← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Parsing the Shadow Docket
00:53:22
What recent seemingly procedural SCOTUS decisions can tell us about substance.
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- [00:06]
Leslie Kendrick
Nobody gets their chaplain, then everybody's worse off.
- [00:15]
Risa Goluboff
This was a fifth Circuit opinion really truly thumbing its nose at the court and a case that the court just decided whole women's health. And I think that's not something you can countenance as the Chief justice of the United States.
- [00:33]
Dahlia Lithwick
Hi, and welcome to Amicus, Slate's podcast about the courts, the Supreme Court, and the rule of law. I'm Dahlia Lithwick and I cover the courts for Slate. And another week comes to a close, and it's another week where you may be requiring a little neck brace for the whiplash you are suffering. Well, me too. As of this moment, the president has now declared a state of emergency at the southern border because he didn't get as much money as he was hoping to get from Congress for the wall he said Mexico would pay for. In addition to that, California has also announced that they plan to sue the Trump administration over the declaration of a national emergency on the border. So stay tuned. And the Supreme Court at the very last minute, has injected some real political oomph into what was a bit of a sleeper docket this term by opting on Friday to take up the census case that we examined pretty carefully with Dale Ho of the ACLU a few months back. Consider all of these items pinned to the very top of the agenda for future Amicus episodes. But for this episode, we wanted to turn to some of the non Trump based legal issues that have been swirling around in the national conversation of late. We wanted to go for a little bit more of a grab bag than my usual order, Muppety style. And so we're going to talk religion and the Court, gender and government, race in the Commonwealth of Virginia, and a whole bunch of other stuff. And I'm bringing on two of the very smartest women I I know to help me tackle all of those things. And let's see what happens. Risa Goluboff has been on the show before. She's the first woman dean at the University of Virginia Law School and a nationally renowned legal historian whose scholarship and teaching focuses on American constitutional and civil rights law with a focus on race. Leslie Kendrick is the Vice Dean of the University of Virginia Law School, and she's an expert in the First Amendment and freedom of expression, particularly the scope and structure of our free speech rights. I guess here is where I also confess that both the dean and the vice dean of UVA Law School are two of my dearest friends. And they're also chillingly brilliant in their respective fields, which is just as well, because there's really a lot of ground to cover. We're going to talk about religion, we're going to talk about the cross case at the court this month, abortion in the Supreme Court, and maybe even what it's like to be a woman dean at a law school. And all of this is going to happen from a distinctly law school deanish point of view. Risa Goliabaoff, Leslie Kendrick, welcome to Amicus.
- [03:06]
Risa Goluboff
We're so happy to be here. Thanks for having us, Dalia.
- [03:08]
Leslie Kendrick
Thank you so much.
- [03:10]
Dahlia Lithwick
So, you guys, I think I just wanted to open with this whole woman dean, vice dean thing because it feels like it was not all that long ago it was unthinkable to have a woman dean at all the great law schools in the country. And that wasn't the 80s I'm talking about. That feels like it was fairly recently. So what what has happened? How do we get a female dean, a female vice dean? Did we reach some tipping point in legal academia that's sort of similar to what we're seeing with the women who are sweeping into Congress? Risa, you want to start us off?
- [03:45]
Risa Goluboff
We've had female law students coming to law schools in almost if not exactly equal numbers as men for the last several decades and entering into the legal academy. And women law professors are still not 50% of all law faculties, but there are clearly more and more women moving up the ranks, and that includes into administration and leadership. So I think that's a big part of it. I also think that gender issues have become much more important in the legal profession generally. And obviously there's still disparity in partnership in law firms and in leadership in, you know, Fortune 500 companies and things like that. Women are not fully represented as they might be. But it is definitely the case that issues of diversity, not just gender, but other kinds of diversity, too, and retention and why are women leaving the workforce? Have become much more prominent discussions and people are talking about them and thinking about them. And I think it's affecting who people want to see as leaders and what kinds of issues they want to talk about and see addressed in the academy and in the legal profession more generally.
- [04:54]
Dahlia Lithwick
Leslie, I'm listening to Risa and I'm also thinking we could have had this conversation. Certainly, you know, when I was at law school in the mid-90s, it felt like all of those anxieties existed. And yet still something just seems to have shift or tipped in very, very recent, the last handful of years. So is there something I don't want to say this is a function of some incident or episode. Was it just we got to a moment where all the law schools flung up their hands and said, okay, we're going to take women?
- [05:29]
Leslie Kendrick
Well, you know, I look at that same period of time, and I see a lot of gradual change and a lot of work over that time period. So, you know, I'm the vice dean of the law school here at Virginia. I'm not the first female vice dean. Liz McGill was the first female vice dean, and she was serving in that role when I first came on the faculty. She's now dean of Stanford Law School. She's getting ready to be the first female provost at the University of Virginia. I've never been the first woman to do anything that I've done, and I love that. I'm so glad that I've never had to be the first first. I have benefited always from the groundwork that other people have laid. And I think what we're seeing now is a lot of that groundwork really coming up to the tops of different types of organizations, not just law schools, not just higher education. But that's the result of a really long process. And I look at people in my generation, and I think that we've benefited so much from a lot of groundwork that took a lot of time.
