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- [00:00]
Adam Liptak
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- [00:17]
Terry Gross
This is FRESH AIR. I'm Terry Gross. The U.S. supreme Court term that concluded at the end of June was remarkable in how it expanded presidential power and limited the power of the lower courts. And this week, after the term had ended, the Supreme Court ruled that the Trump administration can continue to fire tens of thousands of federal workers and government agencies, even though the question of whether he has the right to do so without the approval of Congress is still continuing to make its way through the legal system. An unprecedented number of the court's decisions were made on the emergency docket, which allows the cases to be heard within weeks instead of taking a year. But there is little or no transparency and no oral arguments in these rules rulings. Here to explain the short and long term implications of these decisions, as well as discussing the conflicts of opinion among the justices, including how controversial Ketanji Brown Jackson's dissents have become within the court is Adam Liptak. He's covered the Supreme Court for the New York Times since 2008. I was disappointed to read that the end of this Supreme Court term also marked the end of his time covering this beat. He'll now be covering the law more broadly for the Times, while continuing to write side bar his column on legal affairs. We recorded our interview yesterday morning. Adam Liptec, welcome back to FRESH air. Let's start with this week's decision relating to the president's ability to downsize the government through doge and remove tens of thousands of people from government positions. A lower court had ruled that this order should be paused until the case finished making its way through the courts. Would you describe the Supreme Court decision?
- [02:01]
Adam Liptak
So this is one of what is now a whole pileup of orders on emergency applications in which the Supreme Court greenlights trump programs that are quite aggressive. In his few months in office, he has issued a blizzard of executive orders. Many of those have been blocked in the lower courts when they reach the Supreme Court. Almost uniformly, the Supreme Court says the president is allowed to do what he wants to do. This latest one is quite broad. It's an effort to fire tens of thousands of federal workers. And while the court's decision was a little preliminary, it just said we're not going to step in now where the president has said he's instructing agencies and departments to figure out whom to fire. And we're not saying that the eventual plans of each of those agencies and departments are proper, but that he's allowed to get going on this. And one notable feature of these emergency application orders is you don't even really know what the vote count was.
- [03:15]
Terry Gross
So a question a lot of people have about the Supreme Court ruling allowing Trump to go ahead and fire tens of thousands of people. Is that like, say, in the long run, the court rules against Trump and says that actually you're not allowed to fire all of these people. Then what? Then agencies have to start finding tens of thousands of people who have expertise in this subject that they have to be working on and rebuild the agencies and catch up for all lost time? I mean, is that even possible?
- [03:52]
Adam Liptak
That's an excellent point. These decisions are said to be provisional, tentative, but they really are, for the most part, irreversible. So these provisional rulings in favor of Trump actually give him power that is really hard to unwind.
- [04:10]
Terry Gross
So this decision follows an earlier ruling from this term, a very consequential one, that limited the power of lower court judges. The case was about whether children born in the U.S. to parents who are in the U.S. illegally still have the right to citizenship in the U.S. can you describe this ruling by the Supreme Court that was also on the emergency docket?
- [04:37]
Adam Liptak
Yeah. As you say, this case was nominally about birthright citizenship, about the constitutional provision that almost all legal scholars agree says that if you're born in the United States, you're a citizen of the United States. And when three federal trial courts ruled against the Trump administration's efforts to do away with birthright citizenship, they did so not only binding the parties to the case, the people who had actually sued, but everybody else. They issued what some people call nationwide injunctions. The better term is probably universal injunctions, because it's not really about geography. It's about saying this ruling applies to people, whether they've sued or not. It applies to everybody affected by the order. And the Trump administration takes this to the Supreme Court, but it doesn't ask the Supreme Court to rule on birthright citizenship. It only asks the court to rule about whether universal injunctions are proper or not. And six to three, the court says, as a general matter, no, they're not, and therefore withdraws from federal trial courts, a key tool to keep the president in check and to, at least as cases go forward, maintain the status quo and not let his aggressive agenda come into place while the cases move forward.
- [06:08]
Terry Gross
That was a very clever move on the part of the Trump administration, I gotta say.
- [06:12]
Adam Liptak
That at the Supreme Court, the Trump Justice Department, the Solicitor General who argues before the Court has been pretty strategically brilliant. You can't say that about their lower court litigation. That's kind of a mess. But in the Supreme Court, they've been very effective.
