← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Roberts vs. Trump
00:50:51
As the Supreme Court term comes to a close, the chief justice shows his political acuity.
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- [00:05]
A
It's hard not to see this as the Roberts grand finale of the year, where he gets to finish with two big cases with seven two majorities that show him up as a kind of political hero against Trump.
- [00:23]
B
Hi, and welcome to our special edition End of Term Amicus podcast. This is being taped literally moments after the ink is drying on the term blockbuster decisions about the President's financial documents. The 2019 term melted a little past its usual end date and on into the second week of July, but here we are to talk about it, fingers covered in ink. Still joining me to chew on this very, very last day of the term are three of my very favorite court watchers, and they are Dean Erwin Chemerinsky. He's Dean. And the Jesse H. Chopper Distinguished professor of Law at Berkeley Law. Over his care, his courses have focused on constitutional law, First Amendment law, federal courts, criminal procedure. He has also frequently argued appellate cases, some at the Supreme Court. Any of you who are taking the bar probably are reliant on him in ways I cannot imagine. Erwin also helped us open the term back in the fall. Erwin, it's good to talk to you again.
- [01:25]
C
It's always great to be with you.
- [01:27]
B
And Zephyr teachout is here. She is an associate professor of law at Fordham University, former candidate for governor, Congress and Attorney General in New York, former death penalty lawyer. Her forthcoming book, Break Em Recovering Our Freedom from Big Ag, Big Tech, and Big Money, will be published later this month. Zephyr, it's good to have you back.
- [01:47]
A
Oh, it's wonderful to be on.
- [01:49]
B
And I should note, Zephyr, you are the one who taught us all about emoluments for the first time right at the beginning of the Trump administration. And of course, here we have Slate's own Mark Joseph Stern, who covers the courts and the law and many, many things for us at Slate and largely has kept me sane this past week. Mark, welcome back.
- [02:07]
D
Thank Splendid to be here with these luminaries.
- [02:10]
B
And I think maybe the best place to start is these two big financial records cases, which have been hailed in the press as a triumph for the New York District Attorney and a triumph for Congress and also a triumph for President Trump and also a triumph for Supreme Court supremacy. Everyone's a winner. I don't even know where to begin. It looks like the triumph is for John Roberts. But Zephyr, maybe you want to walk us through the New York subpoena case and we'll see if we can iron some of this out.
- [02:43]
A
Yeah. Well, this case came out of investigations by Manhattan District Attorney Cy Vance, we don't know the full scope of the investigations, but into potential criminal activity. And in the course of those investigations, he requested tax returns and financial documents. And Trump and his lawyers said no into today's decision. Basically, Trump and his lawyers said that they should have absolute immunity from these kinds of requests. And in today's 7:2 decision written by Justice Roberts, that really audacious claim is smacked down. However, the case is returned as remanded for Trump to continue to bite away at the particulars of the financial requests.
- [03:36]
B
And Erwin, if you don't mind, can you tell us about the congressional subpoenas? It's complicated. There's lots of committees, there's lots of financial institutions. But maybe just with an eye on how the congressional case is both different and the same and how the result is both different and the same.
- [03:56]
C
The case is called Trump v. Mazars usa. It involves two congressional committees that subpoenaed financial records from companies that were doing business with President Trump. One was his accountant, Mazars, the other was a bank, Deutsche Bank. The D.C. circuit ruled that these subpoenas should be enforced. It was a 2 to 1 decision. The Supreme Court today vacated and remanded. The Supreme Court said that Congress does have the ability to subpoena information from the president. As Zephyr said here too, the court rejected any absolute presidential immunity. But Chief Justice Roberts, writing for the court, said that there has to be sensitivity to separation of powers issues. And he articulated a number of things that have to be considered. I would phrase it as there has to be a showing of special need for a congressional committee to be able to get information from the President. And this was then remanded back to the D.C. circuit, probably to the district court to apply the standard. I think that Trump versus Vance, the case that Zephyr is talking about, was much more clearly a victory for the district Attorney in New York and a loss for President Trump. John Roberts there said explicitly the law has the right to every person's evidence. I think the result in Trump versus Mazars was more mixed here. The court said there's no absolute immunity for the President. But the court also said there's be a heightened showing of need and separation of powers considerations must be taken in order to get information from the President's.
- [05:25]
B
Accountants at bank and Mark. I guess the follow on question is both of these as they were coming down on Thursday were being kind of processed in real time as wow, these are whomping, whomping defeats for Donald Trump. And then with a half an hour as we read and saw the remands that both Zephyr and Irwin have described, we saw that there's a brand new balancing test at the heart of the congressional subpoena case. Nobody is going to see any financial documents from Donald Trump in the near future, certainly not before the 2020 election, maybe for years. Is this one of those three dimensional chess games where Roberts gives what looks like a huge defeat to Trump while also giving him everything he wants?
