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S2: It’s not that the court said that Philadelphia is giving exceptions to others, but not giving exceptions to the Catholic Church. The court saying the possibility of exceptions is what makes this religious discrimination. And that, to me, is a very troubling holding.
S1: Hi and welcome back to Amicus. This is Slate’s podcast about the courts and the law and the rule of law and the US Supreme Court. I’m Dahlia Lithwick. I covered the courts for Slate. This week was a really, really big one at the US Supreme Court as some of the biggest decisions of the 20 20 term came down with some really surprising and interesting lineups. And we are popping the show into your feeds a day early, only because Thursday was such a huge decision day. The next two weeks are going to see the remaining 15 cases decided and we will be watching for our year end breakfast table. But for this show, we’re going to dig into the decisions that came down this week with Dean Erwin Chemerinsky, a dear friend of this show, an unparalleled explainer of the law, the Constitution and the Supreme Court. Later on in this episode, Slate plus listeners are going to have a chance to listen to my biweekly behind the scenes banter with Slate’s very own Mark Joseph Stern, where we delve into the jurisprudence that we couldn’t quite get to on the main show or perhaps were too polite to get to on the main show. Slate plus members support all of the journalism we do here at the magazine. We are ever so grateful always for that. So let us get this show on the road with me to talk about this week at the High Court, one of my all time favorite Amicus guests, Erwin Chemerinsky Erwin, is dean of Berkeley Law School. Prior to that, he was founding Dean and distinguished professor of law at UC Irvine School of Law. Erwin is the author of 11 books, most recently We the People, a progressive reading of the Constitution for the Twenty First Century. He is the author as well of more than 200 law review articles and prodigious numbers of up Edds. He also frequently argues appellate cases, including at the U.S. Supreme Court in twenty seventeen National JURIST magazine once again named Dean Chemerinsky as the most influential person in legal education in the United States. And if you took the bar or are taking the bar, you probably owe him your life. Erwin Chemerinsky. Welcome back to Amicus.
S2: Thank you for having me and thank you for that incredibly sweet introduction.
S1: I feel like I cut out all the good stuff, but I suppose it at least hints at why you’re the person I most wanted to be talking to this week. Let’s start with the two really momentous decisions that came down Thursday morning. We’ll do them in order of their birth. The Affordable Care Act case seven to two decision. The court batted away a challenge that threatened to end the ACA again. Two, it held on to insurance for the twenty one million people who have health insurance because of the ACA. In the end, it looks like the court doesn’t even get to the merits. This is a claim advanced by Texas and 17 other states. The court just sort of backs it all away and says, in effect, no standing. Can you talk us through? This actually would have been hugely consequential. I think at the beginning of the term, we thought it was the case of the term. Talk us through what the challenge was and what the court did.
S2: Of course. And I think the importance of the case, as you say, is what the court didn’t do. It didn’t strike down the Affordable Care Act. Everyone remembers that in 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act. The key issue in that case was whether the individual mandate is constitutional, the requirement that people purchase insurance or pay a tax penalty in five to four. With Chief Justice Roberts writing for the court, the Supreme Court said the individual mandate was a constitutional excessive. Congress’s power to tax for the general welfare in December. Twenty seventeen is part of the tax reform bill. Congress eliminated the penalty for not purchasing health insurance. The requirement is still there, but there’s no consequences if somebody doesn’t do some taxes. And some other so-called red states brought a challenge and said the individual mandate was upheld is an exercise of Congress’s taxing power. It’s no longer a tax. So it’s unconstitutional, and that then makes the entire Affordable Care Act unconstitutional. The Trump administration came in and also argued the law was unconstitutional. California and some so-called blue states intervened to defend the law. On Thursday, the Supreme Court said that Texas in the individual plaintiffs, lacked standing to be able to sue. Justice Breyer wrote for the court and he said, in terms of the individuals, there’s no adverse consequences to them to not purchasing insurance. The penalty was eliminated, he said. In terms of Texas, any financial costs it’s incurring are incidental and they probably have to incur them anyway. Bottom line, the Affordable Care Act is constitutional. Twenty one million people get to keep their health insurance.
S1: And I want you to talk for a minute about this outstanding issue, because Justice Alito is very, very exercised in his dissent. And one of the things he points up is, well, if Texas doesn’t have standing here, why were we giving Massachusetts standing in an environmental case? And I wonder if there has been some shifting of ground here in standing law that should make states that, as you say, so-called blue states that might have otherwise said, hey, big win, realize that there is going to be some reason to think that states are going to find it harder to bring challenges going forward as a state
S2: in 2007 in Massachusetts versus Environmental Protection Agency, the Supreme Court said that Massachusetts could sue the EPA for its failure to the rules to deal with greenhouse gases that are responsible for climate change. There was a five four decision with Justice Stevens writing the opinion for the court on Thursday. Justice Alito, in his dissent, says, well, if Massachusetts gets standing to challenge that, then why shouldn’t Texas have standing here? I think there’s a couple of things. One is the injury is different. I think that Massachusetts could really show that it and its coastline was adversely affected by climate change in a way that Texas couldn’t show, that it was adversely affected by the existence of the Affordable Care Act. But the other is, as you allude to, the composition of the court has changed since 2007. I don’t think Massachusetts versus EPA would come out the same way today. And I think then that states need to realize that the court is likely to come back and standing for states. What I take from the opinion this morning is the Supreme Court’s likely to say standing is analyzed for state governments the same way it’s analyzed for individuals when they sue. There’s no special ability of states to sue. They still have to show a concrete injury in Texas. Couldn’t demonstrate it here.
