts? It's in a way devilishly clever, deeply cynical. And that was the question for the Supreme Court in the argument earlier this month.

DAVIES: There was one petition by the Biden administration, the solicitor general, but another one by abortion providers saying, you have to give us access to the judicial system to challenge this. How did the justices react?

GREENHOUSE: Whether anybody eventually can challenge the law was the question the court heard earlier this month. And certainly, you could count a majority of the justices who at least were concerned by the notion that a state could wall off, could insulate itself from judicial challenge, flagrantly violating a clear Supreme Court precedent. We still have a right to abortion as of now. So the court was concerned by the implications of this law. What they're actually going to do about it or about the right to abortion itself, we'll see pretty soon.

DAVIES: Right. And among those questioning that practice was Amy Coney Barrett and Brett Kavanaugh, two of the Trump appointees, right?

GREENHOUSE: Yes. Two of the recent Trump appointees, Justice Barrett and Justice Kavanaugh, seemed concerned about the law. Justice Kavanaugh, in particular, was concerned about the implications. If a red state can wall off an anti-abortion law from challenge, how about a blue state walling off an anti-gun rights law from challenge. That seemed to really get his attention, and, you know, that may be a winning argument for those who say that the courts have to be able to get their hands on a law like this.

DAVIES: So there is the prospect that the court could decide that the abortion providers have a right to bring suit in federal court. Now, if they do that, I mean, the typical path to the Supreme Court is you have a trial in a district court, which can take quite a bit of time and then either side can appeal to one of the circuit courts. And then after that, someone can appeal that decision to the Supreme Court. That takes a long time, right? I mean, the question would be, will the Supreme Court stay the implementation of this law, in effect put off implementation until that is resolved? What's your take on that given what they did in September?

GREENHOUSE: Well, in late October, when the court agreed to hear these two cases, the federal case and the provider's case, and put them on this extremely fast track with argument in 10 days, the court could have issued a stay, but they didn't. So the law has remained in effect, and I think that signals that the law is going to remain in effect until the process that you just outlined goes through to completion. So we'll see if by the end of that process there still is such a thing as a right to abortion because, at a certain point, these two questions are going to come together - who can sue and who can actually get an abortion in the United States? So, you know, we will see the answers to both those questions, probably by the end of this - the current term.

DAVIES: You know, I think you said a moment ago that the court clearly made a mistake in September when it declined to stay implementation of the Texas law. What did you mean?

GREENHOUSE: I think there was quite a public outpouring of dismay and surprise about that. The public approval rating of the court, as noted by various polls, by the end of the summer was running about 50%, which is, you know, basically what it's been the last few years. And after September 1, it plummeted to 40%. Now, that's not to suggest that the court should be guided by public opinion. That's not really my point. But I think it reveals that the public, which, you know, doesn't usually pay all that much attention to the Supreme Court - you know, the Supreme Court looks pretty obscure and under the radar much of the time - this got people's attention. And when I say mistake, I meant mistake from the point of - well, I think it was wrong. I think it was morally wrong personally. But my other point is that I think it institutionally damaged the Supreme Court to just - without having undertaken any kind of formal review, argument, full briefing, just allowed this atrocity of a law to take effect in the great state of Texas.

DAVIES: We are speaking with Linda Greenhouse. She's a Pulitzer Prize-winning journalist and veteran analyst of the U.S. Supreme Court. Her new book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And 12 Months That Transformed The Supreme Court." We'll continue our conversation in just a moment. This is FRESH AIR.

(SOUNDBITE OF SLOWBERN'S "WHEN WAR WAS KING")

DAVIES: This is FRESH AIR, and we're speaking with Linda Greenhouse. She is a Pulitzer Prize-winning journalist and analyst of the U.S. Supreme Court. Her new book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And 12 Months That Transformed The Supreme Court." So the other challenge that's going to become before the court in December is a Mississippi law which directly restricts abortions, bans them completely after 15 weeks, which would seem to run exactly against the established court rulings that women are entitled to terminate a pregnancy before viability, which is typically - what? - 23 weeks or so. What's the argument for overturning Roe directly? What's the case that they make?

