← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Breakfast Table Redux
00:56:13
Dahlia Lithwick, Mark Joseph Stern, and Pam Karlan chew over the Supreme Court term just completed.
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- [00:02]
A
Hi and welcome to Amicus, Slate's podcast about the U.S. supreme Court. I'm Dahlia Lithwick. I cover the courts and the law for Slate magazine. The term ended this past Monday, unbelievably, with a slew of decisions, some of which you probably didn't hear about, and determinations of which cases to take next year, plus an order in the ongoing travel ban litigation, plus the announcement or non announcement that there would be no retirement from Justice Anthony Kennedy. And because it is the last week of the term, as is our want here at Slate, we scrambled the greatest legal minds of our time to do what is called the breakfast table. Week long discussion of the final cases with five Supreme Court watchers. But as is not our want, they have been, in the manner of an Agatha Christie novel, picked off one by one. So Judge Richard Posner was quickly summoned to his judicial and other obligations. And then Walter Dellinger on Monday suffered a leg injury which has benched him. And so in the manner of an Agatha Christie novel, now we are three. And yet great minds they are. So, Mark Joseph Stern, my colleague at Slate, fellow court watcher, welcome back to the podcast.
- [01:18]
B
Thank you so much. Always a pleasure to be here. Slightly embarrassing to be called a great legal mind alongside one of the greatest legal minds, but I'll take it.
- [01:27]
A
And the other great legal mind is Professor Pam Karland of Stanford Law School, formerly of the Justice Department under Obama and a tremendous oral advocate in her own right. So Pam Karlyn, welcome to Then There Were Three Breakfast table edition.
- [01:44]
C
Well, like Mickey Rooney, I'm just happy to be in the show.
- [01:47]
A
Okay, so there is so very much to talk about, but we'll try to proceed it in some kind of orderly fashion, my friends. And so I wanted to open this end of term discussion with what we in the business call a framing question. And that is just this, this time last year, in the first week of July, end of June, the Supreme Court was really limping and bruised and bleeding. We were one man down. Justice Scalia had died. We had this gaping vacancy and no expectation it would be filled with Merrick Garland. We had Ruth Bader Ginsburg hurling insults at Donald Trump, Donald Trump hurling insults back at Ruth Bader Ginsburg. Senate Republicans insisting, eh, eight is enough and six is better. And cases that just got bounced away, pushed away or not resolved. So if the real holy grail of the US Supreme Court is in fact public legitimacy and respect, are they back in business this term? Are things looking sunny in terms of restoring their grandeur and gravitas Pam?
- [02:53]
C
Well, one of the things is that because I think the public probably hasn't seen many cases this term to pay attention to, the court has not been really in the public eye in the same way, you know, until the last day of the term when the court issued the decision sort of modifying the ban in the travel ban case. There wasn't that kind of focus point that there was last year. And one of the things I think people haven't noticed yet, and Mark did a phenomenal job of this in his post in the Breakfast Club yesterday, is just what a presence Justice Gorsuch is turning out to be.
- [03:34]
A
Well, Mark, that was actually the question I was going to ask you, because I think that if the real takeaway of the 2016 election is, hey, elections matter and they matter for the composition of the Court, then your piece yesterday really, I think, puts the coda on that story, because you did a pretty spectacular job of you and I, you may remember, had a lengthy he's not Lucifer conversation about justice then Judge Gorsuch before he was confirmed. I think effective yesterday, you might be on the Lucifer bandwagon.
- [04:09]
B
Yes, this week has served as a kind of apology tour for me since I did give then Judge Gorsuch the benefit of the doubt. When his name was first revealed in that big ceremony at the White House, I thought, well, oh, thank God he's not Judge Pryor. Thank God he's not Judge Hardiman. He's a known guy. He's not a stark raving lunatic. We should be grateful and give him the benefit of the doubt. That was my position then. I know I irked a lot of liberals. I am now here to say I am sorry. I was very wrong. His votes are what matter, and his votes thus far have been just catastrophic to what I call the progressive constitutional project. He is an arch conservative, almost certainly to the right of Justice Alito. And I think that we can already see him pulling the center of gravity on the court even farther to the right than where it already was with Justice Scalia on the bench.
- [05:09]
A
Pam, talk a little bit about that, because I think that, you know, for the last couple of years, we tended to say, oh, there's Justice Scalia sort of at the right wing of the Court, and there's Clarence Thomas off in some other place that is far to the right of Justice Scalia. And yet now we're seeing, at least with the handful of evidence that we have of where Justice Gorsuch is going to be, suddenly it seems like Justice Thomas has something of a mini me or a sidecar. At the very least, it seems like Gorsuch really is going to lo locate himself right there with Clarence Thomas.
