← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
With Kennedy Gone, What’s on the Chopping Block?
00:47:49
Our annual look at the end of the Supreme Court term.
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- [00:00]
Dahlia Lithwick
Hey, this is Dahlia Lithwick, and I'm going to warn you at the top of the show that because of a technical glitch at CBC studios in Canada, you may remember that they are a national threat to American security. But as a result of a glitch here, I am going to, about halfway through this broadcast, suddenly be on a cell phone. So don't write in and complain about the change in the audio, because I'm warning you in advance.
- [00:32]
Leah Litman
Justice Breyer had the best line of the term in his dissent, which was just really question mark.
- [00:45]
Dahlia Lithwick
Hi, and welcome back to Amicus, Slate's podcast about the Supreme Court and the courts and the law. I'm Dahlia Lithwick. I cover some of those things for Slate, and this is our special edition Amicus End of the Year Puzzle podcast. Joining me today to talk about what is certainly the most seismic end of term I can remember is Slate's own Mark Joseph Stern, who covers the courts and the law for us. Hi, Mark.
- [01:10]
Mark Joseph Stern
Hi.
- [01:11]
Dahlia Lithwick
And the divine Leah Littman, who teaches law at the University of California, Irvine, blogs frequently at Take Care and other places and has been a good friend of this show. Welcome back, Leah.
- [01:23]
Leah Litman
Thank you so much for having me back.
- [01:25]
Dahlia Lithwick
So welcome back to the both of you. I'm kind of guessing that you're both much like me, in some kind of weird fugue state at this juncture. So let's all agree that we're going to try to speak in short, declarative sentences and hope for the best. Yes?
- [01:40]
Leah Litman
Deal.
- [01:40]
Mark Joseph Stern
Sounds good to me.
- [01:42]
Dahlia Lithwick
Okay, so I guess we're going to start with Anthony Kennedy, because his retirement on Wednesday quickly became the story of the term maybe of a generation, maybe of our lifetimes. So I think I just want to start by asking, were either of you surprised at this announcement? I know, Mark, you were right here on Amicus a few short weeks ago assuring us he was not going anywhere. So were you surprised?
- [02:09]
Mark Joseph Stern
Why did you have to ask me that question? Last time I was on Dalia, you just set me up for failure. It's devastating to me that you solicited this terrible prediction from me at the worst possible time. No, of course I was surprised because you and I have been telling each other partly as, like, I don't know, our delusional ritual of self care that Justice Kennedy was not going to step down because it was the only hope we had left to cling to even then as we careened toward the end of this awful term. And then the term ended horribly, as horribly as we had anticipated. And then it somehow got even worse and just skidded further down the hill into hell. As we discovered that Justice Kennedy was retiring, I was shocked. I was shocked. I had no idea that, as the New York Times has now reported, that the Trump team has been just extraordinarily clever at courting Justice Kennedy, at carving him out as Trump's favorite justice, as working the family connection between Justice Kennedy's son and Trump's son, at stoking his ego, at paving the way for his retirement to make him know, whoa, of course you can trust us. Well, we'll replace you with someone who lives up to your legacy and yada, yada, yada. I didn't know all that was going on behind the scenes. So I thought, hey, Justice Kennedy seems to like Obergefell, doesn't seem to want his successor to nullify thousands of same sex marriages or overturn Roe v. Wade in two weeks. So yeah, he'll probably stay on the bench for a little while longer. Turns out I was dead wrong.
- [03:44]
Leah Litman
Wow.
- [03:45]
Dahlia Lithwick
Sorry. I opened with the gaping wound. How about you, Leah? Were you surprised?
- [03:49]
Leah Litman
No, I think this is a circumstance in which I was painfully right. First. I think in the court of history, Justice Kennedy is still on the court. That's what I am telling myself anyway. So there is this alternative court of history that exists in a world in which not left us two years ago not to play this game of I told you so. Noah Feldman and I had a discussion on Twitter in which he suggested that if Hillary Clinton was president, she might be able to change the composition of the Supreme Court. And if President Trump was president, he would be able to change the composition of the Supreme Court because Justice Ginsburg or Justice Breyer might involuntarily leave. And I said President Trump would also change the composition of the Supreme Court if Justice Kennedy retired. And Noah said he's a patriot, he wouldn't do that. And I said, I'm not sure that's so right. You all Slate published a piece by my colleague Rick Haysen the day before Justice Kennedy retired saying he read the justice's opinion in Trump versus Hawaii and thought it sounds like he's leaving. And I agreed with that. And for the last year I have been saying there is a real chance he's going to retire this year and I would be shocked if he remained on the court for the duration of the Trump presidency.
