← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Fulton: Bigger Than We Thought?
00:42:56
Religion gains “most favored nation status” at the Supreme Court.
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- [00:06]
A
It's not that the court said that Philadelphia is giving exceptions to others, but not giving exceptions to the Catholic Church. The Court's saying the very possibility of exceptions is what makes this religious discrimination. And that to me is a very troubling holding. Foreign.
- [00:33]
B
Hi and welcome back to Amicus. This is Slate's podcast about the courts and the law and the rule of law and the U.S. supreme Court. I'm Dahlia Lithwick. I cover the courts for Slate. This week was a really, really big one at the US Supreme Court as some of the biggest decisions of the 2020 term came down with some really surprising and interesting lineups. And we are popping the show into your feeds a day early only because Thursday was such a huge decision day. The next two weeks are gonna see the remaining 15 cases decided and we will be watching for our year end breakfast table. But for this show, we're gonna dig into the decisions that came down this week with Dean Erwin Chemerinsky, a dear friend of this show, an unparalleled explainer of the law, the Constitution and the Supreme Court. Later on in this episode, Slate plus listeners are going to have a chance to listen to my bi weekly behind the scenes banter with Slate's very own Mark Joseph Stern, where we delve into the jurisprudence that we couldn't quite get to on the main show or perhaps were too polite to get to on the main show. If you're not a Slate plus member, your very first month is just a dollar and you can sign up@slate.com AmicusPlus Slate plus members support all of the journalism we do here at the magazine. We are ever so grateful always for that. You can find out more about the perks of membership@slate.com amicusplus and thank you. So let us get this show on the road with me to talk about this week at the High Court. One of my all time favorite amicus guests, Erwin Chemerinsky. Irwin is Dean of Berkeley Law School. Prior to that he was founding Dean and Distinguished professor of Law at UC Irvine School of of Law. Irwin is the author of 11 books, most recently we the People, A Progressive Reading of the constitution for the 21st century. He is the author as well of more than 200 law review articles and prodigious numbers of op eds. He also frequently argues appellate cases, including at the U.S. supreme Court. In 2017, National Jurist magazine once again named Dean Chemerinsky as the most influential person in legal education in the United States. And if you took the bar or are taking the bar, you probably owe him your life. Erwin Chemerinsky, welcome back to Amicus.
- [03:04]
A
Thank you for having me. And thank you for that incredibly sweet introduction.
- [03:07]
B
I feel like I cut out all the good stuff, but I suppose it at least hints at why you're the person I most wanted to be talking to this week. Let's start with the two really momentous decisions that came down Thursday morning. We'll do them in order of their birth. The Affordable Care act case, a 7 to 2 decision, the court batted away a challenge that threatened to end the ACA. Again, it held onto insurance for the 21 million people who have health insurance because of the ACA. In the end, it looks like the court doesn't even get to the merits. This is a claim advanced by Texas and 17 other states. The court just sort of bats it all away and says in effect, no standing. Can you talk us through this? Actually would have been hugely consequential. I think at the beginning of the term we thought it was the case of the term. Talk us through what the challenge was and what the court did, of course.
- [04:11]
A
And I think the importance of the case, as you say, is what the court didn't do. It didn't strike down the Affordable Care Act. Everyone remembers that in 2012, the Supreme Court upheld the patient protection Affordable Care Act. The key issue in that case was was whether the individual mandate is constitutional, the requirement that people purchase insurance or pay a tax penalty in 5 to 4, with Chief Justice Roberts writing for the court. The Supreme Court said the individual mandate was a constitutional excise of Congress power to tax for the General Welfare. In December 2017, as part of the tax reform bill, Congress eliminated the penalty for not purchasing health insurance. The requirement is still there, but there's no consequences if somebody doesn't do so. Texas and some other so called red states brought a challenge and said the individual mandate was upheld as an exercise of Congress's taxing power. It's no longer a tax, so it's unconstitutional and that then makes the entire Affordable Care act unconstitutional. The Trump administration came in and also argued the law was unconstitutional. California and some so called blue states intervened to defend the law. On Thursday, the Supreme Court said that Texas and the individual plaintiffs lacked standing to be able to sue. Justice Breyer wrote for the court and he said in terms of the individuals, there's no adverse consequences to them to not purchasing insurance. The penalty was eliminated. And he said in terms of taxes, any financial costs it's incurring are incidental and they probably have to incur them anyway. Bottom line, the Affordable care Act is constitutional, 21 million people get to keep their health insurance.
