We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 22, in which Slate’s Dahlia Lithwick reflects with Walter Dellinger on the history and high points of the Supreme Court’s recent rulings on marriage equality and on the Affordable Care Act. Dellinger is a professor of law at Duke University, a Slate contributor, and was the head of the Office of Legal Counsel from 1993 to 1996. 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: Hi, and welcome to Amicus, Slate’s Supreme Court podcast. I’m Dahlia Lithwick, Slate’s pretty darn tired Supreme Court correspondent. I started last week’s episode by saying, “Oh, it was so crazy. It was so”—I didn’t know what crazy was until this week. This week has been completely bonkers, with the court handing down two much, much anticipated rulings—and surprising everybody by doing it a week before we thought they would.
On Thursday, the court handed down King v. Burwell, a 6–3 decision, finding that President Obama’s Affordable Care Act allowed the federal government to subsidize health care for poor and middle-class Americans, even if they were on states that had not created their own state exchanges.
And then, in 5–4 ruling on Friday in Obergefell v. Hodges, the court ruled that same-sex marriage bans are unconstitutional in states that have them, and that every American has a right to enter into a same-sex marriage.
With the ink barely dry on these opinions, I’ve asked Walter Dellinger to join me here, in Slate’s Washington, D.C., studio, to help sort all of this out. Walter is a professor of law at Duke University. He’s former head of the Office of Legal Counsel, and former solicitor general in the Clinton administration. He’s also a dear, dear friend of Slate. He and I have been talking about the Supreme Court term at the last week of the term for 14 years.
Welcome back to Amicus, Walter Dellinger.
Walter Dellinger: Well, Dahlia, thank you. You have me here on two of the more dramatic days we’ve seen at the court in a long time.
Lithwick: And nobody thought marriage was going to come down today. I mean, this is an outlier to add a Friday argument day, and to have what was supposed to be the big cases come down not at the end of the term. So—
Dellinger: Well, I think that’s a good development. The court shouldn’t play drama queen; they should hand down decisions when they’re ready. And some of the—a couple of the cases yet to come have some very complicated issues where they might have difficulty getting five people to agree on a single opinion.
They’ve been thinking about gay marriage for a long time, so, you know, it’s easy to be ready for today.
Lithwick: So, let’s jump right in, Walter. Talk a little bit about what today’s decision in Obergefell—let’s start with, what does the Kennedy decision do? It finds a right for gay marriage—where?
Dellinger: Well, everywhere—everywhere in America. I mean, the court’s holding is quite precise. The laws challenged by petitioners that limited marriage to persons of the opposite sex are now held invalid, to the extent that they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. So, there can be no difference between same-sex couples and opposite-sex couples anywhere in the country.
Lithwick: And where in the 14th Amendment does Justice Kennedy—who I think folks wanted some precision, right—they wanted a little doctrine today—
Dellinger: If what you want is precision, that, you’re not going to get from Justice Kennedy. A deep sense of warm humanity, to be sure, but doctrinal precision is not his strong point. He actually draws upon both the requirement that persons not be deprived of liberty without due process by the 14th Amendment and by its Equal Protection Clause, and finds no reason for not treating gay couples the same as any other couples when it comes to their rights and interest in being married—and, you know, writes very powerfully about the role of marriage and why it’s fundamental on the road to finding that states have no legitimate basis for excluding these couples.
And he says—he does, I think, very early, say, “Look, there are objectors, and it’s really early, and marriage has been the same for millennia. But I’m doing it anyway.”
Lithwick: Well, you know, I am quite convinced that he was not ready in 2010 when the California case came before the Supreme Court. And part of the opinion—his opinion for the court sounds as if it’s a debate he’s having with himself. So, after explaining why marriage is so important, and why treating people who are gays and lesbians with equal dignity is so important—before he gets to the end, he has to stop and say, “There may be an initial inclination to proceed with caution, to await further legislation, litigation, and debate.”
And I think he’s saying, “I was initially inclined to proceed with caution, to await further”—you know, I think when gay marriage came to Mayberry around the country in so many states—even when it was done by judicial decision—that that opened the way for Justice Kennedy to be comfortable with a national ruling. In North Carolina, for instance, Dahlia, I was there the Friday night that a fellow district judge said, reading the tea leaves from the Supreme Court’s earlier cases, that there would be gay marriage.