- [05:02]
Dahlia Lithwick
Yeah, I want to cop to just to pull both of your opening thoughts together, I will certainly cop to being the person who said almost from the day of the inauguration that I thought the one thing I knew for certain about Anthony Kennedy was that he cared about dignity and decorum and gravitas and truth and language and respect and institutions, and that all those things, things were going to inch him towards staying around just because the idea of handing his legacy over to someone who values none of those things paramount, among them the judicial branch itself and the integrity of the judiciary. And I will confess, just to go to Mark's point, that when after that initial State of the Unionish thing, when we heard Donald Trump and Anthony Kennedy on a hot mic talking about the fact that their sons worked together, I thought, oh, this is. There's some backstory here that I don't know about. And Mark is right. I think the New York Times on Friday morning reported out that there is a kinship and a friendship there. And I remember at the time thinking, maybe there's some back channel that I don't know about that makes everything I've been thinking about how Kennedy must find Trumpism abhorrent, wrong. And so I think in the back of my head, that's when I started to think, contrary to what Mark just said, that maybe he was going to find an exit ramp and find solace in the fact that their sons work together. So I think that's when I started to think maybe everything I had believed about how Trumpism would be anathema to someone like Justice Kennedy, maybe I was wrong. Leah, you win the first round for calling it, and Mark, I'm sorry, you just lose and I lose with Mark. So there it is.
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Mark Joseph Stern
I think you do lose less than me, though, because you were, I think, properly alarmed by those stories, whereas I was attempting to write them off as just meaningless drivel. And it turns out that they were apparently at the heart of Justice Kennedy's decision to retire, and I was wrong to write them off. I now know in hindsight, I don't.
- [07:22]
Leah Litman
Think it's just that Mark loses and Dahlia loses. We all lose. Just to clarify that.
- [07:28]
Dahlia Lithwick
Thank you, Leah.
- [07:29]
Spoken like a patriot, I guess. Before we move on, I want to ask whether it matters at all for your purposes, the two of you thinking about this, that it's not just any bank, that it's Deutsche bank, that Deutsche bank is at the heart of the Mueller questions. Does that figure at all in how we should think about Anthony Kennedy's son and his relationship to the Trump family?
- [07:54]
Leah Litman
Not in my view, at least based on the story as it has been reported thus far by the New York Times. The story just for listeners who might not have seen it is that Justice Kennedy's son worked at Deutsche bank during a time at which they gave Trump a huge loan. And the actions of Deutsche bank are the subject of the Mueller investigation. So I think that what the story instead shows to my mind is something that we saw happening publicly, not just in the kind of public praise and catering to Justice Kennedy that Mark was alluding to, but Justice Kennedy had Ivanka Trump as his guest at the Supreme Court. And these are people who run in the same kind of professional circles and know one another. And I think familiarity makes it difficult to perceive in someone a risk or a problem and something going worse. So I didn't read anything in particular into the Deutsche bank aspect of the story. It was instead just a reminder of how close this circle is and the connections between their families. And over the last year, and plus we've seen this administration nominating a bunch of former Kennedy clerks to the bench, not just former Scalia clerks. And those I think I rightly perceived as efforts to cater to him. The justice is loyal to his clerks. And I think that kind of thing mattered to him. And it mattered that two of his former clerks were named as shortlisters. It mattered that one of his former clerks is selected to the Supreme Court. And so I didn't read anything in particular to the Deutsche bank aspect of the story.
- [09:34]
Mark Joseph Stern
Yeah, I agree with that. I think it was more, to me just a reminder that there are a bunch of extremely wealthy white people who run this country right now and are all friends with each other and their kids all know each other and they dine with each other and invite each other to their events and play golf together and hang out. And I had not realized just how firmly entrenched Justice Kennedy and his and his kids were in that. In that world. But now I know, and had I known earlier, I probably would have been less starry eyed about him staying on the court to preserve his legacy. Because, of course, he believed that Trump is probably basically a good guy in his letter. My dear Mr. President, he doesn't seem to perceive Trump as an existential threat to this nation. And because he does not recognize the danger that Trump poses to American democracy, he's willing to entrust the President to choose his successor, who he presumably thinks will be a lot like Neil Gorsuch. Um, I will say there is a part of this that still does not quite compute with me, which is Kennedy's concurrence in Trump v. Hawaii. The trout. You know, this is Justice Kennedy's, one of his final moves on the court. And he says, basically, yeah, the President said some pretty awful things about Muslims, and there's not anything that I think the court can do about it. But that doesn't make it okay, and it still shouldn't happen. And so it's not as if Kennedy doesn't know that the President has expressed these awful sentiments about an entire group of people on the basis of their religion. He just doesn't seem to care that much. And that is maybe the most surprising thing for me, that Kennedy would write that concurrence in Trump v. Hawaii. He would say the president essentially did not conduct himself with the decorum that is required of the office, and then turn around and say, oh, and by the way, you can pick my successor and change the court for an entire generation.