- [06:15]
D
Maybe not everything he wants, but there's definitely at least a little bit of chess or at least checkers going on here. Because I think when we first read these cases, we thought, okay, well, the court is rejecting Trump's arguments. This has to be good, because Trump's arguments were awful. But we then see that the court rejected these arguments because Trump had just asked for way too much. Right. Trump's theory of these cases was utterly outlandish. Just this really disturbing vision of executive power and executive privilege, rendering him totally protected from both state criminal investigations and congressional investigations. And I think John Roberts was very clear on drawing the line in the sand and saying the President is still a human, a person, a citizen. He is not above the law, he is not a king. And that part was good, and I love that part of both decisions. But then you get to the end and Roberts throws out these balancing tests and sends the cases back down and essentially gives the President some time to probably run down the clock, at least on the congressional subpoenas through the November election. Which means, as you said, no person, at least outside of a New York grand jury, is going to be able to see Trump's financial records before they go to vote in November. So, yes, checkers going on for sure. The Chief justice has enforced the separation of powers here and enforced real limits on the President's authority. But he's also handed Trump some significant short term victories.
- [07:45]
B
And Zephyr, can you talk a little bit about now? Essentially what happens is, at least in Vance, in the New York grand jury case, this goes back to the District Court. Then presumably at some point, the grand jury get the documents. It's worth flagging that that will happen in utter secrecy. Do you have any sense of how this plays out? Or is this just years and years of litigation going forward in the New York grand jury case?
- [08:18]
A
Well, the speed of how the courts deal with it and how hard Vance pushes will really matter. And there are those of us who've been very frustrated with Vance not acting quicker from the beginning of the Presidenc. I do think in the long term, and we don't know how long that term will be. I'm less hopeful than others that this will happen before November, but hopeful enough that I think we should be pushing that. It's possible. But I do think that there is a real that it is an incredibly important principle. And I agree that that case establishes an important principle and that we could see real criminal liability and we could see the president and others in jail. And I think that the court is very clear about that possibility is really important.
- [09:04]
B
Erwin I was going to ask you a version of that question, which is it's clear that and I have to note somewhat fliply here, that this is the same John Roberts who last week told us he hates balancing tests, at least in the June medical case, but he certainly has constructed this four part test that I think going forward, Adam Schiff is gonna have to meet a lot of extra hurd. And I think I wanted to ask you, just as a purely sort of theoretical matter, what has he done to congressional oversight? It seems as though, I think, at least in this case, it's fairly clear, as Zephyr says, that Congress can make some of the showings, has already, in fact made some of the showings that the chief justice requires. But I'm just wondering, in the grand calibration of checks and balances and separation of powers, what do you see happen going forward in terms of congressional ability to get their hands on records?
- [10:09]
C
I think the Supreme Court has weakened the ability of Congress to get records. The D.C. circuit said that Congress had made a sufficient showing that the subpoenas should be enforced. The Supreme Court has now vacated and said no. In order for a court to enforce a subpoena, the four part test that you mentioned has to be met. I think that Congress can meet this here. I think, as you say, Congress has met this year, but it's still additional hurdles that come they have to overcome in these cases, but also in all future cases to get information concerning the president. So I think the court here has weakened separation of powers and checks and balances.
- [10:48]
A
I actually want to say I totally agree with that and I found that I've read that section as we record this. It's only a few hours old, but this is the opinion that came down on Thursday. I've read Robert's balancing test a handful of times, really trying to make sense of it. And when we think about power, it actually gives an enormous power to the judiciary and takes away congressional power. And it's a remarkably brief test. The whole opinion I haven't done A word count. But I think it's a really short opinion given the complicated issues that arise in the test. Even though I think it, I hope it's implied. The test does not talk about the important role of Congress, does not explicitly reaffirm the important role of Congress as an oversight body. Acting to reveal malfeasance in the executive branch, instead focuses more on potential legislative action. I think that's somewhat disturbing. If you looked at the oral argument, you could see an enormous amount of discussion about Justices trying to figure out how do we do it, how can we have a test that doesn't require us to second guess congressional intent? And I don't see this test, as Roberts laid out, actually solving that problem. In fact, it does suggest to me that it will involve the Court taking power for itself and second guessing congressional intent. And I find that incredibly disturbing.
