The Supreme Court recently released decisions from some of the most highly-anticipated cases of this term. Jess Bravin, who covers the Supreme Court for The Wall Street Journal, and Marcia Coyle, chief Washington correspondent for The National Law Journal and contributor to the National Constitution Center’s blog Constitution Daily, join host Jeffrey Rosen to recap those decisions and highlight the role, approach and legal philosophy of each individual justice in this blockbuster term.
Marcia, Jess, and Jeff discuss cases including:
- Fulton v. City of Philadelphia in which the Court held that the refusal of Philadelphia to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.
- Mahanoy Area School District v. B.L. in which the Court sided with a student whose initials are B.L., ruling that the school district’s decision to suspend B.L. from the cheerleading team for posting to social media vulgar language and gestures critical of the school violates the First Amendment.
- California v. Texas in which the Court held that the plaintiffs in the case lack standing to challenge the Affordable Care Act’s minimum essential coverage provision—essentially protecting the ACA from its latest challenge.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Alexandra "Mac" Taylor and Lana Ulrich.
PARTICIPANTS
Marcia Coyle is Chief Washington correspondent for The National Law Journal where she covers the Supreme Court. She is also a regular contributor to the National Constitution Center’s blog Constitution Daily.
Jess Bravin covers the U.S. Supreme Court for The Wall Street Journal. He previously worked at the LA Times, and was United Nations correspondent and editor of the WSJ/California weekly.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES:
- Decisions from 2020-21 term
- Past decisions
- "Justice Breyer on Precedent, Pragmatism, and the Supreme Court," We the People podcast episode
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. The Supreme Court term is nearly over and the court has displayed a surprising amount of bipartisan unanimity. On today's episode, we will try to explain that unexpected phenomenon with two of America's leading Supreme Court journalists, two great writers about the court, and two great friends of We the People.
Marcia Coyle is chief Washington correspondent for The National Law Journal, where she covers the Supreme Court. We're also fortunate that she's a regular contributor to the National Constitution Center's blog, Constitution Daily. Marcia, it is wonderful to have you back on the show.
Marcia Coyle: [00:01:02] Great to be with you, Jeff.
Jeffrey Rosen: [00:01:04] And Jess Bravin covers the US Supreme Court for The Wall Street Journal. He previously worked at the LA Times and was United Nations' correspondent and editor of The Wall Street Journal California weekly. Jess, thank you so much for joining.
Jess Bravin: [00:01:17] I'd rather be in Philadelphia, but it's good to join you remotely.
Jeffrey Rosen: [00:01:20] [laughs] Well, it is wonderful to have you in any form. Marcia, let's begin with this central question. Many expected that this would be the term that the Roberts Court divided six to three conservatives against liberals, but that didn't turn out to be the case. We have surprising cross-partisan alignments, lots of unanimity in really important cases, from the cheerleader free speech case, the Affordable Care Act case, and fewer of those familiar six to three divisions than expected.
You've noted that SCOTUSblog has a helpful chart noting who is in the majority. And it tells us that Justice Kavanaugh was in the majority 96% of the time, followed by Justice Barrett, 95%, and Justice Gorsuch, 95%, Chief Justice Roberts is 89%. How broadly do you explain this unexpected phenomenon of cross-partisan alignment on the Roberts Court, and which justice or justices are responsible for it?
Marcia Coyle: [00:02:24] Well, that's a great question, Jeff. And I think we have to also go back to when that six-three majority was created with the arrival of Justice Amy Coney Barrett. And not only was there conventional wisdom of sorts that this was going to be a term dominated by the conservatives, but also that the influence of Chief Justice Roberts was going to be diluted, that the justices who were much more, I hate to say hardcore, but more strongly conservative than he was and is would really be dominant. And you would think that by looking at the SCOTUSblog chart that you just saw, when you see that Roberts comes in fourth in terms of frequency in the majority. But I would say that his influence has not been diminished by much. Judging on some of the more recent decisions that we're seeing, the case involving foster care in the city of Philadelphia, the Affordable Care Act.
I think that he has been able with help from, I would think probably Justice Breyer at times, and the Alliance with Kavanaugh and Barrett, and sometimes Gorsuch, to maintain a certain amount of influence in how narrow the decisions are going to be. And that's been the surprise towards the end of the term, that some of these cases that we thought would be blockbuster cases for the conservatives have turned out to be fairly narrow. And someone who often was very closely aligned with the Chief Justice, Justice Samuel Alito, is now very much on the outs. He is in terms of frequency in the majority quite low on the list of the nine. So I think the Chief Justice has been able to form some alliances that have kept his influence in crafting narrow decisions.
Now you know, to explain what ... I think we all wish we were flies on the wall of the justices' conferences, conferences as they take their initial votes and work through who's going to write what. So I don't really know what's going on behind the scenes. But you also might attribute Kavanaugh and Barrett being so frequently in the majority to still having thatLlama a cast of being the newer justices, cautiously getting their feet wet in what to do, not wanting to move too quickly and too broadly in certain areas of the law until they have a firmer grasp of where the court is in these particular areas. So it may just be the confluence of a lot of different factors right now. And a lot of us think, "Well, maybe next term is going to be the term that really tests the Roberts Court as they take on a couple of potential blockbusters," and very divisive in the past cases like abortion and gun rights.
Jeffrey Rosen: [00:05:29] Jess, Marcia has given a very thoughtful and clear hypothesis which we both heard, namely that Chief Justice Roberts has been able to achieve narrow opinions because of the willingness of Justices Kavanaugh and Barrett and sometimes Gorsuch, to go along. Although she suggests that may not last until next term. Do you agree, or do you have a different hypothesis?
