Short Talks on Big Subjects: The U.S. Supreme Court


okay all right thank you very much everybody we’re gonna get started now my name is Judy Greenspan I’m the director of public programs here at the Center for Jewish history thank you all for coming out on such a hot steamy night I’m hoping that fall comes soon but it hasn’t yet and I’d like to welcome you to tonight’s talk on the US Supreme Court with our guests Linda greenhouse and David Cole so this evenings program is part of our series short talks on big subjects and I’m curious with a show of hands how many of you have been to any of the earlier programs this year okay good this is nice to know so for those of you who have not attended before our series is produced in partnership with Oxford University Press and features authors of their highly regarded very short introductions books in a moment Nancy Toth vice president and executive editor at Oxford will say a few words about these short books of which there are currently 576 with with many more in the pipeline so Linda Green has brought years of experience and much research to the task of writing number 306 the deceptively slim book you have now in your hands starting with the origins of the court Lynda explores how the court works how it has evolved and in 87 pages plus appendices she provides readers with the tools to better evaluate and understand the Supreme Court today understanding how the past informs the present is central to our mission here at the Center for Jewish history and now with all eyes on the confirmation hearings and amidst much concern about the future of the court we’re delighted to have Linda greenhouse and David Cole the national legal director of ACLU here in conversation tonight but before we begin I’d like to share a few words about at the Center for Jewish history so one more question is there anyone here who has never been here before okay good all right so for those of you who have not been here and even for those of you who are this is a world renowned Research Institute for dollars of Jewish history it’s a destination for public programs concerts exhibitions a place to explore your family tree and most importantly the center is home to our five partner organizations and their extraordinary archives our partners are the American Jewish Historical Society the American Safari Federation the Leo Beck Institute Yeshiva University Museum and the EVO Institute for Jewish research together they possess a treasure trove of historical artifacts documents and other media that make up the largest repository of Jewish archival material outside of Israel so just a few numbers to put that in some perspective our partners combined collections include five miles of archival materials 50,000 digitized photographs 500,000 books and span hundreds of years of history so of interest to tonight’s topic for example you can find let’s hope this works in the archives of the American Jewish Historical Society a folder good containing this signed letter from Justice Ruth Bader Ginsburg along with a copy of the speech she gave at the Touro synagogue in celebration of the 350th anniversary of Jews in America it’s a wonderful speech and you can look at it online as well where she talks about quote the age-old connection between Judaism and the law the opportunities Jews found to join the legal profession in this country and the first five Jewish Supreme Court justices the very first of course was Louis Brandeis and also here in the archives is evidence of his bitterly contested nomination this is a news clipping from 102 years ago of a letter president writ oh sorry President Wilson wrote to the Judiciary Committee refuting the charges against his nominee and supporting Brandeis he said I have received from him counsel singularly enlightening singularly clear-sighted and judicial and above all full of moral stimulation so archival documents like these are accessible to anyone in this room who wants to come and visit our reading room where our librarians are available to help you dig into these wonderful resources in this building but returning to our talk this evening I don’t think it’s a stretch to use those same words enlightening clear-sighted full of moral stimulation when describing our speakers tonight Linda Greene has covered the US Supreme Court for The New York Times for 30 years winning numerous awards including the Pulitzer Prize in 1998 for her quote consistently illuminating coverage of the court a groundbreaker early on Linda was the only Radcliffe freshman her year who competed for and won a spot to write for the Harvard Crimson in her latest book just a journalist Linda describes a career path which did not initially include ambitions to cover the court however after several years at the time she was awarded a fellowship to Yale Law School she earned a master’s of study in law in one year and took over the Supreme Court beat in 1978 at that time Warren Berger was Chief Justice and the court did not yet have its first woman justice Linda’s 30-year tenure as a reporter on the court was longer than any sitting justice besides John Paul Stevens she covered nearly 27-hundred decisions and wrote some 3,000 articles before retiring from The Times in 2008 since 2009 Linda has been the Joseph Goldstein lecturer in law and the knight distinguished journalist in residence at Yale Law School and currently writes a bi-weekly opinion column on the court as a contributor write contributing writer for the time for The Times website in addition to her very short introduction book she’s the author and co-author of four more books and interestingly among her other areas of expertise which I don’t think we’re going to touch on tonight she’s also an expert in horse racing and reptiles which I find fascinating and in fact according to an interview with her daughter that was published in the Yale Daily News Linda quote knows horse racing statists and her reptiles almost as intimately as she knows her court cases so just a little aside now I don’t know if David Cole is interested in reptiles but we are absolutely privileged to welcome him to the center tonight described by the late New York Times columnist Anthony Lewis as quote one of the country’s great legal voices for civil liberties today David is unli from Georgetown University where he has taught constitutional law and criminal justice since 1990 and is the honorary George J Mitchell professor in law and public policy in 2016 david was named the national legal director of the ACLU the largest and oldest civil liberties organization in the country he oversees the ACL u–‘s US Supreme Court docket and directs a program that includes approximately 1,400 state and federal lawsuits on a broad range of civil civil liberties issues when asked in a recent interview why he took the job his answer was I think it’s an extraordinary organization the ACLU is one of the civil society organizations that have played a key role in developing and changing constitutional law I’m delighted to be now engaging one of with one of the most effective organizations in the country on that very enterprise it’s a dream come true david has litigated many constitutional cases in the Supreme Court most recently masterpiece cake shop versus Colorado Civil Rights Commission he’s received two honorary degrees and many awards for his civil liberties and human rights work he is the author or editor of ten books several which several of which have won awards and his most recent book engines of Liberty has citizens movements succeed was published in 2016 and will be on sale after the program so a final note before I step down you all received pencils and note cards and during the talk we ask you to please jot down questions that you may have for Linda and David I will collect the cards towards the end of their talk and we will have a Q&A portion at the end of the program after the program I hope you’ll join us for for a reception and a book signing in the Great Hall where both David and Linda’s latest book will be on sale and she will also be signing your very short introduction so our program will begin in just a moment but first Nancy Toth of Oxford University Press thank you [Applause] welcome back to fans of the very short introductions and new friends of the very short introductions when the series began life in