In this Episode:
Since 1790, of the 113 individuals who have served on the Supreme Court, only four have been women. Similarly, in over 230 years, only three justices have been persons of color—two of whom presently serve on the Court. Under Trump, the vast majority of judges confirmed to the nation’s federal courts are white men. Thus, in over two hundred years, very little has changed in terms of the Court’s composition.
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Michele Goodwin 00:04
Welcome to “On the Issues with Michele Goodwin” at Ms. magazine, a show where we report, rebel and tell it like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times.
Since 1790, of the 113 individuals who have served on the United States Supreme Court, only four have been women. Similarly, in over 225 years, only three justices have been persons of color—two presently serving on the Court. And for this reason, we are doing a special Ms. magazine Supreme Court review.
This Supreme Court term has been a roller coaster, leaving many to wonder about the Court’s commitment to equality, inclusion, non-discrimination. This all despite decisions that appear to be wins for vulnerable communities. For example, we’ve seen victories in very important areas— DACA, LGBTQ rights, and even abortion rights—but on close examination, many of those victories are so thin as to be porous and fragile.
Even while it is illegal to discriminate against Americans who identify as transgender or gay in employment, the Trump administration has rolled back protections put in place during the Obama administration. And again, despite a win in June Medical [Services LLC. v. Russo]on abortion rights, the Trump administration has gutted reproductive health policies put in place during the Nixon administration; such as Title X, which provided reproductive health care for the poorest Americans. Many who are concerned about racial equality also view the Supreme Court as slipping in its regard for equal opportunity and the protection of due process for people of color.
Joining me as we try to understand these issues and more are Brigitte Amiri. She is the deputy director at the ACLU Reproductive Freedom Project.
Also, Dean Erwin Chemerinsky. He is the Jesse H. Choper distinguished professor of law and dean at the University of California Berkeley School of Law.
Leah Litman is an assistant professor of law at the University of Michigan Law School and co-host of the “Strict Scrutiny” podcast.
And also Professor Franita Tolson. She is the vice dean for faculty and academic affairs and a member of the faculty at the University of Southern California, Gould School of Law.
Now, before we begin, we at Ms. magazine also want to take a moment to acknowledge the tragic death of federal judge Esther Salas’s son, Daniel, and the shooting of her husband Mark.Judge Salas has bravely spoken outabout this tragedy in her family. We all grieve with her and we admire her bravery and courage in coming forward and speaking out about these issues.
So, Erwin, I want to turn to you. Can you give us an overview of this term? I know that you argued a case before the Supreme Court. What was that case? What was at stake? And did you win?
Erwin Chemerinsky 03:27
Well, let me take those questions in order. Most of all, so, what a pleasure it is to be with you and Leah and Franita [and Brigitte]. It was a term unlike any other. The Court decided only 53 cases with signed opinions after briefing oral argument, the fewest numbers since 1862. The Court had telephonic arguments for the first time. The Court did live audio broadcasts of its arguments for the very first time.
I think it’s a term that defies ideological characterization. Some media, after the term ended on July 9, said that it was a liberal term. That is not right. There were 14 5-4 decisions. In 10 of the 14, the majority was Roberts, Thomas, Alito, Gorsuch and Kavanaugh. There were only two cases where it was Roberts, Ginsburg, Breyer and Kagan. There were some surprising liberal victories—the Court’s saying that President Trump could not rescind DACA, the Court saying that Title VIIprotects gays and lesbians [and] transgender individuals from employment discrimination, the Court’s striking down the Louisiana abortion law.
But there were also many cases where the conservative position prevailed. There were three cases about religious freedom where the conservative position triumphed. There were important separation of powers cases where the conservative position prevailed.
In the answer to your last question, the case I argued was Comcast [Corp] v. National Association of African[-American] Owned Media and involved the civil rights statute—42 United States Code § 1981—that permits race discrimination in contracting. Alas, I lost by the close margin of 9-0. I think of civil rights; Justice Gorsuch wrote the opinion and said that in order to have a claim under §1981, it has to be alleged and ultimately proven that race was the but-for cause of the denial of the contract. It’s not enough to show that race was a motivating factor.
And even worse, he said that all civil rights statutes should be interpreted this way unless the law expressly provides otherwise. And so at a time when our country is finally focusing much more on race and anti-Blackness, the one race case of the Court was very much a loss for civil rights.
Michele Goodwin 05:40
So, Erwin, I want to take that just a bit further, because many are suggesting that race is a losing cause before the Supreme Court. What’s your message to people who are really disenchanted with how federal courts are addressing race?
Erwin Chemerinsky 05:54
I think there’s every reason to be fearful of what the Roberts Court will do with regard to race. In 1997—and sorry, in 2007, in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts wrote an opinion that was vehemently against any form of affirmative action. There’s no reason to believe he’s softened that position.
Also, with regard to voting, we’ve got to remember Chief Justice Roberts wrote the opinion for the Court in Shelby County v. Holderin 2013, which really gutted the Voting Rights Act of 1965. I think when you look at the five conservative justices on the current Court—Roberts, Thomas, Alito, Gorsuch, and Kavanaugh—you see a Court that’s going to be, I think, very hostile to civil rights claims, and certainly very hostile to affirmative action.
Michele Goodwin 06:43
Why do you think this is, Erwin? And what was the shift? I mean, many people think about what—I guess, one might say—the kind of glory days of starting with Brown v. Board of Education and the opening up of the Court to consider racial justice in the United States. What’s behind this shift, that we now see this rollback?
Erwin Chemerinsky 07:05
The composition of the Court. We have five very conservative justices. I realize that Chief Justice Roberts isn’t as conservative as Thomas, Alito, Gorsuch and Kavanaugh—but I think on racial issues, he is. And this is the result of the presidential elections; that these are the justices who were put there by Republican presidents to be very conservative. And they’re exactly that, including on racial issues.
Michele Goodwin 07:31
Well, with that I want to pivot to Franita because you mentioned elections, the presidential elections—and so, Franita, I’m wondering how you see this term. Particularly the voting rights decisions that have come out post-COVID. Can you tell us a bit about that? Because I think it connects with the message that we’re hearing from Erwin.
