We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 23, in which Slate’s Dahlia Lithwick chats with fellow legal writer Mark Joseph Stern about how the 2014–15 term will be remembered—do the recent rulings suggest that there is a leftward shift in the Roberts court? Lithwick also talks with Kenji Yoshino of NYU Law School about the possibility of state-level backlashes against the court’s historic same-sex marriage ruling. 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: Hello, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, Slate’s Supreme Court correspondent.
And this week saw the close of the 2014 term, with decisions in two cases at least that we’ve talked about on this show. In one, the court limited the reach of the Clean Air Act, because [EPA] had failed to do a cost analysis in emissions regulation. It also allowed the use of midazolam, one of the drugs used in the lethal injection protocol in Oklahoma.
The term ended last Monday, with a lot of very strange friction and anger between the justices, and they have now scattered to their various summer haunts. This scattering could not have happened too soon for some of them. And we’re going to talk to Mark Stern, who covers the court for Slate, and to Christian Turner, of the University of Georgia, a little bit later in the show about the optics and the weirdness of the last few days.
But first, we’re going to talk to Kenji Yoshino about some of the fallout from Obergefell, last week’s marriage equality decision. Kenji teaches at NYU Law School, and he recently published Speak Now: Marriage Equality on Trial, a remarkable account of the Prop 8 trial in California. That was the other case that wasn’t the DOMA case that came up to the Supreme Court that questioned whether marriage was a constitutional right, and the court was not ready to decide it at that time.
I should just note for listeners that we reached Kenji way off the grid. Like most of the justices, he’s gone to some undisclosed underground location, and so we apologize in advance for the quality of the recording.
Kenji, welcome to Amicus.
Kenji Yoshino: Thanks so much for having me, Dahlia.
Lithwick: So, I think that I want to ask you first and foremost about the role of courts in deciding these marriage questions—because, of course, the principal objection of the dissenters—all four of them in Obergefell—was that we had usurped the political process by letting the courts decide this, and that it’s not appropriate for courts to decide this.
But it seems to me that your book, Speak Now, offers a pretty eloquent argument for why perhaps marriage needed to be resolved in the courts. Can you talk about that a little?
Yoshino: Yes, absolutely. I wrote the book because I was mesmerized by this 12-day trial that occurred with regard to the constitutionality of Prop 8 in California. And that 12-day trial seemed to me to be the most rigorous, comprehensive, and humane discussion that we had ever had about same-sex marriage in this country—and perhaps the world—and really elevated the discourse with regard to all of the questions, the facts like, you know, are gay parents better or worse than straight parents? You know, will allowing gay marriage to be institutionalized—straight couples will be less likely to enter into the institution, and so on and so forth.
And so I think one of the things that was really telling about the Obergefell case was that the Justices really shied away from all of the fact-based claims. There are very few citations dropped in that dissent, for example, and there are very few claims about things like, you know, we’re going to preserve bans on marriage because gay parents are worse than straight parents—and argument when Mary Bonauto was asked, you know, “Are you asking the court to go really far really fast, you know, ahead of the social service?”
What she said is, you know, “We’ve actually had trials on this issue,” when she was asked that question by Justice Kennedy. And she said, you know, “Every court to have looked at this issue, whether that’s Michigan, or the California Prop 8 trial, or the Hawaii trial, or the adoption trials that occurred in Florida and Arkansas, all came out resoundingly in favor of the fact that there was no difference in same-sex and opposite-sex parenting.”
Lithwick: And, Kenji, isn’t also part of your point—if I understand the book correctly—that the nice thing about having a trial is, it smokes out the space between these religious arguments that get couched in pretext? And having to actually say, OK, if we can’t make a religious argument, this is the best we’ve got—and that there’s something really useful about forcing those arguments out of the framing of “because it’s just against our religion”?
