Linda Greenhouse addresses the audience at a discussion about changing American opinions on the Supreme Court. (Alan Knight | Photo Editor)

Researcher Linda Greenhouse, Professor Greg Magarian, and Bill Freivogel — publisher of the Gateway Journalism Review — sat down for a discussion on Jan. 15 regarding the United States Supreme Court’s declining reputation among many Americans. 

The Bryan Cave Moot Courtroom was packed full of students and curious St. Louis residents alike. The discussion tackled a wide array of topics, including the fallout from the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and current Supreme Court cases.

Greenhouse, a Yale Law School Senior Research Scholar and former New York Times reporter, began her address to the attendees by highlighting a concern she felt about the potential consequences of the Supreme Court’s decision in Dobbs.

“In order to erase the constitutional right to an abortion, the Supreme Court not only had to overturn 50 years of precedent [in Roe v. Wade], but 30 years of precedent [in Planned Parenthood v. Casey],” Greenhouse said.

Despite this concern, Greenhouse said that the Court’s overruling of cases like Roe v. Wade and Planned Parenthood v. Casey did not make past precedent entirely meaningless.

“If the Supreme Court can overturn a decision that had been affirmed some 20 times, does precedent still matter?” said Greenhouse. “My answer to that question is still yes.”

While Greenhouse did feel that precedent was still a factor in how the Supreme Court determined a case, citing numerous decisions that are still relied on as precedent, she highlighted the recent change in the Supreme Court’s handling of precedent.

“I could list some Supreme Court decisions that have, sometimes for the better, overturned former precedent,” Greenhouse said. “Normally, this is [only] once or twice per term.”

Greenhouse added that the recent Supreme Court trend is unique because it has been overturning previous rulings by the court, not rulings made by lower courts.

“What Dobbs challenges is horizontal stare decisis, that is, the Supreme Court’s own precedent,” Greenhouse said.

Magarian, a WashU Professor of Law, said that it would be hard to predict how the court may rule next because of disregard for recent precedent. Magarian said that interpretation of many sections of the Constitution could become more conservative.

“The court is now on record saying the way to read constitutionality is in text, history, and tradition. Is First Amendment law going to stay the same as it has for the past 100 years, or will it be reviewed under text, history, and tradition?” Magarian said. “I don’t know the answer, but I do know the [conservative-leaning] court has the votes to do whatever they want.”

Magarian called this practice — changing interpretations of the Constitution from previous rulings — dishonest.

“The Supreme Court in Dobbs tells an ahistorical story of precedent.” Magarian said.

The speakers also acknowledged declining public approval of the Supreme Court.

“Certainly, the public is souring on the Supreme Court,” Magarian said. “There is plenty of evidence for that.”

After Greenhouse and Magarian concluded their remarks, a few questions were taken from the audience about the panelists’ experience in law and journalism as well as current Supreme Court cases. The questions seemed to affirm Magarian’s comments about a growing disapproval of the Supreme Court.

Greenhouse was asked for her opinion on the court’s handling of Free Speech Coalition v Paxton, a current case involving the restriction of access to adult content on the internet in order to prevent children from accessing it. An audience member brought up that, during arguments, Justice Samuel Alito asked about the makeup of the adult content sites, asking whether or not the sites, “like the old Playboy magazine?”, consisted of written articles alongside the content.

Attendees at WashU Law’s event groaned when the audience member mentioned this, feeling that Alito was out of touch with the internet age. One audience member took the opportunity to ask, “Wait… There were articles in Playboys?”

Another audience member asked the panelists about Amy Coney Barrett, Trump’s most recent appointee to the Supreme Court. Notably, Barrett recently sided against Trump by voting to allow his sentencing in his hush money trial in New York. The audience member asked whether or not Barrett could become a bipartisan justice.

Greenhouse thought it was unlikely Barrett would frequently take a bipartisan approach.

“No, she’s conservative,” Greenhouse said. “I guess you could draw the line between conservative and radical.”

Greenhouse added that, in the past, she would not have commented on a justice’s political biases, but has since changed her mind.

“The growing practice of covering which president appointed each judge, I was against it. I said it would hurt the justice system. If you asked me about it today, I would come down from my moral high horse,” Greenhouse said.

Greenhouse now feels that the political bias within the Supreme Court is too obvious not to discuss. She cited the Court’s overturning of Roe v. Wade as evidence.

“The role played [in Dobbs] by the three Trump appointees is too obvious to require elaboration,” Greenhouse stated.

Magarian said that the Supreme Court is frequently facing criticism for attempting to score partisan victories by overturning precedent. He said that he thinks the court realizes that some of their rulings create problems and the court will have to work their way out of them.

“One of the few joys I have in studying the Supreme Court today is when they trap themselves in a corner,” said Magarian. “I just sort of sit back and get the popcorn.”