John Roberts’ Long Game

Listen to this episode

S1: This weekend, I went back and I listened to the what next archives, specifically a show from October, the opening week of the Supreme Court. A lot was different back then. No one was talking about a corona virus, for one, but also Slate’s Mark Joseph Stern. He was sounding alarmed, like really alarmed.

S2: This is bad, folks. This is going to be a really bad term. This term is going to be a blood bath for progressives. It is going to usher in a conservative revolution in jurisprudence that knocks down decades worth of liberal precedents. It is going to fundamentally alter the scope and nature of our federal laws and state laws. It’s going to be a wipe out and I’m terrified.

S1: Fast forward nine months. The Supreme Court term is all finished up and I don’t know anyone who’s calling what happened? A bloodbath. So I called up Mark’s colleague, Dahlia Lithwick, to figure out if we’d gotten things wrong here.

S3: Look, objectively, I think we can agree, and this was, I think, probably animating some of Mark’s worry. Nobody seemed to be aware when the October 2019 term opened, what a catastrophic list of cases were on the docket.

S1: Dolly and Mark tag team, the Supreme Court coverage here at Slate.

S3: I mean, I’ve been covering the court for 20 years, and I had never seen a term that was teed up to be every single big ticket item. We had guns. We had abortion. We had contraception. We had Title seven. We had Dacca. There was nothing that wasn’t on the docket.

S1: This was after a pretty bland season where the justices turned down a bunch of hot button cases.

S3: It really looked as though the apocalypse was nigh because there were no issues that the court wasn’t going to tackle when the term ended last week.

S1: A lot of these cases seemed to have progressive outcomes. The justices protected gay and trans workers from being fired. They decided not to weigh in on gun rights. They held back restrictions on abortion in Louisiana. But Dullea says if you’re feeling comfortable right now thinking that wasn’t so bad, just wait awhile.

S3: It is really a testament to how masterfully John Roberts particularly is able to keep the court’s docket rolling in a way that always makes big, big seismic change imperceptible.

S4: I’m so glad you said that, because that’s that’s what I thought about and looked back at what Mark said, and I thought about it. I don’t think he was wrong that this was a big term. It just seems to me like this is this conservative revolution is a quiet one. And it’s it’s sneakier than you think it is.

S3: Exactly. It’s subversive and it’s in many ways imperceptible.

S5: But what happens is happening at a very glacial pace. In a world where everything else is just detonating, you know, in real time. And so I think in some ways maybe I know you and I’ve talked about the turtles before that are built all over the Supreme Court building. This is another like the it’s it’s the complete reign of terror of the turtles, like the turtle. Time has yet again kicked our butts because we are not perceiving turtle time in this sped up real time. It’s all happening, but we’re missing it because it’s happening super slow today on the show.

S1: We’re going to give you another way of looking at what just happened at the Supreme Court. A look inside the opinions to see how even progressive rulings were on conservative terms.

S5: I’m Mary Harris. You’re listening to what next? Stick with us.

S4: I was reading your and Mark’s summary of this court term, and both of you seemed both impressed and annoyed by this court.

S3: At the same time, can you explain that a little bit in a world in which so many people in elected office are sort of bad actors acting badly or good actors acting ineptly? You look at Congress, look at the devil. Even Democrats in Congress and how some of. Of the efforts to check Donald Trump have just not been incredibly deft. There’s one actor acting deftly, and that is John Roberts. I mean, he is you know, I’ve said before, I’ll say again, you know, three dimensional chess to the hungry, hungry hippo that’s happening in the other branches. And I think that at one level, there is real integrity here. And I and I see that. I mean, I think that there are cases where he clearly did not want to do what he did. And he did it for, I think, some of the right reasons. And you have to absolutely grant him that and honor it. And then I think that there is another thing that is a little more pernicious and perilous, and that is there is a slow creep, creep, you know, right wing judicial remaking of the world. And it’s happening, as I said, either slowly or by tiny, tiny increments. And so it’s brilliant because he has managed to get the effects he wants in many, many, many, many cases without anybody storming the courts with flaming torches as a craftsman. He is there is no chief justice in my memory who is like him towards the end of the term.

