As Supreme Court Term Ends, Journalists Examine Its Decisions
33 min 57 sec
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| Adam Liptak |
This is FRESH AIR. I'm Terry Gross. The Supreme Court term ended Monday with a controversial decision - the Hobby Lobby case - that applied a federal religious freedom law to certain for-profit corporations. We're going to examine some of the major decisions the court handed down this term and consider what they tell us about the Roberts Court. My guest is Adam Liptak, the Supreme Court correspondent for the New York Times. He's also a lawyer and worked in the Times' legal department before he covered the court. Adam Liptak, welcome back to FRESH AIR. So let's start with what was a very consequential decision and it was the final decision of the term, which is the Hobby Lobby case. I'm going to ask you - most of our listeners are probably already familiar with the case, but I'll ask you to sum up what the decision was.
ADAM LIPTAK: So the question in the case was whether corporations have religious liberty rights - little bit reminiscent of Citizens United, in which the court affirmed earlier decisions that corporations have free speech rights. Here the court said that two companies controlled by religious families could invoke a federal religious freedom law, and under that law opt out of providing what they would otherwise have to cover under the Affordable Care Act, which is contraceptive coverage to their female employees.
GROSS: So, you know, the companies who filed this original lawsuit objected to birth control that they saw as abortifacients. They were OK with some forms of contraception like condoms, diaphragms, several kinds of birth control pills. So does the ruling apply to all birth control, or just the ones that the company might find objectionable?
LIPTAK: In dissent, Justice Ginsburg said there's no reason some other company couldn't object to all kinds of - all contraception or indeed all kinds of other things that their religious precepts might not like, like equal pay for women or vaccines or allowing discrimination against gays and lesbians. So to hear the dissent tell it, the decision could be very broad - that any sincerely held belief by a religiously controlled corporation might allow that corporation to opt out of generally applicable laws.
GROSS: So when you look at this decision, what does it tell you about the Roberts' court?
LIPTAK: So this is a characteristic Roberts' court decision. It's divided 5 to 4 with the conservatives in the majority. It takes what the conservatives say is a small step. They say it only applies to so-called closely held corporations, ones that are not publicly traded. It only applies, they say, to the special case of a small class of contraceptives. But the court has in the past in similar decisions planted a seed that would grow in time to have much broader consequences. And that's why I think Justice Ruth Bader Ginsburg, who's not ordinarily an alarmist, found the decision very, very troubling and broad.
GROSS: You know, paradoxically this decision is based on an interpretation of the 1993 Religious Freedom Restoration Act, which was meant as a corrective - as a congressional corrective, to a Supreme Court decision from 1990. Would you explain that relationship?
LIPTAK: Yeah. The Supreme Court in 1990 said that generally applicable laws apply to everybody, and the fact that you have a religious objection doesn't matter. Congress came back, and with large bipartisan majorities and signed by Bill Clinton, said, no, religion has a special place in American life. And we're going to put the thumb on the scale in favor of religion. I'm not sure that Congress thought very much about whether they meant to give corporations religious liberty rights. Although, in fairness, the plain text of the statute does seem to refer back to another law that said corporations are persons for these purposes.
GROSS: How did corporations become persons in terms of free speech, and Citizens United, I know - religion in this new case?
LIPTAK: The First Amendment piece of it actually strikes me as not that hard. The New York Times Company is a corporation, and I sure hope we enjoy free speech rights. So the fact that you're a corporation probably is not the end of the inquiry in the free speech setting. It's a little harder for many to see how corporations have consciences. But Justice Alito said that corporations are after all just the way people got together to conduct business. And the people you're protecting in the end are not this fiction of a corporation but collections of people - Justice Alito writing for the majority in the Hobby Lobby case.
GROSS: What does this mean even for employment? Because if you're going to be employed by a company that sees itself as religious and practicing its religious principles, if you don't belong to the majority religion and if a lot of, like, religious companies start sprouting up, what does that mean for your ability to follow your own religion or your own lack of religion or to even be employed at a company?
LIPTAK: That's a very good point, Terry, and that's what a lot of critics of the decision say is that the court seemed very alert to owners and shareholders and not so much alert to the rights of employees. Now, we don't know yet whether there will be a bunch of corporations raising their hands in finding they have religious objections to this or that, but it could well mean that in a diverse workforce, some people will be put to some very difficult choices.
GROSS: So Justice Alito wrote the Hobby Lobby decision. Any guesses why he was the person chosen to write it?