Yoshino: Yes, exactly right. People kept comparing this to the Scopes Trial, saying it was a show trial and so on and so forth. But if anything, I think it was more like the Scopes 2 Trial, which was the Kitzmiller v. Dover trial in 2005, where the Dover school board was saying that intelligent design is completely different from creationism. And the judge—you know, a Republican appointee—said, “This is not a sort of theoretical question; it’s an empirical question. So, let’s have a trial.”
And he had a very, very extended trial in which he said, you know, [unintelligible 00:04:51]. Like, there’s nothing that makes intelligent design more scientific than creationism.
Lithwick: So, Kenji, what does it mean to you when you read the dissents? And I guess I’m thinking specifically of Sam Alito’s dissent, but certainly in Justice Antonin Scalia’s dissent, that we’re back at religion again, right—that the principal objection is that religious people are going to see their rights trampled. In other words, talk about old wine in new bottles. It’s problematic in the extreme that insofar as the point of this was to get away from people’s religious and conscience objections, and to really smoke out reasons, the dissenters are back at religion.
Yoshino: Yes, exactly—although the posture now is really different, right, Dahlia? Because initially, they were playing off that and saying, “We want our religious objections or religious views baked into the law itself, namely the bans on same-sex marriage.” Now that the majority has decided what it’s decided, what they’re complaining about is, “We want religious exemptions,” as a defensive matter from laws of general applicability—namely, you know, same-sex marriage.
And so their posture has shifted, but you’re right that the through line is that, you know, the idea is that religious liberties are going to be trampled, because, you know, they haven’t been able to bake them into the law itself—or have robust, you know, Religious Freedom Restoration Act–type protection when this rises to the constitutional level.
Lithwick: And, Kenji, I wonder if you can speculate for me—because I’m trying to wrap my head around whether this is going to be a big pushback or a little pushback—is your sense of what you’ve seen in the last week that there’s going to be massive resistance—that clerks around the country are going to decline to issue licenses, that there’s going to be an enormous amount of religious conscience objections claimed—or is this going to shake out fairly quickly, and folks are going to get in line?
I can’t quite determine whether the response to this is going to be, you know, in the order of magnitude of Brown v. Board of Education—which is to say, years and years of digging in, and massive resistance, and a refusal to comply—or is it going to be more like Loving v. Virginia, the anti-miscegenation case, where, eh, the states were already pretty much in line and everybody pretty much fell in with the court’s ruling?
Is this going to be Brown kind of backlash, or are people going to just squawk a little and then take it in stride?
Yoshino: Yeah. I think it’s going to be much more along the lines of Loving than along the lines of Brown—in part because of the administrability issue. It’s very, very difficult to integrate a school. It is not that difficult to issue a same-sex marriage license. So, I think in terms of top-down control, we have to think about just the nitty-gritty of how hard it is to administer things.
It’s, you know, very, very hard to force somebody to integrate an institution, but it’s very, very easy to force somebody to issue a marriage license.
And I would also point out that—and Justice Kennedy, I think, was quite mindful of this during all argument—he said, you know, “The same amount of time has passed between Lawrence”—which was the 2003 case that struck down sodomy statutes often called around people in the gay rights movement and this case today, Obergefell—“as passed between Brown v. Board and Loving v. Virginia”—approximately. He was off by one year.
But I think that what makes this more like Loving than it makes it like Brown is that we’ve been able to live under this idea that gays and lesbians are equal members of society, and that moral disapproval of homosexuality is not a sufficient justification to enact laws that hurt gays and lesbians—and so I think that after Lawrence was decided, Justice Ginsberg put it really well when she said, “We need to live under Lawrence for a while.”
And I think we’ve been able to live under that ideal of equality for a sufficiently long period of time that now that we’re being asked to live up to that ideal and to grant full social equality … gays and lesbians through marriage, that is much less of a leap for the country to take as the opinion polling and other things show.
So, I’m just not expecting the same kind of backlash for those reasons.
Lithwick: Kenji Yoshino teaches law at NYU Law School. He recently published Speak Now: Marriage Equality on Trial, an account of the Prop 8 trial in California. Thank you so, so much for being with us here on Amicus today.