- [11:22]
Leah Litman
So, on the concurrence, I think it was a bit meager than that. It's true that the concurrence has some rumblings about inappropriate things that politicians may have said. But compare that to, say, opinions like Masterpiece Cakeshop, in which Justice Kennedy singled out particular statements and listed all the ways in which it displayed animus. This particular concurrence was more muted than that. And I think it is hard to declare that you see evil or animus in someone, you know. And that was kind of what I took from the concurrence. And for me, it's not just about what Justice Kennedy thinks about President Trump, but also what Justice Kennedy thinks about the people who are likely to succeed him. And the reality is that the list of nominees that we have seen from this administration is so similar to, and frankly, I don't think any different from the nominees in any other Republican presidential administration. I think he is totally fine with those people replacing him. And if he had to choose, those would probably be the group of people that he would want to replace him vs list selected by a Democratic president. The other side is by handing his resignation in, he is solidifying the power of this president because he is giving in to the narrative that everything this president has done is worth it, because they have the opportunity to change the composition and the power of the Supreme Court for a generation, and it is making it difficult. And we have already seen a bunch of senators and Republican commentators saying it's worth it. Now, the Buck Gorsuch narrative is worth it because we now have the opportunity to shape the Supreme Court and replace Justice Kennedy. So he is decreasing the odds that Republican politicians will stand up to the President by doing so, even if the list of nominees that will replace him would be the same in, say, any other administration.
- [13:11]
Dahlia Lithwick
So that's so interesting, Leah, because in effect, what you're saying is that Anthony Kennedy becomes the ultimate but Gorsuch person. Right. That all of the folks who have been wearing the bracelet that says but Gorsuch, we can't stand the tone and we hate some of the ugliness of the policy, and we certainly don't support the personal ethical life or the truth challenge nature of this presidency. But it will all have been worth it to peck the courts. And what you're saying is that Kennedy ultimately made that calculation himself.
- [13:46]
Leah Litman
He enabled it. He allowed them to make that calculation. And there is a really sad truth at the bottom of this, which is the man who, at least outwardly and I think truly valued decorum and propriety and civility and norms of intellectualism, his name is now going to be used to justify all of the things this administration does. Counter to that.
- [14:11]
Dahlia Lithwick
Hi, welcome back to amicus. We've had a technical problem, and so now I'm phoning in from CBC Studio in Toronto. So if my voice sounds different, that's what just happened. But we're going to forge ahead with Mark Stern and Leah Litman. And I just want to ask, before we turn to the cases, both of you made reference a little bit to the Anthony Kennedy concurrence in the travel ban case and the ways in which it felt a little bit as though. Lee, I think you mentioned that Rick Hassan said that he was giving up on a lot of things, including I think, maybe court oversight. There seemed to be a way in which he was saying this is just out of the province of the court to fix it. And I wonder if either of you want to just give a little thought for a minute to the proposition that Anthony Kennedy, who seemed to believe for most of his career that the court could fix everything, signaled toward the very, very end of his last day on the court, his last, I guess his second to last day on the court, that maybe the court just couldn't fix anything at all. Am I overreading?
- [15:15]
Leah Litman
Yes. Part of what made the concurrence so striking is that it came from a man who has embraced a very strong form of judicial supremacy for most of his career, including this most recent term in Wayfair, when he wrote a majority opinion overruling a prior precedent that Congress would have been able to fit. And he basically said, well, no need for Congress to fix it. We can just do it for them. So he has for a long time seen a very prominent role for courts. And that's part of what made his final concurrence so striking.
- [15:43]
Mark Joseph Stern
Not to me. I mean, it certainly felt like Justice Kennedy lost his nerve there at the end. And this is the man who cast the fifth vote in Boumedienne to extend habeas corpus to non citizen detainees at Guantanamo Bay, which was, I think, arguably an even bigger dent in executive power than striking down the travel ban would have been. And Kennedy certainly didn't blink in the Guantanamo cases. He voted consistently against the broad claim of executive power that the Bush administration mounted, even though those cases also purportedly dealt with matters of foreign affairs and national security, just like the travel ban cases. And so I think there's more of a shift in Justice Kennedy's nerve than necessarily even a shift in his ideology. Again, given that concurrence, it's as if he said like you said and Rick said, he threw his hands up and said, I just don't know what to do. I don't feel like I can do this anymore. I'm giving up on my cherished role as promulgator of the law of the land and overseer of the chief executive. And that was certainly a major disappointment before the even bigger disappointment of his retirement came down the pipeline.
