On a recent episode of Amicus, Dahlia Lithwick convened a Supreme Court brain trust to unpack the end of the 2020 term and analyze the shape of the court and the ramifications of its decisions. Lithwick is joined by Melissa Murray, professor at NYU School of Law and co-host of the podcast Strict Scrutiny; Jeffrey Fisher, Stanford Law School professor and co-director of Stanford’s Supreme Court Litigation clinic; Perry Grossman, senior staff attorney at the New York Civil Liberties Union’s Voting Rights Project; and Slate’s own Mark Joseph Stern. A portion of their conversation, which has been edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: OK, here we go. I want to start with the big, big picture. The term was very surprising in a lot of ways. We had cases we thought were big-ticket cases, Fulton—the Philadelphia foster care case—and the Affordable Care Act case, that fizzled into nothing. Deeply surprising lineups all year long, no clear sense of what kind of conservative supermajority we’re looking at, if we’re looking at one at all. Melissa, what do you make of the end of term? Barring Thursday’s cases, everybody was saying, “Hey, whatever this is, it’s not a 6–3 juggernaut. Not a big shift to the right. Strange bedfellows, maybe we’ve got moderates in Amy Coney Barrett and Brett Kavanaugh?” How much did Thursday confound that narrative? How much did it bear it out? And was that narrative ever really true?
Melissa Murray: I don’t think that narrative was ever really true. The whole idea that this is a moderate or minimalist or restrained court is really a gross exaggeration. And one that doesn’t take into account the very significant rulings that have been happening off of the court’s regular docket and have been happening on the shadow docket. I think if you consider the shadow docket in tandem with the court’s regular docket, a much different picture emerges, and it’s not one of moderation or restraint. So it is true that there were some surprising coalitions and some places where the liberal justices seemed to have found common cause with their more conservative brethren. But on the whole, this is very much a conservative court and Thursday’s rulings really confirmed its conservatism. And even in the places where the rulings appeared on the surface to be more restrained, we may have overlooked the degree to which the law did change and change in a more conservative direction.
Jeff, I want to ask you a version of that same framing question, because I know you have to actually think about this as you organize cases for the clinic. Do you look at this now as effectively the same court that you and I knew 15 or 20 years ago when there was Anthony Kennedy and Sandra Day O’Connor at the middle—and now we have Brett Kavanaugh and Amy Coney Barrett at the middle, and it’s essentially the same enterprise? I’ve been kind of chuckling even at the end-of-term stories that are like, it’s an 8–1 court, it’s a 7–2 court, it’s a 3–3–3 court. It’s a 5–4 court. It’s a 4–4–1 court. What is it?
Jeffrey Fisher: I do think it’s different than the court of yesteryear or even of recent years in that I don’t think you’re going to have as many 4–1–4 divides as in the past. We’re going to talk later about substance of particular cases, but if you were just to say, is the court better off with two, three justices in the middle and different ideological approaches among several of the justices that can result in shifting coalitions? I think we’d say yes. So in terms of a big group of the courts cases, I think that is actually a positive thing. But I think you’re still going to have some cases where it’s going to be dramatically divided. And I think the voting cases like on Thursday are those kinds of cases where the court sort of retreats to their camps a little more often and in ways that do resemble the court of yesteryear.
And Mark, one of the things that is descriptively complicated, even when you look at the SCOTUSblog numbers that describe how many people vote in the majority and who votes with whom and what the blocs are—and that kind of bump in the center that Jeff is describing, clearly something is happening there—is that not all cases are the same and that also we tend to focus a lot of attention on swearing cheerleaders or on the demise of the ACA. And we treat that as though it is the same somehow as an incredibly consequential case, like, for instance, the voting case from Thursday. So I wonder how you think about this, if you’re not going to just slice and dice it as 4–4–1 court, and you’re not going to slice and dice the 60 whatever merits opinions and say they all count for the same amount. What is the rubric that we use to analyze what happened this year? Because the numbers don’t get us to what Jeff just described.