- [06:26]
Risa Goluboff
And I will just add that it is shocking to me to be a first. But what was really refreshing and wonderful and part of what informed my first answer is that the response I have gotten as the first woman has been uniformly positive. And one could say, well, it took until 2016. Maybe that was later than necessary. But one could also imagine in 2016 you could get pushback. And so I think maybe it took longer than one might have expected. And I totally agree with you. We were having similar conversations when I was in law school. But something was changing in the underlying social context over that period that I think made the fact that I'm first different now than it would have been 20 years ago. I don't know if that makes any sense, but I think that's really true.
- [07:13]
Dahlia Lithwick
I think it's true, and I think it's lovely. And it maps so beautifully onto what Elena Kagan always says when she's asked how she has felt being the first. She always says, I wasn't. That was Ruth Bader Ginsburg. You know, that was. That was Sandra Day o'. Connor. And in some ways, even as kind of sort of firsts, what I'm hearing both of you say is really, really there were firsts before us, and the folks who come after us won't even think about this. That, I guess, is what we're shooting for.
- [07:48]
Leslie Kendrick
That's the hope.
- [07:48]
Risa Goluboff
That's the hope. And I will say, you know, there are. We are not alone. There are many, many law schools with female deans, more presidents of universities with women presidents. And so I think it is both that those folks paved the way and now there's kind of a breakthrough generation, which is similar to what you're seeing, I think, in the political sphere. There have been women, obviously, in politics for a long time, but there's a critical mass now that I think is following in those footsteps and then gaining momentum from the fact that there are so many together.
- [08:19]
Dahlia Lithwick
And now we're going to turn, I think, somewhat reluctantly, to newfound racism in the Commonwealth of Virginia. You both were deeply involved in the UVA response to the Charlottesville white supremacist march in August of 2017. I thought of both of you last week when the stories about Governor Northam and then Attorney General Herring surfaced. I thought, this is such a strange world you inhabit at uva, in many ways, cutting edge, in many ways, perpetually stuck in 1954. In some way. Risa, maybe you should talk first, because I know you've thought so much about this issue of race in the south, but part of me just wants to say, what the hell, Virginia? But I don't think that's a good question. But maybe help me understand how even not so distant past yearbooks in old Virginia allowed for blackface unrepentant and unexplored.
- [09:22]
Risa Goluboff
I think we have a much more complicated relationship to our past than anybody usually thinks we have. I mean, not just in terms of these yearbooks and these particular incidents, but in general, I think we like to tell a story about our history, not just the south, but the nation as a whole, that once there was slavery and then there was Jim Crow, and then it ended, and now we all live happily ever after, completely equal and free of racial inequality. And that's just not how history works. And I actually think that part of what happens is we suppress the history at various times and in various ways. And we do so by telling that story. We say we're done, we finished. And then all of these pieces that still exist, these continuing vestiges. Vestiges is not quite the right word because it makes it sound like little leftovers. And I think they're actually much more deeply embedded than that. But the pieces of the past that continue to live with us, we suppress. Talking about them, we kind of make them invisible. And then when they surface, I think a lot of people would be surprised to learn where they're connected and how connected they are to a past of white supremacy. And I don't mean that to excuse any. And I just think we are constantly retelling stories that let us off the hook, and we have to tell the stories that make us grapple with what happened and make us grapple with the fact that this is the 1980s, right? This is the 1990s. It's not just in the deep past. And I think we at the University of Virginia, certainly, I know we have a desire to be a university that is diverse and equal and inclusive and where everyone feels an equal sense of belonging. That's what I spend my career working on and certainly the last year thinking about in response to what happened in August of 2017. But we can't do that unless we talk honestly about what the past looked like and how it continues to live.
- [11:19]
Dahlia Lithwick
Leslie, I guess I want to ask you the corollary question, which is it just feels as though you're having to be traumatized by these episodes and then stagger up from under them in order to get into the transparency that Reesa's talking about. Know that UVA is still trying to recalibrate post August 2017, and now I'm just wondering what the students must be feeling having to do this again, except now it's the governor and the attorney General. I just wonder if the feeling on campus is we have to keep being clobbered by these reminders of what is really simmering under the surface here in Virginia in order to punch through it and heal. I guess I'm just wondering, do you have a sense that you're moving forward, or are we just in this loop, this endless, catastrophic loop of reliving and relitigating things that we can't seem to put behind us.
- [12:26]
Leslie Kendrick
You know, I would hate to try to speak for anybody else on it, because I think the feelings can be so complicated and can involve so many different layers. I do think that the thing that Risa said is really important, which is that truth is central to any type of reckoning and any ability to move forward. And when you think about something as pervasive as racism has been in this country, you're going to find it everywhere you look, and you're going to have to confront those ugly, ugly pieces of that that you keep finding. And I think what's particularly disappointing in this moment and these events is that you're finding it not just in the yearbooks, but you're finding it in your leaders. And I think that that's a really disheartening thing for a lot of people, especially a lot of women and people of color who worked really hard in the races in 2017 and were supportive of these particular individuals. And I think that that's its own sort of type of disappointment. But if you zoom out, think about how, as a country, can we ever make progress? It can't be by running from our past. It has to be by confronting it. And this is certainly an opportunity to do that, and we have an obligation to do it.
