In 2015, the Supreme Court once again made history with decisions that affect the social fabric of the United States. Critics of decisions, one way or the other, attribute results to political bias and decry non-deference in the opinions. From same-sex marriage and healthcare to Confederate flags and disparate-impact, this recent SCOTUS session was no...
|Lawyer 2 Lawyer|
Tony Mauro is the Supreme Court Correspondent for the National Law Journal and has covered the Court for 33...
Tejinder Singh is a regular contributor to the SCOTUS blog and makes frequent television and radio appearances to discuss...
In 2015, the Supreme Court once again made history with decisions that affect the social fabric of the United States. Critics of decisions, one way or the other, attribute results to political bias and decry non-deference in the opinions. From same-sex marriage and healthcare to Confederate flags and disparate-impact, this recent SCOTUS session was no doubt one of the most talked about. But what does that mean for our laws and ability to live together under one nation? In this episode of Lawyer 2 Lawyer, hosts J. Craig Williams and Bob Ambrogi discuss the latest Supreme Court decisions with Tony Mauro from the National Law Journal and Tejinder Singh from SCOTUSBlog. Together they review the fundamental rights in Obergefell v. Hodges, interpretation of legislation under King v. Burwell, and free speech in Walker v. Sons of Confederate Veterans. Tune in to hear a detailed analysis of decisions as well as predictions for the future.
Tony Mauro is the Supreme Court Correspondent for the National Law Journal and has covered the Court for 33 years. Over the years Tony’s also written about the First Amendment and food, reviewing restaurants for various publications. He lives in Alexandria, Virginia with his wife Kathy Cullinan, and his daughter Emily Mauro, lives nearby, in Arlington.
Tejinder Singh is a regular contributor to the SCOTUS blog and makes frequent television and radio appearances to discuss developments at the Supreme Court. He has represented parties and amici before the Supreme Court and lower courts in a wide variety of matters. In 2014, Tejinder argued and won the Supreme Court case Lane v. Franks, establishing that the First Amendment protects the subpoenaed testimony of public employees. He was named to the National Law Journal’s D.C. Rising Stars list and is an instructor in the Harvard Supreme Court Litigation Clinic.
Special thanks to our sponsor, Clio.
Lawyer 2 Lawyer: Supreme Court of the United States: 2015 Session in Review – 7/26/2015
Advertiser: We’ve had Blockbuster back to back to back terms, terms where the court is taking on issues that have really high social affiliation, really high news value and are going to infect a lot of people’s lives. Republican appointees will vote one way and democratic appointees will vote in the other way and that I think feeds the theory that it is a political institution.
Welcome to the award-winning podcast Lawyer to Layer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Bob Ambrogi: And this is Bob Ambrogi coming to you from just outside of Boston, Massachusettes where I write a blog called Lawsites and sometimes another blog called Media Law.
Bob Ambrogi: Well, Craig, we’ve just wrapped up another Supreme Court term and as with I think every term, there have been many historic cases decided, especially in the last few weeks in particular. As in years pass, some commentators will attribute how the court voted on issues to the various political affiliation of the justices, other site changing opinions of the American people, and there are always those who accuse the court of legislating from the bench. Although the traditional rhetoric hasn’t changed fairly, thanks to some of the decisions this term, the laws of our country clearly have changed.
Tony Mauro: Good to be with you.
Bob Ambrogi: Also joining us today is Tejinder Singh. Tejinder is a partner with the firm Goldstein & Russell in Washington DC. He has represented parties and amici before the Supreme Court and lower courts in a variety of matters. In 2014, he argued and won the Supreme Court case, Lane v. Franks, establishing that the First Amendment protects the subpoenaed testimony of public employees. He was named to the National Law Journal’s D.C. Rising Stars list. He’s a regular contributor to the SCOTUS blog and makes frequent television and radio appearances to discuss developments in the court. He’s also an instructor in the Harvard Supreme Court Litigation Clinic.
