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S2: I don’t think he’s becoming Ruth Bader Ginsburg. But he is does not appear to be the same John Roberts as he was to five, 10 years ago. Go back and find some better law. That’s different. That’s not squarely on point with a precedent. We decided four years ago and then you’ll see the John Roberts you’ve known and loved for generation.
S3: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the Supreme Court. There is a lot you may have heard going on at the Supreme Court, and we’re going to focus on that today. But I wanted to just offer a little sidebar that the high court stepped in Thursday night to block a judicial order in Alabama that would have allowed some curbside voting. And they also stepped in to slow walk a Texas challenge to that state’s mail in voting rules during the pandemic. I’m going to go out on a limb and say there are probably five justices of the high court who are not all that worried about how kov it is going to distort the November elections. And look, having spent a month pre covered on this show talking about voting in the courts, it’s just worth a little pause to think about that.
S1: The court did not end the 2019 term on the last day of June this year, as it always does. There are still big, big cases that are going to come down on Monday and for some indeterminate number of days thereafter. Later on in this show, Slate plus members can join me and Mark Joseph Stern to thrash out the other significant opinions that came down this week. The implications for executive power and separation of church and state of some of the big ticket cases that did come down. But we’re going to zero in on June medical today. That is the Louisiana abortion case, the one that required admitting privileges for abortion providers within 30 miles of a local hospital. It raises almost the same questions the court already decided in whole women’s health in 2016 or what we’d like to call the Anthony Kennedy Times. The surprise outcome in June, medical involved a very careful four for one split in which Justice Stephen Breyer wrote for the four liberals to say the case was exactly the same as Texas. The four conservatives each wrote separate dissent, saying either Louisiana should directly prevail in its efforts to force doctors to get admitting privileges or that the case should go back to the courts. And Louisiana doctors should try harder to get admitting privileges. And we’ll figure this out later. The chief justice writing for himself alone. Right. So he does not agree with either of the two sides, says that while he absolutely disagreed with whole woman’s health at the time, he still disagrees with it. Now, the principles of stari decisis force him to strike down the Louisiana law, which he says is the same as the Texas law. His opinion then becomes the, quote, unquote, controlling opinion because it is the narrowest opinion in which he agrees with the outcome of the liberals, but does not agree with their reasoning. So his opinion alone becomes the law of this case. The chief justice, in so doing, fiddled a little bit with the undue burden test that we had after Casey in 1992. Interestingly, he also set off a kind of Sue Nami of legal commentary that, weirdly enough, seems to have divided along gender lines over whether, in so doing, he has made the right to terminate a pregnancy more secure or less secure going forward. Joining us to try to work through this are two dear, dear friends of this show. Melissa Murray, one of the hosts of the Strict Scrutiny podcast is also Frederic I and Grace Stokes, professor of law at NYU School of Law. Jeffrey Toobin, who covers the courts for The New Yorker and for CNN. And his new book, True Crimes and Misdemeanors. The investigation of Donald Trump will come out in August. Just for point of reference, Melissa Murray’s piece in The Washington Post after June was the Supreme Court’s abortion decision seems pulled from the Casey playbook. Jeff’s headline in The New Yorker was John Roberts distances himself from the Trump McConnell legal project. And before we jump in, I need to note that I am not a neutral observer in this weird debate. My own piece that I wrote after June Medical suggested that I thought the chief was by no means bolstering Roe or the right to choose. And Jeff started his piece by respectfully disagreeing with me. So, Jeff. Melissa, thank you so much for coming back. It’s great to have you. Thanks for having me.
S4: I Gallia, the one thing I was curious about I’m not disagreeing with you. I hadn’t I hadn’t realized that that that I guess what the implication of what you’re saying is that the optimists about Roberts are man like me and the pessimists are women. I hadn’t realized that or thought about that. And I don’t even know if I agree with it. I hope we can tease out what that might mean, because that that is a puzzling and interesting observation and I could be wrong.
S1: I’ll let Melissa weigh and I will say that Larry Tribe, who wrote a piece kind of along the lines of yours, said, you know, who’s wrong here? Melissa Murray, Dahlia Lithwick, Leah Lippman, I think. And Linda Greenhouse. Right. I think he also disagreed with Linda. So I think there is this weird gender divide. And while I don’t want to belabor it, I do think it’s super interesting that the glass half full people have tended to be men. But, Melissa, do you do you. Again, if you dispute this, now’s a good time.
S5: I mean, I don’t dispute it. I think it is empirically verifiable. So I’m just going to come out and say I’m on Team Eurus, Team Uterus.
S1: OK, Jeff, you just take take that for what it is. Let’s maybe start by setting the table, because I think this is a slightly confusing case in that it’s different and yet the same as whole women’s health. So so maybe, Melissa, if you could just tell us the facts of June medical and kind of get us all on the same page.
S5: So June Medical involves Louisiana admitting privileges law, the Louisiana Unsafe Abortion Protection Act, which is honestly virtually identical to the Texas admitting privileges law that was struck down in 2016 and a five to three decision of the court in whole women’s health versus Heller said the differences, of course, between 2016 and now is that the composition of the court has changed substantially. Justice Kennedy, who joined the liberal wing of the court in her whole women’s health, is obviously no longer on the bench, and he’s been replaced by Justice Kavanaugh. The decision at the time was five to three because it was during that interregnum period between when Justice Scalia passed away in February of 2016 and when Neil Gorsuch was added to the court after Donald Trump’s election.
S6: So, again, whole women’s health, I think, was a sort of watershed moment in the abortion rights movement. It was written by Stephen Breyer. I think, Dahlia, at the time you pointed out that that by itself was actually very interesting, that you had this male member of the court.
