This is a transcript of Episode 66 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the U.S. Supreme Court.
I’m Dahlia Lithwick, and I cover the courts and the law for Slate, and this past Monday, after a 14th-month vacancy, Judge Neil Gorsuch was sworn in as the junior justice of the highest court in the land.
Neil M. Gorsuch: I, Neil M. Gorsuch, do solemnly swear
Speaker: That I will administer justice without respect to persons
Gorsuch: That I will administer justice without respect to persons
Speaker: And do equal right to the poor and to the rich
Gorsuch: And do equal right to the poor and the rich
Speaker: And that I will faithfully and impartially discharge and ...
Lithwick: One of the lessons of the Gorsuch confirmation and the Merrick Garland blockade is that movement conservatism is in its ascendancy. One of the key groups channeling the energy of that movement is the Federalist Society and, later on in the show, we’re going to speak with Jeffrey Toobin about the man at the helm of that group, but first we turn to the last arguments of this term, which will take place in April, this month, with the new Justice Gorsuch on the bench.
Trinity Lutheran Church of Columbia v. Comer is sometimes described as a fight over something that is, itself, kind of silly. The repurposed rubber stuff that covers hard playground surfaces so the small children don’t bump their heads when they’re coming down the slides. But the playground surface stuff in this case actually carries pretty high stakes. So high, in fact, that the Supreme Court held off on hearing this argument until a ninth justice was seated this month and so, next week, one year, three months, and four days after the justices originally agreed to review it, the court will hear this important church-state case that comes out of Missouri.
The church in this instance, which operates a day care, claims that a state program that helps nonprofits to pay for these rubber surfaces is in violation of the First and 14th Amendments. Why? Because the program only assists secular institutions, but not religious ones.
Now, you’re not going to be surprised to hear the number of other religious organizations that have filed amicus briefs in support of Trinity Lutheran in this case, but among the briefs on the other side is a very interesting one also submitted by a pair of religious groups. In it, the United Church of Christ and the Baptist Joint Committee for Religious Freedom argue, in essence, that religious institutions will actually be freer in the long run if they’re barred from accepting government money.
Holly Hollman is general counsel for the Baptist Joint Committee. A group that has championed state and federal laws even in some instances more protective of the free exercise of religion than is the First Amendment. We invited Holly onto the show to explain why her group is advocating having an even higher wall between church and state.
So, first of all, Holly, welcome to Amicus.
Holly Hollman: Thanks, Dahlia. It’s great to be with you.
Dahlia Lithwick: So let’s start at the very beginning, Holly, because an awful lot of our listeners have been doing nothing but watching Neil Gorsuch confirmation hearings, and so, they may have missed some of the nuts and bolts of this one. Trinity Lutheran Church, this fight dates back to 2012, correct? When the church applies for a state program that reimburses nonprofits for when they take this playground material made from recycled tires. Right? Can you help us understand both what the program is and why Trinity Lutheran is actually ineligible to participate in this government program?
Hollman: Sure. It really is an unusual context for a major church-state battle that we have here at the Supreme Court. Missouri has a really small discretionary program. Who would have known that scrap tires, people leaving tires around, creates a major nuisance, but it does. It creates all these kinds of environmental problems and so they came up with a program to encourage the use of scrap. Scrap tire material. Try to find some good uses for it so that you don’t have these tires around.
One use is to make pallets, or kind of platforms, out of the rubber that you could use for playground safety. So they came out with a program to sort of incentivize people to improve playgrounds with scrap tires from Missouri to get rid of their problem there.
They designed a program consistent with the Missouri Constitution that says there’s no state aid for churches. But Trinity Lutheran Church said, you know, they wanted to apply for this and they went ahead and applied but then were rejected and claimed that the rejection was discrimination against them because they are religious. When in fact, they were not entitled to be part of this program because of the state policy based upon its constitution.
Lithwick: Now, Holly, you’ve looked at this but let’s really unspool it. There are two issues in this case. One is protection under the Missouri Constitution. One is the religious clauses in the Federal Constitution. Right? In the United States Constitution.
