← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Ready, Set, Gerrymander!
00:39:20
A round table round-up of the 2018 Supreme Court term with Dahlia Lithwick, Slate’s Mark Joseph Stern, Professor Pam Karlan of Stanford and Professor Leah Litman of the University of Michigan Law School. Analysis of the census case, the gerrymandering cases, and the down-docket items you might have missed, but whose repercussions you won’t.
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- [00:06]
A
Hi, and welcome to Amicus, Slate's podcast about the law and the courts and the Supreme Court. This week, the 2018 term came to its rollicking end, and this is our annual Amicus breakfast table champagne brunch, in which we chat about the big cases, the term, what's to come next October. And joining us, as has become somewhat of a custom in recent years, is Professor Leah Littman, who teaches Common now at Michigan. Right, Leah?
- [00:35]
B
Yep, that's right.
- [00:36]
A
And is going to be the host of a brand new podcast starting this fall. Right, Leah?
- [00:41]
B
That is also right. And that podcast is Strict Scrutiny. It's a new podcast about the Supreme Court and the legal culture that surrounds it. And I am co hosting the show with a group of wonderful Supreme Court commentators. Melissa Murray at nyu, Kate Shaw at Cardozo, and Jamie Santos at a Supreme Court litigator at Goodwin Proctor.
- [01:01]
A
Dream Team. So welcome back, Leah. And then we've got Professor Pam Karlan calling in from Stanford Law School. Hi, Pam.
- [01:09]
C
Hi. How are you, Dalia?
- [01:10]
A
I'm just tired. Tired. Thank you for being here. And of course, Slate's own Mark Joseph Stern, who covers the courts here at Slate. Hi, Mark.
- [01:20]
D
Hi. Thank you so much for having me on with two of my literal idols. As usual, I feel extremely insecure, but I will do my best to provide some. Some grist for this champagne toast.
- [01:34]
A
Grist and toast. Okay. Onward and upward. So happy end of term, all three. And I'm gonna just briefly exercise a point of grumpy privilege, if that's okay. Can we please stop talking about the freaking damn debates for one second? I am trying, you guys to be generous and say, hey, let's all have hope again. And, like, it's so good to be the change we wanna see in the world and fall in love with candidates. But, oh, my God, it's like watching a romantic comedy. I can't stand it.
- [02:07]
B
We live in a moment that's insulting to romantic comedies, especially recent ones like books, if that quality.
- [02:13]
A
Okay, fair enough. But can we agree that we live in a minority majority country? Voting is dying, and all we wanna do is watch beauty pageants about voting. Can somebody tell me that I'm too grumpy and that I'm wrong?
- [02:27]
B
I don't think you're grumpy enough. Because it's not just that the Supreme Court said that even if you do vote, your votes likely won't count. And that's fine, right?
- [02:35]
A
That's kind of what I mean. Between that and Donald Trump pretty much, I think sitting on Putin's lap and telling him to steal the next election. I can't figure out why we're gonna spend a year and a half falling in love with candidates.
- [02:47]
D
Yeah. But, you know, luckily, the debate moderators spent so much time talking about those Supreme Court rulings that it really helped to balance it out. Right. I mean, America is absolutely focused on the partisan gerrymandering decision. After Thursday night's debates, in depth discussion of. Wouldn't you agree?
- [03:04]
A
Was that bitter sarcasm, Mark?
- [03:06]
D
Yes, it was. There was nothing. It was pathetic. This is so pathetic. None of them have any plan to deal with the Supreme Court. The moderators don't talk about it. They don't talk about it. It is a giant elephant in the room stampeding toward them, and they're all going to get crushed.
- [03:22]
C
Well, it's literally a giant elephant because it's the Republicans.
- [03:26]
A
All right. So grumpiness notwithstanding, I think we can all agree that the courts have now joined the other branches of government in suppressing the vote. And that sucks. And so that leads us to the term. And can somebody just walk us through the gerrymandering cases? Maybe, Mark, you. You tee us off and explain what happened on Thursday and why it maybe matters more than people think.