S5: I’m not someone who wasn’t Justice Ginsburg really coming out in a full throated defense of abortion rights and more importantly, adding teeth to the standard that governs abortion litigation. That standard was announced in 1990 two’s Planned Parenthood of southeastern Pennsylvania vs. Casey in whole women’s health. Justice Breyer makes it a little too theorem cases, a little sort of amorphous and vague in what is required of courts when assessing an abortion regulation and in whole women’s health. Justice Breyer says that one of the things that needs to be done is you have to weigh the purported benefits of the proposed abortion restriction against the burdens that it potentially imposes. And so this weighing of burdens and benefits is really key here and in whole women’s health. It was determined that since the admitting privileges law really had no verifiable medical benefits for women, it really just imposed more burdens and because it imposed more burdens and benefits. It was a substantial obstacle and therefore unconstitutional. This Louisiana law is identical to that. Ostensibly, the same kind of weighing of burdens and benefits should have happened in the lower court. That didn’t happen. Instead, the 5th Circuit distinguish the situation from that in Texas by saying Louisiana was a different state and therefore the benefits and burdens would be different in Louisiana. And so they upheld the law. It came before the court and Justice Breyer writing for Justice Sotomayor. Justice Kagan and Justice Ginsburg redeployed the same kind of analysis that he exercised in whole women’s health. He could not get a fifth vote to join him. He did get a fifth vote for the judgment, which is, of course, that the Louisiana law does pose an unconstitutional burden to the right to an abortion, but not for the same reasons that he would have come to. So Chief Justice Roberts sort of stands alone on that as he concurs in the judgment, but not in the reasoning. And because he is the sort of consequential voice on this, I think his opinion is the one that will control going forward. And I think it’s a really interesting opinion and the way it trims back whole women’s health. So I think that might be a setup for the great gender divide on this. I see this as a trimming back of whole women’s health and really substantial ways.
S1: Jeff, can I can I ask you because I think the one thing that would help us I agree with Melissa. I think the thing that’s really important is trying to get your head around this kind of cost benefit burdens vs. benefits analysis and that balancing test. But I think in order to get there, we have to talk about Casey for one little minute, because I think that it’s really hard. I was trying to explain this to my husband. On Thursday night. And this is where his eyes glazed over. So I want to ask you, Jeff, if you could just explain the move from row to Casey. I think there’s this misconception that Casey, quote unquote, reaffirmed Roe, but it did. Well, really different.
S4: It did. And maybe maybe this. This is a window into my really rather simple minded approach to this case. And this, in many respects, the Supreme the way the Supreme Court decides cases, the the Roe versus Wade from 1973 basically operated on a trimester basis that it said in the first trimester the it was very much a woman’s choice are actually woman and her doctor. Harry Blackmun’s decision is weirdly phrased as as much about the rights of physicians than it is about women. And I mean that that historically, I think has not stood the test of time very well in in the middle in the middle trimester. There could be some regulation. And in the third trimester, the government had a strong interest in regulating and regulating abortion. In the in the opinion written jointly by Sandra Day O’Connor, David Souter and Anthony Kennedy in 1992. They sort of threw out the trimester frame framework and said that the government could not impose an undue burden on a woman’s right to choose abortion. So the doctors are out and the phrase undue burden came in. And what has essentially been going on at the Supreme Court for the past 20 years is a sorting out of what the words undue burden mean. The Casey itself, the one regulation that Pennsylvania imposed on the right to abortion, which was struck down, was a woman, a married woman had to inform her husband if she was having an abortion. And Sandra Day O’Connor in particular, hurt her. Part of the opinion said that was inappropriate. However, you know, the story of abortion rights in many respects over the past 20 years has been the increasing acceptance of regulations. I think any sane person would say aimed at limiting abortions. So the question in a whole woman’s health and now in June, medical was the two key regulations here, whether a doctor had to have admitting privileges at the heart at a nearby hospital and, you know, certain surgical type requirements on the physical plant of an of an abortion clinic, whether those were an undue burden. But, you know, the disagreement that Melissa talked about and that you talked about between the four justices led by Breyer and Chief Justice Roberts, is sort of how how the words undue burden will be defined going forward.
S1: OK, we’re on the same page now. I just maybe just to the capstone of this is Melissa, if you can explain, because you said Breyer, in his move in whole women’s health, was really to put point to your teeth on the teeth in the undue burden test. And what he essentially said is, and this is tricky, a lot of the dissenters in June have a problem with this. He essentially says when you have those two regulations Jeff just described in Texas, the admitting privileges law and reverse engineering clinics to be ambulatory surgical centers. And what Breyer says is, look, I’ve I’ve case the joint. I have scoured the land. There are no benefits, no medical benefits of either of these for women. And so he creates a balancing test where he says if this law does no good to advance maternal health, then I put a thumb on the scale saying that’s not even an undue burden conversation. There’s no benefit to that law. That’s the thing he put into motion. Right. Which is the thing John Roberts rejects wholeheartedly this week. Is that correct? I think so.
S6: I think you’re you’re exactly right. I think Justice Breyer and her women’s health is trying to sort of get at this understanding that many of these restrictions, which purportedly are intended to benefit women’s health, really don’t have that effect at all, but rather make it more difficult for women to either access abortion or for abortion providers to provide those services in the ambulatory surgical center requirement is. A great one on you, outfitting abortion clinics as ambulatory surgical centers doesn’t necessarily advance women’s health. The clinics are already safe. But what it does do is impose new structural costs on providers that they either have to absorb or pass along to their patients. Making the abortion procedure more expensive. And so I think part of that analysis was trying to sort of sass out when states are gaslighting courts, like, you know, we have all of these benefits for women or just hear about women’s health and whether that’s really not what’s going on at all, but rather the law in question is actually about making it more burdensome to access abortion or to provide abortions. And so that’s the balancing test that he has in place and to be perfectly upfront. There’s no one who loves a balancing task. More on the court than Stephen G. Breyer. So it’s not surprising that he’s the one who comes up with this. But it was, I think, an attempt to sort of get beyond the kind of judgment laid in Casey standard, which is does this pose a substantial obstacle to women seeking an abortion where a lower court like, say, the 5th Circuit could say it’s not a substantial burden to drive a one hundred and fifty miles to a clinic? That’s that’s just a commute instead. Justice Breyer really wants to sort of put some almost like metrics.
