Court watchers tell Bill Moyers: Justice Scalia has used his platform to mobilize GOP base
The following is a transcript of a discussion from this week’s episode of “Moyers and Company,” as aired on Friday
BILL MOYERS: Welcome. If you had trouble sorting through the blizzard of decisions released by the Supreme Court, led by Chief Justice John Roberts, you’ve come to the right place. Two of the most knowledgeable court watchers in journalism are here to help decode the implications of those 5-4 rulings on public prayer, organized labor, campaign finance reform and the Hobby Lobby case – that’s the decision that certain companies, on religious grounds, do not have to provide health insurance for some forms of birth control.
Linda Greenhouse covered the Supreme Court for “The New York Times” for thirty years and still writes a bi-weekly column for that paper. She’s a lecturer as well as the Knight Distinguished Journalist in Residence at the Yale Law School.
Dahlia Lithwick, who has a law degree from Stanford, is a senior editor at Slate.com, where she writes the website’s “Supreme Court Dispatches” and “Jurisprudence” columns. Currently, she’s working on a book about the four women who have served as Supreme Court justices. Welcome to you both.
DAHLIA LITHWICK: Thank you.
LINDA GREENHOUSE: Thank you.
BILL MOYERS: You have covered the court, Linda, since 1978. In that context what do you make of the Roberts court?
LINDA GREENHOUSE: Ah, so I try to think generously about the court, you know. But I think it’s hard for anybody looking at this court objectively to come away not thinking that it’s a court in pursuit of an agenda. And I’m sorry to say, I think that agenda maps on pretty closely to a Republican Party platform in things that– in the hot button issues that many of us care the most about.
BILL MOYERS: And is that unique in the years you’ve covered the court?
LINDA GREENHOUSE: I have to say so, yes, in terms of a five-member coalition having coalesced for those results. Not that there haven’t been conservative versus liberal splits on the court always. And I covered the transition between the Burger court to the Rehnquist court. And certainly Chief Justice Rehnquist had an agenda, was kind of a states’ rights agenda that he was pretty successful in accomplishing.
But what we see now, I think, is a much broader effort across more areas on constitutional doctrine that really touch the lives of people, whether it’s religion, speech, politics and so on. So it’s something that I find quite concerning.
DAHLIA LITHWICK: I agree. I think that, you know, you need look no farther than the win record of places like the Chamber of Commerce, you know, big business at the court is having its winningest few seasons under the auspices of the John Roberts court. And these are, you know, business interests that used to win, you know, 50 percent of the time, 60 percent of the time. And in the last few years between 70 percent and 80 percent of the time, issues on which the Chamber of Commerce and other pro-business lobbies get involved in cases, we’re looking at huge win rates.
And I think that if you look at the architecture of unraveling the sort of Warren court revolution, what the court stood for, you cannot look at the Roberts court and say that they’ve done anything other than systemically unravel voting rights, women’s rights, worker’s rights, environmental progress. It’s a pretty palpable and I think unequivocal trend.
BILL MOYERS: I think you’ve also written that the right on the court is further right than mainstream conservatives.
DAHLIA LITHWICK: Well, I think that there’s two things. One is that it’s absolutely clear (and I think this is empirically proven), that for the last few decades everybody who retires on the court is replaced by someone either slightly to their right or significantly to their right. So the court has not kept apace with, you know, mainstream legal thought. The court has torqued more and more to the right.
And I do think that on some of these issues, notably birth control, which we saw kind of I guess somewhat illuminated in the Hobby Lobby discussion, this is a view of birth control that is not at all in step, I think, with where the American public is on birth control. And so I think in that sense the court isn’t simply to the right of sort of mainstream legal thought but dramatically to the right of the rest of the country.
LINDA GREENHOUSE: So you had Justice Scalia and Justice Thomas way out there and you had Chief Justice Roberts I think misinterpreted by many people as steering a moderate middle course. What he was doing was, as he’s been doing all along, steering a strategic course to tee up the court to ultimately be in a place where he’d like it to be, but he doesn’t need it to be there all at once.
BILL MOYERS: Where do you think he would like it to be?
LINDA GREENHOUSE: Well, I think he’d like to get the government out of the business of exhibiting special solicitude toward claims of racial discrimination. And they’re moving right along on that. The voting rights decision a year ago, Shelby County indicates that. And they didn’t quite get what they wanted in the Fisher case last year, the University of Texas affirmative action case, because they couldn’t quite bring Justice Kennedy along. But that’s certainly, you know, part of the agenda.
Another part, the court has– is in the process of sort of hijacking the First Amendment free speech principle as a tool of deregulation in a startling way.
BILL MOYERS: Startling?