Franita Tolson 07:54
Yes, I agree that it does. So, if anything, the Supreme Court’s decisions— especially since a lot of states had to shelter-in-place, and even though there were primaries, they had upcoming primaries—if you look at a lot of the Court decisions that came out after the shelter-in-place orders, the Court has not been friendly to voting rights at all. And it’s really interesting to me, especially when you put it in a broader context.
So, this term, the Court issued an opinion on the faithless elector case, Chiafalo v. Washington. And in that case, it was a decision to allow states to penalize electors who did not vote in accordance with the popular vote; they can either fine them or remove them. And one interesting thing about that opinion is it seems to be very voter-friendly, in a sense, right—taken off of the opinion is she [Kagan, who wrote the majority opinion] basically views electors as intermediaries between the people and the presidency, right.
So to some extent, the electors don’t have independent judgment—they should reflect the will of the people. And there seems to be this disconnect though, right? This idea that electors aren’t intermediaries to popular sentiment, but then you make it difficult to gauge popular sentiment. Right..
So, we have a series of decisions that the Supreme Court has made in the corona era where they basically make it difficult for people to cast ballots. So RNC v. DNC [Republican National Committee v. Democratic National Committee], the decision that keeps me up at night because of the implications for November, right. So, this idea that—
Michele Goodwin 09:23
And people up in Wisconsin, especially given that Wisconsin has been a hotspot. And this involves also the issue of race. We can’t get away from race.
Franita Tolson 09:32
Can’t get away from it!
Michele Goodwin 09:34
The disparities in terms of COVID-related deaths and contractions in the state of Wisconsin were just extreme around the time of the primaries. About 40 percent of the persons who had died from COVID were African Americans in that state, even though they only make up about 6 percent of the population.
Franita Tolson 09:55
Yeah, so the numbers, in terms of the racial disparities, are really horrendous and it’s compounded by the fact that a lot of Wisconsin voters had to wake up on Election Day and go stand in line.
And so, the Supreme Court made it difficult for district courts to enter orders that would extend deadlines, right, based on something called the Purcell Principle. The Purcell Principle is this judicially created doctrine that says that states cannot engage in—I’m sorry, courts or even states— cannot engage in last-minute changes to election rules.
And so applying that principle in RNC v. DNC, the Court said that the district court cannot extend the ballot receipt deadline. And the interesting thing about Wisconsin though, Michele, is the fact that a lot of voters requested absentee ballots and never received them.
Michele Goodwin 10:44
They did! They never received those ballots, and they were still waiting for ballots to be counted.
Franita Tolson 10:52
Right. Exactly. And so—if you read the RNC v. DNC opinion, a thing I find so outrageous is the fact that the Court is writing this opinion as if we live in ordinary times.
Michele Goodwin 11:04
Exactly. We’re in a time of a pandemic, right. And as Erwin said, I mean, they’re doing telephonic hearings themselves. And here it is acting as if, yes, these are ordinary times and an ordinary spring and it wasn’t.
Franita Tolson 11:18
It wasn’t at all. But I think the sense is that they are proceeding as if that [normalcy] is the case, and they don’t have to, right? There are, I mean, there’s a whole lot of cases that interpret the Constitution as protecting the right to vote.
And so, you know, I think RNC v. DNC really does sort of set the standard for putting a burden on voters, right. If voters want to vote and they did not receive their absentee ballot, they need to go stand in line. If you look at the decision by the Supreme Court to allow states to refuse to permit absentee ballots for COVID related fears. That’s another situation in which, you know, the Court is making it more difficult for people to vote and states can have, that require an excuse in order to vote absentee can now refuse to give an absentee ballot to individuals who cite COVID as their reason for wanting to vote absentee. Right. This was a decision out of Texas. We had another decision out of Alabama, right.
This sense of—there’s just a general sense that the Court, especially on this, the issue of voting rights issues, has not been friendly to the rights of the voters.
Michele Goodwin 12:26
Well, for a very long time, right. I can’t help but think of the image of Fannie Lou Hamer and to hear her describing to the Democratic National Convention just the horrors that she went through with attempting to vote in Mississippi. And she and other Black women being taken in state trooper, you know, patrol cars to jails, jails that were full of men and then the women being beaten because all they wanted to do was vote. And she closes off saying, all of this because we don’t want to be second class citizens, and all of this because we want to vote. And in her case, being beaten on the head with a baton and on her body and so forth.
I mean, it’s just really horrific what this legacy represents. And I’m going to turn back to you on these questions because they do have a legacy. And I think it’s very important that our listeners engage with that legacy so that they understand this is not just a matter of COVID and these times, but that we’re living in a longer arc.
So, before we get back to that, though, we’re going to talk about sex. We’re going to talk about sex with you, Brigitte Amiri. Thank you so much for being with us on the show. This is actually just so much fun with you all. So Brigitte, in your case, you argued the only abortion case that Justice Kavanaugh, then Judge Kavanaugh, heard when he was on the Court of Appeals and you and colleagues at the ACLU and others sounded the alarm bells about his position on abortion during his confirmation process. Can you tell us about that case, and how it now relates to matters like June Medical.
Brigitte Amiri 14:03
Sure. So thanks so much for having me. And thanks for everyone on the show and all the listeners.
So I did have the pleasure, I guess, privilege—something?—of arguing the only abortion case that then-Judge Kavanaugh heard, which, as you mentioned, is the case involving an unaccompanied immigrant minor who was in a shelter funded by the government who requested an abortion after she discovered that she was pregnant. And the Trump administration said that she was prohibited from leaving the shelter, from accessing any abortion-related appointments, including the abortion itself. The Trump administration was almost literally holding her hostage to prevent her from having an abortion.
Michele Goodwin 14:48
It sounds like it, yeah. That does sound like hostage treatment. “You can’t leave.” There was no COVID!