- [06:34]
Terry Gross
So does this ruling saying that lower court judges can't apply their decisions to people other than the people who filed the suit, does that overturn a lot of precedent?
- [06:46]
Adam Liptak
This has been an open question. And it's true that universal injunctions have been controversial. The Biden administration didn't like them. The Trump administration didn't like them. Members of the court didn't like them. Justice Elena Kagan, a liberal, has spoken out against them. They are kind of theoretically problematic. This idea that a judge is going to go beyond his or her direct jurisdiction and bind non parties. So that's problematic. But it's curious that although the Biden administration repeatedly asked the court to rule on this, they didn't accept that. And then when the Trump administration arrives, and in the context of what lawyers would say is a really poor vehicle, because birthright citizenship is like the worst context in which to make this decision. Because if anything, do you really want a patchwork of parts of the country are covered, parts of the country are not. It's a really odd setting in which to do it. And it raises the suspicion, as Justice Ketanji Brown Jackson says, that the Trump administration is getting special treatment.
- [08:04]
Terry Gross
Why do you think the Trump administration chose birthright citizenship as the case to actually argue whether lower court judges have the power to apply their decisions nationally?
- [08:17]
Adam Liptak
My suspicion is that they lost. They had a client, the president, who wanted them to go to the Supreme Court. They didn't want to go up on an issue that they thought they were certain to lose, which is whether birthright citizenship is constitutional or not. So they went up on this separate related issue of whether the injunctions issued against birthright citizenship were too broad and they may have won more than they expected.
- [08:47]
Terry Gross
One of the things I find really interesting about this decision is that the Supreme Court is limiting the power of the judiciary, at least of the lower courts, at a time when the Supreme Court is also expanding presidential power.
- [09:00]
Adam Liptak
Both of those things are right. And the third thing that's correct is the Supreme Court is also insisting that it has the power. So the court, and Justice Brett Kavanaugh in particular, in a concurrence, makes the point that, you know, federal trial judges, they don't have this power, but once it reaches the Supreme Court and once we issue a decision that is Effectively, a nationwide injunction, because everybody has to follow what we have to say. So presidential power increases. Supreme Court power increases. The people on the front lines, the federal trial judges around the country, their power decreases.
- [09:41]
Terry Gross
And, of course, three of the conservatives who were in the majority on the Supreme Court were appointed by President Trump. So you're right that this decision about the lower courts eliminated the use of the main tool that people trying to block Trump's agenda have used. So how does this decision open the door to Trump to continue to expand executive power?
- [10:10]
Adam Liptak
Well, so he issues an executive order, somebody sues that person, that advocacy group, that state wins, but the policy still remains in place as to everybody else. So you can't get a definitive answer on the Constitution or not of a given move until at least it gets to the Supreme Court in the regular course. And that can take years.
- [10:39]
Terry Gross
So it opens the door to a lot of uncertainty.
- [10:41]
Adam Liptak
Yeah. Now, even in Justice Amy Coney Barrett's majority opinion, she says there may be some alternate routes. One of them, and we're soon going to find out whether this works, is instead of universal injunctions, maybe class actions are the answer. Class actions, of course, are a legal vehicle where some people represent a broad class of people, and if they win, everybody in that class benefits. And depending how you define the class, it could get you to more or less the same place. Justice Barrett also says that even universal injunctions might sometimes do the work if the party suing needs to bind everybody to get complete relief. And so in the birthright citizenship case, some states sued, and those states said, the only way to make this workable for us because we have to give benefits to people who are citizens and not citizens, and people come and go, is to bind the whole nation. So even in the decision, there's a sense that maybe universal injunctions can sometimes still work. But nonetheless, the main point, the main holding of the case, is that the tool that has blocked the Trump agenda most effectively is withdrawn from federal trial judges.
- [12:01]
Terry Gross
The two decisions we've discussed, the birthright decision, which limited certain abilities of the lower courts, and the decision about firing tens of thousands of people at government agencies, those were both done on the emergency docket, which is sometimes called the shadow docket, because there's no transparency. So let's talk about the emergency docket. Would you explain what that is?