LIPTAK: Well, the chief justice, when he's in the majority, gets to pick - gets to assign the writer of the majority opinion. And the chief justice in difficult cases likes to go to Justice Alito, who is a very savvy, careful lawyer, who is capable of writing a decision in a way that secures the five votes on the right and pushes just as far as he can.
GROSS: So just getting back to the specifics - since the companies objected only to birth control that the companies considered to be abortifacients, are employees of those companies able to use their health insurance to buy birth control that these companies approve of, which includes diaphragms, sponges, certain birth control pills?
LIPTAK: Those other kinds of contraception remain covered by the company's insurance policies. But lots of groups say that they don't do the job as well, in particular, as IUDs, which are very effective but very expensive.
GROSS: And those would not be covered?
LIPTAK: Correct. We're just talking about insurance coverage, so nobody's going to stop women from going out and buying contraception for themselves, although that's a significant burden for many people. And it's also possible, and Justice Alito suggested this, that the government - that the government may decide to pay for such contraception or that insurance companies might actually think it's in their best interest themselves to provide free contraception coverage, given that the alternative might be covering pregnancies and newborns.
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| Supreme Court Justice Henry Alito |
GROSS: If you're just joining us my guest is Adam Liptak, the Supreme Court correspondent for the New York Times. Let me ask you about another case involving religion that the court recently ruled on, and this is the Town of Greece versus Galloway where the court ruled that town boards can start their meetings with sectarian prayers. What was this case about?
LIPTAK: The question in the case was whether people in a town in upstate New York called Greece, when they went to their town board meetings to conduct business with their fellow citizens and leaders, whether they had to sit through prayers from a chaplain of the month who was almost always Christian and not infrequently used quite sectarian language. And the court said essentially, yes - if you're offended, tough luck. We're OK with our religious traditions playing a role in public life. The dissenters said the town should have tried harder to have a diversity of faiths represented, but even the dissenters didn't have a problem with some level of prayer starting out this kind of meeting.
GROSS: But Elaine Kagan, in her dissent, said that the town's practices couldn't be reconciled, quote, "with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share in her government and that the demand for neutrality among religions is not a product of 21st-century political correctness but of the 18th-century view."
LIPTAK: Right. So her objection was to the Christian prayers and particularly to the sectarian language about Jesus dying for our sins on the cross and things like that. Her objection was not to religion as such, and if the town had tried a little harder to get some Jews and some Muslims and some Buddhists and others to offer prayers. It wasn't the problem with prayers as such. It was the problem that the prayer all seem to skew almost entirely in one direction.
GROSS: So how did the vote breakdown on this decision?
LIPTAK: This was - this was another case just like Hobby Lobby. Classic Roberts' court decision - the five more conservatives justices in the majority, the four more liberal justices dissenting.
GROSS: So another big decision that came down this term has to do with campaign finance. Would you describe that decision for us?
LIPTAK: This is the sixth or seventh decision from the Roberts' court deregulating campaign finance, injecting more money into politics. And it was novel in that it was the first decision from the court striking down a federal contribution limit. And here it's important to draw a distinction. Citizens United essentially deregulated one side of the campaign finance landscape which is independent expenditures - money you spend not coordinated with the candidate, not given to the candidate, money spend on your own on TV ads or whatever. And independent expenditures now are the Wild West.
The court has been much more careful about direct contributions to candidates. And here the question was, is an aggregate limit on contributions to all federal candidates constitutional? So let me unpack that a tiny bit. It remains the case that you can only give $2,600 per candidate, per election cycle. There used to be, before this decision called McCutcheon against Federal Election Commission, a separate limit not on that individual base contribution but about the sum of 16 or 17 of them. I forget the exact number, but there was a cap of $46,000 or something like that. And the court said, that cap has to go. There's no reason you can give to the first 16 candidates but not the 17th. If there's a reason to fear contributions to candidates, it's because it might corrupt them, the court said, but you're not going to corrupt the 18th candidate giving them the $2,600 you gave to the 17th candidate.
GROSS: So what did the dissent have to say?
LIPTAK: The dissent had to say that that's a much too narrow view of corruption, that the system can be corrupted in broader ways. And I guess if you were a big contributor and you gave to every single Democratic candidate or every single Rupublican candidate, you would have a big seat at the table, generally. So the dissent thought that the majority was - was conceptualizing the possibility of corruption a little too mechanically.
GROSS: You recently interviewed retired justice Stevens who is now - what? - 94.