Jess Bravin: [00:05:51] Well, of course I join Marcia's opinion in the entirety. I'd only-
Jeffrey Rosen: [00:05:55] [laughs]
Jess Bravin: [00:05:55] ... I'd only add a few things that, you know, that we might consider as we look at what the court actually did this term. I have to say that it seems that a lot of the you know, the outcomes, we might ascribe to a degree, to Justice Breyer, the focus of so much attention on his future plans. Now as the senior most of the liberal justices of the justices appointed by Democrats on the court you know, he seems to be quite effectively taking on the role of managing the decline of liberal influence over our constitutional jurisprudence. Because these cases, they are the ones that we're talking about, such as the Philadelphia case involving the city's policy requiring non-discrimination based on sexual orientation.
Remember, it was the Arch-, Jo-, or rather Catholic Social Services, the religious group that did not wanna comply with that policy for reasons of its religious doctrine that won the case. It won the case on a contractual reason and a rather creative reading of the city's fair practices ordinance. But it won the case and the case included markers showing that there will be further expansion of religious exercise rights at the expense of secular interests. There was a broader majority of the court that agreed to go along with that. And you saw Justice Breyer joining in most part Justice Barrett's concurring opinion laying out basically the terms of surrender for the more secularist wing of the court that they would be working through what will replace the existing doctrine that at least in theory, does not carve out religious exceptions to generally applicable laws.
So I think that is in part going on, and it's a recognition of a diminished role that the liberals have on the court. And it's the willingness of the conservatives, including the Chief Justice, and the newer justices, for some reasons that Marcia mentioned, perhaps being willing to make that sort of a détente. But there's no dispute about where the court actually is headed. I mean, none of these decisions could be looked at as, you know, liberal victories. They've been, you know, ways that the liberals have slowed down the rightward march. But no, not at all have changed it.
Jeffrey Rosen: [00:08:04] Thanks so much for that. Marcia, Jess raises a really interesting point by calling our attention to Justice Barrett's concurrence in the Fulton case, which Justice Breyer joined as to all but the first paragraph, I'll read Justice Barrett's first paragraph. She says, "In Employment Division versus Smith." She describes the case, "This court held a neutral, generally applicable law, typically doesn't violate the free exercise clause." She says, "While a history looms large in this debate, I find the historical record more silent than supportive on the question whether the founding generation understood the first amendment to require religious exemptions from generally applicable laws, and at least some circumstances. In my view, the textual and structural arguments against Smith are more compelling."
So interesting Justice Barrett has looked hard at this question and says that the original understanding is not clear, but the text and structure do counsel perhaps against overruling Smith, but she's not willing to do that now, although she may in the future, Justice Breyer does not join that. And Jess broadly suggests that Justice Breyer has brought the liberals to the center and that if he does retire, a more liberal justice might mean less agreement. So help us unpack Jess's really interesting point, and tell us about your thoughts about the role of Justice Barrett and Justice Breyer.
Marcia Coyle: [00:09:19] It was pointed out to me recently by someone that the three liberals, so-called liberals, on the court have voted pretty much as a block in just about every case. Now they may, so far, they may just peel off every now and then in terms of a part of an opinion, but they've shown remarkable cohesion this term. And I think a lot of that is reflected in what Jess said. But I think Justice Breyer has and if he does [laughs] retire, it's a shame in a sense that he's only had this term to really function as the senior justice in on the left, often in dissent, because I have a feeling he is in a sense growing into that role as we saw other justices do. Justice John Paul Stevens, for example, truly took it over whenever he could write a majority opinion or he had the major dissent. And I think Breyer has been doing that as well.
And I think because he may sense that there are a number of justices on the right who do want to go quite far in certain areas of the law, such as religion, the Fulton case, for example, that he has strategically brought his colleagues on the left together with the Chief Justice. I think he's very interesting, and I think the Chief Justice has relied on Justice Breyer to write some of these more narrow opinions. In the Affordable Care Act, for example, Justice Breyer was the one who wrote the majority opinion that dismissed the case on the basis of standing, that the states didn't have the right to challenge the provision in the Affordable Care Act that they did. In the cheerleader case, he wrote the majority opinion and that was also an assignment from the Chief Justice. And it was a case that was very much a Breyer opinion.
Justice Breyer is not like Justice Scalia, who was a big fan of bright line rules. He sees the law, he sees the cases that come before the court as perhaps more complex and deserving of a more nuanced kind of ruling. And that's what we saw in the cheerleader case. It would frustrate Justice Scalia to no end because they may not provide clear guidance to the lower courts, or to police, or whoever has coming before the court, but that is Justice Breyer's- that's his philosophy that he doesn't engage in bright line rules he likes balancing costs and benefits before he makes the decision. But I think that the Chief Justice feels he can count on him if he assigns a majority opinion to write something that will keep a majority. And that's what we saw this term. So I think if he had a few more terms, we'd learn a lot more about him as he really grows into the role that he now has.
Justice Barrett I think it was pretty clear in the foster care, Philadelphia foster care argument that she wasn't sold on overruling Justice Scalia's precedent in Employment Division versus Smith. She didn't seem to have much appetite for it. And as we saw in her concurrence that Breyer joined in part, that she's not ready to take that step. And I think that's about all there is to it right now. This wasn't the right case for her. The right case may come sooner rather than later, but still, it just wasn't time. And again, that could be part of, you know, the newness that she is still learning the ropes in terms of the court.
