We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 19, in which Slate’s Dahlia Lithwick chats about the biggest decisions of the Supreme Court’s 2014 term and checks in with SCOTUSblog publisher Tom Goldstein about what’s at stake. Lithwick also chats with Jessica Mason Pieklo, senior legal analyst at RH Reality Check about some of the big abortion cases that might soon be headed to court. To learn more about Amicus, click here.
We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.
Dahlia Lithwick: Welcome to Amicus, Slate’s Supreme Court podcast. I’m Dahlia Lithwick, Slate’s Supreme Court correspondent, and welcome to June—or as we court watchers like to think of it, the “nerd Super Bowl.” In the next four weeks, the biggest decisions of the 2014 term will rain down upon us, and today on the show we’re going to try to take a look at what’s in stake in some of these monster cases.
Later on in the show, we’re going to consider the wave of abortion cases that might be soon heading toward the Supreme Court, but first we want to take stock of the big cases that are already there. Now, you may remember that on the very first episode of this podcast, we were lucky enough to be joined by veteran Supreme Court watcher and practitioner Tom Goldstein, the publisher of SCOTUSblog, and he predicted that the court was going to hear this little sleeper case called King v. Burwell. And they did, so we wanted to have you back, Tom, to do maybe a little “I told you so” dance and to tell us what is going to happen. So, Tom, thank you for coming back to the show.
Tom Goldstein: Are you kidding? Thank you so much for having me. The wonderful thing about predictions is that you can make a ton of them, and then one comes true and you can go, “I told you so!” And we can just forget about all the ones I got wrong.
Lithwick: Well, why don’t you start by saying, “I told you so”? We were talking about King at the very, very beginning of October. Let’s start there. We’re waiting for that to come down. It’s a big, big deal of a case. Can you just briefly summarize what this Obamacare 2.0 is about?
Goldstein: You bet. So, a few years ago, everybody who’s listening to this podcast, at least, will remember the constitutional challenge to Obamacare and whether Congress had the power to pass that law. This is not a case like that one. Instead, it’s a question of whether there’s effectively a glitch in the statute that blows the thing up.
So, the heart and beating soul of the ACA are these subsides, because the subsidies that are given out to lower-income individuals who want to buy health care bring them into the insurance pool, and allow the insurers to know that they have a good number of healthy people that they are providing insurance to who probably won’t need a ton of care.
So, everything really turns on the subsidies, but the statute says that you’re eligible for the subsidies if you purchase insurance on a health exchange—which is how the purchases are made—established by a state. Now, in the wake of Republican opposition and Tea Party opposition to the ACA, a bunch of those exchanges were established by the federal government rather than a state, but there are provisions in the law that certainly indicate that the federal government plays the role of a state when it comes to the exchanges. So, the lower courts split on the question of Does it mean that you literally have to buy health insurance on an exchange established by a state, not one that is run for the state by the federal government?
If that’s true, then in two-thirds-ish of the country’s people aren’t eligible for the subsidies, and therefore they won’t be in the insurance pool, and therefore the whole thing kind of goes to heck.
Lithwick: The thing that was striking to a lot of us who were present at oral argument in that case was that the chief justice, who shocked everybody last time and voted with the liberals to uphold the ACA, was almost completely silent, which is rare for him. He said almost nothing. And so for folks who were hoping for some kind of some signals about what he planned to do, we got nothing. Were there other things that happened at oral argument that give you any basis from which to believe this case is going to go one way or another?
Goldstein: Oh, we love to prognosticate, and so we can just look at people’s facial expressions and we’ll come up with something. But I do think the chief justice, both in that case and in same-sex marriage, had kind of grown weary of people using questions to predict the outcomes, and so I think he shut down probably on purpose.
In terms of whether the government can get a fifth vote—because it almost certainly has four votes from the court’s more liberal members—I think they have to be encouraged by what Justice Kennedy said, because his take on the case at one point was Look, if it’s the case that Congress was saying to the states, if you don’t set up the exchange—personally, if you will—then I’m going to take these subsidies away from all of your lower-income citizens, and they won’t be able to buy insurance, and the health insurance marketplace won’t operate in your state.