- [16:58]
Dahlia Lithwick
Okay, let's talk about the cases that came down in just the last couple of days. And Mark, you, I think, spent much of the term dreading the Janus decision, which you knew was going to come down as it came down. This is the case that has to do with public sector unions and free speech. Can you just recount briefly what the court decided in the Janus case?
- [17:22]
Mark Joseph Stern
Yeah, so about 22 states before this week allowed public sector unions. So think of teachers unions or police unions to collect compulsory fair share fees from non union members. So what that means is that if you are a teacher in California, you didn't have to pay full union dues, right? You didn't have to pay money that the union would use to go lobby the legislature on political matters. But you did have to pay these fair share fees that would only cover the cost of the union's work on your behalf. So this money is going to fund negotiations for you and for your colleagues to help get you better benefits, better salaries. And the court ruled 41 years ago in a case called Abood that it was perfectly constitutional to have compulsory fair share fees, because otherwise there's really not a huge benefits to paying your union any money at all. And there is a massive problem of free riders, a bunch of public sector employees can just free ride off of all the good work the union is doing on their behalf and not help to fund it at all. And that balance was struck 41 years ago. It held fast until Wednesday when in a 5 to 4 decision written by Justice Alito, the court overturned abood and in one fell swoop struck down fair share fees in 22 states and ruled that union non union members have to opt into paying any kind of dues. They can't just opt out. The result is an absolute disaster for unions. It will kneecap them across the country. It will force them to divert a massive amount of money and energy and resources into trying to maintain their membership, which will probably be a futile process a lot of the time. And the whole thing is based on this really kind of outrageous, almost laughable theory of the first amendment that I think has anti union, anti labor ideology baked into it. What Justice Alito and the conservatives say is that it doesn't matter that fair share fees aren't funding the union's political activity because everything a union does is actually political. So negotiating for better salaries, better benefits, more breaks, better health care, better childcare, all of that to Alito is fundamentally political because he claims there may be workers who want worse benefits and lower salaries and worse health care and they have a fundamental first amendment free speech right not to subsidize expression on their behalf, that is advocating for better benefits that they may not want. And so all fair share fees are unconstitutional insofar as they are compulsory. And unions are now going to have to work much, much harder really just to gather enough money to fund their work on behalf of public sector employees.
- [20:26]
Dahlia Lithwick
And Justice Alito called those quote, unpleasant transition costs. But that's about the extent to which right he concedes that there's any real blow to labor here.
- [20:38]
Mark Joseph Stern
Yes, that's right. Alito dresses up his opinion as just a common sense extension of recent precedent because he has embarked on a years long campaign pretty much since he joined the courts to undermine abood with the obvious end goal of overturning it all together and crushing public sector unions. And during each of the oral arguments in these cases, his questions have just bristled with overt hostility toward unions. And that is a hostility we learned that Justice Kennedy shares during oral arguments in this Janus case. Justice Kennedy basically put on his Rush Limbaugh hat and bashed unions as creating this massive government spending draining the public fisk. He is plainly just as much an enemy of unions as Alito is. And so these justices who in Citizens United said, oh well, we're just allowing corporations and unions to go out and exercise their political power. Now turn around and say, oh well, we were really, really just talking about corporations because unions, we hate you guys and we're gonna hobble you as much as we possibly can.
- [21:44]
Dahlia Lithwick
Leah, do you have anything to add to Mark's gloss on Janice Everyone should.
- [21:49]
Leah Litman
Read Justice Kagan's dissent and put its final paragraphs above their mirror and wake up to them in the morning, get used to the world of black robed rulers who will use the First Amendment as a weapon against social and economic regulation.
- [22:02]
Dahlia Lithwick
So I think that's a nice way to dovetail Leah into you've been writing so frequently about the weaponizing of the First Amendment, about the Masterpiece Cake Shop and the anti religious animus that the court was able to smoke out again, Anthony Kennedy was able to smoke out there and how that connects to the travel ban decision. We talked about it briefly. But can you just summarize what the court did, having found anti religious animus in the remarks of one commissioner in the Colorado Civil Rights Commission? How the court blinkered itself to, I don't know, hypothetical anti religious animus from Donald Trump in establishing the travel ban?
- [22:47]
Sure.