So I think, I think her jurisprudence, we have to wait and just really see it. She has been portrayed as someone who is very conservative. Well, it hasn't, she's not been as conservative as Justice Alito this term, but again, it's too soon. It's just too soon to say. What we can say about her is during oral arguments she is a very sharp questioner. She has done her homework and her questions are good. She has shown the ability to pick up on her colleagues' hypotheticals, their questions, and build on them and move the arguments forward. And she's a pretty clear writer for the most part. She doesn't have, you know, the real style that, say, Roberts and Justice Elena Kagan have. But again, Jeff I'm just gonna wait and see. I think we need more data points, as they would say, before we can say what kind of jurisprudence she's going to have.
Jeffrey Rosen: [00:13:58] We'll wait and see. As a fine philosophy, Justice Brandeis said, "My faith in time is great." And speaking of Justice Brandeis, Jess, I wonder if you could pick up on Marcia's really interesting suggestion that Justice Breyer came into his own as senior associate justice for the liberals. She suggested Justice Stevens had done the same thing. We know that Justice Ginsburg said that she felt her conception of her role on the court changed when she became senior associate justice. And in this single year when Justice Breyer is playing that role, he wrote these really important opinions for the court that Marcia mentioned, including the school speech case where he said, so resonantly, that America's public schools are the nurseries of democracy.
And we know that Justice Breyer is a Tocqueville fan, he told our students that on our recent NCC class. Tocqueville talked about the jury as a gratuitous public school. And I just thought that was so revelatory of Breyer's vision of American democracy and active liberty. So your reflections, please, Jess, on what we learned about Justice Breyer in his new role as senior associate justice for the majority, and then your thoughts about Justice Barrett.
Jess Bravin: [00:15:02] Oh, sure. Well with Justice Breyer, you know he has a particular interest in public schools. He's a very proud graduate of the San Francisco Public Schools, where his father was, for many decades, the general counsel for the local school board. And so this is an area that he feels a particular resonance with, the role of public schools and their importance. He's often, or I've heard him encourage, you know, people he meets who ask him what they can do to help the country. He encourages them to run for school board. I mean, he's, you know, he's someone who really thinks the public schools have a central mission in what the country became and can be.
And that line also was, you know, a particularly demonstrative line for Justice Breyer, who's not known for declarative statements and easily quotable lines. I'm sure Marcia might agree with that when trying to write Justice Breyer's comments at an argument or one of his many factor-balancing tests in an opinion. But so yes, I agree totally that Justice Breyer has been basically the understudy to Justice Ginsburg for decades. That was his role. Appointed one year behind her, but always in a very seniority-oriented institution having to wait until she spoke before he could say something.
Now, under of course, you know, sad circumstances, he's the senior justice in this role. It's one that he has seen others do before him. It's one that he is extremely well-placed to do, having been on the court for so long, and knowing the other members so well, and having developed a relationship with the Chief Justice where the Chief knows he can trust him not to write anything that's going to inflame the other side. And it's not what he does. He's a very conciliatory person who believes very much in that institution. And so, yeah, I think this is his moment to shine and it must be somewhat frustrating for it to come at a time when while he is 82, he seems to be, you know, pretty sprightly. So there doesn't seem to be any immediate, you know, health reason that we're aware of that would drive him off the court.
Instead, there are other reasons involving the bigger place that the court inhabits in our political scheme. And that's something that he would like to not have to think about at all. He's being forced to, I guess, if he ever sees one of those billboard trucks driving around outside of the court, but he, you know, it's a little unfortunate timing for him. But timing has not been on the liberal side when it comes to Supreme Court, since I'd say, you know, 1967. So that's perhaps not a surprise.
Yes, I think he's grown ready for this role. The other justices on the left on the court obviously have regard for him. I think you could see that perhaps in the relatively small number of separate opinions by Justice Sotomayor, who has herself said that she sees her role as being, you know, pointing out things the majority overlooks, or it doesn't give proper attention to. She, along with Justice Kagan, had relatively few separate statements that might distract from the court's efforts at unity. And that could well be ascribed to Justice Breyer's influence.
When it comes to Justice Barrett, I think the first thing we have to say is how wrong the substance was of the democratic strategy against her last year. I mean, they made her out to be a guided missile aimed at the Affordable Care Act, someone selected specifically for the purpose of destroying President Obama's achievement at the you know, direction of her patron, President Trump. You know, those of us who had to read her opinions and get a sense of her legal career wouldn't have thought that, you know, regulation of the healthcare industry was the motivating interest that led her to the law and a career as a professor and judge.
And it seemed doubtful that was the main thing on her mind when she, you know, aspired to follow her mentor, Justice Scalia. But we saw that really to be the case when she got on the court. I mean, she had nothing to say in the opinion that came down about the Affordable Care Act. She just joined the majority by Justice Breyer. This was not an interest of hers. And so we see that the, you know, the Democrats had political reasons for perhaps choosing that issue and making these signs that they held up at the confirmation hearings, and talking about people, their other constituents who would lose all their important healthcare if Justice Barrett were confirmed, and that turned out to be totally, completely wrong. And probably some of the Democrats knew that at the time.
That's not to diminish the other aspect of her jurisprudence, but she is a conservative and she is going to be voting for the conservative outcome in many cases, such as the one we saw involving the union access regulation in California. That was a flat-out ideological split and she was exactly where you would expect her to be. That's where she was in some of the cases involving a criminal procedure earlier in the term. Six-three cases, she was exactly where you'd expect her to be. And I think you'll find those you know, up and down the line as, as her career progresses.
So yes, Justice Barrett did not immediately move to the far right of the, of this court at least, which Justice Thomas still has a firm foothold on, but she did not come in as a, you know, acolyte of President Trump, didn't do anything to help his quixotic effort to retain power after losing the election as, as Trump and some of his supporters hoped or expected that she would. So, yes, she's been her own person, but her own person is a very conservative judge.