LINDA GREENHOUSE: Startling, yeah. In what would’ve been not too many years ago considered just ordinary garden variety federal or state regulation of business activity, all of a sudden we see that there’s a First Amendment claim being raised by the business interests, free speech, commercial speech, corporate speech that, you know, is being given a great deal of deference by the court.
BILL MOYERS: They keep pushing this notion of the corporation’s personhood. How far can they push that before they lose their claim to be rational and reasonable men?
DAHLIA LITHWICK: I think that for a lot of court watchers it was simply staggering to take the principle announced in Citizens United that corporations have First Amendment speech rights, which as controversial as it was to the rest of us was not all that controversial in the First Amendment community.
But to extend that to religious freedom under, RFRA, the Religious Freedom Restoration Act, was breathtaking. I mean, that wasn’t simply corporate personhood from Citizens United tweaked a little bit. That was saying that for purposes of religious freedom, corporations pull into the parking lot next to you at church and put on a hat and pray and that they can exhibit religious conscience in a way that defies, I think, the metaphor defies most of us. Most of us cannot say that Hobby Lobby prays or exercises religion in the parlance of the case.
BILL MOYERS: Or has a soul.
DAHLIA LITHWICK: Or has a soul.
BILL MOYERS: Which many religious people believe comes with the turf.
DAHLIA LITHWICK: And so I think that that was, you know, it’s a part of the case that a little bit disappeared in the conversation around birth control, but really I think the part that was breathtaking for those of us watching the court was the ease with which they transported this idea that corporations are people too for speech purposes, to the idea that corporations are persons under a statute that was supposed to protect persons.
LINDA GREENHOUSE: There’s nothing in the opinion, the way it’s structured, that you can say, ah-ha, here’s the stopping point.
Instead you read it and you say, whoa, this just goes on and on. It stops at Hobby Lobby today because it’s– Hobby Lobby brought the case. But there’s no reason why it wouldn’t apply to some other more conventionally organized company, too.
BILL MOYERS: What do you make of the fact that Justice Alito said, well, this applies only to the contraceptive mandate. Do you take him literally, at his word?
DAHLIA LITHWICK: What worries me about the Hobby Lobby decision, if he’s simply going to say contraception is different, and he says that in the opinion– this is different from real medical interests like vaccinations, you know, there really is a compelling interest, but contraception is different.
So I find that in and of itself terrifying. If I have to take him at his word that this is an unserious government interest, then that’s extremely problematic for women’s reproductive health and freedom and economic freedom in this country. And so it’s almost– there’s a way in which one has to look at, and you know, Justice Ruth Bader Ginsburg in her dissent calls this a “minefield,” you know, that what he’s opening up is a Pandora’s Box.
BILL MOYERS: One exemption after another for any claim for religious conscience?
DAHLIA LITHWICK: And clearly if you read the opinion, there is, as Linda says, really no limiting doctrinal principle. He’s just asserting, for purposes of this case, contraception isn’t a sufficiently compelling thing not just to protect and privilege but to even really discuss in the opinion. He just elides over the problem of it.
And to me I think it raises one terrifying possibility which is that contraception isn’t a real medical need, and that scares me. The other is that maybe that this religion is somehow just a real religion and that the court is inserting itself into the business of deciding when the Jehovah’s Witnesses come along and the Scientologists and the strict Muslims, that their religious claims are less privileged, that’s equally terrifying in my view.
LINDA GREENHOUSE: He left out a whole bunch of other stuff. For instance, gay rights is– the court’s silence on that was rather thunderous. And that’s really the next frontier because we’ve seen this even before the Hobby Lobby case where religiously motivated employers will say, you know, I don’t approve of, you know, this quote, “lifestyle” so I don’t need to hire, I don’t need to do business with, I don’t need to, you know, bake a cake for a same sex wedding, I don’t need to this, that and the other thing.
And so I found that a very telling silence both from the Alito majority opinion and the Anthony Kennedy concurring opinion.
Of course Justice Kennedy’s being hailed as a hero in many quarters for having written the court’s majority opinion last year in the Windsor case that invalidated the Defense of Marriage Act and has been invoked by a couple dozen federal district judges around the country in striking down state provisions that rule out same sex marriage. So where was Kennedy on this?
BILL MOYERS: Is Justice Alito the most partisan of the justices as you see the court?
LINDA GREENHOUSE: Oh, there’s competition for that title. I mean, you know, Justice Scalia, much his senior, has distinguished himself for many years in writing dissenting opinions that basically seek to mobilize the base. Okay, I mean, it’s very interesting–
BILL MOYERS: The Republican base?
