Dahlia Lithwick discusses the impact of an eight-justice Supreme Court with Garrett Epps and Jonathan Adler.

Is the Short-Staffed Supreme Court Hobbling to the Finish Line? 

Is the Short-Staffed Supreme Court Hobbling to the Finish Line? 

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June 8 2016 10:03 AM

Is the Current Supreme Court a Bird With a Broken Wing?

Yes—but maybe its handicap makes it stronger. 

Members of the US Supreme Court pose for a group photograph at the Supreme Court building on September 29, 2009 in Washington, DC.
The Supreme Court in a post-Scalia era.

Photo illustration by Slate. Photo by Mark Wilson/Getty Images.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 45, in which Slate’s Dahlia Lithwick discusses the impact of an eight-justice court.

Last month, Supreme Court Justice Stephen Breyer said that the court hadn’t been diminished by the absence of a ninth justice, only a few months after Justice Antonin Scalia’s death. On this episode, we consider the evidence for that claim with the Atlantic’s Garrett Epps. In the second half of the episode, we’re joined by legal scholar Jonathan Adler, who weighs in on Donald Trump’s shortlist of potential Supreme Court nominees.

To learn more about Amicus, click here.

Dahlia Lithwick: Welcome to Amicus, Slate’s Supreme Court podcast. I’m Dahlia Lithwick. I cover the court for Slate. And I’m holding my breath, just like a whole lot of you, as this month of June ushers in a whole lot of something, or a whole lot of nothing, or at least the end of a term that is now just limping toward the finish line.

This week the Supreme Court only had decisions one day, accepted no new cases for next term, but handed down some important decisions in several cases, including Foster v. Chapman. That was an important jury selection case that we covered on the podcast last fall. This was the case where prosecutors were pretty much on record literally highlighting the names of African Americans in the jury pool, in green highlighters so they could be eliminated from that pool in advance. The court ruled by a 7-1 margin that this move had indeed been unconstitutional.

The week before, the court punted on another big, big ticket case: Zubik v. Burwell. That case centered on the Obamacare contraception mandate. There the justices more or less just instructed the parties and the lower courts to, well, work it out amongst themselves. There’s also been a clutch of 4-4 ties, but for the most part what we’re seeing this term is the court disposing of what might have been big ticket cases on either technical grounds standing, just making them go away in the hopes that someday their prince will come and a fully staffed Supreme Court will rise again to decide issues in definitive ways.

The other thing we saw last week was Donald Trump’s release of his list of potential Supreme Court nominees. And later on in the show we’re going to hear from a Supreme Court watcher who thinks that maybe we shouldn’t take that all that seriously.

But first, we turn to Garrett Epps. He covers the Supreme Court for the Atlantic. He teaches law at the University of Baltimore. And has been a guest on the show before. So, Garrett, welcome back to Amicus.

Garrett Epps: Great to be here, Dahlia.

Lithwick: Garrett, did I say anything in that introduction that doesn’t chime with your experience? Does it look like it’s just trying to get to the end at the Supreme Court?

Epps: I think the Court is doing everything it can do short of actually ordering reargument to order reargument in all these cases. They don’t want to order reargument for whatever reason, or they aren’t five votes to say this is reargument. So they come up with other ways to say what they’re doing. Like in Zubik where they say, you know, “Mommy’s got a headache, kids. You guys go work it out and then I’ll come out later.”

Lithwick: Talk a little bit about Zubik for a minute for listeners who don’t know. That’s the Little Sisters case, the contraception mandate case. So, that came down last week. Talk about that for a minute.

Epps: Well, in that case the religious non-profits—these are not churches, but they’re groups that run social service agencies, hospitals, etc.—were offered the option of not paying for contraceptive coverage for their employees if they filled out a form that said, “Dear Government, we don’t want to offer contraceptive coverage to our employees. You do it.” And so the government was going to do it at no cost to them through the same insurance plan the employees already got. The employer said, “Oh no. Even to fill out the form is such a burden on our religious beliefs that we can’t do that. We must be totally exempt from this requirement. We don’t want to have a system where the employees get their contraceptive coverage through our insurance program. You can pass some other program, or women can go out and buy it on their own, but we don’t want to be involved.”