S4: I felt like there was this palpable sense of relief from progressives who were thinking, OK, like we squeaked out some wins here. And, you know, maybe they were a little bit surprising. But I want to dig into them a little bit so we can reveal this sort of glacial change you’re talking about. Let’s let’s start off with June Medical, which is the case from Louisiana, the case where Louisiana basically just decided there they were gonna write a law into place that violated precedent from the Supreme Court, saying you can’t require physicians at abortion clinics to have admitting privileges at hospitals. It’s too much of a restriction. They just said, let’s just see if maybe we’d get this by. And it came to the Supreme Court. And John Roberts wrote the opinion that basically said, you can’t do that. We have a precedent here. But you wrote really interestingly about how there were things inside this decision that actually made it less progressive than you might think on the surface.

S3: This was, for me, the most fascinating as an immediate proposition. The most fascinating thing that happened this spring was that when that decision came down, Mary, there was one quadrant of progressive court watchers who said, thank God, John Roberts, what a guy, you know, believes in precedent. He clearly thought whole women’s health four years earlier was wrong. This is the identical case. He’s flipped and thrown in with the liberals because he is a man of great principle and integrity. And then there was a bunch of people like me who said, oh, my God, the sky is falling. He’s essentially said, but for the fact that this case is quite literally identical to the Texas regulations that were struck down four years earlier, I would have voted to uphold those regulations. But, you know, kind of don’t pee on my leg and tell me it’s raining. This is the same case, Ray. This is the same case.

S1: And like, I will not be pancit to understand how Roberts decision defending abortion rights is actually a step backwards. You need to know more about how the right to an abortion has evolved over the past four decades. After Roe v. Wade, a case called Planned Parenthood versus Casey said states could regulate abortion, but only if those regulations didn’t put an undue burden on a woman. The question was, what’s an undue burden?

S3: And it actually opened the floodgates for all these, quote unquote, trap laws, right? Targeted restrictions on abortion providers, which said, OK, we’re not going to say abortion is illegal. We’re just going to demand ultrasounds and we’re going to demand mandatory warnings by physicians. We’re going to say 72 hour waiting periods. We’re gonna say is what they did in Texas. You have to retrofit your clinics to look like ambulatory surgical units, put in H vac systems, widen the courters. Even though none of those things are required.

S1: The ambition was to just shut clinics a few years after Casey, the court undercut those trap laws when they heard a case out of Texas called Whole Woman’s Health. Justice Breyer wrote that decision.

S3: Breyer, for the first time looking at those regulations in Texas, said in-home men’s health. No. You have to show us that there is a benefit to women in these regulations. The state cannot just assert that admitting privileges and retrofitting clinics make women’s health better. I’ve scoured the country. They don’t. So he added what I would call teeth to the undue burden test, where he said, you’re going to weigh the burden on women against the purported benefits of these health regulations.

S4: So how did the ruling this year deal with that?

S3: Roberts just took a red pen and said, I’m I’m I’m striking out that part of the test you no longer have to show over the state, no longer has to show that there are health benefits. We’re not going to do a balancing of the undue burden against the purported benefits worth going right back to Casey and saying no undue burden is the only test in that, in effect, I think opens the doors for states to continue doing these trap laws and simply saying no undue burden to women. We’re just going to just regulate clinics out of existence. And so he said, I believe in precedent. But then he gutted the precedent that was whole women’s health and went back to the Casey precedent, which is much weaker. And I think that was the critique that in what looked like, oh, I’m getting rid of a balancing test and I’m going to reinstate this undue burden test. He actually got rid of the thing Justice Breyer had planted for the first time in whole women’s health, which is don’t lie and say you’re helping women’s health. If you’re only really trying to close down clinics, that’s gone.

S4: So what will that functionally look like? Because states can’t do what Louisiana did, which is just ignore precedent. I guess they just have to come up with other ways to limit abortion access that they can argue makes sense.

S3: Yeah, I think what you’re going to see and what we have seen even since whole women’s health is just different kinds of regulations that are going to say this is going to help women make better choices. This is going to give them more information. This is going to give them more time to think, but will have the effect of making it harder and harder in those states that are choosing to pass these regulations to get abortions. And I think that it is fair to say in here, I don’t think there’s dispute, regardless of your gender, that John Roberts was saying, look, don’t pass precisely the same law that Texas passed that we struck down four years ago. Bring me a better one. And maybe I would just tag it to the big theme that Mark Stern and I found at the end of last term that was really carried through this term, Mary, which is just lie better. Don’t don’t lie badly.