LINDA GREENHOUSE: The Republican base. “The Wall Street Journal” had an editorial this week purporting to criticize Justice Ginsberg’s dissenting opinion as being overblown and seeking to mobilize the progressive base, you know, against the court’s majority. And I thought, haven’t they been listening to their friend Nino for the last, you know, 30 years?
BILL MOYERS: Before you came, I’ve been leafing through the new book by Laurence Tribe and Joshua Matz, “Uncertain Justice” they call it, reminding us that quote, “justices can frame the way we live.” So how is the Roberts court framing the way we live?
LINDA GREENHOUSE: Let’s take race, let’s take how the Roberts court a year ago, the five members in that majority in Shelby County, the Voting Rights Act case, framed the story of America and race, okay. If you read that opinion, hey, problem solved. Yeah, we had a problem once, we had sort of a serious problem once and Congress dealt with it. And lo and behold, the problem’s over.
The law that was a powerful tool to deal with racial discrimination in voting is outdated, there’s no need for it anymore. You know, Congress has stubbornly refused to revise it, to bring it up to modern reality and so that part of the law, the formula that, you know, set the whole mechanism of voting rights protection in motion is unconstitutional. So that’s a framing device. And you know, I assume they’re sincere in believing it. But I think it’s not the American story that most of us understand it to be.
DAHLIA LITHWICK: And I would just add to that, I think one of the most powerful dissents written this year comes up in an affirmative action case out of Michigan. And this isn’t directly an affirmative action case because it’s the state attempting to ban affirmative action. So it’s the flip of the cases we’ve looked at.
But the court does another recitation of the only way to get beyond race is to get beyond race. And we have to just all acknowledge that racism was a problem but thankfully it’s over. And Justice Sonia Sotomayor writes this unbelievable dissent that draws from her experience growing up in America that has very much not gotten beyond race and more or less says to the court, look at me, look at me and people like me before you say that the way to get beyond race is to get beyond race.
The way to get beyond race, she writes, is to talk about it and to acknowledge what it is to be an outsider in this country. And I think Ruth Bader Ginsberg does it in Hobby Lobby as well, saying this isn’t the America we experience, we as women, we as minorities, we as people seeking justice at the hands of the court system. This isn’t the America we see. And so I think there’s a real pushback in the dissents in all these cases that it says it may be that you have gotten beyond race, majority of five. The rest of us are still really struggling.
BILL MOYERS: So in the Hobby Lobby case, are they framing corporations possessing more rights as persons than people as individuals? Are they reframing our relationship to corporations?
LINDA GREENHOUSE: I’ll give you an oblique answer to that. I think you have to understand Hobby Lobby setting it alongside the other big religion case this term which is a case called Town of Greece– Town of Greece against Galloway, which upheld the recitation of Christian prayers at the start of town board meetings in this upstate New York town.
And this practice was challenged by two non-Christian citizens who didn’t feel like having to listen to these prayers when they showed up at the town board to conduct their business. And they argued and the lower court agreed that this was in effect an establishment of religion in violation of the First Amendment’s establishment clause.
And Justice Kennedy, writing for the 5-4 majority that overturns the lower court and upholds the prayer, says, yeah, you know, these two plaintiffs were offended. But adults in America hear lots of offensive speech and basically just, you know, deal with it. I mean, a total lack of, you might say empathy, for the position of these plaintiffs who were being made to feel– who claim they were being made to feel excluded as citizens in their community.
So take a look at that and then eight weeks later we come down with Hobby Lobby where the court’s solicitude for the conscience claim of Hobby Lobby’s owners not from having to hand out birth control to their employees but simply following a federal law that includes contraception within the employee health plan and the employees could decide to do whatever they wanted about that– this attenuated claim was so worthy of being heard that the court was just dripping with empathy for Hobby Lobby’s owners.
BILL MOYERS: Do you sense any empathy there for women in the majority?
DAHLIA LITHWICK: What’s interesting to me is, and somebody actually counted the words, the number of times the word “women” appeared in the majority opinion as opposed to all this language of real deep identification with the religious owners. And it’s clearly disparate.
In other words, you know, it’s not only that women don’t show up, but Justice Alito in his opinion does this sort of clever thing which I likened, in one of my columns, to the way Ricky used to talk to Lucy where he sort of says, I’m going to grant you that this is important so that I don’t have to argue it. So that Alito sort of says, let’s just concede that it’s an important issue. But then he never engages with it.
He in no place says, my God, there are all sorts of no procreative reasons, urgent health reasons, basic reasons that have to do with women’s ability to control their reproductive lives over, you know, 40 years of a career, none of that is acknowledged. And so there’s a way in which by simply conceding it he gets around the fact that he doesn’t have to talk about it.