S1: Another meta issue beyond the four corners of the opinion is this question of this is a Groundhog Day case. We’ve been litigating this forever and ever. It’s the third time back at the Supreme Court that puts aside all the other challenges. And Justice Alito, in his dissent, references this as, quote, our epic Affordable Care Act trilogy like it’s the Lord of the Rings. Does this suggest to you that there’s going to be another run at this, or is it the fact that even though this is dismissed on very technical standing grounds, this really does mean the end of ACA challenges? And I guess I’m partly asking you a doctrinal question about whether there’s any space left to come back. But I think I might also be asking a question with the political valence Erwin, which is, is this just the end of the hysteria about the ACA?
S2: I think so. I think you do have to put it in the political context that you allude to. We’ve got to remember that every Republican in Congress at the time voted against the Affordable Care Act when there was the initial set of challenges to it. Every lower federal court judge appointed by a Democratic president, with one exception, voted uphold the Affordable Care Act. And every lower federal court judge appointed by a Republican president, with two exceptions, voted to strike it down. But I think now, all these years later, the political perceptions the Affordable Care Act changed. It’s unquestionably success, as you pointed out. Twenty one million people are getting their health insurance through it. It’s not as much a success as President Obama would’ve wanted the Supreme Court back. That 2012 case struck down the. But the states had to expand their Medicaid program in a number of states didn’t then do so. Had they done so, probably the Affordable Care Act would have provided health insurance to 40 or 50 million people, not just 21 million people. But in light of the successes of the Affordable Care Act. I just don’t think there’s the intense political opposition there was that finally, I’m always cautious about saying never, but it’s hard for you to imagine the remaining doctrinal challenge, the Affordable Care Act, that could make their way to the Supreme Court and
S1: before believe the ACA Erwin. I guess I want to ask another slightly politically freighted question, but that is John Roberts has been so deft in these ACA cases in so far as he’s very, very good at taking seriously what is serious and dismissing what is just crackpot. And it seems to me that at least in the last ACA challenge, what I heard from him was and I heard this in the census case, by the way, please don’t lie to me. Please don’t be goofy. Don’t have to ask us to carry water for the fringe ideas that come out of the conservative legal movement. I take the movement itself very seriously. I’m not going to do dumb stuff for dumb reasons. This feels very much of a piece with that Erwin where it looks like it’s a resounding win. But the case was a little bit bonkers to begin with. The serious lawyers left the Justice Department rather than argue this case, serious conservative scholars who hated the ACA said this this case had no merit. So it feels to me as though John Roberts yet again does this very, very savvy thing, which looks like he’s taking a centrist position when in fact, what he’s doing is just saying, don’t bring me you’re completely unsupportable. Crazy theories.
S2: I agree. And yet also to some extent disagree. I agree with you in the sense that John Roberts has wanted to uphold the Affordable Care Act. I agree in terms of the political context that you identify. And for another reason, we’re still in the midst of the worst public health crisis in over a century. It was unthinkable to me that the Supreme Court would want to strike down a law that is health insurance for 21 million people in the midst of a pandemic. And yet I think you may be more charitable to John Roberts with regard to the Affordable Care Act than I would be if you go back to the case from 2012. The primary argument urged by the United States was that the Affordable Care Act is a valid excess of Congress’s power with commerce among the states. Look at the extent to which the health insurance industry is a huge part of our economy. And yet Roberts joined with the conservatives in saying that didn’t fit as an exercise of Congress’s commerce power. Also with the Congress had done, say, if states want to continue to receive Medicaid funding, they’ve got to expand their Medicaid coverage. Congress always is able to put conditions on grants, but Roberts wrote the opinion, saying that part of the ACA was unconstitutional and there’s a huge human impact in many states that wouldn’t expand their Medicaid program. So I’m willing to give John Roberts two cheers for upholding the Affordable Care Act, but not all three.
S1: Fair enough, I think probably in the umbrella of things, John Roberts has pulled off more deftly than any of us expected. We have to talk now about Foltyn because Fulton is and again, I know you’re going to offer to cheers, but this is as savvy a piece of work as I think I’ve ever seen from the chief justice. This is a much anticipated case, Fulton vs. City of Philadelphia. We’ve talked about it a lot on this show. But it seems to me that getting the court to nine zero jump on a case that pits these very, very crucial civil liberties versus religious freedom values. And this just looks like a masterstroke. I wonder if you could first and foremost set the table of what the claim was. And then we can talk about the ruling
S2: Philadelphia contracts with social service agencies to do inspections and placements with regard to foster care. Philadelphia says that in order for a social service agency to contract, it has to agree to not discriminate on the basis of race, sex, religion, sexual orientation. Catholic Social Services brought a challenge to this and said because of its religious beliefs, it wouldn’t attest that it would not discriminate and the doctor could not place children with same sex couples. The lower court, the district court in the United States Court of Appeals, the Third Circuit, ruled in favor of Philadelphia and against Catholic Social Services.
S1: And I think for me, the template for what the ruling is is just a very, very fact, specific answer. It looks like masterpiece cake shop. It looks like we are not going to get to any of the big First Amendment issues. We’re not going to get really into the weeds at all. Beyond saying essentially what the case said in Masterpiece Cake Shop, which is LGBTQ interests matters. So to religious liberty interests, we don’t so much like the way the city handled that. So this is not in any way a sort of epic ruling on religious liberty. It is not an epic ruling on civil rights. It’s an extremely narrow decision that goes to, in some sense, one right only, correct?