- [06:05]
B
And I want you to talk for a minute about this standing issue because Justice Alito is very, very exercised in his dissent. And one of the things he is well, if Texas doesn't have standing here, why were we giving Massachusetts standing in an environmental case? And I wonder if there has been some shifting of ground here in standing law that should make states that, as you say, so called blue states that might have otherwise said, hey, big win, realize that there is going to be some reason to think that states are going to find it harder to bring challenges going forward as a state.
- [06:55]
A
In 2007, in Massachusetts vs Environmental Protection Agency, the Supreme Court said that Massachusetts could sue the EPA for its failure to rules to deal with greenhouse gases that are responsible for climate change. That was a 54 decision with Justice Stevens writing the opinion for the court on Thursday. Justice Alito in his dissent says, well, if Massachusetts gets standing to challenge that, then why shouldn't Texas have standing here? I think there's a couple of things. One is the injury is different. I think that Massachusetts could really show that Ed and its coastline was adversely affected by climate change in a way that Texas couldn't show that it was adversely affected by the existence of the Affordable Care Act. But the other is, as you allude to, the composition of the court has changed since 2007. I don't think Massachusetts versus EPA would come out the same way today. And I think then that states need to realize that the Court is likely to cut back on standing for states. What I take from the opinion this morning is the Supreme Court's likely to say standing is analyzed for state governments the same way it's analyzed for individuals when they sue. There's no special ability of states to sue. They still have to show a concrete injury and Texas couldn't demonstrate it here.
- [08:20]
B
Another meta issue beyond the four corners of the opinion is this question of this is a Groundhog Day case. We've been litigating this forever and ever. It's the third time back at the Supreme Court that puts aside all the other challenges. And Justice Alito in his dissent references this as, quote, our epic Affordable Care act trilogy like it's the Lord of the Rings. Does this suggest to you that there's going to be another run at this, or is it the fact that even though this is dismissed on very technical standing grounds, this really does mean the end of ACA challenges? And I guess I'm partly asking you a doctrinal question about whether there's any space left come back. But I think I might also be asking a question with the political valence, Erwin, which is is this just the end of the hysteria about the aca?
- [09:23]
A
I think so. I think you do have to put it in the political context that you allude to. We've got to remember that every Republican in Congress at the time voted against the Affordable Care act when there was the initial set of challenges to it. Every lower federal court judge appointed by a Democratic president, with one exception, voted to uphold the Affordable Care act. And every lower federal court judge appointed by a Republican president, with two exceptions, voted to strike it down. But I think now, all these years later, the political perceptions, the Affordable Care act have changed. It's unquestionably a success. As you pointed out, 21 million people are getting their health insurance through it. It's not as much a success. Is President Obama what it wanted? The Supreme Court back in that 2012 case struck down the requirement that states had to expand their Medicaid program, and a number of states didn't then do so. Had they done so, probably the Affordable Care act would have provided health insurance to 40 or 50 million people, not just 21 million people. But in light of the successes of the Affordable Care Act, I just don't think there's the intense political opposition there was doctrinally. I'm always cautious about saying never, but it's hard for you to imagine the remaining doctrinal challenges of the Affordable Care act that could make their way to the Supreme Court.
- [10:45]
B
And before we leave the aca, Erwin, I guess I want to ask another slightly politically freighted question, but that is John Roberts has been so deft in these ACA cases insofar as he's very, very good at taking seriously what is serious and dismissing what is just crack pottery. And it seems to me that at least in the last ACA challenge, what I heard from him was, and I heard this in the Census case, by the way, please don't lie to me. Please don't be goofy. Don't ask us to carry water for the fringe ideas that come out of the conservative legal movement. I take the movement itself very seriously, but I'm not going to do dumb stuff for dumb reasons. This feels very much of a piece with that Erwin, where it looks like it's a resounding win, but the case was a little bit bonkers to begin with. Serious lawyers left the Justice Department rather than argue this case. Serious conservative scholars who hated the ACA said this this case had no merit. So it feels to me as though John Roberts yet again does this very, very savvy thing, which looks like he's taking a centrist position, when in fact what he' just saying, don't bring me your completely unsupportable crazy theories.
