Dahlia Lithwick discusses Fisher 2, Whole Woman’s Health v. Hellerstedt, and the 2015 Supreme Court term.

Maybe Eight Isn’t So Bad? The Supreme Court’s Surprising, Tumultuous Term.

Maybe Eight Isn’t So Bad? The Supreme Court’s Surprising, Tumultuous Term.

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July 8 2016 12:07 PM
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The Supreme Court’s Surprising, Tumultuous Term

Read what Slate’s court watchers had to say about this session’s decisions on abortion, immigration, affirmative action, and more.

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We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is Part 2 of the transcript for Episode 48, in which Slate’s Dahlia Lithwick recaps the 2015 Supreme Court term with Mark Joseph Stern. Click here to read Part 1.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

This transcript has been edited for length and clarity and may differ slightly from the podcast. To learn more about Amicus, click here.

Dahlia Lithwick: Mark, let’s work through this term. It’s been so crazy. It started off as the conservatives were going to have their revenge. And then it turned into the term where Justice Scalia died. Then it turned into the term where Merrick Garland, we all talked about him and nothing happened. And then it turned into, you know, this huge win for progressives in the last week.

So, what’s our unifying theory in this conversation of what the 2015 court is going to be remembered for?

Mark Joseph Stern: I mean, maybe that Kennedy is still the freaking king of the court, and thus the country after all of this. I mean, when Scalia died the immediate reaction was, you know, first there was either sadness or jubilation depending on your political bent. And then there was the sense like, oh, an era is over. No longer will we all be playing the Kennedy whisperer, trying to figure out what he’s going to say, what he’s going to do, hanging on his every word at arguments. Pouring over every brief to see which one says “dignity” the most because that’s the one that wins the case.

We all thought that era was over. Turns out, we are still very much living in it. And I think the last week of this term especially reminded us that he is the man in control. He is the man in charge. The court is still really divided, it’s just divided four liberals and three hardcore conservatives. And then there’s Kennedy still sitting in the middle, figuring out which way the country is going to go.

Lithwick: Right. And being the king of a four–four court is kind of even more awesome than being a king of a five–four court, right?

Stern: Yeah. Totally. It’s way more fun. It’s more unpredictable, right?

Lithwick: Let’s maybe start with Fisher—that’s the affirmative action case out of Texas. I think this is what you’re talking about, right? Where all we thought about for years and years is what’s Kennedy going to do with affirmative action? What’s he going to do? What’s he going to do? And he certainly surprised me. Did he surprise you by upholding UT’s finger on the scale for race affirmative action plan?

Stern: Yeah. Absolutely. And I think we should note this was one case in which it was actually only a seven-member court, because Justice Kagan was recused. She had worked on the case when she was solicitor general.

So, this was one case where Kennedy really could have still played complete man in the middle, swung to the right, joined the other conservatives and written a 4-3 opinion. You know, sticking another knife in affirmative action. If not just killing it altogether. The rap on Kennedy has always been that he approves of affirmative action in theory in the abstract, but he’s never seen a program that he likes. Well, it turns out we all learned he’s finally found a program that he likes because last Thursday he came down with an opinion that he wrote himself. So, and that was his own decision.

Clearly he feels strongly about this now. He upheld the University of Texas’s affirmative action program which allows race as like you said a thumb on the scale, or a factor, of a factor, of a factor, part of a holistic review. And in doing so, pretty much saved affirmative action for another generation, or at least as long as there are five votes for it on the court. And this was very surprising, because this is a man who has written about affirmative action as though it were some kind of disgusting, horrible, grotesque policy from Nazi Germany that we might have to keep around just so we can have a little more diversity, but needs to be thrown out the door as soon as possible. And then suddenly he turns around, and in Fisher 2, the case that came down at the end of the term, he said, “Never mind. Basically I take all that back. Affirmative action can be great. We can respect student’s dignity. We can allow diversity. We have to defer to the university’s judgment.” And it was a total about-face for him.

