We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 40, in which Slate’s Dahlia Lithwick discusses Zubik v. Burwell.

In this case, the latest challenge to the Affordable Care Act, a group of nonprofits is disputing the government’s accommodation for employers whose religious beliefs stand in the way of providing their employees contraceptive health care. How does the court negotiate the messy fight between the right to health care and religious freedom?

Read how Dahlia unpacks the case with former U.S. Solicitor General Paul Clement, who argued the case for the plaintiffs. She also chats with former acting U.S. Solicitor General Walter Dellinger, who supports the government’s position.

Plus, find out what Dahlia and Walter think of Obama’s nomination of Merrick Garland to fill Justice Antonin Scalia’s post.

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 and I cover the Supreme Court for Slate. This week we’re going to focus on a big case argued this week at the court. It’s called Zubik v. Burwell, although you may know it better as Hobby Lobby Act II, or the Little Sisters Case.

Two years ago, the U.S. Supreme Court decided by a 5–4 split that closely held for-profit corporations with religious objections to the so-called contraception mandate in the Affordable Care Act could opt out of covering those devices and products, even though the Obama administration had deemed them necessary for basic preventive health care for women. Now, in the majority opinion in Hobby Lobby, authored by Justice Samuel Alito, the court said that the fact that there was a workaround, an opt-out, that was granted to objecting not-for-profits meant that that was a workaround that Hobby Lobby should get, too.

Here’s Sam Alito reading that portion of the opinion from the bench.

Samuel Alito: Although HHS has made this system available to religious nonprofits, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. And we therefore conclude that this system constitutes and alternative that achieves all of the government’s aims, while providing greater respect for religious liberty. And under RFRA, that conclusion means …

Lithwick: Fast-forward two years, and the problem for the court and the principal issue in Zubik is that this workaround isn’t going to satisfy the religious universities, hospitals, and charities that were offered it in the first place. And so across the country we have plaintiffs gathering to say that the mere act of filling out a form or mailing in a letter saying they object to providing their employees with birth control was tantamount to providing it anyhow.

Now once they let the government know that they object, the government goes ahead and contracts with the insurers or third party administrators. They provide the birth control and presumably the not-for-profits are out of it. But, say the objectors, this arrangement nevertheless triggers them providing birth control to their workers. This violates their religion. Seven courts rejected that argument, but one court of appeals did not. And it’s important to realize that this case is not a constitutional case.

It arises under a statute, RFRA, the Religious Freedom Restoration Act, which more or less provides that the government cannot burden your religious beliefs unless it’s doing so to forward a policy that serves a compelling interest, and unless it does it in the least restrictive means. Paul Clement, a partner at Bancroft PLLC and former solicitor general of the United States for the George W. Bush administration argued this case on behalf of several of the plaintiffs, including the Little Sisters of the Poor, a catholic order of nuns that runs a number of homes around the country for the elderly poor.

He joined us Wednesday almost immediately after he argued this case at the court. So, let’s just start. And I think this is a very confusing case, because you sort of think they know what it’s about, but there’s just a lot of weedy doctrine. Could you set the table for a minute, Paul, and just help us understand what’s at issue?

Paul Clement: Sure. I’d be happy to. And it is a weedy case. And depending on how the Court ultimately looks at it, they may or may not need to get into the weeds. And it really could turn on the details of, you know, whether you’re self-insured or not. But maybe not. We’ll find out. But the basic dilemma that my clients face, and I represented the Little Sisters of the Poor. I also represented a number of other clients, but maybe it’s easy enough to think about it as the Little Sisters. They face a dilemma, which is their religious beliefs are such that they don’t feel that they can be complicit in the provision of contraception.

And traditionally, that hasn’t been a problem. They’ve provided health care to their workers, but in a way that didn’t provide contraception coverage. That was something their workers had to essentially get on their own. But then with the mandate, and in particular the part of the mandate that requires nongrandfathered employers to provide coverage that includes cost-free contraception, then they have the following problem which is if they do it, they’re in violation of their sincere religious beliefs.