S4: So let’s talk about another one of these decisions that’s narrow but maybe was interpreted at least as at first off, as some kind of progressive win. This is the Trump tax case. And I was I was listening to his wife on the radio when the decision came out. And to me, it just sort of summed up how complicated and misunderstood the rulings in this court can be, because initially the host was like, we have a decision. Trump can’t block this. Okay. And the feeling was maybe we’re going to see these things right away. And gradually, over the course of the radio show, it was sort of walking back and walking back and realizing that even though, yes, the ruling was Trump cannot block people from seeing his taxes, especially in the case in New York. No one’s going to see them anytime soon.

S3: Yeah, I think this is another score, one for turtle time. I think this is another on paper absolute triumphal claim that the president is not immune from scrutiny. And in both cases, by seven to two margins, we had an absolute, as a doctrinal matter, repudiation of the completely farcical claim that the president couldn’t be investigated. His family couldn’t be investigated. His pre presidential documents couldn’t be investigated. There’s no claim of executive privilege. These were all documents that pre-exist the presidency. Oh, and by the way, it can’t be a grand jury doing the subpoena thing and it can’t be a congressional committee. All those claims were wiped away. The court said no. And again, these are these are not close cases. So that looks like a huge win. But as you say, I think as people read the opinions, what they realized was, in actual fact, we’re not seeing any of those documents, certainly not before the election. And I came away saying it’s like Tibble, where everyone’s a winner, right? Everyone gets a trophy because Donald Trump looks like he lost. But he gets to obscure his financial records again. And meantime, it looks like a resounding win for separation of powers and a resounding win for checks and balances and oversight. Except that’s not gonna happen anytime soon. And the reason I say everyone’s a winner is because John Roberts comes out having authored both opinions, looking like the chief justice. She’s justice of all. Chief justice time. And yet nothing nothing changes.

S4: Right. Because the real issue is that’s great, that the principle exists. But if you can’t really implement the principle, does it matter if a tree falls in the forest? Does it make a sound? Yep.

S3: Yep. And I think I would go further and say some of the really frustrated takes that I’ve seen over the weekend are The New York Times editorial page. Adam, sir, where a lot of people saying actually this looked like a win for the people and for transparency, but it was really just the court helping yet again cover for Trump. This is the court actually doing exactly what Donald Trump wanted, which is running out the clock. And I call it a Rorschach test only because the two axes don’t even know they’re not even speaking to each other. It’s it’s there’s a grand constitutional principle, a man, brother. And there’s also a tick tock. We really need to see those documents before November.

S5: And they’re not even happening on the same plane or in the same universe.

S4: Can we talk about the role of religion in this Supreme Court? Because I feel like that’s another thread that you highlighted in your writing where you can really see how these justices were seeing the country through a religious lens. So how did you see religion reflected in the rulings this term?

S3: I mean, I think the most simple level, we ended the term with a bunch of very, very clear wins for religious exercise claims that whether it was, you know, a case about sending a tax dollars to religious schools in Montana, or if you look at the pair of cases that came down, again, slightly under the radar on the last week of the term, but a pair of really important cases about allowing religious schools to fire employees as they please under what was once a very, very narrow doctrine called the ministerial exemption that said that religious schools could decide for themselves who was a minister for their purposes. Now, just willy nilly, schools are going to be allowed to get rid of. In one case, we had a plaintiff who was fired, made age discrimination claims. The other said she was fired for having breast cancer. She actually died. Her husband continued the suit. And the Supreme Court in a really sweeping ruling, saying no religious schools get to decide who’s a minister and who isn’t, who is doing religious instruction and who isn’t. For all intents and purposes, if you’re a janitor or the driving instructor or teaching algebra, you are now a minister and it will carve out religious schools from all of the civil rights laws.

S4: I found that ruling fascinating because it came just weeks after the Boston case, which ruled that you cannot fire gay or trans employees because they’re gay or trends. And it seemed like two steps forward, one step back where you have a massive civil rights victory and then you’re saying, okay, but except for these people over here, that that’s exactly right.