- [05:43]
C
Well, I think in one way that's right. Justice Gorsuch, I think, you know, and we got a little bit of a sense of this from the separate opinions that got some attention during his confirmation hearings. I'm not sure how much he believes in stare decisis on big constitutional questions. You know, one of the things that didn't get as much attention as the frozen trucker who got a huge amount of attention or his views on Chevron is that he suggested that he willing to rethink a lot of section 1983 jurisprudence. And section 1983 is a critical statute because it's the statute that allows people whose constitutional rights have been violated to sue state and local governments and state and local government officials for violations of those rights and to seek damages. That's where police brutality cases are brought. That's where claims, First Amendment violation claims, especially those by government employees are brought. And I think it's going to be very interesting to see just how much he wants to reconsider all of those doctrines or if you look at yesterday's orders list, he had a significant number of separate opinions there. Some of them, as you kind of were alluding to, joined with Justice Thomas. So for example, in the case about the right to concealed carry, but also, you know, his vote in the Arkansas birth certificate case is really striking. That's a case about whether Arkansas, which already puts the mother and father on the birth certificate, if you have married couples, even if there is the use of artificial insemination, didn't want to do this for same sex couples. And the court as a whole said, look, we decided this issue. And Oberg fell, you know, marriages are marriages and whether the couple is a straight couple or a gay couple, they have to have the same rights. And he said, well, it's not so clear exactly what Oberg fell held on this. And that's really striking. He has a lot of confidence for somebody who joined the court in April.
- [07:52]
A
Yeah. And Mark, I think wrote about this a little bit this week as well. But you know, even when Obergefell expressly says birth certificates are one of those things that we're going to say is sort of a benefit of marriage. And even then Gorsuch is writing an opinion yesterday, dissenting, saying, wait, I don't understand why that' swhy Obergefell even controls, right, Mark?
- [08:16]
B
Yeah, that's right. Which is, I mean, Pam, you said striking that's very generous. I would say deeply disturbing because this draws us back to the stare decisis issue. I don't think that Justice Gorsuch's dissent in the birth certificate case was fully on the level because as you said, Dalia, the Obergefell decision makes this clear. It says states have to grant marriage rights on the same terms and conditions to same sex couples as they do to opposite sex couples. They have to grant the same rights, benefits and privileges that are in the constellation of marriage benefits. And the court even said birth certificates and death certificates are one of those privileges in that constellation. All of that is in Obergefell. This issue has been settled for two years and Justice Gorsuch pretended that it wasn't. He sort of played dumb. I didn't think it was a good look for him or the justices who joined him, Alito and Thomas. And I think it suggests to me not only that he is hesitant to apply Obergefell any further, but that he doesn't really want to apply it at all. And in fact, he would be quite happy to begin cutting back on it, even just two years after it was handed down.
- [09:28]
A
So to both of you, I think one of the themes, at least of this year's breakfast table, and I think maybe even last year's Mark, if I'm correct, is this sort of sense that one of the things that's really happened, and we've seen it now with Justice Gorsuch joining with Justices Thomas and Sam Alito, is we have a sort of newly vibrant kind of far right wing of the court, and we have a sort of left wing of the court. And then we have something that's starting to look like, I don't know, a center. And it's comprised of Chief Justice John Roberts and Anthony Kennedy. And Mark, you're going to stop me in a second and say that's not the center. It's just that the right has moved. And I think that's probably fair. But before we even get there, I think just in terms of this birth certificate case, it's worth flagging that the chief justice who was in the minority on Obergefell, who said, you know, I don't agree with this, nevertheless joins in the, in the Arkansas case to say, hey, stare decisis is stare decisis. This is decided. And so I do think that if we're trying to parse and maybe this is a question for you, Pam, what is going on with John Roberts? What is going on with Anthony Kennedy? Are they drifting left or are they just, just Staying. One of the things we can certainly say is that John Roberts is first and foremost an institutionalist, and he is going to protect institutional prerogatives, even if it means fighting for a case that he didn't even agree with in the first instance.
- [10:54]
C
No, I think you're absolutely right about the chief justice, that he is both an institutionalist and somebody who is in this for the long game. And I think we've recognized that for a long time that he has a strategic vision of where he wants to move the law, and little temporary blips are not going to deter him from moving the law in the direction that he wants to move it. And having a fight right now over whether Obergefell is or isn't the law is nothing but a distraction. And so there's no reason for him to go there. I don't think that the chief justice is moving to the left. I think that some of the cases on the Court's docket this year, my colleague David Goldberg here at Stanford talks about this as the outrage docket, that a number of the cases that were on the docket this year were not the kind of bread and butter conflict among the circuits over how to interpret some narrow provision of federal law, but were cases about real outrages. And the chief justice wrote in some of those cases so that it allows the Chief justice, for example, who's long had a project about racial justice, to write in cases where there's really outrageous racism, like for example in Buck, the Texas case, where the guy's lawyer got an expert to testify that black people are more dangerous, so he can step in in cases like that and say, look, we're against racism on the Supreme Court. We really are, by saying that's what racism is, which then allows the Court to move to the right on issues where the racism isn't quite so clear.
- [12:32]
A
I think that's right. And I think that, you know, I always hearken back to what John Paul Stevens said when he was asked, did you drift to the left? And he said, no, the court torqued around me to the right. I moved nowhere. And I. That the mere fact, and I think Mark suggested this this week in the breakfast table, the mere fact that we're saying that John Roberts is drifting leftward is part of the problem. It shows where the new center is. But I think, Mark, on this point of racial awareness, you've argued, I think, persuasively, that Justice Kennedy is actually finding religion when it comes to some of these race cases. Right. I mean, he is, in fact, not staying still as a new right emerges. But he is, in fact, someone who's starting to get it on R.A. i think so.