S5: You have to sort of think about what is meant by this particular law, the impact that it has on the ground, and whether the impact outweighs the benefits that the legislature says is supposedly or ostensibly their purpose here and maybe a way to think about it.
S1: Melissa. Jeff, correct me if I’m wrong, is if you think about this in Texas was kind of easy because the minute the Texas law passed, you know, we saw folks in the state legislature, you know, spiking the football. So delighted at how many clinics were going to close. It was clear that the purpose of the law was going to be to shutter half the clinics, which is, in fact, what happened. So it starts I think part of the problem is that Brierre starts from the presumption that Melissa starts from, which is these are Trappe laws. They’re just pretextual. They purport to advance maternal health. They’re not doing that. Therefore, heavy thumb on the scale against the state. And Jeff, I think this is where we lose you, although you’ll tell me if I’m wrong, that you feel like Roberts did not weigh into that conversation at all. Right. He was not willing to make a judgment about whether Louisiana was pretextual. His problem with Louisiana was like hutzpah, that the 5th Circuit and Louisiana were overturning whole women’s health. And that’s not appropriate.
S4: Yes, sort of. Although my point was more simple minded than the one you you just put forth here, which is. John Roberts could have voted either way. I mean, you know what, when they took June Medical, you know, when they granted cert on June medical. I mean, why would you take the exact same case for it four years later? Other than to reverse it? I mean, that’s that was my thinking. So I so I, you know, was was surprised by the outcome. But I mean, the point is and again, this is where, you know, I part company with sort of law professors who who think that, you know, the words in the Supreme Court opinions matter. Like a lot. And I focus more just on the result. And John Roberts, for the first time in his 15 years on the Supreme Court, said, state, you can’t do this to stop women from having abortions. And that, to me, was mind blowing. I mean, I you know, I think of John Roberts as a dedicated pro-life justice, and he didn’t vote in the pro-life position. And I certainly understand the point you made and the point Melissa made about how he structures his opinion. And maybe the undue burden standard is is is is lesser. But, you know, if he wanted to approve regulations on abortion, he could have voted to affirm the 5th Circuit. And he didn’t. And that, to me, was bigger than the terms he used in his opinion.
S1: And I think to be perfectly fair to you, Jeff, because you’re right. I think you can’t. And you write this you can’t separate this from his defection on Dacca and his defection on, you know, like. It’s clear that this is not the chief justice that we saw even this time last year.
S4: And all of us who cover the court and follow the court are always asked is like, what do they really think and what do they know? What’s going on and what? And, you know, the honest answer is, who the hell knows? I don’t know. I mean, I have no access to John Roberts innermost life. But here you have three enormously consequential cases, you know? You know, oftentimes we talk about these cases in abstractions. I mean, these three cases have a huge impact on people’s lives. It is now illegal in the entire United States to fire gay people just because they’re gay. It wasn’t true a month ago, you know. Seven hundred thousand dreamers, like if the if that case went the other way would have been subject to deportation today. And they’re not. And now Louisiana will have, what is it, seven abortion clinics instead of one if that case had gone the other way. I mean, that’s just enormous. And John Roberts voted with the liberals on all of them. I don’t I as I say, I can’t explain what’s going on in his head. But that’s not the John Roberts who wrote, you know, Shelby County killing the Voting Rights Act. I mean, something is happening in his jurisprudence. I don’t think he’s becoming Ruth Bader Ginsburg, but he is does not appear to be the same John Roberts as he was. Two, five, 10 years ago, Melissa.
S1: I want to I want you to react mostly because I’m watching your face on the zoom and it’s so it’s so expressive.
S6: My face has no chill. And that’s always been my. So I can’t play poker. So Lee Epstein at Washington University in St. Louis was an Andrew Martin and Kevin Quinn have talked about this idea of judicial drift that over time, justices move further to the left. Maybe that’s something that’s happening here, but I don’t think that that’s it. I think John Roberts plays a long game. He he’s he’s a canny and savvy person. And I think he is playing a long game. And I don’t want to take away anything from those victories in the title seven cases or in Dhaka. But I want to know that those are not wildly overblown progressive victories or some BOSTOCK the title seven case. John Roberts joins what is a very straightforward, textualist opinion that reaches a progressive result. But the logic of it and the methodology that’s deployed is actually quite conservative. We don’t get into the heads of legislators. We simply look at the words on the page and we apply the plain meaning of those words with a very straightforward kind of methodology. Even if it yields a progressive outcome. And in Dhaka, the chief justice is not endorsing Dhaka. He is not saying that this is a good idea. He’s simply saying that the Trump administration, as in so many other cases, failed to dismantle this program in the way that the law requires and go back and dismantle it the right way. I mean, it just so happens that it’s unlikely that it will be dismantled because this is an election year. But leaving that to the side, if the Trump administration prevails in November and is back in power in December, DOCA will be dismantled in the appropriate way following the Administrative Procedures Act. And so here I think you have a similar kind of dynamic. And again, I could come back to the doc opinion because I think they’re sort of they’re both of appeals. Right. Go back and do it better. Like you can’t present us with a law that is virtually identical to a law that we struck down only four years ago and nothing has really changed. And it’s not enough to say that Louisiana is markedly different from Texas. This law, we know, has no medical benefits. Go back and find some better law that’s different. That’s not squarely on point with the precedent we decided four years ago. And then you’ll see the John Roberts you’ve known and loved for generations. And more importantly, John Roberts, who, even as he hands you this, what I think is a partial victory in the text of this opinion actually strips the 2016 decision of all of its substance. I mean, this is just like Casey, which gutted Roe and left a Potemkin village shell of the abortion right in place, but stripped it of its substance. Here, whole women’s health nominally survives, but that benefit and burdens analysis is all gone. And the precedent that John Roberts is really upholding here is the Casey precedent, which honestly was a victory for abortion opponents because it gave the states wide latitude to legislate abortion out of existence.
