← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Big Days for Justice
01:01:39
Bill Barr drops things, SCOTUS phones it in, and Little Sisters intervene.
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- [00:05]
Court Clerk
Oh, yay. Oh yay. Oh yay. All persons having business before the honorable the Supreme Court of the United States are admonished to give their attention, for the Court is now sitting.
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Susan Hennessey
The rule of law still exists on paper. There's still an FBI, there's still a doj, but they aren't being used for the legitimate purposes of even handed justice.
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Dahlia Lithwick
Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law and the rule of law. I am Dahlia Lithwick. I cover those things for Slate, and we are well into month two of podcasting. From my home to yours, and from my home to yours. We hope you are well and taking good care. There's been a lot of legal news this week, much of it pouring out of the Supreme Court, or more accurately, the phones of various Supreme Court justices who really made history this week with telephonic real time arguments in the first of 10 argument sessions they have scheduled for the month of May. Ordinarily, arguments end in April. So we're gonna talk later in the show with Mark Joseph Stern, who's been listening in with me at Slate in a bonus for our Slate plus members. So do stay tuned or sign up so you can stay tuned for that. Friends, if you are not a Slate plus member yet, I urge you to check it out quite candidly. These are just really tough times. Media companies are struggling and Slate is no exception. Really good journalists across this industry are getting laid off, getting furloughed, taking huge pay cuts. And I know money is tight, but you can, if you can, support Slate's vital coverage and our terrific writers and podcasters. With a Slate plus membership, you get ad free access to all of our shows exclusive members only content, like our extra SCOTUS rundown with Mark Stern. So please go if you can to slate.com amicusplus to find out more. And really, from the bottom of my heart, thank you. So we wanted to hear from veteran New York Times correspondent Linda Greenhouse this week, both about arguments in the little sisters case and also just how weird it is to be listening in to these telephonic arguments after decades of having no such access. So we're gonna chat with her about that in just a few minutes. But first, some big news that needs to be addressed on any show about the law and the rule of law. On Thursday night, the Justice Department announced it was withdrawing charges against the President's former National Security Advisor, Michael Flynn. He pleaded guilty in December 2017 for lying to the FBI. He cooperated with the Mueller probe for a time and then changed his mind, fired his lawyers, withdrew his plea while his sentencing is still pending before a federal judge in D.C. the Justice Department announced on Thursday that P.O. they're dropping the case. Well, we're joined by Susan Hennessey. She is the executive editor of Lawfare and general counsel of the Lawfare Institute. She's CNN's National Security and Legal Analyst, and she's a Brookings Fellow in National Security Law. Prior to joining Brookings, she was an attorney in the Office of General Counsel of the nsa. And her most recent book is Unmaking the Donald Trump's War on the World's Most Powerful Office, co authored with Ben Wittes. And a must to try to get your head around what is happening in the executive at this time. So, Susan, such a joy to have you back on the podcast. Thank you for joining us.
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Susan Hennessey
Thanks for having me.
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Dahlia Lithwick
So will you just walk us through the zigs and zags of Michael Flynn's actions in the transition and what he pleaded guilty to in 2017?
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Linda Greenhouse
Yeah.
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Susan Hennessey
So this is a little bit of a strange and winding tale of the world's briefest stint as national security advisor. But essentially the core, the issue here is that during the transition period, a period of time in which the FBI was actively investigating and Russian active measures campaign and whether or not there were any contacts with the Trump campaign at the time, Michael Flynn had a phone call with the Russian ambassador, Sergei Kislyak, immediately following the Obama administration's announcement that it was imposing sanctions in retaliation for Russian interference in the 2016 election. And in this phone conversation, there's actually a number of phone conversations between FL Flynn and Kislyak. Flynn essentially says don't respond. And the implication of this is that there will be more favorable treatment when the new administration comes in. Kislyak, in fact, doesn't respond. The Russians decide not to retaliate and sort of escalate in response to the sanctions. The current United States government at the time is kind of scratching their heads. They were prepared for the Russians to retaliate. They want to know what happened. They want to know why this blowback didn't come. And so they start investigating. And they find this ph between Flynn and Kislyak because, of course, the Russian ambassador is presumably being monitored. His phone calls are being monitored. And so they go, the FBI goes and actually interviews Michael Flynn to ask about this call. They already have the transcript, so they know what's on it. And in the course of that interview, Michael Flynn lies He says that he didn't havehe didn't mention sanctions during this call at all. And it's a crime to lie to federal investigators. And so the fact that Michael Flynn has lied becomes one his eventually being fired by the President because he also lies to the Vice President of the United States and other members of the administration about the substance of this phone call, and then eventually becomes the basis under which Michael Flynn is prosecuted. Fast forward to December 2017. Michael Flynn pleads guilty, admits that he lied, that he knew, he knew his statements were false at the time. And then there's been this sort of prolonged period of cooperation over the sort of six or eight months. Michael Flynn has kind of changed his mind. He's attempted to withdraw his guilty plea. He suggested that there's been misconduct by the federal government. In the past couple of weeks, the President of the United States has suggested he might pardon Michael Flynn. And then Thursday evening, in sort of a sort of surprise turn of events, the Justice Department actually decided to drop charges against Michael Flynn entirely and essentially abandoned the plea agreement. It is, I think, an understatement, unusual for the Department of Justice to drop charges after somebody has already pled guilty to them. And so that leaves us to where we are now with sort of serious questions about why this course of action was undertaken at the Department of Justice and what it means about sort of apolitical law enforcement moving forward.
