We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 26, in which Slate’s Dahlia Lithwick sits down with the Los Angeles Times’ David Savage to preview some of the first cases of the Supreme Court’s 2015–16 term. They include Fisher v. University of Texas, which takes on affirmative action in higher education; Friedrichs v. California Teachers Association, which challenges the right of public unions to collect mandatory fees from workers; and Evenwel v. Abbott, a case that could transform the meaning of “one person, one vote.” 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 podcast about the U.S. Supreme Court. I’m Dahlia Lithwick, Slate’s Supreme Court correspondent. So, just about a year ago, we inaugurated this podcast with a podcast about the court term that was just then starting to get underway. Longtime Amicus listeners might remember that on that episode we talked to SCOTUS blog chief Tom Goldstein about, among other things, the court’s apparent decision not to take up same-sex marriage in the 2014 term.
That means he has covered the confirmation of all nine currently sitting justices. He’s also one of the savviest court watchers out there. David, welcome to Amicus.
David Savage: Good to speak with you, Dahlia.
Lithwick: So, I wonder if you’d do one second of precatory service journalism, David. We get a ton of emails from people who ask how it is that the court gets thousands of cases that are appealed up to the court, and yet they only hear 70-some cases a year. Can you explain to us how the court decides which cases to take?
Savage: Well, they’re interested in resolving legal questions, situations where the law is a mess. Judges in California say the federal law means one thing, judges in New York say it means something else. That’s why we have the Supreme Court, to resolve those disputes. So, they don’t go looking for cases so much as they go looking for big, unresolved legal questions. If you approach it that way, you could look through 1,000 appeals, and there’s only a limited number that really raise a question where the law is uncertain where they need to step in.
So, that’s why they sort of go through a whole lot of them to find just those questions they want to answer.
Lithwick: So, David, I want to start by asking you a thematic question if I could, which is, a lot of the conventional wisdom around last term, which was generally really good for the liberal bloc in important ways.
Gay marriage, Obamacare, and some other big wins on the left. Significant losses on the right in some sense. But this year is going to be just flaming torches and arrows. It’s going to be really bad for the left. And that was best characterized by a recent article by Jeff Toobin, who more or less said, “Buckle your seatbelts, folks, because this 2015 term that’s coming up is going to really, really decimate core areas of the law for liberals.”
Do you have thoughts on that as a theme of the upcoming term?
Savage: Well, I didn’t agree with the conventional theme, I think, which is that last term was a lot of big wins for the left. And let me explain what I mean. I think the gay marriage case was a huge victory for the left. But most of the other cases where situations where the conservatives pressed an issue.
For example, we should basically overturn Obamacare based on this one provision in the law. This was a fairly extreme proposition when it first came up, and it moved quickly, and the court took it. In the end, there weren’t the five votes to knock out that part of Obamacare, but it kept the law exactly where it was. This was a status quo decision. There were quite a few of those cases where the conservatives pressed an issue and they lost.
But the law didn’t move to the left. It was a status quo decision. Now we’ve got the same thing coming up in the new term, which is the conservatives are pressing the issue of knocking out college affirmative action. They’ve got their case from Texas to test that. The conservatives are pressing an issue to sort of change—in a big way—how voting districts are designed, to move away from the total population back to only eligible American citizen voters.
They’re pressing the issue of, we should knock out mandatory fees for union employees because they violate the free speech rights of dissident teachers. In all three cases, it’s the conservative bloc of the court that’s pushing that issue. So, I think a lot of liberals are right to say, uh oh, beware. This could be a series of really big conservative wins. The conservatives are setting the agenda here.
What we don’t know is whether it’ll be a repeat of last year, where the conservatives fall one vote short. If they fall one vote short, we’ll be writing in the spring and say, oh boy, big liberal victories. But they will be the kind of liberal victories that basically keep the law exactly where it was.
Lithwick: Well, let’s unpack affirmative action a little bit, because this is indeed a case that the court has looked at before, that has garnered an enormous amount of public interest, David.