- [03:51]
D
Right. So these cases were a challenge to partisan gerrymandering, which is when lawmakers draw district lines in order to dilute votes for the opposite to entrench their own party's power. Fairly easy to do these days with extremely sophisticated software and techniques. If you look at a state like North Carolina, their maps are grotesquely mangled because Republicans mastered the art of gerrymandering. Democrats out of power permanently and for a very long time. Voting rights advocates have argued that this is a constitutional violation that infringes on freedom of expression. Expression. That it violates equal protection. And the Supreme Court, with Justice Kennedy on the bench, kind of dangled the possibility that they were right in front of them for many years. But on Thursday, the five conservative justices said actually, no. Partisan gerrymandering claims are political questions. They are beyond the ken of this court. And essentially, Chief Justice Roberts majority opinion. Shut the courthouse doors, or at least the federal courthouse doors, to. To partisan gerrymandering plaintiffs forevermore.
- [05:02]
A
And, Pam, just to be clear, what Roberts says is this is just not justiciable. We've tried to find a standard. You've found all these standards. They're lovely, but not appropriate for the courts to get in the middle of this. Historically, this wasn't a constitutional question, and it would be unseemly in the extreme for judges to be picking winners and losers. So drops mike, fades into the bush. It's over. And I guess my question to you is Elena Kagan says in her dissent that that can't be right because you've just said in your majority opinion that state courts do this all the time and lower courts do this all the time. So I don't understand why this is the issue on which John Roberts says there can be no way for courts to do this fairly if courts are doing it and have been doing it with some degree of accuracy and success.
- [05:55]
C
Well, I think what he's really saying, in part, is we don't want to be in the middle of this, and so we're going to take all of the federal courts out of it. State courts could theoretically still do it under the federal constitution, because the important thing for folks to understand about this is the court is not saying that these gerrymanders are okay. It's simply saying we are not the people to say that they're. That they're unconstitutional. And this goes back, as you know, as far as the first time the Supreme Court really wrestled strongly with this issue, which is none of the justices say there's not a constitutional problem here. What they say is courts shouldn't be in the business of doing this. So it's theoretically open even to a state supreme court, I suppose, to decide this on federal constitutional grounds. And some state supreme courts, most notably recently the Supreme Court of Pennsylvania, have decided these cases on state constitutional grounds. One thing just to get out on the table is you might call it the you ain't seen nothing yet problem, which is for the last 10 years, everybody has assumed up until now that if they could just persuade Justice Kennedy that this particular gerrymander went too far, they might get a standard out of the Supreme Court. And I think that had a kind of cautionary effect on most of the people who were gerrymandering, which is they didn't go as far as they could because they were worried that if they went too far, that would bring Justice Kennedy down on them. And now they've basically been told there's no limit that the federal courts are going to enforce. And that means that you're likely to see a lot of things like what you saw in North Carolina, which is people getting up on the floor of the legislature and saying, our goal here is to screw the other party. And the guy who was the kind of floor manager in North Carolina on the Rucho case, which is the case that Mark was talking about. Got up and said, why did we draw 11 Republican districts? I'm sorry, 10 Republican districts and three Democratic districts, because we couldn't figure out how to draw 11 Republican districts. And so I think you're going to see coming out of the 2020 census some really amazing redistricting or redistrict every two years just to increase your power. I mean, the thing that I think people don't realize is as bad as the gerrymanders we've seen have been, it's entirely possible we're going to see a whole nother thing after 2020.
- [08:26]
A
And Leah, can I ask. I think one of the things that I caught in Elena Kagan's dissent in the gerrymander cases was this deep frustration. I mean, at one saying voting is kind of at the very beating heart of democracy. Right. Our elected officials work for us, not vice versa, and we choose them and not vice versa. But beyond all the sort of very frustrated rhetoric, I think that there was this valence there of just people are going to lose confidence. They're going to lose any belief that their vote can matter for a lot of the reasons that Pam is saying, these illusions that we draw distict. I'm sorry, that we draw districts, you know, it doesn't have to be perfectly proportional, even though Chief Justice Roberts says that's what we're looking for, but it certainly can't be catastrophically wrong. And am I right to say that one of the things that Justice Kagan is balking at here is this message that's sent to the voters? Oh, well, as Pam says, you ain't saying nothing yet.
