Supreme Court predictions and stop-and-frisk, on Slate’s Amicus.

Wondering What Should We Expect From the Supreme Court This Term? Amicus Has Answers.

Wondering What Should We Expect From the Supreme Court This Term? Amicus Has Answers.

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Oct. 6 2016 12:39 PM

What Can We Expect From the Supreme Court in 2016?

Slate’s Amicus podcast discusses Supreme Court predictions, stop-and-frisk, and more.


We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 50, in which Slate’s Dahlia Lithwick previews the 2016 Supreme Court term with two special guests.

First up is former federal judge Shira Scheindlin, who ruled in 2013 that stop-and-frisk tactics were being used unconstitutionally by the New York Police Department. This has landed her in recent news headlines, with Donald Trump accusing her of being “very against police.” What does Scheindlin think of Trump’s comments? And how does she decode Trump’s use of the phrase “law and order?”

Lithwick also talks to Tom Goldstein, the founder and publisher of SCOTUSblog, about his predictions for this upcoming term, as well as his feelings about why this term is so different than other years. What’s on the docket for the upcoming term, and how are the justices trying to avoid sticky 4–4 ties?   

This transcript has been edited for length and clarity. To learn more about Amicus, click here.

Dahlia Lithwick: Welcome to Amicus, the Slate podcast about the U.S. Supreme Court. I am Dahlia Lithwick, and I cover the courts for Slate. This episode, which we’ve subtitled “The Thin Gruel Edition,” is our third-annual preview of the big cases in the upcoming term, which opens this Tuesday.

Dahlia Lithwick Dahlia Lithwick

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

We’re calling it “The Thin Gruel Edition” because, based on the cases that the court has agreed to hear in the term that starts next week, there’s just a whole lot of yawn in store. The eight remaining justices are eager to avoid any more controversial 4–4 splits, which happened four times last year. And, as a result, they’re either granting fewer cases; ducking the big cases’ or taking very narrow, technical, might I even say boring cases, and generally pretending to be the ferns between the other ferns in this unbelievable election year.

Those other ferns, of course, are quite happy to have all the attention, or so it seems. In this past Monday’s presidential debate, there was no shortage of sparks, zingers, or [sniffs] sniffles. We blame the microphones. But one exchange in particular did catch our attention here at Amicus. Donald Trump had just suggested taking another hard look at the police practice known as stop-and-frisk as an effective option for cutting down urban crime. Here’s an exchange between Trump and Lester Holt, the moderator.

Lester Holt: Stop-and-frisk was ruled unconstitutional in New York because it largely singled out black and Hispanic young men.

Donald Trump: No, you’re wrong. It went before a judge, who was a very against-police judge. It was taken away from her, and our mayor, our new mayor, refused to go forward with the case.

Lithwick: “Mostly false” is how PolitiFact subsequently rated Trump’s pushback to moderator Holt, but there’s a whole lot of constitutional law buried under that exchange. So, we thought we’d take a few minutes before we dive into our term preview to take a closer look at stop-and-frisk, and at Trump and Holt’s characterization of litigation around it. Joining us on the line from Vienna to help us do just that is former federal judge Shira Scheindlin. She was a Manhattan district court judge for over two decades.

And she is, in fact, the very same judge who was so indelicately invoked by Trump in Monday’s debate. Judge Shira Scheindlin, thank you for joining us on Amicus.

Shira Scheindlin: You’re most welcome.

Lithwick: Let’s just start where Donald Trump started, which is, in August of 2013, after a lengthy, lengthy trial, you ruled, in a 198-page ruling, that stop-and-frisk as practiced in New York City was unconstitutional. Can you tell us just the gist of what you decided in that case?

Scheindlin: I can. I think there’s been a lot of misunderstanding about this major point. Stop-and-frisk is constitutional if it is done pursuant to the Supreme Court’s interpretation of the Fourth Amendment in a leading case called Terry v. Ohio, which simply means that if there is reasonable suspicion that criminal activity is afoot, then it is okay to stop someone.