Lithwick: We don’t want to be “hijacked” is what they said.

Epps: Hijacked. Right. Yes. They’re stealing our policies. Actually one of their lawyers told the court that this was exactly the same thing as breaking down the door of the Little Sisters’ convent and forcing them to have a Title-10 family planning clinic there in their living room.

But the government said, “No, the point of the ACA is that uniform coverage will be delivered what’s called seamlessly.” That is, there won’t be some separate but equal women’s policy. Studies show that we get, you know, people have better success rates, there is more use of contraception, better health outcomes if they can just get it through their regular insurance like any other medical need. Which is what the employers didn’t want. The government won below in seven cases, which all came to the court, and the justices seemed very troubled, or some of them seemed very troubled about the idea that this was trampling on the rights of the religious employers. But in the end they finally just said, well, here’s what we’re going to do: We’re going to vacate all the decisions and send it down below because we’ve concluded from reading your supplemental briefs that there’s a perfectly good way to compromise this. Little Sisters, you say you don’t mind if it’s seamless, which they hadn’t said. They had said that they did mind. And government, you say you don’t mind if they fill out a different form, which the government was, you know, sure, whatever. And so you guys work that out. But they didn’t order it; they sent it down to the lower courts. I think, obviously, hoping that it’ll be two years before this issue comes up, and I think nobody really thinks the court will have a vacancy for two years from now. A year from now it probably will still have one.

Lithwick: So, one of the things that was fascinating, Garrett, in my view was that within moments of Zubik coming down, both sides had claimed victory, right? I mean, we had the Little Sisters and their lawyers saying, “Hey, look, we won this. The court recognizes that it’s a burden and that we can’t be fined. We win.”And the Obama Administration, I think, saying, “Look, we got most of what we want. And this is going to go back to a bunch of courts where we won in the first place, with the exception of the 8th Circuit, so we won.” Does it seem to be the very definition of a punt that both sides think they won the case?

Epps: Yes. I did think that some of the rhetoric coming out of the Little Sisters’ camp was a bit desperate, because, you know, it’s very important to—the advocacy groups have to send the signal that our crusade for religious liberty is bearing tremendous fruit. But, you know, I mean, I think the fact of the matter is there is an aspect in which they won, and that is the government won seven times below and the court vacated all seven victories.

Lithwick: Now, Garrett, you weighed in on a New York Times editorial forum last week, sort of answering this larger question, “Is the court diminished?” Is the court in fact hobbled, or is the court just extra awesome and agreeing on a lot of stuff?

So, I want you to tell me both sides of that argument, if you would. Certainly, you have made the argument, and I have made the argument that the court is just not really full steam ahead. But there are people who are saying this is a fantastic outcome. Look, we’ve got compromise and consensus. So, what’s going on here? Is this just the best court ever where there’s no conflict anymore?

Epps: Well, I personally think the job of the Supreme Court is a lawmaking court. And unless the court actually is able to speak on these issues, they just keep coming back, and coming back. And I can’t think of an issue—a major issue—that is being decided by this court this term that isn’t going to just come right back. Because it’s been decided in some form that takes account of the missing vote, and the possibility of an evenly divided court.

Now, it is obviously true that we have a large number of cases coming down that are being decided 6-2 or 7-1. And I think that is a separate phenomenon that the Chief Justice and these justices who actually do seem to like each other just fine have been working to try to reduce the number of what I used to call “spaghetti opinions,” where you throw six concurring opinions against the wall and see if anybody reads any of them.