LIPTAK: I wouldn't swear to it but deep into his 90s.
GROSS: Deep into his 90s, yeah ,but still very sharp. And you asked him his reaction to the decision. What did he say?
LIPTAK: He said the chief justice got it wrong almost from the beginning almost - his topic sentence in the case was that this was a case about allowing citizens to make contributions to their political leaders and play a role in their democracy. But he made the point that almost all of the contributions at issue were not going to the elected officials of Sean McCutcheon, an Alabama businessman, but to people all over the country - people who did not represent Mr. McCutcheon. And I thought that point from Justice Stevens was fairly telling.
GROSS: Yes. So Stevens was saying this is about influencing other people's election's not your own.
LIPTAK: Exactly right.
GROSS: So fit this decision in with other decisions the court has handed down on campaign finance.
LIPTAK: It's a relentless march to deregulate campaign finance. The five-justice conservative majority authentically and earnestly feels that the First Amendment should allow more money in politics, more speech. And here we have the first instance where they've moved from independent expenditures to contributions, and I don't think it's the last word in that area.
GROSS: If you just joining us, my guest is Adam Liptak. He's the Supreme Court correspondent for the New York Times. Let's take a short break, then we'll talk some more. This is FRESH AIR.
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GROSS: This is FRESH AIR. We're discussing the Supreme Court term that just wrapped up this week. My guess is Adam Liptak. He's the Supreme Court correspondent for the New York Times, and he's also a lawyer. It kind of surprised me that a decision related to abortion was unanimous. It specifically related to clinics that perform abortions but - describe what McCullen versus Coakley was about.
LIPTAK: I will, and I'll also say that this - this case and a bunch of cases like this illuminate another part of the trend. So we've been talking about the classic 5-4 decisions - bitter divisions. The court also came together a remarkable number of times this term, and this is one of them. The question in the case was whether a Massachusetts law requiring buffer zones around abortion clinics violated the First Amendment. And all nine justices said it did. The chief justice joined by the court's four liberals wrote a narrow decision left open some other ways, perhaps, to protect clinics against violence and women seeking abortion against harassment. But - and a far more conservative justice would have written the decision more broadly. But the vote count was 9-0 and that surprised a lot of people.
GROSS: Did it surprise you?
LIPTAK: I'm sure the headline on my argument piece was something like - justices seem divided in case over abortion protest zone. I wouldn't have thought 9-nothing. Now, the first amendment issues are significant. The chief justice's opinion was narrow. His ability to wrangle all of the liberal justices to join him was an impressive feat of leadership.
GROSS: What argument do you think the chief justice used to wrangle, as you put it, all the other justices into agreeing?
LIPTAK: It's - I really hesitate to speculate about what goes on at their private conferences, to which no one, not even law clerks, is admitted. But I do think he may well have appealed to a notion that a lot of them share, and this is a, in many ways, a real pro-First Amendment court that there must be better ways to stop the things you really want to stop, which is violence and harassment which is real, but not quiet speech about matters of public concern like abortion. I spent a morning at the Boston clinic, and what I saw that morning was old women quietly offering what they considered counseling to people they thought were about to make a grave mistake. And one - and perhaps not knowing all of the other alternatives. And the court said that kind of quiet counseling at least needed to be protected.
GROSS: But what happens in a situation where it's a more intimidating kind of demonstration and harassment of women who are trying to exercise their right to have an abortion?
LIPTAK: The course says there are lots of laws on the books, and there could be more laws yet that would directly target those problems. But a broad law that doesn't focus in on the authentic problems and fails to protect First Amendment-protected speech they said was problematic.
GROSS: Who wrote the decision?
LIPTAK: The majority decision was Chief Justice Roberts.
GROSS: And why do you think that's one he chose to write himself?
LIPTAK: Because it was a delicate balancing act. (Laughing) As I suggested earlier, it could not have been easy to get all of the liberals on board with him, and he probably wanted to fine-tune it to the last sentence.
GROSS: This term, the Supreme Court ruled that police need warrants in order to search the cell phones of people they arrest. And whenever, like, a digital-era kind of question comes before the Supreme Court, a lot of people get nervous because the justices aren't famous for their digital-technology savvy. But this was a unanimous ruling. Tell us a little bit about the decision and what the justices - how the justices explained it.