- [12:10]
A
I agree. And yet also to some extent disagree. I agree with you in the sense that John Roberts has wanted to uphold the Affordable Care Act. I agree. In terms of the political context that you identify, and for another reason. We're still in the midst of the worst public health crisis in over a century. It was unthinkable to me that the Supreme Court wanted to strike down a law that writes health insurance for 21 million people in the midst of a pandemic. And yet I think you may be more charitable to John Roberts with regard to the Affordable Care act than I would be. If you go back to the case from 2012, the primary argument urged by the United States was that the Affordable Care act is a valid exercise of Congress power to raise commerce among the states. States look at the extent to which the health insurance industry is a huge part of our economy. And yet Roberts joined with the conservatives in saying that didn't fit as an excise of Congress's commerce power. Also, what the Congress had done is say if states want to continue to receive Medicaid funding, they've got to expand their Medicaid coverage. Congress always is able to put conditions on grants. But Roberts wrote the opinion saying that part of the ACA was unconstitutional and that has a huge human impact in many states that wouldn't expand their Medicaid program. So I'm willing to give John Roberts two cheers for upholding the Affordable Care act, but not all three.
- [13:38]
B
Fair enough. I think probably in the umbrella of things, John Roberts has pulled off more deftly than any of us expected. We have to talk now about Fulton, because Fulton is. And again, I know you're gonna offer two cheers. But as savvy a piece of work as I think I've ever seen from the Chief justice, this is a much anticipated case, Fulton versus City of Philadelphia. We've talked about it a lot on this show, but it seems to me that getting the court to 90 jump on a case that pits these very, very crucial civil liberties versus religious freedom values, and this just looks like a masterstroke. I wonder if you could first and foremost set the table of what the claim was and then we can talk about the ruling.
- [14:35]
A
Philadelphia contracts with social service agencies to do inspections and placements with regard to foster care. Philadelphia says that in order for a social service agency to contract, it has to agree to not discriminate on the basis of race, sex, religion, sexual orientation. Catholic Social Services brought a challenge to this and said because of its religious beliefs, it wouldn't attest that it would not discriminate. In fact, it could not place children with same sex couples. The lower court, the district court in the United States court Appeals to the 3rd Circuit ruled in favor of Philadelphia and against Catholic Social Services.
- [15:14]
B
And I think for me, the template for what the ruling is is just a very, very fact specific answer. It looks like Masterpiece Cakeshop. It looks like we are not going to get to any of the big First Amendment issues. We're not going to get really into the weeds at all beyond saying essentially what the case said in Masterpiece CakeShop, which is LGBTQ interests matter, so do religious liberty interests. We don't so much like the way the city handled that. So this is not in any way a sort of epic ruling on religious liberty. It is not an epic ruling on civil rights. It's an extremely narrow decision that goes to, in some sense, one right only, correct?
- [16:06]
A
I don't think so. Now I want to start with, like Masterpiece Cakeshop, ultimately, those who want to discriminate on the basis of religion prevail. The anti discrimination provision loses. But. But in terms of what Roberts says, Chief Justice Roberts focuses on a 1990 Supreme Court precedent, Employment Division vs. Smith, which is that generally religions don't get exceptions from laws so long as the law is neutral, not motivated by desire to interfere with religion, and so long as of general applicability, religion doesn't get an exception. As you know, that case involved whether Native Americans could have an exception to an Oregon law that prohibited consumption of peyote. What Chief Justice Roberts says on Thursday is that under the Philadelphia law, there was discretion to give exceptions. And he says because there's discretion to give exceptions, this doesn't meet the requirements of the law of general applicability. Therefore, because there's the possibility of discrimination on the grounds of religion, it has to be necessary to achieve a compelling interest, strict scrutiny, and it fails that. So I think this is a bit less narrow than you describe, because I think what the Court is saying is that any law that is the possibility of exceptions is going to be amenable to a challenge based on free exercise of religion and is going to have to meet strict scrutiny. And I don't think the Supreme Court ever said that before.
- [17:39]
B
Well, in some sense, they said it in the COVID cases. Right. I mean, this feels as though this is laying out in black and white what happened on the shadow docket earlier this spring. That is that if there's an exception for anything, now there's an exception for religion.
- [17:57]
A
I think that is exactly the right analogy, and I don't think that that's minor or narrow. What it's saying is that religion has a most favored nation status. So in the COVID cases, they said because a bike shop is open, religion has to be treated the same way. And here the court's taking that a step further and saying if the law even has the possibility of exceptions, granted, it doesn't meet the standard for a law of general applicability. And what laws don't have the possibility of exceptions? What I thought was striking here is it's not that the court said that Philadelphia is giving exceptions to others, but not giving exceptions to the Catholic Church. The court's saying the very possibility of exceptions is what makes this religious discrimination. And that, to me, is a very troubling holding.