I think one of the things that’s hard to understand in this case is that the church is saying, “Hey, we have rights under the U.S. Constitution. Specifically, our free exercise rights that prohibit the government from enacting policies that harm us from exercising our religion. We also have rights under the 14th Amendment Equal Protection Clause.” This entire Missouri protection in its constitution, actually hobbles those rights. So, we have a kind of a constitution-off going. Right?
Hollman: We did. So they have asserted that they had this constitutional right, as you said, free exercise and equal protection. A right for the money. They’re, like, they have the right to participate in a state funding program is what they claim.
As your listeners know, our constitutional tradition protects religious freedom in these two ways. We protect free exercise of religion. Keeping the government from interfering in religious practice but we also have this hard bar against government establishment of religion so that we don’t want the government aiding religion, advancing religion. That’s the job of individual adherents and faith communities, not the job of the government.
This case the state defended based upon its state constitution because the Missouri Constitution, like 38 other states, has a stronger no-establishment prohibition. You know how the Federal Constitution just says, “Congress shall make no law respecting an establishment of religion.” But the States have protections that can be even stronger and say, “No aid to churches,” and that’s what Missouri has. Missouri actually has three provisions that do that.
So this dispute falls in this kind of permissive area of state policymaking where maybe some would argue that allowing this money to go to churches might pass muster under the Federal Constitution. That’s not at issue here in this case. So that’s kind of putting that aside because Missouri has stronger provisions as well. It doesn’t pass muster under the state constitution and the Supreme Court has recognized that states do have room to protect the freedom of religion through its stronger constitutional provision.
Lithwick: And talk for a minute, Holly, because it’s not immediately apparent why the states are more worried about disestablishment than the Federal Constitution. In other words, what’s the historic basis for the states enacting these provisions that go much further than the federal First Amendment?
Hollman: Well, I think it’s because it comes out of this early American history where you had . . . we tell this nice story about America being established on religious freedom and people escaping religious persecution in Europe. Well, of course what happened is they came here and set up their own establishment and so you had different kinds of religious establishments in different states. But quickly that changed and people saw that that was not consistent with the fundamental freedom of the revolutionary spirit and you had the process of disestablishing all of these state churches over time.
A core aspect of that was to say that the state would not fund the training of ministers or churches themselves. That instead, in order to protect religious freedom, that needs to be left to individuals and faith communities. States, from the very beginning, or at least Missouri from the very beginning, 1820, its constitution prevented government aid to churches.
If you think about it, during the Revolutionary times there was all this focus on making sure that you weren’t taxed without freedom. So it’s hard to maintain that kind of emphasis on liberty while allowing a state church that forces people to pay toward a religion that’s not of their choosing.
Lithwick: So, Holly, let’s agree that Trinity Lutheran loses in the district court. They lose again in the Court of Appeals. The U.S. Supreme Court kind of reaches out, quite a long time ago, actually a month before Justice Scalia dies, and says, “They’re going to hear this case.” So it certainly looks to us as though the court is reaching out to correct errors that were made in the courts below. Is that fair?
Hollman: Well, it’s definitely our concern. It is surprising because to us this case is very similar to one the court decided by a 7–2 margin in 2004. That was a case called Locke v. Davey and it came out of the state of Washington where Justice Rehnquist wrote an opinion and explicitly held that there was this room for states to enact policies to protect religious freedom that go beyond what the Federal Constitution requires.
In that case, the court upheld the state of Washington’s decision in a Scholarship Program not to fund the training of ministers. Likewise, Missouri has just as historic, just as valid an interest in protecting against state funding of religion as the state of Washington did in that program.
So, yes, we were concerned when I took this case but I’m hoping that on a closer look that they’ll see that this is, again, a valid and historical interest that states have that does not, in any way, keep Trinity Lutheran or any other religious group from the free exercise of religion.
Lithwick: But now, Holly, the other side says, “Look, this is totally different from Locke v. Davey,” the Washington State case you’re citing. That was about scholarships for students who wanted to study theology. This is about completely secular stuff. This is about rubber on playgrounds. It’s got nothing to do with funding anything that is anything but completely secular. I think they say the line is completely clear between Locke and what you’re describing it as happening in this case. This is just playground stuff.