GREENHOUSE: Well, they have two kind of arguments. One is we're passing this law for the welfare of women, which, of course, is a very bizarre argument for the state of Mississippi to make because if you look at any list of the welfare of women in pregnancy and childbirth, you know, how do they do, health indications, Mississippi is way at the bottom of every list. And so if Mississippi is concerned about the welfare of pregnant women, it has a very strange way of showing that. But it also makes - the state also makes the argument that, well, when the court decided Roe versus Wade in 1973, you know, women were having a hard time in the economy, in the workplace and balancing, you know, motherhood and work life and so on. But things have changed, and now everything is great. And half the students in law schools are women, and women are here, there and everywhere. And so the court should take account of changing conditions on the ground, which, of course, makes no sense when you're talking about a constitutional right.

DAVIES: And how does restricting abortions accommodate these change in circumstances? I mean, I know - and this is not your argument, but what is it?

GREENHOUSE: I actually have a hard time articulating the argument. I've read the briefs and, you know, basically the argument comes down to, well, that was then and this is now. And that was a court in 1973, and this is a very different court in 2021. And of course, what people don't remember - and I'll just use this occasion to mention this counterintuitive fact. If you ask the average person who kind of follows the court, what do you think the vote was in Roe versus Wade, and they'll say 5-4, actually, it was 7-2. And Richard Nixon, as you said at the top of this show, had four appointees to the court early in his tenure in the White House. And three of those were in the majority in Roe v. Wade. It was not - the notion of the right to abortion was not a politically polarizing issue in those days. It became polarized later, when the Republican Party did a very good job of kind of achieving a political realignment by using abortion as the sort of dog whistle that - it had successfully used race earlier in Nixon's rise. So, you know, Mississippi is counting on the fact that there has been a political realignment. And the state of Mississippi thinks it's on the right side of history now.

DAVIES: You know, you note that John Roberts, the chief justice, is - has been a disappointment to some conservatives. He's, you know, not gone their way in some important cases, like the Affordable Care Act and, you know, immigrant children born in the United States. And he's tended to rule often on narrow grounds rather than making sweeping changes in precedent. But there are two issues you say that he's really had - played the long game on that are very important to him. You want to explain those two issues?

GREENHOUSE: Well, one is race, and the other one is religion. So we remember that back in 2013, he was the author of the Shelby County case, which cut the heart out of the Voting Rights Act of 1965. There was another Voting Rights Act case involving a different section of the law this past term, this past July. And the majority kind of did the same thing with that section. So that's a long game for the chief justice. He didn't like the Voting Rights Act for his entire judicial career. He finished a clerkship with an associate justice, William Rehnquist, went to work in the Reagan Justice Department, the Reagan White House. And he wrote lots of memos opposing the effort that was then in Congress that eventually succeeded in reenacting the Voting Rights Act, amending the Voting Rights Act. So this has been part of a long game for John Roberts.

The other is religion. John Roberts has had a long-running project to increase the space for religion in the public square. He's been very strategic about it, particularly in cases that involve channeling federal money to parents and - who send their children to parochial schools, to the schools themselves. That will come to fruition, I believe, in the current term. There's a new case on that that's going to build on majority opinions by Chief Justice Roberts over the last few years. So in those two areas, race and religion, he's been very successful.

DAVIES: Right. And it seems that his kind of authority or control over the court is strikingly diminished over the past year. Is that fair?

GREENHOUSE: In the last term, we saw something quite remarkable. So when Justice Ginsburg was still alive in the spring and early summer of 2020, the pandemic was raging. A number of jurisdictions - state, local - put in capacity control measures for all kinds of public spaces and gathering spaces, shopping malls, stadiums and houses of worship. And so churches started suing over these restrictions, saying limitations on the number of people who can gather in our buildings for worship violate the constitutional right to the free exercise of religion. The court turned down these early challenges from California, from Nevada by votes of 5-4, with the chief justice in the majority with the four more liberal justices joining him and the four more conservative justices in dissent.

Then Ruth Ginsburg died. Amy Barrett came, took her seat. And the court flipped. The court started striking down these restrictions. When it came to a balance of public health versus the free exercise claim, the free exercise claim won. And it left the chief justice in dissent. That was a remarkable switch. It really was just a head-spinning development in the last term, the term that I'm writing about. And it certainly raised the question of whether John Roberts, having had such success in the first 15 years of his tenure as chief justice, was about to lose the ability to shape the course of events in the court, which, as I said, has his name on the door.