But, no, I think that what looks like consensus and compromise is really just sort of desperate attempts to delay and disguise the fact, and deny. Because I think the justices themselves may be in denial that they can’t do their jobs. It’s like watching a bird with a broken wing. The bird doesn’t understand. I can fly. I’m a bird. Why can’t I fly? But it can’t, because it is not a complete court. And the result is going to be that a number of very significant issues are going to be on hold for a year, two years, three years. Classic example being the First Amendment status of public employee unions, which the court was teed up to settle after a number of years. And which went back down on a 4-4 tie and is going to come back very soon. As soon as we know who the next justice is.

Lithwick: So, speaking of flightless birds and denial, I want to play you a little bit of audio from last week’s Burton Awards, which featured a discussion between Bill Press and Justice Stephen Breyer. And the question was the same one I just posed to you: Is the Court in any way diminished or made less relevant by having eight justices instead of nine? Let’s have a listen:

Bill Press: We are now at a point where there are eight members of the court only, and it looks like it may be that way for a while. Adam Liptak from the New York Times, who was here earlier, and I know you know well, said this fact does not divide the court so much as it diminishes the court. Do you agree?

Justice Stephen Breyer: No.

Press: Doesn’t diminish nor divide? Or?

Justice Stephen Breyer: No, I mean there are a few cases where we’d be 4-4. You know, there are courts in the world that have eight members. The United States Supreme Court had ten members for quite a period of years—started out, I think, with six. So, I looked up actually how many cases—I was curious—so, I went back to two years ago where I could get the numbers out of an article somewhere. We hear about 70 to 80 cases I guess during a year—70, 75, and how many cases would Nino’s vote—see, we’re unanimous 50 percent of the time, 20 percent of the time we’re 5-4, and about half of those are sort of random, not what the press would call the usual suspects. And so I said how many cases are there that Nino’s vote would have made a difference? I think there were four or five.

Press: Only?

Justice Stephen Breyer: Well, that may or may not be true. We may divide 4-4 in four or five cases. We may not. I mean, if you believe that the Supreme Court should decide all the major issues for the country, I guess you’d like them all decided. I happen not to believe that, and lots of doctrine in the Supreme Court, lots of constitutional doctrine, is written and has been applied in such ways as to keep the court out of matters that are political, too political, recognizing—I mean, all the Constitution is is it’s a series of limits.

I mean, we decide what the other branches when they’ve gone beyond the limits. Like Sergeant Preston of the Yukon. You know, he’s up at the frontier. It’s very cold and miserable. Is abortion outside the limit or inside the limit? Well, hard. But that’s still a limit. It’s a frontier. And within that broad area marked out by the frontiers, people are supposed to resolve their differences and decide how they want to run their cities, towns, and counties through a democratic process.

Lithwick: OK, Garrett, so there’s a resounding vote for not being a law-deciding court. That is a resounding vote for doing as little as possible, and certainly not being political. It does raise the question why we have a court at all. And I think it also, for me, and I wrote a little bit about this last week, suggests that there is no way that the justices are going to say we are in a hostage situation. They can’t institutionally protect the institution while saying, “Help me! We need another justice. We are stuck.” And so it’s going to come down to like Elena Kagan hiding under a barstool somewhere, writing one-person opinions, and insisting that everything is fine, right?

Epps: Well, I think if you look at the first letter of each paragraph of some of the per curiams, I think things like, “Send help now. Help.” You know, honestly, what do we expect them to say? You know, they are a little bit like one of these old melodramas where the settlers in the wilderness are surrounded, completely surrounded by wolves, because on the one hand they’ve got the Senate Republican leadership saying, “You are partisans. You work for us. And we are going to put you on the ballot so that the next justice will be elected, just like any other politician.” And then on the other side, we have the two Democratic candidates sort of competing about who will have which litmus test, and which cases their justices will agree to overrule before they can be appointed. I don’t think we’ve ever been in a position like this in terms of the ongoing dialogue about the court during an election year. I can’t think of an historical parallel.

