Jurisprudence

The Judiciary Is the One Branch of Government Working Effectively

That’s terrifying.

The Supreme Court building against a partly cloudy sky.
The Supreme Court building on June 30. Stefani Reynolds/Getty Images

Back in October, at the beginning of the Supreme Court term, Slate’s Mark Joseph Stern predicted that the session could be “a bloodbath for progressives.” Things are a lot different now than they were in October, and when the term ended last week, a lot of the cases seemed to have progressive outcomes: The justices protected gay and trans workers from being fired, they decided not to weigh in on gun rights, and they held back restrictions on abortion in Louisiana. While it wasn’t the bloodbath Stern predicted, his colleague Dahlia Lithwick warns progressives not to get too comfortable.

On Monday’s episode of What Next, I spoke with Lithwick about what just happened at the Supreme Court and why these progressive wins aren’t necessarily what they seem. Our conversation has been edited and condensed for clarity.

Mary Harris: I was reading your and Mark’s summary of this court term, and you seemed both impressed and annoyed by this court. Can you explain that a little bit? 

Dahlia Lithwick: In a world in which so many people in elected office are bad actors acting badly or good actors acting ineptly, there’s one actor acting deftly, and that is John Roberts. He is playing three-dimensional chess compared with the Hungry Hungry Hippos that’s happening in the other branches. At one level, there is real integrity here, and I cede that. Then there is another thing that is a little more pernicious and perilous, and that is a slow, creeping right-wing judicial remaking of the world. It’s happening by tiny increments, and it’s brilliant because he has managed to get the effects he wants in many, many, many, many cases without anybody storming the courts with flaming torches. As a craftsman, there is no chief justice in my memory who is like him.

Toward the end of the term, I felt like there was this palpable sense of relief from progressives who were thinking, OK, we squeaked out some surprising wins here. But I want to dig into them a little bit so we can reveal this glacial change you’re talking about. Let’s start off with June Medical, which is the case from Louisiana, where Louisiana decided it was going to write a law into place that violated precedent from the Supreme Court, which said you can’t require physicians at abortion clinics to have admitting privileges at hospitals because it’s too much of a burden. John Roberts wrote the opinion that basically said, You can’t do that. We have a precedent here. But you wrote about how there were things inside this decision that actually made it less progressive than you might think on the surface.

When that decision came down, there was one quadrant of progressive court watchers who said, Thank God. John Roberts, what a guy. He’s flipped and thrown in with the liberals because he is a man of great principle and integrity. And then there was a bunch of people like me who said, Oh, my God, the sky is falling. He’s essentially said, but for the fact that this case is quite literally identical to the Texas regulations that were struck down four years earlier, I would have voted to uphold those regulations. Kind of “don’t pee on my leg and tell me it’s raining.”

Four years ago in that other case, Whole Woman’s Health, Justice Stephen Breyer added teeth to the undue burden test, where he said you’re going to weigh the burden on women against the purported benefits of these health regulations. Roberts just took a red pen to that. The state no longer has to show that there are health benefits to regulations. So he said, I believe in precedent. But then he gutted the precedent that was Whole Woman’s Health and went back to the Casey precedent, which is much weaker.

What will that functionally look like?

I think what you’re going to see is just different kinds of regulations that they are going to say are going to help women make better choices—this is going to give them more information, give them more time to think—but will have the effect of making it harder and harder to get abortions.

Let’s talk about another one of these decisions that’s narrow but maybe was interpreted, at least at first, as some kind of progressive win. This is the Trump tax case. I was listening to this live on the radio when the decision came out. It summed up how complicated and misunderstood the rulings in this court can be, because initially the host said, We have a decision. Trump can’t block this. And the feeling was maybe we’re going to see these tax documents right away. And gradually, over the course of the radio show, it was realized that no one’s going to see them anytime soon.

I think this is another on paper absolute triumphal claim that the president is not immune from scrutiny. And in both cases, by 7–2 margins, we had an absolute repudiation of the completely farcical claim that the president couldn’t be investigated. These are not close cases, so that looks like a huge win. But as you say, as people read the opinions, they realized we’re not seeing any of those documents, certainly not before the election. And I came away saying it’s like T-ball, where everyone’s a winner. Everyone gets a trophy, because Donald Trump looks like he lost. But he gets to obscure his financial records again. And meantime, it looks like a resounding win for separation of powers and a resounding win for checks and balances and oversight. Except that’s not going to happen anytime soon. And the reason I say everyone’s a winner is because John Roberts comes out having authored both opinions looking like the chief justice–iest chief justice of all time, and yet nothing changes. This looked like a win for the people and for transparency, but it was the court helping yet again cover for Trump. This is the court doing exactly what Donald Trump wanted, which is running out the clock.

Can we talk about the role of religion in the Supreme Court? How did you see religion reflected in the rulings this term?

We ended the term with a bunch of very clear wins for religious exercise claims, including a pair of really important cases about allowing religious schools to fire employees as they please under what was once a very narrow doctrine called the ministerial exemption that said that religious schools could decide for themselves who was a minister for their purposes. If you’re a janitor or the driving instructor or teaching algebra, you are now a minister, and it will carve out religious schools from all the civil rights laws.

I found that ruling fascinating because it came just weeks after the Bostock case, which ruled that you cannot fire gay or trans employees because they’re gay or trans. And it seemed like two steps forward, one step back, where you have a massive civil rights victory, and then you’re saying, OK, but except for these people over here. 

There’s no question that this will create an exception to Bostock that you could drive a truck through. You can say it’s one step forward, two steps back, or you can say that the exceptions start to swallow the rule and that what we are seeing is a hollowing out of civil rights laws generally. Just as the country is moving toward a bigger, inclusive, more robust sense of who needs to be protected under the law, whether it’s women, LGBTQ workers, workers who are older, we’re seeing an equally effective campaign by religious groups to say they are going to be given by the court a sword to fight that off.

Is this how it should work when you’re compromising—no one is 100 percent happy? Is there an argument to be made for that?

I think that’s the question. This is without a doubt the most conservative Supreme Court we’ve had since the New Deal. And yet somehow we came to this pretty middle-of-the-road term with huge landmark wins. We haven’t even talked about the DACA rescission, but that was a massive win. It’s clear that this is not the conservative term we feared was coming. I think what you are seeing is partly hard trades, a little bit of horse trading. The John Roberts long game. But the court’s job is to move slowly and deliberately and to not be buffeted around by the winds of whatever hurly-burly political moment they’re in. And what that means is good stuff, right? We had big wins because the court is slow and deliberate, and big losses, especially in the financial documents cases, because the court does things slowly. But the court isn’t just thinking about November. The court is the institution that would very much like to be around and have its lights on and its toilets working in 10 years. And the only way to do that is to have the American public do exactly what the American public is doing this week, which is saying, Well, I have a lot to worry about, but what I don’t have to worry about is the U.S. Supreme Court.

It’s so clear how much more conservative the court is than the people that they’re ostensibly representing.

I think that the person who is more aware of that than anyone else is John Roberts. The justices are mindful of the fact that in a lot of ways they are not necessarily in lockstep with the public. The important thing to say is 99 percent of cases get decided in the appeals courts, and those courts have shifted radically under Donald Trump. I want to be really mindful of the fact that what we’re seeing play out in under a hundred cases in one term at the court is by no means representative of what we’re seeing on the federal courts across the country. That is something we should be watching, and I’m afraid we’re not.

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