Lithwick: So, a couple of things that stuck out in my reading of Fisher 2. One thing that’s interesting is that it seems like he’s just bored of [unintelligible] right? He’s like, oh my god, this is from eight years ago. Abigail Fisher is like in a geriatric home at this point. There’s a way in which it doesn’t feel like it’s interesting to him anymore.

The other thing that is fascinating that undergirds both his majority opinion and Justice Alito’s very angry dissent is this question of whether the university is in good faith, right? I mean, Kennedy is like they’re doing their best. They’re trying to bring diversity to the campus and they’re struggling. And this is a pretty decent effort and a valiant attempt to bring about good ends. Alito, his dissent just drips with this feeling that this is just this evil, vile, university community that is trying to do something really, really worrisome and pernicious.

Stern: One thing I think is interesting is there were two blockbuster cases out of Texas in the last days of the term. And one of them the liberals said, “Oh, we have to defer. We can always trust their judgment.” And then the conservatives said, “No, no, no, bad faith. Bad faith.” And then there was a complete flip and in the next case the liberals said, “No, we shouldn’t defer,” and the conservatives said, “Defer, defer.” So, of course, I’m talking about Fisher and I’m talking about the abortion case. So, you know, in Fisher the liberals and Kennedy said, well yeah, let’s defer to the university. They seem to know what they’re talking about. They’ve been more or less consistent and they seem to be in good faith.

And the conservatives—as you said, Alito was just basically saying, “You guys are a bunch of liars. Screw you. You’re misrepresenting yourselves left and right here.” And seemed to disdain the idea that the court should defer to UT. And then come Monday, it was the abortion case. The liberals were saying, “Well, no, no, no, we have to double check the Texas legislature here. We’re not sure if these abortion restrictions are really for women’s health. It’s on us to figure that out.” And Alito and Thomas and Roberts said, “What are you talking about? Let’s take their word for it. Come on, why not?”

So I don’t think there’s consistency here on either side. But I will say if you read through UT’s briefs, there were some points that Alito made that were valid, where they did kind of flip around on a few side issues. But I think in his dissent he way overplayed that. I think on the main issues, the University of Texas was pretty consistent and honest here, in a way that the Texas legislature never was about these abortion restrictions.

I mean, they were talking out of two sides of their mouth every single time. It was is this to protect life? Is this to restrict abortion? Or is it to protect women, protect their health? You know, this boiled down the #ProtectThemBoth, but the truth is that the Texas abortion restrictions everybody knows were always about preventing abortions from occurring, preventing women from getting abortions. And so, you know, to my leftie mind, it seems exactly right for the court to defer to UT and not to the legislature, but I can see why that inconsistency there would leave a lot of people disgruntled.

Lithwick: But maybe it’s also just worth sort of thinking about, you know, the different aims or ambitions here. And part of the problem I think a lot of people have with Fisher is that whatever this diversity rationale is that supports affirmative action doesn’t seem to be making anyone happy anymore. So, this is the sort of theory and it’s right most at its high water mark when Sandra Day O’Connor writes in the Michigan affirmative action cases that, you know, we need to have affirmative action not to make reparations for past racial harms, but to have diverse classrooms.

It’s important because we need to have a diverse military and diverse leadership in business. And this diversity rationale, it seems to sag in the middle. I don’t think it makes anyone happy. And so I guess I would just say you can certainly claim that the legislature in Texas when dealing with abortion has, you know, multiple aims and it’s a moving target and it’s very confusing why it is they’re trying to regulate these clinics. But I think at the same time, one of the ways that Fisher collapses is that the objective here makes nobody happy. Whatever this diversity thing is, it’s awfully squishy.

Stern: Yeah. It’s incredibly squishy, because it emerged from the mind of a very squishy Justice, Lewis Powell, in 1978 in the Bakke case. And his concurring opinion—there were four members of the court that said, yeah, affirmative action is great. Redress past wrongs. You know, have diversity, whatever, it’s all fine. Powell came in as the fifth vote and said, well no, this isn’t for fixing past wrongs. This is only for diversity. As you said, O’Connor made that the majority view in the 2003 Michigan case.