And as far as the frisk part, the police officer has to have a reasonable belief that he is in danger or that the person stopped has dangerous contraband. So, then, the police can go ahead and frisk. So, the first thing to clear up is, I never ruled that stop-and-frisk itself is unconstitutional. What I did rule is, as practiced in New York, and you did say that in your question, it was unconstitutional.

Because, from the evidence in the case, it was clear that there was no reasonable suspicion for the vast majority of the stops, that the stops were racially skewed. They focused on young black and Hispanic males between 14 and 24 very disproportionately. And, in 90 percent of the stops, there was no further law enforcement action. In other words, people were stopped, and their day was interrupted, and humiliating, but then nothing happened. No summons, no complaint, no arrest or prosecution, because they’d never been doing anything wrong.

So, there was sort of a great failure rate in those stops. Also, very, very little contraband was actually seized. Guns were seized, I think, in a tenth of one percent. One and a half percent of all stops, there was some weapon seized or some contraband, but very few guns and very little contraband.

So the picture one gets from the statistics alone, that there was this vast, increasing number of stops that hit a high of 686,000 in 2011, which was a sixfold increase from 2002. So it went skyrocketing up over the Bloomberg and Kelly years. And they were bad stops. Nothing was achieved in those stops. So, that was one form of evidence, the statistics themselves. There were close to 5 million stops over the period of time that the case covered.

And that’s a lot of stops. Some people were stopped 100 times. But, in any event, there were 5 million stops. Another form of evidence was actual tapes that were made at roll calls where sergeants and lieutenants would say, “You know who’s doing the crimes. It’s the young black men. You got to stop those people, because they’re the people who are doing the crime.” So, there was actual direct targeting that came out in some of those tapes.

And then, there was some testimony of others who said that they actually heard the higher-up people, such as Commissioner Kelly, actually say that this is who we have to target. We have to make them so afraid that they will leave their guns at home. We have to make them believe that they could be stopped any time, any place. So again, there was almost an admission that there was no reasonable basis under the Constitution to make these stops, just that they were made.

Lithwick: So, I’m sure the last thing you want to do is listen to Donald Trump characterizing what you decided, but let’s have a listen again, just so we’re all on the same page here.

Trump: We have to protect our inner cities, because African American communities are being decimated by crime, decimated.

Holt: Your two minutes are expired, but I do want to follow up. Stop-and-frisk was ruled unconstitutional in New York because it largely singled out black and Hispanic young men.

Trump: No, you’re wrong. It went before a judge, who was a very against-police judge. It was taken away from her, and our mayor, our new mayor, refused to go forward with the case. They would have won on appeal. If you look at it throughout the country, there are many places where it’s allowed.

Holt: The argument is that it’s a form of racial profiling.

Trump: No, the argument is that we have to take the guns away from these people that have them and that are bad people that shouldn’t have them.

Lithwick: So, we can parse that in many ways, including whatever “a very against-police judge” might mean.

But I wonder if you can help us understand. You’ve already clarified, it wasn’t unconstitutional. It was unconstitutional as practiced in New York. But I think Trump’s larger assertion is, “No, no, this was wrong, because stop-and-frisk not only made us safer, but took guns away from all the bad people.”

Scheindlin: OK, so you’ve raised two points already that I want to respond before I forget them.

One was that this notion of the seizure of guns is simply not true. The more the stops went up, there were no more seizures of guns. In fact, it was pathetic. When it was 100,000 stops, I think there was 800 or 900 guns seized. And when it was 600,000 stops, there was still 800 or 900 guns seized. So, you have a sixfold increase in stops but no increase in gun seizures. So, that’s the first falsehood. Now, cause and effect. This is a very critical point.

What Trump said really is scripted by former Mayor Giuliani. There’s no doubt in my mind about that. Mr. Trump is clueless about stop-and-frisk. He’s clueless about the Fourth Amendment and criminal justice in general. He got his talking points from Mayor Giuliani, who, by the way, wrote an amicus brief in the stay application to the Second Circuit asking that the opinion be reversed. So, he has a position to defend, that is Mayor Giuliani.

