Web Extra: Is the Supreme Court Out of Order?

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This week Bill spoke with Linda Greenhouse, a New York Times columnist and Dahlia Lithwick, a senior editor at Slate, about the latest rulings from the Supreme Court, a beat they’ve both covered for years. They were having such a great discussion — and there was so much ground to cover — that we kept the cameras rolling after the broadcast was finished. We’ve cued up the video so it starts where the broadcast left off, or you can watch the entire interview from the beginning.


BILL MOYERS: My conversation with Linda Greenhouse and Dahlia LIthwick continues.

DAHLIA LITHWICK: I think it's fair to say that when we talk about the Roberts court what we often miss is that the single most consequential change at the Roberts court was not the substitution of John Roberts for Chief Justice William H. Rehnquist. It was the substitution of Sam Alito for Sandra Day O'Connor.


DAHLIA LITHWICK: That in almost every area of doctrine where she really staked out a moderate middle position, a middle position by the way that drove people on both sides of the aisle insane because it was often pragmatic and it was often kind of a balancing test. And she was very, very careful to decide cases for this one issue only and to try to not let it bleed out into the rest of doctrine.

But in every issue that we looked at this year, abortion, church-state, campaign finance, every one of these blockbuster issues, what held sway was O'Connor's test. And when O'Connor left the court and Sam Alito came onto the court, in every one of those issues that test is gone. And the test, the new test, that Sam Alito has been a proponent of, has been dramatically to the right of that center place.

So I think we often make the mistake of thinking that John Roberts was really the decisive change at the court. The decisive change was that O'Connor, love her or hate her, was truly a centrist pragmatist. And when she was replaced by Samuel Alito, that center fell out.

LINDA GREENHOUSE: So I think Town of Greece and Sandra O'Connor is a very good example of this. So what Sandra O'Connor stood for in the establishment clause area was what came to be known as the endorsement test. That is to say that the government should not put people in the position of feeling like outsiders in the general community by elevating some specific religious practice and assuming that everybody goes along with that.

So what Town of Greece tells us, or reminds us, this probably happened already, but it makes it very clear that the endorsement test is gone. And has been replaced by something that the conservatives on the court have been advocating for a long time which is the coercion test which says, and Justice Kennedy in his majority opinion in Town of Greece says this quite explicitly, look, nobody's coercing anybody. If they don't like the prayer, they don't have to come. They don't have to listen. They certainly don't have to pray along.

So as long as there's no coercion, it's okay. And that's a major change. The court has never actually disavowed any of its precedents in the establishment clause area. It's just kind of quietly morphed the one into the other. And we now see what we have.

BILL MOYERS: Can you anticipate where that takes us?

LINDA GREENHOUSE: Well, of course, you know, we were talking about abortion. So one question is what's left of Roe against Wade as interpreted by the Supreme Court in 1992 in Planned Parenthood against Casey where the court went right up to the edge of the precipice of overturning Roe and held back, you know. Will there ever be a time when five members of the court say, "We hereby declare that Roe v. Wade is overruled"? I don't know.

You know, will it matter if they enable all kinds of regulation that forces abortion providers to close their clinics and puts all kinds of obstacles, you know. The judges on the fifth circuit issued an opinion this year rejecting a challenge to the admitting privileges law in Texas saying, yeah, it's true that women in the Rio Grande Valley where there will now be no abortion providers have to drive 150 miles to Corpus Christi, but you know, I mean, that's okay for women that probably don't have cars or, you know, may have immigration problems that make them very fearful of getting on the road or whatever--

DAHLIA LITHWICK: Or a day off work--

LINDA GREENHOUSE: A day off work--

DAHLIA LITHWICK: --to do it.

LINDA GREENHOUSE: Or you know, that's okay. So you know, you have to wonder what's left of a hollowed out precedent once the court is finished hollowing.

DAHLIA LITHWICK: And I think it's so important to understand in these religious liberty cases, these cases don't arise in a vacuum. So I think it's always really telling that the day after Hobby Lobby there's a rash of companies coming forward saying, "We object to all 20 forms of birth control, they're all abortifacients."

After the Town of Greece decision that Linda's describing, immediately there are towns in Virginia that say, "From here on in no Muslim will solemnize a prayer before our town council, no Wiccan, no scientologist." So these cases don't simply happen and then because the court says it stops here, that it's stops there.

