The Supreme Court of the United States has increasingly become what it was designed by the founders not to be: a political institution. In the last 60 years, as the court has been called upon to adjudicate human rights and social justice issues that Congress has been reluctant to — or refused — to address, filling open seats on the Court has been the not-so subterranean theme of every presidential election. With the controversial appointment of Brett Kavanaugh in 2018, Associate Justice Anthony Kennedy’s swing vote on the court shored up a conservative majority, one that may be further endangered should Associate Justice Ruth Bader Ginsburg’s recurrent cancer defeat her determination to stay on the court until Donald Trump leaves office.
Yet in the final days of the last session, Chief Justice John Roberts, appointed by George W. Bush, voted with the liberal minority in two key cases. Philosophically committed to consensus-building, this is something Roberts has done at key moments since 2016, raising questions about whether he had taken Kennedy’s place as that swing vote.
In advance of the new term, which traditionally begins on the first Monday in October, I sat down with journalist Dahlia Lithwick, a prominent legal journalist and senior editor at Slate, to talk through what we should have learned from the 2019 term, and what we can expect this fall as the court does its business during a tense and contentious presidential campaign.
Claire Potter [CP]: I want to start by congratulating you on another season of covering the Court in the Trump Administration.
Dahlia Lithwick [DL]: It doesn’t sound like congratulations. It sounds like deep sympathy. I feel like it should be a black card with gold: “I’m sorry for your loss.”
CP: Dahlia, a big story for the fall will be that Associate Justice Ruth Bader Ginsburg’s cancer returned in May. Every time we get a health alert from Justice Ginsberg, it strikes fear into the hearts of women and Constitution watchers everywhere. But do we rely too much on the Court and too little on achieving the kind of political consensus that could produce successful legislation?
DL: Well, it’s hard to believe that there could be successful legislation: it’s a tough thing to say we should invest our energy in this thing that can’t seemingly be done. But I don’t dispute your premise, which is, I think, progressives have a whole host of very, very magical thoughts about the Court and how it works. Part of that is, I think we just hit the snooze button after the Warren Court and continued to believe that the Court was essentially a progressive institution. We didn’t pay enough attention to what was a really systematic, well-funded, dark money effort to change the entire justice system.
Now suddenly we wake up and we say, “What? Everything depends on Ruth Bader Ginsburg.” Actually, not. She’s one of four progressives now. In 2016, we could have had a conversation about why progressives didn’t care about the Court when we had Ginsburg, Breyer, and Kennedy all either 80 or about to turn 80, and a vacancy (Justice Scalia’s seat, for which Merrick Garland was nominated) that had been held open by Mitch McConnell. And still, we didn’t show up to vote on the Court.
CP: And now, according to the Pew Research Center, it’s the third most important issue to voters.
So if, when Barack Obama nominated Merrick Garland, people had gone into the streets the way they’re in the streets now, do you think it would have made a difference?
DL: I think it would have. The failure to give Garland not even just an up or down vote, but even courtesy meetings, the hope on the part of Chuck Grassley and McConnell that progressives just would not care was vindicated. The best evidence of that is that while in the spring it was still a little bit embarrassing for McConnell to say, “Hey, we’re just not giving you a vote because we don’t have to,” by September 2016, you had Ted Cruz, John McCain, and McConnell, openly campaigning on the proposition that, “We stole that seat and if Hillary Clinton is elected president, we will keep that seat vacant for four or eight more years. That is our pledge to you.”
You have one side that is actually saying, “We are going to do this lawless thing,” and every single Democrat that I know of, running for Senate, said nothing. At the highest levels, there was no messaging about the fact that they’ve stolen a seat, there are three octogenarians and this Court is going to be unrecognizable to you in two years. Just silence.
CP: When the Constitution was ratified, people didn’t live into their 80s and 90s very frequently. In a rational world, would we amend the Constitution to have fixed terms or mandatory retirement age?
DL: As you’re talking, I’m thinking, in what cultures do we have these death watches for octogenarians and pundits like booked and then unbooked on shows depending on her health? It’s like, this is how the Medicis functioned in the sixteenth century. This is how the papacy works: everyone on tenterhooks, waiting to see who is the successor. It’s really weird that in a democracy, we’re watching people who are pushing 90 who won’t retire for strategic reasons, which by the way, is also a fairly new phenomenon.