Yoshino: It’s my great pleasure. Thanks for having me.
Lithwick: And now we’re going to turn to Mark Joseph Stern. He is a legal contributor at Slate. He’s anchored so much of both our LGBT and court coverage, and we are delighted to talk about the drama of the end of the Supreme Court term. Mark Stern, welcome to Amicus.
Stern: Thank you so much for having me on. It’s a dream come true.
Lithwick: Well, I thought we would talk first about just some big trends and themes we see in the end of the term, and then I thought we could turn to how the heck you cover a court that refuses to be covered. So—
Stern: Sounds fun.
Lithwick: So, Mark, let’s start with, what did you see as—I think if we, you know, have all been reading what’s been said at the end of the term, what do you think of the meme that says, “It’s Anthony Kennedy’s world; we all just live in it,” and that this, more than anything else—the takeaway this term is that what Kennedy wants, Kennedy gets?
Stern: I wish I could say something fresher and more exciting than this, but I think that remains very true. There was only one 5–4 decision this year that John Roberts led the liberals on, which was, of course, the judicial campaign finance case. There was one other 5–4 decision when Clarence Thomas joined the liberals, to uphold a ban on Confederate flag license plates, which, as you know, was very disappointing to my mind.
But otherwise, you know, the really big 5–4 cases were all Anthony Kennedy either siding with the conservatives or siding with the liberals. And so it seems to remain very, very true that there’s a very conservative bloc, a moderately liberal bloc, and one man in the middle who very much enjoys playing God and siding with whichever side better speaks to his enthusiasms.
Lithwick: And it’s incredible to me, Mark—I think that’s exactly right—that Kennedy—some things are just visible to him, and some are not. And so for instance, you know, thousands of children being raised by same-sex couples and their need for dignity is so urgent and so imperative to him. Race discrimination, not so much.
Stern: Not so much—and women’s equality, certainly not that visible to him. He doesn’t really mind Hobby Lobby discriminating against female employees, denying them contraception through their own healthcare plans.
He also doesn’t seem to be particularly upset by the fact that many, many workers in this country are dramatically underpaid, and that the only way they have a shot at earning a fair wage is through a union. As you know, the court just took a case that could basically wipe out public-sector unions under a very, very tenuous theory of a free speech claim.
So, I think you’re right—that Kennedy just has these pet issues that completely obsess him. One of them is gay rights, which is, you know, very good for the country—but two of them are really quite bad for the country. He’s blind to race discrimination, and he’s blind to sex discrimination.
Lithwick: Well, I guess we should say he’s not completely blind, because he sprang a surprise fifth vote, right, to uphold a key, key rule that is going to keep the Fair Housing Act still functioning.
I think it’s complicated, because if you read carefully his opinion in the Texas Fair Housing Act case, it seems as though he’s saying, “I kind of get it. We need to continue to be solicitous of the fact that there is race discrimination in this country, but I just don’t like these sort of yucky numeric quantitative solutions.” So, it’s a little bit complicated, because we can’t say he’s entirely blind to race.
And we may find out next term, in the Affirmative Action context, really how he thinks about race discrimination. But at least in the Fair Housing context, he let the Fair Housing Act, as it has existed for decades, live to see another day.
Stern: Yes, and he definitely deserves credit for that, as well as for recognizing that unconscious prejudice is a real thing that exists in America, something Chief Justice John Roberts does not want to accept. And I think that the skeleton key to his views on race and the law is really his parents’ involved concurrence, the blockbuster Affirmative Action case from almost eight years ago now where he ruled that a Seattle scheme that sent more black kids to higher-performing schools was unconstitutional, but then said, “I’m not going to side with the hardliners here. There could be some race-conscious Affirmative Action programs, but I just haven’t seen one that I like yet. There might be a constitutional one, but I just haven’t seen it.”
Lithwick: And so Papa Kennedy decides.
Stern: That’s right.