LIPTAK: So the question in the case was - the 12 million people arrested every year - can the police, just by dint of that arrest, maybe for something as minor as a seatbelt violation, search your smartphone, which as you know Terry, contains your entire life - your emails, your photos, your contacts, your medical records, your political affiliations? And in a very robust and muscular decision written by Chief Justice Roberts, the court unanimously said no. The court unanimously said (laughing) in a nice, crisp phrase - get a warrant. Go to the - go to a judge and explain why you have to rifle through someone's entire life. And this decision was big, bold, unanimous and not at all marked by that phenomenon you mentioned a second ago. The justices have in some cases, and certainly in questions from the bench, sometimes indicated that they don't know the most rudimentary things about technology. But this decision was savvy and surefooted, and the chief justice (laughing) seemed to have a better working knowledge of a smartphone than many teenagers.
GROSS: Now, does this set a larger digital precedent?
LIPTAK: I sure think it does. I think it means that the justices are alert to the fact that the sheer volume of data in the digital age makes a difference to how you analyze the Fourth Amendment's ban on unreasonable searches. And I think that's a big step. We'll see how far it goes. We'll see if it applies in other settings, notably in sort of government surveillance settings - NSA. But the music of this decision suggests that its impact is going to be very large.
GROSS: Is this one of the first, or the first decision, pertaining to what digital information - how digital information is going to be considered in the context of the Fourth Amendment's ban on unwarranted search and seizures?
LIPTAK: It depends how you define digital, but I think the short answer is, yes. There was a decision a couple of terms ago about whether the police can put a GPS device on your car and track your movements for a month. You might call that a digital decision, too. And there again, the decision was 9-0 in favor of privacy.
GROSS: Adam Liptak will be back in the second half of the show. He's the Supreme Court correspondent for the New York Times. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross back with Adam Liptak, the Supreme Court correspondent for the New York Times. We're reviewing some of the major decisions the court handed down this term, which ended Monday, and analyzing the direction of the Roberts' court. You know, I want to mention the affirmative action case that was decided by the Supreme Court this term that upheld a Michigan voter initiative that banned taking account of race in admission in state public universities. And Justice Sonia Sotomayor, in her dissent, said something I thought kind of scathing about Justice Roberts in it.
LIPTAK: She had some fun with a line, and I hope I quote it exactly right, that Chief Justice Roberts I think is proud of - in an earlier decision - that the way to stop racial discrimination is to stop discriminating on the basis of race. And she said back at him that in fact, this is a conversation we need to be having, that the country has not moved past these issues. And she - as a child of the projects, who achieved great success but has not lost her roots as a young Puerto Rican girl, growing up in - in New York City. And that back-and-forth was very testy. Now, I guess it's worth noting though...
GROSS: She also said he was out of touch when it comes to race.
LIPTAK: That's how I read it as well. And they have, you known, they have very different backgrounds. The chief justice grew up in Indiana in middle-class comfort. And Sonia Sotomayor comes from an entirely different world. And you probably can't help but bring some of your background to the bench with you. I would say about this affirmative action case that it wasn't 5-4. It was 6-2, Justice Breyer joining the conservatives - not a typical move - Justice Kagan recused. And it's also not a pure affirmative action case. It really asks the question about whether Michigan's voters were entitled, as a matter of the political structure of the state, to ban race-conscious admissions in higher education. It didn't go to the pure question, which is still going to reach the court again someday, of whether the Constitution even allows affirmative action.
GROSS: Were there many unanimous decisions this term?
LIPTAK: There were an extraordinary number of unanimous decisions.
GROSS: Which is funny 'cause we think - many of us think of the court as being very divided right now.
LIPTAK: This is really a tale of two courts. If you focus on the decisions we've mostly talked about, they've mostly been quite divided and along predictable lines. If you step back, Terry, and look at the whole landscape, about two-thirds of the decisions were unanimous. As we discussed, some of that unanimity is fake because the rationales are so different, but not all of it. This really was a term in which the court came together in ways we haven't seen in the nine years that John Roberts has been in charge.
GROSS: What do you think you learned about Chief Justice Roberts this term?
LIPTAK: I think my impression of him as being an extraordinarily savvy tactician, playing a long game only deepened. You know, he's only 59. He's likely to be on the court another quarter-century. And in case after case, you see him taking incremental steps - but nonetheless ones that moved steadily in a direction - almost always conservative - and plants seeds that will be available a term or two or three from now that can really ripen into something much bigger.
GROSS: So when you say he's playing a long game, like, what do you think the game is?