- [12:30]
Adam Liptak
Yeah. Maybe the best way to think about it is when we think of a usual Supreme Court case, it is very deliberate, and it takes a long time, and it gives the justices a chance to do their best work. So in the usual case, somebody petitions the court to hear the case. The justices decide whether to hear the case. If they hear the case, they have another round of briefing on the merits. They hear arguments, they discuss the case at their private conference. They exchange drafts of majority opinions, concurring opinions, dissenting opinions, and after about a year, they give birth to a very carefully reasoned, often quite long document in which they decide the case. Well, I mean, the Supreme Court, you can disagree with what they do in the merits cases, but few people would dispute that it actually has gotten the deliberate and considered attention of the nation's highest court. The emergency docket, completely different. It arrives at the Court on a Tuesday, on very thin briefing. The court calls for a response. Maybe a week later, another cursory brief is put in. There's a response. There's almost never oral argument. There does not seem to be, in person, deliberation. And the court issues a decision, typically in a matter of two or three weeks. And that decision often contains no reasoning at all. It just says, we grant a stay. We don't grant a stay. We let a program come into effect, and we don't even tell you why, nor do we disclose the vote count. There are often heated dissents, typically from the left. But this is no way to run a legal system. I mean, legal philosophers say that the elected branches claim power by dint of the fact that people voted for them. Courts claim power by dint of reason by telling us why the law requires something. And if you have this series of really consequential orders with scant or no reasoning, it's really questionable. And the other thing that's important to say, Terry, is that these used to be a very rare phenomenon in the 16 years of the George W. Bush and Obama administrations. Those administrations, collectively, over 16 years, filed eight emergency applications with the Supreme Court. In the first months of the Trump administration, there have been 19. That's the same number as in the entirety of the Biden administration. So we see the Court's work shifting from the careful, deliberate merits docket to this truncated, unsatisfactory emergency docket. And I don't think it's good for the court. I don't think it's good for the nation. I think it's deeply problematic.
- [15:48]
Terry Gross
So what alternative or alternatives did the Supreme Court have after lawsuits were filed objecting to the President's executive orders?
- [16:00]
Adam Liptak
One alternative is what it does on the merit stocket, which is the default, is that the lower court ruling stands. And when it reaches the Supreme Court eventually, in the usual way, the Supreme Court will rule that it doesn't jump into controversies at an early stage.
- [16:20]
Terry Gross
But the Supreme Court did away with the ability of the lower court's ruling to stand.
- [16:25]
Adam Liptak
Right.
- [16:26]
Terry Gross
It's a kind of catch 22.
- [16:28]
Adam Liptak
It really puts the thumb on the scale in favor of the president. This court is very pro presidential power. We saw that last term, at the end of the term on July 1st last year, when, in the process of giving then candidate Donald Trump substantial immunity from prosecution, Chief Justice Roberts sketched out a very broad vision of an independent and energetic and largely unchecked by law president. And when he took office, that decision really, I think, helped shape the view of the executive branch about just how aggressive they can be. And they turned out to be right, because then the court also said that lower courts are largely blocked from controlling presidential action. So this is a court that's in favor of an energetic executive. You can wonder whether that would be true of a Democratic president. But, you know, two key members of the court, Chief Justice Roberts and Justice Brett Kavanaugh, served in the White House. And I think they took on some of the values of the idea that the president needs to be able to maneuver and needs to be able to be nimble and quick and full of vigor.
- [17:56]
Terry Gross
Some leaders of the conservative legal movement, including some leaders of the Federalist Society, which for several Republican administrations have, like, provided lists of preferred conservative judges for appointment to the Supreme Court. So several of those leaders of the conservative movement have been critical of Trump and his legal moves. On what grounds?
- [18:23]
Adam Liptak
You know, lawless, unconstitutional action. They might say, you know, you can't understate this. The Trump administration's vision of executive power is kind of total. It leaves no room for the other branches. It's a complete reconception of the American constitutional order. And, you know, the Federalist Society contains lots of people of lots of different views, but they're not fundamentally political. They're fundamentally proponents of a vision of the law that will often reach conservative results, but not always, and, you know, wants consistency and principle and not only outcomes.
- [19:16]
Terry Gross
The president actually verbally attacked the Federalist Society. What did he say about them?
- [19:21]
Adam Liptak
He said, I don't know why I listened to them on judicial appointments. He called Leonard Leo a key figure in the Federalist Society sleazebag, which is just extraordinary for someone who really helped create Trump. I mean, to take you back to 2016, a lot of Republicans were nervous about Donald Trump. They didn't think he'd be conservative enough. You know, you can wonder about whether that judgment was right or not. And how did he get them on board? He he issued lists of people he would appoint to the Supreme Court. Justice Antonin Scalia had just died. There was an open seat. And those lists, which the Federalist Society's leaders helped craft, really played a huge role in getting conservative support for then candidate Trump. And for him to turn on the Federalist Society is really extraordinary. But I suppose it's not unusual. Nobody stays in President Trump's good graces forever.