Lithwick: I wonder if we can turn to the other big, big takeaway from the term—which is, the New York Times last week called this the winningest term for the left since 1969—that, how is it possible that a court that is dominated by some of the most conservative justices we’ve seen in decades—and that is anchored by center-right Anthony Kennedy—nevertheless sees more wins for the left wing of the court than we have seen in decades. And this comes just years after the same New York Times said, “This is the most conservative Court of our lifetimes.”
So, what’s going on? Why is the left on a winning streak this term?
Stern: So, to my mind, there was exactly one liberal ruling this term, which was the marriage equality ruling. That was, by any standard, very liberal. It used liberal perceptions of due process, and liberty, and equal protection to bring marriage equality to the entirety of America. I will not deny that that was very much a liberal ruling.
Every single other ruling that has been praised as liberal—the ruling on Obamacare, the Fair Housing ruling—these were cases that never should have been brought in the first place. These were basically right-wing pipe dreams that conservative lawyers sort of got together, colluded, and decided, maybe we have a shot at finally knocking down these doctrines we don’t like. We don’t like disparate impact theory. We’re going to see if we can get the court to gut the Fair Housing Act. We don’t like Obamacare. We’re going to see if we can get the court to basically destroy it by misinterpreting this one phrase in a sub-sub-subsection of the law.
I think that this was not so much a liberal term as the term when John Roberts and Anthony Kennedy sort of put their feet down collectively and said, “Listen, Federalist Society, we’re going to keep pushing to the right on the issues that we really believe in, but we’re not going to entertain your new notions of just how far the law can go to further, frankly, the Republican cause.”
Lithwick: And it’s interesting. I think it’s worth citing to a really thoughtful piece by Ian Millhiser in ThinkProgress that makes the point that this is exactly what John Roberts was signalling in the King case, in the Obamacare case—that what he was saying was, “We will not be your weapon of choice. Like, you want to play your reindeer games, that’s fine; go play it in the Congress. Do not play it at the U.S. Supreme Court, because we are not going to be the engine of whatever it is that, you know—be it the Tea Party, or the Federalist Society—whatever groups are using the court to try to say, ‘Let’s advance certain values’—at the end of the day, we’re the court.”
Stern: That’s exactly right. And there’s a temptation to praise Roberts for that, but there’s also a lot of self-interest driving his instincts here. As you have frequently mentioned on Amicus, he is fixated on the court’s institutional legacy, on his own legacy, and he understands that if the court released a really preposterous ruling gutting Obamacare and taking away millions of people’s healthcare, the court’s legacy and legitimacy would be on the line. And he’s just not willing to do that to the institution he obviously loves.
Lithwick: Mark, one other theme that I think bears flagging—and, again, I’ve seen a lot of this in folks who are trying to construct an understanding of what this term meant—and this is that the left wing of the court acts in almost perfect unison. In other words, what we saw was a real fracture on the court’s right—failure to vote together all the time, some sharp knives coming out at the end of the term from, you know, the pragmatists going after the idealists, the idealists going after the pragmatists.
There’s a really thoughtful piece by Eric Posner in Slate sort of saying that what we really say was not so much a left-winning term, but what we saw was the right eating itself alive. Is that correct?
Stern: I think that’s largely correct. And in your discussion with Carrie Severino a few weeks ago, you guys really explained and described how Thomas just marches to the beat of his own drum; so does Scalia, especially on textualist matters, originalist matters. And so you have these two hardcore originalists, Scalia and Thomas, and then you have two more pragmatic, flexible conservatives—Alito and Roberts.
Alito is willing to bend whatever doctrine he needs to, to my mind, to reach a result that is in line with the Republican Party’s values. Roberts is less partisan, but he still does not really call himself a textualist or an originalist. And so between those four, you’ve got a deep ideological fracture. Kennedy just does whatever Kennedy wants. He’s Papa Kennedy.
And so compare that to the four liberals who are very, very smart about sticking together, because they’re used to being in the minority. They’re used to always having four votes and coming up one vote short for that majority they crave. And so they’re willing to sacrifice some values. You know, I’m sure that Elena Kagan wanted the marriage equality ruling to be an equal-protection ruling with heightened scrutiny for gay people.