I was there the next morning. The Raleigh News and Observer had a front-page picture of two beefy guys in their sheriffs’ uniforms, and it was two North Carolina deputy sheriffs. And the least plausible ending to a sentence that begins, “Two North Carolina deputy sheriffs” a few years would have been, “were the first gay couple to be married in the State of North Carolina.”
And I think once—you know, and it went down easy. There was no—nothing happened. Traditional marriage did not collapse. There was no outpouring in North Carolina. There was no civil disobedience of—by clerks and magistrates. I mean, I think the fact that there was a little bit of a dust-up in Alabama served to show how little dust-up there was—
Dellinger:—in all the states where lower-court decisions, sort of anticipating the Supreme Court, ruled in favor of gay marriage.
Lithwick: There’s that lovely bit at the very end of the Kennedy majority opinion, where he says, “These couples aren’t disrespecting marriage.”
Dellinger: They want to be married. They are—
Lithwick: They like marriage so much, they want in—and that it’s a very, very tender statement of that exact sentiment that you’re describing, which is, this is just a lovely thing that people want to have, because it’s lovely—and trying to sort of disarm some of the vitriol that comes in the dissents.
Dellinger: You remember, we saw in the oral arguments in the California gay marriage case and the Defense of Marriage case a few years back how struck Justice Kennedy was by the number of gay couples that are raising children.
Dellinger: Hundreds of thousands of children, he said, are being raised by same-sex couples in committed relationships. And they deserve the stability that comes from having their parents married, and with all the benefits in the eyes of the law. And he goes back to that theme again today.
Lithwick: And I would add to that—because as he was reading his opinion, you know, I was thinking in my head of the way he read the Lawrence opinion—much more strong and forceful. This was—I thought, for him, you know, he was kind of hurrying and stumbling a little. He paused a few times. He just—you know, I didn’t even know which way it was going initially -
Lithwick:—because he was quite hesitant. And I thought part of that reflects, I think, what you’re describing, Walter, which is, he’s working this out. This isn’t Lawrence. Lawrence was easier for him.
Dellinger: Right. And time of law—you know, it’s the rule of one-fourth or one-third. When two-thirds or three-fourths of the country have adopted progress, the court’s willing to, you know, bring the last group into line. And that was true with school segregation with 13 states. It was true in Lawrence, with the states that criminalized homosexual sexual acts; there were only about 13 at the time.
But here, Kennedy was still nervous that only 11 states had, by popular referendum or legislative action, only 11 states had adopted gay marriage. So, he was still a little bit hesitant, but he speaks very movingly about how when the court did not protect gay sex from criminalization in Bowers, people suffered terribly in the ensuing years between Bowers v. Hardwick in the mid-1980s and Lawrence v. Texas in 2003. He did not want to see that suffering continued.
Lithwick: So, I thought this was an interesting passage. I wanted to ask you about it. He says—right toward the end of the majority opinion, he says, “It must be emphasized that religion and those who adhere to religious doctrine may continue to advocate with utmost sincere conviction, you know, that they object to same-sex marriage.” He carves out this huge solicitude where he says, “I want to be clear that if you have a conscience problem with this, no one is silencing you.”
I thought that was interesting. What—is that because the dissenters feel so strongly that religious objectors are getting quashed?
Dellinger: Yes, I think he’s responding to Justice Alito, and he says, “Look, religious people can continue to advocate that people shouldn’t engage in this kind of—these relationships.” But Justice Alito and Justice Scalia in dissent say, “He doesn’t say they can exercise their religion, and it leaves open what happens to a religious college that allows married couples but not married couples who are the same sex to have student housing, et cetera.”
So, you know, if you turn to the dissents, what I think is really striking is, there’s only one majority opinion. Ginsberg, Sotomayor, and Breyer, and Kagan get out of the way, and let Justice Kennedy have his moment, have to speak for everyone with his own opinion. But the four dissenters write four separate opinions. Now the chief justice is joined by Scalia and Thomas, but very markedly not by Justice Alito.