the early 1990s I’m sure no one dreamed that it would be anything but short it started as a series of paperbacks called past masters which were edited by Sir Keith Thomas at the University of Oxford and these were surveys of the thought and writing of leading philosophers political figures scientists people like Aristotle and Darwin the standard cast of characters for Western Civ in 1995 Oxford’s UK office rebranded the series as the very short introductions or in acronym land of the SIS and slowly began to expand the title list to include concepts and fields of knowledge as well as people Americans and Asians as well as Brits and Europeans we now have three editors acquiring into the series and I’m happy tonight to update the box score as Judy said we have published 576 titles although that might have gone up since I left the office at 4 o’clock we will hit 600 later this fall we have a hundred and nine more titles signed as of this afternoon and another 489 on the drawing boards we have an editorial meeting next week I suspect that will go up so one of the amusing parts of working on this series is reading the alphabetical list that you will find in the front of every book and seeing the rather odd juxtapositions so never fear I will not read that list tonight but in no particular order I will point out just a few of the recent published titles as I said in no particular order the US Constitution decadence the Harlem Renaissance Military Justice which just happened to be written by Jean Fidel who is married to the greenhouse Saints the Book of Common Prayer the history of childhood stoicism artificial intelligence poverty autobiography Southeast Asia Native American literature and veterinary science so one of my great challenges is to find the right author for each topic well when it came to the Supreme Court I confess that it did not take a great deal of imagination to decide who my first choice would be I’d known Linda since we both lived in Washington many years ago and I’d been trying for more than 20 years to convince her to write an Oxford book the time was not right so nevertheless despite that I dutifully pulled the law professors and legal historians in my kitchen cabinet and almost to a person they said don’t ask me ask Linda so fortunately this time she said yes and my really only complaint was that the manuscript was so nearly perfect when it arrived that I had no opportunity to show off my electronic blue pencil and that is a problem I love to have now I have to tell one story here which is that when Linda finished the manuscript she decided to deliver it in person rather than simply emailing it and it was a dark stormy slushy blizzard a morning when she arrived in my office bearing gifts on time to the day and she said a deadline is a deadline well when she left one of our editorial assistants made a little sign wrote a deadline as a deadline Linda greenhouse and posted it in the corridor where all the editorial assistants sit I think it’s still there so now you will have the treat of hearing a relatively short but extremely thoughtful discussion between David Cole and Linda greenhouse of the critical issues facing the court and the nation in the coming years thank you for coming [Applause] so I’m David I’m I’m delighted to be here I was here for the the initial version of one of these talks it was the David Myers talk on a very short introduction to Jewish history so you know in comparison I think Linda have you had a relatively easy job two centuries one country one institution no controversy yeah but what but what now what Nancy didn’t say is that she first asked Linda to write a very short history of reptiles and then horse-racing but Linda demerged so I you know like many of you I grew up learning about the Supreme Court from from Linda I think between Linda greenhouse and Nina Totenberg most of us have that’s what we know about the about the Supreme Court to a remarkable women who have shed tremendous light on this on this institution so I’m delighted to be here in this in this conversation I’m grateful for to David for taking time out of his not only incredibly busy but incredibly important role as the ACLU national legal director we’re lucky to have him in that position so thank you for being willing to do this [Applause] thank you so I don’t I don’t know if you know know this but Brett Kavanaugh sight of you today during the during the hearings yeah I was I was on Metro North coming to New York from New Haven this morning and I started getting emails so what’s this about so I gather he cited me he credited me for the fact that yeah I’ll take it we’ll get to the Brett Kavanaugh eventually but I but he saw he he basically credited an article that you wrote about the paucity of female clerks on the Supreme Court essentially just as he was coming to the bench of the DC Circuit and he said well that’s wrong and that’s unfair and so then he said about trying to change that by hiring as many female law clerks as male law clerks which is that’s considered affirmative action I guess and in the given the history of clerkships and then many of those many of his clerks went on to clerk for the Supreme Court so he he touted you as the reason that he is a feminist so but as I say well we will get to bread camera but we have 200 years of history to get through before we get there so you know I thought I’d start with with Alexander Hamilton’s prediction or description of the Supreme Court as the least dangerous branch and and I guess you know I’d love to hear your thoughts on you know whether why he said that and whether he that history has proved him wrong yes of course the the framers had only the vaguest notion of what a Supreme Court would do and had no idea of what it would turn out to be in part we owe that to John Marshall not the first Chief Justice but the fourth Chief Justice who established the regime of judicial review the ability of the court Eclair federal statutes unconstitutional whether that’s what the framers had in mind well of course Marshall was part of the founding generation so it’s certainly what what he had in mind but it it didn’t become a really robust part of the courts operating system for many years after that I think there was close to a hundred years passed before maybe 50 or you know many years passed before the court for the second time declare the statute unconstitutional so the court we have today has travelled a far distance from the court that article 3 of the Constitution actually had in mind so did but do you think it’s still the least dangerous branch we know it’s less dangerous today as of September 2018 yeah I think it’s the least dangerous branch but everything’s relative I mean are there there’s an argument that Congress is even less dangerous because it’s dysfunctional so it can’t you can’t do any harm as I can’t do much I can’t do much good okay yeah well I David Caplin who’s somebody I covered the court with when he was covering the court for Newsweek had just come out with a new book called the most dangerous branch which is really a rather vigorous dump on the Supreme Court and you know I’m you know all these ideas have some realm of legitimacy I have to say right but the base but but but in what sense is it is it less dangerous what are there are reasons right why the court is less capable of inflicting harm on the citizenry than either of the President or Congress right so right of course the court and I I think many people don’t necessarily have this in mind on the there are limitations on the court’s jurisdiction so the court is limited to deciding cases and controversies that means cases that are that come from actual current disputes between two parties that have an issue at hand an issue at that issue so no matter what the court thinks it wants to do it has to get the cases now I’m gonna qualify that because we currently have a very activist conservative court and populated by some justices who know exactly what kinds of cases they want and who basically put out an advertising brochure and the Kay in in the form of a dicta that is to say not finding judgments but words from them in case is basically saying huh bring us the right case so we can do what we want to do the case I have in mind is I think just about the most important case of the last term the Jana’s case that basically