S4: Well, but, Melissa, the the you know, he had a choice in all three of those cases is that there were, you know, three justices in the in the Title seven case, the employment discrimination case, and four justices in in the the the docket case and four in the abortion case. Who said it’s fine the way it is, you know, and and you don’t have to redo it. You don’t have to redo DOCA and you don’t. And it’s OK to fire people because it’s gay because title seven doesn’t say what you say. It says. So, you know, you give a very persuasive analysis of Roberts opinions, but he had a choice and he went the other. Q When in the liberal direction. And you know, that to me is just amazing.
S1: I mean, can I say one thing? Because I do think that it’s worth passing one part of this, and I think it’s important. This is a place where I do agree with Jeff, which is whatever John Roberts is, he’s not a Trump ist. Right. He’s here. He is, you know, bopping Bill Baj, Justice Department on the nose time, time, time again. And I think that’s interesting to me that whatever he is, he’s not, you know, Sam Alito. He’s not. Clarence Thomas. You know, Alito rushes to the Kermit Gosnell place. You know, here’s here’s a Gorsuch talking about fetal tissue floating around in clinic. None of that. None of that. This is not an emotional. I hate abortion. We’re going to use this fleeting moment we have of Trump ism to roll back everything that’s happened since the Warren Court. Roberts is not that so?
S6: I don’t disagree with you, but I’m going to propose a provocative counterfactual. What if in 2005 when John G. Roberts was nominated to replace Sandra Day O’Connor? What if Chief Justice Rehnquist had not died? And John Roberts was not subsequently then proposed to be his replacement chief justice. And he was instead in the Sam Alito seat as an associate justice? I think you get a very different. John Roberts, one who is more willing to live and die by those conservative legal movement principles in the position of Chief Justice John Roberts is a very different animal. One who I think plays a long game is a more savvy operator, recognizes that this is an election year. The country’s incredibly polarized. We are in the most and say, I mean, everyone shut up on zoom in their homes. The country looks like it’s about to just explode with racial division. Is this the moment to sort of like set off a flare about abortion rights? Probably not. And so I think you get him sort of thinking institutionally about what it means in this moment to uphold this law that looks so much like a law we just struck down. To do so would be to brand the court as obviously and nakedly partisan and politicized, which is something that time and time again we have seen he does not want. He is the most stalwart protector of the court’s institutional integrity.
S4: And I think that comes out in this opinion to which I can only respond. Good, good. I’m glad I’m I.
S6: My uterus breathed a sigh of relief, but I’m still like it’s also convulsing, waiting for four years from now when we maybe we’re out of the woods. Maybe Donald Trump is still president. Maybe there’s another vacancy on the court and you do have a six three majority and suddenly it doesn’t. You don’t have to look like an institutionalist anymore because this doesn’t look so fraught.
S4: I, you know, share share a price precisely that concern. Except that, you know, I had less confidence that Roberts would be, you know, concerned about keeping the court in the center. I mean, one of the things about, you know, the Supreme Court that I always think about in that right. And that, I think is very relevant for Roberts is that, you know, the tiz title under the Constitution is not chief justice of the Supreme Court. It’s chief justice of the United States. And I think he’s very aware of that. He he feels an institutional responsibility for the judicial branch of government. And, you know, when when President Trump said, you know, there are Obama judges and there are Trump judges, you know, Robert Roberts jumped out. I actually agree with Trump on that. I mean, I think they’re there in most of these provocative cases. Of course, they’re Trump judges and they’re go Bama judges and they’re going to see things differently. But Roberts is very concerned about, you know, the institutional respect that the court receives. Frankly, I don’t think, you know, approving these abortion regulations in in Louisiana. Had he done so, would have set off, you know, a lack of institutional respect for the court except among those of us who follow the court. You know, the G you know, the evil genius of these regulations is that they don’t look like an outright outlawing of abortion, even though they often have that that effect. So, I mean, I guess I give Roberts a little more credit. Maybe that’s just cause of my testosterone.
S1: But no, no, no. I think I think here is what I will say. This is my I think my last two sort of, because I do think that the gendering of the commentary has been quite fascinating. And I think I tend to agree with Melissa. I think it’s it’s been, with few exceptions, pretty consistent.
S4: But I wanted but can I can I just stop you there without disagreeing with you? Why? Why do men and I’m not literally not disagreeing because, you know, you have laid out the facts in and in it. Why are men more optimistic about this opinion? And women were pessimistic. And I asked that out of genuine ignorance. I wasn’t even aware of this until we started talking, but.
S1: But I’m curious what what I would say, progressive man. I mean, this is let’s let’s cabinet to that because it’s people who tend to be deeply protective of abortion rights and still, I think, are more sanguine about this than the women who have really responded. I think the way Melissa and I have, which is who, boy, the next ones couldn’t have been a whopper blow up in our face. I think the one thing I would say and I will leave it to Melissa, if she has a unified theory, I will say the fact that zero women wrote we had six opinions in this case, all men. None of the women justices wrote the silence that I saw in the opinion that really was concerning to me was that women all but disappeared. Breyer writes this very coldly dispassionate kind of admen law. You know, well, you know, doctor number four. Surely, you know, there was very, very little of the kind of you know, Jeff, you started by saying this is not Ginsburg. You know, Ginsburg would have written about the lived lives of women, women in Louisiana. We’re gonna have one clinic left, after all. They all shuttered. What is that like? All that’s gone. And so then I think you just get this very strange balancing test from Justice Breyer, who’d like at his most if you serve, is still a Volgin stipulated. Like, he just doesn’t roll that way. You know, Justice Ginsburg does. But I think that the absence of women’s stories, voices, narratives, the suffering that women are going to kind of experience in this opinion was really striking to me as a woman.