Mark Joseph Stern: I think the proper rubric is roughly how sad these decisions make us feel inside on a scale of one to 10. So a couple of things, it’s simply impossible to quantify a lot of decisions in the way that stat nerds want to, especially with this court. Look at a case like Fulton v. Philadelphia, where the court awarded Catholic Social Services a right, at least temporarily, to refuse to work with same-sex couples. There is no way that the three liberal justices would have sided with Catholic Social Services if there were two more justices on the left flank of the court who were ready to side against them. This was so obviously strategic voting by the liberal justices to limit the damage, to choose the least bad option on the table, given the 6–3 conservative split, and throw their weight around as much as they can to let Chief Justice Roberts hand down a smallish disaster for LGBTQ rights instead of a major disaster for LGBTQ rights.
You can’t really put that speculation into a computer and have it spit out stats that the average person can understand. And that fact misleads a lot of folks who don’t pay close attention to the court, who read the end-of-year New York Times summary and look at all the graphics on how the court divided and they say, “Oh well, Sonia Sotomayor said it was OK to discriminate against gay people here so this decision must not have been too bad.”
The other issue is—and this one is maybe even more problematic—there are a lot of cases that the Supreme Court hands down that are really complicated. And that prevents both the media and the general public from really digging into their consequences and their impact. So a case like TransUnion v. Ramirez, where the court actually split 5–4 to hold that Congress does not have the authority to create new rights and allow federal courts to enforce those new rights, like certain rights to privacy, for instance. And this is an example of where the 6–3 majority really matters because Clarence Thomas, raging liberal, peeled off and sided with Sotomayor, Kagan, and Breyer, but that didn’t change the outcome because there were still five conservative votes to really defang Congress’ authority to create and enforce new rights. And most people just didn’t pay attention to TransUnion because it’s complicated, because we’re talking about causes of action, which make people’s eyes glaze over.
I get it, it is a complicated case, but the problem is it’s not included in those end-of-term roundups of how the justices voted on the big cases. It’s too confusing. It’s too wrapped up in legalese. And so that leaves a lot of casual spectators of the court thinking that we are in better shape than we are, at least from my perspective, and thinking that this court was not as maximalist and conservative as it actually was in cases like that.
We can’t quite wrap this conversation without at least thinking about what’s coming down the pike next year. Melissa, maybe you could walk us through what you think is coming and whether there’s any relationship between the sort of relative calm of the end of this term and what is to come?
Melissa Murray: I think if this term was heralded as a triumph of restraint and moderation, which it was not, it really is only as table setting for what I think will be a barnburner of a term next year, where the court will take up a number of hot button cases. Abortion is on the docket; gun regulation is on the docket. There are going to be so many more opportunities for this very conservative court to continue to flex its own views of where the law should go. And indeed, if it’s been inching to the right, I think next term we will see more of a lurch in that direction. So again, this is perhaps the not moderate calm before the storm.
Perry, I want to give you the very, very last word, because at least among the stuff that I was getting in my inbox post Brnovich, there was a lot of “What’s to be done?” It feels as though, if in fact Section 2 has been pared down to the bone, Section 5 is dead, the court is pretty determined that barring the announcement that this is a racist attempt to privilege the Republican Party—which by the way, kind of almost was said, not the racist part, but certainly at oral argument in Brnovich—we’re just never going to be able to litigate discriminatory voting practices. I think probably an awful lot of folks just want to know what they should do.
Perry Grossman: I’ll give just a couple of very small, bright sides about Brnovich, but the short answer to your question is always you can organize, you can vote, you can get out and bring people to the polls. And you can donate and you can volunteer, vote, make sure everyone you know votes, and make sure everyone you don’t know votes. That’s in the end the most important thing.
In terms of the takeaways from Brnovich in terms of upside is it’s an opinion from Justice Alito that’s actually full of holes. And there’s a lot of places for conscientious, diligent litigants to find places to successfully litigate Section 2 cases still. The intent finding, you mentioned the DOJs case, is reliant on proving that the Georgia law is discriminatory. The amount of damage that the Supreme Court did to the intent issue in Brnovich is not that great. Basically it said that the district court’s finding that there was not intent to discriminate was not clearly erroneous. And that was the basis for overturning the 9th Circuit. So if you can persuade a district judge that there is intent to discriminate, that will get reviewed for clear error. So there’s a lot of work to be done to investigate and prove facts on the ground.
But in the end, the most important thing is always going to be this is the landscape that we’re going to have to live with and all of the litigation of the world is only going to cure so much of it. And it is just absolutely imperative that we do everything we can to get everyone to the polls all the time.
Note: The comments made by Perry Grossman express Grossman’s personal views and are not necessarily those of the NYCLU or ACLU.