Everybody knows that that’s what the liberals wanted. But they signed onto Kennedy’s kind of hazy fundamental rights ruling, because that’s what got them to the jurisprudential result they needed. I don’t think that Clarence Thomas would ever do that. We know Scalia wouldn’t do that. He said as much in a footnote. So, you’ve just got a lot of pragmatism on the left that the right is lacking.
Lithwick: Right. We’re going to take our wins where we can find them. We’re not writing crazy concurrences; we’re just going to just live to see another day.
Stern: That’s right.
Lithwick: So, Mark, I wondered if we could celebrate the end of the term with just a tiny little bit of ceremonial kvetching—which is to say, I get so much email from people saying, “How do you guys do this at the end of the term?” Because we see these people, and they’re running across the plaza in their little sneakers, and why doesn’t the court release this and that? And why don’t we know what’s coming? So, I wonder if you could just talk a little bit about—given that the court is pretty constrained, right—we’re not going to get audio of these decision days for months; certainly we’re not going to get video of these decision days for centuries, if ever.
So, can you talk a little bit about what it is that we do at Slate that attempts to communicate to our readers what is happening in kind of real-ish time inside a building that styles itself as the Oracle at Delphi? How do we get the word out? Can you talk about it a little?
Stern: So, for the really big blockbusters, listeners, you should know that Dahlia and I have a delicate dance that we have really gotten to perfection this year. Dahlia goes into the courtroom, and sits and waits in near-total silence until the clock strikes 10, while I sit at my desk at the Slate office here in D.C. with a bottle of Xanax close at hand.
And I get on SCOTUSblog, just like the rest of the world, and I generally have stories prewritten for all the different outcomes that I think are likely in the big blockbuster cases. And as soon as that information comes out from SCOTUSblog, I update all the relevant details—every once in a while, I forget to fill in something, as I did in the King v. Burwell initial post. And I hit “publish.” And it goes live usually one or two minutes after the rest of the world knows. So, our readers are pretty well-informed.
And then usually about 20 minutes later, Dahlia comes running down the hallway of the Slate building and says, “I have something. I have something,” and runs into her office, and then tries to bang out a post before the 8,000 radio and TV interviews she has to do come breathing down her neck. That’s the routine for the really big blockbuster days.
For the smaller days, usually one of us just goes into the Supreme Court, and—well, Dahlia, do you want to describe all of the ridiculous hoops we have to jump through just to enter the building?
Lithwick: No, because we love the Supreme Court, Mark, and we love our press pass. And so I will not complain, but I will say that I think you have properly captured the utter weirdness of, you know, A, if you choose to go into the chamber—A, they take away all your stuff, and so you sit there with a pen and a notepad, and you wait for a half an—
Stern: But not a spiral notebook.
Lithwick: Not a spiral notebook.
Stern: No spirals, yeah.
Lithwick: And they check your pens now. I think it’s worth saying—because too many people have snuck in spy pen cameras. Now—
Stern: And they flip through the pages of your notebook to make sure you don’t have anything subversive in there.
Lithwick: Right. And I should add that I spent the day of the Obergefell in the half-hour before it came down—and it’s worth flagging for listeners—we didn’t know it was coming down last week. But I spent the half-hour before the justices took their seats on the bench writing notes to my kids at camp that ended up with many expletives when I realized that Obergefell was coming down—just over and over again, “Oh my God, it’s today. Holy, holy, holy”—and then I popped it in an envelope and sent it—a little tiny piece of history for my sons.
But, yeah, it’s a really strange situation. And I also want to flag, Mark—because I think this is somewhat important—on Monday, when Glossip—which was the lethal injection case—came down, Justice Scalia was doing some—may I use the term “jiggery-pokery”—up on the bench, you know—
Stern: I’d call it “pure applesauce.”