- [20:22]
Terry Gross
Well, let me reintroduce you again. If you're just joining us, my guest is Adam Liptak, who just left his beat covering the Supreme Court for the New York Times. But he'll continue to write about legal matters in the Times and continue his legal column. Sidebar. We'll talk more about the Supreme Court's latest decisions after a break. I'm Terry Gross, and this is FRESH air. The House of Representatives has approved a White House request to claw back two years of previously approved funding for public media. The rescissions package now moves on to the Senate, poses a serious threat to local stations and public media as we know it. Please take a stand for public media today@goacpr.org thank you.
- [21:06]
Adam Liptak
This is Eric Glass on this American Life. Sometimes we just show up somewhere, turn on our tape recorders and see what happens. If you can't get seven cars in 12 days, you gotta look yourself in the mirror and say, holy. What, are you kidding me? This car dealership trying to sell its monthly quota of cars and it is not going well.
- [21:23]
Terry Gross
I just don't want one balloon to a car.
- [21:25]
Adam Liptak
Balloon the whole freaking place so it looks like a circus. Real life stories Every week this summer on Planet Money Summer School, we're learning about political economy. We're getting into the nitty gritty of what government does with things like trade, taxes, immigration and health care.
- [21:40]
Terry Gross
So politics and economics, which are taught separately, they shouldn't be separated at all. I think you have to understand one to really appreciate the other. So what is the right amount of.
- [21:48]
Adam Liptak
Government in our lives? Tune into Planet Money Summer School from npr, wherever you get your podcasts.
- [21:54]
Terry Gross
Squid Game is Netflix's most popular show of all time, and it just wrapped up its final season.
- [22:01]
Adam Liptak
And we're here to help you unpack that bloody finale.
- [22:04]
Terry Gross
Listen to Pop Culture Happy Hour on.
- [22:06]
Adam Liptak
The NPR app or wherever you get your podcasts.
- [22:12]
Terry Gross
The overwhelming majority of Republicans in Congress have not objected to ceding some of their power to the president. So if Congress isn't objecting to the president claiming powers that Congress should have to sign off on. And if the Supreme Court is allowing it and the lower court can't stand in the way of it, where does that leave us in terms of the expansion of executive power?
- [22:41]
Adam Liptak
We're looking at a transformed nation in which the president has assumed immeasurable power. As you say, Terry, Congress is not standing in the way. From the looks of it so far, after some initial sense that the Supreme Court might stand in the way, we don't see that. So it's not an overstatement to say that in a matter of months, American democracy has been transformed.
- [23:12]
Terry Gross
You wrote an article about how Ketanji Brown Jackson, who is the newest and youngest member of the Supreme Court, she appears to be sounding the alarm about how some of the Court's decisions pose a threat to democracy. And she wrote an unusually large number of concurring and dissenting opinions, which is unusual for such a new member of the Court. What are some of the decisions she's considered to pose the greatest threats to democracy?
- [23:40]
Adam Liptak
Well, she certainly thought that about the decision we started out by talking about, about universal injunctions. She said that was an existential threat to democracy. And in a lot of these shadow docket cases, she is really objecting to procedures in which the Court is giving really quick answers to really large questions with no reasoning calling them a fly by night operation. And so you have in Justice Jackson someone who does not get wound up in legal questions necessarily like, are you suing in the right court? Do you have standing to sue? Have you satisfied the formal obligations and is more apt to look at the big picture to say something really radical is going on here. And I'm going to call out the Court in a way that does not always sound judicial, but may be warranted by what she sees as a crisis.
- [24:44]
Terry Gross
So in the case of the birthright citizenship decision, in which the justices, the majority ruled that the lower courts stays in injunctions can't apply nationally. The dissent that Jackson wrote included these sentences, as you mentioned. She called it an existential threat to democracy. And she wrote that the majority imperiled the rule of law, creating, quote, a zone of lawlessness within which the executive has the prerogative to take or leave the law as it wishes. And then Amy Coney Barrett, in response, wrote, and Barrett wrote the majority opinion in this case. So she wrote about Jackson. We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries worth of precedent, not to mention the Constitution itself. And then in referring to the principle of Dissent written by Justice Sotomayor. Barrett wrote, the principal dissent focuses on conventional legal terrain. Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever. What's your understanding of what Barrett wrote?