And so the justices are all there, kind of trapped together, right? And looking around and saying, you know, there is not a single person out there who is willing to give us as an institution the respect that we think we deserve, and the independence that we think is essential. And so they can’t admit to any weakness. As I say, they keep trying to flap that wing. I’m kind of moved by it. It’s a little—it’s kind of gallant.

Lithwick: It is. It is. You can sort of feel them slowly starving for lack of oxygen. Doing it in their black robes, right? “We’re OK. Don’t look at us.”

 But I want to point out one other paradox, because I think what’s fascinating is, you know, this host of 7-1’s, and the 4-4’s that provide inconclusive guidance, all of these decisions in fact have the effect of taking the court off the ballot in a strange way.

I mean, think about Hobby Lobby was decided two years ago as opposed to Zubik last week, right. I mean, people are burning their bras. They’re rioting in the streets. You know, “Oh my god, this bunch of guys are telling women what to do with their bodies.” The court after Obergefell, right, huge election issue, except it wasn’t an election year. This year the court is weirdly making itself invisible just as the Senate is trying to make it visible. And that’s, to me, the most startling paradox of it all.

Epps: Yeah. I doubt that John Roberts is very distressed about that either. I mean, as you know, if you go in the building, the court right now is like a balloon that about half the air has gone out of. Because there is this sense that we’re marking time. What we do doesn’t matter all that much. The real action is somewhere else. And if you’re John Roberts, that has to be kind of a decent feeling, after all of the terms that he has slogged through in which the entire western world was focused on him and Justice Kennedy.

Lithwick: Right. This is one of those few times where Stephen Breyer and John Roberts are very, very adamant in agreement that there is nothing to see here, because the court is not a political entity. “We decide most cases unanimously.” [Fake coughs] Move along, right? That is the party line.

Epps: I know. And like Justice Breyer’s argument is, “I don’t see what the big deal. It’s only the really important cases that this matters in.” I suppose that’s true. I’m not sure it proves as much as he thinks it does, but.

Lithwick: I want to ask you one last question, which is last week the Republican nominee, now officially the Republican nominee for President, Donald Trump, unloosed a list of judges upon us. This was something he promised to do in March. He did it in May. And it’s a pretty interesting list. And I think it was meant to assuage the worries of hardcore Republicans at the Heritage Foundation and in the think tanks. A way of saying, “Hey look, I’m going to put your people on the court.” What are your initial thoughts about the list of Trump’s judges?

Epps: Well, I mean, a couple of striking things about it that everybody has mentioned is that we’re not looking at judges from the D.C. Circuit. We’re not looking at judges from even so much from the Northeast. We are looking at judges on the quite far right of the federal judicial spectrum.

We’re looking at Clarence Thomas clerks, there’s a Scalia clerk, and so forth. Also, some of the really bright lights of the conservative movement are not there, because they didn’t toe the line in the ACA suits. Judge Cavanaugh of the D.C. Circuit, Judge Sutton of the 6th Circuit—these people are probably at least for signaling purposes not someone that Trump wants to get involved in.

I also felt kind of this awful sense of pain for these judges, because it reminded me of—one of my children went to a school where you had an award every month in the class that you got to be “Citizen of the Month,” and that meant that 23 kids weren’t Citizen of the Month. You know, a maximum of one of these people will ever be named to the Supreme Court, and the others have to spend the rest of their lives being the people that didn’t make Donald Trump’s cut.

It didn’t seem very friendly. I’m not sure that they were thrilled when people called them up and say, “Hey, guess what? You’re totally one of Trump’s picks for the Supreme Court.” But the other thing is you’ve got the Senate leadership saying, “You are partisans. We are holding your seat as part of an electoral strategy.” You’ve got the Democrats saying, “We’ve got our litmus test.” And now you’ve got Trump saying, “Sure, I’ll put judges on the ballot. Look, these guys are going to run with me.” And I think if you are a sitting Supreme Court justice, you must feel pretty beleaguered.