Brigitte Amiri 14:55
Right. And so you know, we rushed into court on her behalf and other young women like her. But for her in particular, we got a temporary restraining order that the government immediately appealed. And Judge Kavanaugh, then Judge Kavanaugh, was on the panel in the DC Court of Appeals that heard the emergency appeal that the DOJ took. And, you know, instead of ruling on the case—which is very straightforward, this is not a complicated legal question. The government cannot ban abortion under Roe v. Wade. And you can’t think of any more of a clear example of banning abortion than quite physically prohibiting someone from accessing abortion.
Instead of ruling in the case on the matter consistent with precedent, then-Judge Kavanaugh said that the government could continue to prevent her from accessing abortion while the government looked for a sponsor, a family member in the United States, for her to be released to. And if a sponsor wasn’t found in a certain amount of time, we could start our case all over again. And the government could raise new defenses.
Michele Goodwin 16:06
And you had a whole burden. Right?
Brigitte Amiri 16:09
Right. And obviously, that was unacceptable. She was already being pushed further into her pregnancy. We’re racing against the clock. She requested the abortion when she was nine weeks pregnant. And we are racing against the clock because Texas bans abortion—where she was staying—Texas bans abortions at 20 weeks of pregnancy. Were already about 14 weeks at this point in her pregnancy.
And we said obviously Judge Kavanaugh’s decision is unacceptable. And so we asked for en banc review and the full Court of Appeals reversed his decision and she was allowed to get the abortion.
Michele Goodwin 16:44
You know, but look at the amount of work that you had to do. And you had the strength of a powerful national organization with you [the ACLU], a flank of attorneys, but it’s that which it took in this case for this teenage girl in order to be able to exercise a constitutional right that’s outlined for terminating a pregnancy.
Brigitte Amiri 17:12
Yeah, absolutely right. And that the government, the Trump administration, and the Department of Justice and the solicitor general all fought us, tooth and nail, on this really fundamental principle that the government can’t ban abortion for anyone.
And so we did sound the alarm bells, as you say, when Kavanaugh was being considered to replace Justice Kennedy. And we said, he may say at his confirmation hearing that he’s going to follow precedent—and he considers Roe v. Wade precedent—but if he does, then why didn’t he just apply Roe v. Wade in our case, which was such a straightforward case?
And so now, as you mentioned, you see his dissent in June Medical v. Russo and he, where he says, basically, that he would send this back down to the lower courts—instead of siding with the majority, including Chief Justice Roberts, that said that this decision was made about admitting privileges laws for abortion providers for years prior in whole.
Michele Goodwin 18:11
Exactly, because this is like a repeat. You know, in many ways thinking about June Medical reminds me of the state contesting Brown v. Board of Education. It’d be like Louisiana saying, you know, a year after Brown, “Oh, that only applies in Topeka, Kansas. It doesn’t apply in Louisiana.” I mean, it seemed to me that could be the kind of comparison that we had with June Medical.
Brigitte Amiri 18:36
Right. Absolutely. And it’s really disturbing because the other side, the anti-abortion forces, are trying to push cases to the Supreme Court in the hopes that the calculus has changed because Donald Trump has vowed to appoint Supreme Court justices that would overturn Roe v. Wade.
So they are seeing an opening, so the state of Louisiana pushed this case to the Supreme Court and, obviously, the Fifth Circuit let them because the Fifth Circuit found that there were reasons to allow the Louisiana law to go into effect that were ostensibly distinguishable from the Texas law that was struck down in Whole Woman’s Health v. Hellerstedt.
But obviously, that’s poppycock. It’s concerning as to what would have happened had Chief Justice Roberts not sided with the majority. So, but that, but Kavanaugh’s dissent in June Medical gives us a hint, you know, what, where he is on these issues. Yeah.
Michele Goodwin 19:35
Well, so, and we’re going to come back to think about what does Chief Justice Robert’s involvement in this case—siding with the liberals on the Court—what that represents. Are some people over-reading it or are we understanding it in just the right way? So, thank you for giving us that bit of an intro in terms of talking about sex and what that meant in this term.
Everybody has flagged, so far, the Trump administration. And so Leah, I want to turn to you—and then we’re all going to get into it all together— in terms of the presidential immunity case, the Vance v. Mazars case. [Editor’s note: the cases discussed are Trump v. Vance and Trump. v Mazars USA, LLP.] Tell us about this case. And also give us some insight about where you see what you see is coming next.
Leah Litman 20:26
Absolutely. So Trump v. Vance involved a New York grand jury subpoena to the financial accounting firm that has the president’s financial records. Under prior precedent, it seemed like that subpoena was surely valid. After all, presidents can be sued in civil litigation; that was the case of Clinton v. Jones. You can also issue grand jury subpoenas in federal court, directly to the president, even for official papers; that’s the United States v. Nixon.
Nonetheless, this president’s personal lawyers, as well as the Department of Justice, challenged the New York grand jury subpoena, arguing that the president is immune—at least while they are in office—from any criminal investigation, but even if it’s not directly targeting the president, it might implicate him at some point down the road. The Supreme Court rejected that argument by a vote of 7-2.
Although Joan Biskupic, the CNN reporter for the Supreme Court, revealed that initially, the vote was 5-4. That is, initially the Chief Justice joined by the more liberal justices would have allowed the grand jury subpoena to continue, whereas the four conservatives would have initially voted to force the lower court to rethink whether it was valid.
Michele Goodwin 21:39
How should we understand that? Not to interrupt, but that’s a really important point that you just slipped in there.
Leah Litman 21:46
So, I think it’s important to understand the role that the chief justice plays at this court. I think it was important to him to present a front of non-partisanship and more uniformity. If a decision had come down 5-4, I think that would have, in his mind, been a real blow to the institutional integrity of the Court and it would have undermined the effectiveness of the decision. The Court’s prior decisions—in Nixon, that was unanimous; Clinton v. Jones, you know, similarly, not exactly fractured. And so, a decision that was 5-4, I think, would have looked worse for the Court than the ultimate decision that came down, which was 7-2.