Lithwick: Pure applesauce—really different, right? Not, in fact, reading from his concurrence, but just kind of—I don’t know—performance art, you know. I hear some stuff I hate about what Justice Breyer did in his dissent. And it’s funny—there’s no account of that, other than from a handful of journalists who were in the room.
Stern: That’s absolutely right, and a very disappointing fact for people like me who were sitting at their desks a mile away, waiting to update our own dear readers on the news. But it really just does demonstrate why the court loves not having cameras—because Scalia can get away with something like that, and you have maybe three journalists who take the time to write about it, and everybody else just is in the dark.
Lithwick: I think maybe the way to characterize it, Mark, in closing is that there are two realities on decision days. There is what you download from SCOTUSblog and what’s written in the opinion, and then there is this other world of what’s happening in the court. And there’s almost no record of that. It’s almost as though that has disappeared.
Stern: That’s right, and I’m sure the Justices wouldn’t have it any other way.
Lithwick: Well, listen, amazing note to close on, Mark. I want to thank you so much for all the yeoman’s work you did at the Slate breakfast table, and getting posts up, and enabling me to sit there in the chamber and emerge blinking six hours later after the news has been made. Really, really, I thank you so much.
Mark Joseph Stern covers LGBT issues and legal affairs at Slate. Mark, thank you so much for joining us on Amicus.
Mark Joseph Stern: Thanks so much for having me on.
Lithwick: So, now I want to turn to my friend, Christian Turner, who teaches at the University of Georgia Law School and hosts with Joe Miller Oral Argument, which is one of my favorite legal podcasts. It’s about law, legal theory, law school. And I’ve had so much mail this week from people saying, I have never seen Justices just feral, crazy, fangs out—opinions, and concurrences, and dissents. And I wanted to ask you—
Christian Turner: Yeah.
Lithwick: —because you think so hard about how the justice is, right? Is this of a piece with what we’ve seen in prior terms, or have the Justices just lost their minds?
Turner: Yeah, I mean, I think it’s different, don’t you? I mean, I think there’s—you know, at the end of this term—especially, you know, the Burwell case and the gay marriage case—you know, I guess I go back, and I think—you know, you think about a family, or a corporation, or, like, I’m at a law school—like, those organizations can work really well, even if people radically disagree about things, right? Because you can disagree with people, and it’s fine. It can be fine.
I think things go off the rails in just about any organization when, in the face of disagreement, one party says, you know what? I think that person’s saying that thing not because of the things that they’re saying, but they have other reasons, right? They have other motivations, and I think those motivations are these, and they’re bad, et cetera.
And I started to get a hint of that in these latter two opinions, right? I mean, especially—I think Scalia’s criticisms of Kennedy’s opinions as basically failed attempts to write for the ages, right—to put himself in the history books. Like, that, to me, goes at motivation in a way that—you know, I think about prior, like, Scalia full-throated dissents—like in the Casey Martin golfer case back in the day—the ADA case—which are just, you know, very, you know, like I said, full-throated defenses of his position and attacks on the reasoning of the majority.
And these felt to me a little bit different. And I read them, and I wonder, you know, how do you go to work the next day, and interact with somebody that you basically said is, you know, pompous and writing for the ages, but failing to do so? And I would put my head in a bag before I would sign onto such a thing. I mean, didn’t you see that, as well, or—
Lithwick: I did, and I thought, you know, it’s so interesting because you hear tell that one of the things that happened to Sandra Day O’Connor that drove her to the center—and even left-ish center—of the court on some issues was just taking it personally—you know, that when Scalia would write in a opinion—like, that her reasoning and rationale is “not to be believed”—that that does have an effect.
And I—you know, Tony Morrow wrote a great story at the end of the last week, saying, no, no, the Justices don’t take it personally. No, they all just—this is just the way they do things. And I think, you know, if someone said not just that, you know, Anthony Kennedy can’t write, and he writes like a fortune cookie—but that anyone who signed off on his opinion in order to get to five needs to put a bag on their head—I mean, that’s beyond “X is not to be believed.” That sounds like a personal assault.