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Dahlia Lithwick
And I want you to stop there for one second, because I think that for a lot of people, it's just six of one, half dozen of another. A lot of folks think, what's the difference between if Trump had pardoned him or if the DOJ just decides to drop charges? But institutionally, it's a great big deal for the DOJ to step in here.
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Susan Hennessey
It is significant. Right. So there's been a question about whether or not Trump might pardon people like Flynn or Paul Manafort or Roger Stone. And I would argue that were he to do so, that would be an abuse of his presidential office, an abuse of the pardon power. But it would sort of trigger a separate set of questions and potential, potential checks and balances. And it really is kind of the appropriate course of action. What we've seen Bill Barr do actually a number of times is kind of short circuit that process. So whenever the President was suggesting he might pardon Roger Stone, Bill Barr directed this sort of last minute about phase for the Department of Justice, where they suddenly recommended a much lower sentence in his case after he'd been convicted of charges here again, Right. As it seemed as though the President was prepared to pardon Michael Flynn, Bill Barr interven, have those charges dropped. And, you know, it might seem sort of insignificant because the outcome probably would have been the same either way, but it is significant because what Bill Barr is doing is politicizing and departing from longstanding positions of the Department of Justice in ways that will actually have significance on future cases, you know, and raise really alarming questions about the perception, and I think at this point, reality, that the Department of Justice now functions as an organization that protects and defends the President's friends, family, and political cronies and targets his enemies. And that, of course, is an incredibly alarming place for our country to find itself in.
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Dahlia Lithwick
And you wrote in lawfare on Thursday night, you make the point that one of the things that this government brief, which is, I think you point out, signed only by one attorney, there is a prosecutor who actually quietly, noisily walks off the case, leaving us to assume he disagreed with this judgment. But you describe it as a kind of who's who of blaming the James Comey, FBI and everybody who are now familiar villains. Sally Yates, Peter Strzok, Lisa Page. Everyone's a bad guy. And it sort of crafts this now familiar story that there was a cabal of at the FBI who were not honest brokers, and they cooked up this whole process to entrap Michael Flynn. And I think it's important for you to explain why it matters that Barr is going after the FBI again as an institutional matter. What that does to morale, what that does to public confidence in the FBI.
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Susan Hennessey
Yeah, there's sort of two suggestions within the government's brief, and the first is, I think, the more substantive and an alarming one. And essentially the order of events is pretty complicated and convoluted. But essentially what the Department of Justice is currently arguing is that at the time that the FBI interviewed Michael Flynn, there wasn't a properly predicated investigation. And so in order to have a predicated full investigation, the standard's relatively low. It's an articulable factual basis that either there's a threat to security or that a crime has been committed. And essentially what occurred here was a little bit of a bureaucratic sort of snafu or technicality. There was a counterintelligence investigation, Crossfire Hurricane, we're all now well aware of it, that had been occurring from the summer of 2016, sort of investigating Russian active measures. This guy George Papadopoulos, who had said that there was some indication within the campaign that the Russians had Hillary Clinton's Email. The Bureau starts looking into that. And as they're looking into that, these four individuals sort of pop up on the radar screen. Carter Page, George Papadopoulos, Paul Manafort, and Michael Flynn. Michael Flynn pops on the radar screen because he has some ties with Russian financial institutions and he's traveled to Russia. And the FBI looks into that. And by the time they get sort of to November to the end of the year, they find some sort of sketchy things about Flynn, but nothing that sort of puts him, makes him sort of a likely suspect for the specific sort of conduit that they're looking into. And so they write this memo and they say, we didn't find any derogatory information. We don't think he' we should probably just close this. But they actually don't file the paperwork to do so. Then fast forward to December and early January and this phone call between Flynn and Kislyak pops up on the radar screen, this really significant new piece of information. And at that point, the FBI has to make a decision of what they do with it. Now, they decided that they don't want to pursue it just as sort of a narrow criminal issue related to the Logan act, that's it's not really likely that he's going to be prosecuted under this sort of old law that's never been used before. But they do realize that there's serious issue they need to interview him and that it plainly falls within the predication of a counterintelligence investigation. There's just no question of that. And what they find out is that instead of having to actually formally reopen a counterintelligence investigation, they never bothered to close the last one. And so great, they've saved themselves some paperwork. What DOJ is attempting to argue now is that somehow that technicality breaks a chain of causation or breaks the predication such that the interview in which Michael Flynn pl plainly lies, in which he plainly commits a crime, was somehow illegitimate and the substance of the lies wasn't material. And that's just a little bit of sort of obfuscation, Right? It's taking some sort of bureaucratic technicalities and making it appear as though it's evidence of wrongdoing, when in fact there's really no question that the FBI, it wasn't just proper to ask Michael Flynn what exactly was going on, why was he having this conversation, but really the responsibility, the duty and obligation of the FBI to do so.
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Dahlia Lithwick
And I think it matters, again, for purposes of just keeping the story straight, that the new pleading seems to suggest that the lie doesn't really matter. Yeah.