- [13:18]
B
And I think the big turning point for him was probably the affirmative action case last term, the Fisher case, because he wrote the majority decision upholding the University of Texas affirmative action plan, which used race as a subset of a factor of a subset of a factor. A very minor point, but Justice Kennedy wrote to uphold it. And I'm pretty sure, almost everyone is pretty sure that he would have voted to strike down this law even 10 years ago. If you read his dissent in Gruder v. Bollinger, you know, it's pretty clear that the guy does not like affirmative action plans that even use the word race. He wants this kind of holistic, gooey, confusing, squishy standard. But he flipped last year on that issue, and I think we should call that progress. And I also think that this year, his decision in the racist jury case, the Pena Rodriguez case, he wrote a very, very sophisticated decision explaining why if there is evidence of racial bias in the jury room during deliberations and a juror comes forward to blow the whistle even after conviction, there has to be some recourse for the defendant. He has to be able to put that juror on the stand and ask for a new trial, even if there are rules that generally prohibit that. And Justice Kennedy's opinion in this decision is. It's very gratifying for those of us who are fans of, say, Akhil Amar and the kind of liberal originalists, because it adopts a theory for the Court that the Bill of Rights has to be read in the context of the 14th Amendment, which is, of course, what applies the Bill of Rights to the states. And so Justice Kennedy says, look, the Sixth Amendment guarantees you a right to an impartial jury. We have to read that through the lens of the 14th Amendment, which was primarily designed to eradicate rights. When we read these two provisions together, it becomes clear that we have to allow this to happen. We have to push away this rule that prevents impeachment of a verdict and let the whistleblowing juror bring these facts to light. I thought that was one of the most important racial justice decisions in several years. And I think it's clear proof that Justice Kennedy is drifting on this issue.
- [15:41]
A
Pam, do you agree? Is Justice Kennedy, in fact, hiking left?
- [15:46]
C
I don't know that he's hiking left so much as, you know, he's always, I think, had a belief in racial justice. It's very hard to know what to think of his decision last term in the Fisher case, the Texas affirmative action case, because he spends a lot of time in that decision saying, well, I'm just telling you that under the circumstances of this case, I don't think we can structure, strike down this use of affirmative action by Texas in the past. But he leaves open even there the question whether Texas can continue to have this affirmative action program. And you know, Pena Rodriguez, which was a case that our clinic litigated, was such an outrage that it's really hard to see an argument that he would buy given his concern with dignity and fairness that says we know this jury had someone on it who made totally unacceptable racist remarks in the jury room, but we're going to let this conviction stand. That's what I mean by the outrage docket, that if you confront justices like Justice Kennedy with something that's really outrageous, they will find a way to make it clear that the Constitution doesn't allow that whether subtler versions of the same thing will have the same effect on them. Another question entirely.
- [17:12]
A
Right. And also I think it's, you know, the Supreme Court does not exist to do case by case error correction for outrage is right. I mean I think in a deep way it's not fulfilling what they're meant to be doing, which is, you know, not sort of being a supercourt to correct for, you know, one tainted juror, but to set standards.
- [17:31]
C
Well, I will, but one thing I will say about that though is that the Supreme Court is there to set a tone for the federal judiciary about these things and for the state judiciary. And so when the Supreme Court says this is totally unacceptable, that sends a message to lower courts about what they should be doing as well.
- [17:47]
A
Fair enough. So before we leave Justice Kennedy to talk about cases. Ah, Justice Kennedy, he, I don't know about you all, but I think he sent most of the court watchers in this country into some kind of like freakish shock state in the last few weeks with rumors and I shouldn't say he sent us cuz he didn't do it, but the rumors that he was going to step down this week. Do either of you have any thoughts about either? What it means that I feel like we are, you know, it's like the czar, you know, like the entire country is governed by one 80 year old man and we are all in terror of his ever stepping away. But what does it mean that Anthony Kennedy holds the fate of the entire country in his 80 year old hands?
- [18:33]
B
You know, I think that we have an email chain, Dalia, that develops A pretty good theory of how these rumors may have gotten started in the first, first place, which is that there may be some bad actors here who really want Justice Kennedy to step down, who want to create that vacancy for Trump, and who therefore sort of float these rumors, legitimize them, and force Kennedy himself to grapple with the idea if perhaps he had been pushing it off or trying not to think about it before. Who knows if that's the case? Who knows if this was just a wild hare that got built up even though it was never anything. The fact of the matter remains that, yes, Kennedy is the czar in some very important respects. He decides constitutional law for the most part. But that is, that has been true ever since Justice o' Connor stepped down. Kennedy has been the swing justice for more than a decade now. I think we're all pretty used to it. It's just a bit of a rude reminder when we hear these rumors of his retirement and suddenly snap our heads up and think, think, oh, my God, what does the court look like without Justice Kennedy? And people with, you know, left leaning judicial philosophies are aghast by that thought and especially horrified to imagine Donald Trump appointing Justice Kennedy's replacements. The alleged and admitted sexual predator appointing a replacement for a man who spent his career promoting human dignity and equality. It's a pretty horrifying thing to think about. So nothing much has changed in that regard. Kennedy still holds all of the cards, but he is going to turn 81 soon. And I think this is going to be a going concern at the end of every term, moving forward, we're all going to be whispering to ourselves, oh, my God, what if this is finally it?