The problem is that in my opinion I think most liberals agree on this at this point. The diversity rationale has to be intertwined with the fixing past wrongs rationale in order for it to make sense. Yes, diversity is good. It’s a normative good. We need it. Diverse classrooms are excellent. Affirmative action helps with that, great.

But there are certain minorities who have been more oppressed and repressed by the U.S. government than others, and if you don’t note that fact then it doesn’t make sense for UT to, for instance, put a heavier finger on the scale when there is a black student applying rather than an Asian student. And this is something that Alito points out over and over again in his dissent. And I honestly think it’s a good point, because if we’re only talking about diversity, then why the hell are we only talking about black and Hispanic students? Why aren’t we talking about Asian students? Or, you know all kinds of other ethnicities and races?

The answer that we all sort of whisper I think is, well, because the U.S. government spent decades and centuries oppressing these groups and there are still all these incredibly difficult systemic blockades between them and success that we need to help lift by affirmative action programs. But we’re not allowed to say that because of Lewis Powell and because of Sandra Day O’Connor. So, like you said, it’s squished, squished, squished to the finish line and nobody ends up happy.

Lithwick: I want to turn to the immigration case for a minute, Mark, because this is the one that ends in complete collapse. It’s a 4-4 split, so it ends up merely affirming the courts below.

What that means for practical purposes is that President Obama’s executive action with respect to folks who are here illegally who would have had deferrals on their deportations is now dead in the water. This is not fixable by the time he leaves office. I want to talk not about the specifics of the case so much as the fact that this has been spun at least by some conservative pundits as a huge win for the right as the court making a declaration about Obama’s executive powers. Is that what you’re hearing, too?

Stern: Oh, absolutely. I’m hearing, oh, the court upheld separation of powers. This was a huge blow to Obama’s executive overreach. And I think that is opportunism at best. I think it’s just wrong at worst. I mean, you know, this is a case that was “resolved” with a one line I believe nine-word opinion saying we have no opinion. We’re evenly divided and the lower court decision stands and the case moves on. And now it goes to a bench trial on the merits.

And so calling that a victory for the right, or a victory against Obama, or a victory for really anybody except maybe Judge Hanen who is overseeing this trial down in south Texas, I think that’s ridiculous. I think this is just a sort of punt. I mean, it’s just delaying this case further. Everyone knows that it’s going to go back up to the Supreme Court probably in two terms. And so I think that was just Paul Ryan, et. al, grasping for some kind of victory to salvage from this term which, as you said earlier, really did wind up a mostly progressive term.

Lithwick: What do you make of the fact that perhaps the takeaway between the immigration result on the one hand, and progressives feeling like they more or less won the term on the other end, that maybe the national consensus is, Eh, maybe eight justices ain’t so bad. This term turned out OK for both sides. Is that over-reading what happened?

Stern: Oh, well, I’m horrified if that is the takeaway for most Americans, because I think anybody who follows these cases really closely sees why eight justices does not work.

I mean, there were so many decisions here this term, big decisions like the immigration case, smaller decisions about tribal sovereignty as you covered beautiful on this show, and a few others—state sovereignty and those kinds of issues—where the court just couldn’t reach a consensus. And that perpetuated and preserved split circuits in this country. So you still have different substantive law in one circuit from another. So, you could be in California and get the law on your side, and then move to Michigan and have another law altogether.

I think that’s hugely problematic. I think if it’s spelled out for Americans, they’ll understand it. But I think you’re right that most Americans don’t care about that kind on in the weeds stuff, and they probably do think, hey, you know, with eight members the court can’t make any huge power grabs. You’re not going to get Citizens United with eight members. You’re not going to get Bush v. Gore with eight members.