If you’re saying that to the challengers, then I really worry about whether the law would have been constitutional to begin with, because that just seems to really be extortion of the state. So, maybe we shouldn’t read it that way. Maybe we shouldn’t mean that the federal government was staying to the states, You have to do this or there’s going to be a world of hurt for your citizens. And Justice Kennedy is the ideological center of the court and he’s certainly a candidate for the government to pick up its fifth vote, and if I were them, I would have been encouraged by that.
Lithwick: We’re remembering that we had Jonathan Adler on the show right before King was argued, and he’s one of the architects of this challenge. And he said, If I’m going to lose, at least let me lose on this federalism argument, this states’ rights argument, because I could live with that.
So, let’s talk while we’re prognosticating about the other big, big case that everybody’s looking at, and that is obviously the marriage case, Obergefell. Again, a really, really enormous amount of weight put on who said what and whose eyebrow went in which direction at oral argument, but do you have a sense after argument of what we’re going to see happen in the coming weeks?
Goldstein: Again, I think the justices—particularly the chief, and to some extent Justice Kennedy—were playing coy at oral argument to avoid just a world of predictions. The “going in” assumption was that the court was going to recognize a right to same-sex marriage, and I don’t think anything in the oral argument changed that “going in” assumption, which was based on what the court had done in terms of not stopping decisions that had recognized this right from the lower courts, and a variety of other tea-leafy kinds of things.
In terms of what happened at the oral argument itself, again, Justice Kennedy here really is the critical vote. He’s kind of a hero to the gay rights movement in the United States and has really authorized some of the seminal opinions recognizing that there’s invidious discrimination against homosexuals, and Justice Kennedy made some comments about the dignitary interest in having equal rights when it comes to getting married.
But the biggest thing for me was what didn’t happen at the oral argument. And the oral argument was split in two. The first hour and a half was Hey, is there a right to same-sex marriage? The second hour was Well, if there’s not a right to same-sex marriage, if you go to a state that has legislated this right and get married and you go back to your home state—so, you go from Connecticut or Maryland and you go back to Texas—does Texas have to recognize your marriage? Which is an interesting question if you are not going to recognize same-sex marriage, but there was almost no interest and no energy in the court in that question at all. Everybody seemed to be like, OK, this is over.
And I think that Justice Kennedy, if he wasn’t going to recognize the right, would have been much, much more interested in this question of whether you can take a marriage from one state to another.
Lithwick: Tom, do you think it has any impact on the justices, the conversation about People are going to lose things? So that in both King—right, we’re looking at possibly millions of people losing the subsidies that make health care affordable, in the marriage case, just the fact that the train has left the station and there are all these marriages. Does that matter to the justices? Do they look around and say, This is done?
Goldstein: It does matter. It’s not going to decide the case, but they are conservative in many different ways and one is, they prefer not to upset the apple cart. And taking away health insurance from millions of people is something that’s going to give them a lot of heartburn. That’s particularly true with respect to both same-sex marriage and with respect to health care, where it is in effect the federal courts that allowed all of these individuals to develop this reliance interest in what the existing law was. They got married, they got health insurance.
The only other thing I’ll say about same-sex marriage is that you can point a little bit in the other direction, and that is there will be more conservative members of the court who will say, Look, the country’s changing. Over time this right is being recognized by the states and by legislatures. People are being convinced that this is the right thing to do, and that’s how our country ought to work. It ought not to be imposed as a constitutional mandate. I don’t think in the end that’s what will persuade Justice Kennedy, though.
Lithwick: There are so many cases I want to ask you about. They are all raining down upon us. But I want to ask you, is there a case, Tom, that nobody’s paying attention to, that if we were smart we would be watching for in the coming weeks?
Goldstein: To mention the cases for the future just very briefly, the court is taking up a super-important question about “one person, one vote,” which is the rule that says that voting districts generally have to be the same size, including, particularly, federal congressional districts, in terms of their population.
And the question is: Well, what kind of population? Is it everybody who lives there, or is it the voters? Are we looking for an equal number of voters, or are we saying that the representatives need to represent the same number of people even if they aren’t eligible to vote? And that’s a case for the next term.
Then the three cases that they could announce that they are going to decide in the next few days are about to what extent you have a right to a gun in your house, whether affirmative action in higher education is constitutional, and how far a state can go in restricting abortion clinics, and where they have to be, and what kind of facilities they have to provide. So, the justices could be wading into three more legs of the stool of hot-button social issues.