- [20:26]
C
Well, and I'll just add here, we don't know whether he's going to retire or not. All we know is he didn't retire yesterday. And like Mark, the thought that, that Donald Trump could appoint another justice to the Supreme Court, whether it's replacing Justice Kennedy, Justice Ginsburg, Justice Thomas, you know, we've seen now with Justice Gorsuch that a particular part of the conservative legal movement has control over this administration's judicial nominations. The elimination of the filibuster means that at this point, it's unclear whether there's any way to stop even somebody to the right of Justice Gorsuch, if indeed there's room there for somebody on his right. And it's just a reminder to go back to something you said earlier, Dalia, that elections matter. And the real question, I think, is whether there will be another vacancy on this court before the American people get rid of Donald Trump, either through an election or an impeachment.
- [21:36]
A
So let's talk a little bit about the cases because believe it or not, there were some big developments this week. And I think we need to start with the travel ban because clearly that was to the extent that we had a blockbuster. That was a blockbuster. Mark, talk a little bit. You and I wrote about this. This is a funny case because both sides came out saying they won, right?
- [21:57]
B
Yes. And it's not really clear who actually won. It's sort of an optical illusion. It depends on where you stand. But basically what the court did was take these injunctions that had been issued by the lower court that blocked the entire key provisions of the travel ban. One barring entry of citizens from six Muslim majority countries, another one freezing the refugee resettlement program and halving the number of refugees allowed into the country. This year, the lower courts blocked both of those in their entirety and what the Supreme Court did by a 6 to 3 vote. And we'll talk about that breakdown in a sec. The court narrowed those injunctions so that they only apply to individuals with a bona fide connection or relationship to an individual or an entity in the United States. Meaning it seems, although it's not super clear, a family member, a close family relationship, an educational institution, a job offer or something like that. And so people who are already in the process of traveling to the United States, who are going to come here, who have their papers all and order, they will be exempted from the travel ban, but everybody else will still be unfortunately excluded from the country for 90 days for the residents of six Muslim majority countries and 120 days for the refugee resettlement program. So not a huge win for, I think, opponents of the ban because it will still affect millions of people, but a qualified victory for the plaintiffs and for maybe the rule of law, because at the very least, you won't have this egregious situation we saw in the first travel ban of people with visas in hand, with family members waiting for them at the airport, getting locked up in detention and deported back to where they came from.
- [23:55]
A
Pam, do you agree? My sense is that now that DHS and the State Department get to figure out this question of what is a bona fide relationship, what is a bona fide family member, what is a bona fide offer from a university, it feels like we could have some chaos at the borders, right, where we have DHS issuing guidelines and folks just sort of on the fly trying to determine what the burden of proof is this has some possibility for mayhem? No.
- [24:23]
C
Yeah, it does. Because, you know, the court says, well, if it's a bona fide relationship, but we just want to kind of caution you. There's this one sort of interesting line. We just want to caution you that you can't make you can't, like, create a relationship for the purpose of getting around this. And so it'll be interesting to see, you know, what happens. It'll be interesting to see what kind of instructions the administration and the people at the top of the administration give to the people in the field about what counts as a bona fide relationship. So, you know, we could see a whole lot of litigation going on over the summer. And the other thing that was interesting, of course, is that in the order granting certiorari, the court also says, we want you to address the question whether this all is moot. That is, by the time the Supreme Court hears oral argument in the fall, the 90 days and the 120 days, certainly by the time the court issues a decision, may well be behind us. And if the whole point of the travel ban was to give the government time to develop a real program, they better have that real program in place by the time the court gets back to here oral architecture.
- [25:39]
A
So this becomes a Pyrrhic victory right where it looks like, I mean, certainly the administration and Jeff Sessions are saying, hey, this was a big, big win for, you know, the kinds of unbridled executive power that the president is seeking. And yet I think between and this is important, we probably should say it. This is a ruling on an injunction. Right. This is not a ruling on the.
- [26:01]
C
Merits on a preliminary injunction even. Right. Which is just about how likely is it that you will win the case in the end and that we need to now to make it fair at the end of the day.
- [26:14]
A
So, Mark, here's a good point for you to talk about Clarence Thomas, who in his little he writes on behalf of himself and Neil Gorsuch and Sam Alito, and he says no, it's clear based on this per curiam unsigned opinion that we all agree that the likelihood that the president is going to prevail is really high. Of course, that's not what the per curiam says. Talk a little bit about what Justice Thomas is doing there.
- [26:36]
B
Well, it's weird. It's kind of a Scalian maneuver to me, reading into the procurement opinion, something that's not actually there, which is a tea leaf that Thomas divines that says we're eventually going to shoot down the challengers in this case, I don't really see that in the procurement opinion. What I see is a somewhat political compromise dressed up in the language of deciding a preliminary injunction. You have the balancing of the harms and the equities and all that stuff. But it seems to me to be primarily a political baby splitting exercise. We're going to make sure that people with real relationships can come in, whatever that means. But we aren't going to overturn the entire order, at least without a hearing on the merits. So what Thomas is doing here is trying to stack the deck, trying to telegraph first of all to the plaintiffs, hey, you're going to lose. You should be really sad and upset. And also I think, telegraph to the government, you've got a really strong argument here. We support you, the three horsemen over here on the right, and we think that you're ultimately going to prevail, even though none of that can be gleaned, I think, plausibly from any of the language in the per curiam.