- [12:33]
D
I think that's such a terrific point. And I found it interesting that Roberts claimed to be standing by these precedents that gave Congress a broad power to investigate through subpoenas, but at the same time he kind of rewrote them. Because if you look at cases like Eastland, which is about congressional subpoenas, the Court says its chief goal is to keep the federal judiciary out of disputes between the executive branch and Congress. Right. The Court says, this is not our job. These are political disputes. We need to keep our heads out of this. And so we're just going to adopt this very deferential standard. And for the most part, courts are just going to be expected to kind of rubber stamp congressional subpoenas because it's one of Congress's powers. And now Roberts comes in and rewrites those cases like Eastland and says, well, actually, the real separation of powers problem here is between Congress and the President. The judiciary doesn't seem to count for him because the judiciary is just so wonderful and splendid. So long as it's being led by John Roberts, how could it ever pose separation of power problems? And I think there's a lot of arrogance in that assumption that it poses a real separation of powers problem for Congress to be subpoenaing the President, but no apparent separation of powers problem for the judiciary to be intensely refereeing those disputes by really carefully, meticulously going over all of Congress's justifications and deciding whether they're satisfactory for judges.
- [13:57]
B
It's such an interesting point. It actually reminds me of some of the language we got in Wednesday's Little Sisters case where everybody is bemoaning the fact that this used to be worked out through accommodations Right. In that case, it was who gets a religious exemption and who doesn't, and how do we do accommodations? And there's a lot of hand wringing about. These used to be things that were worked out, which is exactly what we've been hearing all along about in these presidential records cases, is that these things used to be worked by the parties, and now everybody's bad children and they all have to go sit in the naughty chair and the court will referee it. So there is a little bit of a sense that the court is trying to take this posture mark of, look, we're the adult in the room. We wanted everybody to work things out. Nobody is playing nicely. So now we have to step in. And that seems to dovetail really nicely with a. These principles of judicial supremacy that the court loves, but also with just the rhetoric swirling around that everybody's just being childish and someone needs to be the adult. Irwin, are you. Are you. I'm looking at your face and I'm seeing you maybe disagree.
- [15:13]
C
I think there's a real difference between the two cases concerning subpoena in that regard. Trump versus Vance was not of that sort at all. It was clear and unequivocal that the grand jury has the right to every person's evidence. The President has no special exceptions from that. The president can raise defenses that anybody else can raise, but no more than that. I think it's the congressional subpoena case where the court tried to strike a compromise between the president's absolute immunity position and Congress's. The president gets no immunity, and they came up with this balancing test. And I think there's a key difference between those two cases.
- [15:51]
B
And that's why the Chief justice in the one case is so clear in Vance, where he's like, dismissing bing, bing, bing, presidential humiliation. The President is too busy. That's an easy, easy thing for him to bat back. I think the congressional case is messier in part because the interests are blurrier. I wonder if we could talk for one minute about Justices Gorsuch and Kavanaugh. I mean, here are the two Trump appointees who, while they don't completely sign on with Chief Justice John Roberts, certainly sign on with the result. I think they would have been a little bit less deferential. But what does it mean? I guess the optics of having Trump's two appointees not side with him must be painful for him. But beyond that, can anyone talk a little bit about the light between. There's not a ton of light even between the dissenters and the majority, but between the dissenters, the concurrences in the majority today.
- [16:54]
C
I would begin by saying it's important to note these cases weren't unanimous. United States versus Nixon in 1974 was unanimous. Clinton versus Jones was not unanimous. On the other hand, I'm thankful they're not 5, 4. I think that Gorsuch and Kavanaugh would want to give much more protection, or some more protection at least to the President than Chief Justice Roberts opinion does and certainly by comparison to Justice Thomas, who would give total protection to the President.
- [17:27]
B
Mark, your thoughts on Thomas and Alito and what's animating their dissents?