derives from justice Sam Alito’s appetite for cutting the ground out from under public employee unions it took him five or six years to get that case tee it up he asked for it cases were then basically cobbled up as cases and controversies so you know that was the core pretty dangerous actually especially given the fact that state legislature legislators have been perfectly free for years and about half the states have taken the option of not permitting in fact public employee unions but those states headed by in this instance the governor Republican governor of Illinois who could not accomplish that through legislation because the Illinois legislature was not his control turned to the courts so and that is this the court you know it was kind of a partner in in danger it’s it’s a dynamic process yeah so I I think one of Hamilton’s notions was precisely that the court is his passive visa as compared to the President or Congress the president can decide to do something tweet about it in the morning and do it in the afternoon and and and Congress can take initiative and take on a problem and act right by by legislating whereas the court in theory sits back and just resolve disputes that come to it but as as you suggest you know when you have a when you have a well-established active political bar it’s easy to issue invitations which will then be taken up by by public interest lawyers or others who will bring bring those matters to the court and so you know it’s on the on one hand passive on the other hand it has so much power and it can it can invite it can invite these decisions but the other thing I think people talk about about the court being the least dangerous is is that it has no it has no army and it has no power of the purse so the president has the army god forbid and and Congress has the the ability to cut off funds for whatever it doesn’t like and the court issues its judgments right but if people ignore them then what yeah so what the court has is is legitimacy that what the court what the entire judicial system depends on is our willingness to abide by the rule of law as articulated by our courts and that’s why to the extent that the court is inserting itself into political disputes over the future of organized labor and so on I believe I’ve written in recent months that the court is coming close to undermining its legitimacy and we would all pay a high price for this I think we we need our courts obviously and as it’s it’s it’s troublesome so so one of the things that the the framers of the Constitution did to ensure that the court had the independence that they felt it needed to make hard decisions the right decisions what-have-you was to give the justices life tenure so can you talk about that and sort of you know how you think life tenure has played out and whether you think you know what what are the debates about whether we ought to have life tenure or not so that was that was a major innovation in our Constitution and in fact it remains an outlier in the world in fact of all the new democracies well some of them no longer so democratic but that arose after the fall of the Soviet Union that adopted a Constitutional Court system and so on none of them have gave their High Court judges life tenure I don’t know of another judicial system that has life tenure they all have either an age limit as in Canada or a term of years it was as David said an effort to preserve judicial independence and to that extent I think it has it has done that there’s a movement afoot there has been for the last maybe 10 or 20 years to revisit that one theory being and I think there’s some justification for this that its life tenure that has helped to make our confirmation process as contentious as it is because with life tenure there’s so much randomness and when vacancies occur and that makes each vacancy invested with you know huge stake so President Carter had no Supreme Court vacancies followed by President Reagan who named three people to the court elevated justice rehnquist to the chief justice ship went Chief Justice burger retired so totally random and there’s a proposal to achieve either by constitutional amendment or by some smart people think it could be done by legislation impose eighteen year terms which would give every president two vacancies in a four-year term and was sort of regularize the process so you know that could also have unintended consequences because every presidential campaign would then be elect me and here so I’m going to put on the court but we kind of have that already so maybe that’s not such a downside so I think I think there’s some problematic aspects to life tenure and of course justices stay for a very long time in some case that’s something that we all devoutly wish would continue but you know it’s it’s it’s tricky it’s iffy yeah I have a conflict of interest because I’m married to a judge so I believe in life tenure but at least in her case but but I do think it one another effect it has right is to ensure that the court is is very likely to be a conservative institution right because the membership of the court is never going to reflect today’s politics it’s going to reflect the politics of some some generation or generations past in general and is that your sense that it has had that effect yes it does because issues arise I’m afraid that my favorite example of this really was the what you might call the Rehnquist era federalism revolution where in the late 1990s for the first time since the New Deal era the Supreme Court under Chief Justice Rehnquist started striking down federal statutes as unduly impinging on the sovereignty of the states we had using language that we hadn’t heard from 50 or 60 years and what was so interesting about that is that none of the confirmation hearings for the people who were then seated on the Supreme Court had the issue of federalism even come up it simply hadn’t arisen in our domestic politics at the time that these people were nominated and all of a sudden there was from the center on the courts docket so there’s there’s a kind of a lag time presidents obviously would very much like to be able to project their own constitutional vision onto the pages of US reports the official compilation of Supreme Court decisions and to some degree they can sort of do that but on it but it’s it’s certainly not in their control because the political system will throw up all kinds of new of new issues so in the time that you covered the court I think it’s accurate to say that – there’s a phenomenon right one of the one of the effects of life tenure and independence is the judge justices can change they’re not beholden to any particular they’re not necessarily beholden to any particular constituent they don’t have to run for re-election they’ve got their job and it’s a top job and they’ve got it for life and so they can change and some of them do change and one of the things that I think is striking about you know the last 40 years or so is how to the extent that justices appear to have changed there is it is much more often that Republican appointed or conservative justices have moved to the center have moved left than liberal or democratic appointed justices have moved right I’m not sure which way is right left but you know so so if you think about you know in recent history justice Stevens a Republican appointee justice O’Connor Harry Blackmun earl warren an Eisenhower appointee David Souter Anthony Kennedy all of these were Republican appointees who became not some of them quite liberal Blackmun Souter others of centrist O’Connor Kennedy but do you have a theory or you know as to as to why this is the case and whether it’s just it’s just a contingency or or if they’re in something more going on well it’s very interesting before what the caveat of course is the the end is very small now cell whether there’s any statistical validity to you know these small numbers I don’t know but but certainly that’s that’s the case and there’s been some interesting scholarship on this so if you look at the Republican appointees say from the middle of the 20th century to today those who drifted left were uniformly people who had spent their adult lives until they went on the court outside the beltway outside in the country even if they were sitting federal judges as justice Blackmun was on the Eighth