- [27:52]
A
Pam, I wanted to ask you one question. You know, the ninth Circuit, particularly when they upheld the injunction in this case, were at pains, I think, to find that, you know, there's nothing in the order itself that explains why these six countries, why not the seven countries, why not 12 countries, why not two countries? You know, the government did not do a great job in this case of really refining why this ban, why these people. It's interesting to me in a weird way, I understand that the court was trying to say, look for someone to be a plaintiff in this case or to be spared the travel ban, they have to have some connection to the United States and that's why we're going to have this new bonafide relationship test. But it does seem to me that it does doesn't solve the problem of the underlying question, which is, hey, why do we think that people, just because they have an offer to come speak at a university here or to come work for a tech company or they have a mother in law, those people are not more of a danger under whatever standard the government is using than other folks. I mean, this doesn't really solve the underlying problem with the travel ban versions one and two, which is there's no real nexus between the folks who are being locked out and terrorism. Right?
- [29:12]
C
Well, that's absolutely correct that you could read the fact that the Supreme Court is saying let the mothers in law and the students and the tech workers into the United States as a way of saying we don't actually see why there's any basis for this travel ban. And here's a group of people where we think it's obviously unfair not to let them in. And that may be a sign of where the court, or at least the majority of the court is thinking about this, which is we don't really see any point to this ban. But rather than slapping the President down on a cert petition, which is a pretty bold move by the court because almost always when the Justice Department comes in and says this is a really important case, you should take this case, the court takes it. The court takes the case and takes away from the government as much as it feels it can do at this early stage, which is to say we don't see how the mother in law or the student is a danger simply because of the country they come from. And we'll give you a little something now because we generally are quite deferential to the government on immigration related issues. But we'll see you later.
- [30:29]
A
I wonder if both of you might agree that having talked as we did earlier about John Roberts, the Chief justice, as an institutionalist, as somebody who first informed foremost wants to protect the manifest obligation of the Court to speak on these issues, that what he did was this kind of deft move where he said, okay, let's be clear. The Court gets the last word on this and we're gonna do something that doesn't lead the President to tweet that we are a so called Supreme Court. We're gonna even let him walk around saying he won a unanimous majority opinion 90 that he has unbounded powers. But at the same time, we've significantly smaller and more confusing than anyone expected. And so we've spoken, we've laid down a marker, but tune in in October to figure out maybe the whole case is moot. So in that sense, it's a pretty masterful job of being in the game and yet not making a call and not really tipping a hand, but nevertheless signaling to the President that at the end of the day, we're in this too. Right?
- [31:39]
B
You know, Dalia, I agree with you completely about the strategy. I do see fingerprints of Justice Breyer on the procureum itself. Pam and Dalia both feel free to argue with me. I think this was a combination of the Chief Justice's political cunning and sort of crafty ability to maintain the Court supremacy, often without deciding some big issues, and a combination of data and Justice Breyer's ability to carry on Justice Oconnors baby splitting tradition, giving both sides pieces of what they want, leaving the broader issues to be resolved for another day and then disappearing for a couple months and hoping everything gets sorted out.
- [32:22]
A
So I want to turn now to what I see as a big theme of what's coming at the Supreme Court. And we've talked about this a lot on this show, particularly with respect to Neil Gorsuch coming onto the court. And that is just this fundamental collision that is, I think, impending between claims of religious freedom and liberty on the one hand, or discrimination towards people of faith on the one hand, and just basic neutral civil rights laws on the other, or anti discrimination laws on the other. And we've seen the first flickers of this. We saw it in the Little Sisters case last year. We saw it in Hobby Lobby. And then this raft of questions that have come up in the last couple of years that the court has not really reckoned with, involving cake bakers, involving florists, involving pharmacists who don't want to provide what they see as abortifacients, and on the other hand, just basic public accommodations laws, civil rights laws. And I do think that this is a big project for the Roberts court going forward is to kind of tweak the line between those two things. And I do think there is this feeling, and we hear it really, I think robustly from Sam Alito, that, you know, the single most put upon minority in the United States right now are Christian religious dissenters. And so I wonder if either of you wants to talk either about, you know, the decision to take the cake baker's case from Colorado next term, which is going to really, I think, put that issue in the crosshairs, or Trinity Lutheran, which was a decision that came down on the merits to the extent we had a blockbuster this term, I guess it was Trinity Lutheran. But does this start to tee up, this, this kind of collision that I'm describing?
- [34:14]
C
PAM yes, Masterpiece Cake is that collision. You know, it's a collision between anti discrimination law that says if you're running a business in Colorado, you can't discriminate on the basis of a variety of different characteristics, race, sex, sexual orientation and the like, and the claims of religious people who own businesses that they should have the right to discriminate because their desire to discrimin is based on religion as opposed to something else. Now, we've seen these arguments in the past. Some of these arguments were actually made about the Civil Rights act of 1964 and the Public accommodations provisions there, which were about race, not about sex or about sexual orientation. But it is an argument that we've seen before And I think the conservatives are likely to vote in favor of religion and say that religious objections should trump anti discrimination norms.