S2: I don’t think so. Now, I want to start with, like Masterpiece Cake Shop. Ultimately, those who want to discriminate on the basis of religion prevail. The anti-discrimination provision loses. But in terms of what Roberts says, Chief Justice Roberts focuses on a 1990 Supreme Court precedent, Employment Division vs. Smith, which is that generally religions don’t get exceptions and was so long as the law is neutral, not motivated by a desire to interfere with religion, and so long as the general applicability religion doesn’t get an exception is, you know, that case involved whether Native Americans could an exception to an Oregon law that prohibited consumption of peyote with Chief Justice Roberts says on Thursday is that under the Philadelphia law, there was discretion to give exceptions. And he says because there’s discretion to give exceptions, this doesn’t meet the requirements of the law of general applicability. Therefore, because there’s the possibility of discrimination on the grounds of religion, it has to be necessary to achieve a compelling interest, strict scrutiny, and it fails that. So I think this is a bit less narrow than you describe, because I think what the court is saying is that any law there is the possibility of exceptions is going to have to be amenable to a challenge based on free exercise of religion and is going to meet strict scrutiny. And I don’t think the Supreme Court ever said that before.
S1: Well, in some sense, they said it in the covid cases, right? I mean, this feels as though this is laying out in black and white. What happened on the shadow docket earlier this spring, that that is that if there’s an exception for anything now, there’s an exception for religion.
S2: I think that is exactly the right analogy. And I don’t think that that’s minor or narrow. What it’s saying is that religion has a most favored nation status. So in the covid cases, they said because a bike shop is an open, religion has to be treated the same way. And here are the courts taking that step further and saying if the law even has the possibility of exceptions, granted, it doesn’t meet the standard for a law of general applicability. And what laws don’t have the possibility of exceptions? What I thought was striking here is it’s not that the court said that Philadelphia is giving, except. To others, but not giving exceptions to the Catholic Church, the court saying the very possibility of exceptions is what makes this religious discrimination. And that, to me, is a very troubling holding.
S1: Yeah, I was really struck by the ways in which it’s an attempt to map this on to that most favored nation status analysis from the covid cases. It’s an attempt to say, you know, if there’s an exemption, then there has to be an exemption. There’s no exemption, there’s discretion. That’s a difference. But now it’s a difference that has disappeared.
S2: That’s exactly right. I mean, it’s one thing to say that any exemption that’s given to a law has to be given to religion, even if religion is not really the same as the secular entity that gets the exception. But now the court saying if there’s discretion, that’s enough by itself, regardless of how it’s exercised to trigger strict scrutiny. As I said, what’s the law that doesn’t have some discretion? So when I read the opinion, I read it is much more troubling than you did in terms of expanding the protections of free access religion and ultimately the ability to discriminate on grounds of religion against gays and lesbians and others.
S1: A little bit succumbed to the masterpiece cake shop to step here Erwin, which is, I think, expecting a much more serious outcome and possibly expecting and we should talk about this, that employment division goes away. That didn’t happen. In a strange way. I think what you’re saying, and you’re probably right, is that the the court just did something that, a, it had already done on the shadow docket. It’s now done it very explicitly and it’s done it without announcing that it’s doing it, which is the thing that you are, I think, troubled by. And that I may have highlighted in my first question.
S2: I agree with that characterization. To start with, I think there was real concern that the court was going to overrule Employment Division vs. Smith, which would then say that any time a law burdens religion, the law has to be justified as necessary to achieve a compelling purpose to meet strict scrutiny. And there was a cert denial years ago, a case called Kennedy versus Bremerton School District, where four justices indicated that they were willing to overrule Employment Division vs. Smith. And on Thursday, Justice Alito wrote a concurrence joined by Justice Thomas and Gorsuch. It’s 77 pages long. It read to me like it may have initially been drafted as a majority opinion, and it made clear that it wanted overall employment division versus Smith. Justice Barrett wrote an opinion that was concurring that was joined by Justices Kevin on Breyer. The Breyer didn’t join a key part of it, and it clearly indicated discomfort with employment of Mr. Smith. But a lot of hard questions and overruling it. I wonder if those then five justices down the road overall employment division for Smith think I was wondering on Thursday morning why was it that Justices Sotomayor, Kagan and Breyer went along with the majority opinion and its majority opinion? I find very troubling. And it may be they were much happier for the reasons you describe with seemed a narrow ruling than the alternative overruling employment division vs. Smith in just so that everyone’s clear what this means, if employment division vs. Smith is overruled, then any law that burdens religion is going to have to meet strict scrutiny. So any law that prohibits discrimination can be challenged by those who want to discriminate and a kind of their religious beliefs. Or maybe another way to put this is there’s always a tension between liberty and equality. Any law that prohibits discrimination limits the freedom to discriminate. Our society for decades has made the choice that stopping discrimination is more important than the freedom to discriminate. What’s troubling about the case Thursday in the direction of the court is I think they’re saying discrimination is fine, especially against gays and lesbians in the name of religion.
