Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode Title: Playground of Liberty
Date: April 14, 2017
Host: Dahlia Lithwick
Guests: Holly Hollman (Baptist Joint Committee for Religious Liberty), Jeff Toobin (The New Yorker, CNN)

Overview

This episode of Amicus focuses on the Supreme Court case Trinity Lutheran Church of Columbia v. Comer, a pivotal battle over the boundary between government funding and religious institutions. The episode explores the constitutional questions raised by the case, the historical context for church-state separation, and its broader implications for religious liberty in the U.S. Host Dahlia Lithwick interviews Holly Hollman, General Counsel for the Baptist Joint Committee for Religious Liberty, about her organization's stance on why churches should not accept government funds—even for seemingly secular purposes like playground resurfacing. The conversation then shifts to a discussion with legal analyst Jeff Toobin, who profiles the influence of the Federalist Society and its key player Leonard Leo in shaping the present and future of the conservative judiciary, especially in light of Neil Gorsuch’s confirmation to the Supreme Court.

Segment 1: The Stakes in Trinity Lutheran Church of Columbia v. Comer

Guest: Holly Hollman
Timestamps: [03:24]–[24:36]

Key Discussion Points

• Background of the Case ([03:24]–[04:02]):

  • Missouri runs a program incentivizing the use of recycled tires for playground safety.
  • Trinity Lutheran Church applied for the grant to improve its playground (part of its daycare) but was denied due to the Missouri Constitutional prohibition on state aid to religious institutions.

  “Missouri has a really small discretionary program... to incentivize people to improve playgrounds with scrap tires... The program [is] consistent with the Missouri Constitution that says there's no state aid for churches.”
  — Holly Hollman [04:02]

• Constitutional Issues at Stake ([05:14]–[07:46]):

  • The church claims denial as discrimination under the Free Exercise Clause and Equal Protection Clause of the U.S. Constitution.
  • Missouri’s defense: the state has a constitutional bar (as do 38 other states) on providing aid to churches, offering more robust protection than the federal Establishment Clause.

  "We protect free exercise of religion... but we also have this hard bar against government establishment of religion so that we don't want the government aiding religion, advancing religion."
  — Holly Hollman [06:00]

• Historical Context: Why Stronger State Restrictions? ([07:46]–[09:36]):

  • State provisions grew out of American disestablishment of state churches (post-Revolution).
  • The intent: to protect both religious liberty and taxpayers from compulsory support for religion.

  “People saw that that was not consistent with the fundamental freedom of the revolutionary spirit... a core aspect... was to say that the state would not fund the training of ministers or churches themselves.”
  — Holly Hollman [08:07]

• Precedent: Locke v. Davey ([10:01]–[11:41]):

  • Supreme Court previously upheld state limits on funding for religious study—even if federal Constitution would allow it.
  • The concern: SCOTUS now seems interested in re-examining these boundaries.

  “It is surprising because to us, this case is very similar to one the court decided... in 2004 [Locke v. Davey]... There was this room for states to enact policies to protect religious freedom that go beyond what the federal Constitution requires.”
  — Holly Hollman [10:01]

• Are Playgrounds Secular? ([11:09]–[13:33]):

  • The claim that playground funding is 'secular' misses the point—church facilities are not easily divided into secular and religious components.
  • Allowing funds for secular parts risks entangling government and church.

  “Yeah, you could say that material is secular, but churches aren't secular and they're not easily divided into religious and secular zones that would make it easy for the state to come in and regulate or fund part of them.”
  — Holly Hollman [11:41]

• The Baptist Joint Committee’s Argument ([13:33]–[14:12]):

  • Strong separation keeps churches more free by avoiding entanglement and government interference in religious decisions.
  • Treating religion “like everything else” could actually endanger religious autonomy.

  “It's really short sighted when people say, hey, treat religion like everything else. That's not what most religious people and religious communities want. The First Amendment... treat[s] religion specially.”
  — Holly Hollman [14:12]

• Discrimination vs. Special Status ([15:38]–[16:35]):

  • Trinity Lutheran claims exclusion is discrimination—tying the argument to anti-Catholic “Blaine Amendments.”
  • Hollman: The Missouri restrictions long predate anti-Catholic sentiment; their primary purpose is protecting religious freedom.