- [13:48]
Dahlia Lithwick
I want to ask both of you a question that I think I've asked you probably just casually in conversation over the years, and that is these things, and I think this, this we can Talk about the MeToo Justin Fairfax piece as well. But when things are surfaced in the press, when things unspeakable things from your past are surfaced in this kind of gotcha fashion, that's not a legal process. That's another thing. And one of the things I find myself saying over and over again is whatever MeToo is, MeToo as performed in journalism, it's not a process. What do the lawyers in you feel about the way this is getting done right now? It just feels as though it's antithetical to the way we were trained to think as attorneys.
- [14:46]
Leslie Kendrick
I think of this a little bit with my First Amendment hat on. And I'm going to offer not so much a normative response, but more just an observation, which is information is power, and there are going to be power aspects about the way that information is used almost inevitably. So in my First Amendment class this past week, we've been talking about privacy and talking about Jeff Bezos and the National Enquirer and also about the Hulk Hogan trial and how Peter Thiel got involved in suing Gawker partly because he was mad at Gawker for other types of information that Gawker had divulged. And, you know, in these cases, there's information and then there's how people are using information. And, you know, I think that's just a phenomenon that you continually confront in First Amendment law. And partly, I think First Amendment doctrine tries to I don't know how good a job it does, but tries to account for those types of dynamics in thinking and institutional design, in thinking about what First Amendment should look like. So to me, this is not something that's sort of exogenous to the law on the part of law that I work in. I Think it's something that actually has been kind of. Of incorporated into how people think about what the rules ought to be.
- [16:01]
Risa Goluboff
I agree with Leslie. I don't think law is necessarily exogenous. I actually think, you know, law professors sometimes talk about bargaining in the shadow of law and what law does to norms. And I think it's hard to contemplate the MeToo movement without the backdrop of the failures of the justice system to adjudicate cases of sexual harassment and sexual violence. And that a lot of what's going on now is a feeling of the kind of betrayal you were talking about. People feel with regard to our leaders at the moment, potentially, that people feel betrayed by the justice system and feel that the justice system hasn't worked for them. And this then becomes the media and social media and public forum becomes an alternative way of making claims and then meting out justice. And I agree with you. I think there are real concerns about what that looks like, but I don't think it's an absence. It's in the absence of the law. I think it's against the backdrop of frustrations with the law and with people's being worried about availing themselves of it, and what will that do to them? And, you know, it's interesting, and I don't know what to make of it, that it feels more efficacious. It clearly has been more efficacious. And it feels somehow safer to, you know, go on a public forum and announce traumas that people have suffered rather than bring them through the criminal justice system. And to some extent, I think it's. It's about the democratization of our media. And this goes to Leslie's expertise far more than mine. But it's a lot easier to avail yourself of Twitter or other forms of media to make statements, to make accusations, to make known particular traumas than it is to go through the legal process. And I think we've seen that the outcomes can be fairly. I mean, the outcomes have varied, frankly. Right. Been some incredibly effective instances, and then there have been others that haven't been effective. And I think we could think systematically about why there have been different outcomes in different cases, but certainly it's much faster moving than the criminal justice system, and it doesn't have the safeguards of the criminal justice system or of the civil system. But to answer your initial question, I do think it's all happening in a. In a shared dynamic between the law and journalism and politics that are all combining to create pressures to go. You know, if you think I have A problem. Right. And this is the way I think about how legal change happens. Right? Somebody says I have a problem, how do I address it? How do I fix it? Is it a legal problem? Is it a political problem? Is it a public problem? Where do I go for redress? I think what you're seeing is people choosing to avail themselves of the public sphere rather than the legal system. And I think there are real questions about what those outcomes look like in the different kinds of avenues.
- [19:04]
Dahlia Lithwick
And just as a coda, I guess what worries me is that the currency in which we trade, once we're doing this right, the coin of the realm is shaming. And what we've seen this week in Virginia is just buckets and buckets and buckets of shame heaped not just on leadership, but on the folks who work for them. As you said, Leslie, the folks who supported them on the Commonwealth, on I don't know how much you're feeling it at the law school, but I just keep, I guess where I get stuck is there are other objectives in the legal system beyond shaming for redressing wrongs. And I guess I wonder if there's a way to widen the spigot here and think in terms that are beyond call out shame, resignation, or am I just asking way too much of, of what is essentially, as you point out, it's journalism doing the work that the legal system has failed to do.