Jeffrey Rosen: [00:20:16] Thank you very much for that. And thank you for noting the six to three decisions that we did see, including those involving criminal procedures, such as the life sentence for juvenile offenders. That was a six to three written by Justice Kavanaugh five to four COVID restrictions and religion, and a six to three on union and labor rights.
Marcia, I want to ask you about Justice Kavanaugh, and I wonder what you think of a really interesting Justice Breyer made during our NCC class. He said, "Pure partisan politics does not play a role on the Supreme Court. I've never heard justices talk about cases in partisan terms, but it's subtle and complicated because political philosophy may play a role. And if you are an Adam Smith free market person, or a malice socialist, that might influence your view of the case but it's not pure partisan politics.” What does that tell us about Justice Kavanaugh's political philosophy? How would you distinguish it from say Justice Gorsuch and Justice Thomas? And what role has Justice Kavanaugh played on the Supreme Court?
Marcia Coyle: [00:21:29] Well, okay. I think he can be distinguished from Justice Gorsuch. I think Gorsuch has the libertarian streak that comes out every now and then in criminal cases, much as it did for Justice Scalia. Also, I think Gorsuch is closer to Thomas in terms of really applying an originalist approach that is looking at what the people at the time of the passage of the constitution or a particular amendment were, were thinking of, in order to relate it to ... I-it's what they call original public meaning, and then relating to the case before them, the interpretation that they're doing. I think those two are very much in the mold of Justice Scalia.
Thomas certainly is a very, you know, by-the-book originalist, I think in his approach to cases. Gorsuch, not always, but pretty close. Kavanaugh, he had called himself an originalist but I think, you know, he's not in the same league as those two. And you know, when you talk about politics, this is so hard. I tend to think that he is, Kavanaugh is, more political than other justices, and I don't mean partisan, but I think that he is more strategical than some of them. I think Justice Thomas will call a case as he sees it, regardless of what anybody thinks. And I don't think he's too interested in compromising much.
And I think Justice Alito also is, you know, a very staunch conservative, and sometimes, you know, will move if he has to off of what he thinks, but I think Kavanaugh will do that. And I think that's why, at least in his first term, he was so close to Roberts in agreement. I think he studies Roberts and also I've noticed, and I haven't counted, so I may be wrong, but I get the sense that he's writing in almost every case. It may be a concurrence, in which he really doesn't say a whole lot, but he feels he has to say something. And I think he, you know, maybe he's just, I just think he's more political in the sense of strategic. And again, I think it is a little early to see where he's headed. I do think he's very conservative. But I don't think he is as close to Roberts and we've seen them diverge especially in the COVID cases. The COVID religion cases.
So you know, I think it's a little too early to, as well to say where he's headed with this, but he's the kind of justice that I sometimes think I look at and think, "Well, he wants to be Chief Justice someday." [laughs] And John Roberts has got a long a number of years ahead of him. So I don't know how that's going to happen, but he just strikes me, and maybe Jess has some thoughts too on this, but he just strikes me as more strategic, more political. I don't know that he really has the deftness yet that Roberts has. I don't know that he has the kind of concern for the institution that Roberts has yet, because he hasn't been there that long. He, I think they all have a concern for the institution of the Supreme Court, but when you're chief it's like a step beyond that.
So I don't know, one interesting dynamic I thought on the court this term was the interplay between Justice Kagan and Justice Kavanaugh. Justice Kagan sort of cut him down a couple of times with some of the comments he made in ... There was the criminal case, I think it was the Jones case in which he jabbed her because she was taking a position in dissent that was opposite of what she had in an earlier case that was precedent for his majority opinion. And she, you know, accused him of keeping score and, "You don't do that. You judge cases as they come before you." and I think she's done it twice now, where, where she's jabbed him. And he, you know, it was that kind of, kind juvenile. I don't mean juvenile in the sense of, you know, really young, but it was an artful writing by Kavanaugh that he didn't have to do, but he did, to get her response.
And she, you know, she will respond. She doesn't have as sharp an edge often as Justice Alito had in his writing. But you really do not want to mix with Justice Kagan because she is a better writer than Kavanaugh is by some. So he still... I don't know, he's I haven't ... I think next term, we're going to learn a lot about Kavanaugh. I keep saying that about all of them, we're going to learn a lot more, but to me he is political in the sense of more strategical in terms of where he wants to be in a case and how he is perceived by others both inside the court and outside the court.
Jeffrey Rosen: [00:26:44] Such fascinating insights about Justice Kavanaugh, and I love your wisdom that it's too soon to tell from any of these justices cost of mind, of course, the famous response of Zhou Enlai, who was supposed to have said, when asked about the influence of the French Revolution, "It's too early to say." But he apparently wasn't talking about the French Revolution, but the student revolts Jess, your thoughts about Justice Kavanaugh. Marcia said so much, and she really interestingly contrasted him with Justices Gorsuch and Thomas, who she said were originalists, more libertarian, and less likely to compromise. How would you compare him to the other conservatives? Do you agree that he's more strategic or pragmatic, and how is this playing out on the court?
Jess Bravin: [00:27:24] Well, again, you know, Marcia said it all. I would say this, you know, in looking at the distinction between, you know, Kavanaugh and Gorsuch and where they fit into the dynamics of the court. I mean to me you know, Kavanaugh comes off as a sort of more touchy, feely version of Alito. He's not there with a particular sort of method that he is trying to prove his scientific towards, the way that Gorsuch or Scalia, or Thomas would do. And you know if he seems to be more kind of slightly more outcome-oriented than, than they would be, that if it's, if it's helpful to rely on originalist argument to get to a certain place, then that's what comes up to the floor. If it's, if it's not, then there are other methods to get where what, to what you think is the correct result.