- [35:18]
B
Yeah, I agree with you completely. I think the question is, who are the conservatives here? Does Justice Kennedy qualify? Right. And I am cautiously optimistic that presuming he remains on the court, which I think he will, that Justice Kennedy will come down on the side of civil rights law here. Obviously, obviously he has a mixed record. If you look at Hobby Lobby and if you look at Boy Scouts v. Dale, which is a different situation but analogous, he does sometimes side with the religious dissenter over non discrimination. On the other hand, you also saw last term this case about Plan B where Washington State required all pharmacies to carry Plan B mercury emergency contraception. And three of the justices, Chief Justice Roberts, joined by Justice Thomas and Justice Alito, who wrote the main opinion here, said, look, we think that we should take this case and basically smack down this law, a simple law, just requiring emergency contraception at pharmacies. These three justices said we should smack it down because it's religious discrimination, it's targeting Christians and discriminating against them. But Justice Kennedy did not join those three in voting to take the case. And I take that as a good sign. Maybe I'm just desperate for something to hang onto here, a little bit of hope. But I took that as a sign that Justice Kennedy is not willing to look squarely in the face of a clash between non discrimination and religious objection, religious discrimination, discrimination, and side with the religious discriminators and leave the door open to basically an assault on the entire edifice of civil rights law in this country.
- [37:04]
A
So that brings us, I think, to Trinity Lutheran, which is basically a question arising under Missouri's state constitution, which bars the state from taking tax dollars and giving them to churches. And the issue in Trinity Lutheran is that you have a church that has a preschool and they apply for program, a state program that takes recycled tires, turns it into rubber surfacing materials for playgrounds so kids don't bonk their heads when they go down the slide. And Trinity Lutheran is told, no, you are not eligible for this program, even though you qualify and very highly qualify because you are a church. And this violates the state constitution. In a 7 to 2 ruling with a very perplexing footnote about the scope of the case, the court says, absolutely, Trinity Lutheran is eligible for that money. And to say that they cannot be eligible for that program is to discriminate. Pam, do you want to talk a little bit about the case and what it's very Hard for me to tell, based on the footnote and the concurrence, whether this case is a sort of harbinger of religious freedom claims to come or just a case about rubber stuff in playgrounds.
- [38:19]
C
You know, it's really, really hard for me to say because among other things, it was interesting to me that the Court actually decided the Trinity Lutheran case, since by the time, you know, the Court had granted cert on this case when Justice Scalia was still on the court, and then it postponed for basically 15 months, scheduling oral argument in the case, which is very rare and was kind of telling. And I thought that was because the court was divided 4 to 4 or thought it would be divided 4 to 4 if it actually heard the case. Then it scheduled the case after, you know, Justice Gorsuch was confirmed for the Court. The Chief justice kept the opinion for himself, which is, I think, an important signal of something. And he has that footnote in his opinion that says this is about expressed discrimination with respect to playground resurfacing. We don't address religious uses of funding or other forms of discrimination. I mean, it's hard to imagine the Supreme Court really thought playground resurfacing was a critical question. And so, you know, I think this is a pretty narrow opinion, you know, on a program that no longer exists. You know, and in that sense, it's the flip side, in some ways of something we were talking about a little bit earlier, which was Justice Kennedy's opinion in Fisher last year, which said, we're just talking about the University of Texas affirmative action program as it existed in 1997 or whenever it was that Abigail Fisher applied to the University of Texas. So I don't know what to make of the fact that the Court insisted on hearing this case and then just basically came out and said, if you've got a program that everybody can apply to to get used tires, why would you say that a church playground can't apply?
- [40:18]
B
Right. And Justice Sotomayor in her amazing dissent says there's a reason why it's called the estate establishment clause, which the justices in the majority don't really attempt to answer. I thought it was odd that neither Roberts nor Thomas nor Breyer nor Gorsuch, in any of their separate opinions striking down this program, tried to answer to Justice Sotomayor, who said, look, this is a clear cut case of an attempt to funnel taxpayer dollars to a religious institution that by its own terms, according to Trinity Lutheran, uses this playground as part of its proselytizing mission. The kids go out on the playground and they participate in some kind of religious activities. We aren't sure what. The Chief justice denied that, but Trinity Lutheran itself acknowledges that the playground is part of its ministry. And so Justice Sotomayor says this is, if we look at it correct correctly, an Establishment Clause violation that the plaintiffs are asking for here. They are asking this court to redirect funds from taxpayers to a religious institution to further its religious mission. That is not supposed to be allowed. So it is especially astonishing that this court said not only that it's allowed, but that it is somehow required because refusing to subsidize Trinity Lutheran somehow violates their right to the free exercise of religion. That, to me and to Justice Sotomayor is a very bizarre claim.