- [09:35]
B
I think that that's exactly right. She opened her opinion. I think her recitation of the facts and also closed with it with this question, is this how American democracy is supposed to work? And she says no one thinks that it should work this way because partisan gerrymandering threatens the very premise of the constitutional democracy, which is that elections are supposed to be responsive to the popular will. And with very strong language, she talked about how it debases and devalues and dishonors our democracy and how it's really odd for the majority to say that gerrymanders are political questions that can be fixed in through elections, when elections are undermined by that very gerrymandering. So, yes, she really did sound the alarm that the Court's approval of partisan gerrymandering and essentially giving the green light to legislatures to do the most extreme partisan gerrymandering possible, that they can really will undermine faith in all of our branches of government, because it will make those political branches much less responsive to popular will and Democratic sentiment.
- [10:34]
A
And, Pam, what's the test that Elena Kagan is proposing? It's the same. She's repurposing the test she tried out last year. What is the test? And is it justiciable? Is she creating a standard that is workable?
- [10:48]
C
I mean, you know, ultimately, political gerrymandering is a question of when have you gone too far? And, you know, I think there are a variety of ways of getting to when have you gone too far, ranging from when somebody gets up and says the purpose of this plan is to screw the other party and make sure their votes don't count on down. So I don't think it's so much that there's one kind of clear test, and I think this is where the majority gets its rhetorical power at least, is the argument that there's nothing as clean as one person, one vote, which Justice Stewart once described as sixth grade arithmetic. And there isn't a sixth grade arithmetic test. But I think Justice Kagan is right that there are ways to. There are ways to come up with judicially manageable standards of saying there's just too much here because this is so asymmetric.
- [11:55]
A
I want to take a moment to talk to you about our membership program, Slate Plus. If you're hearing this, you're listening to the regular version of our show, which is fantastic. But if you sign up for Slate plus, you can enjoy this show commercial free, and you'll get access to bonus segments and extended versions of your favorite Slate shows. It's only $35 for your first year, and you can sign up free for two weeks to check it out first. And that's not all. By signing up for Slate plus, you would be supporting this show and all the journalism we do here at Slate. We know that you value our coverage. We know you value it now more than ever. So in order to do this work, we need your help. Sign up for Slate Plus. Help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus Mark, you have reported the heck out of the census case. This is the case. We've talked about a bunch on the show. Can you explain a little bit about what the issues were in the case and then what happened Thursday and the extent to which the new information inflect on any of that?
- [13:02]
D
Yeah. So, you know, we've known for a very long time that there's no actual need for a Citizenship question on the 2020 census. To the contrary, the Census Bureau's experts have said that adding a question will prompt an undercount of mostly Hispanics and immigrants, that it will make those groups substantially less likely to answer the Census, which would in turn lead the federal government to think increasing. There are fewer people in a bunch of very diverse regions. They tend to be Democratic areas. And so there would be this round of redistricting in 2020 that relied on this warped census data that basically transferred power from diverse Hispanic and immigrant heavy regions to more white and rural areas. That's the indisputable impact of a citizenship question. The question before the court was, did Secretary of Commerce Wilbur Ross attempt to add that question in a lawful manner? So the Administrative Procedure act says no federal agency, including the Commerce Department, can take any action that is arbitrary and capricious. Right. So the big question here was, did Ross add the question in an arbitrary and capricious manner? And sort of, by extension, did he lie about his reasons for. For wanting to add the question? So what were his reasons? Well, he told the Supreme Court that he really wanted to better enforce the Voting Rights act, which, by the way, the Trump administration has not enforced at all during its years in office. But Ross claimed that the Justice Department sent him this letter that said, well, look, we need this citizenship data so that we can make sure that Hispanic votes aren't being unduly diluted. So add this question and it'll help us out. During the process of discovery in this case, it was revealed that, in fact, Ross had asked the Justice Department to send him that letter, that he had basically gone shopping around to different agencies and said, can any of you give me a reason to add a second citizenship question? Finally, sort of pulled rank, called in Attorney General Jeff Sessions, got the Justice Department to send this letter. That is just not true. And that was his stated reason for adding the question. And on Thursday, the Supreme court, by a 5 to 4 vote on this particular dispute, said, look, it's really, really obvious that the Voting Rights act is not the reason that Ross wanted to add the citizens to question, sent the case back down, said, it's not fundamentally illegal to add a citizenship question to the census, but you have to give us your real reason at a minimum. And Ross didn't do that. So the question now there are really two questions. First is, can the Trump administration get its act together quickly enough to find a new, legitimate reason for adding a citizenship question? I think the answer is no, but there's a lot of discussion. Dispute over that. And the other issue is how much of a role did some of the evidence about the administration's sort of malfeasance here play into Robert's decision blocking this question? Because even after that trial in which all of this evidence about Ross's bad faith came sort of pouring out, there was a discovery of this file on the hard drives of a deceased Republican operative that showed he had written this memo in 2015 that explained how adding a citizenship question could ultimately lead to redistricting that would boost white voting power and diminish minority voting power and basically help white Republicans. And several sections of that memo were copied almost verbatim in a letter that a Justice Department official wrote that sort of laid the groundwork for all of what I just described for this Voting Rights act rationale for all of this pretext. Was Roberts shamed into ruling the right way in this case because more smoking gun evidence was piling up at his doorstep? I don't know the answer, and we probably never will, but it's clear that Roberts felt if he ruled for the administration on this question, on this issue, he would basically be humiliating himself and the court by accepting a lie that everyone who is not utterly biased or really, really dumb can understand to be a lie and a partisan sort of racist lie at that.