- [20:09]
Leslie Kendrick
Yeah, I think there's always the relationship between law and norms. And again, back to the First Amendment, the fact that you have a right to say something doesn't necessarily mean that you shouldn't be roundly criticized for saying it, possibly even shamed or whatever, that norms shouldn't take account of or respond to that in some sort of way. And I think it's really hard to come up with some sort of platonic ideal of a balance between these two things. And one thing that your comment made me think about, Risa, was that we move too far on one side of the pendulum swing when there hasn't been anything on the other side. And that's kind of a call to recalibrate. And it sounds like, Dalia, you're sort of interested in whether there could be recalibration, but at the same time I'd be worried if we wound up in some sort of post shame society where nobody could be shamed, where people were sort of impervious to norms based responses to behavior. So, you know, they each have a role to play, whether that's exactly right in every moment or in every Event, I think, is, you know, probably not.
- [21:14]
Dahlia Lithwick
So let's turn to the Supreme Court. They handed down a pair of very dramatic stay orders a week ago. One in June, Medical Services, which is a case related to abortion. One in Dunn vs. Ray, a case about an Alabama execution. I thought maybe we could start with June. I think folks probably know this involved Louisiana admitting privileges requirement. It was functionally identical to the admitting privileges requirement that the court struck down in 2016 in Whole Women's Health. This had it gone into effect, it would have shuttered probably a third of the clinics in the state. The lower court enjoined the thing. The Fifth Circuit allowed it to go into effect. It would have gone into effect but for Chief Justice John Roberts running to the rescue and joining with the court's liberal justices last Thursday night to put the stay back into effect. A lot of commentary in the weeks since suggests that this makes John Roberts a moderate on abortion rights. Well, which of you is laughing? Because you're going to have to answer, Risa.
- [22:26]
Risa Goluboff
Okay, that would be me.
- [22:28]
Dahlia Lithwick
How could you tell?
- [22:28]
Risa Goluboff
Just from my laugh. I hadn't even said a word. So I am laughing. There's been a lot of commentary about what this means. Right. And what does it mean for Chief Justice Roberts? What does it mean for the court? What does it mean for abortion doctrine? And, you know, I think these are continuations of the conversation that began when Justice Kennedy retired and the John Roberts was in the center of the court. If you lined everybody up ideologically and the question was, what role would he play? Because his center is obviously further to the conservative side than Justice Kennedy's was in a number of issues. And people were wondering, would he join with the liberals and under what circumstances? And I actually think this is the kind of circumstance under which he would play the role that he did play in the stay. I'm not sure that it says anything about his views on abortion or what he'll do if and when the court takes the case and actually decides it on the merits. I think there are two things going on, neither of which I think has a whole lot to do with abortion, though it might end up having a little bit to do with abortion. The first is this was a Fifth Circuit opinion really truly thumbing its nose at the Court and a case that the court just decided whole Women's health. And I think that's not something you can countenance as the Chief justice of the United States. And the second thing is, and I liken this to what he did in parents involved versus Seattle school districts. In 2007, right after he became the Chief justice, he had an opportunity to overrule precedent in affirmative action cases that was fairly recent, and he chose not to. He narrowed and he distinguished, but he didn't do it. And I think he knows that the eyes of the world are on him and are asking the question, what will he do? Will this be a political court? Will there be five conservative Justices who rule conservatively every time? And I think he wants to resist and he wants to make a claim for the legitimacy and neutrality of the Court. And I think this stay gave him an opportunity to do that. I don't know that it tells us anything about what he thinks about abortion or anything about what he'll do if and when the case comes to the Court in full argument. But I think this was an opportunity for him to uphold a recent precedent of the Court, which was in keeping with longstanding going back to Roe v. Wade. Longstanding precedent of the Court, and to suggest that there is some level of neutrality in the Court.
- [25:05]
Dahlia Lithwick
We know you value the journalism here at Slate, and now more than ever, this work needs your support. And the very best way to support it is via our membership program, Slate Plus. With a Slate plus membership, you can enjoy this and all of Slate's podcasts ad free, and you will be supporting our incredibly important work. At the same time, there's a free trial to be found@slateplus.com amicus and now let's continue our discussion with Risa Goluboff, dean of the University of Virginia Law School, and her colleague, Leslie Kendrick, vice dean of the University of Virginia Law School. So let's talk about Dunn versus Ray, because this one actually kind of shocked me. This involved a pending Alabama execution and a policy in that state that only allowed a Christian chaplain to be present at the execution. Let's stipulate plaintiff in this case committed appalling murder. There's no question that he was guilty. The question was whether he could have the chaplain of his choice at his execution. He's Muslim. So Dominic Ray, who is now dead, is a Muslim and asks the state to let him have his imam. This is another 5, 4 decision. It's again about a stay. We don't have a Merits decision here. 5, 4. The court let the execution go forward on the theory that, well, he just waited too long. Leslie is a way to square this with the court's usual solicitude, extreme solicitude for the religious beliefs of people who simply want to practice their faith. I mean, that was meant to be the hallmark of this court, that if you are a person of faith, we will twist ourselves into pretzels to make sure that the state doesn't sideline your needs. And yet the. This seems to come almost out of nowhere. And it really, I think, in a way that shocked Justice Kagan, who wrote a dissent, seems to fly in the face of everything they hold themselves out to be when it comes to faith.