- [18:50]
B
Yeah, I was really struck by the ways in which it's an attempt to map this on to that most favored nation status analysis from the COVID cases. It's an attempt to say, you know, if there's an exemption, then there has to be an exemption. There's no exemption. There's discretion. That's a difference. But now it's a difference that has disappeared.
- [19:11]
A
That's exactly right. I mean, it's one thing to say that any exemption that's given to a law has to be given to religion, even if religion's not really the same as the secular entity that gets the exception. But now the court's saying if there's discretion, that's enough by itself, regardless of how it's exercised, to trigger strict scrutiny. And as I said, what's the law that doesn't have some discretion? So when I read the opinion, I read it as much more troubling than you did in terms of expanding the protections of free excise religion and ultimately the ability to discriminate on grounds of religion against gays and lesbians and others.
- [19:52]
B
We will be right back. I a little bit succumbed to the Masterpiece Cakeshop 2 step here, Erwin, which is, I think, expecting a much more serious outcome and possibly expecting, and we should talk about this, that employment division goes away. That didn't happen in a strange way. I think what you're saying, and you're probably right, is that the court just did something that a. It had already done on the shadow docket. It's now done it very explicitly and it's done it without announcing that it's doing it, which is the thing that you are, I think, troubled by and that I may have elided in my first questions.
- [20:36]
A
I agree with that characterization. To start with, I think there was real concern that the Court was going to overrule Employment Division v. Smith, which would then say that any time a law burdens religion, the law has to be justified as necessary to achieve a compelling purpose to meet strict scrutiny. And there was a cert denial a couple of years ago, a case called Kennedy v. Bremerton School District, where four justices indicated that they were willing to overrule Employment Division v. Smith. And on Thursday, Justice Alito wrote a concurrence joined by Justice Thomas and Gorsuch. It's 77 pages long. It read to me like it may have initially been drafted as a majority opinion, and it made clear that it wanted to overrule Employment Division v. Smith. Justice Barrett wrote an opinion that was concurring that was joined by Justices Kavanaugh, Breyer, though Breyer didn't join a key part of it. And it clearly indicated discomfort with Employment Division for Smith, but said to be a lot of hard questions in overruling it. I wonder if there's then five justices down the road to overrule Employment Division for Smith. In fact, I was wondering on Thursday morning why was it that Justices Sotomayor, Kagan and Breyer went along with the majority opinion? And it's a majority opinion that I find very troubling. And it may be they were much happier for the reasons you describe, with what seemed a narrower ruling than the alternative overruling Employment Division versus Smith. And just so that everyone's clear what this means, if Employment Division versus Smith is overruled, then any law that burdens religion is going to have to meet strict scrutiny. So any law that prohibits discrimination can be challenged by those who want to discriminate on account of their religious beliefs. Or maybe another way to put this is there's always a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. Our society for decades has made the choice that stopping discrimination is more important than the freedom to discriminate. What's troubling about the case Thursday in the direction of the Court is I think they're saying discrimination is fine, especially against gays and lesbians. It's the name of religion.
- [22:51]
B
And it's so important what you're saying, Erwin, because I want to agree wholeheartedly When I read it, I thought to myself, I understand why Justices Kagan and Breyer very persistently sign off on these troubling religious liberty cases, on these troubling First Amendment cases. I think there's this question of it could have been so much worse. Let's do this thing of centering how narrow this is. And I agreed with you. I was quite surprised, actually, that Justice Sotomayor seemed to be willing to jump in that pool too. And I also agree, by the way, that if I were looking down the barrel of Sam Alito's 77 page concurrence and thought that was gonna be the majority opinion, I might have signed on to Justice Roberts far narrower opinion. But I do wanna say one of the things that troubled me, even with my slightly less alarmist of the John Roberts majority opinion, is the degree to which it absolutely and completely decentered the dignitary harms of LGBTQ couples. And I thought, at least in Masterpiece Cakeshop, there was real, I almost wanna say, anguish on Justice Kennedy's part that he understood there were real dignitary harms to gay couples seeking to have their marriage celebrated the way they wanted and being refused service. That all but disappears. Other than a feint at that language, it's gone from this case. And it does worry me in terms of the ever disappearing third party harms doctrine, the ever disappearing contraction of who is being hurt and who we see, which is Catholic social services and who we don't see at all, which is these foster parents. And there's really interesting language where the Chief justice justice says the whole reason CSS objects to certifying these couples isn't even because they're LGBTQ couples, it's just because they're single sex and they can't support that. It writes the entirety of the LGBTQ claims out of the opinion.