But if they don’t, they face something like $70 million in fines. And these are a group of nuns who’ve dedicated their lives to serving the elderly poor, so it’s not like they have $70 million sitting around.

Just invest with Buffett and they decided instead to pay the penalty. So they face a real world dilemma, which is why, the Little Sisters, a lot of people probably haven’t heard about them until this litigation, because they provide care for the elderly poor.

They’re not really looking for headlines. But they really thought that this dilemma was so substantial that they needed to bring a claim under this federal statute, the Religious Freedom Restoration Act, that broadly speaking says that if the government puts a substantial burden on your religious exercise, even if it’s a law of general applicability, so it applies to everybody, the government still can’t do that unless they satisfy what we lawyers like to talk about as strict scrutiny.

Lithwick: Strict scrutiny. So explain that. Explain the compelling interest and the least restrictive alternative so we’re all on the same page.

Clement: Happy to do that. So there’s really kind of three parts to a RFRA claim. First, the burden is on the person with religious beliefs to show that there’s a substantial burden on their religious exercise. And sometimes that’s like if I’m not able to do this, I’ll go to prison, or I’ll have to pay a huge fine. The court had a case a couple of terms ago where there was a Muslim prisoner, and if he didn’t comply with their grooming regulations, he would get thrown into the lockup.

So, those are all easy cases where you can see there’s a substantial burden on religious exercise. If the religious adherent can prove that up, then the burden switches over to the defendant, usually some government somewhere. That’s what you have in these cases. And then they have to show essentially that not granting an exception will further compelling interest in the most narrowly tailored way, so there’s not a less restrictive alternative. And so that’s basically the test and that’s why a lot of the discussion today, some of it was on substantial burden. Some of it was on compelling interest. And some of it was about these least restrictive alternatives.

Lithwick: And if you back up for one second, Paul, correct me if I’m wrong, but one of the oddities of this case is it looks an awful lot like the accommodation that’s being offered to the Little Sisters and the other objectors is exactly the thing that the court blessed in Hobby Lobby, right?

So this looks as though, I think, going into the case people said, well wait, the Court was fine with this in that case, how can it be that it’s a problem now?

Clement: And that’s where this least restrictive alternatives part of the test comes in. Because if you read the Hobby Lobby case closely, you will see that the court really talked about this accommodation in its analysis of the least restrictive alternative. And when the court talked about it, it was actually very careful to say we’re not saying that the accommodation is sufficient or compliant with RFRA, which is the shorthand for the statute.

We’re just saying it’s a less restrictive alternative. So even if it turns out it violates RFRA, too, the problem back in the Hobby Lobby case was that the government was willing to give the accommodation to nonprofit employers but not for-profit employers, even if the for-profit employers like Hobby Lobby or Conestoga Wood had sincere religious beliefs. And so the court said, look, we don’t have to definitely decide whether the accommodation is OK. We just have to basically be able to point to it and say that’s a least restrictive alternative way for the government to achieve its objective. And that was enough for Hobby Lobby and Conestoga Wood to win that case.

Now, obviously, some people looked at that and said, well, they must have blessed the accommodation. And even some of the justices, though only justices who were in dissent, sort of read it that way. Because if you’ll remember, not to get too far in the weeds, but right after the Hobby Lobby decision came out, there was an order in one of these religious accommodation cases by a religious nonprofit, happened to be the Wheaton College case.

And in that case, pretty much the majority in Hobby Lobby issued an injunction that at least temporarily gave some relief to somebody, even from the accommodation. And Justice Sotomayor wrote a dissent from that order that kind of made the point that your question was making which is, well, wait a second, I thought we just said the accommodation was the solution. So, even in the immediate wake of Hobby Lobby, if you really sort of read both the decision closely and read the back and forth in that Wheaton College order, it was pretty clear that the majority anyways hadn’t blessed the accommodation as an all-purpose solution. So that’s why we’re back.