In any event, he believes that the crime went down because stop-and-frisk went up, but there’s no such evidence whatsoever. Crime began to drop, frankly, in the Giuliani years, from 1994 to 2002. That was the big drop in New York. That was the big drop across the country. But the rise in stop-and-frisk was from 2002 to 2011 and 2012, and there was no further drop at that point. So, there’s no proof of cause-and-effect to say that this increasing use of stop-and-frisk reduced crime.

Now, in the eight years of Giuliani, from ’94 to ’02, it was one of the things that was tried. But maybe then they happened to have done it correctly with reasonable suspicion. The numbers were much lower. They also put in the CompStat. They also put in local policing. They also put in the broken windows theory. I should also add, there was an increase in the number of police. So, there are many factors, then. This was all under Commissioner Bratton.

Bratton today says that stop-and-frisk became a bad policy. It was out of control, and it led to a bad relationship between the community and the police. So, I don’t know how he thinks he can prove cause-and-effect. Whereas I think the evidence that came out of this trial proves a lack of cause-and-effect, namely, once the stops dropped from 686,000 in 2011 to 22,000 now, there’s no increase in crime. So, that sort of proves the negative, that if you drop it by 97 percent and crime doesn’t go up, well, then, I doubt it was effective in stopping crime.

All it did was to alienate the community and the police.

Lithwick: I just want to pick up on that very last thing you said, because it does seem, to me, that Trump’s comments are of a piece with earlier comments that feels like it really is driving a wedge between the community and the police, and particularly communities of color. And it’s fascinating to me that he keeps doubling down and doubling down on the notion that the solution to crime and to guns and to everything else is what he calls “law and order.”

But it’s a very sort of strange and pernicious view of law and order that really pits minorities against the police in ways that are quite shocking to the rest of us who’ve been thinking about it for a long time. Is that fair?

Scheindlin: Right. And you should add that, as Secretary Clinton said in the debate very correctly, if we would stop having guns around, if we would have some level of gun control and keep guns out of the hands of people who shouldn’t have them, that would be the very first step in reducing crime, and I couldn’t agree with her more.

So, he’s obviously for no controls of guns. In fact, he sort of encouraged everybody should go out and arm themselves. She says, correctly, take the guns away from bad people by not allowing them to have it in the first place. So, I think it’s very important to think about that in terms of policy of guns.

But back to what Mr. Trump says. But he says correctly that the biggest victims of all of this are the poor minority communities. Those make up the vast number of crime victims. So, he—of course, he uses his general word “mess” all the time, but I take his point. He’s saying these communities are really suffering, and he’s saying, “How do you improve their lot?” And so, he believes that if you have a heavier fist of law enforcement, if you crack down on those who carry weapons and those who commit crimes, it will actually improve the lot of the people in the community.

And I take that point, but he’s going about it the wrong way. Instead of gun control, he’s saying, “Stop these people more. Frisk them more. Make them more alienated and more angry.” And as I said before, even Commissioner Bratton knows that’s not the way.

Lithwick: Can I ask you one last question?

Scheindlin: Sure.

Lithwick: And this is sort of undergirding this—and he didn’t attack you by name, but he certainly imputed that, you simply hate cops.

This is of a piece with other attacks on judges. And I’m thinking of Judge Curiel, who he attacked last spring. There’s something really quite profound about going after judges that’s different than what we usually see. And I know, you know, there’s lots of demonizing of judges, and I remember “Impeach Earl Warren” as well as the next guy.

But this seems, to me, to be this sort of strange meta-view of the world, that any judge who doesn’t give Donald Trump what he wants is a corrupt, bad judge. Is that unfair?

Scheindlin: Again, it hurts me to say this, but I think that’s unfair in this case, and I’ll tell you why. Again, this was scripted, obviously, by Mayor Giuliani, who has now written an op-ed in the Wall Street Journal that explains how terrible I am.

And this was based on the Second Circuit’s stay order. They issued a first order. They withdrew it, because there was such an attack on them for acting wrongly. Even the second order, which then apologized and said, what a distinguished judge. But it said a former law clerk was quoted in a news article as saying she hates police or she dislikes police. So, they took this hearsay statement that a former clerk supposedly said this, and made it a big point in their brief asking for a stay.