Now the President Trump’s two nominees, Justice Gorsuch and Justice Kavanaugh would have asked the lower court to evaluate the subpoena under a more demanding standard that is applicable when a party seeks, for example, a president’s official papers, whereas this case just involves personal records. But nonetheless, they concurred in the judgment that this particular subpoena could proceed with a president raising more specific challenges to it in subsequent proceedings.
But, you know, I think it would be a mistake to look at this term and think that the Court was really policing excess presidential power. Sure, the Court rejected this absolutely broadside attack on the idea of accountability under the law. But it did so in part because the President’s arguments were just so outlandish.
But in many other cases, the Court was quite receptive to arguments that expanded the scope of the president’s powers. [For example] allowing the president to fire the director of the CFPB, holding that that’s required under the Constitution, as you discussed in a prior episode. Or holding that the challenge to the DACA rescission, the plaintiffs could not proceed on the argument that the rescission was based on racial animus because the president was not directly involved and, instead, involved all of his other agencies and officials; and the Court said, well, that’s basically enough to insulate this rescission from a challenge that it was motivated by racial discrimination. And so in those decisions and others, the Court actually expanded presidential power and in Vance, it nearly rejected what was an extremely aggressive, outlandish claim of presidential immunity.
Michele Goodwin 24:01
So with that, I want to open up this discussion. And I want us to talk about how the president has been viewed by this Court. There has been criticism, including coming from the Court, that this has been a Supreme Court incredibly sympathetic to the president, that’s given him a pass in some ways. We’ve heard that from Justice Sotomayor and also from others. So, how should we understand how this Court is relating to the president? And I open that up to you, Erwin, Leah, whoever would like to join in.
Erwin Chemerinsky 24:36
Overall, I think this is a Court that’s been very supportive of President Trump.
I go back to Trump v. Hawaii from two years ago where the Supreme Court upheld the Muslim travel ban. Also, there have been a number of Supreme Court rulings on matters that didn’t come before it for briefing an argument with someone calling the shadow docket, where President Trump has done very well before the Court. So when President Trump unilaterally changed asylum rules, in a way that clearly violates federal statutes and international law, the lower courts enjoined it, but the Supreme Court lifted the injunction.
Or another example, where President Trump wanted congressional funding to build the border wall, Congress said no, President Trump refused to sign a spending bill—he had a longer shutdown to the federal government than any time in history—he capitulates and says, we’ll sign the budget belt, but then he diverts Pentagon funds to build the budget wall in a way that clearly violates the Constitution and federal law.
A federal district court judge issued an injunction against this. The Supreme Court, 5-4, lifted that injunction. The Ninth Circuit affirmed the injunction in June. And just last Friday, the Supreme Court again, 5-4, lifted the injunction to allow President Trump to use federal funds to build the border wall without any congressional or constitutional authority.
Michele Goodwin 26:00
This is unheard of.
Erwin Chemerinsky 26:02
Right. I mean, these are the examples where President Trump is doing very well before the Supreme Court. Much too well, because I think the Court is upholding violations of the Constitution.
Michele Goodwin 26:14
So then can we take seriously, then, what Justice Roberts has said: That there are no Trump justices, no Obama justices, no fill-in-the-blank, Clinton or whomever? How seriously can we take that?
Erwin Chemerinsky 26:25
In one sense, of course, that’s right. Once a justice or a judge is on the bench, that justice or judge has life tenure. On the other hand, we know that the ideology of the justice, of the judge, matters enormously in deciding cases. And when you’re talking about Supreme Court cases, the outcome is so much a product of the life experience and views of the justices.
To me, it’s very troubling how much the current Court—five conservative justices—is willing to side with President Trump, even in matters that clearly violate the Constitution.
Franita Tolson 27:00
The president’s positions are not necessarily out of step with Republican priorities. And I think that it does matter, you know, in a sense, that the appointing president, his ideology tends to coincide with that of the justice he appoints.
But it’s interesting how whenever Roberts votes with the four liberal justices, then he receives all of this criticism—you know, his voting [in the] abortion case and with DACA and the Title VII case are all instances in which he’s received a lot of criticism. There was an op-ed out recently which called on him to resign, in part because of leaks from the Court, but also a sort of tapping into this general sense that because he has voted with the liberal justices in some cases in this term, that has created this sense that he isn’t really adhering to GOP priorities. Which you know—
Michele Goodwin 27:55
Which should not be a question at all for a justice on the Court anyways.
Franita Tolson 27:59
Justices are supposed to be, you know, calling balls and strikes here. But I think our political reality is that these are not neutral arbiters, right? These are individuals; they have very conflicting views of the world. And that our politics are so polarized that anytime one of the justices goes against, and I’m putting that in air quotes, “what their supposed view of the world should be,” then they receive extensive criticism. And so it raises a question about, you know, the position of the Court and what our politics have done to it.
Michele Goodwin 28:32
So on that note, Brigitte, I want to turn to you and thinking back about sex in the long arc of this Court. Because to think about Roe v. Wade, it’s Justice Blackmun who pens that decision; it’s a 7-2 decision. He’s a Nixon appointee. Right? To think about Title X, it’s George H.W. Bush shepherding it through Congress and it’s Nixon signing it into law. It’s Nixon being interviewed then by the leading papers in the country and saying this is just plain old common sense—making sure that the most vulnerable Americans have access to reproductive health care.
And so now as we, you know, pivot forward and we look at June Medical, and we look at the span of TRAP laws across the country, what is really the future of abortion rights and contraceptive rights in our country, given the makeup of this court?
Brigitte Amiri 29:30
That’s a great question. And I wish I had a crystal ball, but you’re absolutely right.
Michele Goodwin 29:34
Me too! Crystal or somebody.
Brigitte Amiri 29:39
Exactly. I wish I had it, it would make my job a lot easier. But you’re absolutely right that a number of people—Ronald Reagan, too, when he was governor of California was pro-choice.
So really, when the religious right came into power in this country—really when they claimed this power and pushed Republican candidates and Republican politicians to say that they were anti-abortion, anti-contraception—that’s really when we saw a big shift in this country. And so that’s really driving a lot of what has happened today.