I think it speaks to the larger polarization of politics. You’re absolutely right. I think the framers would have laughed out loud at the proposition that you could put a 32-year-old in a lifetime appointment, and they’d stay for 50 years. And that is essentially what the Trump administration has done with over 200 appointments.
There has been a big movement to think about structural court reform at all levels, and whether that constitutes FDR-style court-packing. I would say some of the proposed reforms are just flagrantly unconstitutional and would require constitutional amendments, and others aren’t. But I think the one thing John Roberts did so skillfully at the end of this term by joining the liberal majority in key cases was to take that conversation off the table. Progressives are not on the streets calling for Court reform today: it’s not even on their radar.
CP: We’re going to get back to the Roberts Court, but I want to stick with Justice Ginsburg, just for a second. We would all regret her passing for so many reasons. She’s a historic figure. She’s an amazing person. She is a brilliant jurist. But were the worst to happen before Trump leaves office, we can imagine that Mitch McConnell would say, “Merrick Garland who? We’re moving ahead.”
What could the Democrats do in that situation?
DL: Not much at this point. Mitch McConnell has already said that what he called the “Biden Rule” in 2016 is now off the table. He has some theory about it, but what he’s just really saying is the same thing he said in 2016: “Because we can.” He would not only happily seat someone between now and the election, but I think he would happily seat someone like Amy Coney Barrett between the election and January.
CP: Or Bill Barr.
DL: Oh, my God, my blood just ran cold when you said Bill Barr. He’s too old.
But Amy Coney Barrett raises a whole host of questions that Democrats are utterly unprepared to talk about. She has made a career of being very, very open about the fact that her religion is part of her jurisprudence: she is wildly anti-choice, wildly anti- a whole bunch of things. She’s written about it. When Democrats had to question her, for the Federal Appellate Court, they seemed utterly unable to ask the question: “How does your religious worldview affect your jurisprudence?”
It was such a catastrophe. It ended with Senator Dianne Feinstein literally saying at some point, Yoda-like, “The dogma lives loudly within you.” Everyone on both sides went crazy because this was Feinstein’s horrible ham-handed way of saying, “If you are going to rule from your faith, we need to talk about that.” The response from the left and the right was, “This is a religious test. This is anti-religious bias.”
CP: And of course, we’ve lost a lot of our good liberal Catholics in the Senate — people like Joe Biden, and Ted Kennedy. So there are few people with stature, except Nancy Pelosi, who really stands up to say, “Yes, I am a Catholic, and yes I am a liberal and I believe in the Constitution.”
DL: I will say Cory Booker has been pretty effective on this, on the Senate Judiciary Committee. But I agree. It was an issue in the Barr confirmation hearings and in the Jeff Sessions hearings. We had a nominee confirmed this year who isn’t just opposed to abortion and contraception for religious reasons, but also to in vitro fertilization and to surrogacy. That was her career. The silence on this from the left has also been a disaster.
CP: To what extent has the feminist establishment also dropped the ball? Is there introspection we should be engaging in, as feminists?
DL: That’s an amazing question, and I don’t know that I’ve thought about it as hard as I should. I will say that I think contemporary feminism has implicitly ceded religious arguments and shifted the ground to healthcare. As a consequence, feminism has also conceded issues like the heartbeat ban, and fetal pain exemptions; whether, as the Little Sisters of the Poor argued this year, life begins at conception or implantation, and therefore, the IUD and ELLA are abortifacients.
Every one of those unscientific religious claims has not just been ceded by feminists, but by Democrats. When they were first litigated under the Obama Administration in Hobby Lobby (2014), the Justice Department took the position that “Look, who knows when contraception begins. If you say it starts with the morning after pill, we’re going to concede that.”
So the religious claims stand, and you’re going to lose. In some sense, the decision in this year’s Little Sisters case — that if an employer claims that birth control causes an abortion, that employer can refuse to provide it to workers of different faiths — is the inevitable consequence of everything the Obama Administration conceded.
CP: Let’s shift to talk about the Roberts Court more generally. In a story you wrote at the end of June, you debunked the notion that John Roberts had become a liberal or, as you said, even a moderate centrist. But you do seem to see him as a man in motion.