Turner: Yeah, and, you know, I was—I’ve been totally onboard with the idea that, you know, one of the ways that this institution is transparent—because it’s not through, you know, video of oral arguments, as you know—it’s that they state their reasons, right? They are open about their disagreements. That’s why [it has led] many of them to suggest that they are the most transparent of the branches of government and the institutions of government. And I’ve been totally onboard with the idea that they are disagreeing in really serious ways—that they don’t hold back, and that makes the institution stronger. And, you know, notwithstanding that, they can go to the opera together or go hunting together—these things.
I could believe that, because I would like to be a part of an organization like that, right? But I have to say, you know, once you slip from the bonds of attacking reasoning in a full-throated way and you start to wonder, “I think you’re doing this for reasons that you’re not really stating”—or, “I think that, you know, your personality is somehow defective for doing this”—I wonder. I mean, I don’t know. There’s no way to know. And it’s not that I’m interested in the soap opera of it, but I just wonder—you know, this is an institution so many of the rules of which are not written down.
Like, you know, how are you supposed to dissent? The Constitution doesn’t say that. How are you supposed to interpret the Constitution? The Constitution doesn’t say that. So, much of it is practice. It’s built up over the ages. So much of it is the interaction between them. And, you know, you worry that that can get broken in a way that’s not easily repaired. And did you see any of that in the—
Lithwick: I had a couple of minutes that, for me—and I wrote about, I think, most of them. I think that there was something profoundly different being in the chamber when Obergefell was decided, and the Chief Justice was reading his dissent.
Now, you know, A, he’s never read a dissent in 10 years. This was his first time reading a dissent. But, B—and this was so powerful in the chambers, and it didn’t resonate out in the world—is that he has seated in front of him some of the lawyers in the LGBT legal advocacy movement who have been working on this for 20, 30 years, right?
Lithwick: Evan Wolfson is sitting there—Pam Carlin, Paul Smith—who’s been on this show—you know, Mary Bonauto, who argued it.
They’re sitting directly in front of him as he’s reading that caution at the end: “You go ahead. You celebrate. You know, have your day. But this has nothing to do with the Constitution.” That’s really different on paper than when it’s directed at people who have dedicated their lives, it seems to me, to saying, the Constitution guarantees that.
Turner: And I heard that his summary was—you know, the actual opinion is filled with kind of caveats about—you know, almost—he doesn’t go this far to say, you know, I would even vote in favor of gay marriage, were it subject to a plebiscite. But I can’t rule on the basis of the Constitution.”
But I heard—and I don’t know if this is true—that in the summary, there was less of that kind of caveat language and more, “This has nothing to do with the Constitution” language. Is that right?
Lithwick: It was a very strong reading, and hard not to take it as a rebuke sitting in the room if you had been an advocate on the side of gay marriage. The other moment that I saw that was, I thought, very, very fundamentally different just sitting in the chamber was—and it goes to exactly your point, Christian, about questioning motives—is Sam Alito. Again, this is in Glossip v. Gross, the lethal injection case. And Justice Samuel Alito is reading from an opinion that questions the integrity of these “abolitionists”—the death penalty abolitionists, the people who have worked to do away with the lethal injection drugs that are efficacious. Therefore, we’re forced to use these crap drugs that don’t work.
Turner: Right, right.
Lithwick: And he puts that at the doorstep of the abolitionists. And there’s really a feeling sitting there in the chamber that the people who advocate for the end of the death penalty are really the bad guys here. And some of that gets swept up into the accusations toward the dissenters.
Turner: I mean, it’s weird, right? I mean, as if—even if they are death penalty abolitionists—as if they’re the only group which has a litigation strategy in front of the Supreme Court. I mean -
Lithwick: Right. And think about, you know, the abortion abolitionists.
Turner: Right, right.
Lithwick: You know, they get the solicitude of, you know, their free-speech rights are protected, even if it impinges on constitutional rights.
Turner: I mean, this is how it works with a professional Supreme Court Bar and advocacy groups that are plugged into it. I mean, every case is a piece of a larger strategy. And surely, he knows this, right? Every case is not just about that case.