- [17:46]
A
So, Leah, this raises the question, because Robert's problem, he has no problem with the, you know, arbitrary and capricious stuff. He's, like, fine with the Administrative Procedures Act. He just doesn't like the clumsy lying. And more than Wegg has said, the takeaway from Roberts at the place where he joins the liberals is just lie better next time. Like, don't be so yucky in your lying. Doesn't that just invite more, you know, it can be perfectly pretextual. Just don't make it ugly and kind of awkward.
- [18:24]
B
Yes, no, and I think that that's exactly right. And in some ways, it mirrors, say, the travel ban case where, you know, the Chief justice eventually was willing to sign off on the third kind of whitewashed version of the entry ban. You know, the first version of the entry ban had singled out Muslim majority countries and gave an exception to Christian minorities in those countries and had not been vetted by any of the internal agencies. And then, you know, eventually the administration got a bit better at lying, had their lawyers kind of scrub it a few times. And same. They did the same thing with the ban on transgender service in the military. And the Chief justice, this is basically saying, you know, I'm not willing to give your first really shitty. Draft a pass, especially when you have all of these lies about your motives in the administrative record. You know, the census case came to the Court on the first proposal. You know, they didn't have the opportunity for their lawyers to kind of revamp the administrative proposal before the Court had the chance to review it, in part because of the timeline that this case was on. Whereas the census forms need to be printed at some point between July and October, and the administration had said by July, and you're exactly right, that the Chief justice basically had to hold his nose and say, gosh, guys, can't you do a better job at just concealing your motives and pretending that there is a legitimate purpose here instead of actually doing such a poor job at coming up with a legitimate justification and making it even plausible for me to sign off on?
- [19:49]
A
And, Pam, I guess this raises the question that, you know, we're about to talk about the dismantling of and distrust of agencies, and yet how does the dissent in this case that is so mad that we don't trust Wilbur Ross, who is a paragon of agency competence, how do we square that with this drip, drip feeling that we're getting from the five conservative justices that everything agencies do is bad and should be mistrusted?
- [20:23]
C
There's no real way to square that circle. Theoretically, you could say, well, this case is about the arbitrary and capricious standard. And, you know, honestly, it's not that Wilbur Ross's decision here was arbitrary and capricious. It was intentional and malicious. You know, he went out of his way to come up with a lie. And I should say I was an expert witness in the case, and I went through every Voting Rights act case from the beginning of time, and there's not a single case that was lost because citizenship data of the kind that Wilbur Ross said he needed was absent. Not one. And, you know, the Voting Rights act has been enforced now for 40 years, 50 years, to some extent, and there's not a single case that they needed the data that he said they needed for. So, you know, the blatant lying, I think, you know, offended the Chief Justice. And what's striking is, as you say, is that you have a bunch of justices who are not prepared to defer to agencies that have real expertise on real issues. And yet they say, well, Wilbur Ross needs all this deference. And it's just striking and to some extent, quite hypocritical.
- [21:42]
A
So there's a through line, Pam, between what you said about the gerrymander cases and what you've just said now, which is maybe it's better to just blurt out the truth, that we've kind of come to the point where pretexts generally are going to hurt you. And maybe it's just better in much the same way that state legislatures can just stand on the floor and announce like, no, we pretty much, you know, took all but three seats, cuz that's what we could take. And by the same token, if Wilbur Ross had just said, here's what I'm doing, because I really just wanna know how many citizens we have, he would have done better taking out the racial part of this.