S6: I will say that I think it was doubly striking because not only wore the female justices on the court silent, you had the conservative male justices in dissent being so voluble in their outrage. And Clarence Thomas talking about abortionists, you know, as opposed to abortion providers. I’m Neil Gorsuch painting really visceral images of clinics. And again, it would have been nice to have a woman’s voice in all of this. And I’m just reminding you, Jeff, you mentioned the spousal notification provisions that were struck down in Casey. One of the reasons they were struck down was that Sandra Day O’Connor would have none of it. I mean, she talked about those spousal notification provisions as a remnant of an archaic past where women literally were absorbed into the legal identities of their husband. And that surely could not be the case today. And that’s one of the reasons why she found this problematic. That and also the consequences for women who are victims of intimate partner violence. But it was a woman’s perspective that was brought to bear in thinking about that. And I think about, you know, Justice Ginsburg’s opinion in the Fourth Amendment search and seizure case reading from that period when she was the only woman on the court. You know, all of these justices weighing in about whether or not it was OK to strip search a middle school girl. And she was like, you know, none of you have any idea of what it is like to be a 13 year old girl in school and to be strip search. And so I think, again, I think to Dalia’s point, the voices and experiences of women and what the question of reproductive rights and autonomy means to women is just absolutely obscene here in an effort to perhaps find some common ground.
S4: Could we at least devote a small measure of our conversation to the incredibly weaselly dissenting opinion of Brad Cavanaugh, who who, you know, the voice of Susan Collins is always on his shoulder. I see. Was the white woman in this opinion? That’s right. That, you know, her sort of Pavlovian response to Kavanagh’s total bullshit claim that he was like in love with those starry decisis and the rule of precedent. I thought that Kavanaugh wrote this tiny little dissent saying, well, what I really want is more fact finding was a way for him to vote with the conservatives without looking like he was trying to overturn the four year old precedent, even though he was trying to overturn the four year old precedent. And I thought it was just I mean, weaselly is the word that occurred to me because he didn’t he wasn’t even honest about his own position in the case.
S1: And the double selkoe weasel that comes out of Susan Collins, who says, well, nowhere in his opinion did he write Roe v. Wade. Wade is overturned. Therefore, I can’t like it’s like, come on, sister, pull it together. Like, at least be honest about his dishonesty.
S4: But like, even that is, Dalia, you and I, as we said, disagreed, you know, about the case. But I thought it was revealing that we both took shots at Susan.
S1: It was a little too easy. Maybe maybe we could. I think I could say that the other point of maybe commonality in the three of us, and I don’t want to speak for anyone and actually want to thank Jeff for agreeing to come on and let us kind of, you know, be all uterine at him. But I I do think maybe one thing that I would say is what made me nervous about Kavanagh’s descent is what made me nervous about the chief. Which is I don’t like that this decision making power is all being arrogated to these men. And they’re going to tell us, you know, like basically Kavanagh’s saying, hey, let’s kick it back to to Louisiana. We’ll let these doctors try a little harder. Maybe they could be in good faith. They’ll get there. Many privily. And if all the clinics close, I’m wrong. And there’s something that is so attenuated from even Casey in letting men tell us that they’re going to decide if and when an undue burden has been reached. That I think maybe the spine of why Melissa Marie, Dahlia Lithwick, Linda Greenhouse reacted the way they cannot.
S4: Can I just say that I think I mean, I in many respects have a more extreme view of all this than you do. All these regulations are just total bullshit. You have to know they are not based on anything except the desire to make abortions more difficult, to get more expensive and more inconvenient. That’s the only purpose. They have nothing to do with with woman’s health, with fetal health, with anything except the dissent. So. So, you know, and this is, of course, you know, the problem with Casey, which is, you know, it it it shouldn’t have been that anytime you establish a a any sort of balance, it’s it’s it’s negative. But don’t get me wrong, I mean, I see what’s going on here and the fact that all these male legislators and male justices are are are responsible for, you know, trying to pretend that there is some legitimate justification for these regulations. I am aware that it’s all a complete farce.
S6: I’m going to take that as you’re joining Team Uterus.
S4: That’s going to happen to rally with me away from the dream team.
S1: It’s a dream. Oh, and a fake Melissa Murray. She’s one of the hosts of the Strict Scrutiny podcast, which I hope everyone is listening to. She’s also a presser of law at NYU School of Law. Jeff Toobin covers the courts for The New Yorker for CNN. His new book, True Crimes and Misdemeanors. The Investigation of Donald Trump will be published in August and we’ll have him back. I hope to talk about it. Friends, this was illuminating and weirdly awesome. So I want to thank both of you for spending time from my walk in closet to yours for spending time today. Thanks for having us. We now turn to my friend, my colleague, my hero, Mark Joseph Stern. He covers the courts and the law at Slate.
S7: And we’re gonna do these top secret members, only velvet rope, fancy champagne, part of the show that is only available to Slate plus members. And we really thank you for following along with us. So, Mark, first of all, welcome back.
S8: Thank you. Glad to be back. I love that metaphor. What are we going to call our VIP lounge?
S1: Go, go. I don’t know. I don’t know. I have not been in a lot of VIP lounges in my life to be completely. I know people think I have a rocking club life, but much to my dismay. Do you. Do you go to a lot of VIP?
S8: I don’t think I’ve ever been a VIP.
S1: That’s why we’re making the seem super special for our sleep.
S8: Absolutely. But this is our VIP club, you know, just you and me and the Slate plus member. Yes. We should devise a name.
S1: You might get together from my walk in closet to yours. OK. So, Mark, I think at this point it is safe for you. And I do agree that the 2019 term did not end on the last day of June because it didn’t. But have you had any sense of what we know, how we’re going to parcel out the remaining cases in the coming week, weeks, months?