Lithwick: Yeah. I mean, I think it really does worry a lot of people who think that the court isn’t comprised of political actors, and that judges who are named to the Supreme Court shouldn’t have their work scrutinized in advance of being nominated. That all these judges now really feel like, Hey, it’s an audition. And they are going to spend their time trying to write to the kind of president that Trump wants to be.

So I think it does in a weird way, and I guess this is, you know, welcome to my nervous breakdown, and yours, but in a very strange way it’s a way of making this completely invisible court that is diminished to the point of almost disappearing this June, visible in the most toxic ways, right?

Epps: Right. Anything that actually that we like about the court is just out of sight. Nobody wants to talk about that. Statutory construction? Boring. Right? But instead, we’re going to just talk about outcomes. We’re going to talk about 5-4, 5-4. And we’re going to talk about vote, vote, vote, meaning the election.

Lithwick: Right. And I guess we do need to end on the note, because it’s funny, that last week Orrin Hatch before his meeting with Obama’s nominee, Merrick Garland, released an op-ed saying how disappointing the meeting had been, which I’m sure like in the time-space continuum made perfect sense and is in keeping with the entire sensibility of this court replacement. But, wow, Sen. Hatch. Wait to hate on him after you’ve had your meeting, right?

Epps: If I were Garland, I would release a statement saying, before the meeting, saying, “I’ve just met with Senator Hatch and he’s promised to support me.” I mean, why not? What’s he got to lose?

Lithwick: Garrett Epps covers the Supreme Court for the Atlantic, where he sits next to me most arguments. He teaches law at the University of Baltimore.

Garrett, thank you so much for joining us. I’m sure we’ll have you back toward the end of the term.

Epps: Great. Thanks.

Lithwick: Joining us now is Jonathan Adler, who teaches environmental, regulatory, and constitutional law at Case Western Reserve University School of Law. He also contributes to the National Review Online and to the Volokh Conspiracy. Jonathan Adler, welcome back to Amicus.

Jonathan Adler: Good to be here.

Lithwick: So, I want to start I think where I just left off with professor Garrett Epps, which is with Donald Trump’s list of judges that he released last week, which are presumably most of—I think he hasn’t committed to it—the kinds of people he would want to pick if he had a Supreme Court vacancy to fill. Now, you’ve written about this a little bit at the NRO, but can you talk a little bit about what that list signaled to you?

Adler:  Sure. Well, I think it was a couple things. I mean, one issue that matters to a lot of conservatives, and certainly to a decent share of the conservative intelligentsia is the Supreme Court and lower courts. And I think that the list was intended to be a signal to those folks that the sorts of people he would appoint to the Supreme Court and to lower courts are the sorts of folks that conservative activists tend to want to be on the court.

So, whatever else he may say, whatever else he may do, he could be trusted on this issue. The one wrinkle on that, of course, is that about 24 hours after he released the list he said, “Well, there might be other names, too.” And he might add to the list. And he’s not committing to just choosing from among these people. So, if one is inclined to take Donald Trump’s campaign commitments seriously, then this list sends that sort of signal.

And I should just note I’m one of those that is skeptical of him. But I think that the point of the list was to say, “Hey, you’ll get the same sort of people from me that you might have gotten from one of the other candidates in the primaries who made judicial nominations a big issue.”

Lithwick: And does it allay or inflame the skepticism that he left out some of the really, I think you might say, intelligentsia or establishment names that we would have expected to see on a list that was signaling I’m your guy, don’t worry, right?

He leaves out Brett Cavanaugh, well-respected judge. He leaves out Paul Clement, one of the really leading lights in the conservative legal movement. So, is that signaling, You have nothing to worry from me, but boy, I hate the establishment? How does that make you feel?

Adler: I do think that was part of the signal. Two interesting things about the list: One is there’s no one from D.C., and that’s interesting because usually when we talk about Supreme Court short lists for anybody, those lists are heavily dominated by people that are from the Washington, D.C., legal community. So I thought that was conspicuous. And then whether deliberately or not, you don’t see a lot of Ivy League people. You know, we’ve talked a lot about how the current court is so heavily dominated by—

Lithwick: Harvard/Yale. Harvard/Yale. Harvard/Yale.