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Susan Hennessey
They take this bizarre position that Flynn's call with Kislyak was entirely appropriate. And in order to understand how weird of a claim that is, we have to kind of go back to that period of time. Right. So December 2016 and January 2017, this is a period of time which Republicans are actually slamming Barack Obama for not going far enough. They say these sanctions aren't harsh enough on Russia. The FBI is aware of all these swirling questions about what the Russians had did, whether or not there are these contacts. And here comes the incoming national security adviser who has this bizarre conversation with the Russian ambassador. And then all of a sudden, the administration is lying about it, the press secretary is lying about the substance of this call, the incoming vice president lying. And that creates a real question. Is Michael Flynn freelancing? Is he making representations to the Russian ambassador that aren't consistent with the policies of the current or the incoming administration? Is he somehow carrying out a policy on behalf of the incoming administration? What's going on? And the purpose of an interview is just to get to the bottom of what's going on. And so when people sort of suggest this was a perjury trap. So a perjury trap is when the government attempts to interview someone for no investigative purpose whatsoever. There' a real question about that they're trying to get to the bottom of, but instead they just want to get somebody to lie so they can use that as the basis of prosecution. But here there are live questions, and whether or not Michael Flynn decides to say, hey, you know, yeah, I did this. The incoming president told me to do it. We have a new policy. So what if we're lying to the public? That's not really any of your business. Or if instead Michael Flynn says, I didn't talk about sanctions at all, and sort of brazenly lies, that's really, really a different matter. Whenever you're trying to assess the. Which is, of course, what a counterintelligence investigation is all about. So this sort of combination of factors and suggestion that poor Michael Flynn was somehow duped into lying to federal agents, it really just doesn't hold up.
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Dahlia Lithwick
In a weird way, Susan, this feels like Michael Flynn is sort of a vestige of an earlier time, even in the Trump era, where if you lied and you endangered national security in so doing by put in a compromise, potentially compromised situation, everyone agreed that was bad. And now we're in this brave new world where as long as you lie for Trump, you're okay. And in A strange way, it makes me almost nostalgic for the good old days of 2017, where at least there was some agreement across the ideological spectrum that the Justice Department wasn't going to bend over backwards to prevent protect Trump's friends for lying for him. Am I too cynical?
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Susan Hennessey
I don't think it's too cynical. Look, I think there are reasonable minds can believe that DOJ and the FBI leans too hard on 1001 violations in order to obtain leverage. You can have lots of sort of good faith criticisms about the sort of investigative and prosecutorial processes that occur every day. The bottom line, though, is that there's no question that Michael Flynn is getting special and different treat. He is a political ally of the president. And as soon as we start sort of accepting and tolerating this notion that the law is different depending on your sort of status of favor with the individuals in power, that not just begins, but in some cases sort of completes a process of constitutional rot whereby our institutions are formally still standing. The rule of law still exists on paper. There's still an FBI, there's still a doj, but they aren't being used for the legitimate purposes of evenhanded justice and instead are being used of tools of favor and protection or punishment and persecution based on sort of political standing. And, you know, that is antithetical to sort of core American values and core values of democracy.
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Dahlia Lithwick
Susan, last question before we let you go. You pointed out in your Lawfare piece on Thursday night that in his interview with CBS on Thursday night, Barr defended his decision. Here he is kind of chuckling that, well, you know, nobody has a sense of justice, but history is written by the winners.
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Chief Justice John Roberts
Nowadays these partisan feelings are so strong that people have lost any sense of justice.
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Linda Greenhouse
When history looks back on this decision, how do you think it will be written?
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Chief Justice John Roberts
Well, history is written by the winner. So it largely depends on who's writing the history.
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Dahlia Lithwick
And I wonder if you can just help folks who are trying to locate whether this is a sort of 1 or a 10 on the outrage scale, what it means when Barr is sort of, as you say, kind of rewriting history because he thinks he's the victor.
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Susan Hennessey
I think there's two ways to approach it. So the idea that Michael Flynn isn't rotting in jail for many, many years, that's not a source, for me personally, of great outrage. This was a serious offense. But, you know, had a judge decided to sort of ignore his more recent shenanigans and, you know, give him probation or sort of let him off with a wrist slap that wouldn't be an egregious miscarriage of justice. The part that is a 10, that's like a blazing red alarm, everybody should be freaking out is the idea of the Attorney General acting as the political henchman of the President of the United States. And that is incredibly alarming. And we've seen Bill Barr carry out a systematic campaign to try and undermine and discredit the Mueller investigation. Interventions in the Stone sentencing, the John Durham Review, the review of Michael Flynn's case, now the decision to drop Flynn's charges. It's all about attempting to not write history, but rewrite history to create this sort of alternate reality by which the President of the United States didn't do anything wrong in this hor deep state in the government was just out to get him from the beginning. And so, you know, I think it was a little chilling to hear Bill Barr sort of laugh as he makes this observation of, well, history is written by the winners because he clearly recognizes that at this moment he is the victor and he intends to rewrite history. And the problem is, whenever you have a law enforcement entity that is divorced from the truth and instead sort of in pursuit solely of the interests of those in power, you're in an incredibly, incredibly disturbing situation. Because the first step might be the protection of the President's friends, but when you look at autocracies across the world, the final step is always the prosecution and persecution of the President's enemies. And that's something I think any reasonable person should just be incredibly alarmed about.
- [21:14]
Dahlia Lithwick
Susan Hennessy is executive editor of Lawfare and General Counsel of the Lawfare Institute. She's a Brookings Fellow in National Security Law, and her new book with Ben Wittes is Unmaking the Donald Trump's War on the World's Most Powerful Office. Susan incredibly, incredibly important work. Thank you so, so much for joining us today.
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Susan Hennessey
Thanks for having me.
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Court Clerk
Oh yea, oh yea. Oh yea. All persons having business before the honorable the Suprem Court of the United States are admonished to give their attention, for the court is now sitting. God save the United States and this honorable court.