DL: That is the $40,000 question, and I don’t have a very satisfying answer. I will say, I think it’s a huge, huge error to say, as Adam Liptak did in a term wrap-up we did together, that John Roberts is drifting to the left.
John Roberts is not David Souter. He is not even Anthony Kennedy. John Roberts is a lifelong movement conservative who, on almost every issue until this term, was not in play. This term, in a few really crucial cases, and in very savvy ways, he threw in with the left-wing of the Court, in ways that are possibly consequential, but maybe not. Time will tell.
Some cases, particularly the financial cases, looked like huge victories for the left, but in fact, served to run out the clock on Trump’s financial disclosures. John Roberts knows he has 20 more years on the Court. He knows Trumpism may be over in November or January. He has always played a long game.
I am not saying that he is unprincipled or nefarious. I just think he’s really, really playing three-dimensional chess when the rest of us are playing Hungry Hungry Hippo.
CP: You have also argued that Roberts is an expert at giving the left a small victory while laying the groundwork to actually undo that victory. Linda Greenhouse seemed to agree with you: in her July wrap-up, she points out that to understand the compromises reached this term, we have to understand that freedom of religion has been advanced substantially in cases that were a win for the left.
DL: Before he does the big thing, John Roberts always does the little thing that no one notices. We saw that in Shelby County (2018), when in fact, the grounds for gutting the Voting Rights Act had been created earlier in a very small, less noticed, case. That was also true in Citizens United. This year, the Montana school financing case was a predictable follow-on to Trinity Lutheran a few years ago that was ostensibly about playground resurfacing material. Then, boom, we’ve opened the door to saying that any taxpayer money that goes to secular schools must also go to religious schools.
Espinoza then becomes this year’s version. There’s an 8-year-old unanimous case that says: “If schools teach religion, they get to determine who is a minister for religious purposes.” Everyone agreed, right? You’re not going to have the government getting involved in telling schools how to hire and fire their ministers. But the follow-on case that comes out of California this year involves teachers, one of whom, by the way, alleges age discrimination; the other alleges she was fired for having breast cancer. She died, and her husband brought the suit. The schools say, in effect: “We are completely obviated from having to follow these civil rights laws because we choose our ministers.” But this is a broad definition of a minister. Teachers might teach algebra or music and may teach five minutes of some quasi-religious instruction. We have now opened the door to janitors and librarians being defined as ministers, and being excluded from civil rights protections.
I think the move here, one we’ve missed in the fog of war, is what we saw after Obergefell, which first established the constitutional right to marriage equality. Then immediately, we had the florists and the cake bakers and the photographers who said, “But I am a religious dissenter, a religious objector, and I cannot be conscripted into this civil rights regime that violates my rights.” The religious freedom arguments go from a shield against religious discrimination to a sword that slays principles of equal rights for others. Similarly, in Bostock this term, the Court gives us Title VII. For the first time, under Title VII of the Civil Rights Act, you cannot fire your LGBTQ workers. For the first time, transgender workers have civil rights protections. It’s huge. But in the same breath, a few weeks later, the Court says, “However, if you’re a Catholic school, and your janitor is transgender, then you’re absolutely free to make that decision. He’s a minister if you say so.” So if we’re really flinging open the doors to anyone who has a “moral objection” to any piece of the civil rights architecture in the country, then we should be mindful that that’s happening, religious dissenters have become the minnow that can swallow the whale.
CP: I think the ways you’re talking about how all of these religious rights victories really hollow out the idea of civil rights is something to emphasize. I’m also just sort of curious: is it possible that some state attorney general might say, “Okay, if we have to give public money, public tax monies to religious schools, then we need those churches to pay taxes”? Is religion putting itself on thin ice around the protections it has enjoyed?
DL: It’s always the first comment I see in social media: “Then they should pay taxes.” I don’t know that that’s the fix. I think it is certainly worth saying that these cases, particularly Espinoza, do not arise from federal freedom of religion laws. These are state constitutions that, from the founding, had a separate and distinct claim that taxpayer money should not go to parochial education if taxpayers don’t believe in that.
I just want to see what happens when a madrassa makes these claims. If it was a Muslim family that wanted all women to wear hijab, would the Court have been so solicitous?