Hollman: Yeah, and it’ll be interesting to see if our new Justice Gorsuch sort of ignores the original of these provisions, which is not funding churches. This is church property. The secular material will be the same kind of secular material you use to build a sanctuary and the pews and anything else in a church building. Yeah, you could say that material is secular but churches aren’t secular. They’re not easily divided into religious and secular zones that would make it easy for the state to come in and regulate or fund part of them.
So that’s a thing that I really think this case in some ways the state’s interest is much greater than in Locke v. Davey. First of all, it’s a small program. It’s not a statewide program like you had in Locke v. Davey where the scholarship program was for anyone who was below a certain means and met a certain academic standard.
This is really a small program and it seems the state can decide how they want to design it and how big they want it to be. Then the interest it’s actually funded. There would be the training of ministers. Here is actually the promotion of churches. I mean, it’s building part of the church. I think about any of your listeners who are involved in their church or mosque or synagogue and have been part of their, you know, capital campaign to raise money, that’s what you do as churches. You build your facilities and you get to decide how to use them. You could open them up for a neighborhood program and it could be kind of run into in a sort of secular good neighbor way or it could be all about evangelizing and bringing people into your community.
That’s a wonderful thing, it is protected by the Constitution. In order to continue to protect that, I think it’s important to have these lines of separation between the government and the church itself. That’s all Missouri’s doing.
Lithwick: So this is a good opening for you to talk a little bit about the Baptist Joint Committee for Religious Liberty and the brief that you all filed in this case because I think that’s precisely the point you’re making. You’re saying, “This may just look like rubber playground bits but to accept it is actually to make churches less free.” Right? That we don’t want to be, first of all, bickering with other religious entities about who gets the benefit of state programs but also, we don’t want the government enmeshed in our decisions about how our church is built. Is that pretty much the upshot here?
Hollman: It is. I think our brief took on the job to explain how you can justify this bright-line rule about let’s don’t send money to churches. OK. We talked about that from a historical standpoint and the fights for disestablishment but then we also talk about the nature of churches and the fact that they aren’t like everything else. They’re protected in law in special ways. Exempt from any requirements that other entities have to comply with out of concern for religious freedom, church autonomy, and doctrine. They really are treated specially. So keeping them out of government funding is just part of that whole arrangement of treating religion differently.
So it’s really shortsighted when people say, “Hey, treat religion like everything else.” That’s not what most religious people in religious communities want. The First Amendment and corollary provisions and state constitutions treat religion specially. Concerned about an argument that would say you have to treat churches like everything else. There could be some really negative consequences that follow, in addition to just the fact that that undercuts a fundamental value of religious freedom that we have, which is that the government doesn’t fund religion.
Religion flourishes and is more free when it is advanced by those who believe in it and those who are dedicated and spend their own money and their own time in cultivating their religious community and their religious teachings and services and other ministries.
Lithwick: Holly, I guess that’s your answer to my next question, which is, the argument on the other side is, “Look, we’re not asking for anything special. We’re asking not to be discriminated against.” Right. We’re saying, “Our kids are lovely and we don’t want them to bang up their knees and you’re treating us ... ” Right? Trinity Lutheran says, “Hey, we were fifth most eligible when we applied for this program and you shunted us aside, Government of Missouri.”
So what they’re saying is, “This isn’t special status. You are, in fact, discriminating. You are giving us a secondary status.” And they route at least some of this and this is just an interesting sidebar to this entire case is, in the history of anti-Catholic animus in this country, the Blaine Amendments. Can you talk a little bit about how the analysis comes about in this case? That this is about antireligious discrimination and that’s the central theme here.
Hollman: Yeah. It is interesting that you would have a Christian church in Missouri arguing that the state is hostile to its interest. Just sociologically, I don’t think that really works. If you look politically, if you look at the number of churches, the number of people who run for office and talk about their religious background.
There is this idea that Trinity Lutheran and some of its friends on that side are arguing that this is somehow antireligious. They point to a time in American history where there was a lot of anti-Catholic sentiment after a time of immigration and there were changes in some state constitution to have particular provisions that would prevent money going specifically to religious schools.
Those are often referred to as Blaine Amendment and some of them are accurately called that. Some of them are not. And that is after Representative Blaine who tried to have a Federal constitutional amendment that would prevent government money going to religious schools.