- [41:50]
C
I mean, I think part of the problem here may have come out at the oral argument, which is how do you decide where the line is between things that of course, the government can give to religions, like, for example, fire and police protection, where it would clearly violate some form of anti discrimination law, I think, to say, well, we'll provide fire protection to put out a fire, except if you're a church. And, you know, and so there it's clear the government has to provide the services even to religious organizations, even to, you know, preventing the destruction of the property on which they do nothing but proselytize. And cases which I think everybody would agree violate the Establishment Clause, which is, you know, Trinity Lutheran applies for a subsidy for its ministers to go and proselytize, which I think, you know, maybe you'd get one justice to, to say that was okay, but you wouldn't get more. And so it's actually, it's a line drawing case. And I think some of what the Chief justice is doing in that footnote is saying here it's really hard to see how the government is benefiting religion very directly by giving the tires to everybody who qualifies for the tires.
- [43:08]
B
Yes. And that's Justice Breyer's concurrence in the judgment. Right. He's saying, yeah, and that's kind of.
- [43:13]
C
Where, and you'll remember that's kind of where he was in the Ten Commandments case involving the Ten Commandments Monument on the Texas State House grounds, which is, oh, come on, this just doesn't seem very big. And I think Justice Sotomayor in her dissent is pointing out this may not seem very big on its own, but just you wait to see what the next case is going to look like.
- [43:35]
B
I especially enjoyed Justice Sotomayor's footnote in which she says, C for Nash A classic church state separation decision from 1963, as if to say, look, these cases are imperiled. This long line of precedent is imperiled by today's decision. It may seem benign and commonsensical, but in fact it is beginning the process of cutting back on a long line of really important church state separation cases.
- [44:04]
A
I would just add, I think that one of the things that's really striking, and we should note that Sotomayor read her dissent from the bench. It's an incredibly lengthy dissent. Not only does nobody acknowledge its existence, it's actually a strikingly originalist dissent. I mean, she really goes back to, you know, this is why state constitutions in the three dozen or so states that really are very, very avid believers, that we don't take taxpayer money and give it to churches. This is why it matters. And so it's a funny little turn that she is not only saying, look, this is tantamount if you give the rubber tire, tantamount to giving pews and stained glass windows, but also, yeah, it's.
- [44:48]
C
Like if you give a mousse a.
- [44:49]
A
Muffin or a mouse a cookie. But I think that she's very clear that this is not her just making stuff up. But as Mark flicks at, this is a long standing anxiety that states have that has a real historic basis. And the originalists are like, eh, I'm okay.
- [45:10]
B
Yeah. Well, I think there are shades of o' Connor there too. Because of course, o' Connor did not come onto the bench as a hard line church state separatist. She didn't become one. But over her tenure, she began to write these opinions that said, look, we have a system that works. We have a system of church state separation that keeps both religion and the state comfortable and happy and protected from each other's influence. Why would we change that? Why would we go out of our way to change this long line of precedence that's created a preference pretty stable and happy system? It might be very different from most of our peer countries that have established churches and so on, but our country has also been relatively free of the kind of religious strife that has plagued these societies that don't have church day separation. And I think what Justice Sotomayor was doing here was similar to that, going back to first principles. James Madison, you know, his famous arguments against subsidized churches, early, early opponents of established churches in the States, these classic speeches that you read in like, you know, footnotes from Justice Stevens classic church state separation opinions. Justice Sotomayor is trying to bring all of that up to date and say this still matters, this is still important. And even though this case seems benign and silly, we have a system that works and the court is trying to change that. This is dangerous.
- [46:39]
A
Let me, before I let you go, ask each of you, I think now we are looking at next October. We're gonna have a travel ban case and gerrymander cases and the cake bakers next term is going to be a blowout. Is there anything that listeners missed that surprised or alarmed or mollified or did anything that we need to be watching for going into what is going to be a LANDSC landmark term next October?
- [47:10]
C
I mean, I think the interesting thing to watch next October is the extent to which the Supreme Court continues to give deference, as it long has, to arguments from the Solicitor General's office. When you have a solicitor General who is representing an administration that by next October may be in a world of trouble. You know, one of the things that in the Jennings against Randolph case, which they've decided to rehear the case about long term detention of people being subject to deportation, one of the things that was striking is the Solicitor General's office had to write to the Supreme Court and say in the prior case on this issue, a case called Damore against Kim, we actually gave you bad statistics about how long people were being held in detention. And so one of the questions is the credibility that the federal government will have in arguments where, for example, in its cert petition in the travel ban case case, the solicitor General said on behalf of the United States, you can't pay any attention to what Donald Trump said before he was elected president because taking the oath of office changes somebody. And then like a day later, the president tweeted, once again, this is a Muslim ban. I should have stuck with my original ban. I hate my Department of Justice and everything. It's going to be very interesting to see how the court reacts if you have an administration that by October is fighting a whole lot of battles on a whole lot of fronts.
- [48:39]
A
Mark, anything that you're either looking at watching for taking out of this term to import into your intensive preparations for next term, which I know start today.
- [48:51]
B
Well, I think Pam's spot on with.
- [48:53]
C
This question of catchers and catchers reported.