A lot of folks say the court is taking it to kind of finish the job. So, can you describe a little bit the Fisher case, how it came to the court, and how it’s come back.
Savage: Well, sure. The truth is that there’s a conservative activist, Ed Blum, who’s been interested in pressing this issue. When the 2003 Supreme Court Michigan case basically said, “Yes, universities, you may consider race as one factor in admissions.”
The University of Texas, which had suspended its affirmative action, began again. They started considering race for some applicants. Ed Blum went in search of a plaintiff to sue. He found this young woman named Ms. Fisher who was a good, but not great, student at a school in East Texas. She didn’t get into UT–Austin. She went to LSU and graduated. Nonetheless, he filed a lawsuit on her behalf.
It became Fisher v. the University of Texas. Basically the complaint was she was suing because her race may have been used against her when she was applying, because the university admitted it considered race. We thought, as you said, that that was going to be the big five to four decision that knocks out college affirmative action. And two years ago, the court essentially—after having the case the whole year—punted.
Anthony Kennedy wrote a very strange opinion that basically said to the appeals court, “Go back and take another look at this. You should only use race as a last resort. Take another look at it.” The appeals court took another look at it and decided the same thing. They upheld the University of Texas plan and said, gee, if it was OK for the University of Michigan to do this, you told us in 2003, it’s OK for the University of Texas to take race into account. Now, the court, having seen it for the second time, has granted it again.
And you tell me, Dahlia. What do they do now?
Lithwick: Well, it’s tough, right? Nothing functionally has changed in two years. Anthony Kennedy, as you said, held it off for another day. Now I think he’s got to contend with it. And it’s probably worth flagging for listeners, David, that the difference between the 2003 Michigan case where the court upheld an affirmative action program is Sandra Day O’Connor, right?
She leaves the court, Sam Alito comes on the court. O’Connor herself was pretty ambivalent about affirmative action, but she felt that we weren’t there yet as a society, that we needed a little bit more time to use affirmative action programs to help level the playing field. And when she left the court, that was a crucial vote, correct?
Savage: Oh, absolutely. Justice Kennedy never had exactly the same views that he did. He dissented in every affirmative action case.
That’s why we were very confident, we thought, that they were going to do something more two years ago. You know, it’s possible, Dahlia, that Kennedy was unwilling to flatly overturn O’Connor’s opinion in the Michigan case. He tried to write around it and couldn’t figure out a way to do it. And now the question is back again. Do they overturn- essentially overturn what O’Connor said and say, “No, universities, you may not use race as an admissions factor.”
I should say there’s also a possibility. When we looked at Texas before, it’s got a very odd situation. They have this top 10 percent law, which says if you are a top graduate of any high school in Texas, including a relatively poor high school in the Rio Grande valley or in the center city of Houston, you can get in to the University of Texas at Austin.
And they actually do fairly well on admitting particularly Latino, and to some degree, African American students. I always thought it’s possible that Kennedy might say, if you’re a state university and you’ve found a way to bring a significant amount of diversity to your entering class without using race explicitly, then you may not use race at all.
Lithwick: David, does it change anything that Kennedy wrote that fairly surprising opinion at the end of last term about the Fair Housing Act, where he suddenly seemed to have a kind of a solicitude for the idea that we do have unconscious biases, that racism still profoundly infects the way we allocate resources? I’m wondering A, if that decision from Kennedy surprised you, and B, if you think it informs in any way his thinking about Fisher as it comes up.
Savage: Yes, and maybe. Yes, it surprised me. I think you’re very smart to point out that, to say, hey, maybe there’s at least some sign that Anthony Kennedy is sort of shifting to the middle. In a year of Ferguson, and all the police shootings, and all the focus on race in the criminal justice system, is it possible that Anthony Kennedy is sort of thinking, well, wait a minute, there really is a race problem in this country? And do I want to be the person to say I’m going to close the door to at least considering race in colleges and universities?
So, yes. I think if I were one of the conservative lawyers in this case, I would be very concerned that what he wrote last year in the housing case is that Kennedy may be rethinking his view on what should we say about race in the area of colleges and universities. So, I think this case is a very hard one to gauge as to what they’re doing.