Tejinder Singh: Thanks so much, excited to talk with you.
Bob Ambrogi: We’re very happy to have you here. We’ll get to the cases but I wanted to get your take on perhaps the overall atmosphere or trend of the court this term. I’m sure you’ve both seen the New York Times analysis that looked at the court’s decisions from 1946 to the present and concluded that this term was the most liberal glory days of the war in court. And I wondered whether each of you agree with that analysis and if so, what we should make of it. Tony, what about you?
Tony Mauro: Well it certainly is attempting, seeing to talk about the cause of the big headlining cases. Same sex marriage and the Affordable Care Act certainly came out in ways that the liberals have been happy about. But I think that it’s a little bit oversimplifying things and it’s a matter of the case that came to the court this term. And I’m a little hesitant to declare a real dramatic shift and I think next term we will probably see people saying that the court has turned back to their rights. So I think it’s a blip but it certainly is a valid theory.
Bob Ambrogi: Tejinder, how about you? What’s your take on it?
Tejinder Singh: Yeah, I think this narrative is silly. There is one decision that I think is really an end to US lead by every metric, a very liberal decision, and that’s the decision in the gay marriage case. But if you look at a case like Cane v. Barlow, you’d say oh, the liberals won that case, and that’s true. But in past years where the court was actually a liberal court, that case would never actually have been heard at all. The fact that these questions are being granted and then decided in the liberal direction, that did happen a lot this year. The more of the consensus five or four cases found the liberal justices in the court given the majority. But what you’re really seeing is sort of a center right court that had won very liberal decision and where a lot of closed cases this time were decided in the liberal way. But as the court continues to take a flow of cases – there’s an affirmative action case next term, for example – I think Tony’s right, that we will see a sort of regression to the conservative norm of this court. And I think that the court overall still is rather conservative.
Tony Mauro: Well, I guess I’ll take a first stab at it. It certainly has been a few weeks when the Supreme Court has been in the spotlight and it’s not accustomed to that. It’s usually off to the side of the political fray, but these decisions certainly put the court back in the middle of things and some people have said that’s very political and I still like to think that the court tries to get it right without ideology having too big an influence. But it is a question, it is a problem I think for the court when it rules strictly on the basis of when it’s very predictable in a sense that republican appointees will vote in one way and the democratic appointees will vote in the other way. And that I think feeds the theory that it is a political institution.
Tejinder Singh: We’ve had Blockbuster back to back to back terms, terms where the court is taking on issues that have really high social affiliation, really high news value and are going to infect a lot of people’s lives. And I think that when the court does that, you’ll tend to see tons of political and media engagement with the court and that’s a good thing. The Supreme Court is really unlike every other court in the United States because it is principally, I think, kind of a policy-making institution; it’s wrapped in the garb of the court adjudicating cases. But it’s not doing the same thing that a federal district court is doing or even a court of appeals is doing. What it’s doing is it’s setting policy and often constitutional rules for the entire country. So I think that kind of media scrutinization is inevitable and I think it’s heightened in recent years because the court has taken on so many of these issues. But I also think it’s unambiguously a good thing and an important part of our democracy.
Bob Ambrogi: That marriage equality case seems to have been won that a number of critics have said that Justice Kennedy’s opinion was perhaps light on legal analysis and heavier on social policy, perhaps. What did you make of the way the court decided that case?