You know, and that's not to say that he's not you know, being authentic or being or being duplicitous, it's just that there are different interpretive methods. And you know, he is not as wedded to, you're always using the same one as, as we would see you know, Thomas, or Gorsuch, or Scalia purport to do, or Barrett for that, for that reason. You know, the idea though, that he wants to I mean, something Marcia said that's, that's quite, you know, insightful is that, is that he does feel a need to explain himself a lot. It's as if he wants to tell the losers in the cases, and each case is going to have a loser to one degree or another, sometimes [laughs] involving, you know, like the executions, I mean, really losing that he understands where they're coming from and he respects where they're at, and it's, you know it, you know, his ruling against them isn't something intended to show disrespect or lack of regard for their interests.
You know, he's made those comments about gays and lesbians when it came to the case last year, the Bostock case involving the Civil Rights Act and non-discrimination protections for employees. You know he feels a need to sort of explain that he understands where all the parties are coming from. And perhaps that's an effort to, you know, improve the legitimacy of the court to show that all sides are being considered fairly, even those that lose. But it also seems to be that he wants, he wants the public to know that too, that he understands where all the parties are.
But when it comes down to the bottom line he's lining up with the, you know, conservative outcome in all these cases, even in opposition to Gorsuch, as we saw last year in that Bostock case. A difference was in the Affordable Care Act case this year, where I think Gorsuch was in the minority with Justice Alito where they said there was standing to for Texas and other states to attack the act. In that case, by the way, I just wanna point out, if it's not on the agenda, is the very interesting concurrence by Justice Thomas, where Justice Thomas who joined Breyer's opinion in full, added a concurring opinion, which did something that they explained, you know, why he was voting to uphold the Affordable Care Act after voting twice before to strike it down.
And in some ways it's similar to the position that Justice Kagan discussed in that juvenile rather in that unanimous jury case that Marcia mentioned. You know, why is she voting now for extending this rule of non-unanimous juries to when she voted to uphold a precedent that had previously authorized non-unanimous juries. Same thing here with Clarence Thomas, he wrote that he thought the earlier decisions the court made were wrong, but given where the state of the law is now, and the specific legal issue before the court, there was no standing for the state of Texas and other challengers to come up against the Affordable Care Act. So it was an interesting concurrence to read and to see Justice Thomas departing from what he thought, you know, would be the ultimate correct result, getting rid of the Affordable Care Act, but accepting that in the framework of the court's jurisprudence, this particular legal claim had to fail.
Jeffrey Rosen: [00:31:11] Many thanks for that. It's so illuminating to hear you both discuss the individual justices that I'm going to ask Marcia about Justice Alito, who Jess just mentioned. Justice Alito in November of this term gave a much remarked speech at the Federalist Society lamenting that the first amendment rights to free exercise of religion and the second amendment right to bear arms were becoming second class liberties. He was in relatively lonely descent in several cases this year, including Nestlé v. Doe, the Alien Tort Statute case, where he was the only dissenter, and he was one of two in the Affordable Care Act case. Marcia, what can you tell our listeners about the constitutional philosophy of Justice Alito?
Marcia Coyle: [00:31:55] Very conservative. [laughs] yes. This was not a great term for Justice Alito. I think, yeah, I think I even wrote about that for the Constitution Center's blog. He [laughs] I think, as I said earlier when we were talking about Justice Kavanaugh he has a very definite judicial philosophy, and it's quite conservative. He, oh, the religion speech that he gave to the Federalist Society was not the first time I heard him give something like that very early in his time on the Supreme Court. He also had introductory remarks at the Federalist Society and spoke as well about religion.
This is [laughs] ... And then if you recall, it wasn't too long ago when Bill Barr was attorney general, that he gave a very similar speech at the Notre Dame Law School about how secular society was basically pushing religion out of the United States of America. And I sort of, I mean, I think if you read, you know, the opinions that were in the COVID religion cases earlier in the term, even though they were unsigned opinions with a couple of exceptions when there were dissents and that they really do believe the conservatives, and particularly Justice Alito believes that the religion clauses really do take precedence over other constitutional rights.
And I think we've been seeing how religion clause challenges are prevailing. I think one of my colleagues wrote nearly always prevail. So I think that's one area that he feels extremely strongly about. And we're going to see more of that. Not only from him, but from Gorsuch, Kavanaugh, and I think Barrett as well, despite what she wrote in the Fulton case that scenario of the constitution that they have very strong feelings about.
I think sometimes, Jeff, it's the nature of the cases that come before the court that it could be a bad term for Justice Alito this term, but next term could be a great term. And I think Justice Scalia once said the same thing to me that there was a term when he actually thought about retiring, because it was such a bad term. And then things turned around. The membership of the court changed, and suddenly he was on top again. So it could well be just the nature of the cases. I wish I had more in-depth to say about Justice Alito. I never found him to be one of the more complicated justices when it came to judicial philosophy. He has joined opinions that I sometimes thought were not in line with what he thought.
But he, you know, when he does that, he usually writes separately to explain his feelings. But you know, he has an almost emotional response to religion cases, as well as speech cases involving hate speech, speech that we all, the general public, would think is horrible speech. For example I remember how upset he was with the court's ruling involving the Westboro Baptist group that would protest outside the funerals for military service members and the court upheld their right to do that, but, oh, he thought that was terrible.