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Dahlia Lithwick
History was made this week with the gaveling in of the first ever telephonic oral argument session at the U.S. supreme Court.
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Chief Justice John Roberts
We'll hear argument this morning in case 1946, the United States Patent and Trademark Office. Office versus booking dot com. Ms. Ross.
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Noel Francisco
Mr. Chief justice, and may it please the court.
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Dahlia Lithwick
My guest to talk about this week at the Supreme Court needs no introduction to anyone at all who's watched The Supreme Court, at least in my lifetime. Linda Greenhouse was the New York Times Supreme Court correspondent for almost three decades, for which she won a Pulitzer Prize and myriad other prizes and honorary degrees. Linda is currently the Knight Distinguished Journalist in Residence and the Joseph M. Goldstein Lecturer in Law at Yale Law School. Her column on the Supreme Court appears in the New York Times on alternating Thursdays. And her most recent book, which is absolutely lovely, is called Just a On the Life and the Spaces A Memoir. So, Linda, it's been a while since we've had you on the show. Wonderful to have you. Welcome back.
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Linda Greenhouse
Oh, happy to be here, Dalia. And of course, I read your columns all the time, Even. Even though I don't see you.
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Dahlia Lithwick
Well, it's good to. Linda and I are doing this on Zoom, so we get to see each other's faces, which is nice because in all the years that we covered the Court together, I saw the back of her head from the cheap seats. Linda, I guess I want to start by asking you how you feel about these real time telephonic oral arguments. This is historic in some sense.
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Linda Greenhouse
Well, you know, at first I was very skeptical about all the hype over this because I thought, you know, for heaven's sakes, the court has put up its audio on its website every Friday for several years now. And, you know, it's not as if the public has never been able to hear the Justices voices. But I'm going to take that back because actually it was fascinating and it is a very different kind of argument that brings out a different dynamic. Dynamic by the court. I'll almost be sorry when the court, assuming any of us ever get back to normal life when the court gets back to normal life, because we'll miss a kind of coherence in a way that the telephonic argument enables, but we can. I'm sure you have your thoughts on that too.
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Dahlia Lithwick
Well, I do, and I, you know, I was gonna sort of pause it for you. I think let's at least agree that any transparency is good. Transparency. I mean, I think anything that gives more people the ability to hear more argument at home in real time has to be good. But then I think there is this kind of bickering going on among court watchers because if you are used to the way arguments used to be, it's not just, oh, now we can listen in on the phone. It's that the whole format has really changed. And instead of this kind of free ranging argument, we now have nine separate colloquies. It's very different in a lot of ways. And I know there are Lyle Denniston has been saying he doesn't like it. Garrett Epps says he loves it. Mark Stern and I, I think, are somewhere in the middle saying we like the idea of transparency. But maybe, maybe it's not terrific that the chief justice has so much control over arguments. What's your feeling about not the sort of optics of it, but the actual ways in which the arguments themselves are fundamentally different in some ways?
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Linda Greenhouse
Yeah. Well, that's an interesting observation, Dalia, that the chief justice has so much control because, of course, ordinarily people don't realize that the office of the Chief justice actually doesn't give the Chief justice as much control over the court as I think many people assume. You know, at the end of the day, he's one vote out of nine. But here, as you suggest, because they're not seeing each other, they're all in their nine separate places. In fact, Justice Ginsburg for the end of the week was asking her questions from Johns Hopkins Hospital from which she's now mercifully been released and sent home. He's actually the kind of traffic cop and arguments are supposed to last an hour. One thing that's quite fascinating is that they all go longer now. But he will allow each justice to ask a question, maybe two questions, maybe a follow up question or two, and then he'll just interrupt. And whether he's interrupting the lawyer or one of his colleagues, he'll just say, thank you, counsel, and he'll go on to the next justice. And so that is startling in part because those of us who've watched him over the years, he himself is not an active questioner on the bench and many, many minutes in arguments can go by without hearing his voice. It's not that he's a passive person. He's not that's not what I'm suggesting. But he made a career arguing before the Supreme Court Court, and I think he has a healthy respect for allowing the lawyers to make their case. And so he doesn't jump in, he doesn't interrupt. He will ask very smart, pointed questions, but he will wait his turn. And now he's very obviously in charge.
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Dahlia Lithwick
And maybe related to that. Linda, I think one of the things that court insiders are saying, and again, I a little bit reserve judgment on this because I'm not sure how how it's shaking out, but that you don't get a kind of line, there's no through line that you don't have the opportunity to kind of pursue a question because the next justice may simply drop the question and you can't kind of fully explore issues of concern because if the person who chronologically goes after you in order of seniority drops it, it's a drop. And I wonder if you have some sense that this kind of peripatetic, you know, now it's Kagan's turn and she's trying to harken back to something that happened 25 minutes ago where ordinarily she would jump in immediately. Whether that shapes argument at all, the lack of a sort of very, very clear through line.
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Linda Greenhouse
Well, of course, in the ordinary argument argument, there's also not a clear through line because Justices will jump in and turn the argument in another direction. So I think here, for instance, in the Little Sisters argument on Wednesday, Justice Kavanaugh, of course, being the junior justice, came at the end and he obviously, at least it seemed obvious to me, had been taking notes. And so he framed his question by saying, well, at as Justice Kagan, Justice Alito, justice this justice that said, and he kind of cycled back to a theme that had come earlier. And I think, you know, maybe in a real argument he wouldn't have gotten a chance to weigh in at all. So that's, I mean, I see the problem that you're framing, but I actually think there's a problem the other way, too. So, you know, I think it's actually pretty cool.