Michele Goodwin 30:17
Because they [Republicans] weren’t [anti-reproductive healthcare] before; and just as you say with Ronald Reagan, not really, neither, with Nixon, not with George H.W. Bush.
Brigitte Amiri 30:26
That’s right. Bush Sr. as well; all of them. So it’s really just changed how politicians have talked about abortion and their policies on abortion as well.
Michele Goodwin 30:40
So with June Medical, there are those—picking up on what Franita said— there are those that have said that look, Roberts has lost his religion, he sided in the wrong way because he joined the liberals.
But really, can you help us unpack a little bit more with the nuance of Justice Roberts joining with the liberals on the Court: Does it really mean that he’s changed, you know, changed his point of view, his jurisprudence on reproductive rights? Or, was there a particular reason do you think that he joined? Was it about precedent and deals being struck behind the scenes on the Court, or anything else?
Leah Litman 31:26
So the opinion that he issued in June Medical Services, he refused to join Justice Breyer’s opinion, which would have affirmed and applied the Court’s prior decision in the Texas case, Whole Woman’s Health v. Hellerstedt. That was a decision that struck down the admitting privileges requirement that Texas enacted. Justice Roberts, the chief, wrote separately to say he thought the Court’s prior decision in Whole Woman’s Health v. Hellerstedt was wrong. Now, that was the decision that invalidated the admitting privileges requirement that would have closed over half of the 40 clinics in Texas and left only seven clinics in the entire state, all of which would have been closed all the way through. Exactly. For all of the women in Texas.
Michele Goodwin 32:10
You can’t make that up!
Leah Litman 32:11
That’s a decision that the chief justice thinks is wrong, lest you think he is some great liberal savior. He said, instead, “I am required to adhere to that prior decision, which I think is wrong, because the Court struck down an admitting privileges requirement that had similar kinds of burdens as this Louisiana admitting privileges requirement,” which would have closed two of three clinics in the state. “Well, I will agree that this particular law is invalid, but I refuse to apply the legal test that the Court adopted in Whole Woman’s Health v. Hellerstedt, which is more protective of abortion rights than the legal standard I would like.”
Instead, what he said is, “I will not inquire into whether a state law advances a valid purpose. Instead, I will allow legislators to pass laws that they merely have reason to think might have a legitimate purpose. They don’t have to back it up with any evidence, they don’t have to back it up with science. Instead, they can just say, yeah, we think this might be good for women’s health. And then I will only focus on the burden that the law imposes.” That is the same standard that proponents of restricting abortion have been advocating for the last several years. And that is a standard that the Chief adopted and indicated he would apply in future cases.
Michele Goodwin 33:27
So in many ways, then, that was like a kind of temporary win in some ways for those who support abortion rights, but really what he does, in that case, is to open the door for the enactment of more TRAP laws, more laws just like the one that was struck down and Whole Woman’s Health.
Leah Litman 33:48
I think that that’s exactly right.
Michele Goodwin 33:50
Yeah, go ahead, Erwin.
Erwin Chemerinsky 33:53
You asked what explains John Roberts’s ruling in the June Medical Services case. My own explanation is it’s about respect for the Supreme Court.
The Supreme Court, four years ago, declared unconstitutional the Texas law. Louisiana simply copied, verbatim, the Texas law. And the Fifth Circuit nonetheless upheld Louisiana law. And I think what John Roberts was trying to say is, “Lower courts, you have to follow Supreme Court precedent.” As Leah rightly pointed out, there’s a tremendous inconsistency in John Roberts’s opinion in June Medical Services. On the one hand, he’s professing the importance of precedent, stare decisis. On the other, he’s ignoring stare decisis and the precedent that Justice Breyer said there in terms of the test.
Michele, I think the overall answer to your question in terms of the future of abortion rights, is at this point, with these nine justices, it all comes down to John Roberts. I think there are four justices—Thomas, Alito, Gorsuch, and Kavanaugh—who will vote to overrule Roe v. Wade. Will John Roberts be willing to go that far?
The most optimistic reading of his opinion in June Medical Services is that he cares enough about the precedent that he wouldn’t vote to overrule Roe and [Planned Parenthood of Southeastern Pennsylvania v.] Casey. On the other hand, the test that he articulates—as Brigitte and Leah pointed out—is so deferential to the government, I think it will mean that most of these other TRAP laws will get upheld by the Court 5-4. It’s just here, he wasn’t going to hold the Fifth Circuit decision that so disobeyed a Supreme Court recent ruling.
Michele Goodwin 35:25
So in part, what you’re also saying then too, Erwin, is that perhaps what helps to explain Chief Justice John Roberts in this term is thinking about the legitimacy of the Court.
Erwin Chemerinsky 35:36
I think John Roberts is tremendously concerned about the legitimacy of the Court. Joan Biskupic, who covers the Supreme Court for CNN, did a biography of John Roberts a year ago. And I think that was a central theme.
But keep in mind that Roberts has been a conservative his whole life. He’s been a conservative justice since coming on the Court in 2005. And so we shouldn’t take a vote in June Medical Services, or a vote with regard to Title VII, as indicating he’s other than, overall, a conservative justice.
Michele Goodwin 36:09
Mm-hmm. Now, what about the Bostock [v. Clayton County] case? So this is a case where many are saying, “This is a very clear victory that never before had transgender rights received such deference from the Court.”
Bridgitte, can you tell us a bit about this case? Because this was, in part, an ACLU victory too.
Brigitte Amiri 36:34
Yes, it was. And I wish one of my colleagues from the LGBT project was on to tell more, so I might defer to others. But it was a victory.
Michele Goodwin 36:41
And we’re gonna get one of them on for a future show involving LGBTQ equality and rights.
Brigitte Amiri 36:47
Great. So you know, I can tell you that—you know, hearing my colleagues from that project talk about it— they were writing this specifically for Justice Gorsuch, in particular, who is a “strict constructionist,” looking just at the text of the statute of Title VII in terms of what it would mean for someone to be discriminated against in employment based on their, that they’re transgender or that they’re gay or lesbian. And so that was the audience that my colleagues knew they were writing to. And luckily, they were successful. And looking just at the text of the Title X statute, the Court ruled 7-2 that—or, sorry 6-3 I think, right—that I am hoping so, 6-3, that under Title—[Editor’s note: the decision came down 6-3.]