And also when someone would wear a metal that they had not earned. And I mean, there were other examples where he ... So he has certain areas of the law that he feels very, very strongly about, and it's almost like an emotional response to it. Otherwise, you know, he is just conservative, and his approach to criminal justice is very conservative, very pro-government, pro-prosecution. So you know he just had a bad term. We'll see if next term is better. Maybe Jess has something more in depth about Justice Alito than I can cough up here.
Jeffrey Rosen: [00:36:04] That was great. Your observation that Justice Alito's responses sometimes seem emotional, is powerful. I think of Justice Holmes', his observation about the major premise of Justice Peckham's jurisprudence, which he said was and he ... and Justice Holmes also called Justice McReynolds a naturmensch, a Nietzschean nature man who responded to things purely emotionally. So there are precedents for this.
Jess, for the thoughts about Justice Alito, and because you're just, all both of you are shining such a bright light on all the justices,I'll ask you to turn to Justice Kagan. What were your favorite moments in a term where she had some real zingers, she engaged and rebuked Justice Kavanaugh's, as Marcia mentioned, and what role is she playing on the court?
Jess Bravin: [00:36:55] Well, just certainly just to compliment what Marcia already said about Justice Alito. I mean, I think we all think of him as the most Peckhamian member of the court today you know, making sure that tradition continues. A little more seriously, and, you know, some people think of him as a very dour, sour person from his facial expressions during argument, or the way he shakes his head at state of the union addresses, and some of the sarcastic things he says. I just want to say that, you know, in person, he's not at all an arrogant or difficult figure and quite approachable. And I remember having a conversation about, with him about, you know, him repairing a broken down Volkswagen when he was in college and things. And he's very down to earth in person and his public reputation of him as just The Grinch I think is a bit overblown.
And he's also, you know, someone who ... He's not aloof and is I think, you know, at least one-to-one happy to engage in what he thinks and why. So I wouldn't want him to be, you know, seen as an unpleasant person, even though he does seem to play the role of sore winner quite often on the court. I mean, even when he is writing a concurrence in the Fulton case, the Philadelphia case, I mean, he's still winning, he's still on the winning side, he just didn't win by enough this term as he would have preferred to. And we've seen that with some other of the Court's conservative decisions.
His descent from the Obamacare case dismissing standing this term received praise from Professor Laurence Tribe of Harvard who, you know, reluctantly said he didn't think he often agrees with Justice Alito, but his assessment of the standing rules he thought was spot on. So, you know he's not purely, you know, an emotional figure running from seeing the law through the lens of his own passions. He’s also someone where in addition to his concerns about offensive speech, and the, you know, stolen valor case, the false metal case.
I'd also say he's probably the member of the court most attuned to animal welfare. He dissented from a case that threw out a federal statute that criminalized crush videos of small animals. And for many years, he'd bring his dog, Zeus to court. He once said at a conference that he was, you know, late at night, unable to make a decision, he'd turn to Zeus for advice. And the answer would come from Mount Olympus through his dog. So you know he-
Marcia Coyle: [00:39:22] Huh!
Jess Bravin: [00:39:22] He has his own approach but if you had a, you know, with a broad brush, I mean, I think he, more than anyone in that court would exemplify what, what President Nixon thought of as a law and order judge, or a strict constructionist. You know, a no-nonsense kind of judge who just, you know, rules the way the silent majority would rule. And that seems to be, if you look at the outcomes of Alito decisions, you know, where he's going.
Yet as with all of them, there can be exceptions. I think back a term or two to what they call the Peace Cross case in Bladensburg, Maryland, where it was another religion case, but he wrote a much more moderate opinion than you might expect that drew in votes from the court's liberals as well, at least some of them which was, you know, much more ecumenical in its approach than, than and respectful of the views of people who did not wanna see a gigantic cross on public land maintained with taxpayer funds.
So you know, he also has, I guess, a couple, you know, surprises now and then, but yes, at the moment, he is the I think most vociferous exponent of conservatism big C, small c on this court. Very rarely will he reach an outcome that's not consistent with a conservative agenda and you will see, you know, Gorsuch, Kavanaugh and even Thomas from time to time not ending up there.
As far as Justice Kagan goes Marcia points out she is the really, I think, you know, the most sparkling writer on this court, the one who has the most incentive to read her opinions all the way through, because you never know what a unanticipated smile you'll find because of her great sense of the written word. She's an interesting person to watch because although she's, you know, the most junior of the liberal justices because of her both you know, rhetorical skill and her kind of a diplomatic, I don't know if that's the word, crafty, personality, however you might frame it, you know, ability to sense the room and play it for as most as she can.
The one who's, you know, most suited in some ways to you know, give the left its best shot on this court. And I think that as the next term comes and the terms that come if the court's composition remains similar to what it is now, she's gonna face a choice. Is she going to be someone who tries to find some kind of a common ground, and perhaps with the chief and someone else, you know, might settle for a quarter loaf, or eighth of a loaf, instead of losing everything, or does she go into just full out great dissenter mode and feel that there's no, there's nothing to do to add broader legitimacy to a direction of the law that she thinks is misguided.
And instead just brings, you know, a full-on you know a Jeremiah type dissenting role, which I think for those of us who are writing about the court hope she does, because that would generate a lot of great copy to see what she has to say as a complete loser, rather than what she would say as someone who is engaged in the court's project, even as she is trying to moderate it to a degree. So I think that's her choice going forward. And that may only become clear when we see if Justice Breyer retires at some point, who his successor is and what Justice Sotomayor and the future justice want to do given their very diminished role in deciding the direction of American law.
Jeffrey Rosen: [00:42:50] Well we have two justices to pair together to get through most of the court before we turn finally, in our final round, to Chief Justice Roberts, and they are Justices Sotomayor and Justice Thomas. Justice Thomas we heard quite a bit of in the new oral argument by telephone format. Justice Sotomayor had some powerful, separate opinions. Marcia, what can you tell us about Justices Sotomayor and Thomas?