DAVIES: We need to take another break here. Let me reintroduce you. We're speaking with Linda Greenhouse. She is a Pulitzer Prize-winning journalist and a veteran analyst of the U.S. Supreme Court. She covered it for The New York Times for 30 years. Her new book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And Twelve Months That Transformed The Supreme Court." We'll be back to talk more after a short break. I'm Dave Davies, and this is FRESH AIR.

(SOUNDBITE OF HERLIN RILEY'S "RUSH HOUR")

DAVIES: This is FRESH AIR. I'm Dave Davies in for Terry Gross. We're speaking with veteran U.S. Supreme Court reporter Linda Greenhouse. She has a new book chronicling the first term of the Supreme Court since three conservative justices appointed by Donald Trump joined the court, giving it a distinctly rightward tilt. Her new book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And Twelve Months That Transformed The Supreme Court."

You know, apart from analyzing the cases in this book, you write about the dynamics of the court. You know, so much of what happens in the court comes in the personal interactions among the justices. And you know, you have new members of the court, and it's - this is a court during this period that, like every other institution, was hampered by pandemic restrictions. How did they communicate, and how did that change their deliberations?

GREENHOUSE: Like every other institution, the court shut its doors in March of 2020, postponed arguments. When it got back to arguing later in the spring, the justices heard the arguments over their home telephone lines, not even Zoom like the rest of us. And they never saw each other. You know, I never like to pretend to know more than I know, so I don't actually know the extent to which they might have called each other. But they didn't actually see each other as a group again until Justice Ginsburg's casket was lying in state in the Great Hall of the Supreme Court the following September. And they didn't see each other again until President Biden's inauguration in January of this year when they gathered.

DAVIES: Three of them were missing then. Yeah, right.

GREENHOUSE: Yeah. A couple of them, for health reasons, didn't come to Washington.

So this is a court where they see each other every day that they're on the bench, which is three days out of two weeks out of every month from October through April. They have private, closed-door conferences twice a week. You know, even if they don't hang out socially or go to the movies together or whatever, they have face time for hours every week that the court's in session. And it's almost hard to think of the drastic change that occurred when everything shut down.

DAVIES: Yeah. It's like people getting to know each other over social media almost. I mean, you just - it's not like - it's easier to insult someone in writing, isn't it? Yeah.

GREENHOUSE: Well, yes. I mean, there was a lot of tension that was expressed in the early election cases, the cases that came up on the emergency shadow docket actually before Election Day that were challenges to COVID accommodations that a number of states had made, increasing mail-in ballots or extending the time by which ballots could be counted, that sort of thing. And there was a lot of what you might say, kind of sniping. And you had to wonder if they actually had been facing each other around the conference table, they might have kind of worked that out a little more. You know, it's hard to draw a straight line. You know, because they weren't meeting in person, then this happened. I don't think it changed anything of the substantive, bottom-line results. But it just had to have been a very, very strange experience.

DAVIES: You mentioned the shadow docket. You want to explain what that is and if its use has grown with this court.

GREENHOUSE: So the shadow docket is a kind of a - you know, a catchy name for the emergency docket of cases that come up that request the court's immediate intervention without time for setting a case for argument and hearing it and getting briefs and so on and so on. And there's always been an emergency docket because things come up. And the court would attend to it without much controversy.

What's different now - what's emerged in the last couple of years is that actual law is being made in the shadow docket. The case I described about the meeting in a home for worship or for any other activity, the court made substantial First Amendment free exercise law in the course of deciding that case without ever having formally granted the case and sort of invited the public in for the argument. I say invited the public in - of course, obviously, only a few hundred people can get into the Supreme Court. But the court puts up the transcript of the argument on its website, puts up the audio of the argument, puts all the briefs up on its website so that somebody who's interested in following the court will find perhaps a surprising amount of transparency on cases that the court agrees to hear.

The shadow docket cases, the court has never agreed to hear them. They just go ahead and decide them, and it's become increasingly problematic, the extent to which they're making law in these cases.