LIPTAK: He has several court concerns. He's skeptical about government use of race to make any kinds of decisions. He's skeptical of all campaign finance regulations. He seems, judging by the case last term on the Voting Rights Act, not very sympathetic to voting rights claims. He's not in general a fan of procedural rights for criminal defendants. And in all of those areas, we've seen movement. And I think religion may be this term the defining theme of the Roberts' court of also embracing a larger role for religion in public life.
GROSS: Do you think that Chief Justice Roberts wants the court to be seen as a court that is not divisive, even though there are such deep divisions in some areas such as religion - the role of religion and public life on the court?
LIPTAK: The chief justice in particular and all of the justices hate to be thought of as political actors. They think they're doing judicial work. True, it's informed by - call it ideology, call it judicial philosophy - but they really hate it when people say they're politicians. And they're much more open to that charge now than ever before because this is the first closely divided court in American history where every conservative was appointed by a Republican president and every liberal by a Democratic president. That sounds normal, but it's not. We've had, just in recent years, nominees of Republican presidents who were liberal. So a kind of mix-and-match used to be the case and they really want to push back against that notion. Ways to push back are more unanimous decisions and another way, whether it was intended or not, was two years ago the decision sustaining the Affordable Care Act, where Chief Justice Roberts, in an election year, saved the Democratic president's signature legislative accomplishment by joining the court's liberals to uphold the court provision of that law.
GROSS: Do you think that presidents choosing nominees for the court now choose nominees that they are certain will not change ideologically over the course of their tenure?
LIPTAK: I do think presidents have cracked the code. I don't think we're going to see more David Souters who completely surprised the first President Bush. What you see now are justices in the mold of Roberts and Alito, who are very reliable, conservative votes, nominated by the second President Bush. And the two Obama appointees, Justices Kagan and Sotomayor, almost all of them - Sotomayor's an exception - have long records working in the executive branch in Washington, where their views must have come to be very well-known. And their writings are very closely analyzed. And ideology these days just seems to play a bigger role in what presidents want when they pick justices. President Ford famously said when he appointed Justice Stevens - just find me the best lawyer you can. That statement is inconceivable today.
GROSS: My guest is Adam Liptak, the Supreme Court correspondent for the New York Times. We'll talk more after a break. This is FRESH AIR.
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GROSS: If you're just joining us, my guest is Adam Liptak. He's the Supreme Court correspondent for the New York Times. Justices Sotomayor and Kagan are the newest justices on the court. What do you feel like you learned about them this term?
LIPTAK: Different things, but interesting things about both - Justice Sotomayor is, in public life, a rockstar. She's on television. She's dropping the ball in Times Square. She's published a best-selling memoir. She's greeted by crowds of thousands of people who adore her. And she really found her voice in that affirmative action case we were talking about before. Justice Kagan is much more of an inside player, but she is a superb legal craftswoman. Her questions for the bench are very smart and focused, and her writing is just a delight. There are only a handful of good writers on the court - the ones where the reporters and the press corps go, well, at least I'll be able to understand this, and at least I'll be able to quote it because somebody who really knows what they are doing is writing, and Justice Kagan is one of those.
GROSS: Justice Ginsburg is the oldest justice on the court. She's 81. A lot of people are wondering if she's going to retire soon because of her health. She's had cancer. A lot of people are wondering if she's going to retire with enough time for President Obama to appoint a replacement because if she doesn't and if a Republican becomes president, a Republican president would be replacing her with a conservative and thus the balance of the court would be tipped for many years in a more conservative direction. Do you have any sense of that?
LIPTAK: Justice Ginsburg has told me and other reporters in on-the-record comments that she is not planning to go unless something changes. She thinks she's in good command of her work. She enjoys it. And that - she also said to Bob Barnes of the Washington Post that she thinks the Democrats are likely to do well in the next election. I'm not sure that her political analysis is maybe as good as her judicial craft. But it looks like she's planning to hang on. Now, I would not rule out that she retires in 2015. And that may not be too late, but she may have to take account of the composition of the Senate, and she may have a different view - even if she were inclined to go that way, if the Republicans take control of the Senate.
GROSS: So in looking ahead to the new term, there's a case that you say may require the court to consider how the First Amendment applies to social media. What's the case and what's its importance?