Lithwick: Just when you think it can’t get any crazier. Tommy, the last question I have before we let you go is simply this. SCOTUSblog has become, in addition to the must-see site for all things SCOTUS, the repository of all this great statistical information. You guys keep track of every vote and what’s going on. Can you talk just briefly about some of the strength voting alignments and patterns that we’ve seen this term? It seems to me that it’s neither the sort of 9–0, 8–1 terms that we’ve seen before, nor is it the typical liberals-versus-conservatives. It seems like there’s something going on with the statistics. I know it’s early and we’ve got a lot of cases to come, but can you give us a little glimpse into the data that SCOTUSblog is collecting?
Goldstein: Sure, we do have a really interesting term shaping up if the trends continue. Usually around this time of year when we’re getting to the last month, what we’ve got is a huge bunch of 9–0 and 8–1 decisions like you mentioned, because those are the easy ones and we’re waiting for the hard ones, which just take longer. This term we have a higher-than-usual proportion of closely divided cases, but weirdly closely divided.
The court has kind of fallen into the following pattern, and that is that if it’s a huge ideological fight, we’ll fight it out 5–4, but besides that we’re all going to try and get along. And so you have a big gap between the 9–0 and 8–1 decisions and the 5–4 and 6–3 decisions, and those really did have overwhelmingly an ideological valance.
But it seems to me almost like it has to be the case that one of two things is happening. One is, the court is getting more comfortable. We’re now many years into the Roberts court, and they are settling in and coming to understand each other better, respect each other better, and being more nuanced in their thinking. And that leads to not just these ordinary ideological 5–4s, or there’s a conscious effort afoot among the justices to show that they aren’t just ideologues. The ideological lines in the Supreme Court for the first time in a super-long time fall along party appointment. The conservatives are all Republican appointees, and the more liberal justices are all Democratic appointees, and I think the court is concerned about how it’s perceived out there in the country. And so, I bet they love—love, love, love—that you’ve got the Chief Justice and then the liberals, which hasn’t happened really since Chief Justice Roberts’ first term other than the big Obamacare case. And other decisions like that in which it’s much more, you know, throw the justices into a blender and see who comes out.
Lithwick: Tom Goldstein, thank you so much for being on the show. Tom Goldstein is the founder of SCOTUSblog, a well-known appellate advocate at the Supreme Court, and the, really, godfather of thinking about the court in deep ways online in our time. Tommy Goldstein, thank you for joining us on Amicus.
Goldstein: Well, thank you for all those very kind lies!
Lithwick: This week the Supreme Court is trying to decide if they are going to take a major abortion case, and behind that there are teed up several other abortion cases that look very much like they are going to end up at the court. So, we’re turning now to Jessica Mason Pieklo. She’s the senior legal analyst at the website RH Reality Check. She thinks and writes all the time about the relationship between reproductive rights and the courts. Jessica, welcome to Amicus.
Jessica Mason Pieklo: Oh, thank you so much for having me. It is an absolute pleasure to be here.
Lithwick: So, we’ve seen a huge uptick of abortion restrictions since I guess 2010, when Republicans took over state houses and passed just hundreds—literally—of regulations that would limit access to abortions. It seems like they’re now—only now—really making their way very quickly to the courts, and I wonder if you could start by just talking about what abortion cases look like they might get to the court—the U.S. Supreme Court—awfully soon?
Mason Pieklo: Right. So, we have one that the Roberts court is taking a look at right now, and that’s in Mississippi, and it involves admitting-privileges requirements. That’s a requirement that abortion providers in the state must have admitting privileges at local hospitals in order to perform abortions in the state, or face criminal sanctions.
Now, there was a big fight last year in Texas about a bill that they passed, HB2, and that was one of the requirements. The 5th Circuit said that even though this requirement is going to shut down nearly all the clinics in the Rio Grande Valley and that you’re going to have wide splotches of basically reproductive health care deserts, the Roberts court kind of gave that one a pass. Mississippi has an almost identical law, but the difference in Mississippi is that if that law gets enacted, then the state loses its only clinic.