DAVIES: Yeah. You know, I typically think of emergency actions by a court - that - as coming in circumstances where there's an immediate need to either stop some - and join some activity or not doing it. And you typically, there would be an order, you know, an emergency injunction. But the understanding is this is to hold things in place until the merits of the case are decided. In a case like the case of religious activity in homes during COVID, are you saying that they would issue a ruling which would have lasting precedential effect without ever explaining the legal logic?

GREENHOUSE: Yes. That case has been cited subsequently by lower courts, and I'm sure it will be cited by the Supreme Court. It does - these cases do stand as precedents. In many of them, there is some kind of explanation. In some, there's no explanation. But it's not the kind of full decision-making apparatus that would occur if the case was fully - formally granted and fully argued.

DAVIES: Right. And I gather the public record that it comes with a fully considered decision is helpful to, you know, courts and attorneys general around the country who want to understand the court's thinking. Do you have an explanation for why there's more use of the shadow docket now?

GREENHOUSE: Well, during the Trump years, the Trump administration was very strategic in bringing requests to the court for assistance in overcoming adverse decisions that had been issued by the lower courts - for instance, on the border wall case where the Trump administration simply helped itself to unappropriated money and put it to the use of building the border wall. And a federal appeals court in California said, absolutely not. You can't do that. Trump administration came to the Supreme Court and said, we need your emergency intervention because the fiscal year is about to run out. And unless we can keep building the wall, we'll have to stop. And the court granted that application off the shadow docket. So, you know, there was a kind of a change, a change in receptivity on behalf of the court to the claims that the Trump administration brought to them. And that has kind of, I think, entered the court's DNA, and so it's still going on.

DAVIES: You know, it's interesting. I guess the Trump appointees were willing to grant that request to the Trump administration on the election cases, particularly the election cases alleging fraud and theft of votes. The court pretty much shut those down quickly with the Trump appointees agreeing with the majority. What can you say about the extent to which these three appointees were willing to, you know, go by the president's wishes?

GREENHOUSE: Well, what I say in the book is that they assisted in saving the court. And what I meant by that was had the court granted any of these Trump election cases, it would have been an institutional disaster, not only for the country because, obviously, there was no fraud in the election and, obviously, Trump was not robbed of an election victory. That's clear. We can agree on that. But for the court to have given in to the series of requests that came, including that crazy case that Texas brought against the states that Texas claimed should have gone for Trump but didn't - you know, it just would have been an institutional disaster for the Supreme Court. And obviously, the court was well aware of that.

DAVIES: We need to take another break here. Let me reintroduce you. We are speaking with Linda Greenhouse. She is a Pulitzer Prize-winning journalist and analyst of the U.S. Supreme Court. Her new book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And Twelve Months That Transformed The Supreme Court." We'll continue our conversation after this short break. This is FRESH AIR.

(SOUNDBITE OF ROBBEN FORD AND BILL EVANS' "CATCH A RIDE")

DAVIES: This is FRESH AIR. And we're speaking with Linda Greenhouse. She is a veteran reporter on the Supreme Court, covered it for 30 years for The New York Times. She has a new book chronicling the first term of the Supreme Court since three conservative justices were appointed by Donald Trump. The book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And Twelve Months That Transformed The Supreme Court."

You know, one of the things that happened during the period that you wrote about, this court term from, I guess, October 2020 to September 2021, was - at the end of the Trump administration, there was an effort to expedite the execution of prisoners serving death sentences in federal prisons as opposed to state prisons. Just to set some context here, how unusual was this, for this rush to execute federal prisoners?

GREENHOUSE: This was very unusual and very disturbing. So in the summer of 2020, looking ahead to the election, Attorney General Barr announced that the administration would undertake a series of executions of prisoners on the federal death row. There's one federal death row prison. It's in Indiana. The federal government had not executed anybody for 17 years. In the seven months from July of 2020 until four days before President Biden's inauguration in January of this year, the Trump administration executed 13 inmates. All of these came up to the court with some kind of emergency application, either the prisoners saying grant a stay or the Trump administration saying a lower court has granted a stay; we ask you to vacate the stay. And in every case, the court, on the shadow docket, gave the administration what it wanted - either denying a stay or vacating a stay that a lower court had granted. It was really an amazing sequence of events.

DAVIES: You know, you write about a dissent - I think it was by Sonia Sotomayor - do I have this right? - in which she argued that the rush to judgment in these cases that really involved careful consideration of some of these petitions really denied defendants justice.