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Dahlia Lithwick
It's incredibly cool. And I guess this is where we have to acknowledge the fact that Justice Clarence Thomas has probably spoken more this week than certainly I think I could say across my two decade career that he is absolutely enthusiastically embracing this style and form in a way that we've never seen before. And I wonder if you think that has any impact Act.
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Linda Greenhouse
Well, I think it does, actually. I think that's clear from some of the arguments this week. I mean, going into this, I was thinking to myself, gee, that's going to be kind of awkward when the Chief justice turns to Justice Thomas, who is the senior Associate Justice. So he would come right after the chief and say Justice Thomas, and there'd be like blank. But no, I mean, Justice Thomas behaved on the bench, as I gather, he actually behaves in the Justices conference, that is to say, a full and well prepared participant. And he's got his talking points and that's what came through. And I mean, for instance, in the Little Sisters argument where he starts asking about standing and, and nationwide injunctions and things that are somewhat ancillary to the case but yet require answers and other people had to pick up on that. So it was really a window into the hidden Clarence Thomas that the public doesn't see, but that his colleagues definitely do.
- [31:20]
Dahlia Lithwick
And we can't leave the sort of general theatrics of the week without briefly touching on Justice Ginsburg calling in from the hospital. I think, as you noted, it was a gallstone issue. She's home. But it was one of those moments that makes us realize yet again that we're all kind of sitting around on tenterhooks watching her health in a way that really raises questions about is this the best possible way to do justice in America? I wonder if you had the same 500 panicky phone calls on Tuesday night that I.
- [32:00]
Linda Greenhouse
Yes, I did. I did. And of course I didn't know anything. So, yeah, I was just waiting for the next shoe to drop like everybody else.
- [32:12]
Dahlia Lithwick
So let's talk about the Little Sisters case because I think, I guess I want to say my personal sort of axe to grind here is I actually think this is a very consequential case and I always get a little freaked out that these contraception cases get only a tiny fraction of the attention that the straight up abortion cases get and that, you know, the interest in June medical as compared to this was exponentially high. And I actually think these sort of religious objector cases, maybe because they're complicated or maybe because there's just so much else going on, but they just don't seem to break through, even though in some ways I think they're just unbelievably salient and meaningful. Do you have some sense of why these contraception mandate cases post Hobby Lobby just don't seem to garner a lot of public interest?
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Linda Greenhouse
Well, I think, I mean, first, I totally agree with you. These are really important cases and they really go to the nature of civil society, as I understand it, which is that the default mode is we all live by the same rules, we all undertake the same obligations, and if there's going to be an exception to that, if there's going to be a conscientious objection to the draft or whatever, it's very carefully defined and very carefully administrated. And that's an important thing. So why don't these get the heft that the abortion cases get? Well, well, I think it's because you've got an abortion case and are women going to have the right to terminate a pregnancy or not? Or what are the obstacles to women being able to affect their constitutional right to control their reproductive lives? You can kind of understand that right on the surface, these go to something a little bit more elusive. And the religious right has been absolutely brilliant in framing a narrative that I believe is not an honest narrative that, you know, oh my God, the nasty Obama administration is trying to force the Little Sisters, the Little Sisters of the Poor, to use birth control. Now, of course, that's totally meretricious. The Little Sisters of the Poor are, as an order, nuns. They run nursing homes. If you go on their website, they're an equal opportunity employer. You don't have to be a member of their order or a member of their faith to work there or to be a patient in their nursing home. So what this case has to do with is do they, as employers have the ability to opt out of providing to their, let's assume, secular workforce the same rights that federal law requires employers to provide for everybody else? And that's what it comes down to. But they have so captured the narrative that there are many, many plaintiffs originally in this case with all kinds of anodyne names. But very cleverly, the people representing the Little Sisters, the Becket Fund for Religious Liberty, which is a brilliant religious right litigating organization with very, very smart people working there, have somehow managed to make this a case about the Little Sisters. It's not a case about the little Sisters. They're interveners in this case. And actually the plaintiff in this case is the state of Pennsylvania, joined by the state of New Jersey, saying, we object to this opt out because there's going to be more pregnancies. There's going to be more, you know, Medicaid services required for people who have to carry their pregnancies to term and have babies and we're going to have to pay more. So we have standing. We're the states. We don't like this. It's really not about the nuns. And nobody's forcing the nuns to use birth control.
- [36:23]
Dahlia Lithwick
Right. And I think that's important. I wrote that up in my piece because I called almost everyone I knew and said, is there any set of facts under which the little sister who are on the church plan? Right. They're never going. Even if they lost this case, whatever that means, as you said, they're interveners. They're never going to have to themselves do the thing that they're saying they don't want to do. Right.
- [36:49]
Linda Greenhouse
Well, that's right. And we should be specific about the thing they're saying they don't want to do. What they don't want to do is anything, because the way the current accommodation works is if you're a religious objector and you feel that by doing anything to enable your employees to receive free contraception, you will be complicit in the sin of contraception, okay, the government, the Obama administration, was willing to accept that as a position. And so they said, okay, you don't have to do anything. Anything. You can do absolutely nothing. And it will fall to the insurance, your insurer, or ultimately the government to pay for this service. As long as the employees can receive the contraception coverage as part of their ordinary health plan, you don't have to pay for it. You don't have to even officially opt out. You don't have to sign a form. You don't have to ask us to do it, we'll do it. But it has to be seamless. We don't have to send them out into the marketplace to find their own insurance because the law provides that they are entitled to this insurance. So it's a refusal to accommodate at all. It's not, we don't like your accommodation. We feel we deserve another accommodation. No, we deserve a total exemption. And that's what's really, really on the table.