S8: And nobody seems to know, including the Supreme Court’s right. So, oddly enough, even though the court has not gone into July in decades, it is pretending as if there’s nothing weird here, pretending as if, oh, we’re all just kind of careening into a new month where there is not usually SCOTUS and we’re just going to keep sort of dispensing these opinion days somewhat randomly and arbitrarily. So we know that we’re going to have opinions on Monday, and that’s pretty much it. That’s all we know could go through the end of July, could go through the end of December, could go into twenty, twenty five. This may be the term that just never, ever, ever happens.
S7: How many cases remain and how many of those cases are from that frickey may sitting, which means that the justices probably are only starting to write them.
S8: So fewer than a dozen, depending on how you count of the consolidated cases. Right. The big ones that everyone is on the lookout for are Trump’s financial records and tax returns. The faithless electors case, the contraceptive mandate case, the ministerial exception cases. And all of those are from the TELLA term on the justices teleconference for their arguments. So we don’t know when all of those cases will come down, but they are pretty much what’s remaining. And I would be surprised to and frankly, a little bit impressed if the court could turn them around this quickly by early July, especially since Sam Alito feels obligated to write at least a 400 page dissent to every decision he disagrees with, including at least two hundred pages of an appendix that contains his children’s crayon drawings of the Supreme Court on fire and various other apocalyptic images. So who knows? That’s my top line.
S1: You’re in a mood, my friend. So we actually the case that got all of the attention this week probably was June medical. But there were some other big one. So do you want to start with the CFP? Because I think it didn’t get the attention it may have warranted. And I think it all there is some big things.
S8: Yeah, definitely. And you have Justice Elena Kagan writing the dissent in this five to four decision, basically waving around these red flags and saying, you guys, this is the big news. And I think she’s quite right. So in this case, Chief Justice Roberts, joined by his fellow conservatives, found that the CFP, the Consumer Financial Protection Bureau, set up by Elizabeth Warren has an unconstitutional structure because it’s led by a single director. And that director is appointed by the president with the approval of the Senate and then serves a five year term and can’t be fired just willy nilly by the president. There has to be some kind of poor job performance. And Chief Justice Roberts said, no, the executive power is held entirely by the executive. And this is an executive agency. It may claim to be independent, but it’s still executive in nature. And so if the president wants to fire the director of the CFP for any reason or no reason, he gets to. That’s just how the unitary executive works these days. And in doing so, really kind of threatened the entire concept of independent agencies, as Kagan pointed out in her dissent. The whole idea of an independent agency has always been in tension with the unitary executive theory, this idea that basically the president can do whatever he wants to, all executive employees at any time. And so this case could be the beginning of a lengthy process of just unraveling all of these independent agencies independence and leaving us with a system where the president gets to come in and fire every commissioner of the FTC and the FCC and the S.E.C. and the whole alphabet soup of agencies and just stack them with, in this case, you know, Trump lackeys. So it’s a big deal, but it’s kind of wonky because it includes the words unitary executive, which puts most people to sleep. And so it just didn’t get the headlines that you medical did. And I think that’s a shame because it’s a really dangerous decision.
S7: And does it make a difference in terms of the court’s analysis that there’s one or three or five people at the head of this agency?
S8: Right. So Roberts kind of suggested that it did. And Roberts analysis really went hard on, oh, there’s only one person leading this whole agency instead of three people or five people, and one is less than five. And so this agency must be unconstitutional. But as Justice Kagan again pointed out in her terrific dissent, the actual analysis. Right. Like the legal theory here that Roberts is proposing. It doesn’t seem to care whether it’s a one person directorship or five people or a thousand people. The whole idea that Roberts puts forth is that the president can fire the people who work for him and anyone who works at an executive branch agency works for the president. So it doesn’t seem like at the end of the day, this one versus five difference is really going to matter. And my first read of the opinion was, wow, John Roberts just accidentally ruled the S.E.C. unconstitutional. You know, I think that Roberts might pull back from the abyss here. He might try to temper this decision. Cabinet and future rulings, but on its own terms, it’s really not clear to me why the CFTC is so special or so unique.
S7: And let’s turn for a minute to Espinosa vs. Montana Department of Revenue, because I think this is a case you’ve followed so carefully. And you noted at the beginning there’s a whole bunch of religion cases that are going to all drop at the very end of the term. But I think this is a signal moment for a lot of reasons. You wrote about the ruling with some dismay. So maybe set the table, talk about what Espinosa what the question was and why you think it sort of is a harbinger of a deep unraveling of what had been a sort of long standing vision of how we fund religious schools?
S8: Yeah, I have a friend who is a church state litigator who called my piece about Espinosa appropriately alarmist. And I take that as a compliment. This is an alarming decision because what the court and once again, it was the five conservatives, in an opinion by Chief Justice Roberts, what the court said was, if a state begins to fund private education, if a state uses vouchers or tax credits to give public money to private schools, it cannot distinguish between secular and religious private schools. So as soon as a state starts giving vouchers or tax credits to secular private schools, it has to open the public coffers to religious schools as well. And that is a radical radical decision because it was not until 2002 that the Supreme Court even allowed states to provide vouchers to religious schools. It was only 18 years ago that the court even said it was permissible for public money to flow into private religious schools. And now, less than two decades later, the court turns around and says not only is this permitted, but it’s actually mandated by the Constitution as soon as the state gives a penny to private education. And so we’ve gone from saying, well, OK, I guess it’s fine if if a state wants to fund religious schools, just saying yes, states absolutely must fund religious schools once they’ve begun funding private education at all. And that means that this court has really, I think, either repealed the establishment clause and the separation of church and state or very much subordinated the concept of separation of church and state to the idea that somewhat abstract notion that you can’t discriminate against religion. And to the conservatives, discriminating against religion basically means respecting the separation of church and state. I mean, this opinion comes very close to saying that the that the whole idea of separation of church and state is itself unconstitutional, even though until quite recently the court has said that it’s actually a constitutional value.