The circuit then used that as a reason to reassign the case, saying in the second order, “Well, we know she didn’t do anything wrong. We didn’t mean to imply that she violated any code of conduct. But someone out there could think there’s an appearance of impropriety based on this law clerk’s comment.” Now, I thought that was ridiculous of them, because it’s the worst form of hearsay. I don’t even know if the law clerk said it, but I didn’t say it.

Nonetheless, they said that that could create an appearance in somebody’s mind, so it’d be best to reassign the case. Now, that was three years ago. So, fast-forward, Giuliani tells this to Trump, and Trump uses it and says, “This woman hates police.” Well, there was that comment three years ago, allegedly, from the source, that found its way into a news profile, and that’s the history. So in this one case, it wasn’t of a piece with his other attacks on judges. I think he was fed the line.

Lithwick: Well, that was a very judicious answer, and I thank you for it.

Judge Shira Scheindlin is a former federal judge in the Manhattan district courts for over two decades, and she joins us today from Vienna. Judge, thank you very, very much for your time.

Scheindlin: Thank you. And I hope it was helpful to you and your listeners.

Lithwick: And now we turn to “The Thin Gruel.”

For the past two years at this time of the year, we pause to take stock of the exciting, rip-roaring cases on deck at the high court. We’ve previewed cases like marriage equality and abortion rights and voting rights and the future, again, of Obamacare. But when the 2016 term is gaveled into session on Tuesday, all eyes will be on—that’s right—playground surface material. Joining us as he does each year at this time to explain what’s at stake in that and other notable cases on tap this term at the court, is Tom Goldstein, legendary Supreme Court litigator, founder and publisher of SCOTUSblog, and the very first guest ever on this show.

Two years later, welcome back, Tom Goldstein.

Goldstein: Oh, you had me back. I wondered if you ever would. You’re so kind.

Lithwick: Tommy, calling this episode “The Thin Gruel Edition” was really your idea. So, will you please explain to listeners who are tuning in, excited beyond imagining about all the great hits coming to the court, what is, in fact, coming to the court?

Goldstein: Well, everyone is just so familiar with the amazing Supreme Court decisions on gay rights and voting rights and gun rights and everything like that, and how important the court is to American life. And this term is nothing like that at all. The court put itself on lockdown when Justice Scalia passed away, and you had four more conservative justices and four more liberal justices.

And each side was saying, “Mm, I really don’t feel like taking any chances today, and we don’t even know when we’re going to get a ninth justice, so we don’t really feel like having a bunch of tie votes.” So, let’s go to Dullsville and pick up some cases that are really not that controversial. And that’s really what they’ve done, not having a lot of cases at all, and those that they have are not that exciting. There are a few, but not many.

Lithwick: Well, let’s start by talking about the few that are somewhat exciting, with the caveat that these are cases we would ordinarily talk about in the last three minutes of this interview.

We’re going to try to somehow mash them into chills and thrills. But I think possibly the most interesting case has to do with the rubber playground stuff that they use to keep children from breaking their necks on playgrounds. Can you explain a little about what Trinity Lutheran Church is about and why I am characterizing this playground stuff case as possibly the most interesting on the docket so far?

Goldstein: So, there’s a state program that provides funds for playground equipment and for the grounds of them in an effort to improve them. And a church, Trinity Lutheran, which has a playground, applied for a grant in order to improve the surface of its playground and was told that it couldn’t because that would be a contribution to a religious institution, and the state’s constitution forbids that sort of financing for anything associated with a church.

And so the question here is, is the state doing something that prevents entangling the government with religion and maintaining the separation of church and state, or is it actually just discriminating against religion institutions? And what do you do under our First Amendment and the religious clauses of it when you have that kind of tension, where the state wants to not get too close, but on the other hand, is it actually putting religion at a disadvantage?

Lithwick: And am I right to say, Tom, that this is hardly the first case in this line of cases? I mean, we’ve been fighting about how much parochial schools can get government services without running afoul of the First Amendment. But what’s new or startling about the playground stuff?

Goldstein: Well, it’s true. People are pretty familiar with debates over school vouchers, for example, and when it is that you can use government funds to send kids to church schools, for example.