- [17:32]
D
Yeah, I mean, Thomas and Alito are so predictable here. They're both very much saying this is presidential harassment. They might as well have tweeted it in all caps with a bunch of exclamation points. Right. And then Thomas adopts this very wacky limited theory of congressional subpoena power, basically, basically saying it almost doesn't exist. Alito does his super aggrieved performance about how these politicized prosecutors and House committees are just going to go after the President non stop and stop him from exercising his constitutional duties. I am more interested, as I think you are, in the daylight between Robert's majority and the Kavanaugh Gorsuch concurrence in the Vance case. And I, I do think there's a lot of daylight there because I think that both Roberts and Kavanaugh agree that Trump's argument is ridiculous, that the President does not have absolute immunity from a state criminal subpoena. But Roberts then follows up with, there might sometimes, occasionally be a reason why a President can avoid these subpoenas. We can't really think of it, but we'll let the lower court just kind of suss it out to make sure we've got all our bases covered. And Kavanaugh, by contrast, says, I actually think there are a lot of reasons why a President could still duck a state subpoena. Even though he doesn't have absolute immunity, he still has this duty to perform his constitutional functions. And so I want this lower court to spend a lot of time carefully thinking through whether Trump can basically devise an alternate excuse to avoid Cy Vance's subpoena. And so I agree it's terrific that both decisions were not 5 to 4, but I think in some ways Vance was 5 to 4 because the majority took a much harder line against Trump's privilege from this subpoena than did the concurrences from both of Trump's appointees.
- [19:26]
A
I think that's right. And I just want to underline. I just think it's really tempting to just lump these cases together because they both involve discovery of financial records. But as Erwin pointed out early on, they're really fundamentally different cases. And they both have to do with tension between different sorts of power, but really different kinds of tension. And I found the, you know, the Vance case then far more comforting and the Mazar's case really. I just keep coming back to things that are troubling. It has a vision of politics. Robert's vision of politics in it is hard for me to square with Robert's vision of politics elsewhere. Dalia, you were talking about it as he's sort of treating it as the judiciary taking care of these little children. But here in Mazars, he's really worried about institutions using their power to gain relative power over other institutions in other areas like in Crawford and election law. Roberts and others in the court take for granted that people with power will use that power to try to enhance it. And you shouldn't second guess that. That's what politics is, is this people seeking power. And we shouldn't judge that or second guess it. And I'm trying to squeeze understand what his vision of what Congress members are supposed to be here. And I do think that a little bit of that monarchism that you see in the Vance concurrence shows up in just sort of the seeds of monarchism show up again in the Mazar's majority. And as a matter of politics, I know many other people have said this, and you guys are closer court watchers than I am, but it's hard not to see this as the Roberts grand finale of the year, where he gets to finish with two big cases with seven, two majorities that show him up as a kind of political hero against Trump. And I do tend to see Roberts as a political actor in that way and that this feels very much like a dance with him coming in for the final, for the final performance. And what that does for him is it reaffirms the legitimacy of the court. And I think that there are many legitimate questions about the court's role. And by ending this way, it ends with a chorus of judicial legitimacy as against Trump's illegitimacy.
- [22:07]
B
It's such a good point, Zephyr. And it's worth reminding folks that when we heard oral arguments legitimate, at least in the Mazars case, the amount of contempt evinced for congressional committees and congressional investigations, I mean, it was really almost baked in that Congress is doing something illegitimate. And the showing would have to be. But from the courts, not just Trump's lawyers, but from, you know, members of the Supreme Court, that I think you're right, Zephyr, to hone in on this idea that that politics is being recast as something really different. And that doesn't quite escape even today's opinion. I wonder, Zephyr, while I have you, one of the things that I've been thinking throughout the year is that even if the public were to see these documents, even if Mazars were to unspool it all tomorrow and Deutsche bank and all of it were to be seen, whether it would have mattered. I mean, I always had the sense that if we couldn't quite understand the Mueller report, how are we going to wrap our heads around shell companies and unbelievably complex. I mean, millions and millions of dollars were spent to make these documents look legitimate. And maybe this was all a bit of a snipe hunt. You're the corruption person. You tell me what would it have moved the needle to see this before November?
- [23:35]
A
Two things. One is we certainly, I think we should all be humble in our punditry. And I don't know, I can't promise that it would have. But I also believe everything matters and everything matters in ways that we don't know. And I continue to find it incredibly disturbing that we don't know the way that foreign money may be influencing this presidency. And its a daily tragedy and there's a daily question mark next to every trade and military decision we're making. And it is absolutely the public's right to know that. So I can imagine a world in which it can make a difference and not just with Trump, but with other races to say no, when you actually know, when you just don't say foreign, but you actually can follow the money in a more easy narrative way that it can make a difference. And I'm never going to stop saying that we need to know that information. It's absolutely fundamental to our right as members of this political community.
- [24:43]
C
Can I say the obvious? Donald Trump has fought so hard to keep this information secret. I've got to believe there's a reason he's doing that which then caused me to do that. Zephyr, if it's revealed, it might have something quite important.