Circuit which is the Midwest justice Stevens was on the Seventh Circuit which is the Midwest they come to Washington in in midlife with certain ways of being and their their priors get kind of shaken up and the weight of being on the Supreme Court kind of may change the way they see the world or so it was seeing the ones who have not drifted left or undergone what I guess political scientists call preference change or whatever are people who were creatures of Washington so think of Clarence Thomas who we know was from pinpoint Georgia but he spent his adult life being a Washington bureaucrat think of Chief Justice Roberts who when he made the change from first being a star Supreme Court Advocate to going on the DC Circuit he had a change of venue of about four or five blocks when he when he went on the Supreme Court you know he’s not going to change Sam Alito although he was a judge in New Jersey not in Washington basically I think never cashed a paycheck that wasn’t issued by the federal government so I think those are the life experiences that account for the way the reasons some have changed and some have it so geography is destiny this is not a good sign for Brett Kavanaugh who is it entirely a creature of DC and suggest that Neil Gorsuch is going to be the one that moves to the left leaving from Colorado I mean Neil courses was raised in Washington I mean he you know he was appointed from Colorado but um but yeah so of course that kind of makes the question okay if you’re going to change why do you change to the left and on to the right you know somebody might say because progressive ideas are better I mean I don’t know you know now I’m an opinion writer I could say things like yeah but I mean it is it is really interesting so I mean they were again the N is small yeah there’s a tiny handful of examples on the other side actually I can only think of one which is Byron white maybe you could have another so Byron white of course was at JFK appointee some people might say frankfurter okay that’s a little yeah no he was a singular character but you know I mean justice white was one of the two dissenters in Roe against Wade he dissented from Warren Court Criminal Procedure Revolution descended from Miranda and he never really reconciled himself to those opinions and he became you know crustier and were curmudgeonly as he got older and you know others changed around him so you know but that just might have been his own personality so I think that IIIi think there are two two other possible things that go on right one is if the court is is sort of divided as it has been fairly closely divided for a long time from a personal perspective if you move to the center you become more important so this so we you know formally it’s been the Roberts Court for the last ten years but it’s actually been the Kennedy Court everybody writes their wrote their briefs to Justice Kennedy who tailored their arguments to to Justice Kennedy quoted Justice Kennedy as often as possible because he was the one who was most likely to swing either right or left and that gave him a kind of power that the others don’t have that’s what’s one so by moving today if if it’s a conservative majority court there’s some incentive for some conservative to move towards the middle to become more powerful and then the second is that if the core is more concern is more conservative than the country and if the courts power rests on its legitimacy and and it can and it consistently issues decisions that are more conservative than the country it risks losing that legitimacy and so there’s some you know unconscious I think the one about being more being powerful is also somewhat unconscious but there’s some unconscious pressure to kind of moderate if the country is to the left and the court is to the right to bring the court you know into into line with where the country is and vice versa if the court was 5-4 liberal and you had a conservative if the court was quite for liberal and court well the country was conservative you might see one of the liberal members moving towards the middle to if you if you buy the premise which is that the courts legitimacy turns in part on its capturing where the country is well this is gonna be a real challenge for Chief Justice Roberts because it is Roberts court in name and he is a figure of history he’s well aware of that is a student of history and the most recent Gallup polling shows that for the first time in quite a long time more people say the court is too conservative than say it’s too liberal that’s a change within the last nine months or so so you know it’s verging on into that into that territory and some people have said since Justice Kennedy’s retirement well now John Roberts will be the median justice and we’re going to see hims kind of modulate to the middle I think that’s a little wish projection on the part of some people a little facile I’m not at all sure I buy that you could say that the arrival of the first really solid conservative majority in willing to say despite the gray hair in the room in the lifetime of any of us we’re talking about the 1930s that these five conservative justices will be force multipliers for each other will give each other aid and comfort for doing what they want to do what they think is the right thing to do but you know watching John Roberts navigate this landscape is gonna be really interesting really interesting he’s a you know a smart thoughtful person and uh deeply conservative instincts but but also a deep instinct to preserve the legitimacy of the court he’s concerned about it and I’m just fascinated to see what he does yeah so so you referred back to the 30s and and the the the last time that a court was sort of markedly more conservative than the country in its outcomes was the sort of the beginning of the 20th century up through the New Deal right with the response to the Progressive Era of measures and the response to the New Deal so talk about you know what happened to the court then and what the what the lessons are of that period well of course we have the depression and we had FDR’s president and we had these innovative very federal government centered New Deal programs that he and the overwhelmingly Democratic Congress were putting out there and we had Supreme Court that one after the other was declaring them unconstitutional so that was the crisis and of course FDR had this idea the so-called court packing adding new justices to replace those who had aged out they were adding not to replace to in addition to those who had aged out and then Congress rejected that particular idea but it galvanized the country and and led some justices to modify their abuse and to resign and gave Roosevelt a working majority of the court that then lasted for a long after his life and so justice Douglas who was an FDR appointee stayed on the court until the 1970s and justice Hugo black staying on the court until then in 1971 or so so that was a response to the not just a perception but the reality that the court in the New Deal days was wildly out of step in its vision of the role of the federal government in the life of the country yeah I mean it was so much so that when when the ACLU the ACLU was founded in 1920 and so it was founded at this time when the Supreme Court the essentially the only constitutional rights that the Supreme Court recognized were the rights of corporations and businesses to not be constrained in how they treated their workers and their consumers right it was they were striking down consumer protection laws striking down wage and hours laws striking down working conditions laws all as interfering with the rights of big business and that was constitutional law and so when the ACLU was founded it it really thought there was no point in going to court in fact the first legal director of the ACLU was quoted as saying in that period we can never expect justice from the courts there’s a pretty radical statement but at that time it was true but but as you describe the because the court was was so out of whack with where the people wanted constitutional law to be it really created a crisis of legitimacy that that led to at least to a threat of court packing and led to a shift and not just a shift on worker protection laws which the court you know then basically said we’re fine but also a shift to