Within a few weeks of each other this summer, three different federal courts took a hard look at recent actions by state legislatures, and in each instance found the state laws to be invalid. That in itself is not such an unusual thing. True, these decisions concerned the hottest of hot button subjects: abortion, in the case of a Supreme court decision that struck down a Texas statute; and voting rights, in the case of North Carolina and Texas laws invalidated by the Fourth and Fifth Circuit federal appeals courts. The practical significance of each decision was clear, and widely recognized. Courts, exercising the power of judicial review, strike down laws all the time, so what went largely unrecognized was what was exceptional about these rulings: not the subject matter, or the outcome, but what the justices and judges told the states. It isn’t simply that you were wrong, the judges told the states, but that we were deliberately wrong. You set out to violate the rights of those whose rights we are now vindicating and restoring. You acted with bad purpose. And that is something rare. Most of us probably feel that it should be rare. We don’t want unelected judges presuming to read the minds and divine the motives of multi-member elected bodies. Indeed, the tradition of judicial deference to legislative motive is deep and abiding. The tradition is, however, cyclical. Are we entering a new cycle of closer judicial scrutiny of legislative behavior? And if so, what are the implications? This is the background this lecture will present and the questions it will explore.
Linda Greenhouse is the Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School. She covered the Supreme Court for The New York Times between 1978 and 2008 and currently writes a biweekly column on law.