- [22:25]
C
That's the other piece of the through line, which is you can't come out and say I'm doing this for racist reasons. That is, I think the Hofeller letter, which Mark was pointing to said that drawing the districts this way will help non Hispanic whites, which is another way of saying it will hurt Latinos. And you can't say that that's not a reason that the Supreme Court, at least so far, would go along with. One of the things, you know, going back to the beginning of the term and looking at, you know, the decision that Justice Kavanaugh wrote in Flowers is when it's blatant racism, some of the justices on the, on the right will get off the bus, but you can come up with virtually anything else and they'll defer to it. And that was Leah's point as well, is that, you know, if you just come right out and say we don't want Muslims in the country, the Supreme Court and the lower federal courts will do something about that. But if instead you say, well, this is national security and you don't use the M word, then maybe the Court will uphold it. If you say we want this data to enable states to draw their districts based on citizenship, you might be able to get away with that. But not if you say we're doing this to screw over Latinos. But as long as you talk about it as just this will help us politically, or we're just inquiring minds want to know. It's just idle curiosity. The Supreme Court, it looks like four justices are prepared to defer there, which is so, as you said, antithetical to their general view that they don't trust agencies to do anything.
- [24:02]
B
As Pam noted, it is hypothetically possible for the Commerce Department to come up with a more politically palatable justification for adding the citizenship question that would have passed arbitrary and capricious review and been a valid reason, namely if the Commerce Department had Said, we're just doing this to help us politically instead of we are doing this to disadvantage Latinos and help non Hispanic whites. And you can imagine a similar problem is going to arise in the partisan gerrymandering case because of how racially polarized voting and party affiliation is in the United States, which is. It is pretty easy for politicians now to say, well, we're just doing a partisan gerrymander. We are attempting to favor Republicans and disadvantaged Democrats. But in the course of disadvantaging Democrats, you are also going to be disadvantaging a bunch of racial minorities. And because political party and political affiliation can be a proxy for race, you are giving legislatures a lot of COVID to potentially disadvantage and cloak racial gerrymanders as partisan gerrymanders, just as Commerce could have and might in some future administration drum up a more politically palatable justification instead of coming out and saying, well, we're trying to disadvantage Latinos.
- [25:14]
D
That's why the Republican lawmaker in the partisan gerrymandering case said, I want as few seats for Democrats as possible. I wanna skew this map for Republicans. He said it because he was being sued for a racial gerrymander at the time. The legislature was embroiled in this fight over a racial gerrymander. And his lawyers told him, well, racial gerrymandering is a no, no, but partisan gerrymandering is a okay. That's why there are all of these smoking guns in the partisan gerrymandering cases, because the legislators went out there and said, look, no problems here. We just want to discriminate against Democrats. Definitely not black people, Democrats only.
- [25:52]
A
Yeah, it's interesting. And that's the sort of equal protection question that the court doesn't touch yet. That's the one that's gonna. Presumably, if there were time to do this, that would now be looked at in the district courts. But what you're all three of you saying in slightly different ways is that with this sort of blessing, that everything is political and that's all fair game. What's gonna happen is an enormous amount of subterranean racial gerrymandering and enormous amount in the census case of suppressing votes based on race. So it's kind of like we've built a better pretext. That's all that happened here. Or a more bulletproof pretext. Can I ask you, Leah, to talk about. One of the things that has been interesting this term, and you just wrote about it, was that people who think that both judges are exactly the same are sorely mistaken and that there is a real fault line evolving between Justices Gorsuch and Kavanaugh. Can you talk about that a little bit? I know, Mark, you've written about it, too, but maybe, Leah, you'll start us off.
