Last year we experienced a rather spirited presidential election season. It was probably the fiercest of my lifetime. But we should not be troubled by heated political campaigns. They are the occasional episodes that mark a healthy democracy.
In one respect, however, the 2016 election campaign was quite troubling. We saw two of our most important legal institutions—the Supreme Court and the Justice Department—bend in the political winds.
Years ago, I gave a speech in which I tried to explain why some justices moved, over time, to a more activist posture, less restrained or principled—in other words, result-oriented. A major factor was the influence of the press. Hence the “Greenhouse effect,” referring to Linda Greenhouse, who covered the justices for the New York Times. The Supreme Court press is increasingly dominated by lawyer-journalists who reflect the change in the composition of law-school faculties, which are now almost uniformly left-activist. That political flavor was recently demonstrated by the stunningly uniform opposition at law schools to the nomination of Jeff Sessions as attorney general.
Since the press’s orientation is sympathetic to activist results, which I think it is safe to say are largely on the left, it is not surprising that the Greenhouse effect is more demonstrable vis-à-vis Republican appointees. And the effect has been particularly strong on Washington neophytes—judicial appointees who had not served in prior Republican administrations and therefore had not yet experienced the attacks of the mainstream press. The neophytes had not yet grown the thicker skin that Republican officials in the executive branch necessarily develop. Compare, for instance, Justices John Paul Stevens, Sandra Day O’Connor,Anthony Kennedy and David Souter with William Rehnquist, Antonin Scalia,Clarence Thomas,John Roberts and Samuel Alito. The latter five had served in Republican administrations, but none of the former had.