S1: And I know you’ve said it, but let’s say it again. I mean, these are centuries old state constitutions. I mean, this is not a kind of a fly by night notion. It was baked in to state constitutions that we are not going to force people to fund private religious education with which they don’t agree. So in some ways, it’s really pushing against the new fashionable conscience. You know, dissenters who don’t want to be forced to abide by, say, civil rights laws that they disagree with. But this in some ways is animated by the spirit that people should not be forced to pay for children’s education, that. Inculcates values that are anathema to them.
S8: Yes. And I mean, this goes even further back than the 19th century. This goes back to James Madison, who vigorously opposed a law that would have taxed Virginia residents to pay for Christian education. And Madison said basically, look, if you are forcing people to subsidize religious exercise that they don’t agree with, you’re violating their rights of religious liberty and their rights of conscience. And that idea that we don’t force people to fund religions that go against their own beliefs, that used to be a part of constitutional religious freedom. And Roberts basically said in Espinosa no longer. He basically said we don’t even see how protecting taxpayers from funding religions that they don’t agree with is is religious liberty. The only religious liberty we care about is the liberty of these schools to get money from the state to inculcate children with religious values. And so and you’ve written eloquently about this so often in the past. This is another example of the Roberts court just ignoring or minimizing the claims of people they don’t care about as much. The court just doesn’t care about the Montana taxpayers who don’t want to be funding religious exercise that goes against their facts.
S1: I want to just stop for one second and say you and I have both said that one of the things that John Roberts does so masterfully in campaign finance context, certainly we’ve seen it in the voting rights context with Shelby that he does this small thing that looks like, hey, this isn’t just a one right only thing, and then leans back and says, oh, look, this is clear precedent. And I wondered if you could just talk about Trinity Lutheran for a minute, because Roberts is really reliant on a case that I remember you and I talked about at the end of the term when it came down where he was just like, oh, this is just so like little kids don’t skin their knees on the playground. It was supposed to be cabined to that. And it assuredly no longer is that.
S8: Yeah. Trinity Lutheran was a time bomb. And Justice Sotomayor realized that when it was decided. But Justices Elena Kagan and Stephen Breyer went with Trinity Lutheran. They dissented in Espinosa. I think they may have realized their mistake. But what Roberts did in Trinity was say, well, you know, Missouri has this program where it gives scrap tires to schools, playgrounds, and we really feel like it shouldn’t be allowed to discriminate against secular schools and religious schools because we feel like it’s just a scrap tire program. You know, it’s not going toward teaching faith or inculcating religious values. This is just about kids being protected from Skins vs. And so we’re going to say that Missouri can’t discriminate against these institutions on the basis of their religious status. And I think if you just read Trinity in a vacuum and you see that conclusion, you’re like, OK. Scrap tires, whatever makes sense, you know? The five year olds running around Trinity Lutheran starting themselves should be able to have their needs protected, whatever. But you take that principle and you apply it to actual religious education. And suddenly you’ve got an ACRI just violation of separation of church and state because there was no actual limiting principle to roberts’ declaration in that case. I mean, he claimed it was only about skins knees, but really it was about forcing states to begin funding religious institutions. And once you start that process, it’s not clear where you stop it. And I think that Espinosa is not the end of this. I think that we’re going to continue moving along this this pattern where the chief says, well, any kind of discrimination against religious institutions is unconstitutional. And if you follow that to its logical endpoint, that leads to states being forced to fund churches. And justices like Brett Cavanaugh have already come pretty close to saying that they believe that’s required. And I don’t see any reason why Roberts won’t go along with them. And we will end up in a place where the religious liberty of a few who have powerful lobbies in Washington, who have high powered lawyers and interest groups representing them, can sort of dominate the scene here and convince the court to disregard the religious liberty of the many other Americans who do not want to be subsidizing religions that they don’t agree with.
S1: Let’s talk for a second, Mark, about some of the cases that the court agreed to hear and didn’t agree to hear on Thursday of this week. They are teeing up the docket for the 2020 term. Heaven knows whether that will happen telephonically. But I think it’s worth at least flagging that one of the cases that the court is. Lollygagging around is these unredacted Mueller notes. And I wondered if you could talk just for a minute about this is actually one of those tick tock lawsuits. This is a dispute over Congress attempting to get these secret materials from the Mullock Commission or the Mueller investigation. And the Supreme Court is in no hurry. Nonetheless, soever to decide that.
S8: Right. And it’s very clear that the Supreme Court just cares more about protecting the presidency and its powers than protecting Congress and its own powers. Because I think that any kind of fair minded reading of the law here demonstrates without a shadow of a doubt, that Congress has a right to get its hands on these unredacted grand jury materials from the Muehler reports. And even if it didn’t, it would deserve a quick, speedy day in court to have this matter settled for once and for all. So it can decide how to move forward in overseeing the presidency. And instead, what the Supreme Court has done is slow walked the hell out of this case, allowed it to linger on the docket, and then in July said, oh, OK, I guess we’ll hear this case next term. And it might even be in December or January of next term because the court has already piled up its calendar with these other cases. What’s going to be happening in January? Twenty twenty one. There might be a new president. There will definitely be a new Congress. The whole thing might go back to square one. And I think it’s it’s really clever of the conservatives to do this. I presume it’s the conservatives who are slow walking this because it allows them to do a lot while doing nothing. Right. They don’t have to issue a decision here. They don’t have to explain their views. All they have to do is sit quietly and wait and run down the clock. And in the meantime, Donald Trump is protected and Congress is in the dark still. And I think it’s quite revealing which matters, the Supreme Court believes, to be an emergency that must be addressed immediately and which matters can sort of linger on the docket and wait a few more months or years for the court to decide them.
S7: And we would put in that class of cases. I think you and I have talked about this even on the show. But the Affordable Care Act challenge from red states that are trying to literally kill what’s left of the ACA mid pandemic, throwing people off of insurance and not protecting folks with pre-existing conditions. That could have been heard this May. The Supreme Court decided that there was no rush there. It will be heard in the fall. But it’s another one of those examples of what looks like a sort of neutral administrative act that will have profound consequences, not just on the election, but on real people who stand to lose their health care.