S1: And it’s so important what you’re saying, Erwin, because I want to agree wholeheartedly. When I read it, I thought to myself, I understand why Justices Kagan and Breyer very persistently sign off on these troubling religious liberty cases, on these troubling First Amendment cases. I think there’s this question of it could have been so much worse. Let’s do this thing of centering how narrow this is. And I agreed with you. I was quite surprised, actually, that Justice Sotomayor seemed to to be willing to jump in that pool, too. And I also agree, by the way, that if I were looking down the barrel of Sam Alito’s 77 page concurrence and thought that was going to be the majority opinion, I might have signed on to Justice Roberts. Far narrower opinion, but I do want to say one of the things that troubled me, even with my slightly less alarmist read of the John Roberts majority opinion, is the degree to which it absolutely and completely decentered the dignitary harms of LGBTQ couples. And I thought at least in Masterpiece Cake Shop, there was real I almost want to say anguish and Justice Kennedy’s part that he understood there were real dignity harms to gay couples seeking to have their marriage celebrated the way they wanted and being refused service that all but disappears other than a faint at that language. It’s gone from this case and it does worry me in terms of the ever disappearing third party harms doctrine, the ever disappearing contraction of who is being hurt and who we see, which is Catholic Social Services and who we don’t see at all, which is these foster parents. And there’s really interesting language where the chief justice says the whole reason success objects to certifying these couples isn’t even because they’re LGBTQ couples. It’s just because they’re single sex and they can’t support that. It rates the entirety of the LGBTQ claims out of the opinion.
S2: You’re right. And of course, you’ve got to remember who wrote Masterpiece Case, the person who wrote the decision on Thursday. Anthony Kennedy was the author of every Supreme Court opinion in history. Expanding rights for gays and lesbians in his opinions did express compassion and the need to stop sexual orientation discrimination. John Roberts has dissented in those cases. John Roberts dissent in Overfill vs. Hodges, the case that protected the right to same sex marriage. John Roberts has always been on the side of free exercise of religion when there’s a tension. But there’s also a real underlying issue. If somebody can discriminate against gays and lesbians in a kind of religion, why can’t they discriminate against blacks and a kind of religion? Why can’t they discriminate against women on account of religion once the court has open this door? They really then said we favor religious liberty over stopping discrimination against gays, lesbians or any other group.
S1: And Erwin, just to button this down, am I right to say I said it and I think you agreed that all of this actually happened on the shadow docket. It happened in the covid cases. We saw it happen in late night orders. This most favored nation status, which I think effectively ends the employment division, whether or not you overrule it, that’s happened. In a sense. This is less than what we saw happening on the shadow docket. And I wonder if maybe I’m wrong about that. But I wonder if you want to talk for a minute about what it means that the court has one track in which it’s having these conversations openly, another track in which it’s handing down orders with perfunctory thinking on these issues.
S2: What you’re referring to is especially two cases, one that was the night before Thanksgiving and one the beginning of April, where the Supreme Court there, both five to four, ruled in favor of injunctions for religious entities or religious observances, saying it violated free exercise of religion, invalidating restrictions that imposed, respectively, by the governor of New York, the governor of California. And when you read the opinions in those cases in the shadow docket, because there was no full briefing in oral argument, they came in a request for an injunction with the court was saying is religion has to be treated not only the same as comparable activities, but the same as virtually all activities in the former case, the justices said, well, since New York allows bike shops to open, it’s got to be able to allow religions open in the same way. In the latter case, it was a restriction on the number of households that could gather together, and it applies equally to religious worship or secular gatherings like watching a football game. But the court said, but there’s stores that can open and since that’s allowed, religion needs to have the same benefit. And so it really was what you and I were both referring to is the most favored nation idea that religion has to be treated as well as the very best in our society, are treated with regard to certain benefits. It elevates religion over other secular activities. I think what the court did on Thursday, the Fulton case goes further than that, because the court wasn’t saying here that Catholic Social Services is being treated differently than other social service agencies. None were allowed to discriminate. Instead, what the court said is. Since there’s discretion under Philadelphia law, the existence of that discretion is enough basis for a challenge. So I think this goes not just one, but several steps further than the shadow of cases.
S1: Before we leave Fulton, I want to ask the question I may have even asked you after Masterpiece Cake Shop, which is what comes next? What do we what is the inexorable next step? You’ve already suggested, and I think you’re right, there may be five votes just biding their time to do away with employment division. Beyond that, if I am Catholic Social Services and I want to kind of persist in my policy of non placement, what do I do now?
S2: I regard this as Catholic Social Services wins. And so I think in that regard, Catholic Social Services has the ability to contract with the city of Philadelphia, notwithstanding its discriminatory policy. But in terms what comes next
S1: and at taxpayer taxpayers fund that right?
S2: Yeah, that’s right. And of course, Chief Justice Roberts brushes aside completely any concern that this is the city contracting. It says it still has to meet the same constitutional standards. What comes next? Well, as you know, there are a whole host of cases following Masterpiece Cake Shop that involve things like florists and videographers and stationery stores that refuse to serve same sex couples, notwithstanding state laws that prohibit such discrimination. Also, as you know, almost exactly a year ago in Bastet versus Clayton County, the Supreme Court said that federal law that prohibits employment education based on sex also outlaws employment discrimination based on sexual orientation and gender identity. But Justice Gorsuch is majority opinion expressly left open the question of whether employers could discriminate on account of the religion against gay, lesbian and transgender individuals. There are a lot of cases coming up in that way. Remember Justice Alito’s dissent so stressed that employers who have religious objections to having gay, lesbian and transgender employees should be able to discriminate. So I think those are the cases that are coming next.
S1: Do you want to talk for one brief second about what it is that held Amy Barrett back from, as you said, she and to some degree, Justice Breyer? But but Justice Breyer doesn’t sign off on all of it. Justice Kavanagh and Justice Barrett are not willing to join the concurrence that Sam Alito writes on behalf of himself, Thomas and Gorsuch. Is it your sense that this is just one of those cases where the younger justices have more time, they’re willing to let this play out? As you said, Justice Barrett expresses some discomfort at what would come in the place of employment division if she gets rid of it. Do you have any sort of theory of the case? Is the and trying to think of who tweeted, maybe we just have three moderate justices now and they’re the chief and Kavanaugh and Barrett. Do you think that’s overstating it?