What’s really important here is a generation before Blaine was even born, was this idea that religious liberty was protected by keeping the state out of it. So there’s not much of the Blaine Amendment actually in this case, in Trinity Lutheran, because the first provision that prevents state aid from going to churches, is it 1820? So that’s way before this whole rise in anti-Catholic sentiment that may have kind of fueled some of this idea of not using state money for religious institutions but you will hear it thrown out there.
It’s really important, and I hope that our brief makes a really good contribution, for the court to consider that there are valid interests to protect religious liberty for all in keeping government out of funding churches that have nothing to do with animus and, instead, have everything to do with protecting religious freedom for all people.
Lithwick: I think on both sides of this litigation, you see a kind of parade of horribles. If we lose, then you know everything bad will happen. On the one hand, I think you see the groups that are arguing against Trinity Lutheran are saying you know that this is going to mean if you allow the funding of this rubber playground surfacing, you are opening the door to sort of ending disestablishment and really allowing churches to get in line for all manner of government benefits.
The other side is saying if you do not allow us to be eligible for this program, our soup kitchens are closing, our battered women’s shelters are closing. In other words, the stakes on both sides are posited so extraordinarily high. Is that just rhetoric or is that— You’re laughing.
Hollman: I am laughing a bit. There is just no evidence, whatsoever, that if the court upholds Missouri’s constitution, that there will bring some kind of parade of horribles on churches there. It’s hard to think about because we’re really just talking about direct funding of churches. We’re not even talking about a religious affiliate. Something that is designed separately to provide services out of religious motivation that would be able to accept government money for those with appropriate safeguards.
Meanwhile, the church has not offered any line that would protect religious liberty. If they are able to win just because this is secular material, what line is that? I don’t know of religious building material. I mean, is it secular wine, that then becomes the blood of Christ in a Catholic ceremony or can we buy secular bread that can be broken in Communion in a Christian service?
So, really, they are opening the door wide to say that any aid that could be secular should be OK in a church that has it. It really would destroy the idea that the state could stay out of the funding of religion business by keeping a separation of church and state.
Lithwick: I have to tell you that as I’m well into wrangling matzo into foodstuffs for this Festival of Passover, the idea, even the word bread, I started sweating a little but you have no idea what secular matzo would look like.
Holly, I want to close by asking you this incredibly fraught question. I know you and I have thought about it in different ways but I want to ask it anyway and you go at it as you see fit. It seems to me that this case is of a piece with this larger blossoming fight we’re now having in this country about where religious liberty ends and where secular normative law begins. And whether we’re talking about corporate personhood in Hobby Lobby or we’re talking about the little sisters or whether we’re talking about the cake bakers, it just seems like suddenly litigating that line in the sand has become, without a doubt, one of the really, most dangerous and un-discussable issues in American constitutional law right now.
What does this case signify to you? I mean, I’ve heard you say this shouldn’t even really be an issue. This is just not that case and yet, it is that case and it’s particularly that case, I have to say, in a moment where Neil Gorsuch took the bench amid real disputes about his thoughts on religious liberty. How do we take the temperature down on this, Holly?
Hollman: That is such a good and hard question. Looking at this case in this broader context, I really see these fights over the boundaries of free exercise in a commercial context as so difficult and really dividing us religiously and politically. The fights that you mention that really get to the heart of how do you take your religion into the public sphere beyond your church and how you still can respect the rights of others. Those are such hard fights going on right now.
This case to me seems so different. We can fight about whether or not a corporation has religious rights or whether you have the same kind of religious rights once you’re out there selling your goods and services. Those are different lines that we have to fight about, but surely, we can all agree that houses of worship represent central core expressions of religious freedom for all. They should be protected in special ways. I mean big Constitution itself treats religion in special ways. Right?
This idea that it’s wrong to treat religion differently just really flies in the face of our constitutional tradition. I guess if we start at the core and say let’s protect religious expression of the individual and the church level, we at least can build some common ground. Then moving out from there, see these more difficult cases about where we have conflicts between those religious interests and other interests and we can work those out. It’ll take a long time.