We don’t know what the thinking was in 2013. And now, I have less confidence of thinking what the court is going to do about this case in the year ahead.
Lithwick: One little detour for gossip, David. Joan Biskupic reported last year, in her big book about Sotomayor, that Sotomayor wrote a draft opinion in Fisher that she circulated but then actually didn’t publish that would have been a dissenting opinion that turned out to be that sort of cri de coeur in the Michigan affirmative action case.
Not the Michigan affirmative action case from 2003, the recent one where she talked deeply personally about what it is to be a minority and to have not been given the benefit of the doubt. Do you have any reason to believe A, that Sotomayor’s presence on the bench has somehow shaped the way the other Justices think and talk about race, and that B, that may be part of the reason that the court is having a tough time with Fisher?
Savage: Yes, I’m sure that it’s had some effect. I mean, I think Joan is right. That may explain why Kennedy didn’t press ahead with the opinion that he thought he was going to write in the Fisher case two years ago. Let me say, on the other side of the case, I think the hard thing for the liberal advocates of affirmative goes to the difference of Sonya from the Bronx and what I would call Sonya from Scarsdale.
Sonya from the Bronx, she personifies why affirmative action seemed like a necessary and good thing. She grew up in the Bronx, relatively poor, struggling family, and she was a good student. And why wouldn’t Princeton or any university say, this is the kind of young woman, Puerto Rican heritage, that we would want to open the doors to.
She excelled as a student at Princeton and Yale. But fast forward to 2015. What if she were Sonya from Scarsdale? Because Texas faces the situation that a lot of the minority students who get good SAT scores come from professional and upper middle income families, let’s say in the Dallas or Houston suburbs. And the question is, does the university need to give those students an affirmative advantage in admissions because they want to increase the number of Latino or African American students?
I think that argument is harder to make. Because you’re talking about students who are not from the background of Sonya from the Bronx. They’re not the kids who grew up in poor neighborhoods and whose parents did not go to college, but that they’re from middle class families.
Let’s pivot for a minute, David, and talk about another big, big case that the court has agreed to hear that has to do with public sector unions, and first amendment, and speech. Friedrichs is a case that, again, the court has teed this issue up in the past—has practically invited this case to come back. Can you tell us what it’s about?
Savage: Yes. This is a really conservative agenda item case. Which was back in the seventies, the court came up with a sort of compromise for public employee unions.
And it went like this: that in Detroit and other cities, we’re going to say that all the teachers may organize and have a union. We’re going to say that those teachers who do not want to belong to the union may not be required to pay dues to pay for politics and lobbying to make it a sort of political organization. But they must pay a fee to pay their fair share of the cost of collective bargaining and sort of grievances.
They must pay the sort of basic cost, because otherwise you have the sort of free rider problem, is that if I were one of those teachers, I’d benefit from the bargain and I’d also have somebody to represent me in grievances, but I wouldn’t be paying anything. So, the compromise is all public sector union employees, where there is a union, must pay this fee.
So, the court said that in 1977, a case called Abood. And so, fast forward to the more recent era when conservatives like Scott Walker in Wisconsin and other Republican governors are going after public sector unions and saying these collective deals have been bad for the people of this state. We’re going to do what we can to undercut the public sector unions. The Supreme Court, in a couple cases, all of which Sam Alito have written, where he’s basically said, wait a minute, doesn’t this seem to violate the free speech rights?
If you’re a dissenting employee, you don’t want to be part of this union. Nonetheless, your money is taken to help fund this union. Doesn’t that put you in a position of the government is forcing you to support a cause you don’t want to support? So, he said that a couple times, suggesting that there is a first amendment problem. And lo and behold, one of the conservative filed a lawsuit in California challenging the union fees that California teachers must pay.
They lost in the lower court. They lost in the 9th Circuit. The 9th Circuit said, wait a minute, the Supreme Court resolved this 40 years ago. The Supreme Court has now granted that case. The question is, does it violate the first amendment to require public employees who are part of unions, but don’t want to be part of the union, to pay a fair share fee to support the union?