- [25:06]
A
You're right. And of course, you've got to remember who wrote masterpiece Cakeshop vs who wrote the decision on Thursday. Anthony Kennedy was the author of every Supreme Court opinion in history expanding rights for gays and lesbians. And his opinions did express compassion and the need to stop sexual orientation discrimination. John Roberts has dissented in those cases. John Roberts dissented in Oberfell v. Hodges, the case that protected a right to same sex marriage. John Roberts has always been on the side of free exercise of religion when there's a tension. But there's also a real line drawing issue. If somebody can discriminate against gays and lesbians on account of religion, why can't they discriminate against Blacks on account of religion. Why can't they discriminate against women on account of religion? Once the court has opened this door, they really then said, we favor religious liberty over stopping discrimination against gays, lesbians, or any other group.
- [26:03]
B
And Erwin, just to button this down, am I right to say I said it, and I think you agreed that all of this actually happened on the shadow docket. It happened in the COVID cases. We saw it happen in late night orders, this most favored nation status, which I think effectively ends employment division. Whether or not you overrule it, that's happened. In a sense, this is less than what we saw happening on the shadow docket. And I wonder if, and maybe I'm wrong about that, but I wonder if you want to talk for a minute about what it means that the court has one track in which it's having these conversations openly, another track in which it's handing down orders with perfunctory thinking on these issues.
- [26:51]
A
What you're referring to is especially two cases, one that was the night before Thanksgiving and one the beginning of April, where the Supreme Court, and they're both five to four, ruled in favor of injunctions for religious entities or religious observances, saying it violated free exercise of religion, invalidating restrictions that are imposed respectively by the governor of New York and the governor of California. And when you read the opinions in those cases, and they're the shadow docket, because there was no full briefing and oral argument that came in a request for an injunction, what the court was saying is religion has to be treated not only the same as comparable activities, but the same as virtually all activities. In the former case, the just said, well, since New York allows bike shops to open, it's got to be able to allow religion to open in the same way. In the latter case, it was a restriction on the number of households that could gather together, and it applied equally to religious worship or secular gatherings, like watching a football game. But the court said, but there's stores that can open, and since that's allowed, religion needs to have the same benefit. And so it really was what you and I are both referring to as this most favored nations idea, that religion has to be treated as well as the very best in our society are treated with regard to certain benefits, it elevates religion over other secular activities. I think what the court did on Thursday in the Fulton case goes further than that, because the court wasn't saying here that Catholic social services is being treated differently than other social service agencies. None were allowed to discriminate. Instead what the court said is since there's discretion under Philadelphia law, the existence of that discretion is enough basis for a challenge. So I think this goes not just one, but several steps further than those shadow docket cases.
- [28:56]
B
Before we leave Fulton, I want to ask the question I may have even asked you after Masterpiece Cakeshop, which is what comes next? What is the inexorable next step you've already suggested? And I think you're right, there may be 5 votes just biding their time to do away with Employment Division. Beyond that, if I am Catholic Social Services and I want to kind of persist in my policy of non placement, what do I do?
- [29:34]
A
Now I regard this as Catholic Social Services wins. And so I think in that regard, Catholic Social Services has the ability to contract with the City of Philadelphia notwithstanding its discriminatory policy. But in terms of what comes next.
- [29:48]
B
And that taxpayers fund that, right?
- [29:51]
A
Yeah, that's right. And of course, Chief Justice Roberts brushes aside completely any concern that this is the city contracting and says it still has to meet the same constitutional standards. What comes next? Well, as you know, there are a whole host of cases following Masterpiece Cakeshop that involve things like florists and videographers and stationery stores that refuse to serve same sex couples notwithstanding state laws that prohibit such discrimination. Also, as you know, almost exactly a year ago in Bostock vs Clayton county, the Supreme Court said that federal law that prohibits employment discrimination based on sex also outlaws employment discrimination based on sexual orientation and gender identity. But Justice Gorsuch's majority opinion expressly left open the question of whether employers could discriminate on account of their religion gets gay, lesbian, and transgender individuals. There are a lot of cases coming up in that way. Remember, Justice Alito's dissent so stressed that employers who have religious objections to having gay, lesbian and transgender employees should be able to discriminate. So I think those are the cases that are coming next.