This is part of an enormous litigation strategy that is a long game that is going to take years. But it seems to me that the idea that this stops here is belied by the fact that the very next day there is a legal movement of people who say, "This is a Christian country and we want to have Christian prayer before our town council meetings." And the fact that they implement policies that are now in their view blessed by the Supreme-- blessed so to speak by the Supreme Court, suggests to me that you cannot look at these cases and say they stop here.

I mean, your question to Linda, what's the next case? I think the next case really is a series of cases. And Justice Scalia was very angry by the way that the court didn't take another prayer case that came after Town of Greece. Because in his view Town of Greece changed doctrine even when it said it didn't. And in his view that opens the door for a whole host of other cases.

So it seems to me, I think you can't look the these cases as ending the day they came down and ending the day the press coverage stops. They don't end if the next day there's a legislative action, or in the Supreme Court case an emergency stay granted suggesting that it's only the beginning.

BILL MOYERS: There's a bill in the Kansas legislature that makes it permissible to discriminate against gays. That's part of this long game?

DAHLIA LITHWICK: Well, I mean, if you look at already right after Hobby Lobby there was a huge movement to get President Obama to write an exemption into his executive order that was going to afford all sorts of new protections to any federal contractors in same sex relationships. And already you saw, emboldened by Hobby Lobby, a group, by the way a bipartisan group, saying we need an exemption because this offends our religious faith as much as the contraception mandate does.

So it's all of a piece. And I think it's just extremely dangerous to look at these as atomized siloed cases. They are really a part of a movement that says that this is a country that has been oppressing religious individuals, religious businesses for decades and that until we eradicate the wall between church and state and empower not just religious individuals but religious businesses to fully exercise and fully realize their religious convictions, I think that is the end game. And it's, I think, it's folly to not see it.

LINDA GREENHOUSE: And it's really interesting, I mean, these are, you know, basically majority groups that are cloaking themselves in the mantle of victimhood. You know, the oppressed, the religiously oppressed when, you know, it's the majority religion in the country.

BILL MOYERS: And it's been steady and consistent and this court, as you said earlier, has been siding with business in its resistance to regulations for-- consistently. You think that's part of the long game?

DAHLIA LITHWICK: I think it's part of the long game. I think in a deep way, you know, we like to carbon date this to the Powell memo of 1971. Where suddenly it was in the interest of big business in America to use the courts and to use think tanks and the machinery that we're now really seeing working at full tilt; the machinery of advocacy and really scholarly work behind an agenda that I think is very pro-business.

I think one of the great ironies of Hobby Lobby is the US Chamber of Commerce didn't sign on, wasn't sure how they felt about the notion of piercing the corporate veil, as we say, of saying that a corporation is one in the same as its owners. Because I think there's a real peril, if you think about the idea, that we create corporations in order to protect the owners, in order to completely sever the relationship for liability purposes.

I think that there are members of the pro-business lobby who are very anxious about the idea of conflating the two and saying a corporation and its owners are one in the same. I think that really raises questions. And so Hobby Lobby is not, I think, an all-out win for big business in America. I think it's a very complicated case. Because it does raise this question of where the corporation ends and the owners begin.

BILL MOYERS: You wrote recently that this is the most polarized court ever on these five-four decisions. But is that any different from the way Congress is polarized, or the country is polarized?

DAHLIA LITHWICK: I don't think so. I mean, I think, you know, Adam Liptak, at The Times," Linda's successor, has done really interesting work, showing how polarized this court is. And I would add the valiance of it's not simply politically polarized. It's experientially polarized. You--

BILL MOYERS: What do you mean?

DAHLIA LITHWICK: Some of the justices are very proud of the fact that they get all their news from AM radio. Some of the justices are very proud of the fact that they don't read any newspaper of record. They-- some of the justices are proud of the fact that they only speak to audiences who agree with them.

More and more the justices only hire clerks who agree with them. Gone is the era where justices would reach across the aisle and try to find clerks who would challenge them. So this court is as polarized in terms of who they interact with, who they see, who they confer with-- I think, that we have ever seen in history.