S3: And I think that there’s no question that this will create an exception to bust up that you could drive a truck through. And it’s something that we’ve seen, you know, you can say it’s one step forward, two steps back, or you can say that the exceptions start to swallow the rule and that what we are seeing is a hollowing out of civil rights laws generally, that in this case after Bostock. You know, you can say, well, this is a huge triumph and LGBTQ workers now have protection in every state. But anyone who says, no, I’m a religious entity and we’re firing them because they’re a minister will now have cover. And if you think about it, that’s not so different from the cake. Baker, right. Who gains the ability to exempt himself from the civil rights law that protect LGBTQ folks who wanted to get married? And it’s not all that different from the other case that came down last week, which is the Little Sisters of the poor saying, hey, I understand that people under Obamacare have a statutory right. Women have a statutory right to have their contraceptive care covered as part of their basic preventative health care plan. And now we have the court saying, nope, you know. But our view is that those who have religious objections or in this case, even moral objections to providing contraception get to opt out. So I think you’re quite right to say that just as the country is moving toward a bigger, sort of inclusive, more robust sense of who needs to be protected under the law, whether it’s women, LGBTQ workers, workers who are older. We’re seeing an equally, I think, very effective campaign by religious groups to say they are going to be given by the court a sword to fight that off. And it’s just we’ve seen it coming.

S6: But this term, I think, was really emblematic of that tension. Here’s here’s a question for you.

S4: Which is the way the court worked this term. Is this how it should work when you’re compromising? Like no one is 100 percent happy? Is there an argument to be made for that?

S3: I think that’s the question. I think that where we started this conversation was a lot of people said the sky is falling. This is without a doubt, the most conservative Supreme Court we’ve had since the New Deal. And I think that the the there’s a famous study, this Posner Landis study, that says that four of the most conservative top 10 justices in the last hundred years are sitting on the U.S. Supreme Court now. And I would suspect that number is now five. This is an incredibly conservative court. And yet somehow we came to this pretty middle of the road term with huge, huge landmark wins. You know, we haven’t talked about the Dacko rescission, but there was a massive win. You know, the number of people who literally will not be deported. Eight hundred thousand people that will not be deported because of that rescission. It’s breathtaking. And so it’s clear that this is not the conservative term Mark Stern and I feared was coming. But I think you’re right. I think what you are seeing is partly hard trades, a little bit of horse trading, a little bit of I’ll give you this. You give me that a little bit of let’s just not do the big thing right now and wait and do it in five years. Right. The John Roberts long game. But you’re quite right. I think that if you think of the court. Maybe to end where we started in turtle terms. The court’s job is to move slowly and deliberately and to not be buffeted around by the winds of whatever hurly burly political moment they’re in. And what that means is good stuff, right? We had big wins because the court is slow and deliberate and possibly, I think, big losses, especially in the financial documents cases, because the court does things slowly. But the court isn’t just thinking about November. The court is the institution that would very much like to be around and have its lights on and its toilets working in 10 years. And the only way to do that is to have the American public do exactly what the American public is doing this week, Mary, which is saying, well, I have a lot to worry about, but what I don’t have to worry about is the U.S. Supreme Court.

S4: The New York Times has started this feature where they run alongside the decisions and who’s thinking which way at the court graphics that show how the American public is thinking. And whenever they do that, it’s so clear how much more conservative the court is than the people that they’re studied simply representing. And it’s fascinating to me because it made this term make sense to me, like it felt like the term was treading water and moving things slightly around a little bit, but not shaking things up because the court knows they’re in one place and the public may be somewhere else.

S3: I think that’s exactly right. And I think that the person who is more aware of that than anyone else is John Roberts. They’re mindful of the fact that in a lot of ways they are not necessarily in lockstep with the public and mindful of the fact that probably if Obama were still in office or if Hillary Clinton were office, they could have done some of this because they’re in a funny posture now with respect to Trump and Trump ism. But maybe the the the important thing to say, there is 99 percent of cases get decided in the appeals courts and those courts have shamed, shifted radically under Donald Trump. They have slipped radically and they are going to continue to flip. By the way, over the summer, they are going to continue to have hearings for judges. And so I guess I just want to be really mindful of the fact that what we’re seeing play out in under a hundred cases in one term at the court is by no means representative of what we’re seeing on the federal courts across the country. That is something we should be watching. We should be watching it going into the election.

S7: And I’m afraid we’re not so quick. Thank you so much for joining me. Thank you so much for having me. Dahlia Lithwick covers the courts for Slate, and that’s the show. What Next is produced by Mary Wilson, Jason de Leon and Danielle Hewitt. Every day we get a little help from Alicia McMurray and Allison Benedikt.

S1: I’m Mary Harris. I’ll catch you back here tomorrow.