Marcia Coyle: [00:43:16] Justice Sotomayor I think has carved a niche for herself on the court. I'm reminded of a book by the late Professor Bernard Schwartz who wrote about the court and I think it was shortly after the court no longer had Brennan, Marshall, and Blackmun on the court. And at the end of his book he wrote a line that has stayed with me [laughs] for many, many years, in which he said, "No one thunders, no one roars." And then we went through, you know, the years with the Rehnquist Court, which by and large was a very kind of technocratic court. And it had been that way. No one was thundering, no one was really roaring. Certainly Justice Ginsburg in her area of the law, you know, spoke strongly, and not just in her area of the law, but in terms of thundering and roaring [laughs] you just haven't heard the voices like you heard with Brennan and Marshall and their opinions.
Well, I think Justice Sotomayor is coming close and feels a real need to call out the court when it doesn't address, in their opinions, issues that are a context for opinions, context for the issues that come before the court. And I'm thinking, first of all the case Utah versus Strieff, which was several terms ago, and it involved a fourth amendment issue, a search as somebody who left the house, and there didn't seem to be any real cause to do this search. Other than the fact that, you know, this was someone who, while the police had been watching his house, but really the fact that this one person left the house, there was no real reason to search him, a strong reason to search him.
And she wrote in her dissent, all about what we were, the nation was, experiencing at the time, how young black men who dressed in a certain way you know, were being stopped by police, how you know, there is this sort of burden that people of color bear in interaction with law enforcement. And she quoted from recent books that had been written about this, and it was a really very powerful opinion that she wrote.
And then in sort of in the unlikely case of Terry versus United States this term, which had to do with whether low level crack dealers qualified for reduced sentences under Congress's newly enacted, First Step Act. The court was interpreting the statute to see if they were eligible. And she agreed with the court that they weren't eligible on a straight, you know, reading of the statute, it just wasn't so. But she got upset because Justice Thomas who wrote the opinion for the court in I think a footnote, had described the history of the law before the First Step Act that created this huge disparity in sentencing between crack and cocaine powder offenses.
Whites were more likely to be sentenced under one, blacks under the other. And it was a 100 to one disparity with blacks really black defendants really getting the terrible sentences. And Congress tried to change that. Well, Thomas, in his opinion wrote about how the black community and black leaders in Congress had supported that old law, because they were concerned about violence in their community, blacks were often the victims of violence, and that's where he left it. And then she wrote in a footnote as well that she just couldn't let that go, because that was not a complete history, because they did come to oppose that old law when they saw the effect of the sentences on the black community and black persons. And she really called him out.
And then she gave the full history of it, and she cited works by James Forman, who won the Pulitzer prize for his book you know Locked Up, and some other works by a law professor who gave the full history and impact of that original law. So I think she very much feels that she has to do this. She is a person of color on the bench and she's, [laughs] she's going to correct it, whether it comes from another person of color or a white justice. And we've seen it as well in some of her dissents from denials of review, in prison cases, prison conditions cases, and other sentencing cases, where she feels that if there is injustice, she has to call it out.
Even if she, you know, is, as she was in Terry, agreed with the court that those low-level crack dealers could not get reduced sentences even while drug kingpins could that she has that responsibility. So I think that's very much her role, and I think we're going to continue to see her do that as long as she feels she has to. She does not get many major opinions to write from either assigned from Justice, Chief Justice Roberts, or from Justice Breyer, if he's, you know senior justice in dissent because she is probably the most liberal of the three liberals on the bench. And she may not she may not be able to craft the kind of opinion that would ensure a majority like Breyer or Kagan could do if Roberts, you know, has to sign an opinion. So I think that's very interesting about her.
Jeffrey Rosen: [00:48:57] Thank you so much for that. Uh-uh, Jess, I think I'll ask you to tell us about Justice Thomas.
Jess Bravin: [00:49:05] Sure. And again, I do wanna also just say that Marcia is spot on about Justice Sotomayor and the role that she sees. And just a little comment there. You know, we sometimes hear complaints, or we hear conservative senators say that, you know, the judges that they appoint, they ruled not based on the outcome they want, but on the law and the liberal judges only, you know, they just purely make it up and follow their own outcome based preferences in these cases. And that's the difference between their judges and the democratic appointee judges just as that Terry case that Marcia mentioned and many other cases.
Sotomayor puts the light of that at least as a categorical criticism, because she is saying very clearly, "I wish the outcome was different, but the law requires me to keep this guy in jail." And she has said that in a number of statements she's issued from the orders list where she says, "You know, we can't take this case. The law isn't right to take this case. But the issue that it raises is worth re-reviewing at some point in the future."
Now, looking at Justice Thomas, you know, after the confirmation of Justice Barrett, a conservative pundit said, "Hooray, we've gone from the five-four Robert's court to the six-three Clarence Thomas court." and that certainly is the hope of many, many people on the right with a new composition of the Supreme Court. But Justice Thomas is not someone who is a team player, and not, and I don't say that because he's a disagreeable person, of course, he's a very agreeable person, but when it comes to his view of the law, as you suggested, he's someone who was there to compromise, who's willing to step away from what he thinks is the right interpretation of the law in order to build a consensus and get a winning coalition.
He is somebody who sees his role much as Justice Sotomayor sees that from another angle as being there to point out the right result, being there to point out what everyone else may have been overlooking. And so we've, you know, we see him often, even when he joins an outcome in a case, not joining the majority or plurality opinion, but concurring separately to explain his own reasons for getting somewhere. To get a taste though, of, you know, the unadulterated Clarence Thomas, I think you have to look at some of his solo opinions where he reaches to issues that, you know, may not have come up. Like his criticism of the Times versus Sullivan case that set the modern standard for press freedom in the United States.