Lithwick: And this is sort of like what we said about Fisher, insofar as the court recently had an opportunity, if they wanted to eviscerate Abood, that 1977 case, they could have done it only two years ago, and they didn’t do it. So, is this sort of an example of that incrementalism that the Roberts court is famous for, where they almost do it one year and then a couple years later they come back and do it do it?
Savage: Yes. But it’s also an example of what we were just talking about with Fisher, is that there was a group of justices to push this issue, but they stopped just short of resolving it in a big way. So, the first case, Fisher, we don’t know whether the five of them are going to unite and say no to affirmative action. We don’t know whether five of them are going to unite in this case and say no forced fees. It was very unclear from the argument. Justice Scalia seemed to be the one who was most unwilling to take a big leap in this case.
Because he had written an opinion about twenty years ago in a case involving colleges, and saying the free rider argument makes sense. That the government is telling this union you have to represent everybody. Well then, why shouldn’t everybody have to pay? So, we will know, again, in the spring whether there’s five votes ready to make a big decision, or that there are four and one leaner and they can’t get a fifth vote to actually decide the big issue.
Lithwick: Four and one leaner might actually become the name of Justice Kennedy’s autobiography. I like that characterization. David, let’s turn briefly, if we could, to this big existential question of what the definition of one person, one vote is. This is another big, big case that the court has in some ways invited, the conservative on the court, specifically in this case Clarence Thomas.
Can you just briefly outline this other big, big challenge the court is going to hear?
Savage: Yes. And I should mention again Ed Blum, because the same conservative activist who pushed the affirmative action case in Texas has for many years been interested in this issue that, I must say, Dahlia, I was completely unaware of until Blum started sending this issue up to the court. As you correctly said, Clarence Thomas wrote an opinion saying that he thought this was a good issue the court should take on.
When state legislatures draw district lines for the state assembly, or the state senate, or for the congressional districts, basically under the one person, one vote rule, you have to get districts that are essentially of even size. You don’t want one district to have 10,000 people and another district to have 1,000. Or whatever. You want them to be the same size so that all the votes have roughly the same share of power.
Well, the numbers that states use to do that are the total population numbers. That is, the numbers that come in the U.S. census. But Ed Blum made the point is, wait a minute, if it’s a one person, one vote rule, shouldn’t you divide up the districts based on the number of actual or eligible voters. So, stop and think about that for a minute. What does that mean in California or Texas?
Well, there are a lot of districts around Los Angeles and around Texas where a significant percentage of the population may be noncitizens and not eligible to vote, but they are counted as part of the total population. So, Blum says the way we’re doing it now, the way Texas has been doing it, the way California is doing it, is essentially unconstitutional, because you’re dividing up districts not based on the one person, one vote rule, but using the total population.
Lithwick: And it’s worth pointing out, David, that this really was a huge surprise. That most of us thought of this as a kind of a thought experiment, some kind of cool law review proposition. But the idea that there are four justices willing to grant cert, and sit down, and grapple with what we thought was a fairly established principle of how we define one person, one vote in this country really is—
I think it can’t be overstated. This was a big surprise.
Savage: Yeah. It’s the kind of thing that ordinary voters or ordinary people may not think about or be aware of. But it’s really a part of the mathematics of power in most states. If the court were to buy this and say, no, you must use a tally of eligible voters, it shifts power in the state legislature—and possibly in Congress—away from districts with large percentages of Latinos and more towards a sort of white, Anglo conservative communities.
It would shift power because it would diminish the number of seats in a legislature in those areas that have large percentages of Hispanics.
Lithwick: This all comes up purely coincidentally against the backdrop of Donald Trump, right?
Willing to talk in pretty inflammatory ways about the privileges of citizenship and his fears about noncitizens who live in this country. I wonder if the court is a little bit regretting having taken this case in light of the sort of subsequent conversation we’re now having, which feels pretty toxic in ways that if, as you say, Justice Kennedy is affected by the national discourse around race.