- [26:06]
Adam Liptak
There's two levels to look at it. One is that Justice Barrett, who is ordinarily very constrained, took an uncharacteristic tack here and in truly dismissive tones, went after the next junior justice. And that dispute was ugly on a court where sharp dissenting and majority opinions are not unusual. But her broader point, I think, is that the sixth justice, conservative majority, is a little sick of Justice Jackson calling them out and speaking in a register that they don't think is, like, legal enough.
- [26:52]
Terry Gross
But Justice Jackson is speaking in terms that the public can understand.
- [26:57]
Adam Liptak
Yeah. So, I mean, the dynamic here is interesting because you have a principal dissent by the senior liberal, Justice Sonia Sotomayor, which Justice Kagan joins, Justice Jackson joins, and then Justice Jackson writes separately. And those separate writings are characteristic of Jackson. She has filed concurring opinions at the highest rate of any justice since 1937. So she's really ready to speak out. Chief Justice John Roberts filed his first solo dissent 16 years into his tenure. Justice Jackson filed three solo dissents in her first year. So this is a different model of Supreme Court Justice.
- [27:48]
Terry Gross
There have been so many threats against judges at every level since Trump became president, and that certainly has accelerated in his second term. And President Trump threatened to impeach Judge James Boasberg, who is handling the Venezuelan migrant case. Chief Justice Roberts even made a statement that impeachment isn't how you deal with a judge who makes a decision you disagree with. This is the John Roberts court. Do you think that he thinks his court has become extreme? Do you think he's concerned either about the direction that the court is taking or about the climate that judges are operating in now, the climate of constant threats from, you know, from people who don't like their decisions.
- [28:36]
Adam Liptak
So there's two different questions there.
- [28:38]
Terry Gross
Yes.
- [28:38]
Adam Liptak
Is he unsatisfied with the direction of his own court? I don't think so. I think he's voting as he sees fit. That said, I think the Chief justice is very concerned about the prestige, authority, and legitimacy of his court and wants to pick fights with Trump only when it makes sense and only when the court is likely to win, because they must be very afraid of President Trump saying, well, it's very nice you ruled that way, but I'm still going to do what I'm going to do. And that's an impossible situation for the court. On the second question, yes, the chief justice and every sentient human being is and ought to be very concerned about a breakdown in the political order where people want to impeach judges or harm them or threaten them. I mean, that is no way to run a mature society. So, yes, he cares about that deeply.
- [29:36]
Terry Gross
You mentioned that Chief Justice Roberts is concerned about starting a constitutional crisis if the court isn't careful about its decisions, that Trump might just like go ahead and take power without the approval of the court, with the disapproval of the court. So if concerns about a constitutional crisis is causing the Supreme Court or at least some members of the court to be timid about putting limits on the president, that sounds like a kind of lose, lose. Like you don't want a constitutional crisis, but you don't want to create a fear injustices about standing up to the president if he's overstepped.
- [30:22]
Adam Liptak
Yeah, they're in a hell of a box. It's hard. And I think they're going to pick their shots and rule against major Trump initiatives if they satisfy two one, the public is overwhelmingly with them and two, it's very hard for Trump to disobey the ruling. So let's say, and I think this is more likely than not, that birthright citizenship reaches the court on the merits, not on this universal injunction stuff, just straight up. Is it constitutional or not? The court is very likely to say birthright citizenship is required by the 14th amendment. And I think that would be a good decision for them to make because then it's very it's hard to know what the president is going to do to actually, you know, get with a hospital in Missouri about how to issue birth certificates. So the court is maybe even looking for an occasion to assert its authority, but it has to pick its shots pretty carefully.
- [31:27]
Terry Gross
Well, let me reintroduce you. My guest is Adam Liptak. He's covered the Supreme Court for the New York times for nearly 18 years, but he left the beat at the end of June. We'll talk more about the Supreme Court after we take a short break. This is FRESH air.
- [31:43]
Adam Liptak
You know those things you shout at the radio or maybe even at this very NPR podcast on NPR's Wait, Wait, don't tell me. We actually say those things on the radio and on the podcast. We're rude across all media.
- [31:55]
Terry Gross
We think the news can take it.