- [38:25]
Dahlia Lithwick
So let's back this up for listeners who maybe haven't followed every twist and turn since Hobby Lobby and just sort of lay out how we got here. As you said, when the Affordable Care act was passed, there was a guarantee of comprehensive contraceptive care that would be covered by your employer. There were a bunch of exemptions for churches and, and religious universities and hospitals. Hobby Lobby at the time said, we want that too. We want an exemption too. In the Hobby Lobby opinion written by Sam Alito, the kind of, I think the gravamen of the opinion was, look, if you can give this accommodation to churches, you can certainly give it to these for profit small corporations like Hobby Lobby and the Green family's Cabinet Company. And that's why where we were and then as you say, Zubik comes along in 2016 and this was a group saying, okay, but we don't want the accommodation that we were given in Hobby Lobby. We don't want to self certify. We want to just not be in any way in this kind of causal chain wherein at the end of the day our employees get contraceptive care covered. Is that a fair representation of where we are?
- [39:48]
Linda Greenhouse
Yes. And let me say something about the argument. Justice Alito, who as you say wrote Hobby Lobby, has a line of questioning to the Pennsylvania lawyer. The 3rd Circuit, by the way, had invalidated the Trump rule that provides the religious exemption and Also, we haven't even gotten into this provides moral objection. Justice Alito says to the lawyer, what's wrong with the Third Circuit? Didn't they read Hobby Lobby? Meaning this is covered by Hobby Lobby. Now, it's not, I hate to say say that Justice Alito asked a dishonest question, but he well knew because he wrote the opinion in Hobby Lobby that what Hobby Lobby was seeking was an accommodation, not a total opt out. So when he said to the Pennsylvania lawyer, didn't the Third Circuit read my opinion in Hobby Lobby? Yes, they did. And they found that what's being requested here is not covered by Hobby Lobby. It's very, very different. It's much more extreme, actually.
- [40:51]
Dahlia Lithwick
So we do have to get into this sort of administrative procedure part of the case which is, as you said, Donald Trump announces, we're going to be much more expansive. We're going to give opt outs to everyone who has a religious objection. And they put together a rule that, as you say, is far broader than anything we'd seen before where they say now any employer who has a religious objection to contraception can opt out. And also this as, as you say, mysterious language about also, if you have a quote unquote moral objection now you can be exempted. And part of this case, and I think only Elena Kagan was really deeply excited about it, is this issue of did they go through the fair sort of notice and all the processes for a rulemaking change. But it is kind of important because I think in the grand scheme of things, when you look at the law of Trump, so often they lose because when they go ahead and make rules, they do it kind of badly and fitfully and without jumping through the correct hoops. So that is a part of this case and that's certainly the part of this case on which the lower courts were emphatic that they just didn't do this correctly. They tried to fix it after.
- [42:11]
Linda Greenhouse
Right? Yes. Justice Kagan raised the Administrative Procedure act and Justice Breyer did also. And therefore, often in league with each other, trying to find some off ramp that the court could avail itself of and not plunge into the deep hole that the court will find itself in if they actually would uphold a moral objection. That really is the end of civil society. As I understand it. It's possible that the proceed procedural stuff could attract five votes. But you know, I mean, there's such an appetite among the conservatives to get to the heart of this thing because they failed to do that. In the case that you mentioned in 2016 in Zubik because Justice Scalia had died and the Court was obviously split 4 to 4. Although, let me interrupt myself. Early in the argument, the Chief justice said, you know, I never understood the issue in Zubik.
- [43:17]
Chief Justice John Roberts
So if you had a situation where the certification was not necessary, in other words, the government finds out that the employees do not have contraceptive coverage through some other means, and you do not have the hijacking problem that you refer to because the insurance cover would not provide. Provide the services through the Little Sisters plan, but could provide them directly to the employees. Why isn't that sort of accommodation sufficient? I didn't understand the problem at the time of Zubik, and I'm not sure.
- [43:53]
Linda Greenhouse
I understand it now, which is pretty interesting. And I think what he was trying to say was, I don't really understand the nature of the objection made by these religious employers. And can you please explain to me how that ties into what we did in Hobby Lobby? So it's possible that the chief, on the merits, thinks that what's being requested here is actually a step too far. That's one fascinating thing that we're going to find out here.
- [44:33]
Dahlia Lithwick
I had the exact same impression, Linda, that here's Chief Justice Roberts right out the chute. Noel Francisco, opening his presentation to the Court. He's the Solicitor General for the Trump administration arguing in favor of these exemptions. And Chief Justice John Roberts under this RFRA Religious Freedom Restoration act analysis immediately. Wait, wait, wait. I don't understand. It seems that the exemptions go way further than what the Little Sisters needed. Let's have a listen.
- [45:06]
Chief Justice John Roberts
I wonder why it doesn't sweep too broadly. It is designed to address the concerns about self certification and what the Little Sisters call the hijacking of their plan. But the RFRA exemption reaches far beyond that.
- [45:26]
Linda Greenhouse
It ups.
- [45:27]
Chief Justice John Roberts
In other words, not everybody who seeks the protection from coverage has those same objections. So I wonder if your reliance on RFRA is too broad.