I wonder if the ways we’re talking about immigrants right now is making the conservative bloc a little nervous about agreeing to take on this case.
Savage: Well, I don’t know Dahlia. If you mean Justice Kennedy, you may be right. He may be a little nervous. My guess is that some of them think there’s a large group of people out there who sort of agree with us, that why should be giving congressional support to areas that basically just have a lot of illegal immigrants?
Lithwick: David, I want to ask you one last question that I suspect a lot of listeners are wondering. When the term wrapped up at the end of June, there was a lot of strong language, a lot of acrimonious, ugly dissents and opinions. The justices looked, at least to me, as though they were ready for a nap and a snack.
In some cases, it looked like it was personal. What do you think happens over the summer? Do the justices have sort of lingering grudges? Do they lie awake in their beds and say, man, I wish I’d written, “Shut up!”, instead of what I wrote. How do they get past some of the rancor that comes with the close of term and reboot themselves? Or, do they just not get past the rancor? Are they mad at each other as we lead up into these opening weeks of the term?
Savage: Well, the truth is I don’t know. I do know what they all say, is that when they go away for the summer and you come back, a little time passes. I don’t know what your office is like or what my office has been like in the past, but different people have difficult situations with people in your office, and you go away for a vacation and you come back, and two months down the road you can’t even remember to some degree. What is it we were arguing about?
So, I think there’s some of that. That they can sort of move on and move on to the next case. They all say they like each other as sort of office friends. They’re not true friends that they really go out of their way to see each other away from the office, but they’re sort of office friends. They get along. I also think it differs by the people. For example, I actually think Sam Alito is somebody who more holds a grudge. There’s sort of some bad feeling and it lingers on.
I think some of the others are just more used to, oh, this is just part of—Kennedy will say—being on the court. Scalia can be really mean in his legal writing and comments, but then be exceedingly friendly. The famous example, of course, is Ruth Ginsburg. They are great friends, even though he writes very harsh things at times about her opinions. Scalia just has that view of the matter. I remember going to see him once after the—
You remember the period where he was writing all those bad thing about Sandra O’Connor, how her opinions are not to be taken seriously? And I said, “You were pretty hard on her. You really were.”
And he said, “Oh, you know how that is. You come out to the middle of the ring, you tap gloves, and you come out swinging.”
I said, “Well, I don’t think she sees it as a boxing match.” But you know, his view is that’s just the way the game is played. We’re in the law business, so we fight over the law. But we’re still friends, and it doesn’t have anything to do with how we get along personally.
I think Scalia is a good example of it. A lot of them have their views. You know, we have our legal disagreements, but we go away and we come back and we can get along as friends. They know that there are some things they’re never going to agree on. But my impression is they manage to, after two or three months, put that aside and start over again for another term.
Lithwick: Well then, I suppose we should all put our rancor aside as well and look forward to the opening of the 2015 term.
David Savage has been covering the U.S. Supreme Court and legal issues around the court for the L.A. Times since 1986. David, it is just a joy and a pleasure both to read you and to have you on Amicus. Thank you so very much for being with us today.
Savage: Well thanks, Dahlia. That was fun.
Lithwick: And that is going to do it for this last Amicus episode before the first oral arguments in the new Supreme Court term.
We are always eager to hear your thoughts and questions, and you can send them all to email@example.com. We read every one of your letters and we do our best to respond. And we really enjoy hearing from you. We also really love reading your reviews of the show on our iTunes page. So, if you haven’t already left one, please consider doing so. It’s a really great way to help other people find out about the podcast. Our show page is slate.com/amicus. All of our past episodes are there, as are transcripts of the shows.
Thank you as always to the Virginia Foundation for the Humanities, where our show is recorded. Our producer is Tony Field, and Andy Bowers is our executive producer. Amicus is part of the panoply network. Check out our whole roster of podcasts at itunes.com/panoply. I’m Dahlia Lithwick. We’ll be back with you soon for another edition of Amicus.