Michele Goodwin 37:41
We can always vote.
Brigitte Amiri 37:42
I know. That under Title VII, that employers can’t discriminate against people because they are transgender or because they’re gay or lesbian.
Michele Goodwin 37:51
So Leah, what does this case represent?
Leah Litman 37:54
I think it’s an important victory for LGBT workers. You know, it confirms that employers can no longer fire employees simply because of their sexual orientation or gender identity.
But I also think it’s important to note that the decision has real limitations and could be substantially restricted in the future. Specifically Justice Gorsuch—who wrote the opinion—said that he was not deciding whether employers who have religious objections to LGBT equality or workplace non-discrimination protections. He was not deciding whether those employers were also subject to Title VII prohibition on discrimination.
And in fact, the Court’s subsequently decided cases on religious liberty suggests that Justice Gorsuch, along with the conservative justices, will conclude that either  the Religious Freedom Restoration Act, a federal statute that limits the ability of other federal statutes to substantially burden religions, or  the First Amendment’s religion clauses would prohibit Title VII from being applied to employers who have religious objections to workplace equality protections.
And so, while the decision in Bostock is an important victory for LGBT equality, it is important not to overstate how significant it might be, particularly in the hands of this Court.
Michele Goodwin 39:10
It seems that that’s a real theme of this particular term. And so I want us to pivot just a bit from the cases themselves to dig a little bit underneath and to talk about precedent and textualism. And also the composition of the Court.
Can you give us a sense of what it is that you were thinking about at the time during the Obama administration, when you suggested that perhaps Justice Ruth Bader Ginsburg and maybe Breyer should be thinking about retirement?
Erwin Chemerinsky 39:43
In March of 2014, I wrote an op-ed in the L.A. Times encouraging Justice Ginsburg to retire at the end of the term. I said it was apparent that the Republicans were likely to gain control of the Senate in November 2014. And who knew what was going to happen in 2016, and the presidential election? Who knew?—that was an understatement. And I said the only way she could be sure that somebody with her values and views replaced her would be to leave then because it was a Democratic president and a Democratic Senate.
I had no idea the reaction that I would get, including from Justice Ginsburg, who gave many interviews saying, “What makes you think I should retire and I’m not going anywhere.” And hate mail would be a generous way of describing it. People who usually agree with me strongly differed.
It was a gamble on her part. And if she makes it to the end of the Trump presidency, it was a good gamble. If President Trump gets to replace her, then we could think about it. Now the only thing that I can say is, I, like everyone, just wish for her good health and for her stay on the Court for a long period of time.
Michele Goodwin 40:51
President Trump has been able to appoint or nominate more federal judges than any other president, save George Washington. What does that mean in terms of the future of our federal courts?
Franita Tolson 41:03
Can I weigh in here, Michele?
Michele Goodwin 41:04
Franita Tolson 41:06
I find it terrifying. In a sense, because what it means is that we’re going to have a majority conservative federal court system for a generation. Right. And so, you know, to the extent that the courts have been a refuge for, you know, liberal and left-of-center causes for the last three decades, I think that requires a change in strategy.
Now, we’ve been trending in this direction for a while, right? The Supreme Court hasn’t really been liberal for a long time, or even really moderate. Like we’ve been sort of moving in that, heading in a direction of a more conservative judiciary for a while. And so maybe it is, sort of, you know— this is a move in terms of thinking, in terms of broader strategy and how to give voice to the issues that people on the left care about. Maybe this is something that should have taken place a long time ago, because the courts have been trending in this direction.
Michele Goodwin 42:07
One of the things that is so deeply disconcerting, though, is that, again, if you think about Roe v. Wade, and some of the decisions that came about in the 50s, and 60s and so forth, I mean these are people who were Republican-appointed. Who thought that, you know, racial equality, you know, makes sense. You don’t have to be a liberal to think that—that women are full persons and are entitled to dignity and autonomy. Do you need to be a liberal to think in that way?
Franita Tolson 42:34
In our politics? Yes.
Michele Goodwin 42:39
Gosh, well, I guess you just put that, put up, not too fine a point on that. So how do we understand the value of precedent this term? We’ve heard a whole lot about that and also textualism. Help our listeners to understand what that’s all about.
So do you think that there was, you know a sort of behind the scenes, dealings that were taking place with regard to precedent, right? This term “trade-offs,” right? So, perhaps Chief Justice John Roberts saying, “Okay, I’ll sign on to June Medical and, hint hint, precedent, but you’re going to give me something else.”
Erwin Chemerinsky 43:14
In terms of precedent, as we all know there’s long books and articles written on stare decisis. They always come to the same conclusion: Precedent should be followed except when it should be overruled. And there’s really no other answer to that. Because we all believe that precedent matters for stability in the law; we also believe there’s times when it’s essential to overrule precedent.
I don’t think precedent matters very much for the Roberts Court. I can think of so many cases, the prominent ones: Citizens United v. Federal Election Commission, that overruled the seven-year-old decision; Shelby County that effectively overruled earlier decisions with regard to voting rights; Gonzales v. Carhart, the abortion area that overruled Stenberg v. Carhart; a case I argued a year ago in the Supreme Court, Franchise Tax Board v. Hyatt, that overruled a 40-year-old precedent; Janus v. American Federation [of State, County, and Municipal Employees, Council 31] that overruled a 40-year-old precedent with regard to speech in union rights.
Yes, precedent mattered for John Roberts in the June Medical Services case. But overall, I don’t think of precedent as much of a limit on the justices. Nor do I think textualism really is. The problem with textualism is: Words are inherently ambiguous. And the justices say, “The plain meaning of the words is this,” but you could easily see the plain meaning being something else. So I’m skeptical that textualism really gets anyone very far.