I’m really concerned, just in this case, that we kind of take a deep breath and look at really what’s at issue here. I do think it’s just the idea that religion can be and should be treated in special ways to protect free exercise and no establishment and Missouri has drawn a bright line and legitimate line in order to protect that interest.
Lithwick: Holly, I’m always for taking deep breaths and I thank you for joining us on the show. Holly Hollman is general counsel for the Baptist Joint Committee for Religious Liberty. They filed an amicus brief in Trinity Lutheran, which will be argued this week at the court.
Thank you so much for joining us.
Hollman: Thank you. It’s great to be with you.
* * *
Lithwick: And now for our second segment, we wanted to talk to the wonderful Jeff Toobin and while Jeff Toobin actually needs no introduction to people who care about the law and the Constitution and the courts, here’s one anyway.
Jeff Toobin has been a staff writer at The New Yorker and senior legal analyst for CNN since 2002. Before that, he served as assistant U.S. attorney in Brooklyn. His many prizewinning books include, The Nine Inside: The Secret World of the Supreme Court and most recently, The Oath: The Obama White House and the Supreme Court.
This week for The New Yorker, Jeff wrote a big profile of the Federalist Society and its executive vice president, Leonard Leo, and the role they played in shepherding Neil Gorsuch along to his now confirmed seat at the U.S. Supreme Court.
So Jeff, welcome back to Amicus.
Toobin: Hi, Dahlia.
Lithwick: Hi. So I want to start by asking you this one really complicated question, Jeff, which is, did the Neil Gorsuch confirmation that ended last week represent a huge monster life-changing win for the Trump administration, Mitch McConnell, Senate Republicans, and the Federalist Society, or did it just represent the biggest win ever for those groups?
Toobin: Was it great or was it fantabulous?
Lithwick: Exactly. Was it transformational?
Toobin: I think it was fantabulous. You know, the court has not changed dramatically because it is the exchange of a conservative justice for a conservative Justice Scalia for Gorsuch. But you know when you compare to what might have been 14 months ago, where it was Justice Scalia for a Justice Garland, it is a fantabulous and an incredible triumph for the people who want a more conservative Supreme Court.
I think it’s bigger than just a conservative for a conservative, but it is also just one step on the road to a dramatically different Supreme Court. It is not yet a dramatically different Supreme Court but they had to replace Scalia with a conservative in order to get ultimately where they want to go so.
Lithwick: So this is the thin edge of the wedge. Right? This is the beginning of, I think what we can agree, is an inexorable, you know, as you point out in your piece, we’ve got an 84-year-old, an 80-year-old and a 78-year-old coming down the pike and we seem to have a machine in the Federalist Society and Leonard Leo that there’s no resistance possible. Right?
Toobin: The resistance is how much yogurt Ruth Ginsburg decides to eat. I mean, it is not, you say, inexorable. I mean it’s not inevitable that Kennedy, Ginsburg, or Briar will leave in the next three and a half years. I mean it is not a certainty. All of them have made it to a very advanced stage, which gives them a much better chance than you or I do of living to 85 or 86 or 87. Just because of the fact that they’re all ready this old.
I think this is a great start for conservatives but they haven’t won yet. It is not inevitable that they will win.
Lithwick: In this week’s New Yorker, you did a really dazzling profile of the Federalist Society of Leonard Leo who probably a lot of our listeners haven’t even heard of. For folks who don’t know what the Federalist Society is, can you give us just a thumbnail of what the group does, where they come from, and what they believe in?
Toobin: The Federalist Society was founded in 1982 by a group of law students who felt that law schools were too liberal and they wanted an opportunity to have a place where conservatives could meet, could hear speakers, could network and it has expanded from there. It now has lawyers groups affiliated. It’s on many law school campuses. It is not a group that takes official positions on issues. It doesn’t endorse judicial or political candidates. It’s really a networking opportunity for conservatives in the law that has a very high-profile convention every November in Washington. They have panels. They have speeches. It’s just an organization where people talk and meet each other and network. Leonard Leo has been the chief impresario and networker since 1991.