And so maybe there is a sense like, hey, we’re safe. We’re safe from the court. If Supreme Court overreach is your primary concern, then yeah. Eight members is good for you. But I think the burdens and the drawbacks are so outweighed. And if we go through an entire second term with only eight, then people will start to see that. And people will start to realize that this is the court very elegantly trying to patch over its disagreements to reach consensus, but that’s not going to last forever.

Lithwick: I want to check one thing you said which was we can’t get Citizens United with eight justices, but boy, we sure got Bob McDonnell. This is the federal corruption charges that are thrown out against the former governor of Virginia who the court says even though he took a bunch of cash and loans and gifts from a person who wanted access, because he didn’t do any official act in exchange—official act as construed by the court—the federal corruption laws were overreached.

So, let’s think a little bit about the extent to which the court messaged here at the end of the term this very, very complicated message about it’s not corruption because everybody does it. And pretty much unless the quid pro quo situation involves, you know, a big sack of cash and a selfie that says, “Here’s me giving you the sack o’ cash,” and a written document, an instrument that says, “And in exchange for the sack o’ cash, I have him what he wanted,” we’re never going to see corruption again.

So this was the court unanimously, and you know, we talked about it on this show and I know that a lot of people on both sides of the aisle disagree that this is a problem, but I want to talk about McDonnell only for the proposition that it seems to me that the last thing the court wanted to do institutionally was shore up the proposition that politics as usual is legal.

Stern: Yeah. I mean, I think that decision was scary in a number of ways. Even though I’m not yet entirely sure that I think it was a disaster. I think it’s scary because in the post-Citizens United world, we’re all told, “Look, corruption laws still exist.” You can still nail legislators, etc. for corruption. You just have to find quid pro quo corruption, right, you know. This for that. And it looked like in McDonnell you had quid pro quo corruption. It seemed quite apparent that he had taken favors and in response for the favors, you know, given access to higher levels of government and that kind of thing to these people who had paid him off. And the court said, “No, no, no, this is not an official act. What he did does not appear to be an official act. This is a broad reading, an excessively broad reading of the federal statute.”

I think that if you were being generous—very, very generous—then you would say that what undergirds the court’s decision there is a fear about allowing the Justice Department to inflict a code of ethical conduct on executives of states across the country. And this was something that really bothered Justice Breyer during oral arguments. And it did not end up in any part of the opinion, but I can imagine if the court had had more time, there might have been a few justices who would have noted this in a concurrence. You know, I think they were alarmed that here the executive branch, the Justice Department, was going after this former executive of a sovereign state, as the court likes to reminds—sorry, commonwealth. I suppose you’re there. You should know.

Lithwick: Mm-hmm. We’re obsessed about that. Yeah.

Stern:             Yeah. Going after a sovereign commonwealth and saying, “Hey, you broke the law, federal law.” And I think that just bothered some of the justices. I think they were concerned about what that would lead to. Whether the federal government and the executive branch in particular would start going after more executives, trying to figure out where this corruption was coming in. And, you know, maybe they just don’t want that and they wanted to nip it in the bud.

Lithwick: So let’s talk a little bit about abortion. And all the ways that the 2015 will go down in history, I think, as the first time since Planned Parenthood v. Casey—that was the case in 1992, where the court narrowly agreed to save the core holding of Roe v. Wade. I think it was a surprise. Folks expected the court to do away with the right to abortion. Instead, the court changes the test in Casey, but says in effect “no undue burden” on a woman’s right to choose. And we’re not going to tell you what that means. Good luck, Americans.

And this case, really for the first time, Whole Woman’s Health becomes the case that stands for the proposition that we’re going to put some meat on the bones of that undue burden test. And moreover, that we are going to task the judicial branch with really scrutinizing what the intention of the legislature was and whether that maps fairly and reasonably onto the burden that women experience.

Stern: Oh, it’s a shift. And, I mean, it automatically renders quite suspect a number of trap laws in other states. What I think is really interesting about the case is that the way that the new—well, the old standard was articulated, the undue burden, that no law can put an undue burden between a woman and her choice to terminate her pregnancy.