Lithwick: Yeah. I have to say, I felt on Monday, when the term ended, that, A, I needed a shower—that I hadn’t seen such really rank accusations—
Lithwick:—of bad faith, and, B, that I was really glad the Justices were not going to see each other for a little while. It was not a pleasant end of term.
I guess I want to ask you one last question about this, which is, do you think that when they come back in October, this is all forgotten? It’s just nap and a snack, and move on—or do you think that this really rankles, and that people hold these grudges for a long time?
Turner: You know, I’m not going to put anybody on the couch or try—you know, it would be ironic, right, to guess at their motivations and their psychology, having said that one of the problems is guessing at motivations.
But, you know, it’s how the individual psychologies react to what I think is an essential problem the court faces, right? The essential problem is that, at its heart, I agree with those who say that the court deals in political questions. It resolves political questions using a kind of politics.
And I think one way you can see it is in the gay marriage decision. You know, I think this is about a political judgment by the court that gays and lesbians are part now of the community of equals. And now, being part of the community of equals, if you’re going to discriminate, you have to give us a reason, right?
And both of those conclusions, right—that there are no longer good reasons, and that they’re a part of the community of equals—those are conclusions which are now socially acceptable—and the opposites of which are not really socially acceptable in many circles. For example, if you go back, and you look at the concurrents in Bowers v. Hardwick, and you look at the arguments which support, in the minds of the concurrents, why sodomy bans are perfectly OK under the Constitution, I don’t think you could utter most of those arguments in polite company these days.
And I think that’s how law changes, right? That’s the sense in which the court is political—that there are arguments that support the rationality of something which fall away over time, as they’re no longer socially acceptable. So, you know, there are, like, eight different directions that are all pointing to this kerfuffle, this psychological meltdown, if it is that, of this comity that we’ve seen on the court for quite some time—the ability to disagree strongly, and yet, you know, still go hunting together.
Will that be the same after this? I don’t—you know, I read these opinions, and I don’t see how. But then, you know, I don’t see behind the velvet curtain of the court, so I don’t know.
Lithwick: Well, I think as we close the velvet curtain of the court on the 2014 term, it’s really worth thinking about—whether a dissent that says, “By the way, you’re a crap writer, and I hate you” really serves any useful ends.
Christian Turner, thank you so, so much for joining us this week on Amicus.
Turner: Thank you, Dahlia. It’s been great.
Lithwick: Christian Turner teaches at the University of Georgia Law School. Christian and his colleague, Joe Miller, also have a legal podcast that you should definitely check out. It’s call Oral Argument. You can find it in the iTunes Store—or wherever you go to get your podcasts.
And that is going to be it for this final Supreme Court term wrap-up episode of Amicus. As always, we’re so eager to hear what you think. Our email address is email@example.com. That’s firstname.lastname@example.org.
We really love your letters, and we appreciate all the terrific suggestions we’ve been getting from you for summer topics for this podcast. We’re going to pick up a few of them later on in August, but, first, we’re going to take a little break.
Before we sign off, I just want to say thank you to all of you who have listened, and written in, and told your friends, and really helped us make this inaugural year of Amicus such a great success. We have had so much fun doing this podcast, and we look forward to doing a lot more.
So, we’re signing off for the first part of the summer. We’ll be back the third week in August with a brand-new episode. If you haven’t caught up on all 22 of our previous episodes, hey, this is the time to do it. And you’ll find them all at slate.com/amicus.
And if you’re a Slate Plus member, you’re going to find transcripts of our episodes there. They post just a few days after the podcasts themselves. If you’re not a member already, consider becoming one. You can sign up for a free two-week trial at slate.com/amicusplus.
A big, big thank you this week to Christian Turner, who engineered today’s podcast. The producer of Amicus is the wonderful Tony Field. Our managing producer is Joel Meyer. 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. I am unbelievably tired. Have a fantastic summer. We will be back with you before you know it with another brand-new episode of Amicus.