S2: I think that’s very much overstating it. Remember, what Barrett and Cavanaugh wanted was the result the court came to. And my sense is that they didn’t see a need in this case to take on Employment Division vs. Smith. They got exactly the result they wanted. They got to change the law that they’re likely to perceive is a desirable one. And I think Barrett said when the issue comes before the court, whether rural employment, Roger Smith, we’re going to need to face these questions so lawyers be sure and brief these questions for us. But I don’t think we should feel sanguine that there’s not five votes to overrule Employment Division vs. Smith. You know, one of the things we haven’t talked about, so I’ve never seen such a dramatic ideological shift is occurred with regard to free exercise employment. When Smith was an opinion written by Justice Scalia Scalia, it was applauded by conservatives. And it was liberals like me who wrote law review article saying it was wrong. But now, 30 some years later, it’s conservatives who have attacked Employment Division vs. Smith, especially because they want to allow discrimination on grounds of sexual orientation. And it’s liberals who are saying, you know, employment vs. that is a good thing because we shouldn’t allow people to inflict injury on others on account of the religion. But maybe you can think of it. But it’s hard for me to imagine any other who has been the complete ideological reversal in such a short time. Three decades is exists here.
S1: I want to ask you for a minute about Justice Breyer, because you have become the epicenter of Breyer gate and you and 17 other academics signed a pretty remarkable letter this week calling on Justice Breyer to step down. I think that’s the only time you and I have ever differed on anything was when you had suggested that Justice Ginsburg stepped down a couple of years ago. And I don’t know if we need to rehash deeply. I think almost all of our listeners are on your side on this, why it is that it’s so urgent for Justice Breyer to give Biden a chance to replace him, particularly with the news this week that Mitch McConnell has no intention of ever ceding anyone else on the Supreme Court if a Democrat is the president. But I wonder if you want to talk for a minute about just the optics of this, of what it looks like when there is this pressure campaign and Breyer response to it, which has been, I think, including on my podcast, oh, we’re above politics. This is not political. We all are friends and we all have to get along. There’s a very strange move happening here, which is the more Breyer is pushed, the more he doubles down on his oracular theory of Supreme Court justices.
S2: As you alluded to in March 2014, I wrote an op ed in the L.A. Times urging Justice Ginsburg to step down that summer. I said it looks like the Republicans are going to take the Senate in November 2014. They did. I said no one can know what’s going to happen in 2016. Probably my greatest understatement, I said of Justice Ginsburg once somebody with her value and views to take her place, she should step down with a Democratic president. Democratic Senate many, including you and including Justice Ginsburg, reacted very harshly to that. I did not that in The Washington Post a few weeks ago, saying that Justice Breyer should step down this summer. And my concern about is even waiting a year is that the Senate is 50 50 for Republicans and Democrats. What are the Democrats, for any reason, leaves the Senate and state with a Republican governor? There’s then going to be a Republican majority. And so I said. Breyer, if you want some, with his values and views to take his place, should announce his resignation at the end of the term. I have no reason to believe that that’s going to have any effect. Some have suggested to me that maybe it’ll cause them to dig his heels in more and that’s possible. And yet I feel it’s the right thing. So I wanted to express it. Now, just as Breyer has said on many occasions, you allude to that. That’s all politics. Hold it for a moment. When Merrick Garland was nominated for the Supreme Court in Mitch McConnell, the Republicans blocked it. Wasn’t that politics? When Ruth Bader Ginsburg dies on September 18th and a week later, Donald Trump points Amy Barrett and she’s rammed through on October 26. Wasn’t that politics? I don’t deny presidents always pick people who are ideologically compatible in the Senate is ideological. That’s fine. But to say that what Republicans do is OK, but if Democrats do it, that’s impermissible politics. That’s just wrong.
S1: Erwin, I just want to say in the history of this show that has been the loveliest I told you so that I have ever heard, and I take it in exactly the spirit it is offered, because you I think at least on this issue, you were much more precious than I was. Before I let you go, I do want to ask you about two different pieces of signaling that I clocked after Thursday’s opinion. There was one camp that said John Roberts clearly assigned the Affordable Care Act opinion to Breyer as a way of telling him, your work here is done, you may go. And an equally clear camp that said John Roberts can only assign this to Breyer to show him that he need not leave because there’s so much more work to do. I don’t know if there’s anything to be read in the tea leaves of Breyer getting clearly one of the most important magisterial cases of the term TUREI. But do you read anything into any of that?
S2: I don’t know. Both of those are plausible, but it’s also plausible that this wasn’t in Roberts mind at all when he decided to Breyer in your right, in one sense, that this is one of the most important case of the term. But as you said at the beginning, in another sense, this case doesn’t do very much. It certainly doesn’t change the law in any regard. This is a case that’s most significant because what it doesn’t do, it doesn’t invalidate the Affordable Care Act. So I’m a little hesitant in reading a lot into Roberts, assigning this to Breyer.