The articulation of it was very meaty. And very strong. There is a new idea that was not quite present in Planned Parenthood v. Casey. You could read it into it, but it wasn’t fully there. The new idea is you have to compare the benefits to the burdens. And that means looking into whether the benefits are real, or whether they’re just something that former Governor Rick Perry and former Attorney General, now Governor Greg Abbott dreamed up and put on paper.

And that’s not something the court has ever articulated so clearly. And it makes me wonder if this holding really does go beyond trap laws. I mean, if we take the court at their word, a 72-hour waiting period between a woman getting a consultation for an abortion and actually terminating her pregnancy, that sounds like a pretty big undue burden as well. And, you know, the courts have kind of split on those laws that we’ve seen in the Dakotas and in the south, but I wonder if we’re going to see a fresh round of litigation now challenging the court to stick to its newest articulation of undue burden.

And to say, look, you don’t get to make up benefits. You don’t get to say that as long as a woman can eventually get an abortion it doesn’t matter if she had to walk through a crowd of people throwing egg yolks and have a doctor tell her she was going to hell. I think this is a new day in American abortion jurisprudence. And it’s very exciting for pro-choice activists because the battle lines seem drawn and they seem to favor the pro-choice side.

Lithwick: Talk about. I think the first email I sent you when the decision came down was, why is Breyer writing this. Justice Anthony Kennedy, who is the senior justice in the majority, has the assignment power. He assigns it to Stephen Breyer, right, instead of to Ruth Bader Ginsberg who in her head has been writing and rewriting this opinion since 1992. So, what’s your thinking about how that happened and why that happened and whether Ginsberg felt dissed?

Stern: Well, I think that’s just it. I mean, Breyer is a very fact-based, careful, analytical justice. He doesn’t like big broad sweeping rulings. He’s not a poetic writer at all. He’s never written one quotable word, to my knowledge. If you have a Breyer line you can whip out right now, please do.

This is a guy who likes to talk about what’s in the briefs, what are the facts, what conclusion you have to draw from that given precedent. And so I think for Kennedy as the senior justice in the majority, he surveyed the landscape. He’s not going to give a huge abortion decision to one of the junior justices. Not Justice Kagan or Justice Sotomayor. That leaves Ginsberg and Breyer. Ginsberg is, she’s terrific, but I think if she had written this opinion then it would have been a big, brash, proud, “Our bodies, ourselves. Free to be you and me,” kind of declaration of women’s autonomy. And that’s not what Kennedy wants. I mean, I don’t think he even believes in that. I think Kennedy wanted a very careful, almost sort of boring opinion that lays out every single pertinent fact, draws the conclusion, and then closes with no grand oration in it. An opinion that would almost repel readers. That would make you read five pages and say, “Oh, screw this. I get the idea.” Right? And that’s what we got. I mean, I had to struggle to get through every page of this opinion.

I think that’s the explanation that everyone seems to come up with. I think it’s true. There’s a kind of wild hair theory out there that Kennedy may have given it to Ginsberg and that Ginsberg may have then given it to Breyer so that Breyer could write the opinion that holds Kennedy, holds him tight, keeps him in that majority. And then frees Ginsberg, if she wishes, to write a separate concurrence where she can go all out and do her F-U Texas, I’m going to mess with you thing. Which is exactly what happened. I don’t think that’s actually true. I suspect that Kennedy gave it to Breyer right off the bat. But it does help to explain why we wound up with this somewhat curious little Ginsberg concurrence on the side.

Lithwick: I just want to point out that in all the Facebook memes that have the three women just smacking down Texas, Stephen Breyer, poor guy, yet again—even when he writes the opinion he gets erased from history. You know, it’s like, poor guy. I just feel like, man, that guy is just like a fichus. You know, he’s just there. Just this lovely plant who wrote this great opinion and still we see that Notorious RBG like, Jedi Warrior memes.