S8: Yes, absolutely. And during all of that time, people signing up for health care under the Affordable Care Act, people signing up for Medicaid in those states that have expanded it. People on the exchanges, people who are protected against discrimination from their preexisting conditions, they will all have this dark cloud hanging over them because they might wake up one day to learn that the Supreme Court has nuked Obamacare. And I think they deserve an answer there sooner rather than later. But it seems that SCOTUS disagrees. It seems that to SCOTUS, this is just another case. No big deal. And it could wait until November, December. And I you know, I just think that’s totally wrong and totally irresponsible of the court when there are so many so many people whose lives whose health care are at stake in this case.
S1: So that leads me to my last question, which is Texas voting? You would think so. So talk a little bit about the case that the court batted away.
S8: This is a easy case, or at least it should be. Texas grants special benefits to voters who are 65 or older. It allows them to send in mail in ballots to use absentee balloting with no excuse. They can just say, hey, I’m sixty five and I want to mail in ballot and they will get one. Meanwhile, everyone under the age of 65 has to have a special excuse or else they have to go to the polls in the middle of a pandemic and face corona virus infection just to exercise their right to vote. And whether or not we think that’s good policy, we as a nation actually settle this matter when we pass the Twenty Sixth Amendment, which says very, very, very clearly that no state can pass any law, that a bridge is the right to vote on the basis of age. This law grants special benefits to people of a certain age and denies them to people of another age. And that is clear cut discrimination. On the basis of age and yes, the Supreme Court has said we’re not going to fast track this one. We’re just going to let the 5th Circuit where voting rights go to die. Hang on to it and slowly mull the merits of the case. And eventually, we all know say that Texas can do whatever it wants and then maybe the Supreme Court will finally get to this challenge.
S7: Almost certainly after November, when it doesn’t even matter anymore and square this with the court leaping in when Wisconsin tried to change its rules in the primary to accommodate covered affected voters.
S8: Yeah. Right. So in Wisconsin, a federal judge really just kind of tweaked the rules and said, look, we we have to let absentee ballots that are postmarked after the election count. We have to count these ballots because many Wisconsin voters didn’t receive them until Election Day or even after Election Day because the state screwed up. That was a really kind of minimal, narrowly tailored remedy for a pretty severe injustice. And yet the United States Supreme Court decided to weep in the night before the election and reverse its and say actually, voters who did not receive your absentee ballots on time, you’re screwed. You can either go to the polls and risk rotavirus infection or you can surrender your right to vote. And it is so revealing that the court thinks it has to jump in and protect Wisconsin from actually having more voters. And it doesn’t feel like it has to jump in and protect Texan voters from being able to cast a ballot on the same footing regardless of their age.
S1: So let’s conclude with this question, which is, I think, underpinning so much of what we’re talking about in terms of of these grants. The court seems to have a really complicated notion of what is exigent.
S7: And I know you and I have both written about this before, but it sure feels like the answer to the question of what urgently needs Supreme Court attention and what can be back, Bernard, until some unknowable future time. The answer to that question is Bill Barr asks for it.
S8: It seems to be and this is something that Justice Sotomayor has pointed out in a truly scathing opinion. A few months ago, where she said, look, it seems like every time the Trump administration comes, knock, knock, knocking on the Supreme Court’s door for something, the court will give it to him as quickly as possible. And everybody else has to play the waiting game. That remains true with the know with a footnote that the Supreme Court is also not interested in expanding voting rights, whether or not Bill Barr is involved. So if you are a state that wants to disenfranchise people or you are the attorney general and you want to protect the president, you get special treatment at the Supreme Court. If you are literally anybody else, you’re just going to have to wait. Go to the back of the line. Sorry.
S7: Yeah. And I think it’s worth just concluding on the note that even before Cauvin, we did this huge election meltdown series with Rick Hasen, we thought so hard and so critically about how the November elections will not be self effectuating and not necessarily fair. And here we have the Supreme Court kind of sending up smoke signals suggesting that we’re on our own. And I think for folks who worry and trust me when I’m not in the VIP lounge on Gonca, this is all I worry about, that there’s going to be a state or three states or five states that have deeply irregular elections in the covered, saturated November melee. It’s a little bit of a worry when you think that at some juncture the Supreme Court may be called upon to weigh in.
S8: Absolutely. And think about which states are likely to fit the bill. States like Wisconsin and Florida and Georgia and Arizona, the battlegrounds over voting rights, which also happen to be the 20, 20 swing states. This is where the action is going to happen. And this is where we’re going to see a flurry of lawsuits probably from now until November, but especially heating up around Election Day, where people are trying to figure out if they can cast a ballot and if they can do so safely. And I think you’re absolutely right. The Supreme Court has sent up a smoke signal that if you’re a state looking to restrict voting rights. Absolutely. Come on over. Come under Uncle John’s arm. He’ll give you some whiskey. He’ll pop a cigar in your mouth, and I’ll give you whatever you need. And if you are a voter and you want to just cast a ballot, you are absolutely screws.
S1: And so here we are in the VIP lounge with Uncle John with a cigar and the whiskey. Margaret. We need it now, step.
S7: Mark Joseph Stern covers the courts and the law and so much else for us at Slate. Mark, thank you so very much. I know this has been a crazy week. It’s only going to get crazier. We appreciate your time.
S8: It’s always a pleasure. Thanks, Diana.
S3: And that is a wrap for this episode of Amicus, the extra extra uterus testosterone. Thank you so much for listening in. Thank you for your letters and your questions. You can always keep in touch at Amicus, at Slate, dot com, or you can find us at Facebook dot com slash amicus podcast. We love your letters. Today’s show was produced by Sara Birmingham. Gabriel Roth is editorial director of Slate podcast. Alicia Montgomery is executive producer of Slate podcasts. And June Thomas is senior managing producer of Slate podcasts.
S9: And we will be back with another episode of Amicus. In two short weeks. Until then, hang on in.