Lithwick: And I guess one of the interesting things about oral argument was the extent to which we were fighting today about who the insurance companies belong to, right? I mean, this was your language of hijacking, which then was repeated over and over again. This is the Little Sisters’ stuff right? This is no different from taking a room in one of their homes and using it to give out condoms under Title X. This is a hijacking of the insurance companies. Let’s listen to Justice Breyer for a second, sort of trying to tease that out.

Stephen Breyer: All right. Do I have the other part right, which this is not hijacking because there is a federal regulation that says the infrastructure of the insurer’s contraceptive related plan belongs to the insurer, not to the person who buys the insurance? Am I correct?

Clement: Sure. And I think one of the things that all of the justices were trying to get at, is how does this really work. To what extent are the insurance plans the employer’s plans, and to what extent do they really belong to the insurance company? And I think one of the challenges for the government here, and one of the reasons that I didn’t think that they fought as hard on the substantial burden part of the case as I might have expected them to is because they make a big deal out of the coverage ultimately being seamless to the end user, to the worker, to the female worker who is trying to use the coverage.

They want it to be seamless. So they don’t want it to be a situation where, oh, I have my Blue Cross card for everything else, and then I have my Aetna card that’s just for the contraception. They want it to be seamless. And it’s kind of hard for the government to get seamless coverage to the end user and then turn around and say, oh, but if you’re the employer, you shouldn’t think of it as seamless. And you shouldn’t feel that you’re complicit.

And I think it’s a little hard for the government to have it both ways. And maybe that’s why they put more emphasis on the sort of compelling interest/least restrictive alternatives. It really needs to be seamless. And a little bit less on the details of the insurance plans. The other thing that makes this insurance plans discussions with the justices both kind of necessary but a little bit really in the weeds, to use your words, is not all of the employers in this case arrange for their insurance the same way.

Actually, relatively few of them use a commercial insurer. Most of them self-insure. But then they have this thing called the third party administrator, or TPA, which to the naked eye and I think to most employees, looks just like an insurer. In fact, some of the companies who ensure also work as TPAs. So honestly, I think a lot of people probably don’t even know whether their own employer uses an insurer or self-insures. But, the details end up mattering a little bit potentially for this case because especially if somebody self-insures, if an employer self-insures, then they have this third party administrator and everything the third party administrator is supposed to do is pursuant to the employers’ own plan.

And that’s what makes it seem kind of even more concretely that the government is kind of taken over the plan or hijacking the plan because they literally designate like a different TPA just for the contraceptive coverage, but it’s all part of the same plan. And that’s why as I said at the argument at one point, this would all be a lot easier for everybody to understand if this were less intangible and more like you said, just like: OK, we want to go into the Litter Sisters’ home and we want to set up shop where we basically put in a Title X clinic in your home.

We could debate whether that serves a compelling government interest in a narrowly tailored way. But I think everybody would understand, whoa, that’s a substantial burden.

Lithwick: Can you help me understand, because this was really sort of fraught and complicated. It’s really hard to get to this question of substantial burden when it gets really, really deeply enmeshed with the question of these are deeply felt beliefs, right. And it seemed to me that one of the things that was tricky, at least Justice Kennedy seemed to say, “I really feel today as though if these are deeply held beliefs, then I’m going to almost concede that this is a substantial burden.” Is that what was going on?

Clement: It’s hard to tell, but I do think that this case, the Hobby Lobby case, and even a little bit the case I alluded to involving the Muslim prisoner with the beard, it kind of forced the court to think hard about RFRA, the statute has been on the books for 23 years. But they didn’t really have that many cases. And this issue of the substantial burden, I think if you look at the court’s cases, others may disagree, but I think the fairest reading of them is that once you have a sincerely held religious belief, and the government is imposing massive fines to make you do something else, that is a substantial burden even if it depends on notions of complicity or things that are hard for other people to understand.