Adler: Right. And there’s I think one Yale grad on the list. No Harvard grads on the list. So, I think those two things might have been deliberate. I think that is more likely to explain the absence of names like Brett Cavanaugh than anything else. But, you know, this is Donald Trump, so I’m not entirely sure it was that thought out.

Lithwick: How much do you worry? I have to say, just as somebody who thinks about the Constitution, one of the things that worries me a little is that he sometimes invokes the court to talk about, you know, sort of a way to talk about issues, right?

So it’s not unusual to shorthand, “I’m going to put up nominees who are going to reverse Roe.” We’ve certainly heard that before. But one of the ones that does worry me is this assault on the press and press freedoms, and the idea that I’m going to seat people who are going to do away with the First Amendment for all intents and purposes. Is that something you take seriously as opposed to other pledges? Or is that just him kind, you know, he’s annoyed at the press because they were mean to his wife today? It’s not a deep core principle either?

Adler: A bit of both. My co-blogger, Orin Kerr, pointed this out. You know, at some point, if he were elected president, Donald Trump would realize that much of what he wants to do as president would end up in court, and therefore nominating judges that are more likely to say yes to him is in his interest. And this would not be new. We know of many examples in American history where judicial nominations were influenced by a president’s concern about challenges to certain exercises of executive power. Certainly, that was one of Franklin Roosevelt’s concerns. Certainly, I think, that was one of George W. Bush’s concerns in the way he evaluated potential nominees. So, I would think that it would affect Donald Trump’s views. And given that, I don’t think he has particularly well-formed or principled views of legal issues more broadly, I think it would have an outsized influence on the things he thinks about.

Lithwick: Talk for a minute about the impact on the court as an institution, that it’s become so fashionable as a presidential candidate to declaim on the kind of people you’re going to put up.

Trump’s list is one iteration of that. Another is Hillary Clinton saying I’m putting up someone who’s reversing Citizens United. Or Bernie Sanders has made the same pledge. Does it matter, or is this just talk that people forget? I mean, does it affect how we think about the court? And does it affect the kinds of nominees who then come up? Do they feel bound to keep the promises made by the person who names them as a nominee?

Adler: Well, that’s certainly a risk. I mean, so historically presidents and presidential candidates would speak in a kind of code about the judges they would nominate. So, Nixon talked about law and order judges. And other Republican nominees might talk about strict constructionists, or originalists, or judicial restraint and so on. And we all understood what they were trying to indicate by that. But there generally was a reluctance to talk about nominees and their particular views of a particular case, even if that’s what was always underneath the surface.

I think that speaking in code in that way actually served a purpose. And one of the purposes it served was to help us remember that there’s a difference between picking a judge based on their judicial philosophy or their broad outlook, and picking a judge based on a hope for a vote in a specific case.

And I think that in so far as we’ve had candidates on both sides of the aisle get away from that, and talk about judicial nominees as votes for specific outcomes, I do think it diminishes the court. And I do think it unduly politicizes the judiciary. I mean, not that I think the judiciary is completely apolitical, but I do think that there are various norms and conventions that help us keep a little bit of separation. And I think if that’s the way presidents are going to talk about nominees, it’s hard to argue that the Senate shouldn’t likewise approach nominees that way and force nominees to give more detailed answers about specific cases.

And then once you go down that road, you do raise serious questions about how judges or justices can fairly hear cases that they have more or less committed or been committed to deciding a particular way.

Lithwick: But isn’t this exactly what the Senate is now doing? I mean, it seems to me that it’s not just presidential candidates, right? I mean, Senate Republicans are doing exactly what you’re describing, and so pernicious, which is saying we’re not going to give a hearing to a nominee unless it’s a president we like, and unless unlike Merrick Garland he has views that we like on guns.

