ARI SHAPIRO, HOST:
The Supreme Court ended its term yesterday with a full bench, ready to wade into some divisive issues. It was a transitional year for the court with the nomination and confirmation of Neil Gorsuch, who joined the court in April. To look at this past term and what's ahead we are joined now by NPR legal affairs correspondent Nina Totenberg - hi there.
NINA TOTENBERG, BYLINE: Hi there.
SHAPIRO: And publisher of SCOTUSblog Tom Goldstein. Welcome.
TOM GOLDSTEIN, BYLINE: Hello.
SHAPIRO: What stood out to you both from this past term? What headline would you pull out?
GOLDSTEIN: Well, on some level this really was a Supreme Court in waiting where a lot of the times we come to the end of the term and we think, gosh, we're going to have these massive 5-4 blockbusters between the conservatives and liberals. But now, for about a year and a half, we didn't even have nine members on the Supreme Court. And so we ended up in effect with a number of duds, but looking forward a lot of excitement.
TOTENBERG: I actually remember sitting in the courtroom one day when they were announcing opinions and thinking to myself, you know, this is proof positive that if you really don't want to decide anything you can do it. You can slice the salami that thin.
SHAPIRO: Just to review the recent history, it feels like a long time ago, but it was only 2016 when Antonin Scalia, who was on the court, died. And at first we thought that Merrick Garland, President Obama's nominee, would take that place. Instead, after Donald Trump was elected Neil Gorsuch filled the vacancy. Tom, you've said that for progressives this was the term of what could have been.
GOLDSTEIN: Yes. Well, right now the left can think, gosh, we could have turned the Supreme Court around for 25 years. It's been getting more and more conservative, and this was our chance. And now I think they look sort of at it - the court in terror because you have a situation in which Justice Kennedy looks almost affirmatively liberal compared to someone like a Neil Gorsuch or a Samuel Alito, the most recent conservative appointees.
SHAPIRO: And so Justice Gorsuch has turned out to be as conservative as liberals feared?
TOTENBERG: Probably more so. I made a list of the things he did in the last few weeks of the court term. There's an emerging pattern of Gorsuch voting with his new best friend, the court's most conservative justice, Clarence Thomas, and to some extent also Justice Samuel Alito, the other most conservative justice. The three of them would have let the Trump travel ban go into effect completely while the other members of the court sort of split the baby. The three of them dissented when the court summarily struck down an Arkansas law that denied a married woman the right to have her name on the birth certificate when her same sex-spouse gave birth.
On gun rights, Gorsuch and Thomas dissented when the rest of the court refused to hear a challenge to a gun carry law in California. In the campaign finance area, Gorsuch and Thomas filed similar dissents when the court refused to hear a challenge to the so-called soft money ban in the McCain-Feingold law. And finally, in yesterday's major decision on religious rights, the three - Thomas, Gorsuch, Alito - all would have gone farther than the rest of the court majority.
SHAPIRO: Justice Kennedy is about to turn 81. And for the last week, if not longer, there has been rampant speculation over whether he is planning to retire soon.
TOTENBERG: Well, Kennedy had his clerk reunion. He moved it up a year, which even made everybody even more crazy about the potential for retirement. And I'm told that at the reunion he got up and said, I understand that there's been a lot of speculation about a big announcement here, and there is one - the bar is open.
TOTENBERG: So, you know, he's...
SHAPIRO: You know, he has been accused of wanting to be the center of attention from time to time.
TOTENBERG: But the fact is that he's hired clerks for the coming term, but not for the following term - just one. And he told applicants when they were applying for, again, not this coming term but the following one, the 2018-'19 term, that he was thinking of retiring. And it's entirely possible, I think - I have a hard time imagining that he would stick it out for the rest of the Trump administration.
SHAPIRO: Tom, how significant would it be if President Trump appointed Justice Anthony Kennedy's successor?
GOLDSTEIN: Well, ideologically the earth would tremble because Justice Kennedy is really the limiting agent on the true break to the hard right of American law because you have Justice Kennedy, for example, this term voting with the left in a whole series of 5-4 cases, including, for example, about racial gerrymandering. He was critical to recognizing a right to same-sex marriage and the like. And so he's the one person that true judicial conservatives see as the roadblock to them changing the law fundamentally and getting rid of all of the liberal legacy of the past 25 or 30 years.
TOTENBERG: And if you look at the court right now, you see that there are four liberals. We call them liberals. They are not like the liberals of the Warren Court era. These are much more conservative judges. But they're not conservatives like conservatives want. Then there's Kennedy in the center and to a much lesser extent Chief Justice Roberts. And then there are the three on the harder right. And they range from pretty hard right extremely hard right.
SHAPIRO: And this is Alito, Thomas, Gorsuch.
TOTENBERG: That's exactly right. And so you see now a lot of conservative academics and activists saying, oh, my God, look, look what we could have.
SHAPIRO: It's within reach.
TOTENBERG: It's within reach.
SHAPIRO: Let's talk about the major decisions from this term. And the two biggest seemed to come yesterday. There was one about the separation of church and state, and then the other one was about the travel ban. Tom, what stands out to you here?
GOLDSTEIN: Well, in - on one level what you have is real compromise. And what you have is a real illustration of Nina's point that there aren't true liberals. In the aid to churches case, even several of the more liberal justices agree that a state can't withhold aid for something as simple as playgrounds from a church school. And they also join in lifting in part the injunction against the travel ban. But you see the conservatives and the most conservative justices willing to go much further. So they're great illustrations of how far the law still could go.
SHAPIRO: Nina, what stands out to you about these decisions?
TOTENBERG: I think what Tom said. And so you just have to think - what would happen if the harder right actually controlled five votes on this court? So what would have happened yesterday is that the travel ban would have gone back into effect in its entirety.
SHAPIRO: What are the big cases next term that you're looking ahead to?
GOLDSTEIN: Well, I think the next term really does have real blockbuster potential because it just spans a whole range of important questions. So for example, we have a case about expression and your ability to withhold services from same-sex couples. We have a real important modern search and seizure case where people are traveling along with their cell phones. And do the police have to go and get a warrant before they can find out based on the cell towers where it is that you've been? There's a really important case about political gerrymandering, which really is when state legislatures draw districts. Can they shape them in a way to favor one party or another? And of course, the travel ban itself.
TOTENBERG: Yes, and, you know, people's interests vary depending on how it affects them. But politically, I think, oddly enough, the partisan gerrymandering case is a huge one. The last time the court dealt with this in the early 2000s, Justice Kennedy was - said he was willing to consider that there was a limit to how much partisan gerrymandering there could be. But he couldn't figure out a good test that would not be too subjective. So now the people - the progressives have come back and said - have some suggestions for tests. Well, we'll see whether they're buyable or not.
GOLDSTEIN: That decision really could reshape the House of Representatives and state legislatures. It shows how a single Supreme Court case or a single vote in a Supreme Court case can just reshape the country.
SHAPIRO: That's Tom Goldstein, publisher of SCOTUSblog, and NPR legal affairs correspondent Nina Totenberg. Thank you both.
GOLDSTEIN: Thank you.
TOTENBERG: Thank you.
(SOUNDBITE OF LITTLE PEOPLE'S "EITHER OR")
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