What that means in practice, I think, is that, you know, you are going to have to get to the next stages of the analysis in some of these cases. And I think sometimes the justices, and certainly saw that on the court today. I think some of the justices were worried that maybe they’d be getting too strict scrutiny all the time. But on the other hand, if you look at the court’s cases, some of which were decided before RFRA passed, but nonetheless I think everybody understands to be good law, they’re pretty deferential to what the religious believer is saying their belief is.

And I think the alternative makes everybody awfully nervous. Like, you’re being too much of a stickler on this, Sister Fill-in-the-Blank. I mean, and that’s the thing, too. Obviously, having this case and having the Little Sisters involved, I don’t think the government made a mistake when they didn’t question the sincerity of the Little Sisters’ religious beliefs.

There’re some of these cases that get decided in the prison context, where the sincerity actually does knock out a fair number of cases. If I belong to a church that says I get filet mignon every night, somebody is going to ask some pretty hard questions about sincerity.

Lithwick: I have to ask you one last question. If the early betting is right and this comes out 4–4 and we have law that one thing on the 8^th Circuit and something else on the 5^th Circuit, how much of a problem is that if we don’t seat someone for two years?

Clement: Well, I think that this might be a case where if it were to be decided 4–4 that the court might be inclined to carry it over for reargument. And the court has had to deal with that at various times in its history. Once it is carried over for reargument, there’s no magic as to when that reargument happens, I suppose.

But I think that not all of these cases—obviously yesterday the court took a case and just split 4–4 and just left the lower court opinion in place. I think that’s harder in this case than most of the other cases on the court’s docket, because not only are the circuits split, but you also have a bunch of injunctions in place, including injunctions from the court themselves. And it would really create a big mess. I mean, think about the Little Sisters. They actually have homes in a number of different cities across the country. And they have homes in like St. Louis that are in the 8^th Circuit, where the law is favorable, but they also have homes in D.C. where the law is unfavorable. It would put them in a very difficult position to basically have to choose different sides of the dilemma in different parts of the country.

Lithwick: Paul Clement, I want to thank you so much for joining us today on Amicus.

Clement: It’s great to be here.

Lithwick: Paul Clement is a partner at Bancroft PLLC.

He’s argued over 80 cases at the U.S. Supreme Court. And from 2005–08, served as the 43^rd solicitor general of the United States. Joining us now is Walter Dellinger who was acting solicitor general in the Clinton administration and is head of the Supreme Court practice at O’Melveny & Myers. And Walter also teaches law at Duke. Walter, I should also add, is a dear friend of Slate and I’m delighted to have him back on the podcast.

Walter Dellinger: Thank you.

Lithwick: So, we’ve just talked to Paul Clement, and can you give us a little bit of the answer to what was becoming a very complicated question at argument about how you even look at whether something is a burden on religious freedom. I mean, the solicitor general, let’s be clear, conceded in the papers and also at argument that, look, let’s concede that the Little Sisters have a deeply felt moral conviction that this is a sin.

Is that the beginning or the end of the conversation about whether this is a burden?

Dellinger: Well, it should be the beginning of the conversation. You could have a sincere belief, but whether or not there is a substantial burden, the solicitor general argued, is something where there has to be an objective limit. Otherwise, I could have a sincere belief that if anybody is allowed to have non-procreative sex, anybody in town, then it burdens my belief. And that might be a completely sincere belief on my part, that the police and the town need to stop everybody from having sex with birth control, or else I will burn in hell.

I could have a perfectly sincere belief, but the court has to draw the line somewhere whether you objectively could consider that a substantial burden.

Lithwick: So, before we move onto the second part, let’s listen to colloquy back and forth between Elena Kagan and Paul Clement, where she was trying to make the point that you just made, which is, look, you know, if the only question is does this burden my faith, then the plaintiff is always going to win. Let’s just listen.