And I think the reason that Chief Justice Roberts, though he’s dissenting, goes out of his way to speak sympathetically to the case for gay rights in general and gay marriage. It’s one of the more striking sentences in a dissenting opinion where you usually go after the other side’s argument. He begins by saying, “Petitioners”—that is, in this case, the gay couples seeking marriage recognition—“Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend same-sex couples should be allowed to affirm their love, just like opposite-sex couples. That position has undeniable appeal.”
But he then goes on to say, “Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal argument for having the court require that extension is not.” So, he places it—I found it a much better argument than any of the opponents of gay marriage have put together in all of these years, where he doesn’t take on and argue against gay marriage as much as he says, “This is an evolution that’s taking place, and it’s best to have it take place through the debate in a democratic process.”
And he even suggests—while trying not to be patronizing—that it’s better for those who support gay rights that it evolve through a political debate and discussion. Now what that doesn’t take account of is the fact that, when there was a sort of gay panic that there was going to be gay marriage a few years back, a large number—a significant number of states amended their state constitution. And those constitutional amendments shut down the political process -
Lithwick: Right, right.
Dellinger:—and the debate in those states. And I’m surprised that Justice Kennedy did not mention the fact that the chief justice says there should be debate. And he does say—the Chief Justice says, “Many people will rejoice at this decision, and I begrudge none of their celebration.” That’s a far cry from the tone of Justice Alito’s dissent. He says, “The day’s”—and he has this sense that people of belief are being hounded in this country by some kind of—I don’t know—gay mafia.
Lithwick: Well, he’s believed that for a long time.
Dellinger: He has, but it—
Lithwick: I mean, that’s his thing.
Dellinger: Ever so starkly as this: “The day’s decision will be used to ‘vilify Americans who are unwilling to assent to the new orthodoxy.’ ” That is pretty strong language. He says, “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play.” He’s assuming there’s going to be some kind of antireligious momentum for those that still adhere to traditional values that’s going to be like what was suffered by gays and lesbians all these decades.
If anybody knows about the criminalization, and the punishment, and the harassment, that’s just—I think—just really borders on the absurd to think that this will lead to vilification of Americans who disagree.
Lithwick: Well, I noticed the extent to which even the dissenters—with the exception of—I think there’s some discussion about, oh, statistics are going to show—you know, we don’t know yet how this is—it’s only been, you know, since Massachusetts—but even that argument that was being advanced by the opponents that said, “Oh, this is going to massively decrease straight marriage; once the gay marriages start, straight people will flee, and then there’ll be these out-of-wedlock births.”
And, you know, it was such a completely convoluted argument. But even that sort of falls out of the conversation today. Even that isn’t advanced as a -
Dellinger: There’s a very brief passage where Justice Kennedy says for the court, “We are told that this will discourage traditional marriage. That is, this will discourage marriage by opposite-sex couples.” And he says, “But nobody says why that would happen,” right? So, that’s the entire discussion. Why would anybody think that?
Lithwick: Right. No, I think it’s going to be the case that the battlefront is going to shift to these religious liberty cases. That’s where it’s going to—you know, we’re no longer going to hear about, “We just don’t like gay marriage.” We’re going to hear, “My religion just doesn’t allow me to, in any way, participate in this.” And that’s going to be, I think, the new front.
So, I think it really is a historic day. I think that—I mean, sitting in the courtroom, I had chills. You know, people were openly sobbing the way they were openly sobbing when Lawrence was announced and Windsor was announced. And I thought—is Kennedy going to be remembered, Walter, as the great liberal jurist—Anthony Kennedy?
Dellinger: I think he’s going to be remembered on this issue, on this issue. I’m not sure beyond this issue, because I don’t think he’s necessarily made any great contributions to jurisprudential thinking. I mean, on this issue, he recognizes humanity, and that is his strength. But to have a lasting influence in other areas, I think you need a more coherent sense of doctrine than a better capacity for laying down a foundation. I mean, here he says, equal protection, due process.
Lithwick: It’s all good.
Dellinger: It’s all good.
Lithwick: It’s all good stuff.
Dellinger: It’s all good—right, right.