- [31:57]
Adam Liptak
Listen to NPR's Wait, Wait, don't tell me. Wherever you get your podcasts, you're listening to NPR because You're curious. You want to know what the world is like beyond the surface. NPR feeds that curiosity with stories from real people, with real experiences and all the perspectives that come with them. It's our right to be curious and our prerogative to listen. So keep your curiosity alive. Hear the bigger picture every day on npr.
- [32:26]
Terry Gross
At Planet Money, we know that economic jargon can sometimes feel like speaking another language. Yeah, like arbitrage, alpha, otarchy. That's just what's in the news these days.
- [32:36]
Adam Liptak
There's also absolute advantage.
- [32:38]
Terry Gross
Aggregate demand, aggregate supply. And this is just the A's.
- [32:42]
Adam Liptak
Oh, animal spirits.
- [32:43]
Terry Gross
That's a pretty good one. Planet Money from npr. We help you translate the economy so you can understand the world wherever you get your podcasts. So it seems like this past term had several wins for the religious right and for people who object to LGBTQ rights. There was a decision related to transgender youth, preventing them from getting access to some forms of transition care. It upheld a Tennessee law that will also now apply to about 20 other states with similar laws. The Supreme Court granted the right for people whose religion is anti lgbtq. They can remove their children from classes that are discussing LGBTQ issues or LGBTQ themed books. So in terms of the curriculum issue, this gives the religious parents what they claim as their rights, in a way, by denying the rights of LGBTQ students and LGBTQ parents of students, because it's basically saying, if your parents are gay or trans, we can't talk about who they are. We can't recognize them as people who can even be discussed in this class.
- [34:09]
Adam Liptak
That's certainly one way to look at it. Another way to look at it is this overrides. I mean, we talk. The court often talks about, we're going to send something back to the states. We're going to let local officials make decisions here. A local school board in Montgomery County, Maryland, made the decision that we're going to include some books for young children in which gay and transgender themes are discussed. And the objection from parents that that is at odds with their ability to raise their children in their religious faiths as they see fit really has broad implications. On the same reasoning, parents might want to withdraw their kids from classes in which evolution is discussed, or the Big Bang theory, or women working outside the home, or even storybooks involving wizards and giants. And I didn't make that list up. Those are all challenges that have been filed. Before this case, they did not succeed. But after this case, it's not clear whether they will or not. The other thing to say about the case is that we seem to have reached an inflection point on gay and transgender rights. It's the 10th anniversary of the Obergefell decision establishing a constitutional right to same sex marriage. Five years ago, the Court said that a federal civil rights law protected gay and transgender workers from job discrimination. And it's not clear now that those may be the high water marks of protection from discrimination for this court.
- [35:52]
Terry Gross
Do you think there's a threat to same sex marriage?
- [35:56]
Adam Liptak
You know, a year or two ago I would have said that would be laughable. Now I think I'd say I don't think it's likely. I think there may be only two people on the court itching to do away with the constitutional right to same sex marriage. That would be Thomas and Alito. But the logic of the decision in Dobbs, which overturned the constitutional right to abortion, would suggest that the same sex marriage case is not on strong constitutional footing. At the same time, it would be a really radical move for the Court to say either one of two things. Neither one of them really works. We're going to undo the marriages of many, many gay couples, or we're going to have a world in which people who are married stay married, but you can't have more same sex unions. Or a world in which we have a patchwork where you can get married in California, but not in Mississippi. And then does Mississippi have to acknowledge the California marriage? It's such a mess that I think they're going to leave it alone. But at the same time, religious dissent from acknowledging same sex marriage will get a positive hearing at the Court. I mean, you recall, Terry, only a couple terms ago, the court said that a web designer who didn't want to create websites for same sex weddings had a constitutional right not to do so.
- [37:27]
Terry Gross
By the way, something I neglected to ask you. You described the current court as being basically the Kavanaugh, Roberts, Barrett court because they're the only justices on the conservative side that sometimes side with the liberals.
- [37:42]
Adam Liptak
Yeah, I make a tiny footnote that Justice Gorsuch will occasionally go in that direction. But you're right. I mean, people hate to hear this because you can find exceptions and complexities and it's not a universal theory that always works. But they're basically three members of the sixth Justice, Republican appointee, conservative supermajority, who are sometimes in play. And as you say, that's Roberts, Kavanaugh, and Barrett. But it's nothing like the days of Anthony Kennedy where he could single handedly deliver a liberal result if the three liberals are to win, they have to pick up two of those three votes, and that's a heavy lift.