recognizing individual rights in a much more robust way right as seeing seeing their their role was not to interfere with economic legislation which is what they had been doing before well then what are we going to do well we can protect vulnerable groups minorities dissidents and the like and that’s it’s only then right that you see the rise of real you know or the beginning of the rise of First Amendment protections and equal protection and the like so you know there’s hope well I mean you know I think it’s the case and and actually I say in the book that the court is always in dialogue with the rest of the country and with the other political institutions so it’s not maybe always obvious it’s not a it’s not an over dialogue but there’s a there’s a push and pull and I guess it was it was the great political scientist Robert Dahl who said over time the court aligns itself with the I forget exactly the words he put it but with the sentiments of the ruling elite in the country that’s actually you can you can understand Roe against Wade actually in that in that frame so you know to the extent that for instance and I’m a little obsessed with the Janis case the the labor union case because it it crystallizes it stands for so many things that are going on with the court right now but it comes along just as the labor movement certainly in the public sector is revitalized and and gaining ground not losing ground and then you have the Supreme Court that’s going in the other direction that’s a source of tension that’ll be extremely interesting to see how that plays out so this is what when I say to people when they then they say well you know now that we’re going to have five very you know strongly conservative justices on the court what can we do I think what we can do is politics what we can do is do what we can to ensure that the the the country you know stands for civil liberties and civil rights and if they do and for economic justice and if they do that will limit the ability of the court to do the the damage that it might otherwise feel free it’s it doesn’t act in a vacuum and it doesn’t act simply because of you know briefs filed on either side or or even priors of the justices they they have to be responsive to the to the country yeah you act in politics I mean constitutional law is made not only by judges constitutional culture is created in broader society and we have 50 state courts that some of which I mean state courts have the ability to interpret their own state constitutions they can’t give fewer constitutional protections than the Supreme Court in the way in which it’s been court has interpreted the Federal Constitution but they can give more and a number of them have and that itself creates a set of constitutional expectations that find their way into the culture so you can’t emphasize enough the kind of dynamic nature of the making of constitutional law so so we’re here at the Center for Jewish history so can you say a little bit about the first Jewish justice whose picture we saw at the outset and well you know to what extent his Jewishness was an issue and or not in in his selection his confirmation yeah so you know we’ve had contentious confirmation hearings and in our lifetime but a few of them amount to what was done to Justice Brandeis President Wilson nominated him he was at the time probably the most famous lawyer in America the people’s lawyer invented life insurance did all kinds of fascinating progressive pro-consumer things and he was deemed by really the establishment of the country including at that time former president William Howard Taft to be unqualified to be too radical to be not up to the job the Senate Judiciary Committee actually held a hearing which they had not previously done he was you know vilified and I mean there’s no doubt that it was because he was Jewish and I think there was a gap of some four months between his nomination and his confirmation which was exceedingly unusual in those days so so you know that was that was the story and it’s just it’s very fascinating that of course I mean after Brandeis there was a notion of a Jewish seat on the court there was a notion of a Catholic seat on the court for that matter justice Brennan was the only Catholic on the court for most of his tenure and to the extent that that has fallen away and of course as everybody knows there’s three Jews on the court now and soon to be six Catholics on justice courses is an Episcopalian currently but he was raised Catholic you know and how did this happen well you can understand how the Catholic appointments happened because that was seen as a proxy for justices who would overturn Roe but three Jews on the court you know which is very interesting so seeing against the history of anti-semitism that came to the fore in the Brandeis nomination it doesn’t seem to be something that at least is that level the American people care about there’s no seat for the white anglo-saxon Protestant that’s a shock right given given the history and and do you have a sense of where this Court is likely to lead us on the religion on the religion clauses Establishment Clause and well yeah I mean I think it’s the Establishment Clause is hanging by a thread right now I mean the I think this singular case that shows me how much of its red is hanging by was actually an opinion by then which already a five-to-four which already opinion by Justice Kennedy a few years ago a case called town of Greece which was a challenge to the expression of Christian prayer before town meetings in this town in upstate New York and the Second Circuit here had to clear that unconstitutional as a violation of the Establishment Clause the Supreme Court reversed that injustice Kennedy said in his opinion basically well you know we’re all grown-ups and we all have to put up a speech that we don’t necessarily like and basically just put up with it and the Constitution has nothing to say about that so I think there’s there’s a desire on the present court to both on cut way back on the Establishment Clause and on the free exercise side to elevate the role of religion in the public square there’s an interesting case pending right now the court has not yet accepted it it’s the case that they’ll look at when they come back for the new term and decide whether they want to take it there’s a 40-foot high cross that stands I’m sure you’ve seen it in right outside Washington DC and Bladensburg Road yes in Montgomery County that was erected as a world war 2 memorial in um I mean sorry a world war one Memorial in about 1920 by the American Legion but it’s now publicly owned by a public park Commission and the court of appeals down there declared it unconstitutional as a violation of the Establishment Clause and there’s a whole lot of people that have come in as amicus curiae I telling the court to take up that case and reverse that opinion and it’s sown I think it’s an invitation that the court this Court will find hard to resist so watch that case it’s called American Legion against American Humanist Association great time right watch it watch that space yeah yeah I think I think the religion clauses are going to be an area of active litigation for the for the next significant period so I wanted to just have you reflect a little bit on your career you you you covered the court for 30 years and I wonder in what ways did you know the court changed from you know day one on your job to the end of your tenure and what in what ways did that change your job and did did covering the court change over that 30-year period or was it you know or did you sort of were you essentially doing the same kind of work in the beginning of the as at the end okay so those are really two questions and one so I’ll give two answers so one way in which the court so I started covering the court in 1978 and I left in 2008 one thing that’s changing that time and my students find this hard to understand because they’ve come of age when it was just taken for granted that it was for votes here and foremost there and Justice Kennedy in the middle that wasn’t the case when I started covering the court there were three or four justices in the middle depending on the issue and anybody who had a case before the court could just aim it at one justice but really had a broadly appeal to the bench because there were a number