Lithwick: So talk a little bit about Leonard Leo, Jeff, because this is a really interesting man. One of the things you talk about a lot is the role his Catholicism plays. The role his views on abortion play on his intellectual history. Give us a sense of, you’ve already said, at the end of day, he’s kind of macher, like he just knows people and he connects people, but what did you learn?
Toobin: Macher is actually a term in the Constitution itself. It’s Article Six in there somewhere.
Leonard is 51 years old and he’s from central New Jersey. He’s really never worked anywhere except the Federal Society. He graduated from Cornell Law School. Clerked on the D.C. Circuit but then went to work in the Federal Society. He is a really outgoing, bubbly, charming guy who is well suited to the role of impresario. He meets a lot of people. He knows how to connect people. He’s a deeply, observant Catholic. He also has six children. Two of whom have spinal bifida. One of whom ultimately died of it and related medical problems.
Several people have said to me, the fact that he has raised two children with serious genetic illnesses underscores his passion on the issue of abortion. I mean, he is very open about his view that he thinks abortion, under all circumstances, rape, incest, whatever, should be prohibited and there is no constitutional protection for a woman’s choice. When you see the intensity of his view on that issue, I think that really informs his advice to President Trump about which justice he should nominate.
It’s not the only issue. He cares a lot about what he calls the “structure of the Constitution,” which I think is, in many respects, the next frontier of conservative activism on the Supreme Court. The use of the structure of the Constitution to limit government power. You saw efforts like that in the two big Obamacare cases but with a more substantial conservative majority, those kinds of arguments I think will return in a big way.
Lithwick: And that’s when we talk about Chevron deference. When we talk about limiting agencies’ powers to regulate, that’s what you mean when you talk about structural.
Toobin: Exactly. Those structural ... and that is something even more than the social issues is something that Neil Gorsuch has been very outspoken about even in the context of being a Circuit Court judge. That you want to limit the discretion of agencies very narrowly to what the underlying law says, “Don’t defer to their understanding of the law.” That is the kind of argument that could limit government efforts to ameliorate the economy, the environment especially, and those arguments, I think you’ll see more and more from conservatives over the next few years.
Lithwick: You make the point, not only was Leonard Leo shepherding Gorsuch along, but he’s actually had his thumb on the scale for both the Sam Alito and the John Roberts’s hearings. In other words, he’s sort of single-handedly seated a third of the present court, right?
Toobin: I knew Leonard and I was just sort of vaguely aware of his role, that’s why I decided to profile him, but it was only when I dug in that I realized the full extent of his influence. We have no president today who has appointed more than two justices on the current court but we have Leonard who’s responsible for three, at least in part, which is pretty amazing when you think about it. It’s also amazing when you think he’s never worked for the government. He’s never been a law professor. He’s never written articles about the law to speak of. He’s never given significant, substantive speeches. He has achieved this extraordinary level of influence as an impresario, as a networker, as someone who connects people, from whether it’s the provinces or Washington, to government officials, and says, “Pay attention to this up-and-comer. You want to put this person on the District Court, on the Circuit Court, and ultimately on the Supreme Court.”
The degree of his influence, while considerable under George W. Bush, has soared under Donald Trump because this is an administration that has less infrastructure and less interest in doing anything other than what will keep the conservative movement happy.
Lithwick: Right. I thought one of the threads of your piece that I wanted to pull out a little was the back-and-forth that Leo reportedly has with Trump. Where Trump more or less says, “I want to give people a sense of who I am. Who am I? You pick,” and effectively hands over the totality of his thinking on the judiciary to another person in a weird way. In a weird way unlike what we’ve seen before even with George W. Bush, who may not have cared that much about the courts. There’s really no check on Leonard Leo in the Federalist Society because the president has no views on this. Right?
Toobin: That’s exactly right, but I think you have to remember the political context of last spring. Last spring, the conservative movement was still very much on the fence about Trump. The Never Trumpers were a significant part of the Republican Party. Trump’s political history is all over the map. He gave a famous interview to Tim Russert where he described himself as very pro-choice. So you know, he needed to consolidate his support and I think Trump recognized correctly that the way to do that better than any other way was to pledge to appoint Supreme Court justices who were in line with Alito and Clarence Thomas. Who better to make that promise real than Leonard Leo, who is that conservative and who has the context in that world, to make those promises a reality and sort of jointly with Trump. They came up with this idea of the list. He made a list of 10 perspective appointees to the Supreme Court in May of last year. Then he added 10 more in the fall. One of whom was Neil Gorsuch. I think all through the fall, I heard and I suspect a lot of people heard, from conservatives, “Well, I don’t really like Trump that much. I don’t trust him but I care about the Supreme Court and he’s going to appoint conservative justices,” and I think Trump made a very savvy political move in essentially turning this issue over to Leonard Leo and the Federalist Society.