Michele Goodwin 44:37
And, in fact, to dig just a little bit deeper for our listening audience: Leah, tell us what exactly does textualism mean or imply.
Leah Litman 44:47
Sure. So textualism is the idea that courts should be interpreting statutes according to the words they actually use, the words that are enacted into the law. It’s not based on what Congress or another legislature’s purpose was in enacting the statute. So that’s the philosophy of textualism.
But as Erwin was noting, there’s a lot of ambiguity in applying textualism. What specific word or phrase do you look at? How do you compare and contrast one provision to another? And also a lot of textualists do look at things like context. What was on Congress’s minds when they were enacting a statute? What was the common usage of a phrase?
And so, that methodology gives decision-makers a lot of discretion, just like most other methodologies do, and a great example of that is Bostock. Every single opinion in Bostock claimed that it was applying textualism; every single opinion and Bostock claimed that Justice Scalia, the proponent of textualism, would have sided with them.
If every single opinion in the case can reach all manners of outcomes on the basis of a single methodology, I think that should lead us to question whether and to what extent that methodology is capable of actually resolving these cases.
Michele Goodwin 45:58
Yeah, I mean, it would lead some to think that perhaps it’s all outcome-determinative, right, and just slap textualism on it for a certain level of legitimacy, appealing to a particular cohort. But in the end, as you say, it turns out that it’s varying. And we see that in one case in Bostock, so many different opinions and—all claiming to be grounded in textualism.
Brigitte Amiri 46:25
And I think if I can jump in—this is Brigitte—and all this conversation is making me feel like we need to say explicitly that the courts are not going to save us. And to the extent then that people think that long-lasting social change and progressive change is going to happen through the court system … That’s just not going to happen.
The only thing that is going to make a difference in terms of social change is sustaining social movements and enacting laws and that’s the people in the streets who are fighting for justice and changing people’s attitudes and minds. It’s all—they’re all tools in the toolbox.
But this idea that we can solely rely on the courts to protect our rights and to further civil liberties is mistaken. And we can’t get complacent about the other ways in which are equally, if not more important, to sustain—to make and sustain change.
Michele Goodwin 47:25
Well, with that, it brings to mind any number of issues, but one that I want us to turn to is to think about the weaponizing of the First Amendment. So as we think about this Court, and we think about some of the shifts that have taken place—certainly with regard to reproductive health care and rights, though not exclusively—we see what Justice Kagan at one point called the weaponizing of the First Amendment.
Erwin, what does that mean to you, that weaponization? And what are the ways in which we’ve seen it?
Erwin Chemerinsky 47:58
The weaponization of the First Amendment means using the First Amendment to strike down other kinds of social welfare laws and regulations. It’s really trying to use the First Amendment and the way the due process clause was used early in the 20th century.
I’ll give you a couple of examples. Michele, you and I wrote a law review article on a Supreme Court decision a couple of years ago, the National Institute of Family and Life Advocates v. Becerra.
Michele Goodwin 48:25
That’s right. NYU Law Review, you all.
Erwin Chemerinsky 48:28
Yeah. It involved the California law—that seemed quite simple—that said that facilities that provided reproductive health care to women had to post a notice, which just had to be on the wall, saying the state would provide free or low-cost contraception, abortion for women who could not afford it. And also it said that unlicensed facilities had to post that. The Supreme Court 5-4 declared that unconstitutional; Justice Thomas wrote for the conservative majority and said that it was impermissible compelled speech.
Or a moment ago, in passing, I mentioned the case of Janus v. American Federation. In 1977, in Abood v. Detroit Board of Education, the Supreme Court said that nonunion members are required to pay the share of union dues that go to support the collective bargaining activities of the union. The Court said nonunion members benefit from collective bargaining—the wages, their hours, the condition of employment—they shouldn’t be able to be free riders. But the Court 5-4 overruled that precedent in Janus, and said no longer can nonunion members be required to do that. That’s the case where Justice Kagan, in dissent, accused the majority—not only of ignoring stare decisis—but of weaponizing the First Amendment.
Michele Goodwin 49:46
Of the 113 individuals who have served on the Court, only four have been women. And similarly, in over 225 years, only three of the justices have been persons of color, two who are presently serving at this time.
How do we end up diversifying the courts? And I can’t help but think that that’s really tough given that, with the help of Senator Mitch McConnell, that President Donald Trump has stacked the courts and the majority of those people who’ve been appointed are people who are white men. Anybody want to respond to that?
Brigitte Amiri 50:20
Well, this is Brigitte—also, you know, ignite Leah on this too, because I know she’s interested in this topic, too.
But who are the lawyers who are arguing in front of the Supreme Court? Who are in the pipelines for the types of jobs that would lead them to be appointed to the federal judiciary? And, it’s overwhelmingly white men. I mean, the number of women and people of color who argue at the Supreme Court is so slim— it is appalling.
Leah Litman 50:46
I think Brigitte is right that the courts will not save us, but I think Erwin, Franita, you are right to say the courts could do a lot to hurt us. You know, it’s not just the weaponization of the First Amendment.
You think about a bunch of possible initiatives that a Democratic president and a Democratic Senate might do in order to make for a more inclusive, equitable world—increase access to birth control, increased parental and family leave, use race-conscious remedies to address discrimination in voting and policing—all of those initiatives would be vulnerable to a conservative Supreme Court and conservative lower courts. That’s why Mitch McConnell is, I think, the most significant politician of our time. Like, the composition of the federal courts are going to have repercussions for decades to come.
Even though we cannot rely on the federal courts as our saviors, either from our predicament now or predicaments in the future, we have to do more to convince progressives and Democrats to care about the courts, to focus on them and to appoint the kind of people who are going to be serving on the courts for a long time and moving the law in directions that will make it for a more inclusive, equitable society.
Michele Goodwin 52:07
So with that, I want to turn to the closing of our show, and that is to think about silver linings. And you’ve opened up the hope for that perhaps, Leah, by just outlining what is at stake and why Senator Mitch McConnell is so significant in these times.