of Justices I’m Justice Stewart comes it comes to mind who you really had to appeal to and you had to assume that you know they would had a fair chance of getting the vote no matter what what the issue was so so you know that changed she kind of gradually I mean first it was it was the O’Connor Court where she was the justice in the middle so that was just a change in the basic dynamic of the way the court operated so that’s the answer to your question sort of covering the court the the internet actually changed a lot I mean when I first started covering the court sounds like you know the Pony Express stays so you could only get the opinion of the court in real time by being physically at the court and getting a copy of it I mean that we’re talking before most people even had you know like a fax machine so part of my job was to get two copies of everything I would bring them back to the office I had one copy to work with and the other coffee would be put on a bus that would go up to New York and somebody from the New York Times would go to the Port Authority building and pick it up from the bus and take it to the editorial page which in the fullness of time would decide what it thought so you know and and so early on I realized that I couldn’t call some expert some Supreme Court expert out in the country to ask that person what I should think about some new development because I had the opinion that person didn’t so that person was going to tell me what to think filtered by how I described what had just occurred so early early in my reporting life I started just becoming very self-reliant and you know I basically knew as much as all these experts of whether I did or not I had the opinion and they didn’t so of course by the time I left the core the opinions are up online within minutes of being issued that transcripts are up online the same day of the argument it used to take well you couldn’t actually get the transcript for four important cases that The Times wanted to run a transcript we had to separately contract with the courts outsource transcripts and agencies to actually buy it and they charge by the page and it was very expensive so that didn’t happen too often you could find the filings online now the court just this past year actually now the court puts up all the petitions and all the filings online which is amazing just amazingly useful to anybody that cares about the court so so technically the technology changed the last thing I’ll say about that is it gave me at a certain point and I write about this in the book that my latest book that Judy mentioned which is kind of a memoir called just a journalist I had a sort of a crisis of like what’s my role in life around that time because I figured I really cared about the court could get the opinions with but why they need me you know what’s that point and then I you know kind of thinking this through over a period of time realized that the point was they needed me for context where did this case come from why was the case there where was this doctrine going what’s the deal you know what’s the dynamic at issue here so I figured well I still did have a role even despite the fact that you could sit in your comfort of your armchair and you know learn all these things about what was going on at the Supreme Court so that wasn’t that was a change and and then the volume of cases that the court took changed pretty dramatically from when you started oh ya know when I started the court was deciding about 160 cases fully on the merits with signed opinions every year it doesn’t sound like a lot of work but that was just a nightmare I mean the month of June was just crazy with now now it’s how many now I think this last term I think it was 63 all right I mean still the big cases tend to come out at the very end of the term just by human nature you know save you know you’ve got a deadline but yeah that’s been a big change in quality of life I would I would say so so Cavanaugh the Cavanaugh hearings are going on do you think the hearings make any serve any function and if so what well I think these hearings do serve for one thing I mean the Democrats don’t have any Running Room and Judge Cavanaugh will be confirmed I certainly assume so what the Democrats are doing is setting down some markers you know history’s going to judge this period and what are the voices that are going to be available for historians to to hear so the Democrats are trying hard to do that I also think there’s an educational function – confirmation hearings in that the Senators and they’re sometimes clumsy but sometimes I think very sharp and to the point way I commend to you senator Sheldon Whitehouse is questioning of Judge Cavanaugh this afternoon we get to know what the Senate institutionally cares about what are the live issues you know I mentioned before federalism hadn’t come up you know but you know what’s what’s on their mind and it’s kind of the last chance the Senate will have to speak to the nominee assuming he’s successful and becomes a Supreme Court justice and so I think the the Democrats anyway are trying to just kind of you know nail down in Brett Cavanaugh’s mind the courts at an important turning point you’re gonna hold an extremely important position on the court you will be conservative number five I you may be holding the future of the Supreme Court in your hands take that seriously judge Cavanaugh and you know his demeanor is appropriate he’s hearing them you know what what this means for his future behavior who knows but it’s you know I get the feeling there’s a kind of a dialog going on I’m not willing to to write it off he’s more forthcoming well anybody would be more forthcoming than Neil Gorsuch I think I wrote in a column that you got better answers from Cirie on my iPhone the senator senator from course and you know the the dialogue with Cavanaugh strike I think strikes me is somewhat different you you may have you watched any of it too you know it’s it’s not even though the outcome is for ordained it’s I think it’s not a useless exercise I did think the Gorsuch thing was totally useless yeah so in terms of talking about outcomes that are foreordained one of the concerns that’s been articulated by many who are concerned about the Cavanaugh nomination as the future of Roe versus Wade so do you have a you know a prediction about that and and to what extent does that the court’s decision in Planned Parenthood versus Casey which was the last time they expressly considered whether to overturn Roe versus Wade and looked like they had the votes right to what extent what does that tell us about what we might expect well of course it’s a pretty we should say what happened in yeah so Casey in 1992 so that was 19 years after Roe you know modified Roe gave the states the ability to protect unborn life from the moment of conception instead of just after viability and so on and I set up this undue burden standard so which leaves a whole lot of judicial discretion what kind of burden is undue there’s raging controversy among the various federal courts for the fifth circuit in which Texas is located no burden is undue every burden is just fine the Supreme Court in an opinion two summers ago hold women’s health written by Justice Breyer joined by Justice Kennedy said actually this Texas law that would close three quarters of the abortion clinics in Texas that is an undue burden so that’s the course last word on abortion I think with Justice Kennedy gone that case would have come out differently I do I think the ROE case e regime itself will be consigned to the dustbin of history on actually I would not be surprised again I’m obsessed about the Janis case that was so activist and so in-your-face I wouldn’t be shocked I mean on the other hand you know they could do a whole lot of damage to the right to abortion without actually pulling the trigger and and engendering the political blowback that there would certainly be I mean sandy Levinson wonderful law professor from the University of Texas said years ago Roe is the gift that keeps on giving to the Republican Party because it’s always there as an issue but it’s always there so so I don’t know but but the the the right of poor women to abortion is under serious threat I think the you know middle-class women among us will find a way to safely terminate pregnancies