- [38:26]
Terry Gross
Well, let me introduce you one more time. My guest is Adam Liftak, and he's covered the Supreme Court for the New York times for nearly eight years, 18 years. But at the conclusion of the term that ended in June, he left the beat to write more generally about legal issues. We'll talk more after a break. This is FRESH air. What would you think if you saw a robot dog out for a walk in your neighborhood? What the hell is that?
- [38:50]
Adam Liptak
Oh, my God.
- [38:51]
Terry Gross
This is Basya. She's hanging out with us. So could I have a medium Double takes and how they can change your point of view? That's on the TED Radio Hour podcast from npr. Recycling can feel like a lost cause, but one college student started a grassroots efforts to turn beer bottles into sand for eroding beaches.
- [39:15]
Adam Liptak
We have some music bumping and like some people are sorting.
- [39:18]
Terry Gross
There's one person crushing and the rest.
- [39:20]
Adam Liptak
Of us are like hand sifting the material.
- [39:23]
Terry Gross
How you can come up with creative ideas by taking a second look.
- [39:27]
Adam Liptak
Double takes.
- [39:28]
Terry Gross
That's on the TED Radio Hour podcast from npr. Love island is pure chaos. And admittedly we love it. The trashy reality dating show is the closest thing we've got to a water cooler event this summer. And we're breaking down all the drama and what it tells us about our relationship to social media, dating and race.
- [39:46]
Adam Liptak
Listen to Pop Culture Happy Hour on.
- [39:48]
Terry Gross
The NPR app or wherever you get your podcasts. Before you covered the Supreme Court for the Times, you actually worked in the Times legal department, being an attorney for the Times, which I imagine dealt with a lot of First Amendment issues and other issues as well. So if you could put that hat on for a moment, you know, as somebody who represented a media organization, as a lawyer, what is your, I don't know, what is your take on what President Trump is doing now suing various, you know, networks and other media outlets?
- [40:29]
Adam Liptak
So I think this is an area where the law hasn't changed. American law is very protective of the press, and the press will win these suits if they fight. But astoundingly, ABC settles a very weak libel suit. CBS's parent company settles a preposterously stupid suit from the president. So the problem here, Terry, is not that the law is against the press, it's that the press or elements of it are bending the knee for no good reason. And it's a really distressing situation.
- [41:07]
Terry Gross
You say they're bending the knee for no good reason. I Think the reason might be money.
- [41:13]
Adam Liptak
Right. Well, bending the knee for no good reason, consistent with, you know, journalism and the First Amendment.
- [41:21]
Terry Gross
So what's the financial threat?
- [41:23]
Adam Liptak
Well, I guess it's possible that the president sues in some jurisdiction. You know, cherry picks a judge, gets before a jury inclined to be skeptical of the mainstream press, wins a judgment, is upheld on appeal, is upheld at the Supreme Court. I suppose all that could happen, but we shouldn't lose these fights before we start fighting them.
- [41:50]
Terry Gross
Mm. So let's look at President Trump's lawsuit against CBS, and CBS is settling that for $16 million. Settling out of court. Can you explain what that lawsuit is about?
- [42:06]
Adam Liptak
So the president's claim is that CBS did something wrong in airing two different excerpts from an interview with Kamala Harris in two different settings in response to the same question. So they asked the question. They played one snippet in one setting. They asked the question. They played a different snippet in a different setting. That's so what? That's not unusual. But even if it were unusual, it's not unlawful. I think I can say this with some level of confidence, Terry. I practiced First Amendment law for 14 years. This lawsuit is stupid. It's frivolous. It was settled only because CBS's parent company wanted the Trump administration's approval in completing a merger. It smells something like a bribe. I mean, CBS is a shining example of great American journalism. CBS News, 60 Minutes has done incredible work over the years, and to be betrayed in this fashion by their corporate owners sets a terrible precedent. And you have to hope that other news organizations don't follow suit. But it's unfortunately true that many news organizations are owned by corporate parents who have a lot of interests before this administration. And I gotta say, I'm grateful that the New York Times is in the business of the New York Times. That's all we do. That's not true. We do Wordle and some other things. But our company is controlled by the Sulzberger family, who are committed to journalism first and foremost.