  "...what's really important here is, I mean, a generation before Blaine was even born was this idea that religious liberty was protected by keeping the state out of it."
  — Holly Hollman [16:35]

• "Parade of Horribles": What's Really at Stake? ([18:33]–[20:41]):

  • Both sides present slippery slope arguments about the implications—Holly dismisses fears that upholding Missouri's law would close churches/shelters.
  • Asks: if secular playground material is allowed, what about pews, communion bread, etc.?

  "There is just no evidence whatsoever that if the court upholds Missouri's constitution, that there will bring some kind of parade of horribles on churches there."
  — Holly Hollman [19:23]

• Larger Context: The Religious Liberty Fight in America ([20:41]–[24:20]):

  • Trinity Lutheran is part of a broader national struggle over the limits of religious liberty versus law (e.g., Hobby Lobby, Little Sisters, cake bakers).
  • Hollman suggests starting with protecting houses of worship (as a special category), then tackling more complex issues incrementally.

  “Surely we can all agree that houses of worship represent central core expressions of religious freedom... and they should be protected in special ways.”
  — Holly Hollman [22:19]

Memorable Quotes

• On treating religion uniquely:

  "It's really short sighted when people say, hey, treat religion like everything else. That's not what most religious people and religious communities want. The First Amendment... treat[s] religion specially."
  — Holly Hollman [14:12]

• On the historical basis for strong state establishment bans:

  "...a core aspect of [disestablishment] was to say that the state would not fund the training of ministers or churches themselves... that needed to be left to individuals and faith communities."
  — Holly Hollman [08:07]

• On potential slippery slopes:

  “Can we buy secular bread that could be broken in communion in a Christian service? So really, they are opening the door wide to say that any aid that could be secular should be okay...”
  — Holly Hollman [19:23]

• On the current intensity of church-state debates:

  "It just seems like suddenly litigating that line in the sand has become... one of the really most dangerous and undiscussable issues in American constitutional law right now."
  — Dahlia Lithwick [21:35]

Segment 2: The Federalist Society and the Conservative Legal Movement

Guest: Jeff Toobin
Timestamps: [24:39]–[47:44]

Key Discussion Points

• Neil Gorsuch's Confirmation: Significance ([25:33]–[27:04]):

  • Gorsuch’s confirmation is a triumph for Trump, Senate Republicans, and conservative legal activists.
  • Although not altering the immediate ideological balance (conservative replacing conservative), it prevents a liberal shift and sets the stage for major future impact if more seats open.

  “It is not yet a dramatically different Supreme Court, but they had to replace Scalia with a conservative in order to get ultimately where they want to go.”
  — Jeff Toobin [26:06]

• The Federalist Society: Origins and Operation ([28:17]–[29:39]):

  • Established in 1982 by students desiring a conservative legal community; now a vast network for conservative lawyers.
  • Functions as a powerful pipeline—networking, supporting, and shepherding judicial talent to the federal bench.

  “It is not a group that takes official positions on issues... It's really a networking opportunity for conservatives in the law...”
  — Jeff Toobin [28:38]

• Who is Leonard Leo? ([29:39]–[33:03]):

  • The Society’s chief impresario, networker, and power broker—his deep Catholic faith and pro-life activism shape his influence.
  • Leo has been directly involved in the nomination of Sam Alito, John Roberts, and Neil Gorsuch.

  “We have no president today who has appointed more than two justices... but we have Leonard, who's responsible for three, at least in part, which is pretty amazing..."
  — Jeff Toobin [33:03]

• Leo and Trump: How Judicial Picks are Handed Over ([34:27]–[37:06]):

  • Trump, lacking personal views on the courts, deferred entirely to the Federalist Society for his nominations.
  • The "list" of potential Supreme Court nominees was developed by Leo to solidify conservative support for Trump’s campaign.