that they don’t want to carry to term but it it’s a it’s a serious crisis already for women in poverty and without access to resources yeah I think I mean I think in one sense the the KC story sort of is hopeful right because there you had you had you had five justices who had questioned seriously the legitimacy of Roe versus Wade and that you had a an administration that was actively arguing that it was illegitimate and it should be overturned and and they built the court blinked and Justice Kennedy and justice O’Connor joined up with justice Souter and and wrote an opinion that said we’re gonna we’re gonna conserve the core of Roe because of Starr decisis we’re not gonna overturn it but at the same time but then it’s also you know it’s also a kind of cautionary tale because they they rewrote Roe in preserving it and as you say adopted this standard called undue burden which is you know virtually meaningless and and suggests that a conservative Court doesn’t really need to overturn undue burden they can just see you know fewer and fewer burdens as undue well that’s right and there’s a lot of cases in the pipeline that are put there just to test how far the court will go a very concerted litigation effort and you know we’ve got these states Louisiana Nebraska these states that are tossing up this these bills that are basically written by this out finish Chicago called Americans United for life you can go on their website and you can see the model legislation and you just have to fill in the name of your state and I get your legislation to pass it so we won’t have long to wait to see what actually what’s actually going to happen here and how about affirmative action well Kennedy was the last vote standing to preserve affirmative action and I think part of part of fun Chief Justice Roberts project and coming to the Supreme Court was to get rid of it it’s impossible to read the parents involved case which was not an affirmative action case as such I I point out but it was a case about the extent to which government can take account of race and also the Shelby County case the case that destroyed the Voting Rights Act both written by Chief Justice Roberts both for five to four course and and so that’s the project and I Kennedy drove his conservative colleagues nuts over the Fisher case the University of Texas case that’s why they re granted it a second time to after the remand to try to put the squeeze on Kennedy and he didn’t quite play with them but um so yeah I’d be I think affirmative action days are limited then we have this you know horrible case going on with Harvard and the Trump administration coming in and you know what there is to say about that is it’s not a case about Harvard it’s not a case about asian-american students it’s a case about it’s a chance to get at a lead higher education as a whipping boy and to destroy affirmative action so you know that’s what’s happening yeah so Judy has been collecting your questions and I’m going to try to read them which is a challenge for me but why do you think Justice Kennedy resigned before the midterm elections or even under Donald Trump I do not believe in these because the liberal conspiracy theories about this I totally don’t believe them he resigned because he’s 82 years old and tired and not very well and and that’s that I think that’s all there is to it do you think I mean there were rumors that he was ready to retire when everybody including Donald Trump knew that Hillary Clinton was going to win the election and that his and then when Trump won he kind of had a moment of second thoughts he hired up more clerks his kids prevailed on him to stick it out you know I mean it’s being a Supreme Court justice is we see objectively it’s a very hard job to walk away from and that’s why they steady I think he just reached a point where he was just gonna go so that you know I don’t have a deeper explanation for it this is a question for me as much as for you but please outline how far-reaching the masterpiece cake shop ruling actually is and has deeply held religious beliefs been codified yes I’m not sure what that means but David David argued masterpiece cake shop yes so I’ll tell you what I think about masterpiece cake shop I mean you know we so the ACLU represented the gay couple people for anyone who wasn’t reading the papers this is the case about the Baker who wouldn’t think yeah the Baker who would not make a cake for a gay couple for their wedding because he opposed his religious beliefs opposed same-sex marriage and you know in in we say is that in some sense we won the war lost the battle because the the claim in the case was that you have a First Amendment right if you objec in the expressive business and this was masterpiece cake shop so it was expressive and you object to what it would express to serve somebody the state can’t require you to serve that person because it is then compelling you to speak compelling you to express a view that you disagree with that was their argument their secondary argument was if it’s compelled by religion then it’s also a violation of your free exercise rights to require someone to do that and they masterpiece cake shop and though the the group that represented did not win on that claim right the Court did not rule for them on that claim and in fact the opinion is filled with very strong language that says that your philosophical or religious objection to abiding by a neutral non-discrimination law is not a reason for failing to abide by that law and and if it were then we would have businesses across the country saying you know we don’t serve gays and lesbians we don’t serve Muslims we don’t serve Jews we don’t serve blacks and any business that could characterize herself as expressive would have that right and so there’s a very broad language about how that that’s just unacceptable and that was really what we were seeking to win but they didn’t rule on that ground they ruled on the ground that in this particular case this particular Commission which adjudicated the claim by the gay couple against the Baker was itself infected by religious bias and that religious bias independently violated the Free Exercise Clause violated the Constitution and so the Baker won but he didn’t win the right to refuse to make cakes for gay couples if he goes back into the business of making wedding cakes he still has to make a cake for a gay couple all he won was the right not to be tried by a biased tribunal so we haven’t heard the last of this so there’s now a transgender person who asks this Baker to bake a cake celebrating his or her transition and of course he’s not going to do that either a B there was at the time that the court was deciding the masterpiece case another case awaiting their decision case called Arlene’s flowers which is the florist who won’t flower for a same-sex wedding and what the court did was send that case back to the is it Oregon or Washington Pacific Northwest yeah I think it’s it’s our case I think it’s washed that’s your case yeah so for reconsideration in light of masterpiece cake shop now as David explained there’s nothing in masterpiece cake shop to enlighten us on that case because it doesn’t have the EZ off-ramp of a commissioner who spoke the truth but the court deemed it improper so that case will come back up and they’ll have to decide the florist claims of course that expression of you know my flower arrangements are an expression of my artistry and I shouldn’t be made to do this to celebrate something that’s against my religion so the court – Justice Kennedy we’ll see what they do with that yeah the the argument was quite remarkable in this because when the when the lawyer for the Baker lawyer for the for the Solicitor General who was supporting the Baker were up there all of the courts questions were how do we tell what’s an expressive business from what’s not an expressive business and so you got all these hypotheticals and basically when you’re a lawyer up there before the Supreme Court you want to win your case and you want to say you know you can rule for my client without you know upsetting the applecart too much and so the lawyer for the Baker wanted wanted to wanted to distinguish everything other than baking baking clearly expressive but she you know she was asked about what about what about makeup artists Justice