Paul Clement: It’s a hypothetical.

Justice Elena Kagan: Well, it’s a hypothetical that’s directly implicated by your very theory of the case, because you’re theory of the case says that everything depends on a person coming in, saying this is against my religion, and that being the end all and the be all.

Clement: Well, I don’t think that’s our position.

Our position is that the sincerity of our religious beliefs, the government can question them. They’ve conceded to them here. There’s a legal analysis about the substantial burden, but the substantial burden analysis in this case is very clear because of these millions of dollars of penalties. The exact same penalties that were issued in Hobby Lobby. And the court said it was an easy case on substantial burden.

Kagan: You’re just not answering the question.

Clement: Well, I’m trying to, with all due respect, which is that brings you to, if you have everything else the same, that brings you to the second part of the RFRA analysis.

Lithwick: So, Walter, my question to you is why are we even having this conversation about the first prong of the test if there’s simply no way to gauge anymore whether this is a deeply held belief, or a substantial burden?

Dellinger: The reason that the government did not want to give up on the substantial burden argument, did not want to concede it, is that the government has an interest, like all governments do, in saying you can’t just assume that everything someone has a sincere religious belief about should constitute a substantial burden.

That was never the case. People sincerely believed that their religion was substantial burdened by having to pay taxes when those taxes go to support war, or contraception, or whatever they disagree with. But the government doesn’t want to have to show a compelling governmental interest every time someone has a sincere religious belief. So, the government did not want to give up on it. Or concede it.

Lithwick: So, Walter, we’ve talked about two of the three prongs of the RFRA test. One, is this a substantial burden? Two, is there a compelling interest? The third one is this least restrictive means, right. That even if it’s a substantial burden, if this is the least restrictive way to foster these interests, then it’s OK.

And were you as baffled as I was by some of the conservative justices on the court who were like, well, you know, we could do some other stuff. It will be just great awesome other stuff. Obama can do it. By that sort of tone of we don’t even have to fully engage with what that least restrictive means would look like.

Dellinger: Well, I thought, what came clear to me at the argument is that they did not understand women’s reproductive health. They did not understand Obamacare. They did not understand how health insurance works. And I’m not sure which of those was worse.

But the combination was bad, or in a sense mischaracterizing what the compelling interest is. Justice Alito and the Chief Justice Roberts keep wanting to suggest that the interest is in women having access to contraception, or some kind of contraception. There are two things wrong with that. First of all, not all contraception is created equal. Presidential candidate Ted Cruz says, “Well, when I was in college, for $0.50 you could buy a condom on any floor of the dorms. So, what’s the problem here?”

The problem is, first of all, let’s just note what the context is here. First of all, when the Affordable Care Act was passed, people thought it essential to accomplish two goals. And you have preventative health care available without cost and without hassle. That has major public health consequences. And secondly, that contraception should be a part of that. And that it should be available at no cost because as the Centers for Disease Control has said, more effective family planning is one of the 10 great public health accomplishments of the past century.

So this was a critical way of doing it. What is important is that there not be barriers to access to contraception. The most expensive methods of contraception are the most effective. By far.

Lithwick: And that’s the IUD, right?

Dellinger: IUDs and implants, long-acting reversible contraceptives are 45 times more effective than birth control pills. Ninety times more effective than condoms. People do not realize that. And they are very expensive.

They can cost up to a full month’s salary for a full-time minimum wage employee. So, that there are great public health advantages to having contraception available. It reduces the number of unwanted pregnancies, with the expenses that go with that. It reduces the number of abortions. It allows women to pursue their education and their employment opportunities, to realize their goals in life. And it’s just enormously important.