LIPTAK: Yeah, so the court did pretty well with smartphones but I don't know how well they're going to do with Facebook. The question in the case is whether a distraught, estranged husband who wrote some nasty things in the form of rap lyrics - really violent things about his estranged wife and other people - could be prosecuted for making a threat. And the First Amendment does allow making it a crime to issue so-called true threats. And the question in the case is what does a prosecution need to prove? Do you just look at the words and say what would a reasonable person think about those words? And they're pretty nasty. Or do you ask the separate question of what do you mean by the words? What was his intent? And this guy says he's just an aspiring rapper - his lyrics were no different - and, in fact, they're not - than many, many terribly violent rap lyrics which are commonplace. So here we're going to have the court try to understand Facebook, friending, tagging, emoticons, rap lyrics. They did pretty well with cell phones. We'll see how they do with that.
GROSS: Last term, the Supreme Court struck down part of DOMA, the Defense of Marriage Act. And the Supreme Court said that the federal government had to respect rights of gay people who were married in states where gay marriage is legal. So now the question is, will a decision come to the Supreme Court that asks the court to determine the - is there a constitutional right for gay people to marry? What are the odds that a case like that will go to the court next term?
LIPTAK: I think the justices have been surprised by just how broadly that decision you described - the Windsor decision on the Defense of Marriage Act - has been read by the lower courts, which have uniformly, in state, after state, after state, struck down state bans on same-sex marriage. And we've now had the first federal appeals court ruling also going the same way. And the court probably has a mixed impulses. On the one hand, they may like to see this just take place on the ground and come in at the very end to do a little mopping up. On the other hand, they hate not to be at the center of the action, and that second impulse may suggest that they would accept a case as soon as the next term, meaning we could have a decision from the Supreme Court on whether there's a constitutional right to same-sex marriage by June of 2015.
GROSS: Just in terms of how it looks, as the Supreme Court has given corporations certain religion rights and freedom of speech rights, to not give gay people full rights, such as the right to marry, would that - that seem...
LIPTAK: Well maybe they could have the right to merge.
GROSS: (Laughing) Gay corporations could marry eachother? Is that what you're suggesting?
LIPTAK: That's what I was suggesting. Your point is a strong one. I just - I don't think that's how the justices think about it, nor do I think that if the case reaches the court you are going to lose Justice Kennedy's vote, who has written all three of the court's landmark gay rights decisions, whose legacy is bound up with gay rights. I think you'll see Justice Kennedy joining the liberals in finding a constitutional right to same-sex marriage, but the court doesn't like to move too fast. And so the question is not will they someday, but will they in 2015 or 2016 or 2017? When will it happen?
GROSS: What's it like for you at the end of the term when so many important decisions are coming down, and you have to write about them more quickly, maybe, than you used to because they go on the Web right away?
LIPTAK: That's the point, Terry. I feel reasonably comfortable that I can write two or three good stories for the next day's paper if I have all day to do it, and my predecessors had that luxury. The demands of the Internet, though, are such that you're writing quick versions of the story that, if you're lucky, have the virtue of not being wrong but don't have anything like the depth of analysis I'd want them to have - a sense of context and consequences. So the web has put real pressure on the enterprise and robs you, in a way, of the time for reading and reflection and consultation that would make the next day's story even better.
GROSS: Is there a rewarding part of that equation, though?
LIPTAK: Almost none, but maybe - I mean maybe you sometimes, in putting up a rough draft of a better story, you'll get some input - some of it's civil - from readers who have ideas about how it can be improved.
GROSS: OK, I want to thank you very much for talking with us.
LIPTAK: Thanks very much, Terry, it's always a treat to be here.
GROSS: Adam Liptak is the Supreme Court correspondent for the New York Times.
Supreme Court: It Could Have Been Worse
This pattern of preferring a modestly conservative to a radically conservative result was evident on Monday, as the Court issued its last two opinions, both 5–4 decisions in highly controversial cases. At stake in Harris v. Quinn was nothing less than the future of the public sector labor movement. Plaintiffs challenged an Illinois law that required homecare workers, employed jointly by the state and private customers, to pay fees to the union that represented them. They argued that the mandated fee violated their First Amendment right not to associate with the union. Thirty-seven years ago, in Abood v. Detroit Board of Education, the Court held that a law requiring all members of a public sector union to pay dues did not violate the First Amendment of those who did not want to pay. The Court reasoned then that the state had a compelling interest in preserving labor peace through a single union, and in avoiding the “free rider” problems posed by the fact that members benefit from union representation whether they pay their dues or not, and therefore, absent a mandate, many would not pay.