CP: Good question. Okay, let’s shift gears: this summer, the Supreme Court signed off on the first federal execution in 17 years. What is going to be the ramifications of that?
DL: I’ve been shocked at the alacrity and willingness to say, “Don’t care. Just do it,” and that it all came after the term ended. These are emergency motions that are being filed and they’re being disposed of at 3:00 in the morning. Quite literally the capital defendant in one case was strapped to the gurney for hours as these emergency petitions were going back and forth, and it is obscene that it happened in last-minute motions.
I will say, this is a follow-on to a longstanding, acrimonious fight on the Court. This time last year, we could have talked about just the number of nasty back-and-forths between Justice Breyer and Justice Alito. After Glossip v. Gross, which rejected the claim that the three-drug lethal injection cocktail represented cruel and unusual punishment, Justice Breyer essentially wrote a dissent that said: “I’m out. There’s no way to make the death penalty fair in America.” He cited racial disparities and systemic bias and he cited facts similar to what we saw in this recent execution. How is it possible that the guy who was the mastermind of the scheme got a life sentence, but the guy driving the getaway car gets the death penalty?
So Breyer just put it all out there. He essentially said, “I’m no longer going to tinker with the machinery of death.” Since then, there’s been this backlash, really from Justice Alito and Justice Thomas, but Justice Kavanaugh has gotten in on it, that attacks the death penalty defense as a corrupt practice and suggests that capital defense lawyers have some sort of racket going as opposed to a legitimate defense.
It is amazing to me that a U.S. Supreme Court that has slow-walked, financial documents cases, has utterly failed to act time and time again on elections crises — including refusing to let Wisconsin vote safely last spring and address the disenfranchisement of formerly incarcerated people in Florida — yet a death penalty case gets rushed right through in the wee hours of the morning. That’s a genuine emergency.
CP: It seems like, in some ways, the Kavanaugh hearings were a real turning point for the Court. Before we were all confined to our homes, you wrote a powerful essay about how deeply you had been affected by those hearings, and that this kind of gloves-off battle to install a specific conservative jurist at all costs actually changed your relationship to your work. You weren’t able to physically return to the building. Obviously, nobody’s going to public buildings now. But have you returned? Under what conditions would you?
DL: I thank you for your gentle questioning. The only time I’ve returned to the Court since I wrote that piece was actually in January, just to interview RBG, but I have not covered a public session. I did cover the audio when the Court, in May, heard a little more than a dozen cases telephonically, because I didn’t feel like I was in the room. I don’t think I can say with any confidence that I plan to be back in the chamber any time soon.
I wrote that piece from a place of just finding the Kavanaugh process so troubling. So many women, but also men, had such PTSD, going from that hearing. There was Dr. Blasey Ford’s unbelievably compelling testimony, Kavanaugh’s frothing response, and what I still think were his material misrepresentations. There was the fact that there was no meaningful investigation, even though one was promised. I mean, I just felt bruised. I think at the time I kept saying, “In a week or two. In a week or two, I’ll be able to go in there and just, with my jaunty pen and notepad.'” But I just couldn’t get myself there.
Which is no slur on the amazing, amazing press corps that covers the Court. It was just that, for me, a lot of the processes that allowed him to evade scrutiny seemed to just snap back into place: it was all just going to be okay for him, and there had been no real reckoning. So for months and months and months, I just didn’t go back. At some point, I just told my editor: “I can’t be a part of a system that has done something profoundly wrong. I understand that’s grandiose and it’s complicated, but that’s how I feel.”
The one coda to the story is that after I filed that piece, I got around 25 letters from con law professors saying, “Thank you. That’s why I’m not teaching con law anymore.” That was a punch in the face to me, because I thought, “No, you don’t get to not teach con law. The world needs you to be teaching con law.” It’s not a good thing if the only people who are teaching constitutional law are the people who thought that hearing was awesome.
But I do feel like these questions about how we enable, or cover for, or justify the system even as it breaks down, are the defining questions of the Trump era.
CP: I’ve read that story several times, Dahlia, most recently last night, and there is a certain kind of grief in it: you talk about the relationships, and how people make relationships in the law, and specifically in the Court, and how that broke for you.