And what is critical, and that the health experts understood and the Supreme Court doesn’t, and that women I think more instinctively understand is it needs to be a seamless part of health care generally. It’s very much a part of women’s health equality. That their contraception be part of their health care. Now, Justice Alito was saying, “Well isn’t there another way for the court to accomplish, for the government to accomplish its goals? Why don’t they just allow women to go and purchase a separate contraceptive insurance policy?”

Now, there’s so many things wrong with that as an alternative, you don’t know where to begin. First of all, it’s an enormous barrier. And it may be one thing to expect a woman to go and separately purchase a policy, but we know as an empirical matter that will reduce the access to the most effective means of contraception with all of the ensuing consequences that causes. And, secondly, even if you were to purchase such a separate insurance policy, which of course really wouldn’t be insurance because you’d only be purchasing it if you were intending to use it.

So it makes no sense even as insurance. But even if you did, it wouldn’t be part of your basic health insurance coverage. When you go to a physician, when a woman goes to a physician for a wellness visit, you wouldn’t be able to discuss contraception because that would have to be done separately under a separate insurance policy. Very likely a different physician who is in a different physician provider network. So they could have no concept that a woman may go in not intending to avoid pregnancy, but it turns out she has a condition that makes pregnancy highly risky, and there may be an ensuing conversation about what method of contraception are you using.

And the physician’s advice that a much more effective method is necessary given the potential consequences. All of that needs to be seamlessly a part of the overall part of health care. Reproductive health is health.

Lithwick: Well you have said this, and so maybe let’s just play the tape, but one of the things that I think struck a lot of folks who understand how the ACA works was the drumbeat of well women can just jump on the exchanges and get a contraception-only plan on the exchange.

So here’s Justice Alito saying that.

Justice Alito: Suppose that it were possible for a woman who does not get contraceptive coverage under a grandfathered plan, or under a plan offered by a church, or under a plan offered by a religious nonprofit, to obtain a contraceptive-only policy free of charge on one of the exchanges. Why would that not be a less restrictive alternative?

Dellinger: It has precisely the problem. It’s not a less restrictive alternative, because has precisely the problem Congress was trying to overcome in the preventative services provision.

Alito: What type of a burden does that … ?

Lithwick: Walter, I think you said it implicitly, but maybe say it explicitly. There are no contraception-only plans …

Dellinger: No, and of course there wouldn’t be. A contraceptive-only plan is not insurance. Nobody would undertake to get such a plan unless they were undertaking to use contraception, in which case you’re not spreading a risk among a pool of people. It’s just a purchase plan with unnecessary administrative cost. Which completely avoids, and as I said, eliminates the really critically important goal of that this be a seamless part of women’s health care.

I think they don’t even understand there are other conditions for which women use what are seen as birth control devices other than preventing pregnancy. And is the employer going to have to inquire whether you’re using it while engaging in procreative sex, or are you using it to avoid contraception? It really moves the employer into the whole medical process the way the court wants to allow these employer objections.

You know, and I think at the end of the day something which was probably too strong a statement for any of the judges of the left side of the court to make, it seems more and more this is often about employers attempting to impose their religious beliefs on their students and employees whose own religious beliefs and moral beliefs are different.

Lithwick: And it’s funny, because in Hobby Lobby that argument about there are real harms on third parties who do not share your faith, that was not nearly as explicit as it was in this oral argument, right?

You had a lot of talk from the justices on the left of the court saying this harms people, this harms people who are not of your faith. What about their rights? And still I think you’re right to say that argument still feels like it doesn’t get a lot of traction.

Dellinger: It doesn’t. I think there is an inability to see that for many women the decision to engage in contraception is a profoundly moral decision. For many a religious decision. That they think it the morally appropriate thing to be doing with their lives. And almost no recognition that employers shouldn’t be able to simply impose their religious beliefs on those of women who are students and employees, or daughters and spouses of those who are employees.

Lithwick: So, Walter, I want to ask you this last question, because it’s something that I think about a lot in these cases.