Stern: From her six-sentence concurrence, she gets the headlines. I think that’s fine, though. I mean, I think it made it harder for conservatives to really hate on the opinion because it was by Breyer, who most of the rank and file conservatives aren’t used to hating all that much.

Lithwick: Yeah.

Stern: He is the fichus for them, too. The fichus for all of us. He is the fichus we need, Dahlia.

Lithwick: He is the fichus. Until Merrick Garland comes along, and then we’ll have two fichus. Let’s let you talk about Sotomayor and race. Because you’ve written so beautifully about this. And I feel like this you know sort of should be the capstone of this conversation, Mark, because she has really pulled herself into a unique place at the court I would say. The place that Thurgood Marshall once occupied in terms of being the voice of this is how race is experienced on the ground. And whether, you know, it’s the theories about how she informed the voting in Fisher, or, you know, her dissent in Voisine, the gun case that came down this week. She has really positioned herself in a very unique way with respect to the Fourth Amendment. With respect to her fierce defense of criminal rights.

Can you talk a little bit about this progression and where she finds herself at the end of the 2015 term?

Stern: Well, where she finds herself is certainly in a unique place. Probably the only justice who have dissented with Thomas that many times while also siding with Ginsberg in the majority so many other times.

She is quite unique. She is the conscience of the court on race issues, no doubt. And if anybody did doubt that, her dissent in Strieff, which was a Fourth Amendment case, really just cemented her reputation. And I think her legacy. I think this is one for the history books. Strieff was the Fourth Amendment case about if a cop stops you illegally, unconstitutionally, and then runs your name and finds an arrest warrant, an outstanding arrest warrant, and has found illegal drugs or something like that on you, can those drugs be introduced into evidence even though your original stop was illegal, unconstitutional?

And the court said yes they can. Breyer was the decisive vote. Tragically, the fichus sided with the four conservatives. And they said, yeah, there’s an attenuation. The cop stops you, that’s illegal. But then he runs an arrest warrant search, he finds one. Well, that attenuates the illegal search. And so, you know, everything is fine from there on out. And this just drove Sotomayor insane, for very good reason, because there are so many outstanding arrest warrants out there, especially in places that she cited like Ferguson, Missouri.

Lithwick: Ferguson, yeah.

Stern: You may have heard of that small town. And, you know, this is a place where some huge percentage of people have arrest warrants for very small matters. A traffic stop, or something like that. And as Justice Sotomayor pointed out at oral arguments, a lot of these arrest warrants issue automatically. You get cited for some traffic violation, you don’t show up in court, and bam, you have an arrest warrant out there. So, what Sotomayor was trying to say in her Strieff dissent I think was that the Fourth Amendment cannot be analyzed in isolation outside of the reality of modern day policing.

And the reality of modern policing is that it targets minorities, and it targets low income people. And low income people and minorities are the ones who are oppressed the most every single time the court chips away a little piece of the Fourth Amendment. That was an incredibly powerful thing for her to say because all too often we get 4th Amendment cases that seem utterly untethered to reality. That just seem to suggest that the justices have never interacted with a cop in their entire lives. This was very much the end of that era. I don’t think that even the conservatives would dare to write another Strieff-like opinion now, without at least contending with what Sotomayor is going to bring to the table. Because she made it known I am going to be the conscience of the court on this. I am going to remind you that race exists and that racism exists and that police brutality exists no matter how much you want to deny it. And that is an incredibly important position. One we haven’t really had filled since Thurgood Marshall left the court in the early ’90s.

Lithwick: So maybe here I’m going to choke up this hairball of a theory, a unifying theory, for the 2015 term and you tell me what you think.

Stern: OK.