S1: I don’t want to take up any more of your time, but I do want to ask you, I think that the general consensus is that this term, barring what happens in the next couple of weeks, really will prove to be the calm before the storm. And that next term, whether it’s guns, abortion, possibly affirmative action, is going to be seismic and beyond this question of six three super majority and what it means if Justice Breyer does or doesn’t leave. I think we are looking at a profound I mean, you talked about the change in religious liberty doctrine, but I think we’re looking across the board at a very, very, very different court than even the one you and I have known over the last few decades. I wonder if you have something you’d like to admonish listeners to pay attention to, to think about something that is maybe happening under the radar, that is beyond just the big ticket. Abortion and guns concern something that they should be watching for in the coming year.
S2: I predict that when this term ends at the end of term, ramp ups are going to stress. See, the Roberts court isn’t so conservative. The three Trump nominees didn’t move the court that far to the right. The cases from Thursday we pointed to the Affordable Care Act was upheld 70 to Fulton was unanimous. And I think that’s exactly the wrong lesson to draw. It’s always dangerous to draw conclusions based on a limited data set, and these cases are a limited data set. Also, it’s interesting that the abortion case and the guns case could have been taken by the Supreme Court for this term. I think the abortion case was relisted about 15 times. I think that Chief Justice Roberts and the justices might have well decided this wasn’t the year for the major ideological rulings they lived through the confirmation fight over Amy buried. It’s not that long ago the confirmation vote of Brett Kavanaugh. But I think that you’ve already got abortion and guns with cases taken for next term where affirmative action might be. I think it’s next year that we’re going to really see the effect of having six conservative justices, including three Trump appointees, on the Supreme Court.
S1: Dean Erwin Chemerinsky is dean of Berkeley Law School. Prior to that, he was founding dean at UC Irvine School of Law. He is the author of 11 books. Most recently, We The People of Progressive Reading of the Constitution for the 21st Century. He’s author as well of more than 200 law review articles, frequent op ed, and he argues appellate cases, including at the Supreme Court Erwin. It is always a delight to talk to you. And as I said earlier, if someone is going to say Dahlia I told you so, please let it be.
S2: And I would never do that. It is always such a tremendous pleasure to be with you. Thank you for having me on.
S1: Cheers. So here we are at everybody’s favorite part of the show, the Slate plus bonus stuff, where we talk about the bonus stuff. And this week there is a lot of bonus sing Marc Stern, who covers the courts and the law, and this week wrote, I think, 19 pieces in one day.
S3: Welcome back. Happy to be bonus. Sing with you Dahlia now and always.
S1: And we talked a little bit in the main show about the Affordable Care Act and how even though that was dressed up as one of the big of the term, in effect, the moral of that story is nothing stupid happened. And beyond that, there isn’t much to say. But can we talk about Fulton a little bit? Because Erwin Chemerinsky and I in the main show talked about Fulton. I said it could have been super, super bad. It seems really narrow. It doesn’t seem as though the goalposts have moved. Clearly, employment division lives to see another day. Erwin was much less sanguine and feels that it really did change the landscape. I wonder where you come down on this.
S3: Are you asking me to provide an optimistic take on the Supreme Court?
S2: Is that it’s
S1: not just that, but I’m asking you to be smarter than the smartest constitutional mind of our lifetimes. Go ahead, Mark. Yeah, to do both of those things. Go ahead.
S3: I’m not really one to go up against Erwin. I will just say, since I have committed this to text, that I respectfully disagree with the extent to which this decision is a disaster. I will say we have really lowered our expectations here. Right. So I don’t think any of us actually thought that the decision would come out the other way. Nobody thought that Philadelphia was going to win and retain its ability to not funnel taxpayer dollars to foster care agencies that discriminate against same sex couples. Like we all agreed that success the agency here was going to win. And it was just a question of how and in my view, success. Catholic Social Services won in the narrowest way possible. Chief Justice Roberts wrote an opinion for six justices for a clear majority of the court that says, in my view, almost nothing that really kind of like rewrites the contract and the Philadelphia nondiscrimination law in order to make it say nothing and to prevent him from having to come to a real conclusion and instead says, oh, like this. The sentence in this contract shows that we’re not in the world of Employment Division vs. Smith. We’re in a totally different land where clearly, you know, this is not generally applicable because exemptions are allowed. And so this contract is not generally applicable and it doesn’t survive strict scrutiny. And that’s that. And again, not great, not the opinion I would write if I were zah, but also not, it seems to me, a decision that will have many ripple effects or downstream consequences for religious liberty or nondiscrimination law.
S1: Mark, can you talk for a minute about the part of Fulton where the chief justice takes on this question of public accommodations? Because I was trying to figure out if the goalposts move there when he tries to determine whether this is, in fact, a public accommodation.
S3: That may be the weirdest part of his opinion. I actually think that Justice Neil Gorsuch, his dissent is just spot on when it tears apart this section of Roberts’ opinion, because Roberts says, well, you know what, we really don’t think that Philadelphia’s nondiscrimination law applies to foster care agency is not because we have some kind of binding final judgment from a state court interpreting this law. But because we’re just kind of spit balling here and we feel like a foster care agency is just really, really different from like a restaurant or a hotel and a foster care agency is like selective. It doesn’t accept everybody. You know, it’s it’s like superduper, not a Ruby Tuesdays. And since that’s our platonic vision of a public accommodation, we’re going to say that this isn’t one and just kind of write off that whole question, which was like at the heart of this dispute.
S1: And Mark, just before we leave Fulton, the other thing that my sense of it was that if you look at Tandan v. NEWSROOM, which is the shadow docket decision in April about lifting covid regulations, it seems to me that that was the California case where the court seems in secret to have, I think, overruled employment division. It feels as though it’s really hard to square the decision of Amy CONI Barrett and Brett Kavanaugh to back away from that now and to say in Fulton, we don’t mean explicitly or implicitly employment division is overruled. We just mean that whatever the heck we did on the shadow docket stays on the shadow of that. Is that am I overreading?