- [24:58]
B
Okay. I want to turn now, if we might, to two of the other cases that came down earlier in the week. On Wednesday we had one that had to do with how religious schools can determine which of their teachers is a minister and the other that is a follow on case to a long line of cases that have to do with those who do not want to afford contraception coverage to their workers. This goes back to Hobby Lobby and the Little Sisters of the Poor. Both of these cases prove to be not surprising wins for religious liberty claims. Seven to two decisions in both cases that bolstered the rights of religious employers in one case and religious schools in the other case as against claims by their employees. So in some sense it does raise the question, even though I should add these cases did not get the pressure that say June Medical or the financial documents cases got. But both of these I think raise at least the specter of religious freedom and religious dissenters winnowing away at protections that are afforded by statute or by the Constitution that there is a way in which religious liberty is becoming something of a PAC man that is going to eat other up the rights that are won on other fronts. Erwin, can you walk us through the cases?
- [26:35]
C
The first of the cases was Our lady of Guadalupe versus Morrissey Baru and I actually think practically speaking, this is going to be the more important of the two cases. What's involved here is whether or not teachers in religious schools are protected by employment discrimination law. Less than a decade ago, the Supreme Court said that a religious institution can't be held liable for the choices it makes to still be its ministers. But these cases involved elementary school teachers who weren't ministers of the faith. That was even disputed how much they were teaching religious material. And the Supreme Court said that there cannot be liability of religious schools for the choice it makes who be the teachers. That then means that any religious school can discriminate with impunity on the basis of race, sex, religion, sexual orientation. I've always believed that free exercise of religion shouldn't give a right to hurt others. Free exercise of religion shouldn't give a right to discriminate or to put in the language of constitutional law, stopping discrimination should be seen as a compelling government interest. Thirty years ago, the Supreme Court said religion shouldn't get exemptions from general laws. Now the Supreme Court has given religious institutions exemptions from those important laws, those that prohibit discrimination. The other case, the Little Sisters of the Poor versus Pennsylvania case, involves an administrative law question, not a constitutional question, and involved whether the Trump administration could expand the exception from the contraceptive mandate. The contraceptive mandate was try to make sure that as much as possible, women employees would have insurance coverage with regard to contraceptives. The Trump administration broadly expanded that exception by saying that anyone who has a religious objection or a conscious objection to contraception, can refuse to provide such contraceptive coverage to women employees. The Supreme Court said that that was a permissible action within the statute. But I here would point to Justice Kagan's concurrence where she said, well, it could still be challenged as arbitrary and capricious under the Administrative Procedures Act. The case is going to go back on remand. So I think this is an issue that's still to be litigated and will ultimately come back to the Supreme Court. But to put the two cases together, along with one from a week ago case coming out of Montana, I think one of the things where the conservatives are very much united and sometimes get Raju and Kagan to go along is expanding the protections of free exercise of religion and decreasing or I'd say obliterating the wall that separates church and state.
- [29:22]
B
And it's worth noting, I think, Erwin, that Justice Kagan does that thing in her concurrence where she literally gives a blueprint, right, here's how to go back and win it when you challenge it again. But, Mark, this leads me to you and at least to Bostock, because I think there are real questions now about whether religious dissenters, religious free exercise claims are going to make it really hard for some of the big, big wins to really be big wins if, as Erwin says, the idea of free exercise is becoming this great kind of PAC man that is chewing away at fundamental rights that are given in other contexts.
- [30:05]
D
Yeah, I mean, what John Roberts giveth, John Roberts taketh away. Basically. Just shortly after a terrific decision in Bostock where the court ruled that the Civil Rights act protects gay, bisexual, transgender employees from discrimination, the court turns around and says, but if those LGBTQ employees happen to be working for a religious institution, including a Catholic school, and even if they have trivial religious duties, and the teachers in the cases that the court just decided really did have trivial religious duties, joining the class in a kind of pro forma daily prayer, they lose all protections, not only federal protections, but state protections. And I think it means that a whole group of people who suddenly gained rights to. To work in their own identities and to come out at work and not face discrimination suddenly had that taken away from them. It was like a glorious two week period where they could work without discrimination. And the court came back in and said, actually, if your employer says they're doing it because of Jesus, then you got to go. And I think it's very informative and helpful to place the Espinosa case that Erwin was Talking about next to this ministerial exception case, because in Espinosa, the court rules that once a state starts funding private schools, it has to also fund private religious schools. And in the ministerial exception case, it says that basically those private religious schools get to hire and fire on the basis of all of these protected traits that American law has protected for decades. And so we've reached this awful point where a majority of states are simultaneous going to be forced to fund private religious education and then rendered incapable of enforcing their own civil rights laws against those schools that they are funding. If this is not an example of a court that only cares about the free exercise of some and ignores the rights of others, I don't know what is. The court just focuses so narrowly on the very powerful groups that bring these claims that are represented by wealthy, powerful law firms like alliance defending Freedom, and ignores all of the others who lose with these decisions. The taxpayers in Montana who don't want to fund religious exercise that goes against their own beliefs, the many thousands of Catholic school teachers who are just trying to make a living, who teach algebra and didn't realize that in the process of teaching the Pythagorean theorem, they were actually conveying the message of the Holy Spirit. These cases are perverse. I think it's absolutely worth reading Justice Sotomayor's dissent. In both of them, they represent, I agree with Erwin, just total abolition of the wall separating church and state. And it's frightening that they did not draw headlines because they were really kind of unthinkable rulings as recently as two decades ago. This court has moved very far to the the right when it comes to separation of church and state.