- [27:08]
Leslie Kendrick
There are some details that maybe go into what the majority thinks it's doing here, and then we can talk about Justice Kagan as well. So this policy that Alabama has would allow the Protestant chaplain into the execution chamber. The chaplain, it turns out, is an employee of, of the Department of Corrections, and according to Alabama, had a role to play in the execution, even if it's some sort of backup role, some sort of expertise and training as kind of part of their execution team on top of being a chaplain. So Alabama's original position with Mr. Wray was you have to have the chaplain in the execution chamber with you. Not only can you not have, you're a mom, you have to have the chaplain. And they backed off of that, but they still said, you can't have your mom. And part of what they relied on was this idea that it was too late for him to request his chaplain of choice. So the timing ends up being very important for the majority. So this execution date was set November 6th of 2018. It was set for February 7th of 2019. The statute doesn't go into enough detail to put Mr. Wray on notice that although he could have a chaplain of his choice at the execution, they couldn't actually be in the chamber. So that's not explained to him until the 23rd of January. And Justice Kagan says that the Corrections department had disregarded Mr. Wray's earlier request for a set of their rules. So he doesn't learn about this until the 23rd of January, and his request is denied on the same day. And he seeks a stay of execution on 28 January. And for the majority, this is too late. This is not a timely request, and it's interfering with the states utilizing its execution date of choice, the 7th of February. So I think what they're saying is that this was, you know, that this is not really about the merits. This is about, about the timing. And I think in the backdrop of that, possibly, I don't know, but possibly is a kind of global sense of frustration with death penalty cases and the number of types of last minute requests that often surround those. And they just don't want to look at this request because they think it was too little, too late. Justice Kagan really takes them to task for this in dissent and says this is a really serious free exercise claim. It's probably also a claim under the Religious Land Use and Institutionalized Persons act that not being able to have the religious official of your choice is a substantial burden on the prisoner's religious practice, and it's not justified as the sort of least restrictive means to further a compelling governmental interest. She also says this looks like an Establishment Clause violation. She says the clearest command of the Establishment Clause this court has held is that one religious denomination cannot be officially preferred over another. And she says if you let one denomination into the execution chamber and not others, that looks like a textbook Establishment Clause violation. I think she goes through the facts on the timing thing, and, you know, I think her point is that this is a really serious wrong that's at stake. And what's at stake on the state side is a delay of the inevitable. No one's arguing that Mr. Ray shouldn't be executed. It's a matter of can we slow this down and figure out how to get him the religious support that he wants at the time of. Of his execution? And in an area that often talks about compelling governmental interests, is this really a compelling governmental interest that justifies denying his claims and also putting the state in the position of looking like it has Establishment Clause issues as well?
- [31:17]
Risa Goluboff
I think one of the things that is striking about this, and especially when you look at it in the context of the abortion stay, is in both of these cases, there's a claim of a violation of the Constitution, and both are meant to stay the existing state of affairs until the court can consider the merits of a case. And in the abortion case, they stay it in anticipation of that. And, you know, from what I've read of the papers, there would be real hardships if they had not stayed it. Of course, according to Justice Kavanaugh, there wouldn't be as great hardships. Right. He thinks there's a 45 day grace period, all this kind of thing. From what I've read, I think there would be real hardships. In addition, though, in this case, and the court often has talked about this, the finality of death is very final. And so I do think that one of the things that's striking here is if the court thought there was the possibility of an Establishment Clause violation here, which the lower court clearly thought there was, and Justice Kagan clearly thought there was, if they thought there might be an establishment clause violation. You hold up on the one hand, the smooth functioning of the state's ability to execute those who have been sentenced to death against the finality of the death without being able to have his spiritual adviser there. And it feels very, very final. And it does raise the question, I think, of, you know, Leslie was saying, you can't read too much into a stay. But obviously if they didn't think there was a real establishment clause violation here and they didn't think it, so much so that they were willing to allow the execution to go forward and to allow no further possibility for redress in this case.
- [33:10]
Dahlia Lithwick
I'm glad you mentioned it, Risa, because I think both of these big, big news stories happen by way of brief orders and stays. We don't get rulings on the main merits. It's what is known in the parlance as this is the shadow docket. Right. We don't have any real idea of what's going on. And both orders had to do with these procedural problems. Right. Should the Louisiana abortion clinics have filed a facial challenge instead? Maybe. Should we have allowed the 45 day grace period and then figured out if clinics were gonna close in? Ray, the question is, again, this is just a procedural problem. Should he have filed? Leah Lippman had a smart post this week on Take Care where she talked about using stay practice and these emergencies to resolve really hard cases. She quoted John Dingell saying, quote, if you let me write the procedure and I let you write the substance, I'll screw you every time, end quote. And I think her point being, you know, that you're using these technical procedural rules to do an end run around really intractable, thorny constitutional problems. Risa, maybe I'm saying the same thing that you just said, or Leah Lippman is, but I think there's something extra troubling about the fact that this is happening under the COVID of we're just following rules, ma'. Am.