Lithwick: Let’s just mash it up together.
So, let’s take a break now, and then we’ll come back and talk about King v. Burwell.
For the second part of the show, we want to turn all the way to Thursday, which, as you may or may not recall, opened with a 6–3 ruling in King v. Burwell. That was the second bite at the apple of Obamacare. The first one happened in 2012.
And this was a decision authored by Chief Justice John Roberts that said, you know what? We’re not eviscerating all of the Affordable Care Act because of four words in the statute.
So, Walter, I guess I have two questions for you. One, were you surprised by the ruling? And two, were you surprised that it was 6–3?
Dellinger: You know, I’m not sure I was surprised. In fact, I said on Slate the day before that I thought that the court would uphold subsidies.
Lithwick: And gay marriage. You were prescient, yeah.
Dellinger: Well, that’s true. I did name—gay marriage was an easier call. You know, my view on the likelihood the government would prevail changed as a result of the briefing. In fact, it changed more as a result of the briefing than any case I can remember. A lot of people thought that this was going to be a body blow to Obamacare, at least in those 35, 37 states that had not set up their own exchange where 6.5 million people would lose the federal tax subsidies that enabled them to buy health insurance.
And because the court had reached out to take the case before the—one of the lower courts might have eliminated any disagreement among the circuits; they might have all upheld it. So, the aggressiveness of reaching out to take the case—[the four] Justices seemed prepared—at least four—to think that they could strike down these subsidies. But I think the lawyering was just overpowering.
Roberts’s opinion of the court is a very impressive piece of work. It’s short; it’s 21 pages. It’s direct. He was a business lawyer and a lawyer in the solicitor general’s office—principal deputy. He’s really smart, and he understands economics, and he understands business. So, he not only understood how the whole Affordable Care Act and its 2,000 pages was structured; he was able to explain it better than anybody in the Obama administration.
Dellinger: I mean, if Roberts didn’t already have a job he doesn’t want to give up, they should hire him as communications director for Obama—
Dellinger:—because he lays out in five pages at the beginning of his opinion the best case for explaining how the Affordable Care Act works, and why, of course, it would make absolutely utterly no sense whatsoever to have 30-something states where federal taxpayers didn’t get subsidies that the taxpayers in the other states got. And it’s a very purposive reading of the statute—what makes sense about what Congress really intended to do—whereas the three dissenters, led by Scalia, argue that, you know, this is—argue that law is like a game.
If you can go through 2,000 pages and, a couple months later, find, ah, here’s a passage that isn’t quite clear, let’s pull the plug on the whole thing. And there’s no choice, because we found some magic words lying about in 2,100 pages that make no sense whatsoever to read them the way the challengers do. It was very—it was mean-spirited litigation, and it treated law as a game, I think, when it’s up to the court to try to make a new statute work, not to find a way to destroy it.
Roberts even—the chief justice, Roberts—here’s someone who held office and was nominated to high positions both by President Reagan and by President Bush, who speaks of the key elements of the Affordable Care Act and says, “These are the same three critical elements that made the Massachusetts health care reform successful.” He treats it as the success—because he’s an economist. He understands that the key to this, if you’re going to use the private insurance industry, is to say to insurance companies, “You can’t turn people down.” Then say to people, so they don’t wait until they’re sick, “Oh, and by the way, you’ve got to go ahead and get health insurance now” -
Dellinger:—“or pay a tax penalty. Oh, and—but if you can’t afford the full cost of health insurance, there’ll be federal tax subsidies.” All three elements are indispensible. Roberts understood that. He explains how it works. He says, “That’s what made Massachusetts successful, and we’re going to do that here.”
It was a very impressive piece of work, and explained the law better than anyone in the White House has been really able to do.
And yet, I think—let’s give Solicitor General Don Verrilli his due. I mean, I think he’s had—as you pointed out in The Breakfast Table this week—a monster term at this court—really monster term. And all of that kind of snottiness around the 2012 Obamacare argument -
Dellinger: Don Verrilli had the best term, I thought, that any Solicitor-General—maybe any lawyer’s ever had before the court. He won arguments that were considered uphill battles before a Court that had at least some members that exhibited unremitting hostility to the government’s position. But he won the authority of the president over foreign affairs [unintelligible]. He won gay marriage. He won the—last year, the important immigration case from Arizona.