- [27:00]
B
Yes, of course. Although in talking about it, I want to caveat it with this. Whatever differences there are between them should not obscure the fact that both of them are deeply conservative. Both of them vote in very conservative ways in all of the predictable issues. And what I am about to discuss shouldn't kind of be taken to challenge that or to suggest that their votes are somehow very unpredictable in an important set of cases. But there are some differences between them. The ones that I've written about most extensively come up in criminal cases. And specifically, Justice Gorsuch has some real libertarian instincts that lead him to be very skeptical of the government's ability to criminalize conduct or in other cases, regulate in accordance with the administrative state. So in criminal cases, Justice Gorsuch will say the government has to write statutes super clearly. So it is clear what conduct is criminalized. And the government also has to allow all determinations that send someone to prison to be found by juries rather than judges, again, limiting government power in the area of criminal law. Justice Kavanaugh, on the other hand, has more traditional law and order conservative instincts, and that leads him to be very receptive to the government and hostile to criminal defendants in some important number of criminal cases. And that is one important difference between the two nominees. And it's led to some interesting lineups where you have Justice Gorsuch joining the four more progressive justices to vote for criminal defendants and Form 5, 4 majorities, and Justice Kavanaugh will be in dissent. That also happened in an important set of Native American affairs cases where Justice Gorsuch joined the four more liberal justices to vote in ways that indicated he was aware of the stakes to Native American tribes in some cases dealing with hunting rights and other related issues. So that is, those are, I guess, two important areas of difference between them. And then there's there's also some difference in their general approach to tone and precedent. Justice Gorsuch is, I think, more willing to proactively question precedent relative to Justice Kavanaugh. But again, that shouldn't be taken to suggest that Justice Kavanaugh is some true believer in stare decisis. You know, he joined a number of opinions overruling cases and, you know, also questioned precedent when he was a court of appeals judge. But Justice Gorsuch questioned precedent even when the parties weren't asking him to. So, for example, In a Sixth Amendment case, he said, well, maybe criminal defendants don't have a constitution constitutional right to counsel if they can't afford one after all. And in another case last term, he joined Justice Thomas in questioning whether the Voting Rights act actually prohibits voter dilution claims. So those are some examples of some differences between them, but again, that shouldn't be taken to suggest that their votes are unpredictable in some ideologically salient and polarized cases or issues.
- [29:54]
A
Mark, I know you've thought about this as well. I guess the way I would ask the same question of you is which between Kavanaugh and Gorski, in your mind, is the true heir to Antonin Scalia's legacy?
- [30:06]
D
Yeah. So I think they both have inherited the mantles of their predecessors in many ways. Right. So Gorsuch has inherited Scalia's hatred of government power in many areas and his skepticism of some contemporary rules of criminal procedure and criminal justice that he thinks stray from the original understanding of the Constitution. Whereas Kavanaugh has inherited Kennedy's very strong pro prosecution stance. And Kavanaugh has joined with Roberts and the liberals in a few mostly procedural maneuvers that look like compromises. So, for instance, turning away the somewhat high profile cases involving Medicaid funding and Planned Parenthood. Right. That spurred this, this very angry dissent among Thomas, Alito and Gorsuch where they said, hey, we need to take these cases, but these squishy conservatives, basically Kavanaugh and Roberts don't want to hear them because they involve the words Planned Parenthood. So, you know, Kavanaugh wants to play it as a bit more of a more moderate, and Gorsuch wants to play it as more of a libertarian. And that makes a lot of sense given who they succeeded. But as Leah said, in the really big cases, the blockbuster cases, the front page cases, the political cases, they are voting fairly consistently conservative, much as I think you would expect them to, because they're both really, really conservative justices.
- [31:46]
A
Pam, do you have any thoughts on the Trump justices?
- [31:49]
C
I think it is way too soon to tell anything about Justice Kavanaugh. I mean, you know, Justice Gorsuch is really letting his inner self out in the sense that, you know, he is writing in a very chatty, swashbuckling style. I think this is a term where Justice Kavanaugh kept his head down in part because of the way he got onto the court. And I think that also actually is an explanation for some of what we saw at the Court this year, which is a huge number of blockbuster cases that the Court has now taken for next year that it could have taken as early as September of last year and didn't because they didn't want to have that stuff up in front of them while, you know, while emotions were still so raw about Justice Kavanaugh.
- [32:44]
A
So that's daca. That's the abortion cases.
- [32:48]
C
The abortion cases they didn't take. The gay rights cases they did. They sat on the successor to Masterpiece Cake Shop for months. DACA they sat on for months. The gay rights cases they sat on for six months. So, you know, I think they really wanted this to be as little drama of a term as possible. And the only case that I think they were really kind of forced to take this year and did were the redistricting cases where they really couldn't kind of dodge that, and then the census case.
- [33:21]
A
So the two that end the term are essentially the ones that if they couldn't hold them off till next year, but everything else they could. So this raises this question that I have to ask, which is why the heck would you take all those blockbuster, you know, sort of big ticket, page A1 cases in a damn election year? Why are they taking daca?