Kagan said what about makeup artists they have artists in their name surely there should not expressive what about what about then then Justice Alito was trying to save her and she said what about architects assuming she would say well of course yes architect she said no not architects are not expressive to which Justice Breyer said you mean Mies van der Rohe is not expressive and then when the Solicitor General got up there you know his distinction well he wanted to draw a distinction between the Safeway wedding cake I don’t know how many of you got your wedding cake it’s Safeway but he wanted to make it seen through the Safeway wedding cake and this wedding this one was expressive that one wasn’t how do we know that because and I quote literal I’m quoting him because the the Baker’s cake here was highly sculpted and cost a lot of money so that’s what the First Amendment protects highly sculpted expensive things so that’s the problem with their theory which is that there isn’t a way to you know almost anything almost any conduct almost anything can be expressive in one way or another and so it’s not a coherent they don’t have a coherent theory for carving out an exception that wouldn’t you couldn’t drive a truck through and I don’t think the court is ready to drive that truck but Trump you you wrote a something about the difference in the courts reaction to you know to to big religion cases of this term we’re a masterpiece cake shop and Hawaii versus Trump the Muslim ban the Muslims the Muslim ban case yeah where the President had been articulating you know all these obviously anti-muslim reasons for banning adherents of an entire religion from our shores and the court was had been so sensitive to the words of the Colorado Commissioner who simply said that and in her opinion religion had been unfortunately invoked as I cover for religious bigotry the court didn’t seem to have too much of a problem with that in the Muslim ban case so bigotry I guess is in the eye of the beholder ya know it was remarkable I mean I was in the courtroom for both of those cases and the the there was the court the number of the justice work visceral clearly viscerally disturbed by this statement of this low-level civil rights commission member in Colorado who this is what she said I think it’s despicable when people invoke religion to harm other people you know she shouldn’t have used despicable just like you should not use the word deplorable but you know it’s actually constitutional law that you can’t invoke religion to inflict a harm on another person and yeah and they were so upset by that and yet when the that by some low-level you know civil rights movement that when the President of the United States makes you know variant ly anti-muslim statements nothing we can do so you know the question is is is that is it is the distinction president gets to be anti religious you know civil rights commission members don’t or is it you can be anti Muslim but you can’t be anti Christian or you know I mean to just play devil’s advocate you’ve got you know the nationalist a clear national security rationale and a body of law that says you know we defer to the president so it was unfortunate case so can you please comment on judge Cavanaugh’s opinion in this years in the abortion case that he did rule on which is the Jane Jane Doe unaccompanied minor yeah yeah so I’m sure I suspect people know about this this was the unaccompanied minor undocumented immigrant in the custody of the ORR the office of refugee resettlement headed by extremely anti-abortion activist bureaucrat whose view was that basically to permit an outside agent somebody acting on her behalf to help her terminate this pregnancy by having gotten her before a judge who said yes you’re mature enough to make this decision you know I in lieu of your parents I grant you the right and set up an appointment and so on they wouldn’t let her out of the shelter in which they were keeping her so she had to go to court and the coverage trump administration’s argument was some even though the government wasn’t being asked to lift a finger or spend a dime on this it would the government could not be forced to quote facilitate providing an abortion for this unfortunate young woman goes up to the DC Circuit two judges on the panel say yes of course she has to right she can exercise her right to abortion and judge Kavanagh dissenting said no no not so fast we have to give the government at least another ten day this is a young woman who’s by that time 16 17 weeks pregnant coming right up to the line when abortion in Texas for anybody and she’s located in Texas we’ll come up against the ban in Texas against abortions that I think 18 weeks Cavanaugh says no we need to give her another you know ten go give the government other ten days to find an outside sponsor the government have been looking for a quote sponsor for weeks or months for her and for everybody else and you know was anyway it was a horrible situation so he was asked about that today at the hearing and I didn’t actually watch that part so I’m just reflecting what I read as a journalistic account of what he said but evidently he said well of course has she been an adult she would have had an absolute right to abortion and the oh my only point was she was a minor and I you know needed to this this decision needed more consideration and the senator who was questioning him said well wait a minute she had already gone before a judge who said that she met the Texas qualification for being a mature minor who had the right to make the decision for herself and I don’t know what Cavanaugh said in response to that but I think they just kind of moved on so what I’ve you know written about this is I found that a very telling move by him to kind of buy into the government facilitation argument which is preposterous and also in his separate opinion he referred several times he used the phrase abortion on demand that is the ultimate dog-whistle in discourse about abortion what do we mean by abortion on demand we don’t have you know an appendectomy on demand we don’t even have a facelift on demand you know it’s a medical procedure designed to solve a problem and anybody who uses the phrase abortion on demand is in conversation with that side of the street that is very problematic for that person to be on the court so I had two more questions and then we should break because we’re at the end of time one question is about the the change of tone in the courts writing over the period of time that you were on the covering the court oh I think the answer to that is to is one person right it is Justice Scalia yeah right but I’m not sure Justice Scalia was you know the first justice to be nasty to his colleagues and well you know in our in our wired age he got a lot more notice for it so no I wouldn’t I wouldn’t actually have much to say about that yeah and then the last question a number of people ask this question which is you know they’re clear they’re careful readers of the Constitution this crowd and they’ve noticed that that article 3 which describes the court does not specify how many justices need to be on the court so when Elizabeth Warren is president can can we increase the size of the court by say you know 2 or 3 yeah I mean there is some I’ve if you read these up it’s you know why not just add justices so that it’s you know nothing unconstitutional about it no I mean there’s been as few as 6 and at least on the books as many as 10 I don’t think they all wrote were 10 seated but not only there were 10 you know I mean I think this sort of take away until recently anyway from the failed court packing plan was don’t do this now people are talking about it I think you know that remains theoretical but theoretically as possible yes I think it’s highly highly theoretical and though the reason is I mean FDR was a popular president the court was a deeply unpopular institution that it was at a time of major crisis in this country and even then you know there was there was some significant pushback to the notion that you’re gonna add justice to the court in order to change the composition of the court in a political way so like well I want to thank Linda for enlightening us on the history of the court and then I see you all in the back

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