- [43:59]
Terry Gross
So, Adam, I was really sorry to read that you were leaving the Supreme Court beat, which you did for so many years, and you've been on our show so many times during that period. And I always like talking with you, which we can continue to do as you switch to more general legal issues. But I always enjoyed reading you because you're just so clear and have such a strong background in not only the Supreme Court, but legal issues in general. Why did you decide to leave the beat?
- [44:32]
Adam Liptak
The beat wears you down, particularly in this era of emergency applications, it's grueling deadline work day and night. And I think it's time for someone with more energy to handle that stuff, which is, while important, is kind of commodity news. A lot of people are writing very good stories about the Supreme Court and the incremental developments there. For many news organizations, the Supreme Court press corps is excellent. And I just have this itch to write about different and bigger stuff, and not only about the Court and not only about the president, but about the law more generally in the land. You know, Terry, when we first talked, I think it was in 2005, I was the national legal reporter at the Times, based in New York and covering stories that nobody else was covering and trying to shed light on injustice and interesting legal issues. And I kind of feel a tug to go back to some of that stuff and not only focus on the cases that nine people in robes choose for us to cover, but also to broaden the lens and write about the role of law in American society.
- [45:58]
Terry Gross
Once you got the itch to leave the Supreme Court beat, how long did it take you to decide you were really going to do it?
- [46:06]
Adam Liptak
The real question is how long did it take for me to persuade my superiors that I should be allowed to do it? I'll also say this. The court has also become different. You know, for the first, my first 10 years on the court, for the first long time on the court, it was a 5, 4 court with Justice Anthony Kennedy in the middle. And mostly he'd swing right, but sometimes he'd swing left. And on major issues like gay rights and abortion and affirmative action and the death penalty, he would join what was then the court's four member liberal wing and deliver a liberal result. And at the end of the term, you'd get a little bit of this, a little bit of that, and it felt a little more like a court and less like a juggernaut. And that was journalistically more fun to cover, less predictable. And this court is different in kind and maybe less appealing to cover journalistically.
- [47:11]
Terry Gross
So now that you're no longer going to be covering the Supreme Court, is one of your resolutions to get more sleep?
- [47:16]
Adam Liptak
Oh, I'm going to try.
- [47:17]
Terry Gross
Terry, good luck.
- [47:19]
Adam Liptak
Thank you.
- [47:20]
Terry Gross
Adam Liftak, it's been a pleasure. I hope you enjoy, if that's the right word, covering your newbie writing more generally about legal issues for the New York Times. And thank you for all your appearances on Fresh AIR while you've been covering the Supreme Court. I look forward to continue to talk with you.
- [47:37]
Adam Liptak
Thank you, Terry. It's been a treat to be with you today and all those other times.
- [47:42]
Terry Gross
Adam Liptak was the New York Times supreme court reporter from 2008 until the end of June, when he left the beat to cover legal issues more broadly for the Times. We recorded our interview yesterday morning. This morning, a U.S. district Court federal judge in New Hampshire blocked the Trump administration from enforcing its executive order ending birthright citizenship. The judge allowed the case to proceed as a class action, as Liptak explained a recent Supreme Court decision limiting nationwide injunctions allowed for class action suits as the way to challenge executive orders. FRESH Air's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our managing producer is Sam Brigger. Our interviews and reviews are produced and edited by Phyllis Myers, Roberta Shorrock, Annmarie Boldonado, Lauren Krenzel, Teresa Madden, Monique Nazareth, Susan Yakundi and Anna Bauman. Our digital media producer is Molly Sivi Nesper. Hope Wilson is our consulting visual producer. Thea Chaloner directed today's show. Our co host is Tanya Moseley. I'm Terry Gross.
- [48:55]
Adam Liptak
Hey everybody, it's Ian from How to Do Everything. On our show, we attempt to answer your how to questions. We don't know how to do anything, so we call experts. Last season, both Tom Hanks and Martha Stewart stopped by to help. Our next season is launching in just a few months, so get us your questions now by emailing howtopr.org or calling 1-800-424-2935.
- [49:19]
Terry Gross
Here on the Indicator from Planet Money, we fanned out across the country to ask how you are feeling about the 2025 economy. Anxious.
- [49:28]
Adam Liptak
Uncertain? Unfair?
- [49:30]
Terry Gross
Turbulent? Crazy. We don't just recite the headlines. We show you how the economy is affecting your life in 10 minutes or less each weekday. Listen to the indicator from Planet Money. Wherever you get your podcasts.