  “In a weird way, unlike what we've seen before, even with George W. Bush, who may not have cared that much about the courts, there's really no check on Leonard Leo..."
  — Dahlia Lithwick [34:27]

• Money and the Conservative Legal Movement ([37:06]–[41:05]):

  • Federalist Society is backed by significant funding from conservative foundations and donors (e.g., the Koch brothers), building a "pipeline" for judicial talent.
  • Discussion of campaign-style advertising and "dark money" used to support judicial confirmations—though the Federalist Society itself is transparent about donors.

  “We are training a generation of lawyers who will be government officials... district court judges, circuit court judges, supreme Court justices...”
  — Jeff Toobin [37:39]

• Originalism, Big Money, and Hidden Motives ([41:05]–[43:12]):

  • Debate on whether donor support is about genuine legal philosophy or conservative economic interests (i.e., less government regulation).
  • Toobin sees mixed motives but emphasizes that the effect—more conservative, deregulatory judges—is clear.

  “Now, why the Koch brothers give money... I think is out of the typical mixed motives that people have... financial self interest is a big part of it, but I don't think it's the only part either.”
  — Jeff Toobin [41:53]

• The Federal Judiciary’s Future ([43:41]–[45:08]):

  • Over 130 lower federal court vacancies offer further opportunity to reshape the bench with young, deeply conservative judges.
  • The Trump administration's challenge is actually filling those seats amid other administrative delays.

  "They are very focused on appointing people who are in their 40s and maybe even 30s... who will serve on the federal judiciary for decades."
  — Jeff Toobin [43:41]

• Will Justice Anthony Kennedy Retire? ([45:08]–[47:44]):

  • Gorsuch's appointment (Kennedy’s former clerk) was partly meant to reassure the retiring justice about the direction of the Court.
  • Toobin predicts Kennedy is too proud to retire immediately after his protégé’s appointment and enjoys his role as the court’s swing vote.

  “He also really likes being at the center of the Supreme Court and he likes the fact that people like you and people like me spend much of our lives thinking, well, what the hell is Justice Kennedy going to do in this case or that case?” — Jeff Toobin [46:32]

Notable Quotes

• On Leonard Leo’s influence:

  “We have no president today who has appointed more than two justices... but we have Leonard, who's responsible for three, at least in part, which is pretty amazing when you think about it.”
  — Jeff Toobin [33:03]

• On the impact of conservative funding:

  "We are training a generation of lawyers who will be government officials... district court judges, circuit court judges, supreme Court justices..." — Jeff Toobin [37:39]

• On Justice Kennedy’s future:

  “It is a really good time to be Anthony Kennedy... I would actually doubt he would leave this year... it strikes me as unlikely that he would just sort of leave three months later once his law clerk was appointed.” — Jeff Toobin [46:32]

Important Timestamps

• Introduction/Overview of the case: [03:24]–[05:14]
• Historical context for state church-state bans: [07:46]–[09:36]
• Discussion of precedent (Locke v. Davey): [10:01]–[11:41]
• Holly Hollman on religious liberty and government funding: [14:12]–[16:35]
• Slippery slope arguments around secular aid: [19:23]
• Broader context of religious liberty fights: [21:35]–[24:20]
• Profile of the Federalist Society & Leonard Leo: [29:39]–[33:03]
• Federalist Society Judicial Pipeline: [37:06]–[43:12]
• Speculation on lower court appointments and Justice Kennedy: [43:41]–[47:44]

Episode Tone & Closing Thoughts

This episode blends careful legal reasoning with candid, often witty analysis ("the resistance is how much yogurt Ruth Ginsburg decides to eat"—Jeff Toobin [27:28]). It offers a clear explanation of why even seemingly petty cases (e.g., rubber playground turf) carry significant constitutional, cultural, and political stakes. Both guests emphasize the complexity of the church-state divide and the sweeping influence of organizations like the Federalist Society. The tone is insightful, conversational, and accessible even to listeners who are not legal experts.

For listeners seeking to understand the Trinity Lutheran case, the future of the federal judiciary, and the strategic machinery behind today's Supreme Court, this episode is essential and engaging.