Tejinder Singh: You know, the court’s reasoning is a little bit – it’s sometimes a little bit – difficult to understand. The court held in the case is there are basically two tandem rationales that create a right to marriage. First it held that marriage is a fundamental right and it went through the various characteristics of marriage that make it so. And there were four that the court identified, that marriage is important to our individual autonomy, that it’s very important to the couples that engage into it, that it’s very important to the stability of families, and that finally that marriage is this important social institution to which the state attaches all kinds of benefits. And the court went through and explained how the nature of those characteristics doesn’t change. Whether you’re talking about a same sex couple or an opposite same sex couple and it reasoned, therefore, that this fundamental right to marriage that we’ve recognized is fundamental for heterosexual couples should also be recognized as fundamental for same sex couples. It then tacks on a sort of equal protection analysis that said, well, you know, by not extending this institution of same sex marriage for couples, the law demeans them. And that’s the part of the opinion that I think a lot of people have found ways to criticize both parts of the opinion. They criticized the first part because this idea of fundamental rights is kind of a disfavored corner of due process jurisprudence. There’s a case called Washington v. Glucksberg that says fundamental rights should be defined very narrowly and very careful. And there’s an argument that Justice Kennedy’s opinion wasn’t that careful and narrow, an argument that he candidly kind of acknowledges but then works around. The equal protection part of the opinion, some people find it dissatisfying because the normal way you’d do equal protection analysis is you set up a level of scrutiny. There are laws that are subject only to rational basis review, which are usually upheld. There are laws that are subject to intermediate or stricter levels of scrutiny which are often struck down. The court in this case didn’t articulate the appropriate level of scrutiny for discrimination against same sex couples, and so it left that open and a lot of people found that really dissatisfying. I think there are good reasons why the opinion was written the way it does. But because it doesn’t answer all the questions and leaves many of them open, there may be follow on litigation. There are always cases, as I understand it, from a guy who wants to marry two women sort of working its way up through the courts. And i think you’ll expect to see some of that litigation. I don’t purport to know how it’ll turn out, and I don’t think the court’s opinion dictates the results in these cases, but I think that is sort of the legitimate criticism is that there are a lot of open questions.
Tony Mauro: Just to pick up on Tejinder’s side, it is true, there is kind of a lot of loose language, there’s a lot of talk about dignity. And a lot of people strive for dignity and not all of them deserve constitutional protection, and it’s kind of typical of Justice Kennedy. He’s been the author of all three of the major gay rights cases and his language sort of opens itself to criticism by Justice Scalia who talks about the Justice Kennedy celebrating the sweet mysteries of life. And he said, “If I had to agree with what Justice Kennedy said,” and in this case, it seems like the marriage case, “I would put my head in a bag.” He’s so embarrassed by this loose language. But that’s how Kennedy wrote it and that’s how the other four justices went along with it. They didn’t quibble with his language.
Bob Ambrogi: What do you make of Justice Scalia’s attacks, really, on some of the fellow justices this term? In addition to there, there was the lethal injection case which he made. I think it was an unprecedented from the bench rebuttal of Justice Breyer’s dissent and called it “gobbledygook.” What do you think of Justice Scalia making those kinds of comments on the federal justice system?
Tony Mauro: Well, I read a story about this in the National Law Journal, how can the justices face each other the next day after they say such awful things about each other and most of it is Justice Scalia. But Justice O’Connor used to say, all that’s just nino, and they’ve got to be used to his bluster and his rhetoric. And Scalia once said that writing dissents makes life worth living. So he certainly loves the jabs and the criticisms. And they just kind of shrug it off, the rest of the justices.
Tejinder Singh: Yeah, I have no doubt that the justices have grown thick skin against Justice Scalia. On the other hand, what I found really interesting and kind of bizarre about his defense in the same sex marriage cases, particularly, is he’s going off and kind of criticizing the court, the majority of the opinion, for being poorly written and sort of cryptic. And a lot of it is kind of like you are lowering the standards of this court. The way he’s articulating that testament is I think sort of devastates kind of above the fray kind of lofty image of the court. And so I think that it’s really interesting and in many ways counterproductive to what he purports to be doing. And I think also that generally in these exchanges, he wound up looking much worse than the people he’s criticizing, and I’m not sure he’s yet tuned into that fact.
Tony Mauro: Well, I agree. It is awfully strong language, and as I said, they do manage to get along otherwise. But still, the public perception, I think, is important and I think someone like Justice Scalia, he doesn’t really care about the public perception. He’s just going to say what he wants to say. But I think other justices, the chief justices, do care, but they seem to not be able to help themselves.