- [34:36]
Risa Goluboff
As a legal historian, I spend a lot of time in the archives of the justices. Right. And behind the scenes at the court. And I couldn't agree more that so much of what the court does and so much of how it affects the development of law is not in the cases it takes and argues on the merits, but in the cases it doesn't take and in the orders it issues. And I think that's always been the case. I do think you can see the possibility of it becoming a more robust motions practice in the way that you just described that. We've seen more interlocutory appeals that members of the court are willing to consider. There was the census case recently about whether there'd be a citizenship question in that case. And there was an appeal that went up and there were definitely justices who thought that the court should hear that before the case had really proceeded in the district courts. And that was an unusual procedural posture, I think. And it didn't go forward. Right. They didn't do that. But there were certainly justices who wanted to. And I think that's the Leah Littman point. Procedure as part of the substance. And I think that really is the case in these two cases, and I think it will continue to be, and I think it always has been.
- [35:50]
Leslie Kendrick
So a coda. If I've seen some reports that Alabama, in the aftermath of this, has decided that no one can have a chaplain or spiritual advisor in the execution chamber. And having worked out a way not to have the chaplain at this one, they're just going to say, nobody does that. If that is the case, I think that's a kind of instance of ratcheting down in terms of the level of support that all inmates will get. That to me, is reminiscent of Palmer vs Thompson.
- [36:26]
Dahlia Lithwick
Describe Palmer vs Thompson for those of us who are not.
- [36:28]
Leslie Kendrick
So in the civil rights era, when courts started to order desegregation, some localities took different actions to resist by basically shutting down public services. So in Palmer vs. Thompson, it's a public pool. If we have to integrate the pool, we're going to shut down the pool. Of course they give a reason why they're shutting it down. In Virginia, some locality, close the public schools rather than integrate them. Right. It's a ratcheting down rather than deal with having to open up the set of benefits that's under dispute to everybody. And if nobody gets their chaplain, then everybody's worse off.
- [37:05]
Risa Goluboff
I take it what Leslie's saying, Right. Is it's yet another added layer to the substance procedure.
- [37:12]
Dahlia Lithwick
Right.
- [37:12]
Risa Goluboff
Because even though it might look like nothing substantive was decided here because it was just an order.
- [37:17]
Dahlia Lithwick
Order.
- [37:18]
Risa Goluboff
Actually, it's going to have substantive implications in the world. Right. And it already is having consequences for what people understand their obligations to be or not to be, and then acting on the basis of that understanding.
- [37:33]
Dahlia Lithwick
So let's turn before I let you go to another case that dovetails so well with the conversation we just had. This is another case that kind of the government is meant to be neutral with respect to religion. And. And the court is actually going to hear this argument in two weeks. It's American Legion versus American Humanist Association. I think it's going to be one of the most closely watched cases in a term that is admittedly a bit of a sleeper term. This is about a 40 foot tall granite and cement cross standing in the median of a busy highway right outside of Washington, D.C. cross was placed there in 1925 by the American Legion. It was a memorial, a war memorial to men who died in World War I. In 1961, the land was taken over by the local park commission. It's a public entity. It's been tens and thousands of dollars of government money going to the maintenance of the cross. Let's start with you, Leslie. Can you take it from here and tell us a little bit about who the plaintiffs are and what the claim is?
- [38:39]
Leslie Kendrick
The lawsuit was filed in 2014. The initial lawsuit was filed by the American Humanist association and three non Christian residents of the area saying this is an Establishment Clause violation. This is a publicly maintained monument that is a cross. It's taking a position on religion in a way that violates the Establishment clause. So in 2015, the district court in Maryland held that the cross didn't violate the Establishment Clause. And in the 4th Circuit, the 4th Circuit held by a 2:1 vote. That was. It did so. And then now the court, the case.
- [39:16]
Dahlia Lithwick
Has come to the Supreme Court and important to say that, I guess the District court said this cross has a purely secular purpose. It is not advancing religion. It is just memorializing our dead. If this sounds familiar to listeners, we've had this fight before at the Supreme Court. The Fourth Circuit felt very differently. They said, quote, the monument here has the primary effect of endorsing religion and excessively entangles the government religion. The Latin cross is the core symbol of Christianity, says the court. Here it is, it's 40ft tall, displayed in the center of one of the busiest intersections in Prince George's county, and maintained with thousands of dollars in government funds. So I think that's the crux of the fight. It reminds me so much, Risa and Leslie, of what we were just saying when we started, which is the yearbook picture problem, which is forever. This was fine. Everybody said it was fine. And now a bunch of, bunch of uppity, uptight snowflake people have a problem with it. It stood there forever and nobody squawked. It feels like. I know that's an overstatement, but I also think that there is a weird way in which, in this country, we've been memorializing the war dead with crosses for a very long time. And there's a way in which the district court was like, dude, it's a secular symbol of the war dead back on.