What’s new here is maybe the conflict between the state constitution and the federal constitution. When is it that a state can say that it wants to not be too involved with religion? And are these clauses in state constitutions—and there are a few of them—actually a legacy of, say, anti-Catholic animus dating back many, many, many decades?

And a lot of these fights are just never, never ending, because it’s such a difficult line to draw when the government’s getting too close and spending too much money on religious institutions, and people feel very, very strongly about them. And then, there’s the, “Oh, come on,” factor. Like, playground equipment? Are we really that worried that we’re financing religion when what we’re trying to do is stop kids from busting their heads open? So, I think it has some very accessible features, where people can look at this case, kind of wrap their arms around it, and say, “I get what’s going on here.” It doesn’t have a lot of the technicalities that others do.

Lithwick: So, Tom, one thing that is, a standout is how many intellectual property cases the court took this term. And before we dig into some of them, do you have a theory for why these IP cases are somehow not getting ground through the “Eh, we don’t want to be 4–4” mill, the court is reaching out and taking them?

Goldstein: Well, the Supreme Court has tended in patent cases in particular to be pretty unanimous. They haven’t really been able to get excited enough about them to have a lot of 5–4 fights. They tend to step into cases involving patents only when they think the lower court has done something wrong, and they dispose of them pretty easily. So, it’s a good example of something that’s important. There can be tens or hundreds of millions of dollars at stake. Patents have a lot to do with the modern economy, so the justices saying, look, we have an important role to play here. But it’s not the kind of area where the conservatives and liberals are really going to butt heads and there’s the prospect of a 4–4 tie.

Lithwick: So, let’s talk about one of the cases, which is a big deal, and that is the Samsung case. Can you walk us through the issue in this, one of the intellectual property disputes?

Goldstein: Sure. And full disclosure, I represent Samsung in the case, but I think I can describe it pretty objectively. And that is, Apple has design patents. We’re used to think of patents as how this machine operates.

But there’s another provision of the law that says you can have a patent on how something looks, and Apple has several of these, and they relate to the iPhone. So, for example, Apple has a design patent on the front screen of a cell phone with rounded corners. And they argued to a jury, and jury accepted that Samsung had infringed that patent. And the question is, OK, you found infringement of the design patent. What do you do in terms of the damages?

And what the lower court held was that Apple doesn’t get Samsung’s profits that stem from the front face of the phone, but rather gets all of the profits. And so, if you prove an infringement of that kind of design patent, or the home button, or the little holes for the speaker grills, then you get all the money that comes from the entire product, in this case around $500 million. And so, it’s a question about how broadly Congress intended to protect design patents and what the best rule would be in terms of protecting intellectual property and not deterring people from bringing new products to market.

And it arises in the context of the smartphone wars. Apple and Samsung have been butting heads now for years over all kinds of patent cases.

Lithwick: Tom Goldstein, making the tiny holes in your speakers sexy since 2016. Let’s stay on these intellectual property cases for a minute. And tell us about the cheerleader uniforms, Tom.

Goldstein: Yeah, well, there’s a real fight over the kinds of protections that you can have when it comes to designs on clothing. And so, here we have what the rules are going to be for protecting the designs of cheerleader uniforms, which is important to a significant number of high schoolers, I know. But also, the concept is important, because a lot of clothing is based on principles of design, and a lot of big companies are very protective of not just their own individual trademarks, but the way that they design clothing.

So there are billions of dollars at stake in the kinds of protections that you can get in this field.

Lithwick: Let’s turn to a pretty serious case that has to do with racial bias in jurors. Do you want to set the table on that, Tom? Because that seems like it is, in some ways, dovetailing with the intense racial anxieties that we are feeling this moment in America.

Goldstein: Yeah. So, we have a rule in this country that says, look, if you go to trial and there’s a jury, and you’re, in a criminal case, convicted by the jury, we’re not going to later on look behind the scenes to make sure that particular rules were being followed, because we don’t want to intrude on the jury’s deliberations. We don’t want to second-guess them. Kind of, what’s done is done.