Bob Ambrogi: And we want to get on to talk about some of the other cases decided this term, but we do have to take a short break at this point. So please stay with us and we will be back for more discussion of the just concluded Supreme Court term with our guests, so stay with us.
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Tejinder Singh: Well that certainly is how the challenger to the IRS rule and also the dissents in this case wanted to characterize that. But I don’t think that’s quite right, I think the majority opinion correctly explains that what the court is meant to do, always, is eridate statute as a whole, and there are two ways you can take that. Someone who’s inclined to read a statute very literally. They will look at part of the statute that’s being challenged at any given moment. They will adapt the most natural reading of that provision, and they will say now, can I find a way to reconcile the rest of the law with this reading, and that’s one way to do it. But reading a statute as a whole, I think, really means being attentive to what all of Congress was trying to do. In this case, the challengers and the dissenter’s argument is that what Congress really wanted to do is in the formula that determines how much of a subsidy people who can’t otherwise afford health insurance would get, they wanted to include a massive self-destruct button that would effectively destroy interlocking reforms of the Affordable Care Act if a state didn’t establish it so in exchange. And I think that there’s really no plausible story for why Congress would have wanted to do that or that if Congress had wanted to do it, it would’ve done it that way. And I think the six justices in the majority kind of correctly recognized that that was true. People may call us biased or whatever, but I’ve always thought the challenger’s argument in this case was pretty frivolous and it’s not too surprising to see the majority of the court rejecting it. It’s a little bit surprising that it’s a 6 justice majority because 4 justices had to vote to hear the case and you would think therefore that at least 4 were buying the challenger’s argument. But I’m not surprised that it came out the way it did and I think it’s right.
Tony Mauro: I would agree with that and I think there’s one sort of background factor that made the 6 justice majority more possible and that is traditionally when the court interprets a law and says it makes no sense or the wording is counterintuitive or whatever, they’ll say, “Let’s send it back to Congress and let Congress fix it.” And that used to happen quite often. The Congress would fix statutes to more clearly state what they intended. But I think the Supreme Court knows, they read the papers too. This Congress is completely dysfunctional and there’s no way that if they sent this law back to Congress to try and fix it, there’s no way that Congress would have done that, it’s just impossible. So I think they may have felt that this is the huge piece of legislation and that it is in trouble and we don’t want to be the ones to destroy it. But Congress can’t fix it so we have to be the adults in the room and we have to rule in favor of and interpret a station that makes the law work.
Tony Mauro: I don’t think it had much to do with the other cases. This has been an issue that has confounded the court for a while. How do you categorize speech like this like a license plate in a way that gives states some leeway to tailor a message and not have to be forced to say things that it doesn’t want to say. For example, if the government wants to advocate vaccination for kids, if it really was a 1st Amendment issue, they would have to allow opponents of vaccination or have sort of equal access to government communications. So the court has developed this theory that enables governments to pick and choose and that I think what was behind this decision to allow the state of Texas to not approve the licence plate that had the confederate flag on it. It has other consequences but I think that’s the basic thrust of it.
Bob Ambrogi: I wanted to ask, I suspect that with the marriage equality case and the Affordable Care case, neither of you were all that surprised by the outcome. I wanted to ask, Tejinder, was there any case this term in which you were really surprised by how it turned out either in the decision itself or in the way the justices lined up to decide it?