GREENHOUSE: She used a phrase that I think is going to stand for this series of executions. She called it an expedited spree of executions. What a well-chosen word - spree. I mean, there was an execution four days before the end of the Trump administration, of a losing president. You know, it was, as I say, a disturbing sequence of events in which the court - history will not be kind to the court's response to this politically driven execution spree.

DAVIES: And these were typically done on shadow docket deliberation so that we don't really - the court's logic was not explained?

GREENHOUSE: Yes. Typically, these had no explanatory rulings from the majority. There were a number of dissents. Many of them by Justice Sotomayor, some of them joined by Justice Kagan, by Justice Breyer. But the majority didn't actually seem to have very much to say about it.

DAVIES: You know, as you're looking at this one year that you chronicled in your book, you draw an analogy to actors in a play. There's this notion that there's a fourth wall which separates them from the audience, which is the kind of understanding that what's happening on stage, you kind of accept it as real, and the players on stage don't acknowledge that there's actually an audience here. You said that this term of the court was one in which the fourth wall was broken. Can you explain what you mean?

GREENHOUSE: Yes. What I meant by that was, because of the sequence of events that had brought the court to this point with - especially with Amy Barrett's very rushed nomination and confirmation, we kind of saw the politics hole. It was very hard to maintain the fiction that we maintain when we're sitting in a theater watching a play, that, you know, we see no politics here. It's all law. That was broken not - I don't blame Amy Barrett for it. She was the vehicle of what happened during that astonishing year. But I think the court inevitably paid a price for it. And I think we as spectators, as consumers, as citizens, have to inevitably have adjusted our view of the Supreme Court accordingly.

DAVIES: You know, I hate to ask you to predict the future, but, you know, people are really concerned about what's coming from this court with these three new justices. And there have been cases in the past where conservative justices appointed by Republican presidents proved a disappointment to conservatives that, once on the court, tended to be more moderate than many expected. What are we going to see from this court, do you think?

GREENHOUSE: I think the cases in which justices have changed, have disappointed the presidents who appointed them, those are in our past, actually. Those were justices who were not vetted the way nominees are today, were not all stamped approved by the Federalist Society the way all of President Trump's judicial nominations, not only on the Supreme Court, have been. I think there are going to be many fewer surprises. So I don't think anybody should hold their breath for thinking that we're going to see another David Souter or another John Paul Stevens, a Republican judge who was nominated by President Gerald Ford back in the days when the Senate didn't even ask him what his views were on abortion. Those days are past. And I think what we see is what we're going to get.

DAVIES: One more thing on the politics of judicial nominations and timing of them - this is obviously something that's mattered a lot in recent years. There's been a lot of pressure on Justice Stephen Breyer to retire now while there's a Democratic president and Democratic control of the Senate or, you know, nominal Democratic control of the Senate. What's the impact of all this, do you think?

GREENHOUSE: What's the impact on Justice Breyer?

DAVIES: Yeah.

GREENHOUSE: I actually think it backfired because his motivation is to do whatever he can to not make the court look political. And I think had he retired because liberals are telling him to retire to give President Biden a chance with the, as you said, the very tangential Democratic control of the Senate still obtained would have looked overtly political. And I think it solidified his view that he should just play through. He's at the top of his game. He had a successful term. And I think people who thought that putting up posters around Washington that said Breyer retire was actually going to persuade the man to retire were just - that was a pipe dream.

DAVIES: Well, Linda Greenhouse, thank you so much for speaking with us again.

GREENHOUSE: My pleasure. Thanks for having me.

DAVIES: Linda Greenhouse is a Pulitzer Prize-winning journalist and veteran analyst of the U.S. Supreme Court. Her new book is "Justice On The Brink: The Death Of Ruth Bader Ginsburg, The Rise Of Amy Coney Barrett, And 12 Months That Transformed The Supreme Court." Coming up, Maureen Corrigan reviews Louise Erdrich's new novel, "The Sentence," a ghost story set in a year of COVID-19 and racial justice protests. This is FRESH AIR.

(SOUNDBITE OF SAINT SINNA'S "REAL FLOW (FEAT. CREEBO LODI)") Transcript provided by NPR, Copyright NPR.