But it should be a reminder to the rest of us, who we’re going to get on the Supreme Court from President Trump. I think we got one very conservative justice in Neil Gorsuch, and if he has more opportunities, we’re going to get more of the same.
Lithwick: Jeff, you talked about the really deft ways that Leonard Leo has been able to connect to people, right? He describes it as a pipeline. The point is to groom folks and then make sure they’re going through the system and we’re screening out the Harriet Miers, who say they’re conservatives but we’re screening in the Sam Alitos. One of the points you make very subtly in your piece is there’s a lot of money behind this effort. That it’s not just a pipeline. It’s kind of a golden pipeline and it’s lined with a lot of money.
Toobin: Well, that’s right and I think, you know Steve Teles who’s a Professor at Johns Hopkins, wrote a book about it called The Rise of the Conservative Legal Movement and he talked about how conservatives recognized in the ’80s that it was very important to win elections, obviously, but that’s not enough. That you need to establish a conservative elite who will fill other positions. In this case, of course, the judiciary. You saw the conservative foundations. Those affiliated with Bradley, with [inaudible], and ultimately the Koch brothers, put a good deal of money behind the Federalist Society, which now has a 20-million-dollar-a-year budget because in a very self-conscious way, I mean this is not a secret, Leonard says, “We are training a generation of lawyers who will be government officials. Who will be leaders in their community. Who will be district court judges. Circuit Court judges. Supreme Court justices. Judges in their states.”
It is the use of conservative foundation money to build this elite. The Koch brothers do a lot to elect conservative candidates. This is a different level but a related level of investment in a conservative future.
Lithwick: Let me ask you, because Senator Sheldon Whitehouse at the Gorsuch hearings tried to weaponize at least a piece of that argument and said, “You know there’s 17 million dollars of dark money that’s forcing its will on the people here.” And I think it’s a version of that argument, that we haven’t seen dark money that gets funneled to, in his view, buying a Supreme Court seat the way we have this time. Is it a salient argument that there is a whole bunch of money now involved in the selection of judges, or do people just not care?
Toobin: Well, I think there are a couple different things in that question. What Whitehouse was referring to, mostly, was the advertising campaign that went out in the states—particularly states where there were Democratic senators up for reelection in red states: Indiana, North Dakota, Florida—to put pressure on them to vote for Gorsuch. That was largely dark money. Money that we didn’t know the source of. The Federalist Society is not dark money. They disclose all of their contributors. I don’t think you can accuse the Federal Society of any kind of subterfuge. I mean everything they do is out in the open. It’s not like there’s some secret.
I do think that there is not a lot of interest in these issues in the public. Particularly on the left. Campaign finance in general has never been an issue that has excited the Democratic base very much. Although Citizens United and related cases are unpopular, but it is not something that excites the public very much. I thought Senator Whitehouse made a game effort but there has not been a public reaction commensurate certainly with his outrage.
Lithwick: Let me ask it a different way because I take your point but I do think this subterfuge, to the extent there is one, is the Koch brothers, the NRA, groups pouring money into a conversation that sort of gets somehow through the multiple rinse cycles turned into a conversation about originalism and strict construction and judicial humility.
In other words I think what’s weird about this is, and you see it at the beginning of your piece when you talk about this is what the framers wanted and this is judicial humility, there’s big, big, big bucks paying to say something here and I’m not sure what they really are interested in. Is what the framers thought of constitutional interpretation right?