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Leah Litman
So in Masterpiece Cakeshop, the court said that the Colorado Civil Rights Commission didn't adhere to the guarantee of religious neutrality because the one commissioner had said it is despicable to invoke religion to harm others. And it was that remark that led the court to say that the commission's proceedings did not display the necessary religious neutrality. And so that set the stage for the court's complete about face in Trump vs. Hawaii, in which you had not just one person, but the person who was singularly responsible for enacting the ultimate policy, the entry ban, saying for years on the Internet, on Twitter, in front of televisions and anywhere he could that he would like to impose a total and complete shutdown of Muslims entering the United States, that Islam hates us, that there is a Muslim problem, and so on. And the court said, you know what? This policy that was born of a process that is completely free of agency, consultation and applies to several Muslim majority countries that isn't sufficiently connected to the president's anti Muslim statements. And looking at those two things against one another, it is really hard not to see a stark disparity which is the court foundation, some subtle departures from religious neutrality in the statements of one commissioner in Masterpiece Cakeshop. Whereas it completely turned the other way when you had the president of the United States campaigning on anti Muslim statements and anti Muslim policy for years and out in the open and ultimately crafted a policy that largely reflects it.
- [24:37]
Dahlia Lithwick
And how much, Leah, do you read the travel ban as a kind of to invoke the Guantanamo case language, a blank check that this looks like Korematsu. And as long as the president says that it's in the interest of national security and we have the mystical interagency review, then whatever the president wants, the president gets. Is there a limit to what the court is going to bless going forward? If the travel ban is blessed?
- [25:10]
Leah Litman
There might be. The way that the majority purported to distinguish Korematsu in purporting to kind of denounce it is that the ordering Korematsu was solely and explicitly on the basis of race, whereas the entry ban is not because it's nominally facially neutral as opposed to religion. And, you know, that's an interesting distinction, but it largely misses what was so ugly and legally problematic about the order in Korematsu, which is it was based in naked racism and xenophobia, and those remarks were in the public record, all to see. And the administration's justifications traded in racial stereotypes as to whether and how the court will distinguish it by saying, oh, the entry ban involves immigration, whereas Korematsu involves United States citizens. I don't know that that's a particularly stable distinction. Only because we have recently read efforts that the Trump administration is considering denaturalizing U.S. citizens. Is that an area that involves immigration or does it involve US Citizens? There are many ways and many policies that could blur the line between the two. And instead, the court seemed fine just saying, well, there's no facial classification with respect to the entry ban, but there is or was a classification in Korematsu. So whether and how this could affect other Trump policies, we will see. I don't doubt that the administration is going to invoke all of the language in Trump vs. Hawaii about the deference to the president in areas of immigration and national security. The administration is already filing letters in some of the cases that have challenged the administration's policies with respect to family separation or rescission of daca, in which it's invoking Trump versus Y. The Trump administration has also made a ton of use of Jennings vs. Rodriguez, which underscored the scope of the executive branch's discretion to detain people pending immigration proceedings. And so the administration is certainly going to try to use this case. As to whether or not they will be successful, we don't know. It will depend on how seriously courts take the kind of competing signals in Trump versus Y.
- [27:18]
Dahlia Lithwick
And I guess that's a useful place to connect back to the prior conversation that we had about how Anthony Kennedy, to the extent he might have been the deciding vote on moderating some of this, has taken himself out of the game. Mark, do you want to talk briefly about the Texas racial gerrymander case? Because it did, I think, flight under the radar a little bit. But this has been a quite a dramatic year for voting rights. Do you want to give us just a precis of what happened and what it means going forward?
- [27:46]
Mark Joseph Stern
Oh, God, in my heart, no. But I will do anything for you, Dalia. You know, this is, I think, another a great illustration of what Leah was just saying about inconsistent application of animus taints. Right. Not that, not the finest expression in the English language, but in Masterpiece Cake Shop, it was the extraordinary to see how far out of its way the majority went to find some slim evidence of anti religious bias and invalidate the entire proceedings below on that basis. And here in this challenge to Texas's rather overt racial gerrymanders, which were pushed through the legislature by Republicans and an emergency special session that was called expressly so that the usual floor and calendar rules could be suspended, including the 2/3 majority vote typically required for redistricting plans, the court saw no evidence of racial animus or racial taint, except for one district in which Texas actually acknowledged that it had packed the district full of Latinos and racial minorities because they were racial minorities. Texas couldn't even conceal the racial basis of that one district. But with regard to the other challenge districts, because this was a rather broad challenge to a number of gerrymander districts that Texas had crammed through a slim majority of the court, another 5 to 4 decision, Justice Alito said, no, we don't, we don't see any racism here. We don't see any racial bias. We think this is just, you know, poor Texas lawmakers just trying to do their best to pass a map that the mean, mean courts won't shred up. And it was interesting because you had this kind of empathy battle between Justice Alito and the majority and Justice Sotomayor and the dissent. Justice Alito is deeply empathetic toward the Texas Republicans and Texas map makers who gerrymandered these districts. He said, well, they had such a tough time of it. They had to weigh all of these competing interests and they just wanted their map to survive in the courts. And Justice Sotomayor says, what are you talking about? This was racism. This is overt racism. The Texas, this Republican majority was just trying to pack all of these Latinos into as few districts as possible and then distribute the rest throughout majority white districts. And that's plain for all to see if you, if you even take one look at this map. So there was an interesting dispute there over animus taint once again, in which the sides flipped. Right. You had once again Justice Alito and the conservatives saying, well, we don't see anything here. And the liberals saying, of course there's something there similar to the entry ban case that Leah just described. And of course, kind of the inverse of Masterpiece Cakeshop in which you had a majority going out of its way to find animus and Sotomayor and RBG and the dissent saying, what are you talking about? This is nonsense.