- [48:57]
B
What a lot of people call the presumption of regulation that's usually accorded to the executive branch, does that still apply when the president is a lunatic? That's certainly one question. Another big one is the gerrymandering case. You mentioned that next term the court will hear a challenge to partisan gerrymandering. We've talked a lot about this. One thing that surprised me this term was that in a case that kind of bumps up against that, it was about racial gerrymandering. But racial gerrymandering, that is done using race as a person proxy for political affiliation. Justice Thomas voted with the liberals to strike down that racial gerrymander, saying, oh, you cannot use race as a proxy for political affiliation. That violates the equal protection clause. And Justice Kennedy joined Justice Alito and Chief Justice Roberts to say, oh, well, that's not really what's going on here. We shouldn't worry too much. They're just using partisanship. And we haven't said before that partisanship is a forbidden category in redistricting. That is not the split I would have guessed on that case. And it actually makes me worry for this partisan redistricting case, because Justice Thomas definitely thinks that partisan gerrymandering is a. Okay, Justice Kennedy is the swing vote there. He's written before, quite eloquently and lucidly, I think, about how partisan gerrymandering punishes individuals on the basis of their political affiliation, burdens their representational rights. And so I'm a little less optimistic following that decision than I was a few months ago that Kennedy will do the right thing and vote to hold that partisan gerrymandering can cross a constitutional line and run afoul of the First Amendment.
- [50:45]
C
Can I just jump in there for a second, Mark? Which is, I don't disagree with anything you say about, you know, where Justice Kennedy was in the racial gerrymandering cases, but that may open a slightly different approach in the partisan gerrymandering case, which is one of the things Justice Kennedy really doesn't like is when people talk about stuff as involving race when it's not really about race. And his sense, I think, of the North Carolina case may be this wasn't really a case about race. This was a case about partisanship. And if he had a way of saying this is a bad thing, not because it's racism, but because it's excessive partisanship, that might be an appealing position for him to take. That is being able to talk honestly about the problem in North Carolina being one of rampant partisanship. Now, to be sure, the party affiliations in North Carolina are so closely tied to race that it's hard to disentangle them. But he might prefer to be able to say North Carolina's redistricting here is wrong because it was excessively partisan, not because it was discriminating. On the basis of race.
- [51:58]
A
I think I want to just point out that having just spent the last 45 minutes talking about everything that inflects on current events, from gerrymandering to gay rights to immigration to. To the travel ban, it is quite astounding that the Supreme Court, effective about this minute, will all but disappear from the national discourse until October. In other words, I think if John Roberts true mission is to have the court be in charge of everything, but nobody knows about it, mission accomplished, right? I mean, there's nothing that the court doesn't have its fingers in. And yet, for all intents and purposes, we're gonna talk about healthcare starting tomorrow and not talk about. About any of the Supreme Court issues as Supreme Court issues at all. So maybe I'm answering my own initial, what we like to call framing question by saying he. He's done a really deaf job of putting the court in the middle of everything and yet taking it off the front page here, right?
- [53:01]
B
Well, it certainly helps when the front page is cluttered by total craziness and lunacy. I think that he probably. He doesn't mind the fact that barely anything this term made the headlines. You and I were despairing, Dalia, just last week that there were these important decisions that were hardly even a 12 news. They were being buried in the back of pretty much every newspaper. The travel ban broke through, but beyond that, of course, it's been a sleepy term. I think Roberts loves that he has the court right where he needs it. And so long as the spotlight is off of it, he is a happy camper and he's going to keep plugging along with his project. And he has Gorsuch on his side to help him affect it.
- [53:42]
A
Now, I want to thank both of you so very much. I know this is our super bowl week in court watching land, and you've given us a lot of time. So, Mark Stern, who covers the courts, the law, and LGBTQ issues for Slate, Pam Karlan, who teaches law at Stanford and has been really such an important person in helping me think through these issues in my career. I thank both of you so very much. I wish you a happy summer. And I ordered you to report to training camp the first Monday of October. Thank you very much to both of you.
- [54:16]
C
Thank you.
- [54:16]
B
Thanks, Dalia.
- [54:21]
A
And that is a wrap not only for this episode, but also for this third, what third season of amicus. The end of June has arrived. The Supreme Court is over. And so we are going to make like the justices themselves and get out of dodge, at least for the next little while. But just because we're going to be laying low doesn't mean that we cannot keep in touch. So please drop by our Facebook page, send us some email. We would love to hear about what's on your mind. You can find us@facebook.com amicus podcast and our email is amicuslate.com and we really love your letters. Remember, you can find all of our past episodes on our show page and summer is a great time to catch up on anything that you may have missed. That's all to be found@slate.com amicus and if you're a Slate+ member, you'll also find transcripts there, but wait a few days after each episode posts. Thank you as always to the Virginia foundation for the Humanities where our show is taped. Our producer is Tony Field, Steve Lichtai is our executive producer and Andy Bowers is the Chief Content Officer at Panoply. Amicus is part of the Panoply Network. Check out our whole roster of podcasts at Panoply fm. I'm Dahlia Lithwick. Thank you so much for listening. We love talking to you and we will be back in a few months with a brand new season of Amicus.
- [55:52]
C
Hold on. There's the guy is moblowing right outside my office, but he should be done in like 20 seconds because there's nothing there. There's nothing there. I don't know why he's moblowing and I guess they do it at 7:13 in the morning because they think nobody's here and so wrong. So I'll start over. I'll start over again.