Isn’t that a second entity coming forward in saying this a purely political office? Let’s just rip off the fabrication and call it what it is. This is a third branch of government that is totally ideological. Is there more going on?

Adler: Well, I think the Senate is doing that. I think we’ve been on a downward spiral, or traveling down a downward spiral on judicial nominations for about 30 years. And every time you think it can’t get worse, it does.

So, you know, certainly I think that Senate Republicans are doing plenty to feed these sorts of concerns. And I think it’s very disturbing. And I think it does harm the court. I mean, for a long time what we had seen is the president would nominate somebody. The president would talk in broad terms about that nominee’s philosophy. The person would go before the Senate. The senators would all ask specific questions about specific cases or specific issues. The nominee would dance around those questions. Senators of the same party as the nominee would pronounce that they were satisfied with the answers. Senators of the other party would say the answers were insufficient. And we’d move on. I do think we’ve taken a step beyond on that. And I think that that’s a negative step.

I also think that if we put judicial nominees through a very contentious and awful process, we risk affecting the type of jurists they become. There’s no question that Robert Bork, post his confirmation hearing and his defeat, was a different person. If you go back and read his academic writing from the 1970s and 1980s, it’s a very different voice than the stuff he wrote after he’d left the bench, you know, while nursing his wounds from what had been a very awful nomination battle. That’s not something we want to do to people that are going to be sitting on the bench.

Lithwick: I suspect that you could say the same thing of Clarence Thomas and maybe even Samuel Alito. No? That even having been confirmed, those were bruising hearings that were deeply, deeply disturbing, that did inflect on the way they think about being judges. Am I wrong?

Adler: It’s certainly possible. I mean, it’s hard to know for sure. I do know that in Justice Thomas’s case, he is reported to have made a comment shortly after he was confirmed that his opponents had taken the first 43 years of his life, and so he was going to serve on the court for at least 43 years kind of to get back at—or to even the score, so to speak.

So, assuming that that comment was accurately reported, you know, it’s tremendously unfortunate. The people that we have on the court are all very smart, I think, very thoughtful folks. Whether we like their judicial philosophies or not, we want them to think about the cases that are before them unburdened or uninfluenced by petty grudges that resulted from activist groups going after them or caricaturing them.

So that’s a very real risk. And, you know, I also think that over time the types of people that can be confirmed, that range will narrow and I think it will narrow in some ways that should be very disturbing. So, one example is I think at the rate we’re going, it will be a long time before anyone with any significant criminal defense history is confirmed to the Supreme Court, and possibly to another appellate court. And we already have a Supreme Court that doesn’t have that experience on it.

We’re not going to get it because if you’d been a successful criminal defense attorney and you’ve done that for any decent portion of your career, it’s inevitable you’ve represented some awful folks. And if you were good at your job, it’s inevitable that some really horrible person was declared innocent, or got a mistrial, or got a reduced sentence. And that is so easy to make fodder for television ads, radio ads, and so on.

I mean, we certainly saw things written about Jane Kelly, who is an appellate court judge, who was rumored to be on the President’s shortlist for the Scalia vacancy, who was by all accounts not only very well-qualified, and very smart, but had been a defense attorney. And she represented some not nice folks. And people were drudging that out. And if this is the sort of confirmation process we’re going to have, people with that sort of experience aren’t going to get confirmed because it’s hard to kind of sit down and explain to a lay audience on talk radio or whatever, you know, the fact that they had this client doesn’t mean that they’re pro-child molestation, or that they’re pro-murderer, or whatever else. And I think that’s very unfortunate. Because that’s the sort of experience that I think we’re already lacking on the judiciary. And we’re going to continue to lack it.

Lithwick: Yeah. At the risk of completely agreeing with you, again, it’s what creates this funnel where the only way you can ever get confirmed to the court is if you come up through the executive branch and hopefully don’t work on anything controversial. And it really does obviate the possibility of all sorts of fascinating careers and experience.