- [30:45]
Dahlia Lithwick
So, Leah, the last case I want to talk about just because again, I think we can class it again under speech weaponized to effectuate all sorts of unanticipated ends, is Becerra, the crisis pregnancy cent case, which very much like Masterpiece, is a case that's nominally about religion, but then it's about speech, but then ultimately it's about some new magical thing like religious speech. Do you want to give us just the quick and dirty on to Sarah?
- [31:18]
Leah Litman
Yes, although I can't help myself, but just drawing a parallel between Abbott and Mark's point about Janice, which is Abbott in a lot of ways goes back on the promises that the court made to us in a prior decision. Shelby county, in the same way that Janice goes back on some of the promises that the court made us in Citizens United. Citizens United said we are preserving the speech rights of corporations and unions. Shelby county said there is no need to worry about the absence of pre clearance because you can always prove discrimination under section 2 of the Voting Rights Act. And if states are engaged in intentional discrimination, we will subject them to pre clearance under Section 3 of the Voting Rights Act Act. Abbott makes it super hard to prove intentional discrimination because of the court's complete deference and indulgence of states. Unless they basically come out right and say this is about race, the court is going to be okay looking the other way. It's kind of like Justice Alito put on the jacket that Melania wore to the Mexican border that said, I don't care, do you? The court is willing to turn the other way unless the state is going to come out and say outright that this is about race. We saw in so many cases that the court is just willing to indulge the fiction that it is not about discrimination against Certain groups, and that's not going to get better, that's going to get worse. But to answer your question, Dalia, about NIFLA versus Becerra, yes, this is definitely another case about the so called weaponized First Amendment. NIFLA involved two regulations of so called crisis pregnancy centers license clinics where the state asked the practitioners at these clinics to disclose the fact that the state would pay for abortions for certain women and to give women information about where they might obtain information about state insurance for abortion, given that these clinics wouldn't disclose the information themselves. There was also a regulation of unlicensed clinics, clinics at which there were no medical professionals, even though the clinics were offering services that looked loosely medical. And so the regulation required clinics to disclose that fact. The Court invalidated both of them on the ground that it was compelled speech. The State had argued, we are regulating so called professional speech and it's within our domain to kind of regulate the content of people who either are professionals or pose as professionals in order to give people receiving those services information about them. The Court rejected that analysis and in doing so cast doubt on a lot of state regulations of professional speech. The Court went out of its way to kind of disagree with some of the Court of Appeals approaches to professional speech. On top of that, the Court offered what I think was frankly a ludicrous distinction with the Court's prior opinion in Casey. Casey had upheld some state regulations of abortion providers that required abortion providers to disclose options, other options that women had, such as carrying the pregnancy to term, and give the women information about how the procedure would work. Casey had justified that regulation on the ground that it effectuated the State's interests in protecting fetal life. That is, state states have an interest in promoting their own message if they prefer childbirth to abortion, and they can make abortion providers give that message to their patients. In nifla, the Court comes around and says no, that regulation actually wasn't regulating the state's interest in protecting fetal life. That was an informed consent requirement that was just requiring doctors to give information about a medical procedure. But this regulation of crisis pregnancy centers doesn't concern a medical procedure. Justice Breyer had the best line of the term in his dissent, which was just really question mark. First, that's not what the Court said in Casey. And second, are you really going to say that birth does not involve any sort of medical procedure, but abortions do? Many women require serious medical care in order to have a safe childbirth, both for themselves and their child. And so to diminish that by saying birth is just something completely separate and is just not reflective of any of the science regarding the risks of the two choices and what women need and rely on in choosing them.