- [33:43]
C
Well, one thing just to remind people of is the they that decides whether the Supreme Court is going to take a case is any combination of four justices. So five of the justices can want to dodge things, but if four of them either want to stick it to the other five or firmly believe this is the time to take it up, there's nothing the other five really can do about that.
- [34:05]
A
So, Mark, is that your theory, too, that there were just four justices who thought DACA is a big winning issue for the president in an election year?
- [34:15]
D
Well, I think, I mean, I think Pam's obviously correct. I think that you saw Roberts and Kavanaugh working with the liberals to put off some of these big blockbuster cases, in part because there was just so much focus on the court and so much skepticism and rage over Kavanaugh's confirmation in the wake of, of course, sexual assault allegations. It was a raw nerve for the entire country. And so for different reasons, the, the, the most centrist conservatives, which is not saying much, but Kavanaugh and Roberts were willing to work with the liberals and kind of forestall the apocalypse, the conservative revolution for another term. And that's all going to end now. But a weird side effect of that was, sure, you kept the spotlight mostly off the Supreme Court for a year, but now it's going to be on the court in the midst of a traumatic and all encompassing presidential race, which is not something Roberts is going to enjoy or any of them are going to enjoy, but that's what they've set themselves up for and it's not going to be a lot of fun for them.
- [35:23]
A
And so, Leah, just one last question on this topic. What Mark is suggesting, what Pam is suggesting, is that there's also a little bit of a fault line where Kavanaugh and Roberts are in the camp of stay under the radar, whereas Alito and Thomas, for certain, and Gorsuch, I think to a lesser degree, sort of want to take the field. They've waited a long time to take the field. Does that sound right to you?
- [35:50]
B
I think that's right. But I also think Pam is correct to say that we don't know where the instinct to lay low is coming from. And I would say that's true not just for Justice Kavanaugh, but also for Chief Justice Roberts. That is, we don't know whether the chief justice's instinct to try to keep the court out of the highest profile cases is in part a product of Justice Kavanaugh's confirmation hearings or instead is reflective of his concern about the institutional legacy of his court and whether it is perceived as a partisan institution. And I think we will know more in the next few years where their instincts are coming from and whether they can continue to go slow in any of these bigger issues.
- [36:28]
A
And that's a wrap for the regular edition of our show. If you're a Slate plus member, stay tuned to hear us talk about more of the decisions from the 2018 term, including the all out brawling over a certain class of jurisprudence about why Clarence Thomas is letting loose. And we will talk about the cases that the court has taken up for next term. If you're not a member and you want to hear that conversation, you can sign up now@slate.com Leah Littman teaches law at the University of Michigan Law School and her podcast Strict Scrutiny. There are going to be some early ones over the summer, Leah, but it launches in its full glory this fall, is that correct?
- [37:11]
B
Yes, that's correct.
- [37:12]
A
Leah, thank you so, so much for joining us. Ham Karlin teaches law at Stanford University, and she is going to now say the thing that I asked guests to say when we have slightly depressing conversations, which is give us your Saint Crispin's Day speech, Pam, standing on one leg in your office.
- [37:33]
C
Oh, the we few, we happy few. That one.
- [37:35]
A
Yeah. Just give me the speech that tells all of our listeners who, some of whom have had a rough couple of months, why to continue believing that the courts and the law and the rule of law and language and the Constitution are going to save us.
- [37:50]
C
Well, I think we're going to save us by enforcing the Constitution and the law and by taking back the courts.
- [37:57]
A
Standing on one leg and like you could have. I got nothing. Mark Stern, who covers the courts and the law and so many other things so graciously and beautifully at Slate. Thank you for joining.
- [38:11]
D
Thank you so much for having me on. So delightful to talk about the end of the world, as always seems to happen, everybody, late June, okay?
- [38:19]
A
And so with regards from the end of the world, thank you very much for joining us all three. And we will begin our summer season, which will be much mellower. Thanks, guys.
- [38:30]
D
Thank you.
- [38:31]
B
Thank you.
- [38:31]
C
Thank you.
- [38:32]
A
Thank you so much for listening. If you want to get in touch, our email, as ever, is amicuslate.com and you can always find us at facebook.com Amazon amicus podcast, we love to hear from you. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director of Slate Podcast and June Thomas is senior managing producer of Slate Podcasts. And we'll be back with another regularly scheduled episode of Amethyst in one short week. Sam.