- [45:40]
Dahlia Lithwick
And my thinking is, as it always is. You never know with the Chief Justice. You hesitate to read too much into his questioning. But it does look a little bit as though this is that John Roberts swing justice that we're starting to get used to in the new era.
- [45:57]
Linda Greenhouse
No, I agree with you, Dalia. It was very striking. And I also agree with you. He's one of the harder Justices to read from the questions he asked from the bench, because sometimes he likes to play devil's advocate. Sometimes he just likes to do something that is really a purpose of oral argument, which is to press the lawyer to the extreme of the lawyer's position, because the court always has to have in mind, okay, if we buy what this lawyer is selling, what's the next case? So, you know, it can have something other than signaling his own discomfort with the argument. But on the other hand, he sounded rather uncomfortable.
- [46:44]
Dahlia Lithwick
And that sort of leads me to Justice Ginsburg, who over and over, I think three separate times said some version of, dude, the ACA says this is covered and that women aren't supposed to be scrounging around in the markets trying to find their own coverage. And Noel Francisco, the Solicitor General, kind of blithely said, oh, well, somewhere between 75,000 and 125,000 women just won't be able to get contraception. But it was interesting. I think both Justice Ginsburg and later Sonia Sotomayor were really, I think, somewhat miffed at how cavalier he dismissed the interest of, as you said, these third party non religious adherents who are going to bear the burden of the religious adherents faith. Right.
- [47:36]
Linda Greenhouse
Well, if we go back to Hobby Lobby, Justice Alito's majority opinion had a statement in Hobby Lobby that said no woman will be deprived of her ability to, to get no cost contraception because of this opinion. He said that because he was dealing with an accommodation and under the Obama administration, accommodation that was at issue in Hobby Lobby. If the employer didn't want to pay, the insurer or the government would pay. Now, that has proven to be an empty promise because, in fact, women who work for these companies or women who go to religious colleges that choose not to include contraception in their student health plan and so on are not getting the coverage. They are not getting the coverage. So Justice Ginsburg had written the dissenting opinion in Hobby Lobby raising this issue. And her intervention in the argument. Argument on Wednesday was interesting. It was, I have to say, it wasn't typical RBG because she really didn't have the kind of very much on point question for the advocates. Instead, she kind of gave a little speech saying, your position is throwing women to the winds. And, you know, basically I've been telling you this and it's still happening.
- [49:12]
Noel Francisco
Instead, you are shifting the employer's religious beliefs, the cost of that, onto these employees who do not share those religious beliefs. And I did not understand RFRA to authorize harm to other people, which is evident here. The women end up getting nothing. They are required to do just what Congress didn't want.
- [49:42]
Linda Greenhouse
She didn't actually frame a question so that the Chief justice had to say, I think it was to Solicitor General.
- [49:48]
Noel Francisco
Francisco, General Francisco, could you Respond.
- [49:52]
Linda Greenhouse
Would you like to respond to that? Because it actually wasn't a question but obviously we know where she's coming from on this and she was very passionate and she did not get a satisfactory answer. As, as you say, the last little.
- [50:07]
Dahlia Lithwick
Clip I wanted to play for you, Linda, because I actually thought it was very powerful. Was Sonia Sotomayor trying to press on this notion in a colloquy with Paul Clement again representing the Little Sisters, that if an employer, if we had a COVID 19 vaccine and an employer just had religious objections, would they be able to get an exemption similar to the one that you are fighting for for the living sisters?
- [50:36]
Noel Francisco
Mr. Clement, assume that the government tomorrow passes a law that says every insurance company must reimburse every policyholder they have for COVID 19 vaccine. They say nothing about whether it's in your policy or not. If someone has a religious objection, they say they can be exempted from it. But you insurance companies carrier must pay for anyone who submits who has a policy with you for anyone who submits for a COVID 19 vaccine, can the employer object to pay to that policy?
- [51:18]
Chief Justice John Roberts
Just to sort of my word, I think the answer is no. And if I'd like to explain kind.
- [51:22]
Linda Greenhouse
Of how I would work through that.
- [51:23]
Noel Francisco
Mr. Clement, exactly the same rules that apply here here to contraceptives.
- [51:30]
Dahlia Lithwick
I wonder what you made of Paul Clement's answer, Linda, that maybe there just is a greater government interest in getting the vaccine out.
- [51:40]
Linda Greenhouse
Paul Clement seemed to be caught a little bit flat footed by a hypothetical that should not actually have surprised him. I mean it was a really good hypothetical, but one that he might well have anticipated and he was scrambling a little bit. But obviously the answer would be even if you assume that the Religious Freedom Restoration act puts a heavy burden on the government to justify anything that would seem to go against somebody's religious preference. There's a compelling state interest in knocking out this virus. And so of course the government would prevail. I mean there's not the slightest doubt about it. He eventually actually I think came to that, but it took him too long. And that showed how deeply in he is to his clients commitment to hey, don't tell us what we have to do. And I want to mention one other thing about the argument that really startled me. It came from Justice Gorsuch, not surprisingly, interestingly, when he says to the Pennsylvania lawyer, well, if there's so much discretion given to the health, the agency within HHS that was charged by the Affordable Care act itself with determining what were the essential services that employers had to provide. If there's so much discretion given to them, and they came up with contraception, maybe that's an undue delegation. Now, for our listeners, for whom that's not a red flag kind of code word, the notion that Congress gives too much authority to the administrative agencies. Let's say the administrative state goes back to the New Deal, and the last time anything has been struck down as an undue delegation was 1935. Actually, last year there was a case presented to the court that would have allowed them to revive the undue delegation analysis, and it came within a hair's breadth of prevailing. Only Justice Kavanaugh was not participating in that particular case. And Justice Alito wrote a brief concurring opinion saying, I would go there, I would go to undue delegation, but this isn't the right case. And, and we don't have a fifth vote because Justice Kavanaugh wasn't on the court at the time of the argument. So for Justice Gorsuch to raise that within the framework of this argument was truly surprising, and I don't think it was insignificant.
