A Wrap Up Of The Supreme Court's Most Recent Term
ARI SHAPIRO, HOST:
As the Supreme Court wrapped up its term this week, the conservative supermajority flexed its muscles. This was the first term with Justice Amy Coney Barrett on the court. And to look back at what the high court's decisions mean for the country, we are joined by three experts. Tom Goldstein is founder of the leading Supreme Court website, SCOTUSblog. Jamal Greene is a constitutional law professor at Columbia Law School. And our own legal affairs correspondent Nina Totenberg is dean of the Supreme Court press corps. Good to have all three of you here.
NINA TOTENBERG, BYLINE: Nice to be here.
TOM GOLDSTEIN: Hi.
JAMAL GREENE: Good to be here.
SHAPIRO: Will you start by just giving a quick headline that you think sums up the term?
TOTENBERG: Well, mine would be that this was the first term with three Trump appointees. For the most part, they were trying to sort of reach consensus even if doing so meant agreeing on very minimal outcomes. But on the last day in particular, you could see that this is a conservative supermajority car, and these folks are only driving in first gear. Next year we're more likely to see it in second and third gear as they gather speed.
SHAPIRO: Jamal, how would you sum up what this term was?
GREENE: I think the headline is really to look behind the headlines. You know, the court doesn't invalidate the Affordable Care Act, or the court is almost unanimous saying a cheerleader can't be suspended from the squad for cursing on Snapchat. But there were a number of decisions that could really move the law in a lot of important ways but that received less attention. To just take one example, the court says 6-3 that states can't require businesses to let union organizers onto their property unless they compensate the businesses. That's potentially a major case with lots of tentacles, but it's harder to grab the public's attention than, you know, cursing cheerleaders.
SHAPIRO: And Tom.
GOLDSTEIN: I would say that you really do have to look at each of the nine justices. They do come in wild configurations sometimes. But the most important ones are the divisions among the conservatives, that you have three justices who are extremely aggressive in trying to change the law to correct errors that they think have been around for decades. And you have three more led by the chief justice who want to go it at a more reasoned pace, maybe to protect the court's reputation.
SHAPIRO: Jamal, you talked about a couple of the major cases, but I'd love for you to each kind of drill down on a case that you think is going to be extremely consequential. Jamal, why don't you go first?
GREENE: Sure. The court was very active in the religious liberty space. I think the big decision here was one where the court holds unanimously that Philadelphia can't require Catholic social services to provide foster care services to same-sex couples. The court essentially says that since the city allows for some secular exceptions to its anti-discrimination laws, it also has to provide a religious exception as well.
SHAPIRO: Tom, what stands out to you?
GOLDSTEIN: Well, sometimes we forget to look at what the court doesn't do, the cases it doesn't take. And it seems like a million years ago, but not that long ago, President Trump and his supporters were hoping - indeed expecting - that the conservative justices would step in and overturn the apparent election results. And that was never, ever, ever going to happen. And it does show that the Supreme Court still is fundamentally an organization, an entity that works in our government and isn't prone to just being used as a political tool.
TOTENBERG: Well, voting rights would be my big decision, I think. On the last day of the term - and, Ari and Tom, you were both once my interns, so you remember that this is hardly the first time that the court has done something huge on the last day of the term that tells you something important about its agenda. And on the last day of this term, the court continued gutting the landmark Voting Rights Act by making it much easier for states to enact restrictive voting rights for - it ends up being mainly poorer people who have a hard time getting to the polls, who work and have long hours, et cetera.
SHAPIRO: Well, that voting rights case showed the court's 6-3 conservative majority, and the newest member of that majority is Amy Coney Barrett. Talk about the kind of justice she turned out to be, especially compared to Trump's other two appointees, Brett Kavanaugh and Neil Gorsuch.
TOTENBERG: Well, so far, she seems cautious, workmanlike and very collegiate. And by that, I mean she did not do what Trump appointees Gorsuch and Kavanaugh do fairly regularly, which is to write separately to highlight their own thinking even though they may agree with the majority opinion. But her vote counted big time in the COVID cases because until she joined the court, five members of the court, including the chief justice, deferred to the police powers, the public safety powers of state and local governments to make restrictions on houses of worship to try to limit the reach of the pandemic. When she joined, she made it much harder for them to do that.
GOLDSTEIN: She has immediately set herself in the center group of the court, not among the court's harder-line conservatives. But her mere presence has had an enormous effect. Because John Roberts, who is a quite conservative justice, is no longer the center ideologically, it's now Justice Kavanaugh. Because of Justice Barrett's vote on the right, Justice Kavanaugh - also quite conservative, more conservative than the chief justice - ended up in the majority of 97% of all of the cases.
GOLDSTEIN: And so if you thought that John Roberts was the left's kind of last bastion of hope, well, no longer. His vote cannot get you to a majority.
SHAPIRO: And so how stark was the 6-3 conservative-liberal divide this term? What did we see, Jamal?
GREENE: There's no question that Roberts has a cautious streak, and the battle here is over whether Justice Kavanaugh or Justice Barrett kind of join him in that caution. I think it really matters how slowly the court moves. Time is a really valuable commodity in law and in politics as well. And it's going to be really interesting to see where the center of the court ends up being in terms of caution versus being a bit more aggressive.
SHAPIRO: Tom, how would you describe it?
GOLDSTEIN: It's true that it matters whether Roe v. Wade is overruled in five years versus one or even eight instead of one. But there is an argument to be made that having it be quicker would cause the public to be more aware of what the court is doing, whether you agree with it or not. And this is a little bit the phenomenon of the frog in boiling water. As it happens slowly, it just doesn't realize that it's being cooked.
SHAPIRO: So finally, if the story of this year is that a conservative court was more cautious than they had the power to be, what do you anticipate next year to be, Tom?
GOLDSTEIN: I think that John Roberts and his fellow center conservatives will work for the story to be exactly the same. There's a massive abortion case. They won't overrule Roe vs. Wade. There's a massive gun case. They won't wildly expand gun rights. And then there'll be something of a narrative of, wow, you know, it wasn't as bad for progressives as it might have been.
GREENE: As Tom says, there's a big guns case, big abortion case, potentially a big affirmative action case, right? These are as explosive cultural issues as the court ever faces. I do think John Roberts' history suggests that he's not going to want the headline from next year to be, the court hands huge victories to conservatives in all the hot-button areas. And it doesn't depend on him so much anymore, right? It depends on how incremental he can persuade Brett Kavanaugh or Amy Coney Barrett to be.
SHAPIRO: Nina, we'll give you the last word. Look ahead for us.
TOTENBERG: Well, a lot depends on what Justice Stephen Breyer does. I mean, he's soon to turn 83. He's one of the court's liberals. He could retire, but there's no indication so far that he's going to do that. I have no idea personally what he's going to do. But if he does retire, the ensuing confirmation battle would likely overshadow the court for a time. The one area I think John Roberts is willing to go flat-out immediately is likely affirmative action. If the court takes that case, and there's every indication it will - I just think that he has long believed that you should not differentiate based on race in any way, shape or form. He's never believed in affirmative action. And I think if they take that case, it's gone.
SHAPIRO: That's NPR's Nina Totenberg, Columbia Law School's Jamal Greene and SCOTUSblog's Tom Goldstein. Thank you all.
TOTENBERG: Thank you.
GOLDSTEIN: Thank you.
GREENE: Thank you.
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