- [35:53]
Dahlia Lithwick
So let's do a quick speed round, you guys. What's the most important case in your view this year that is going to not get enough attention on the Sunday shows this week because of Justice Kennedy? It could be something we discussed or something we didn't discuss, but something that you see as a sea change that people should be watching for.
- [36:13]
Mark Joseph Stern
Mark, I'm going to go back to Epic Systems, if I may. This was the case almost sort of a precursor to Janice, a one, two punch to labor in which the court, by a five to four decision upheld mandatory arbitration agreements, which are the these clauses that employers slip into contracts or sometimes just send around via email to all of their workers that say by continuing to work here, you agree not to pursue any claims collectively in court. You have to go through arbitration one on one, which is an extremely lengthy and expensive process that strongly favors the employer. And there is in Fact, A Law, 1935 National Labor Relations act, that expressly guards against this kind of assault on collective action. It has long been seen as the Magna Carta for labor, and it protects employees rights to band together for their mutual aid or protection in the workplace and redress grievances. And yet in Epic Systems, in an opinion by Justice Neil Gorsuch, the court said, actually, that's a mouse hole. Section 7 of the NLRA, again, the magnificent Magna Carta of labor rights in the United States, that's a mouse hole. And Congress didn't really mean to do much with that except allow for collective bargaining. So we're going to cite this other law, the 1925 Federal Arbitration act, which was never meant to apply to these kinds of disputes between employers and employees. It was passed before the Great Depression to speed up disputes between businesses. Gorsuch said, well, we're going to use that law to allow these arbitration agreements to take effect, and we're just going to ignore the NLRA basically right out of the law, one of the most important labor regulations ever passed. And I think that the case itself is just it'll have such a devastating consequence on employees who basically can no longer file class actions against their employers if they're wronged and they've signed these alleged agreements, even though class actions are often the only way that they can really get their claims to court. Because if it's something like wage theft, each individual is only suing for a couple hundred or a couple thousand Dollars. And that's only worth pursuing collectively, but also because the case illustrates the extreme, I think, partisan and ideological bent of this court. Even before Justice Kennedy stepped down on corporate interests, this was a court going so far afield, going so far out of its way to shred precedent, to reject the plain meeting of federal statutes in order to give a massive handout to corporations and employers. And after Justice Kennedy steps down, that that problem, which is already rampant, is going to get so much worse on the high court.
- [39:07]
Dahlia Lithwick
Leah, do you have a stealth case that we all missed?
- [39:11]
Leah Litman
I probably would have said epic, but since Mark chose it, I would say that the freedom of contract ish theme from Epic combined with NIFLA and Janice's weaponization of the First Amendment. And if you read those cases together, you know, I think the overall message is, progressives, the First Amendment is coming for your economic and social regulations, and be prepared. This is also Justice Kagan's warning in her Janus dissent. And those are the cases I would point to. It's just kind of a sad thing, given how deeply progressives value free speech and the First Amendment in particular. And Justice Kagan had this kind of sad lament that the First Amendment was meant for better things, but it was not to be or will not be, I guess.
- [40:02]
Dahlia Lithwick
So before I let you both go, I think that I want to ask you the question you've probably answered in every one of your media interviews this week, but that is, with Anthony Kennedy gone, what's on the chopping block? We've heard a lot about Roe, and whether, you know, Roe is outright overruled or, as Mark has noted, it doesn't have to be outright overruled. What else is fair game coming forward in the next couple of years? Leah, start with you, Grutter.
- [40:31]
Leah Litman
Affirmative action. I think that that is going to be on there. I think that the broader religious exemptions that the baker was arguing for in Masterpiece Cakeshop, those are going to be on the table. And I think that restrictions on independent agencies in the administrative state are going to be on the table in the near future.
- [40:58]
Mark Joseph Stern
Mark, those are all great and devastating. I would add juvenile life without parole, you know, which is Justice Kennedy on the court. We got really close to abolishing juvenile life without parole. The court abolished mandatory juvenile life without parole, which means a court can't be compelled to sentence a juvenile to life without parole under some statutory scheme. But the court never quite came out and said it is unlawful, cruel and unusual punishment to sentence an individual to life in prison forever with no chance chance of parole for a crime that he committed under the age of 18. And now I think that will never happen. I think that unfortunately, the practice of this, this barbaric practice in which we are essentially alone in the Western world of sentencing juveniles to life will unfortunately continue. And I would add, just forecasting a little bit more, I think that the Supreme Court's probably going to uphold Donald Trump's ban on transgender troops. I think Justice Kennedy may well have been in play there. He might have even voted to block it or strike it down. And as all of the lower courts have. So unfortunately, I think that if and when this issue reaches the Supreme Court, there are probably now 5 votes to copy and paste from Trump v. Hawaii and say we're deferring to the president on matters of national security. And if he says these people are sick and disordered, then that's all we need to kick them out of the armed forces. So that is my, perhaps my most depressing forecast for what's around the corner.