He thinks it was wrong. And he says he suggested that it should be... To get a sense of pure Clarence Thomas, his concurrence in the cheerleader case the Mahanoy School District case, where he goes into the way that children were disciplined in the 18th and 19th centuries, and holds that out as the standard today for the power of the school. And he cited a case from Vermont in the 19th century where a pupil was disciplined for disrespectfully referring to the school master as being old. And if that was acceptable to the Vermont Supreme Court, you know, in the 1850s, surely today disrespect to a cheerleading coach in rural Pennsylvania should be punishable by the same terms.
So that's Clarence Thomas in his element. And it doesn't seem to be changing. It's why his joining the Affordable Care Act decision was a particular note. But I don't think we're going to see Clarence Thomas bending his views in order to build a working majority on the Supreme Court. I think we will see something that we have seen really throughout the conservative era on this court, which has lasted now, you know, half a century in which the conservatives often win, but they don't agree why. And that we will see cases where Clarence Thomas is joining an outcome in a case but not agreeing with perhaps a more measured majority opinion written by the Chief Justice or Justice Barrett going forward. We'll see again, the look to the past that Justice Thomas loves to give us.
Jeffrey Rosen: [00:52:59] Thank you so much for that. Well, it's time for closing thoughts in this absolutely riveting discussion which I'm learning so much from, and I know We The People listeners are as well. In just a few sentences, Marcia, please share your thoughts about whether this new unanimity, new comedy on the Roberts Court will last or whether next term, which will bring us cases involving gun rights and abortion, we're likely to see a very different court than we've seen this term.
Marcia Coyle: [00:53:31] Well, I always hate to make predictions, Jeff, about [laughs] the Supreme Court, because I'm often wrong. But I have a feeling that next term may be different because you have Justices Kavanaugh and Barrett, with more experience under their belts. I think the nature of the cases, as you mentioned, not only abortion, gun rights, but I will predict that the court's going to take an affirmative action case involving Harvard's admissions policies. And once you have a trifecta like that I think it's going to be a different kind of a term. It's true, I think as Jess pointed out, that there are a lot of differences within the conservative wing of the court more so than I think in the, on the liberal within the liberal wing. And that may continue to play out in terms of how far and how fast the court is willing to go. But I think we will learn a lot more about the newer justices next term.
Jeffrey Rosen: [00:54:29] Jess, last word to you. Will we see more comedy next term than this term, or not?
Jess Bravin: [00:54:37] Comedy tonight? I don't know. I think-
Jeffrey Rosen: [00:54:41] [laughs]
Jess Bravin: [00:54:41] ... I think the cases, you know, some of them are going to have a much… There'll be less room to find middle ground. It also will come against the backdrop of a midterm congressional election where control of the Senate will be important for the future of the Supreme Court. I think we'll see some sharper divisions next term, because of the nature of the cases, particularly as, as Marcia said, you said the gun case and the abortion case, and the possibly that we'll also have an affirmative action case.
But before we leave the current term, I just wanted to look back at one other aspect, which is what's often called the shadow docket, which is the decisions the court makes in cases that are not argued, but reach them on an emergency basis only on briefing and sometimes only partial briefing. And in those cases where we saw decisions on last minute election matters, and many decisions on the COVID-19 public health orders that were issued by different states and public health officials, there we saw a much sharper division in the court than we did in the argued cases that led to these o-opinions that we've been discussing today.
And that might be what you might see as like the initial reactions that the justices have to issues that come before them, and they are far less finessed than what we saw in these argued cases. And they made some significant law there, particularly in the religion area where we saw after the passing of Justice Ginsburg and the arrival of Justice Barrett a real switch in the majority that went to a five-four majority essentially upholding the most expansive exceptions for religious exercise to public health orders that we had seen a real shift in the court.
And in fact, the laying out in a procuring opinion of a test about when a public health order that burdens religion, can stand. And it was a test extraordinarily deferential to religion and quite dismissive of the interests of public health authorities or their expertise in making those judgements. So I think that we w-we should keep in mind that the court has made some important changes in the law through this other method. And we'll have to see if the shadow docket and this area of the court's jurisprudence perhaps recedes with the passing of the last election and the and the hopeful end of the pandemic or whether it becomes an area where we'll, we'll start seeing even more developments in the future.
Jeffrey Rosen: [00:57:00] Thank you so very much, Marcia Coyle and Jess Bravin, for a deep, insightful, subtle, and completely illuminating discussion of the justices of the Roberts Court and the future of the Roberts Court. Thanks Jess for your great Stephen Sondheim pun. You've both given us something erratic, something dramatic, something for everyone, a comedy tonight. We've had come-tea today with both of you in the highest traditions of We The People. I'm so grateful to both of you and we'll look forward to reconvening very soon. Marcia Coyle, Jess Bravin, thank you so much for a wonderful discussion.
Marcia Coyle: [00:57:37] Thanks, Jeff. It's been a pleasure.
Jess Bravin: [00:57:39] This was great. Thank you for having me, Jeff.
Jeffrey Rosen: [00:57:42] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Mac Taylor and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who's hungry for a weekly dose of constitutional learning, illumination, and debate. And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, the passion, the engagement of people from across the country who are inspired by a nonpartisan mission of constitutional education and debate. You can support the mission by becoming a member at constitutioncenter.org/membership, or give a donation of any amount, even a dollar, to support our work and signal your endorsement for this crucially important mission. And you can do that at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