You know, at Hobby Lobby, we said to ourselves, OK, well this stops here, right? It stops with closely-held, family-owned religious corporations. But, now, OK, now we’re seeing that it doesn’t stop there. It’s going to be now the religious nonprofits are also going to raise these objections. Does this end with the Little Sisters? Or, if the court finds a way to say yes, you know, they have a legitimate claim under RFRA. Where does this go next?

What are the implications of supporting this kind of RFRA claim?

Dellinger: You know, I don’t think it stops here. You know, when Hobby Lobby said we don’t want it to be part of our health care plan, the court said, all right, an alternative is to treat you, a commercial enterprise with objections, the way religious nonprofits are treated. And now the religious nonprofits are saying, well, the way you treat us isn’t constitutional either because we’re a step at a chain or a process.

And the court says, well, why can’t the government have a separate standalone contraceptive policy. Well, in order to qualify for that policy, the employer, you would have to file notice that the employer did not include contraception in your employment-based policy. Now, I have no doubt that there would be those who would challenge even the alternatives that the justices were mentioning at argument today.

]That’s the point at which it seems more and more that people with power, people that run the universities, that run the nonprofit organizations, that run major national enterprises like Hobby Lobby are thinking how can we prevent people from doing stuff that we don’t like them doing. And how can we make an attenuated claim of complicity so that we can prevent them from having access to birth control.

And as long as women have access to birth control, I think they’re going to be litigious trying to find a way to stop that.

Lithwick: Well, maybe that’s a good segue to the other thing we were going to talk about today, Walter, which is since President Obama tapped Merrick Garland to fill Justice Scalia’s vacant seat at the court. Amicus readers have been madly writing in and saying what do I think of this, Dahlia? So, what do you think of this, Walter?

What happened here? What was the play? And maybe more to the point, what’s going to happen? Because I think a lot of people who listen to this show want you to tell them whether there are going to be hearings this year.

Dellinger: Well, you know, I don’t know whether there are going to be hearings this year. I think that people prematurely just assume Mitch McConnell, the Senate majority leader, would have his way and say nothing is going to happen. Period.

You know, dead on arrival. But I think you take this one step at a time. All of the Republican members of the Senate Judiciary Committee said, and the majority leader said, “We’re not even going to have courtesy visits with the nominee.” Well, there are lots of courtesy visits going on. All of the democrats are going to be meeting with the nominee one on one. So, there are going to be 45 courtesy visits that are going to take place. And I think we’ll soon—we already know there will be more than 50 courtesy visits.

I think if the nominee is attacked at all personally, it will then seem unthinkable to deny a sitting judge the opportunity to respond at a hearing, the only place really where a sitting judge could respond. And a hearing to criticisms that are being made. He’s someone that you think would be the kind of person who would be nominated at a time where there is a Democratic president and a senate of the other party.

I mean, my goodness, Merrick Garland, I think it fair to say, I believe him to be one of the two or three most widely respected appellate judges in the United States. I think I would put Judge Wilkinson of the 4^th Circuit in that category. Perhaps Judge Diane Wood of the 7^th Circuit. And really when I was in the Justice Department with Merrick Garland, he was a young lawyer at the time, but the respect for his judgment, and for the fact that he approached every question with such a thoughtful manner, that he was such a great listener, you know, made him above reproach.

So that what’s really extraordinary and I think unprecedented is the notion before there was a nominee that no nominee would be considered by this president.

Lithwick: So, Walter, you know what I’m going to say next. I’m going to say two words. Biden rule. Right? I mean, the response you get from McConnell and that you get from Chuck Grassley, and they’ve got video to go with it. And Joe Biden has more hair, but he is in fact saying, right, no, not in an election year. We’re not going to consider …

Dellinger:    He didn’t know.

Lithwick: So, yeah, talk to me about.