- [31:03]
B
Do you want to talk for one brief second about what it is that held Amy Coney Barrett back from, as you said, she and to some degree, Justice Breyer. But. But Justice Breyer doesn't sign off on all of it. Justice Kavanaugh and Justice Barrett are not willing to join the concurrence that Sam Alito writes on behalf of himself, Thomas and Gorsuch. Is it your sense that this is just one of those cases where the younger justices have more time? They're willing to let this play out? As you said, Justice Barrett expresses some discomfort at what would come in the place of Employment Division if she gets rid of it Any sort of theory of the case. I'm trying to think of who tweeted, maybe we just have three moderate justices now, and they're the chief and Kavanaugh and Barrett. Do you think that's overstating it?
- [32:01]
A
I think that's very much overstating it. Remember, what Barrett and Kavanaugh wanted was the result the court came to. And my sense is they didn't see a need in this case to take on Employment Division v. Smith. Smith. They got exactly the result they wanted. They got a change in the law that they're likely to perceive as a desirable one. And I think Barrett said, when the issue comes before the court whether to rural employment of Richard Smith, we're going to need to face these questions. So lawyers, be sure and brief these questions for us. But I don't think we should feel sanguine that there's not five votes to overrule Employment Division versus Smart. You know, one of the things we haven't talked about is that I've never seen such a dramatic ideological shift as occurred with regard to free exercise. Employment of Andrew Smith was an opinion written by Justice Scalia.
- [32:55]
B
Scalia.
- [32:56]
A
It was applauded by conservatives, and it was liberals like me who wrote law review articles saying it was wrong. But now, 30 some years later, it's conservatives who have attacked Employment Division versus Smith, especially because they want to allow discrimination grounds of sexual orientation. And it's liberals who are saying, you know, employment versus Smith is a good thing because we shouldn't allow people to inflict injury on others on account of their religion. But maybe you can think of it. But it's hard for me to imagine any other area where there's been a complete ideological reversal in such a short time, three decades, as exists here.
- [33:40]
B
And now. Let's return to our conversation with Dean Erwin Chemerinsky of Berkeley Law School. I want to ask you for a minute about Justice Breyer, because you have become the epicenter of Breyergate, and you and 17 other academics signed a pretty remarkable letter this week calling on Justice Breyer to step down. I think the only time you and I have ever differed on anything was when you had suggested that Justice Ginsburg stepped down a couple of years ago. And I don't know if we need to rehash deeply, I think almost all of our listeners are on your side on this. Why it is that it's so urgent for Justice Breyer to give Biden a chance to replace him, particularly with the news this week that Mitch McConnell has no intention of ever Seating anyone else on the Supreme Court, a Democrat is the president. But I wonder if you want to talk for a minute about just the optics of this, of what it looks like when there is this pressure campaign and Breyer's response to it, which has been, I think, including on my podcast, oh, we're above politics. This is not political. We all are friends and we all have to get along. Um, there's a very strange move happening here, which is the more Breyer is pushed, the more he doubles down on his oracular theory of Supreme Court justices.
- [35:15]
A
As you alluded to in March 2014, I wrote an op ed in the LA Times urging justice Ginsburg to step down. That summer, I said, it looks like the Republicans are going to take the Senate in November 2014. They did. I said, no one can know what's going to happen in 2016. Probably my greatest understatement. And I said, if Justice Ginsburg wants somebody with her value and views to take her place, ways she should step down with the Democratic president and Democratic Senate. Many, including you and including Justice Ginsburg, reacted very harshly to that. I did not bat in the Washington Post a few weeks ago saying that Justice Breyer should step down this summer. And my concern about his even waiting a year is that The Senate is 50, 50 between Republicans and Democrats. What if a Democrat for any reason leaves the Senate Senate and comes from a state with his Republican governor? There's then going to be a Republican majority. And so I said, Breyer, if you want someone with his values and views that take his place, should announce his resignation at the end of the term. I have no reason to believe that that's going to have any effect. Some have suggested to me that maybe it'll cause him to dig his heels in more, and that's possible. And yet I feel it's the right thing. So wanted to express it now. Justice Breyer has said on many occasions, you allude to that. That's all politics. Hold it for a moment. When Merrick Garland was nominated for the supreme court and Mitch McConnell, the Republicans blocked him. Wasn't that politics? When Ruth Bader ginsburg dies on September 18th and a week later, Donald Trump points Amy Coney Barrett and she's rammed through on October 26th. Politics. Wasn't that politics? I don't deny presidents always pick people who are ideologically compatible, and the Senate is ideological, that's fine. But to say that what Republicans do is okay, but if Democrats do it, that's impermissible politics. That's just wrong.