Franita Tolson 52:25
I think one thing that the conversation has illustrated today is the importance of a partnership between the courts, political movements, voting rights, right. So to some extent, yes, you know, I agree that the courts won’t save us. You know, Brigitte hit it on the head and, but as Leah points out, the courts can hurt us, which is why they need to be a continued focus.
But also, power concedes nothing without a demand. And so, political movements play a very important role in bringing issues to the fore that society should care about. Right and partnering with voting, right—actually electing officials who can be responsive to the demands of the community— are a very important part of this.
And I think we’re living in that moment. Right. So the widespread protests in response to the death of George Floyd have provided us with an opportunity to bring to the floor a lot of the issues that have not been getting attention, even though people, you know, advocates, organizations have been suing about these issues of police brutality and racial injustice and systemic racism. And the courts have been nonresponsive. I think we’re living in a moment where we may see some actual change. And so that is the silver lining, right.
So even if we can’t—I mean, the Supreme Court heard 53 cases, right, like, you know, we’re not changing the Court; the Court will continue to issue decisions that are highly problematic. But I do think that there are other avenues for change that give me hope.
Michele Goodwin 53:52
Okay, thank you for that. Leah, silver linings?
Leah Litman 53:56
I think the silver linings I would identify are similar to what Franita suggested: Which is that increasingly, Democratic politicians and progressive social movements are focused on the courts. You have the Democratic Party platform, indicating that one important thing that a Democrat should do if elected to the presidency is focus on structural reform of the courts, focus on the kind of people it’s nominating, and possible broader reforms as well. I think that that is a big positive development. It’s an indication that the Democratic party and progressive social movements are putting their capital and their focus onto the courts, which is where I think they should be in part.
Michele Goodwin 54:31
Brigitte, silver lining?
Brigitte Amiri 54:34
I think very similar to Leah and Franita. And, you know, specifically, I think about what my colleague on the LGBT project, Taylor Brown, often points to, which is that, you know, for someone like Justice Gorsuch to recognize transgender rights—to talk about transgender individuals in the context of the oral argument, recognizing that there are transgender wares in the courtroom—is not a something that happens in a bubble. You know, around, you know, all these protests, you know—recently there were 15,000 people protesting in support of Black trans lives in Brooklyn—and so this conversation and how people can shift power, shift rights, shift the dialogue without, you know, relying on the courts, but also informing the courts and educating the courts about rights, I think is also incredibly important and a silver lining of this term.
Michele Goodwin 55:27
Thank you for that. And Erwin, to close out, any silver linings that you see going forward?
Erwin Chemerinsky 55:33
Sure. My silver lining is it could have been so much worse this term from the Supreme Court. The Supreme Court kept President Trump from rescinding DACA. That means 700,000 individuals will be able to remain in the country and keep work permits who would otherwise face deportation. The Court held that Title VII prohibits employment discrimination on the basis of sexual orientation or gender identity.
Over half the states did not have state laws prohibiting such employment discrimination; many never would. I certainly agree with Leah about concerns about how the Court might create a religious exemption. But let’s not forget that this does provide Title VII protection that didn’t exist otherwise. And I think it now means that there’s over 100 other federal statutes that prohibit sex discrimination that should be seen as also prohibiting sexual orientation and gender identity discrimination. The Court did strike down the Louisiana abortion law, which means women in Louisiana will have access to abortion they otherwise wouldn’t.
And to me, the most important silver lining is November 3rd [the presidential election]. And I hope we can have a conversation after that and talk about what that’s going to mean for the Supreme Court and the federal judiciary in the years ahead. I’m being an optimist.
Michele Goodwin 56:45
Absolutely. That’s really important. And we actually will have several shows devoted to the election given how important it is not only to this issue, but also so much more.
So, guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” I want to thank my guests—Professor Leah Litman, Brigitte Amiri, Professor Franita Tolson, and Dean Erwin Chemerinsky—for joining us and being part of this critical and insightful conversation. And to our listeners, I thank you for tuning in.
We hope that you join us again for our next episode, where we will be reporting, rebelling and telling it like it is, with special guests Representatives Jan Schakowsky and Barbara Lee, and tackling issues related to the Helms Amendment. It will be an episode not to miss. For more information on what we discussed today, please head to our Ms. magazine website, msmagazine.com.
And for our guests, if our listeners want to connect with you through social media, where can they find you? Leah?
Leah Litman 57:49
Michele Goodwin 58:00
All right, and Bridgitte, what about you? Where can our listeners find you on social media?
Brigitte Amiri 58:06
Sure. I’m on Twitter @brigitte_amiri, A-M-I-R-I, first name is B-R-I-G-I-T-T-E.
Michele Goodwin 58:14
And for Franita, where can our listeners find you on social media?
Franita Tolson 58:19
I am on Twitter @ProfTolson, P-R-O-F Tolson, T-O-L-S-O-N.
Michele Goodwin 58:25
And Erwin, on social media, I know that Berkeley has an account [@berkeleylaw] that keeps everything up to date for you. But Erwin, are you on social media?
Erwin Chemerinsky 58:37
I’m not on social media. I’m not on Twitter or Facebook or Instagram, but if anyone needs to reach me, I am an email at firstname.lastname@example.org.
Michele Goodwin 58:47
Thank you, Erwin.
So if you believe, as we do, that women’s voices matter, that equality for all persons cannot be delayed, and that rebuilding America, being unbought and unbossed, and reclaiming our time are important, then be sure to visit us at Apple Podcasts. Look for us at msmagazine.com for new content and special episode updates. Rate and subscribe to “On the Issues with Michele Goodwin” in Apple Podcasts, Spotify, iHeartRadio, Google Podcasts and Stitcher. Let us know what you think about our show.
This has been your host, Michele Goodwin, reporting, rebelling and telling it like it is. “On the Issues with Michele Goodwin” is a Ms. magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers are Maddy Pontz and Roxy Szal. Our research assistants are Zoe Larkin and LaTiara Rashid, Rina Wakefield and Sarah Montgomery. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and music by Chris J. Lee. Stephanie Wilner provides executive assistance.
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