- [33:07]
B
Go ahead, Erwin.
- [33:08]
C
Oh, I just want to quickly agree with Mark and also point to a real tension between two cases that he's alluding to in the Espinosa's Montana Department of Revenue. What the Supreme Court's saying is you can't discriminate against religious institutions. Religious institutions have to be treated the same as secular institutions. But then in the case that came down yesterday, the Guadalupe case, the Supreme Court saying, oh, no, but you have to discriminate in favor of religious institutions, that religious institutions get an exception from general laws that no other institutions do. I think the court got it exactly backwards because what the establishment clause of the First Amendment is meant to be.
- [33:45]
B
About, and I would just add, because we haven't said it, but it's worth saying, and Mark is talking about all these invisible people in these cases, but it's worth saying the two teachers that were brought suit in these Guadalupe cases. One says she was fired for having breast cancer. She's now deceased. The suit was brought by her surviving spouse. The other was bringing an age discrimination claim. None of this somehow gets surfaced in the conversation about how they are ministers, including really, really deep reverence for the. The school's ability to choose who their ministers are. And it leads me to the other invisible people, which is the gravamen of Justice Ginsburg's dissent in the Little Sisters case, which is how did we get away from balancing all the other third party interests. These women who wanted to have birth control, who were guaranteed contraception as part of the contraceptive mandate, their interests are completely vaporized somehow in the Little Sisters decision. And I think one of the things that's maddening to Justice Ginsburg, just to go back to what Mark said, is how is it that we write people out of the equation of what are supposed to be careful balancing of interests, so all the interests that don't matter in this case, they disappear, are actually things that are so dear, so valued that they are enshrined in a legal regime and it's being detonated from the inside out. I wonder if we could talk for a brief moment. Mark is talking about these dissents, and here we have Sonia Sotomayor and Ruth Bader Ginsburg writing these blistering dissents. And I a little bit miss that Elena Kagan from Town of Greece, the one who used to write in religion cases so powerfully. Maybe, Erwin, you could speak to this, because you mentioned these are seven to two cases. We've got Justice Kagan and Justice Breyer, time and again in these religion cases, voting with the five conservatives. And I wonder if, I mean, part of me wants to ask a technical question, which is, are they just doing deals with a capital D or is something else happening that I'm missing?
- [36:14]
C
I think something else is happening. Justice Breyer has never been a champion for the wall that separates church and state. You might remember 15 years ago, a case, Van Werden versus Peary, that upheld the Ten Commandments monument, the Texas state capitol. It was five to four that it didn't violate the established clause, with Breyer joining the conservatives. We've alluded to the Montana case from a week ago, but that was based on a decision from three years ago, Trinity Lutheran of Columbia, Missouri versus Comer. That was a 7 to 2 decision that had violated free exercise, deny money for surfacing playgrounds to religious schools. Kagan sometimes has been with the liberals. In the religion cases. There was Town of Greece versus Galloway several years ago that involved having Christian clergy deliver prayers for town meetings. And that was 5, 4, with Kagan writing a very strong dissent. But we find across the board in the religion cases is Sotomayor and Ginsburg are in dissent, but sometimes Breyer and Kagan are with the conservatives. Think back to just a year ago, the 45 foot cross case, the case of American Legion versus American Human Association. There the court said putting a large cross on public property didn't violate the establishment clause. It too was 7 to 2. So I think what you have is five conservatives who would completely eliminate the wall separating church and state. Five conservatives, much more protection with regard to religion under the free excise clause. Sometimes Kagan and Breyer will go along with them consistently. Ginsburg and Sotomayor are dissenting, and they want what's been the traditional law that mark refers to a wall separating church and state and keeping religion from being able to inflict injury on others.