The plaintiffs in Harris devoted most of their argument to an attack on Abood, asking that it be overturned. The five-member conservative majority in Harris went out of their way to criticize Abood, but they pointedly did not overturn it. Instead, the lion’s share of the opinion was devoted to distinguishing Abood from the case of the personal homecare assistants covered by the Illinois law. While the distinctions were justly criticized by the dissent, the most important point is that public sector unions lived on to fight another day. Evidently, one or more of the conservative justices in the majority was not ready to upend a nearly forty-year-old precedent on which thousands of state and federal contracts rely.
Burwell v. Hobby Lobby Stores, the Court’s last-issued decision and the most closely watched case of the term, also reflected a preference for a narrow over a sweeping result. (I discuss the legal issues in detail here.) As expected, the Court ruled in favor of a privately-held corporation’s right not to cover the costs of contraceptive methods that it deemed religiously objectionable because they operate after conception. The Affordable Care Act requires contraceptive coverage if the employer chooses to provide health insurance to its employees. But the Religious Freedom Restoration Act, or RFRA, provides that when a federal law, even if otherwise neutral, imposes a “substantial burden” on the free exercise of religion, the religious believers affected by the law in question must be exempted unless the government can satisfy a strict standard of justification. It must show that there is no less restrictive alternative to further a compelling state interest.
In Hobby Lobby, the government argued that it had a compelling interest to ensure that women had free access to contraception, and that the corporate owners’ religious beliefs did not justify denying coverage to their female employees. By a vote of 5–4, the Court sided with the corporation. But here, too, the Court did not go as far as some of its members no doubt would have liked. Justice Alito wrote the majority opinion, in which he questioned whether the government’s interest in covering women’s contraception costs is indeed “compelling,” and also mused that one “less restrictive alternative” might be to require the government itself to cover the contraceptive costs. But he did not so rule, finding that it was enough to note that the government already had in place a less restrictive alternative. For nonprofit corporations who object to covering contraception, the government requires the insurer to pay the cost without charge to the employer. The Court found that the government had not shown why the same accommodation could not be provided to small, privately-held corporations with similar religious objections.
Justice Kennedy’s concurring opinion makes clear why the majority did not go further. He provided the crucial fifth vote for the majority, and his separate concurrence is far more sympathetic to the notion that the government’s interest in covering women’s contraceptive costs is compelling. Kennedy also emphasized that the existence of a workable means to accommodate objectors was critical to the Court’s conclusion that there was another less restrictive alternative. And both Kennedy and Alito went out of their way to emphasize the limits of the Court’s decision, stating that RFRA would not permit corporations to practice discrimination by citing religious objections to anti-discrimination laws, or permit religious objectors to obtain exemptions from generally applicable immunization requirements or tax obligations.
The same “it could have been worse” pattern can be seen in other important decisions of the term. In McCutcheon v. FEC, which I previously analyzed, the Court struck down federal limits on the total amount wealthy individuals could contribute to candidates, parties, and political action committees in a single election cycle. These “aggregate” limits had been in place since 1976, and the Court upheld them when they were first challenged, on the theory that they helped forestall circumvention of limits on contributions to individual candidates. In McCutcheon, the Court reasoned that other laws had been enacted in the interim to address the circumvention problem, and that limits on how much anyone could give to a particular candidate fully served the government’s only legitimate rationale for regulating campaign contributions—avoiding the reality and appearance of quid pro quo corruption, or bribes.
The law’s challengers had asked the Court to rule much more broadly, eliminating the Court’s generally more accepting approach to contribution limits, but the Court declined to go that far. It did, however, narrow the permissible justifications for campaign finance laws, holding that the only legitimate interest they can serve is avoidance of quid pro quo corruption and its appearance. The Court had as recently as 2003 ruled that “Congress’s legitimate interest extends beyond preventing simply cash-for-votes corruption to curbing ‘undue influence on an officeholder’s judgment, and the appearance of such influence.’” This interest apparently no longer justifies the regulation of campaign spending, and as a result, Congress’s hands are even more tightly tied when it comes to addressing the problem of money in the electoral process.