But that rule really—the rubber hits the road in this case where there are serious allegations that there was racial bias expressed in the jury room by some of the jurors. And so, “Can you completely immunize your criminal conviction from any inquiry at all into whether there was something so significant as racism in the jury’s deliberations?” is the question. Do we have a really, really, really bright-line rule that we’re just never going to look at that stuff, or can you look behind the curtain some if you can at least make out a serious showing that there was a real problem.

Lithwick: And while we’re talking about juries, can you also talk just for a moment, Tom, about Buck v. Davis, which has to do with expert witnesses?

Goldstein: Sure. So, here we have a very serious criminal case where the issue ultimately is, what sort of procedural obstacles are there to challenge convictions that we now realize are completely outrageous?

So, here, the criminal defendant’s lawyer put on an expert report in his trial, and for some reason, the lawyers brought in an expert, and his client was African American, and the expert report said that African Americans have a propensity to be dangerous. This was not a good strategy, it turns out, to suggest that his own client had a propensity to be dangerous on the basis of his race. And so, he seeks to have a federal court adjudicate whether that was an effective assistance of counsel.

And the question is, is he just out of luck because Congress has enacted these rules and the Supreme Court has been very tough on when you can bring claims up? Or are we’re going to create some daylight and some room for the courts to tackle things like this? And the very fact that the Supreme Court stepped into the case and granted his petition suggests that there is real sympathy for not letting this kind of conviction stand.

Lithwick: I want to ask you, before we move on, if there are any cases currently on the docket that listeners should be really, really, really excited about that we’ve so far missed.

Goldstein: Well, I would say, in an era in which we’re getting closer and closer to the election, the court is tackling a couple of racial gerrymandering cases that deal with the intersection of politics and race, out of North Carolina and Virginia. So, what has happened over the past couple of decades is that you have particularly Republican state legislatures, but not exclusively, trying to draw districts that favor Republicans.

And obviously Democratic legislatures do the reverse, so it’s fair game on both sides. But what has happened is that, in drawing district lines, in part, what they have done is put together a lot of minority communities. And so, it’s a real question of, when is it that the state is - and the legislature, in being conscious of race and focusing on race to some extent in drawing district lines, but maybe for political ends. Where does the Constitution forbid that as involving too much race?

Because there is such a close correlation between the voting patterns of African American communities and Democratic populations, that it’s often very hard to tell the difference between the two. And so, the Supreme Court is—I don’t know, this might be the ninth and 10th case in this line of decisions where the Supreme Court’s been struggling with that.

And who knows what’s going to happen as we get closer to November and the election itself, and where the justices might well be asked to step in on things like voter identification laws and the like? But those cases aren’t on the docket yet.

Lithwick: Well, that’s actually where I wanted to go, which is, it seems that, even though the court desperately wants to be under a bucket under a tree in a hole, there are really huge issues percolating, and it seems almost inevitable, to me, that the court is going to get dragged into, and in fact, over the summer, has already gotten dragged into at least some of these voter ID cases.

So, tell me how it is that the court is not going to have to deal with one of these blockbuster cases that is happening right now on the ground?

Goldstein: Well the nice thing about being a Supreme Court justice—and you should take that job if you’re ever offered it—is …

Lithwick: Thank you.

Goldstein: Although, maybe nobody gets confirmed. So, I may want to reconsider that. That they can take any case they want, and they can turn down any case they want. So, it’s very hard to force them to do anything at all.

What has happened so far is that the justices have been presented with a number of emergency applications to prohibit various state laws from taking effect or to overturn lower court decisions that block the state laws. And what they have done so far is to say, “We’re not getting involved,” and have refused, really, to intervene at all, maybe on the excuse that the cases are still being litigated in the lower courts, and these are just temporary measures that are in place.

But they seem, over the last couple of election cycles, to have taken the view that what the federal courts shouldn’t be doing is stuff at the last second. You shouldn’t, in October, be upending the rules on when there’ll be voting, when you can have early voting, whether you can have voter ID laws, and the like. Their compromise when they’re so closely divided is to say, “Let’s not do stuff in a rush.”