Lithwick: I think that one of the interesting trends we’re seeing is Sotomayor really pushing very hard to say this is what the world looks like. There is race. There is racism out there. It’s happening. Cope. And interestingly, Anthony Kennedy, and I think you’ve written about this this week, and we’ve talked about it before, but Anthony Kennedy, I think Sherrilyn Ifill makes this point last week on the show as well, that Justice Kennedy is also really no longer has that sense of just wanting to live in a world where he can deny that racism exists. And so he’s also in important tacking to the center and even to the left on race issues, because he, too, doesn’t live in a world where race is just not a problem anymore.

And I wonder if one of the theories of this term might just be that, you know, and I’m one of the loudest critics of the sort of limited life experience of some of the justices and the ways in which they don’t interact with the police, one hopes, on a daily basis. And it just seems as though Sotomayor is tugging, tugging, tugging in a way and probably Ginsberg is doing the same on gender. But that it’s becoming awfully hard for the conservative wing of the court to live in this kind of denialist place where things are the way we want them to be. And we don’t see otherwise. What do you think?

Stern: Yeah. I think you’re quite right about that. I think, you know, in the Seattle schools case in 2007, Chief Justice John Roberts wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” I don’t think he would dare to write something like that in today’s climate. I mean, that is, today, in light of Ferguson, in light of Freddie Gray, in light of everything we’ve seen in the headlines sounds so obtuse, almost impossibly so for a chief justice of the United States to say. And I think that Kennedy has just drifted so far to the left of Roberts and Thomas and Alito on this in large part because of Sotomayor bringing her understanding, her experience, and also the headlines that I’m sure Kennedy cannot avoid seeing. I’m sure he reads the paper. Even if it’s the Washington Examiner, he’s got to know on some level that there’s bad stuff going down in the world. And, you know, the story here, the classic story that Joan Biskupic unearthed for her book on Sotomayor, is that when Fisher first came to the court, Justice Kennedy was going to write an opinion slashing affirmative action, maybe not killing it altogether, but seriously cutting back on it. And that Sotomayor wrote a dissent that was so fierce and so pragmatically realistic about what racism is today, that Kennedy just put it in a drawer and rewrote it and had a much more narrow, limited opinion about what tier of scrutiny to apply.

So, I think you’re quite right that the effect of having Sotomayor on the court has drawn Kennedy to the left. I think having Ginsberg on the court and having her be increasingly vocal about abortion has drawn him to the left on gender and on sex and abortion, which is, of course, a gender issue. And that he is letting himself be pulled for whatever reason. You know, it’s not as though he couldn’t have read the headlines in the ’90s. It’s not as though he’s had his head in the sand this whole time. But for some reason, maybe it’s senescence, maybe, you know, he’s entering his 80s now, he’s just come around on gender and race in a way that nobody could have predicted in 1988.

Lithwick: Well, I’m going to let you conclude with a thought on the court vacancy and what I think we can agree that two things we’re going to see starting in the October term are boring cases and very few cert. grants. And I think we’re going to see a whole lot of no confirmation hearings. So, what do we have—big sigh—what do we have to look forward to next term, Mark Stern?

Stern: Oh my god, what do we have to look forward to? So much, Dahlia. So much. A whole other term with Sam Alito. What more could you want out of life? And I’m actually somewhat serious about that. I think Alito has totally given up on being polite, if he ever was polite. And on being courteous and collegial in his opinions. I mean, his affirmative action dissent was so nasty. His abortion dissent was so nitpicky and technical and mean-spirted. I think we can see Alito filling in Scalia’s role as the angry guy with the whip on the far-right flank of the court, screaming at his colleagues. And I think that’s going to be super fun to watch.

But I think we’re also going to see more compromises, more moderate, in the middle votes. More coalition-building and that kind of stuff until we get the ninth vote. And there’s nothing we can do about that as court watchers. You and I would love to stand up in the middle of arguments and say, “Where’s Merrick Garland?” But it’s not going to happen. It just is lodged the way it is for the foreseeable future. And so what we have to look forward to is more of the nitpicky infighting. More of the coalition-building when it can happen, and maybe even a few more ties until we can finally get that ninth seat filled.