And I think that when Linda talks about empathy, and she wrote a really nice column about the cell phone case, and how the justices understood cell phones, and they could relate to the idea that it needs Fourth Amendment protections, I think if you really think of the justices as almost disappearing into bubbles of right and left, and you know, the philosophers call this epistemic closure, right, the idea that you need encounter an idea that doesn't affirm your own ideas.

I think the court is as polarized as Congress. And I think the accidental brushing up against experiences that are different from yours happens less and less at the court. And I think the best evidence I have of that is these dissents, where Sotomayor writes you have no idea what is to be Hispanic.

Or where Justice Kagan and the Town of Greece writes, you have no idea what it is to sit through a city council meeting where everybody is praying to a God that isn't your God. I think that these dissents are a pretty good indicator of how the court really doesn't even see each other and see the experience not only of one another, but of the rest of us.

LINDA GREENHOUSE: You know, it's interesting, when Thurgood Marshall retired, Sandra Day O'Conner wrote a little essay in his honor that was published in the Stanford Law Review,” Dahlia's alma mater, in which she said that Justice Marshall's experience as delivered to his fellow justices around the conference table, by his telling stories from his amazing life and career, had changed the way she saw the world.

And this was really interesting because she had come to the court as quite conservative, politician from Arizona, very skeptical of affirmative action, of any racial claims. And she ends up writing close to the end of her tenure, in 2003, the University of Michigan affirmative action case, the Grutter case that upheld the constitutionality of affirmative action in university admissions.

And so, you know, she obviously was on a journey through her tenure on the court that she says herself was informed by being exposed to Thurgood Marshall. And so just picking up on what Dahlia said, you wonder if there's that kind of fruitful exchange going on right now in the court.

BILL MOYERS: You've been heard to say it's not whether the court is polarized or not. But whether they are doing the right thing for the country. Don't you think they think they are?

LINDA GREENHOUSE: Oh, I do think they are.


LINDA GREENHOUSE: I mean, I do think that they think they are. You know, and sometimes they do and sometimes they don't. But what I meant by that column that I wrote a few weeks ago was I thought this sort of trope of, oh my gosh, look how polarized the court is, was sort of missing point.

Because if we were just saying a few minutes ago, of course the court is polarized. Our politics are polarized. And who gets on the court is a function of politics and so on. So, you know, like, we're shocked that there's polarization going on here in Washington. No. I thought that that emphasis on polarization had displaced what I think is the main chance, which is what is it that the court's doing and what do we think about what they're doing?

Whether it's by five to four or nine to nothing. I mean, that's interesting. But that's not the main event. The main event is where the rubber meets the road and how are they construing the Constitution and our statutory. The laws that we live by.

BILL MOYERS: Where are they taking us?

DAHLIA LITHWICK: I think that they are taking us to a sort of gradual dismantling of the Warren court era. Deep care and concern for minorities, as we construe minorities. You know, race, the elderly, the poor. And I think that one has to if one doesn't believe this, I don't know where to put it, but I think that if you believe that the court is the one counter-majoritarian check, and that it exists to say when majorities get out of control-- "Wait, stop, where is the little guy in this scenario?"

I think, where it was once understood that the little guy was the African American who was burdened at the polls, or the little guy was Lilly Ledbetter who was being paid significantly less than her colleagues and never do knew it. I think that simply the definition of who is the little guy has changed.

And strangely, as Linda says religious majorities that command huge resources and power are reconfigured as the little guy. And corporations, amazingly, you know, multibillionaires who want to give unlimited contributions are the little guy.

And so it seems to me that, you know, in a deep way, we'll-- I find it interesting that Linda and I keep circling back to the language of empathy. As you'll recall, that was the explosive term during the Sonia Sotomayor hearings. But I think that the court has really a curious empathy for little guys that probably none of us at this table think need an extra hand from the court.

BILL MOYERS: Corporations?

DAHLIA LITHWICK: I just don't think corporations are the little guy. And the notion that they can be reconfigured to look as though they are burdened beyond repair when they can't contribute without limits to elections, I think is really the end game here. And it's fascinating to me. And I think, you know, perhaps what's most fascinating is that we don't realize that that's happened.

BILL MOYERS: Linda Greenhouse and Dahlia Lithwick, thank you for being with me.

LINDA GREENHOUSE: Thank you for having us.

DAHLIA LITHWICK: Thank you, it was great.

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