Now, if a federal court of appeals were to issue a judgment invalidating a state voter ID law in the middle of October with voting two weeks away, the justices may view that as, “This is our job, our responsibility. We wear the big-boy pants around here,” and may well step in. But truth be told, they are hoping, hoping, hoping not to have to do that, particularly when you have a situation in which you have four more conservative justices all appointed by Republican presidents, you have four more liberal justices all appointed by Democratic presidents, and it just looks awful for them, in the middle of a presidential election in particular, to be divided on party lines. And that’s just an image that they hate so much.

Lithwick: And do you have the same answer about the transgender bathrooms? This is another issue that, it seems like it’s zooming toward the court. Can the court duck that one until it has a ninth member?

Goldstein: Yeah, it can. So, they have a case involving an individual child before them right now, while in the lower courts there are fights percolating about the Obama administration’s interpretation of federal law as requiring access to the bathroom. So, the bigger fights are still on their way. So, they can look themselves in the mirror and fairly say, “Well, we don’t have to come to this right now, even if it’s inevitable.” And if they were to perceive themselves as likely to be divided 5–4, they probably will do that.

In general, the Supreme Court doesn’t like to rush into issues. They like to let the questions percolate in the lower courts, let those arguments develop, and then ignore what everybody else thought, but nominally let some good thinking happen in the lower courts. And so, this would be very early for them to intervene in the transgender bathroom debates.

Lithwick: Is Justice Breyer’s vote—and you can explain it. When this case came at the court, again, in an emergency posture, and Justice Breyer voted with the conservative bloc, and was at pains to suggest that this was a courtesy vote.

But is this, sort of, of a piece with the other trend you’re describing, which is, “Look, we have our ways, we are not partisan, we do things out of courtesy that people don’t understand, because we’re just not like the other institutions”? That’s the explanation for that as well, right?

Goldstein: Yeah. So, Justice Breyer, in this dispute, had voted with the conservatives to put a more liberal lower court ruling on hold, and that was a bit of a surprise, because they needed five votes to put the ruling on hold, and he gave it to them, even though one would think that he probably wouldn’t vote on the conservative side on this kind of issue.

I think what Justice Breyer was doing here wasn’t signaling a broader notion of courtesies and that sort of thing. Justice Breyer is trying to build within the Supreme Court a new practice of providing this kind of courtesy vote because he wants it in the death penalty context.

The liberal members of the court have had a very difficult time getting the fifth vote that’s required to put executions on hold. And I think what he’s doing is signaling to the more conservative members of the court, “Look, when four of us want to take a hard look at something and put something on hold to give us the chance to do that, we ought to be working together in that respect, and I will work with you if you will work with me. And so, if I want to put an execution on hold, for example, I expect you to come along and give me the fifth vote that I need for a stay of execution.”

Now, we’ll see if it works out that way, but that’s my bet about what he’s doing.

Lithwick: That’s fascinating. I hadn’t thought of it. I want to ask you an existential question, because it’s existential October. And then, I want—I want to ask you an existential question, and then I want to ask a lightning round question.

And the big meta question is, there must be a lot of people listening to you and I wringing our hands about the boring …

Goldstein: Are a lot of people listening? That’s great.

Lithwick: Well, my dad. And—hi, Dad. And I want to suggest that there’s an awful lot of people who are like, “Good, the court’s not taking anything interesting. They’re deciding everything on narrow, boring grounds. Everybody is distinguishing themselves from the hideousness of Capitol Hill.”

“And this is all awesome, and it’s awesome both for the optics of people getting along and really being at pains to signal that the institution is more important than petty political fights, but also the court has been overreaching. It involves itself in everything. Thank god we have a term where nothing is going to happen, because that’s the best thing for democracy.”

Goldstein: Yeah, that institutional nihilism. There are people who are happy that Congress isn’t doing anything.

On the other hand, we need the government to function, and we kind of need the Supreme Court to function. It’s not as if we’re taking the courts out of American life. So, all these questions are still being decided by the lower courts, and the lower courts can come up with very conflicting answers. Imagine if there is a Second Amendment right to carry a pistol outside the home in Texas but not in California, and there is in Illinois but not in Massachusetts. Those are big, sexy social questions, but the Supreme Court, really what it’s doing is providing a single uniform answer.