- [54:33]
Dahlia Lithwick
Yeah, I was going to ask you about this sort of interplay between the claims that Noel Francisco was making about agencies have all this power and authority to do what they want, and if an agency can create exemptions, they can also create more exemptions and they can do whatever they want. And it did seem to fly in the face of this attack on the administrative agencies that we're really seeing, not just with this non delegation analysis, but just generally this very, very increasingly loud drumbeat that agencies should be more or less eviscerated. And I was also struck by that as it was this sort of through note at the bot of the argument that unless you were listening really carefully, you maybe didn't catch.
- [55:21]
Linda Greenhouse
That's right. And of course the conservatives are a little bit stuck. They've got to thread a needle here because they want to say that the agency here had a lot of authority to create all these exemptions, but yet they have the administrative state in their sights. And the undue delegation doctrine is a potent weapon to take down the administrative state. So somewhere in between, you know, we had a lot of delegation here and we love it, but actually we don't like a lot of delegation because we don't like administrative agencies. It's going to be absolutely fascinating what they do with that and where that goes.
- [56:02]
Dahlia Lithwick
So before I let you go, Linda, I guess the last thing I really want to flag is, and I think you raised this, that it certainly Looked as though Justice Kagan, Justice Breyer, maybe the Chief Justice a little bit, was maybe working their way towards some consensus. That looked a little Zubiky, right? It looked a little bit like what we saw in 2016, where maybe there's a way to not jump squarely into this issue of, you know, this ongoing clash between religious liberty and freedom on the one hand and just, you know, basic civil laws on the other, and that maybe the court just kicks this away and says under this Administrative Procedure act, you know, this just wasn't, this rule change wasn't appropriate. And they don't fuss with the line post Hobby Lobby. They don't fuss with deep changes to how we think about the Religious Freedom Restoration Act. Is that, I guess I'm saying in the context of a huge term and we have so many other, you know, Title VII and June medical and these financial records cases. I mean, this is a monster term. Do you think that the, the court is going to do a little bit, some version of what they did in Zubik, which is just wait on the big, big issues, knowing that it's coming back in a year and two years and just do something sort of fiddly in the middle to make this go away for now?
- [57:33]
Linda Greenhouse
Well, I'd like to be able to think that, I mean, I guess maybe one thing that's possible, the moral opt out, the moral exemption is safe sitting there. I mean, it's fully half of the case, although it didn't get, you know, anywhere near half of the argument. I mean, they've got to get rid of that. There's no basis for that. There's no findings. There's no, I mean, good grief. If, you know, I don't like birth control and I'm an employer of thousands of people and you know, too bad for them. I'm sorry. So, I mean, that's not covered by the Religious Freedom Restoration Act. It's not covered by anything. It's absolute pure defiance of the will of Congress in having passed this law that's been upheld twice by the Supreme Court. So if there are five votes to uphold that, we're in even worse trouble than you, and I think we are. Whether they'll find an Administrative Procedure act opt out. Do we count to five on that? It's possible, it's possible. But, but boy, there'd be a lot of blood on the floor if that's the way it turns out. And of course, one thing we haven't mentioned, I mean, here they're hearing arguments into mid May. Usually they hear arguments toward the not quite end of April, and usually they finish their term in the closing days of June. I don't see how because of the big cases coming up next week, the Trump financial records cases and another big relation case case, Dalia, do you think they're going to get out by Labor Day?
- [59:08]
Dahlia Lithwick
I'm trying to figure out how these particularly because all of these cases are thorny and hard and we've got a bunch that are thorny and hard that we're still waiting on. So I think the term I don't know, I think the term goes and we haven't talked about the fact that they kicked the Affordable Care act case to notice next to next term, which means that do they just go straight from ending abortion into ending the Affordable Care Act? I think it's you're right. There's a huge log jam and I don't know how. It's certainly not done the end of June and I guess nobody's traveling anyway. So maybe they sit at home and flush their toilets and, you know, get through. And they get through in mid August. It's a good. Yeah.
- [59:57]
Linda Greenhouse
I mean, you and I have nothing else to do. Right. Exactly.
- [59:59]
Dahlia Lithwick
What else? You know, I'm not going anyplace. We'll just sit in my basement and read opinions through August. I think Blood on the Floor is a very fittingly Shakespearean Act 5 Scene 5 Place to Leave us today. Linda Linda was the New York Times Supreme Court correspondent for almost three decades, for which she won a Pulitzer Prize and myriad other awards. Right now, she is the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School. And you can always find her column on alternate Thursdays about the Supreme Court in the New York Times. Linda, it is good to see your face. It is great to hear your voice. And I know that it is just not easy doing this from home. So thank you very, very much for being with us.
- [60:47]
Linda Greenhouse
Oh, thanks for the invitation, Dahlia. I always enjoy talking to you.
- [60:53]
Dahlia Lithwick
And that is a wrap for this episode of of Amicus. Thank you so very much as ever, for listening and thank you so much for your continued letters and questions. You can always keep in touch@amicuslate.com you can also find us@facebook.com Amicus Podcast. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two short weeks. Hang on. In.