- [37:14]
B
Erwin, I just want to say in the history of this show that has been the loveliest I told you so that I have ever heard, and I take it in exactly the spirit that it is offered because you, I think at least on this issue, you were much more prescient than I was before I let you go. I do want to ask you about two different pieces of signaling that I clocked after Thursday's opinion. There was one camp that said John Roberts clearly assigned the Affordable Care act opinion to Breyer as a way of telling him, your work here is done, you may go. And an equally clear camp that said John Roberts cannily assign this to Briar to show him that he need not leave because there's so much more work to do. I don't know if there's anything to be read in the tea leaves of Breyer getting clearly one of the most important magisterial cases of the term to write, but do you read anything into any of that?
- [38:20]
A
I don't know. Both of those are plausible, but it's also plausible that this wasn't in Robert's mind at all when he assigned it to Bryan. And you're right in one sense that this is one of the most important cases of the term. But as you said at the beginning, in another sense, this case doesn't do very much. It certainly doesn't change the law in any regard. This is a case that's most significant because what it doesn't do, it doesn't invalidate the Affordable Care Act. So I'm a little hesitant in reading a lot into Roberts assigning this to Breyer.
- [38:53]
B
I don't want to take up any more of your time, but I do want to ask you, I think that the general consensus is that this term, barring what happens in the next couple of weeks, really will prove to be the calm before the storm. And that next term, whether it's guns, abortion, possibly affirmative action, is going to be seismic. Beyond this question of 6, 3, supermajority and what it means if Justice Breyer does or doesn't leave, I think we are looking at a profound you talked about the change in religious liberty doctrine, but I think we're looking across the board at a very, very, very different court than even the one you and I have known over the last few decades. I wonder if you have something you'd like to admonish listeners to pay attention to, to think about something that is maybe happening under the radar, that is beyond just the big ticket abortion and guns concern, something that they should for in the coming year.
- [40:05]
A
I predict that when this term ends, the end of term ramp ups are going to stress see, the Roberts court isn't so conservative. The three Trump nominees didn't move the court that far to the right. The cases from Thursday we pointed to the Affordable Care act was upheld 7 to 2. Fulton was unanimous. And I think that's exactly the wrong lesson to draw. Draw. It's always dangerous to draw conclusions based on a limited data set and these cases are a limited data set. Also, it's interesting that the abortion case and the guns case could have been taken by the Supreme Court for this term. I think the abortion case was relisted about 15 times. I think that Chief Justice Roberts and the justices might have well decided, decided this wasn't the year for the major ideological rulings. They lived through the confirmation fight over Amy Coney Barrett. It's not that long ago the confirmation fight over Brett Kavanaugh. But I think that you've already got abortion and guns with cases taken for next term where affirmative action might be. I think it's next year that we're going to really see the effect of having six conservative justices, including three Trump appointees on the Supreme Court.
- [41:22]
B
Court Dean Erwin Chemerinsky is dean of Berkeley Law School. Prior to that, he was founding dean at UC Irvine School of Law. He is the author of 11 books, most recently we the People, A Progressive Reading of the constitution for the 21st century. He's author as well of more than 200 law review articles, frequent op eds and he argues appellate cases, including at the Supreme Court. Erwin, it is always a delight to talk to you. And as I said earlier, if someone is going to say, dalia, I told you so, please let it be you.
- [41:56]
A
And I would never do that. It is always such a tremendous pleasure to be with you. Thank you for having me on Cheers.
- [42:06]
B
And that is it for this episode of Amicus. Thank you as ever for listening in. Thank you so much for your letters and questions. You can always keep in touch@amicuslate.com you can always find us at Facebook. Today's show was produced by Sara Burningham. We had research help from Daniel Maloof. Gabriel Roth is our editorial director. Alicia Montgomery is executive producer. June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus in well, whenever the term wraps up in the next two weeks.
- [42:46]
A
Sam.