- [42:27]
Dahlia Lithwick
Well, that's fairly depressing. So I know neither of you are political reporters or journalists or poli sci professors, but what are you telling people at your Sunday brunches or your Saturday marches about what Democrats can do about this open seat? I know I've been in a lot of conversations and gotten a lot of listener mail saying what can be done. And it seems to me if lobbying Susan Collins is the best there is, that's not a lot. But Leah, let's start with you. What's your advice to folks who are looking at the prospect of a 40 year old Trump nominee forever changing the legal landscape, at least for the next? I think he's saying 40, 45 years. Anything to be done about those September hearings?
- [43:19]
Leah Litman
I think the odds that the Democrats can do anything are very small. They are in the minority. They do not have the votes to reject a nominee or to prevent the hearings. And so I think the best that they can do maybe isn't persuading Susan Collins, but figure out how to frankly talk substantively about the court. Enough of this procedural Mitch McConnell did it. It's only fair, yada, yada, yada. No say how you think they're going to vote. Say what you think they're going to do. You might not end up getting a Republican senator who you can persuade, but, but build a record and figure out how to talk to your constituents about the court and get them to care.
- [43:59]
Dahlia Lithwick
Mark Stern, are you going to be calling Susan Collins office this weekend?
- [44:04]
Mark Joseph Stern
As you know, senators try to filter out calls from outside their states. So I present a three part plan. The first part involves hundreds of thousands of liberals moving to Alaska and Maine Maine so that Susan Collins and Lisa Murkowski's offices will take their calls. The second part is them staying in Alaska and Maine so that they can establish residency there. And the third part is them voting in Alaska and Maine so that both states turn permanently blue and Republicans cannot continue to push through Trumpists into the federal judiciary circumstances. Seems like a pretty simple plan to me. You only need to move like eight blocks of Manhattan. I feel like Park Slope lesbians would find lots to love in Maine and there are at least 2 million of those right now. So I just think like we've got to think big here, big picture. How are we going to move forward? And building a Steyr ville or a Sorosville in a swing state is a good start for me.
- [45:10]
Leah Litman
More seriously though, I think Democrats need to think about making statehood for Puerto Rico and D.C. it is inexcusable that those people are not represented in the Senate and Dems need to figure that one out.
- [45:25]
Mark Joseph Stern
Yeah, I obviously strongly agree with that. More seriously, it's outrageous that statehood has not been number one on the Democratic platform forever. It's an ongoing injustice. I think it's one of the chief civil rights issues of our time, how we are disenfranchising millions of Americans for no good reason at all. This is again, absolutely a civil rights issue and I think Dems need to seize on it if they know what's good for them. But Dems don't know what's good for them, so I presume they won't.
- [45:53]
Dahlia Lithwick
Mark Stern covers the courts for us at Slate. Leah Littman teaches law at UC Irvine and blogs frequently at Take Care. I know you are both as exhausted after this week as I am. Thank you for joining us this week on the special edition End of Term Amicus.
- [46:10]
Leah Litman
Thank you again for having us.
- [46:11]
Mark Joseph Stern
Thanks Dalia.
- [46:13]
Dahlia Lithwick
That is it for this extra special breakfast table discussion edition of Amicus. One personal note, which is this is actually the first time, I think in 19 years of covering the Supreme Court at Slate that we didn't have a breakfast table at Slate. And that's just a publishing problem. We couldn't do multi part format this year. But if you are missing it as much as I am missing it, know that I am missing it too. And a special shout out to the wonderful Walter Dellinger who has been the mainstay of the breakfast table for years and years. Really listeners, I miss him as much as you do. One other quick note. Last show I was being slip about technology and modern technology in ways that I realized came across as sounding hopelessly ageist. Trust me, I am sorry. I was trying to be funny and it missed. I better than anyone know that words matter and I apologize. Thank you so very much for listening to this special episode. If you would like to get in touch, our email is amicuslate.com you can always find us@facebook.com amicus podcast and please rate and review us on Apple Podcasts. That always helps folks find us. We will actually be back. We're not taking a summer hiatus this year, so you'll hear from us soon. Today's show was produced by Gina Thomas. We will be back with another episode of Empath next week.