- [38:00]
A
One thing that it's a theory that I've had in the corruption space, but I wonder if it applies here, is that there's something really troubling when there's too many academics on the court and that the understanding of power and power dynamics is thinner in both Breyer and Kagan than it has been with Ginsburg and Sotomayor, and that Sotomayor in particular brings this kind of Brandeisian specificity to her amazing dissents like let's get the facts on the ground and tell the stories of what is happening. And I'm throwing a theory out there. But I do worry about the power of abstract argument and the dominance of abstraction in some of these cases.
- [38:46]
B
Mark, are you more transactional? Do you feel like they're just doing deals, or are you of the view that there's, as Irwin says, that there is a real profound distinction in point of view between the Breyer Kagan wing and the Sotomayor Ginsburg wing.
- [39:05]
D
I think there is definitely a real distinction, a divide among the four more liberal justices there. But I also think there's probably some degree of at least strategizing, if not outright horse trading. We know from Joan Biskubich's trip biography of the chief justice that Bryon Kagan did engage in some horse trading with him to uphold the individual mandate in exchange for letting states opt out of Medicaid expansion. We know that the justices are not above these kind of compromises that might go against their own ideologies and beliefs. And I think it's quite possible that in a decision like Trinity Lutheran Kagan went along with the conservative majority because she thought, well, this is at least defensible and plausible. And it allowed her to kind of come out when the court dramatically expanded that holding and say, hey, I was part of that other decision, but I am not going to go along with its massive expansion here. And Justice Kagan actually said that on the bench. She said during the arguments in the Montana case, I was one of the seven in Trinity Lutheran. And I think she loves being able to say that. I voted with the conservatives. I was one of them. I'm not some crazy anti religion separationist here. You know, I just want everybody to go along and get along, but this goes too far, even for me. And so I think Kagan cares a lot about presenting herself as a moderate on these particular issues, as somebody who really does get the other side and and thus as someone who can come out and really spank the other side hard when it goes too far in this direction and just bulldozes the wall separating church and state.
- [40:51]
B
Can we talk for one little minute about McGirt? Because it's another case that's going to fly under the radar, I fear. And it is really quite an astounding tour de force by Justice Gorsuch, who seems to have a real deep understanding and affinity for Native American tribal land rights. Can somebody talk us through it for one little minute? Erwin?
- [41:18]
C
Sure. What's involved here is eastern Oklahoma, in fact, a very large part of eastern Oklahoma, and it's traditionally been tribal land. It's covered by a treaty with the tribe, and the question is whether or not a tribal member can be prosecuted in state court. In this case, it was a prosecution for murder or whether pursuant to a federal statute and the treaty, the prosecution has to be in federal court. And The Supreme Court 5 to 4 said, in light of the treaty and the federal statute, the prosecution has to be in federal court. This has enormous implications, at least for eastern Oklahoma, because it's going to then mean that tribal members are going to have to be prosecuted in federal court for all of their crimes. I think the interesting question is going to be where else are there treaties like this? So in the federal statute, the prosecutions are going to have to be in federal court, not state court. The only thing I'd add here is Congress could change that federal statute and then return these cases to state court. And that's a point that Justice Gorsuch made in his opinion as well.
- [42:28]
B
Justice Gorsuch's concluding paragraph in McGirk says the federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It is sometimes restricted and other times expanded the tribe's authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great. So now we should just cast a blind eye. We reject that. Thinking it if Congress wishes to withdraw its promises, it must say so. Unlawful acts performed long enough and with sufficient vigor are never enough to amend the law. To hold otherwise would be to elevate the most brazen and long standing injustices over the law, both rewarding wrong and failing those in the right. Holy cow. I think a lot of my friends who do Indian law would say, thank God for that statement. It's been a long time coming. Mark, do you want to talk for a second about Gorsuch and his why it is that, you know, this is a soft, soft, soft spot for him?
- [43:38]
D
I don't know if I have an answer to why, but it's certainly a pattern we've seen. And in fact, when Justice Gorsuch was nominated, when he was just a judge to the Supreme Court, some of his biggest boosters were tribes because they looked at his record on the 10th Circuit and saw that he had a, a very strong record on tribal rights and respecting reservations and holding the government to its promise and treaties with Indian tribes. And I think they made a good bet there because Justice Gorsuch has consistently joined with the four liberals on tribal cases, this case included. This decision was no surprise and I'm not entirely sure why. Perhaps it's because he's a Westerner and he is very much a self styled Westerner. Right. We know that Gorsuch loves to present himself as a man of the west in all ways and with great authenticity. But he writes about tribal rights the way that Justice Kennedy wrote about gay rights or the way that Justice Ginsburg writes about reproductive rights. He obviously has extraordinary sympathy for these tribes, particularly those that have been screwed over by the government. And I think this kind of sympathy sits at the heart of his textualist jurisprudence where he gets to read these treaties that the government made and say, hey, we see that the US government has been violating these treaties for 100 plus years. We get that the government wants to keep doing that, but you guys signed a contract and you need to stick to your word. And that is a very powerful idea that has been unfortunately foreign to the Supreme Court for many years. I don't know that we've had a A five justice majority as sympathetic to tribal rights as we have today ever in the history of the Supreme Court.