- [40:42]
Risa Goluboff
When I teach constitutional law, I talk a lot about the meaning of tradition and the meaning of our historical precedents and the meaning of what is. And does that suggest that it should be or that it should be for the future? And I think we're very ambivalent, and we have a lot of constitutional traditions that would suggest that the way we have done things takes on a kind of constitutional status, a legitimate constitutional status that we defer to. To what we've done in the past. And certainly, you know, originalism as a method of constitutional interpretation is premised on understanding the Constitution through its original understanding and original meanings. But I think well beyond originalism, we tend to look toward our. Not just our legal precedents, but our social and political practices and traditions and precedents and say, if we've done it that way, it must be how we should. And yet we have unbelievable examples of we've done things this way for a long time time. Slavery, women having no civil status. Right. That we repudiate, and we repudiate traditions, and we say, these are not who we are anymore. And I'm not sure we have really good answers about when the way we've done things in the past is wrong and we should repudiate them, and when the way we've done things in the past justifies them and makes them okay for the future. And, I mean, the book that I wrote on vagrancy that came out a couple of years ago is really about that moment in time that that shifts that. For hundreds of years, we had vagrancy laws. So of course they're legitimate. And then in a very short period of time, it becomes. For hundreds of years, we had these, and they're anachronistic, and they don't fit our society anymore, and we can't possibly have them. And I think the process by which we make that decision and who gets to make that decision and how much consensus there is about those kinds of decisions is really, you know, it's an ongoing dynamic social, political, and legal process that I think is really complex.
- [42:34]
Dahlia Lithwick
Leslie, I want to give you the opportunity to describe as a formal matter what the Court is presumably going to do. I know the questions before the Court are complicated, but one of them is, should the Court apply what's called the Lemon test? This is Lemon versus Kurtzman. Is that the correct test? And this was the test that Justice Scalia. It kept him up at night. This is the test that so many People either hate or don't understand. And I'm going to give you the unfair charge of explaining to our listeners what the Lemon test is and then telling us whether this is going to be the court just saying, like, we're done with this crap.
- [43:17]
Leslie Kendrick
So the Lemon test is a test to determine whether a state action, or in this case, a symbol, violates the Establishment Clause and asks three questions. One is, does this thing have a significant secular purpose? The second question is, does it lack the primary effect of advancing or inhibiting religion? And the third question is, does it not foster excessive entanglement between government and religion? So all these questions, you need to check these boxes. If the thing has a significant secular purpose and at the same time lacks the primary effect of advancing religion and it doesn't foster excessive entanglement between the state and religion, then you're good. But otherwise, you could have problems under the Lemon test. And as you say, it's not everybody's favorite test. So anytime that the Lemon test comes up or an Establishment Clause challenge comes up, there's the possibility. Part of what's on the table or on the docket is, will the court overturn Lemon and adopt a different standard?
- [44:28]
Dahlia Lithwick
And I want to be super clear, because these are crazy making cases. They're always unerringly crazy making, Right. When the court heard a Bunch of these 10 commandment cases, two different 10 Commandments case at the same time, one was cool, the other one was not cool. And it's context specific. And you throw, like, I think I remember joking, you throw a Teddy Ruxpin against the cross, and that's cool. Now it's secular. So these cases, I think that they. And I'm remembering as I'm talking to you, the amazing. The last time the court heard a cross case in 2009, and we had this was a cross in the Mojave National Preserve, and Justice Scalia was still alive, and there he was shouting at the ACLU lawyer who was a Jew, that a cross is as much to honor Jewish war dead as Christian war dead. And the poor lawyer was. Was like, dude, I've been in a lot of Jewish cemeteries. There are never crosses honoring people there.
- [45:30]
Leslie Kendrick
And justice.
- [45:31]
Dahlia Lithwick
You know, everybody broke out laughing. But I just think these are such difficult cases in some part because they are so context specific. Right. But also because they require levels and levels of filtering and pretext about what is secular, what is religious, what do we all agree on? I guess it goes back to. To Risa's observation that these are things that we don't decide in courts. We decide them by way of norms and consensus and then those norms are really challenged. When you're having a fight about whether a cross is a secular symbol of the war dead or a symbol of Christianity, how is a court possibly going to do that?
- [46:15]
Leslie Kendrick
You know what you say about the context specific nature of the text test, it's partly about the test, it's partly how the courts apply the test. So I think you could have the Lemon test and those factors, you could have them applied in a way that comes out with a much clearer rule about this. If the court said a cross is an inherently Christian symbol, anytime it's used in a public place or on a public monument, we are going to start from the position that it has a primary effect of advancing religion and we're going to have to be pulled away from that. Right. You could imagine ways in which those same factors could be applied in a more kind of rule like way. The two Ten Commandments cases that we were just talking about perfectly illustrate this. It's been very, very context specific. It reminds me a little bit of, you know, the, the great era in the late 60s and early 70s where the Supreme Court opened up a pornography viewing theater in the Supreme Court so that they could look at every piece of pornography in America and decide on the basis of, you know, they did not have a governing test at that time in a sort of ad hoc basis what was obscene and what, what wasn't. Right.