And there are going to be really important issues where, if we don’t have nine justices, then those are going to be unresolved, and they’re going to be the subject of a lot of conflict and disagreement and a little bit of chaos in the lower courts. And that’s why Congress decided to make a Supreme Court with an odd number of members. That’s why all courts—almost all—have an odd number of members, so that we can break ties and actually decide things.

If we had nine members and, institutionally, the courts were to decide, “We’re going to take a step back, we’re going to believe in the democratic process more,” that could be a way of interpreting the Constitution. But even then, the point of judicial supremacy and judicial review is, we actually want the courts there as a check to protect the powerless. And that’s a vision of the Supreme Court that has stood the test of time for a couple of centuries and I’m all for.

Lithwick: OK, lightning round. You ready?

Goldstein: Uh-oh, no.

Lithwick: Merrick Garland hearing, yes or no?

Goldstein: Yes.

Lithwick: Yes, in a lame duck hearing?

Goldstein: Yeah, so in this is an assumption that Hillary Clinton wins, and what happens then is, Sen. McConnell, who’s in charge of the Senate, will say, “Well, I’m opposed to having a lame duck confirmation. I always believed that it should be the next president, but my colleagues have impressed on me that they want the process to move forward, and Hillary Clinton hasn’t said she wants to nominate somebody else, so can we please confirm Merrick Garland today?”

Because Republicans are playing hardball, but they’re not stupid, and they know that Merrick Garland is going to be the best nominee they could ever hope for from a Democratic president. 63-year-old, white, moderate male who Republicans have asked for as a nominee for the past 10 years, and they finally got him.

Whereas, Hillary Clinton, particularly if Democrats control the Senate, would be much more likely, if she made her own nomination, to put somebody forth that Republicans are much more afraid of as a ninth vote on the Supreme Court. So, I think that Republicans, if Hillary Clinton wins, rush to confirm Merrick Garland, and they make the vote whatever they need it to be 60–40.

Lithwick: So, then, that perhaps obviates my last question, but it’s the one that people ask me on the Metro, and no doubt ask you on the Metro, which is …

Goldstein: “What time is it?”

Lithwick: Yeah, I was going to say, “Which way is Tenleytown?” But the other thing that they ask is, “Does Hillary withdraw Garland if it comes to that?”

Goldstein: There are a lot of people on the progressive left that hope that the answer is yes. What we do know is that everybody changes sides ideologically if Hillary Clinton wins, and liberals start saying, “Yes, it should be the next president.” In the end, Democratic presidents are just not invested enough in the Supreme Court to really go to war over this and kind of embarrass President Obama over his nomination.

So, I think it’s quite unlikely that President Clinton succumbs to pressure from the left, if it is her nomination to make, and nominates somebody else just because of a desire for continuity and to endorse the views of a previous Democratic president. It’s not a sure thing, but if Hillary Clinton wins, Merrick Garland’s going to be on the Supreme Court.

Lithwick: Tom Goldstein is a storied Supreme Court litigator. He is the founder and publisher of the indispensable SCOTUSblog and really was the very first guest on Amicus.

Tom, thank you so much for joining us. We wish you a happy term and a happy few weeks of potential breakdowns before the election.

Goldstein: All right. Hope to get to talk again soon. Thanks, Dahlia.

Lithwick: And that’s going to do it for today’s term preview slash “Thin Gruel” edition of Amicus.

But we are looking forward to hearing your thoughts. Do you have questions about the coming Supreme Court term that you’d like to hear us address this season? Put them in an email, send them to We love your letters, and we love getting them all summer. If you’re more of a social media type, I’m pleased to report that as of this third season of Amicus, we are finally up and running on Facebook. Follow us at, and leave questions and comments there.

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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, and Andy Bowers is the chief content officer of Panoply. Amicus is part of the Panoply network. Check out our entire roster of podcasts at

I’m Dahlia Lithwick. Thank you for listening, and we’ll be back with you in two weeks with another edition of Amicus.