I think I want to just end, Jonathan, by asking you the question that’s a little bit buzzing around after Zubik, the Little Sisters case. After some of the decisions this week that tended to skew to the left. And that is: Is the current Supreme Court, in its eight justice-configuration, liberal?

Adler: I mean, look, I tend to think that the court is probably not as liberal as some are saying now, and several years ago when everyone was saying how terribly right-wing the court was, I had said it wasn’t as conservative as people thought then either.

I think, you know, any given term only represents a very small subset of the range of things that the court hears, and that matter. And since no term is a representative sample, it’s easy to read too much into a handful of cases. So, I don’t know if I’d say the court is liberal.

I do think it’s a court that is reaching for compromise. I do think it’s a court that is becoming more minimalist. I think in some interesting ways, the court is in some respects becoming more the court that the chief wants in its eight justice-configuration. That is to say, I think the chief’s preference, while the chief is certainly a conservative justice, he does have a preference for narrower holdings, smaller decisions, fewer front pages of the newspaper.

Lithwick: Consensus.

Adler: Consensus.

Lithwick: More unanimity.

Adler: And I do think the eight-member court is creating more opportunities for that than we might have thought.

And the fact that we haven’t gotten announcements from the court that there was a 4-4 split on some of the outstanding cases makes me think that we’re going to get real decisions in those cases. Now, they may be very narrow decisions. The abortion case, it might be a very narrow, yes, this is an undue burden, but saying nothing really in detail about how to understand that test any more than has been said before. Something like that might happen with immigration as well. But, I think we will get decisions. I would not be surprised to see, you know, six-justice opinions in some of those cases. And maybe that will help diminish the political fights that we get over nominations, but I’ve learned to stop being optimistic about that. So—

Lithwick: So, if your tagline for the 2015 term, which is going to end next month, could be something like, “Diminished, but possibly in a good way,” that that’s not the worst possible thing that could happen is what you’re saying?

Adler: You know, there are aspects of the chief justice’s minimalism that I like and aspects of it that I don’t. But I do think that he would argue, I think, that a more minimalist court isn’t diminished because the court actually can be seen as less political and as more of a court, and more of a neutral institution, the more it is able to forge consensus and to issue narrower rulings.

This is the way I’ve understood his umpire analogy. It wasn’t about balls and strikes. It was about that if we’re paying attention to the umpire, we’re missing the game, and things aren’t going the way we want them to. And so I think he would argue that the more the court can be issuing narrower rulings with greater consensus, the more it can be the umpire that kind of recedes into the background. And the more that big weighty questions can be dealt with by the political process. I’m not sure he’s right that that’s the ultimate outcome, but I do think that’s the instinct that drives him. And I think it’s one that we, you know, at least this term this far, we’re seeing that instinct play out.

Lithwick: Jonathan Adler teaches law at Case Western Reserve University School of Law. He contributes regularly to the National Review Online, to the Volokh Conspiracy, and he is editing a book that will come out this July, Oxford University Press, entitled Business and the Roberts Court.

Thank you so very much for joining us this week.

Adler: My pleasure.

Lithwick: Well, that’s going to do it for today’s episode of Amicus, but we are as ever eager to hear your thoughts. You can always email us at Amicus@Slate.com and we really love and appreciate your letters. Thank you. Remember also that if you missed any of our past episodes, you can always find all of them on our show page, that’s Slate.com/Amicus. And if you’re a Slate Plus member, you’re going to find transcripts there.

If you’re not, you can always sign up for a free Slate Plus trial membership at Slate.com/AmicusPlus. Thank you to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field. Steve Lickteig is our executive producer. The chief content officer of Panoply is Andy Bowers. Amicus is part of the Panoply Network. Check out our entire roster of podcasts at iTunes.com/Panoply.

Next couple of weeks are going to be rocking at the Supreme Court, and we will be back with you in two weeks to talk all about it on another episode of Amicus.