- [47:19]
Risa Goluboff
I know when I see it, I.
- [47:20]
Leslie Kendrick
Know it when I see it. Right. It was Potter Stewart, right. They eventually just did the Potter Stewart way for a few years and they just, they looked at everything and they had to make a decision and there was, there was no rule. So there, there are some similarities here. And you know, the more the test looks like that, the more it truly is a matter of what's in the eye of the beholder. And you get into these sort of social and cultural questions of well, you know, what do you think a cross means? And that's definitely where, that's definitely where we are here. So, you know, I think some points that have been made in some of the briefing are interesting and good about, you know, either this is an inclusive symbol that's meant to honor all of the war dead of Prince George's County, Maryland. And that's problematic if, you know, because Maryland had around 2,000 Jews fight in World War I. Presumably some of them were killed. It could be, you know, one brief makes the point, do we know whether there were Jewish soldiers in Prince George's county, that, you know, they could be on this monument. We have the names, but, you know, people haven't done the work to sort of trace everybody's background. I don't know that's possible at this time. So either they're included, which I think many people would think is inappropriate, or they're excluded, and that's also inappropriate. If you're only honoring your war dead of a certain religious persuasion, then, you know, many would find that problematic as well. And it's either one or the other. Undoubtedly there are war dead who are not Christian, who are either supposed to be included in this or being excluded from it.
- [48:51]
Risa Goluboff
One thing I would add is I think it often getswhen we talk about the eye of the beholder, I think it often gets assumed that we're talking about, you know, non dominant majority religions, Jews, Muslims who are being excluded, who might take offense or take issue with the idea that the cross is a secular symbol. But one of the many things I read in preparation for this interview of all the voluminous writing about this case, is there are many Christians who take issue with that description of a cross too, right? That there are many Christians who would say, no, the cross is not secular, it's actually the sign of the resurrection.
- [49:29]
Leslie Kendrick
Right.
- [49:30]
Risa Goluboff
And it's a symbol of the resurrection. And so I think it's interesting to think about, about how different religions and people of different religions are differently situated with regard to these symbols. But it doesn't break down easily into, you know, everyone of one religion is going to see the symbol in a particular way. And then of course, as you, you know, get from the name of the main plaintiffs, the American Humanist association, there are those who say, I don't want a religious symbol at all. And why is the government, you know, sustaining this religious symbol when. When it's not. Not about. It's not my religion, it's the whole idea of religion.
- [50:06]
Leslie Kendrick
I learned so much about all of the different symbols that are on military headstones and markings. Just an astounding number of different symbols, more than 71 brief said, including a wide variety of different types of Christian symbols for different denominations. And, you know, it's really interesting to think that when it comes to individual soldiers, Christ graves, the military goes to a lot of trouble to get that right precisely for some of these reasons. And if you're making a memorial to lots of people, then you have to think about who you're including and who you aren't.
- [50:41]
Dahlia Lithwick
I want to give you both a chance to tell us about the podcast you're launching, this is very exciting. It's called Common Law.
- [50:50]
Risa Goluboff
So our podcast, the idea of it is that though there are so many things that divide us these days, including what we were just talking about, right? Different ideas about religion, different ideas about politics, race, all these kinds of things, the law is something that actually unites us, right? We all have the law in common, and the law is pretty much everywhere. It's either the background or the foreground of so much that happens in our lives. And we are going to bring to a podcast really smart people, scholars, lawyers, judges, other folks who are going to talk about how the law affects people's daily lives and how to think about the law differently. Leslie, you want to add anything?
- [51:26]
Leslie Kendrick
Yeah. And I'm really excited because the theme of our first season is the future of law. So the people that we're talking to are working on how new developments in technology, new developments in science, how those are affecting the law and how the law is affecting them. So we'll be talking about self driving cars, we'll be talking about artificial intelligence and national security, blockchain. And I think what I've realized so far is that law really is everywhere. It affects everything that we do. And we want this to be something where we, together with our listeners, think about that and think kind of proactively.
- [52:03]
Dahlia Lithwick
Risa Golubov is the first female dean of UVA Law School. She's a nationally renowned legal historian. And Leslie Kendrick is the vice Dean of UVA and an expert in First Amendment and freedom of expression law. I want to thank both of you so much for being here. This was a lot of thorny doctrine that we just galloped through, and there's no one I would rather gallop through the doctrine with. And we can't wait for your podcast.
- [52:31]
Risa Goluboff
Thanks so much for having us, Dolly. It's been great.
- [52:33]
Leslie Kendrick
Yeah.
- [52:37]
Dahlia Lithwick
That is all she wrote for this episode of Amicus. Thank you so much for listening. And if you'd like to get in touch, Our email is amicuslate.com we try to write back to all of our letters and you can always find us@facebook.com AMICUSpodcast Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcast and June Thomas is managing producer of Slate Podcasts. And we'll be back with you with another episode of Amicus in two weeks.