Tejinder Singh: There were two. I was actually a little bit surprised by Walker. I thought this was the type of thing where if the court had ruled in favor of the Sons of Confederate Veterans, the upshot would probably be that Texas would scrap its specialty plate program rather than allow confederate flags and swastikas on its license plates, sort of the horror stories that were coming down the pike. So because the consequences weren’t that serious and because Justice Kennedy is kind of a strong 1st Amendment justice, I sort of predicted that that case would have come out the other way and I got that one wrong. Another case that was a little bit surprising to me was actually a case in which we represented one side and I’m surprised that we won because it was a very hard-fought case and it was a case where the tea leaves seem to point the other way and that was a case called City of Los Angeles v. Patel. And this is a case about whether the police can, without a warrant and without suspicion, search certain business records. In this case it was hotel guest records. We represented a group of hotel owners who challenged the constitutionality of an LA city ordinance that authorized those searches. And we were sort of genuinely worried for a while that the court was going to say yeah, they can search these and that the implications for privacy and business records would have been a tremendous and really bad sort of in arrange of businesses. You can imagine Cloud computing, your online emails, so on and so forth. But fortunately, 5 justices decided that we were right, that there needs to be some safeguards in place before the government can do that, and that was a surprising result as well.
Bob Ambrogi: Tony, what about you? Were there any cases that really surprised you this term?
Tony Mauro: The one that surprised me was the Fair Housing Act case which involves whether disparate impact clients could be made in discrimination cases. And what that means is can you improve discrimination injustices by showing statistics or data without showing that the government agency or that the business intended to discriminate. And the court had granted review to cases previously that would have raised this issue. And the Obama administration was so scared of the result that it forced the settlements to both of those cases before it was decided by the Supreme Court. But low and behold, this third case came along, the court took it, it didn’t settle, and the Obama administration basically won. The court said that the disparate impact claims are allowed. So I think that was kind of a surprise.
Tony Mauro: Well I think it still qualifies as a tremendous landmark that pretty much resolves the issue. I don’t think we’re going to go backwards. I do think it’s unfortunate that it was 5-4 whereas as you said, Brown v. Board of Education’s unanimous and the chief justice warrant in that case wanted it, he worked very hard to make it unanimous so that the country would go along with it more readily. And this obviously – the same sex marriage case – wasn’t that way and it makes it a little more vulnerable to criticism. But still, I think the court made the point that same sex marriage is constitutionally required and I think that’s about the end of it.
Bob Ambrogi: We’re just about at the end of our time and it’s just about time to wrap up. But I’m wondering if I could ask you perhaps as your final question here, kind of wrap up a question for us and talk about what you see might be some of the issues coming down the pike for the next term or what to watch for in the next term. Tejinder, let’s start with you.
Tejinder Singh: Sure, so there are two big cases that have already been granted more than that, but the two sort of biggest ones are the return of Abigail Fisher’s case against the Texas Affirmative Action System; that’s back in the Supreme Court and it could portend kind of a real blow to affirmative action programs. There’s another case called Evenwel, which deals with this sort of one-person-one-vote principle which deals with districting and there’s a related or similar decision out of Arizona about what their redistricting system can do. And these have important implications for how our democracy works. We’ll be following those cases very closely on SCOTUS blog. So any listeners who are interested can tune in with us and continue to see the developments unfold in real time. They will be briefed over the summer and argued toward the start of next term. And that’s just us getting started, the rest of the term may have even more big cases.
Bob Ambrogi: Tony, anything else on your radar for next term?
Tony Mauro: Well, certainly there are some abortion rights cases coming up. They haven’t been granted yet, but certainly will kind of resurrect the issue of what constitutes an undue burden on women’s right to abortion, so that’s one. And there’s one that comes in under the court’s original jurisdiction, the dispute between states. And this hasn’t been granted either yet but the states of Oklahoma and Nebraska, I believe, has sued the state of Colorado over its legalization of marijuana. They claimed that this law has affected drug trafficking and crime in their own states and thy believe that the Supreme Court should intervene and halt that legislation.
Tejinder Singh: Sure. You can look me up at our firm’s website, which is GoldsteinRussell.com and I’m easy to find, we only have four lawyers. Or the alternative, go to SCOTUSblog.com.
Tony Mauro: Well, my email is [email protected], and that stands for American Lawyer Media. I’m also on Twitter, @TonyMauro.
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[End of Transcript]
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.
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