Toobin: Well, that’s right. I mean you know this a lot of it depends on how cynical you are. I mean, I don’t doubt that Leonard Leo is sincere in his belief that there should be strict separation of powers and that the Constitution should be interpreted according to its original meaning at the time of James Madison. It is also true that, that view of the Constitution leads to less regulation on natural gas companies and on oil companies. Now why the Koch brothers give money to the Federal Society is, I think, out of the typical mixed motives that people have. Obviously the Koch brothers do not want any regulation of carbon going into the atmosphere. They know that judges aligned with the Federal Society will be more likely to rule in their favor.
I think there are also other forces at work. Conservative judiciary is something that’s had a lot of support for a long time. Untangling the motives behind it is hard and I find it hard. I can’t answer the question, ultimately, of why all these people support the Federal Society. Obviously financial self-interest is a big part of it, but I don’t think it’s the only part either.
Lithwick: Fair enough. Before I let you go, I want to ask you about the last number I saw was 134 Federal judicial vacancies in the lower courts in the Circuit and District Courts. What should we look for there? What did you learn from talking to Leonard Leo in terms of, I’m guessing, those seats are going to be filled quickly and I’m guessing you have a sense of who’s going to be sitting on the federal bench for the foreseeable future?
Toobin: I think what you will be looking at will be young people. I think they are very focused on appointing people who are in their 40s and maybe even 30s.
Lithwick: This is not the yogurt people right?
Toobin: No. People who will serve on the Federal Judiciary for decades. You know one thing the Trump administration has been poor at, is doing the work of being president. They haven’t appointed hundreds of people to whom they have the opportunity to fill in the administrative agencies. I mean you know most of these agencies don’t have anywhere near a full complement of Senate-confirmed officials yet. So I’m not thinking that these 134 seats are going to get filled rapid fire. Certainly, Senator Grassley is going to hold prompt hearings on anyone who gets nominated, but we are now almost at 100 days, there hasn’t been any nominee except Neil Gorsuch. The Democrats do have some tools at their disposal to slow down the process.
I don’t think you’re going to see 100 nominees this year. I mean, I think you’ll see some and they’ll be young and they’ll be conservative and the vast majority of them will get through but let’s see how effective the Trump administration is at actually getting those names in front of the Senate. So far they’ve done nothing.
Lithwick: Jeff, before we’re done, so much has been written about Justice Kennedy. Neil Gorsuch clerked for him. Justice Kennedy spoke at the swearing in. There is at least one inside-baseball theory that says that everything that happens ever is going to be viewed through the prism of trying to get Justice Kennedy to step down so Trump can fill the really, all-important swing seat at the court and that you shouldn’t take for granted that there isn’t some kind of Kennedy O-Meter in which we’re always trying to game how willing he’s going to be to leave as soon as this summer. What’s your thought on the logic behind the “get Kennedy to retire quick” theory of what we should be watching for?
Toobin: Well, I think one of the many advantages of nominating Neil Gorsuch to the court is that it was an overture to Justice Kennedy. I know through my own reporting that he was skeptical of the Trump administration coming in and he wanted to see the kind of people who Trump was going to fill the seats with. I think the fact that Gorsuch was both extremely conservative and a Kennedy clerk was great but I also think Justice Kennedy is a proud man. He does not want to have it look like there was some kind of deal for him to step down in return for the appointment of his clerk.
He also really likes being at the center of the Supreme Court and he likes the fact that people like you and people like me spend much of our lives thinking, “What the hell is Justice Kennedy going to do” in this case or that case. It is a really good time to be Anthony Kennedy. He is 80 years old, which is certainly not young but he is in good shape. He is in fine fettle as far as I can tell. So I would actually doubt he would leave this year. I think next year would be the first time it would be even somewhat likely for him to leave but by no means a sure thing. It just strikes me as unlikely. I mean God knows I’ve been wrong about this stuff before but it strikes me as unlikely that he would just sort of leave three months, four months later when once his law clerk was appointed. I think there would be a kind of seediness to that, that would offend a very proud man like Anthony Kennedy.
Lithwick: Jeff Toobin is a staff writer at The New Yorker. He’s a senior legal analyst for CNN. His recent piece at The New Yorker is about the Federal Society and Leonard Leo, and among his many books both The Nine and The Oath are must-read books for folks who care about the Supreme Court.
Jeff Toobin, thank you very, very much for joining us again.
Toobin: Thanks, Dahlia.