And so where the 6th Circuit Court of Appeals said Texas could enforce its admitting-privilege requirement, the same Court of Appeals—a different panel, but it’s in the same circuit—said Mississippi could not. And so, the state of Mississippi has appealed that decision to the Roberts court and we could hear as early as sometime in June that that’s a case that they could take up. If they do, that question would be, then, Can a state constitutionally regulate out of existence within its borders?—is one way to look at that.
Lithwick: So now, a reasonable person might say, Hey, what’s wrong with having admitting privileges, right? I mean, you just want to make sure that if the worst possible outcomes happen, that a doctor can quickly whisk an abortion patient to a local hospital. It sounds—and certainly it was intended to sound—eminently reasonable. Explain why it doesn’t always work that way.
Mason Pieklo: I think that’s an excellent question, and you hit the argument exactly right on the head. Which is, this is supposed to promote patient safety, but the evidence from the medical profession—who is almost entirely uniformly against these provisions—is that they are unnecessary and that what they do is actually burden patient care, because there’s a whole political process that often has nothing to do with patient outcomes and hospitals determining whether to grant privileges, for example, or not.
Another factor you can consider that is the impact of Catholic consolidation on health care, and in some states, like Michigan, they own a third to almost half of the hospitals and will just not, based on a moral objection, grant privileges to providers in that regards. So, when you peel back the layers on the patient safety onion, it really does start to stink.
Lithwick: So, can you help us understand—and maybe go all the way back to Roe v. Wade, if you would be so good—what is the text for what makes an abortion regulation constitutional, and how has it changed, and how does that shape the way the U.S. Supreme Court is going to look at it?
Mason Pieklo: Oh, wow. OK, yes, I will do my best. That’s a huge question. But when we talk about the right to an abortion and whether or not states can—or to the extent that states can regulate that—the test that the Supreme Court created is this “undue burden” test. And that is, does the proposed regulation create an undue burden on a woman’s right to choose?
And lawyers like to make things very complicated, and so it’s not just Is there an undue burden? Like, you would think just intuitively that closing all of the abortion clinics in the state of Mississippi would create an undue burden, but there’s actually an analytical process that the court develops. One of those factors is Does the law have the purpose or effect of creating some substantial hurdles to a patient’s ability to access and choose abortion?
And as you might imagine, the courts are all over the place in terms of what that means, which is one of the reasons why we will get an abortion case before the Roberts court pretty soon.
Lithwick: I wonder if you would talk a little bit about other kinds of regulations. We’ve talked about admitting privileges, but of course that’s only one of many sorts we’ve got swirling in the ether. We have 12-week bans and 20-week bans. You mentioned mandatory ultrasounds. What is going on out there that is likely to reach the Supreme Court really soon? And I know I’m asking you another monster, unfair question, but just if you could give us a little breakdown of what are the kinds of cases that are bubbling up through the system. That would be super-helpful.
Mason Pieklo: So, yes, the Mississippi admitting-privileges case the court has before it right now and is deciding whether or not it wants to take a look at it. There is another petition pending, although the court hasn’t conferenced on it yet, on North Carolina’s mandatory-ultrasound law. Those were much more popular about 2011 or so, and that one has circulated back up. That’s not scheduled for conference, and so I’m not too concerned about that one yet.
But the cases that I think people really need to pay attention to are the ones that you mentioned. Arkansas has on its books a 12-week ban. North Dakota has a six-week ban. Nationally we’re debating a 20-week ban. These are all pre-viability abortion bans even though the lawmakers may not call them “pre-viability abortion bans.” They may call them “feel pain” bans or “heartbeat” bans, but they all have something in common and that is that they seek to ban abortions prior to fetal viability, which the Supreme Court has said states can’t do.
Two important cases, the case challenging the Arkansas 12-week ban and the case challenging the North Dakota six-week ban, those are currently alive in the 8th Circuit Court of Appeals, which is a pretty conservative federal appeals court. I kind of joke that they were the 5th Circuit before the 5th Circuit was the 5th Circuit on abortion rights, in terms of their wiliness to sort of uphold anything.
The North Dakota case and the Arkansas case were heard together even though they’re different bills and laws, because they impact many of the same issues. Just recently, the 8th Circuit issued an opinion that upheld the block on the Arkansas law but basically said viability is in play—that if the state of Arkansas had given the 8th Circuit and the trial court more evidence, then it could find that the state can decide when viability begins and restrict abortion according to that.