Similarly, in Town of Greece v. Galloway, the Court reached a conservative result, but avoided a more radical outcome. The case concerned whether religious prayer at the opening of town board meetings violated the Establishment Clause because the prayers were sectarian in nature and overwhelmingly Christian. Defenders of the town’s practice asked the Court to abandon an Establishment Clause doctrine that forbids any government practice that a reasonable observer would understand as “endorsing” religion. This approach, first advanced by Justice Sandra Day O’Connor, renders many public displays of religion suspect; Justice Scalia and others have long criticized it as too open-ended and hostile to religion. The Court sustained the town meeting prayers, but did so on narrow grounds, emphasizing the long historical practice of holding a prayer at the opening of legislative sessions, extending back to the Constitution’s adoption and continuing unabated to this day. Given this pedigree, the Court reasoned, such prayer is permissible as long as it does not reveal a pattern of proselytizing, denigrating other religious or non-religious views, or promoting religion. And because of this historical record, the Court did not need to address the “endorsement” test at all.
In Bond v. United States, the Court declined to limit Congress’s power to pass laws to enforce international treaties, a longtime bugaboo of conservatives. Bond challenged her conviction for attempting to poison her husband’s lover under a criminal statute enacted to enforce the Chemical Weapons Convention, an international treaty. Conservative lawyers and scholars committed to limiting Congress’s power filed briefs in the case asking the Court to overturn a 1920 precedent, Missouri v. Holland, which affirmed Congress’s power to pass laws to implement any treaty. The Court ruled for the defendant, but did so on the narrow ground that the statute was not intended to cover garden-variety crimes of this nature. It thereby left intact Congress’s authority to legislate in this area.
In Schuette v. Coalition to Defend Affirmative Action, the Court yet again declined to overturn prior precedents long criticized by conservatives. The Court upheld a Michigan state constitutional amendment, adopted by popular referendum, which prohibited race-based admissions to public universities, and therefore barred affirmative action. This was not surprising; while race-based affirmative action may in some circumstances be permissible, it is certainly not required. The challengers had maintained that by passing a constitutional amendment, the voters of Michigan had made it too difficult for those who favored affirmative action to get their way: because of the amendment, they would have to amend the state constitution again, not simply convince a university board, or pass a state statute.
The amendment’s challengers relied on precedents that established a “political process” principle, which the Court had used to strike down laws that banned busing to integrate schools, precluded anti-discrimination housing ordinances, and insulated race-based rental and sale of residential properties from legal challenge. Defenders of the Michigan amendment asked the Court to overturn these precedents, but Justice Kennedy did not do so. Instead, he interpreted these precedents as limited to situations in which laws are enacted with the purpose of frustrating efforts to respond to discrimination, and thereby pose a “serious risk, if not purpose, of causing specific injuries on account of race.” Justices Scalia and Thomas wrote separate concurring opinions and would have gone further, overruling the prior precedents altogether. But they attracted no other votes for that radical view.
Finally, in McCullen v. Coakley, a challenge to a Massachusetts law that imposed a thirty-five-foot “buffer zone” around abortion clinics, the plaintiffs invited the Court to overturn Hill v. Colorado, a 2001 decision that had upheld an eight-foot buffer zone around health care facilities in Colorado. The Court unanimously invalidated the Massachusetts law, but did not even discuss, much less overturn, Hill v. Colorado. The Massachusetts buffer zone was more expansive than the Colorado law, and the Court found that Massachusetts failed to show that more narrowly tailored alternatives—prohibiting intimidation, harassment, and obstruction—were insufficient to preserve access to the clinics. Justices Scalia, Thomas, and Alito would have gone further, deeming laws that protect abortion clinics content- and viewpoint-based, and therefore virtually always unconstitutional. But again, their more extreme view did not prevail.
In each of these cases, then, the Court stepped back from the precipice of radically conservative outcomes, and instead resolved the cases on more limited grounds. In some cases, the reasoning was sufficiently constrained to obtain the assent of the liberal justices, as in McCullen. In others, the vote was 5–4 along the usual conservative-liberal lines, but one or more of the conservative justices was unwilling to go as far as the lawyers urged, or as some of the Court’s most conservative members would have preferred.
Make no mistake about it. This is a conservative Court. Only a small handful of cases this term could be characterized as reaching liberal outcomes. (The Court’s unanimous ruling in Riley v. California that police cannot search arrestees’ cell phones without first obtaining a warrant, a case which adapts Fourth Amendment law to the digital age, is by far the most notable of these.) But as conservative as some of the justices are, it still takes five votes to issue an opinion of the Court. And in most cases this term, that requirement meant that the Court’s results were less radical than some may have feared—usually because Justice Kennedy, the Court’s least conservative conservative, was not willing to go as far as his colleagues. Liberals can breathe a sigh of relief. But it better be a short sigh. The battle is far from over.