And it seems to me that this country, you know, if you think about the rhetoric around the Hobby Lobby case and the degree to which this has been represented as sort of loose women who are too lazy to go to the drug store and buy a condom and the blowback we’ve had about that, had the court had the conversation that says, here’s a reason that 99 percent of American women use contraception and these are all the medically indicated reasons that sometimes a very expensive IUD is the thing that the doctor will recommend for you, none of that happens.
And because it doesn’t happen in the court, it doesn’t happen, I think, in the conversation around the decision. And it seems to me that our ability to have the conversation about why this is serious is just one of the central tragedies of Hobby Lobby.
LINDA GREENHOUSE: Well, and I think we also have to acknowledge that this whole contraception discussion and Hobby Lobby is a proxy for abortion, right. So Hobby Lobby’s owners say not all the religious objectors to the contraception mandate are in the same position, but Hobby Lobby’s owners say, the only things we object to are the quote, “abortifacients,” among the 20 or so required contraceptions by the mandate.
And of course that’s a total falsehood actually because if you take the medical definition of pregnancy, I mean, what does abortion do? It ends an ongoing pregnancy. None of these contraceptives actually do that. They– none of them that are on that list work after the fertilized egg has implanted in the uterus.
And so if somebody wants to believe that a fertilized egg has full personhood, that’s certainly their privilege. But that’s not a medical definition of pregnancy. So this sort of hijacking of this issue and importing it into the abortion issue is a very clever move that’s really at the center, even if unacknowledged, in this whole debate.
DAHLIA LITHWICK: And I would just add, I think, you know, Linda said, you know, we have to look at Hobby Lobby next to Town of Greece, the legislative prayer case. I think we also have to a little bit look at it next to McCullen, the abortion buffer case–
BILL MOYERS: Where they–
DAHLIA LITHWICK: –because while that–
BILL MOYERS: That case removed any buffer between the protestors outside who in some cases were harassing the women going into the clinic. And now they can go right up to the door.
DAHLIA LITHWICK: Right. I mean, there was a 35 foot buffer. This is Massachusetts, it comes up after a history of horrific clinic violence including shootings at clinics. And Massachusetts says, we don’t know how to keep these women safe and how to keep public safety and health, beyond this 35 foot buffer. And it comes up as a free speech case.
But in the opinion written by Chief Justice John Roberts, the solicitude for these sidewalk counselors and the implication that everyone who has ever stood outside a clinic to talk to a woman does so in gentle tones, with sweetness and light, and without any acknowledgment that there is a reason, a historic reason that these women needed to be protected on their way into the clinics is really another example of what Linda’s ascribing as that over empathizing with one set of interests and almost total disregard for the interests of those women seeking abortions.
And I just think– I track both of these as going back to, you know, Justice Anthony Kennedy, and the last time the court heard a major abortion case was so careful to say, we’re just worried. Women are extra frail. And sometimes they regret their abortions. And we have to be super duper careful with getting them good information.
And it seems to me that that’s kind of the pill from which so much of this sentiment that all of First Amendment law stops and all of religious freedom stops and everything in the constitutional architecture of this country stops when we’re talking about women and their reproductive systems, it’s so strange.
BILL MOYERS: You’re both reporters and well respected, but as women can you be objective about five religiously conservative men making it harder for women to get help with birth control?
LINDA GREENHOUSE: I’m not trying to be objective. I’m trying to understand where they’re coming from and explain it to people. But, you know, these days I’m paid by “The New York Times” to be an opinion columnist. And I like to back up my opinion with facts.
BILL MOYERS: So where do you think they are coming from?
LINDA GREENHOUSE: I think they’re coming from, you know, a narrow worldview. I mean, you know, let’s be impolite and point out that all five of them are Roman Catholic and in service of an agenda by a couple of presidents who were elected on a party, Republican Party platform that called for picking judges who would overturn Roe against Wade. And you know, being Catholic is a fair proxy for that in the minds of judge pickers.
I think that wildly overstates the, you know, the case for the great majority of American Catholic women, I’m not saying that. So you have these five guys who have a rather narrow background, who live in a certain bubble and, you know, I think are projecting their perspective onto the face of constitutional law.
BILL MOYERS: We’ll continue this discussion online. Linda Greenhouse, Dahlia Lithwick, thank you very much for being with me.
LINDA GREENHOUSE: Thank you for having us.
DAHLIA LITHWICK: Thank you, it was great.
BILL MOYERS: At our website, BillMoyers.com, you can see my complete conversation with Dahlia Lithwick and Linda Greenhouse, and we’ll connect you to their most recent reporting on the Supreme Court. That’s at BillMoyers.com. I’ll see you there and I’ll see you here, next time.
Watch the discussion, as aired on Friday, below.