He knew the details of the Affordable Care Act, and could answer every single possible question that anybody could raise about why this wasn’t the correct result. It was really a tour de force. And I think on gay marriage, he quickly picked up on one of the most important points made by—in a question by Justice Ginsberg that, look, for a millennia, marriage was between a dominant male and a submissive female. So, of course you had to have opposite-sex couples. But by 1970, we jettisoned that outmoded view of marriage, and now there’s no reason not to have two people of the same sex.
He picked up on that, and on the fact that, you know, he could say to Justice Kennedy, “You made being gay legitimate, and said that they deserve dignity. So, now how could you deny marriage?” I thought he did that masterfully in both of those cases.
Lithwick: And that manifests in Kennedy’s opinion today, right?
Dellinger: Yes, Kennedy’s opinion picks up on that.
Lithwick: Can we maybe draw a line uniting both the outcome in King v. Burwell and in Obergefell? And that might be—if we were to be charitable to the Chief Justice—to say that it has something to do with the judicial role—that I think in both cases, he’s pretty scrupulous about saying, “Here’s what the court does, and here’s what the court doesn’t do.”
And in King, what he says is, “What the court doesn’t do is say Congress wrote a law that’s not supposed to work.” Like, that’s—
Dellinger: Right, right, right.
Lithwick:—not our job. And today, agree with him or disagree with him, but, you know, I think you’re correct to say this is not a Clarence Thomas/Alito/Scalia—you know, taking shots at Kennedy dissent. What he’s saying is, it’s not the judicial role to get in the way of the political process.
At least we can say—I think, fairly—that he’s trying to do something ennobling in both cases.
Dellinger: I think that’s right. The only discordant note is the fact that he speaks about how major issues in a democracy are for the people to decide. Scalia’s even more pronounced about that. And the court’s role is more modest and restrained. But where was that sentiment when the court was invalidating key portions of the Voting Rights Act and striking down key pillars of campaign finance reg? And both enacted by overwhelming majorities of the national Congress, elected by the people.
It’s hard to square the tone that Roberts took in Shelby County, striking down the Voting Rights Act, that treated Congress like a schoolboy, and the tone he struck in both these decisions towards the democratic process and elected representatives in the last two days. I hope that may be an evolution towards true judicial restraint, and that maybe in the future, he would be less aggressive in taking out large chunks of the Voting Rights Act, and treating Congress in almost contemptuous terms.
It’s a new, more respectful approach to the judicial role and to other institutions.
Lithwick: Can we maybe just end on the note that is, it’s the 10th anniversary of the Roberts court? We know he worries about not looking as though we have Rs and Ds on a Court that just pulled the lever for their values. Would you say—I know there was a lot of attention to a “New York Times” piece this week that said, oh, this is the most liberal court, you know, ever—but do we think that Roberts is doing what he set out to do, which is kind of be this John Marshall–like chief justice who can drag a very partisan court out of pure politics and ideology?
Dellinger: Well, this is—the last 48 hours are the first time I think I’ve seen any substantial evidence of that. Really, the role that he—of aggrandizement for the court, in setting aside what the good people of Louisville, Kentucky and Seattle, Washington did to try to have some integration in their schools, and the court throwing thunderbolts from Washington, sets aside what local schools are doing—that’s hardly a conservative principle.
The campaign finance laws, the Voting Rights Act—I mean, these are very aggressive decisions. And so—but it was really—this term at the end set a different tone.
Lithwick: Well, let’s get together again at the beginning of next term, and we can figure out what it’s all going to mean. I think we’re going to talk a little bit about abortion next term.
Dellinger: Yes, it’s going to be big. Thanks, Dahlia.
Lithwick: Thank you, Walter. Thank you so much for joining us.
Walter Dellinger is a professor of law at Duke University. He’s former head of the Office of Legal Counsel and former solicitor general in the Clinton administration.
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I’m Dahlia Lithwick. The Constitution is the Constitution. And we will be back with you soon for the next edition of Amicus.