Dellinger: I think the phrase in an election year is not new. So, in 1992, after the Bork/Kennedy hearings were over, at the end of the Supreme Court term, so the very last day of June, Biden gave a speech in which he said that were a vacancy to occur, so we’re talking about were a vacancy to occur, when resignations often do, in July, after the term of the court is over, were a vacancy to occur then, when we’re having July and August conventions, the two parties, candidates are running, he thought that one senator who had been judiciary, one senator thought that at that time you shouldn’t consider a nominee.

Though he later goes on to speak of considering a consensus moderate nominee, which sounds very much like Merrick Garland. But you have to remember that that was a very different time of year. You’re talking July and August when the presidential nominating conventions are being held and Congress is in recess for those conventions. Here, there was plenty of time after the vacancy occurred with the death of Justice Scalia. Plenty of time easily to have this process. The standard amount of time for considering a nominee would be well over long before the end of this term of the Supreme Court, at the end of June.

Long before a vacancy would have occurred in July. So, I think that is beside the point. So even if you are that one senator […],the fact of the matter is no one has ever before denied a process and a vote to a nominee in the last year of a president’s term. We’ve had 10 Supreme Court justices go through confirmation process in the last year of a president’s term. Three of them to be chief justice of the United States.

So, you know, there’s a lot of debate among the common law professors about whether there is a constitutional duty of the Senate to act. You know, putting aside whether anybody could ever bring a lawsuit to compel the president or the nominee to compel the senate to act, I think it fair to say that there’s a constitutional responsibility for the senate to undertake its job.

And lots of people have been parsing the cause of the constitution that says the president shall nominate and by and with the advice and consent of the senate shall appoint justices of the Supreme Court. Well, you know, there’s another relevant provision of the constitution. And it’s in Article II. And it says that the executive power shall be vested in a president who shall serve for a term of four years. And the extraordinary unprecedented, never before in our history statement that with a full year to go, no nomination of this president would be considered is to deny the legitimacy of this president’s four-year term.

Lithwick: Walter Dellinger was acting solicitor general in the Clinton administration. He’s head of the Supreme Court appellate practice at O’Melveny & Myers. And he teaches at Duke Law School. Walter, as ever, thank you for joining us on Amicus.

Dellinger: Thank you, Dahlia, take care.

Lithwick: And that is going to do it for today’s episode of Amicus. As always, we are eager to hear your thoughts. You can send them to us at amicus@slate.com. We really love and appreciate your letters. We also love those reviews you leave on our iTunes page. And those reviews are a huge help in making our show more visible to the folks who don’t already know about it. So, if you haven’t already left a review of your own, please search Amicus in the iTunes store and click the ratings and review tab. And thank you.

Remember that if you’ve missed any of our past shows, you can always listen to all of them on our show page. And you’ll find that at Amicus at Slate.com. And, if you’re a Slate Plus member, you can also find transcripts of our shows there, but they do take a few days to post. We also want to let you know that a few of our fellow Slate podcasts are gearing up for exciting live shows this spring. In April alone, you can see the Culture Gabfest live in Manhattan, Hang Up and Listen in D.C., and the Political Gabfest in Atlanta. For more information on these shows and others visit Slate.com/live.

Thanks as always to the Virginia Foundation for the Humanities where our show is taped. Thank you also to Oyez which provided this week’s excerpts from the Supreme Court’s public sessions. Oyez is a free law project at the Chicago Kent College of Law, part of the Illinois Institute of Technology. You’ll find it at Oyez.org. Our producer is Tony Field. Our executive producer is Steve Lickteig. And Andy Bowers is the chief content officer of Panoply. Special thanks go out this week to Mike Vuolo and Dan Bloom who helped out with the engineering. Amicus is part of the Panoply network. Check out our entire roster of podcast at iTunes.com/Panoply. I’m Dahlia Lithwick and we thank you for bearing with us this month through a longer than usual pause between podcasts.

And as a token of our thanks, we will be back with you next week with another edition of Amicus.