That’s important because in the North Dakota case, attorneys for North Dakota argued that as far as they’re concerned, viability begins at conception, and so states can if they want ban abortion at the point of conception and there’s very little that the courts can do with it. The 8th Circuit has not ruled on that North Dakota case, and that is giving me quite a bit of pause.
Lithwick: Talk a little bit, Jessica, about the fact that the U.S. Supreme Court just hasn’t taken an abortion case in a long time. It’s striking that we’re talking about same-sex marriage, and in the amount of time that the court has heard several marriage equality cases and really, I think, moved the ball dramatically doctrinally, we’ve had radio silence on reproductive rights cases. I suppose that’s bracketing Hobby Lobby, which is a reproductive rights case that the court has taken, but why does the court not want to wade back into this?
Mason Pieklo: You know, I think that that is a great question, and I would ask Justice Anthony Kennedy in particular on that. I mean, I think that one of the things that is really interesting about the Mississippi case and could prove to just be too much for the court to resist is, there’s a defense by Justice Garza in the 5th Circuit that talks about the rights of privacy and the freedom of movement, and the fact that our constitutional rights are not defined alone by the states that we live in. And that is a really dangerous way, in my opinion, of sort of flipping ideas of federalism when it comes to fundamental rights.
But there have been a lot of really big political decisions before the court, and maybe some of the answers—because the chief justice is looking to pick only a few really high-profile, high political cases at time for the court to weigh in on, but I don’t think they’re going to be able to avoid it for much longer.
Lithwick: I think that’s right, and I think it’s certainly the case that some of these restrictions are passed deliberately flouting the “undue burden” test and deliberately flouting doctrine in order to force it back to the court, under the theory that if they would just overturn Roe, we could all sleep better at night. And so, it does seem that there’s an aggressiveness in the lower courts and an aggressiveness in the legislatures that is matched amazingly by “meh” at the U.S. Supreme Court.
Mason Pieklo: It’s really interesting, and that aggressiveness was on full display in the 8th Circuit oral arguments, where you had one of the attorneys for the state of Arkansas make the argument that the facts and circumstances underpinning Roe simply no longer exist because the majority of states now have safe-haven laws that allow women to turn over their infants to the state should they not be able to care for them.
And then you follow that up with the attorney from North Dakota arguing that the purpose of North Dakota’s six-week ban was absolutely to bring a direct challenge to Roe. They submitted affidavits from anti-choice medical experts that says in their opinion, because IVF zygotes can live outside of the womb in a Petri dish for three days, that that supports a legislative finding that conception and viability are the same thing for purposes of restricting abortion.
If the Roberts court continues to stay out of the right, we’ll have a patchwork mess of laws, but then I hope maybe the silver lining to that would be that some of these legislators and litigators get the message that there is a limit even with the conservatives on the court, who have made it very clear that they’re not a fan of abortion rights.
Lithwick: Jessica Mason Pieklo is the senior legal analyst at RH Reality Check and a really indispensable analyst of these reproductive rights cases. Jessica, it’s just a pleasure to have you on Amicus today.
Mason Pieklo: Oh my gosh, thank you so much. I hope I was helpful, and please come join us over at our podcast on RH Reality Check soon.
Lithwick: You got it. And that’s it for today’s episode of Amicus. As always, we love to hear your thoughts. Our email address is email@example.com, and thank you for your letters. We also so appreciate your help in spreading the word about the podcast, and a good way to do that is leave a review on our iTunes page. Just search “Amicus” in the iTunes Store and click the “ratings and review” tab.
And before we leave you today, we have one more exciting announcement about a new project here at Slate that you might be interested in checking out. It’s a nine-part podcast on the history of slavery, and in it Slate writers Jamelle Bouie and Rebecca Onion are joined by leading scholars of slavery. Every episode focuses on the life of a different enslaved person. This is our first Slate Academy, and it’s available exclusively to members of Slate Plus. Visit slate.com/academy to learn more.
A big thank you goes out to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field, our managing producer is Joel Meyer, and Andy Bowers is our executive producer. Amicus is part of the Panoply network. Check out our entire roster of podcasts at itunes.com/panoply. I’m Dahlia Lithwick. We’ll be back with you soon for another exciting edition of Amicus.