S3: I don’t think so. I think this is the weirdest aspect of the decision in terms of who voted, how. You know, it makes sense to me that the liberal justices sided with Roberts. It was the least bad decision. It was probably damage control. But covid on Barret’s votes are pretty shocking to me because, as you mentioned, they joined the shadow docket decision in Tandyn, which was a five to four ruling that really kind of revolutionized the law of religious liberty and said that any time there is any exemption in any kind of law for any secular purpose, that exemption has to apply to religious conduct and religious exercise, which is often called the most favored nations theory of the free exercise clause. But the court backed away from Tanton and Foltyn. The court does not apply the rule intent, and it does not say that the Philadelphia rules here are not neutral. It does not say that Philadelphia is like overtly discriminating against religion. It does not use the language of these covid shadow docket decisions. Instead, it just says, well, the Philadelphia rule here is not generally applicable, which is a very different thing from neutrality. And I think kind of steps back from the brink of accusing a whole range of laws of being discriminatory toward religion just because they happen to contain an exemption or two for secular reasons. I don’t know what happened there, but I think it’s quite possible that Amy CONI Barrett and Brett Kavanaugh had originally sided with Thomas, Gorsuch and Alito in this case to overturn Employment Division vs. Smith to subject a whole range of non-discrimination laws and other laws to the strictest of scrutiny and kind of just absolutely turbocharge exemptions for religious purposes. And then maybe after Tandan, for some reason, Barrett and Cavanaugh walked back and said, you know, we’re not going to go this route, at least this time. Instead, we’re going to go with the chief justice, who has given us a very narrow way to still deliver a victory to Catholic Social Services, which seem to be the most important thing here. Barrett did write a separate opinion, joined by Cavnar and in part by Breyer actually in Foltyn to say, look, I also don’t love Employment Division vs. Smith, but I don’t really know what we would replace it with if we overturned it. And I don’t want to invite that chaos upon the court. And I actually give her points for candor there because, you know, no one seems to really understand what would follow if Employment Division v. Smith were overturned. But it still leaves the mystery of dead buried in cabinet change their minds and their votes behind the scenes.
S1: Yeah, and I think both Erwin and I agree that that 77 page Alito concurrence reads like it started off as a majority opinion. So I think that there’s some reason to believe that Cavenagh and Barritt blinked and didn’t sign off on that. It does raise this question mark. When are we going to find out what the law of the land is? Because we now have either gut sort of most favored nation status or not. I guess what Barritt, I read her concurrence as an invitation to clarify this. In other words, we’re just going to need maybe on the shadow docket, maybe not a couple more cases to figure out. As you said, what is this mystery replacement of employment division? And once we figure that out, but it does raise the question of how long it’s going to take for us to find out whether the goalposts moved in the dark of night or whether they have yet to move.
S3: Right. It’s interesting to compare the rhetoric in Barret’s opinion and foltyn with the rhetoric in a lot of the covid orders, which are just so sharp and pissy and angry and seem to be accusing lots of lawmakers of hating Christians and hating religion. And then in Foltyn, where are the fireworks? You know, all of that vim and vigor is gone. And instead we’ve just got this sort of Mique opinion by berrett saying maybe another time. But right now I’m. Too exhausted, too much emotional labor here, so I think I think that we will see shortly if the shadow docket continues to hum along, if maybe some other Christian litigants will try to claim that they need an exemption from a nondiscrimination law and they rushed to the Supreme Court and claim it’s an emergency. Maybe the court will turn around and issue another shadow docket decision like Tandan, that like takes a huge bite out of Smith in a way that Fulton didn’t. Maybe the court is willing to be more aggressive about what it does in the dark than what it does in the light.
S1: Before we move away from the Supreme Court, I want to talk about Nestle for a minute. We did not talk about it on the main show. I know it’s a case you’ve thought about a lot. Do you want to tell us what the issue was and what the court did and did not decide on Thursday?
S3: Yeah. So just briefly, this is a case about the Alien Tort Statute, which deserves a better name because it’s an important law that was first passed in 1789 to allow non-citizens to come in to federal courts in the United States and sue for violations of international law. And the Supreme Court has really cut back the ATS over the years. Conservative justices generally don’t like it. And the court has held, for instance, that conduct that occurs overseas can’t be the basis of an eighth lawsuit. And that’s what the court held in Nestle Vido. This was a case involving former child slaves who were trafficked from Mali to the Ivory Coast. They were held and enslaved on plantations that provided cocoa to Nestle and Cargill. And they allege that Nestlé and Cargill aided and abetted their enslavement, that Nestlé and Cargill knew that they were relying on slave labor. And the court tossed out the case and said, well, the truth is that all of the bad stuff happened overseas. And we’ve already said that we’re not allowing these kinds of lawsuits when the conduct occurred overseas. But that was not actually the question in the case. So the question in this case was whether domestic corporations, American companies can be the subject of a lawsuits under the Alien Tort Statute. That’s when they violates the law of nations. And remarkably, five justices said yes to that question. Five Justices Alito, Gorsuch, Sotomayor, Kagan and Breyer said that domestic corporations can be sued for human rights abuses and other violations of the law of nations under the Alien Tort Statute. And that is a kind of a remarkable defeat for the defendants here. I mean, the corporate bar has been fighting tooth and nail to try to just totally immunize American corporations from these kinds of lawsuits. They view them as a huge risk. They view them as, you know, a liability as a past. But here, a majority of the court said, actually, we do believe that American corporations can be sued for these abuses. And that is, again, like kind of the first time we’ve gotten any good news about the ads from the Supreme Court in many, many decades.