- [45:17]
B
So let's do a final quickie speed round the 2019 Supreme Court term. Erwin, you and I kicked it off together on this show. For my purposes, probably didn't expect it to end with winter coats behind me in the closet. Probably didn't expect telephonic arguments including Justice Ginsburg from the hospital bed. But probably I at least didn't expect the story of the term to be. It sure wasn't a 5, 4 route. Conservatives over liberals. I wonder if each of you wants to go around for a minute and tell me in your view what the enduring story of this really, really completely fraught and fascinating but unpredictable term will be. What are the history books books gonna write? Mark, you wanna start?
- [46:13]
D
I would say as we have written, you know, John Roberts kept the Supreme Court from becoming an election issue. Right. I think he really took the wind out of the sails of the Democratic interest in packing the court by adding seats. And I think he stood up to Donald Trump in a lot of important ways, as in the DACA case, without actually shifting the law to the left. John Roberts is masterful at making both sides feel like they won something and he threaded the needle brilliantly this entire term.
- [46:44]
B
Zephyr, what's your read on what are we going to tell our great grandchildren about this historic term?
- [46:52]
A
Well, I have a 21 month old, so there's some lacuna in my court watching in the last few months for those parents during the pandemic, you know what I'm talking about. But I would largely agree with what Mark was just saying about. I think that maybe it makes me a little less happy. I'm not sure where you were coming down, but that Roberts is a deeply political and deeply skilled political actor. And I think that this term in many ways was about shoring up his power and the legitimacy of the institution of the court.
- [47:30]
B
Irwin, you brought us into this term. You can assure us out what's your view of what's your theory of the case. What did we learn this term about Roberts and the Supreme Court that he helms?
- [47:46]
C
I think we saw it truly is the John Roberts court. Until a couple of years ago, it was the Anthony Kennedy court. He was the swing justice. John Roberts is now the swing justice. Prior to this term, John Roberts had never voted to strike down any abortion law, but he was the fifth vote to strike down the Louisiana law. Prior to this term, he had never voted in favor of gay and lesbian rights he had dissented in the two marriage equality cases. This term he was in the majority in saying that Title VII protects gay, lesbian and transgender individuals from discrimination. Prior to this term, he'd pretty consistently been ruling in favor of the Trump administration. Think of Trump v. Hawaii two years ago that upheld the travel ban. This term he ruled against the Trump administration in the DACA case and overall ruled against the Trump administration and Donald Trump in the subpoena cases. I think John Roberts has occupied not just the center seat but his prominent role as any chief justice we've seen, maybe at least since Earl Warren.
- [48:47]
B
That I think says it all. I think we're going to be talking about John Roberts and who he is and what he is for a very, very long time. Dean Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished professor of Law at Berkeley Law School, and over his career he has focused on constitutional First Amendment law, federal courts, criminal procedure. He's also argued cases at the appellate courts and at the Supreme Court. Zephyr Teachout is an associate professor of law at Fordham University, former candidate for governor, Congress and attorney general in New York, former death penalty lawyer, and her forthcoming book, Break Em Recovering Our Freedom from Big Ag, Big Tech and Big Money, will be published later this month. And of course, Mark Joseph Stern covers the courts and the law, state courts, state supreme courts, LGBTQ issues, and so much more. For us at Slate, I wish the three of you a peaceful justice retirement. Free. I'm terrified we're going to get a retirement, y'. All. No retirements. I wish you a peaceful summer, a healthy summer. And I thank you so, so much for ushering the term out with me.
- [49:55]
D
Thanks so much, Dalia.
- [49:56]
C
Thank you.
- [49:57]
A
Thank you.
- [49:59]
B
And that is a wrap for this Please God, do not let there be any Supreme Court retirement edition of Amicus. Thank you so much for listening today and always. And thank you so much for your letters and your questions and your thoughts. You can always keep in touch with us@amicuslate.com or you can find us@facebook.com Amicus Podcast. We love your letters. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcast. We'll be back with you soon. In the meantime, thank you for listening and take good care.