DL: First of all, you can’t cover the U.S. Supreme Court without having a fierce case of Patty Hearst syndrome. We are in love with our captors. They lock us in the closet. They say: “You can’t bring in a recording device. You’re never going to get an interview. If you write one bad thing, you’ll sit behind a pillar for the next two weeks.” The whole situation is insane. No other press corps would put up with the utter crap that we all put up with, toiling away, taking dictation, and just passing off “Resplendent in black robes today, Justice Thomas . . .” as journalism. It’s ridiculous. And no person who covers this court doesn’t love the institution of the court. Including myself.
I think that one of the paradoxes is that because this is the only job I’ve ever had, I really felt in some way that I worked for the Court, that I was doing this work of translating and explaining and trying to say to the people all the time, “Justices, they’re just like me and you.”
But all that said, I deeply believe, and I believe so more today than ever, that particularly if you’re a woman, particularly if you’re a minority, particularly if you are poor or disabled or gay or trying to vote in Michigan, or what have you, if you don’t have rule of law, you are fucked. You’re just straight-up fucked, and that every time societies drift away from rule of law systems, those vulnerable constituencies are the first to get whacked. I believe that so profoundly. It’s why I’m in such mourning for the Justice Department, which took years and years and years to rebuild after Watergate, and now has been completely eviscerated in a few short months.
I think I’m probably the most conservative radical person you’ll ever meet. I really believe in the institution, of the court, and the Justice Department and the law. Even with the caveat that I know the Court has overwhelmingly been a conservative, revanchist institution with a few bright spots around Brown and Roe, I still believe that it’s perfectible. I realize that makes me both old and absurd. So for me, I think that grief you sensed, is my recognition that, if you don’t have the rule of law, if you can’t have an almost zealous faith that justice can be done, you’re just in a bunch of smoldering ashes.
CP: We are approaching the first Monday in October. What should we all be thinking about?
DL: One of the cases the Court should have heard this spring and kicked over to October, and now is not even docketed for October, is the Affordable Care Act challenge. (This week the court docketed it to be heard the week after the November election!) This would have been like Armageddon, if they had struck down the entire ACA, in addition to everything else, in mid-pandemic. So, they cleverly slid it over to the fall and took it off the table as an election issue, which is, again, very deft craftsmanship on the part of Justices behind the scenes.
Justice Thomas, Justice Alito, and Justice Kavanaugh are also very frustrated that the Court hasn’t heard a gun case in ten years. They kicked a case away this year that everybody was watching, and although there were many cases on the conference list and we thought they would surely take one for the beginning of the term, they didn’t take one. So I think there’s a struggle going on there because I think there are four votes to vastly expand Second Amendment rights and I think those four Justices are afraid that they don’t have the Chief.
DL: So that’s something to watch. Then there are more religious liberty cases: I think the real action, as I noted will be folks opting out of laws and claiming to be religious objectors. But I think the single most important cases we’re going to see in the coming months are the voting cases. Rick Hasen, who writes about voting, and teaches UC Irvine, has tweeted, and I think he’s right, that whatever else John Roberts is in play for, when it comes to voting, he seems to have no problem with mass disenfranchisement.
I think that anyone who thinks that we are going to have a seamlessly free and fair election in November–well, I want a glass of what they’re having. Because it’s possibly going to be a catastrophe. I think all you need is two or three states to gum up the works. The mess we are seeing right now in vote by mail systems is the tip of the iceberg. And Trump is already signaling that mail in ballots will not be valid in his view. I think some aspects of the election are going to end up at the Court, and every piece of evidence I’ve seen in the last few weeks suggests to me that this Court is not super fussed about signing off on a Bush v. Gore 2.0.
CP: Dahlia, that’s all I’ve got. Thank you very, very much. I appreciate your patience, and I appreciate this really intelligent conversation. We should actually get together more often.
DL: Yes, but let’s do it with a drink of whatever they’re having.
Dahlia Lithwick is a prize-winning journalist who writes about politics and the law. She is a senior editor at Slate, where she covers the Supreme Court and hosts their podcast, Amicus.
Claire Potter is co-executive editor of Public Seminar, Professor of History at The New School for Social Research, and author of Political Junkies: From Talk Radio to Twitter, How Alternative Media Hooked us on Politics and Broke Our Democracy (Basic Books, 2020). You can tweet with her @TenuredRadical.