S1: We need to talk for one little minute about what a very, very snottily called Breyer gate on the main show, which is this month long crusade to force Stephen Breyer to step down on the theory that he cares what we think. And I guess that in some sense, I can make light of that only because I don’t think he cares what we think at all. But I also want you to talk for a minute. But Mitch McConnell, because I’m not sure that absolutely everybody clocked the seriousness of what Mitch McConnell announced earlier this week.
S3: Yeah. So McConnell said, of course, that if he takes the Senate in twenty twenty two, if Republicans are able to flip the Senate, that they will not allow President Joe Biden to put a justice on the Supreme Court in twenty, twenty four. That is not surprising. What did make headlines is that McConnell clarified well, he’s not so sure that he would allow Biden to confirm a Supreme Court justice in twenty twenty three either. McConnell said, well, we’ll just have to see. And that made waves. And I certainly understand why. But I just have to say that if you are out there listening at home, still think that a Republican controlled Senate will ever, ever again confirm a Democratic presidents Supreme Court nominee, then you and I are living in very different worlds and we need to hash this out, because I think that it is fairly clear that Republicans have no interest in confirming progressive Supreme Court justices. And more than that, I think that they view these justices as a danger to the country. They have convinced themselves that they have to do everything they can to keep Democratic presidents from confirming Supreme Court justices. And I think. If the Senate flipped tomorrow and Stephen Breyer retired the next day, Republicans would not allow Biden to replace them. Not in 2022, not in 2023, not ever.
S1: One note on that that we haven’t touched on in the show. But you and I and certainly earlier in the show, Erwin Chemerinsky and I talked a little bit about the ACA case. Flames out spectacularly. Fulton is not a resounding win for religious liberty under any analysis of that case. If you’re Mitch McConnell looking at the court, if you are Ted Cruz or Mike Lee or one of the many people who complain all the time about how Amy Barrett is just not conservative enough and Brett Kavanaugh has proved a spectacular disappointment, I guess what you’re going to hear is it’s true Mitch McConnell shouldn’t replace the Stephen Breyer because the court needs to be more conservative. And I just want to highlight for listeners, this is the paradox. There’s never a win no matter what happens. John Roberts is essentially at this point, I think, in their view, Bill Brennan. And there’s just no way that even when they win, they take the win. And part of the rhetoric around we can’t possibly let Biden seat someone on the court is it’s true. Trump seated three justices, but the court is still really liberal.
S3: Yeah, the court can never be conservative enough. You know, even if it were nine justices, all confirmed by Republican presidents, all Federalist Society loyalists, there will still be grievances among Republicans that the court is not fully implementing the latest draft of the Republican Party platform. And on this topic, I do think that the liberal justices probably denied Republicans a PR victory by joining the majority. And Foltyn, you know, you can imagine Justice Sonia Sotomayor writing a fiery dissent joined by Kagan and Breyer, you know, railing against the abandonment of LGBTQ rights and accusing the majority of favoring religious liberty over other freedoms. And Republicans really seizing on that and saying, look, it’s only because of our guys that this case turned out the way it did. You know, these liberals want to suppress religious freedom, but instead they’re kind of scrambling for a narrative because, hey, it was a unanimous decision. That means that the liberals were not the enemies of religious liberty, that Republicans often frame them as. And I’ve seen conservatives like Roger Severino try to sort of troll the left about this and say, well, if Sotomayor agrees, how could it be how could it be wrong? But that’s pretty feeble. Like, that’s some that’s not good a grade material. And I think the Republicans were ready for a kind of PR blitz to brag about their justices that they didn’t get to to do because it was a unanimous decision and that took the wind out of their sails.
S1: I guess, Mark, the follow on question I have is all of our listeners notwithstanding, if Justice Stephen Breyer listens to Slate plus extra top secret edition, is he moved by the announcement from Mitch McConnell that under no set of facts will he ever confirm a Joe Biden nominee after twenty twenty three?
S3: No. And I don’t think that anything will change his calculus. Any external events will change his calculus about retirements based on everything he has said so far. He seems to live in a kind of fantasy world where politics are not what they are, where the Republican Party is not utterly obstructionist, and where qualified jurists of all stripes can still make it onto the bench. He has said as much over and over again, and he said it so many times that I’ve begun to actually believe that he genuinely thinks it, which is very depressing to me. But I doubt that he made anything of that McConnell statement if he even heard it. I think he just has this super rosy view of the of the whole process. He trusts the process and he is convinced that any time he steps down under Joe Biden, the president will be able to get a qualified replacement in his seat. No problem.
S1: Mark Joseph Stern covers the courts and the law and so many other things for Slate. Thank you, Mark.
S3: Always a pleasure, Dahlia.
S1: And that is it for this episode of Amicus. Thank you, as ever, for listening in. Thank you so much for your letters and questions. You can always keep in touch at Amicus, at Slate Dotcom. You can always find us at Facebook dot com slash Amicus podcast. Today’s show was produced by Sara Burningham. We had research help from Daniel Maloof. Gabriel Roth is our editorial director. Alicia Montgomery is executive producer. June Thomas is senior managing producer of Slate podcasts. And we will be back with another episode of Amicus in well, whenever the term wraps up in the. The next two weeks.