HH: I must tell you, you’ve got to read a story in the New York Times today by Adam Liptak, who is one of the New York Times’ better journalists when it comes to the Supreme Court. He’s of course a graduate of Yale, so we have to overlook that, and Yale Law School. But he’s got a good grasp on the Court. Adam Liptak, welcome, it’s great to have you, congratulations, by the way, on the e-book To Have And Uphold.
AL: Thank you very much, good to be here.
HH: When did that book come out, the e-book?
AL: It’s available for preorder now, and if I finish it, it’ll be ready on July 9th.
HH: Okay, that’s it, because I thought I would have not missed that, so I’m glad to know about it. I will go and preorder it. And when it comes out, and people can read it, come back and talk about this.
HH: You wrote a piece today about the Chief Justice. Now I shared an office with the Chief Justice for a year in the White House Counsel’s office, so I kind of knew this. But a lot of people don’t get what he’s doing on my team. And I know you’re not on my team or their team. But on my team, a lot of people are still mad about Obamacare, but you wrote a piece today that said the Chief Justice has a method to his decisions which people have to decipher. What do you, explain it to people.
AL: I think he’s an exceptionally smart, patient tactician who is playing a long game. He’s a young man by Supreme Court standards. He’s only 58. He’s going to be there for decades. And in incremental ways, he’s planting seeds in current decisions that will take root and allow him to move the Court in his preferred direction over time. And I think we had a very stark demonstration of that in the case effectively striking down the heart of the Voting Rights Act, where he drew on language that he had persuaded eight justices, including the four liberals to sign onto four years ago, and then quoted it back against them four years later.
HH: You know, I’ve told people for years that they’ve got to read the concurrence in Citizens United if they want to understand the Chief Justice, because it talks about when you overturn precedent and when you don’t. But there is a case this week, and my friend, Dennis Prager, another very smart guy who studies this but is not a lawyer, he said how could the Chief Justice not decide the Prop. 8 case, and how could Scalia go with the liberals that went with them? And I said this is a huge deal about ripeness in cases far beyond Prop. 8. Were you surprised by that decision, Adam Liptak?
AL: I was a little surprised by the lineup. It seemed clear to me that the Court did not yet want to decide the question of same sex marriage. It seems pretty clear to me that if John Roberts had to vote on it, if you put a gun to his head and say you have to vote, he would be against the Constitutional right to same sex marriage. But the preference across the ideological spectrum was not to decide the question.
HH: And I said ripeness. I should have said standing. But he used standing. And explain to people what he was doing by doing that.
AL: Well, so there’s a couple of things. One, he’s very interested in standing. Standing is a doctrine about access to courts, and it says you can only come to court, sue or appeal, if you have a direct stake in the case. You can’t come to court and say I’d love to have your opinion about this and so. You have to have been injured. And that’s something across all kinds of cases, including Prop. 8, that the Chief cares about. So on one hand, it’s a pure question of standing law, which he elaborates on very well. It also, incidentally, but importantly, allowed the Court to duck the question of whether there’s a Constitutional right to same sex marriage, and the Court doesn’t like to get out ahead of the country too far. And whichever side they were on, they were happier not to give an answer.
HH: Now Justice Kennedy, of course, writes the majority in the opinion striking down DOMA, and he dissents from the refusal to take up Prop. 8. This is wild speculation, Adam Liptak, but do you believe that the Chief and Justice Scalia were avoiding giving the opportunity of five judges to strike, or to create strict scrutiny for sexual orientation?
AL: It’s very hard to say, because the bigger decision, the Defense Of Marriage Act decision about the federal law, was in large part based on federalism principles, saying that these are issues for the states to work out for themselves. Marriage is a state law issue. And if you take Justice Kennedy at his word on that, he would let voters in California decide whether they want to, or as they did decide, not want same sex marriage. So the DOMA case would suggest that Kennedy is not going to override the will of the…
HH: But pause for a moment. That language in the DOMA case about the animus of everyone who voted for it, that’s why I question that.
HH: Doesn’t that…
AL: No, you’re quite right. And Justice Scalia, in his dissent, sure made the case that that kind of language, that rhetoric, plus the reasoning and the logic in the DOMA case, would seem to require same sex marriage in the states. And as you pointed out a second ago, Hugh, Kennedy was in dissent in the Prop. 8 case, and he would like to give an answer.
AL: He didn’t say what the answer would be, but he and three other justices said they were prepared to decide.
HH: And I think that had not Scalia and Roberts found their way out of this jam at this point, given the language of the DOMA decision, it would have been very hard for Justice Kennedy to turn around and sign onto an opinion that said there wasn’t strict scrutiny available to people divided on lines of sexual orientation. Adam Liptak, then, explain from the perspective of a New York Times reporter what you think the Chief Justice did in the Obamacare decision, because all of his jurisprudence makes sense to my audience, except that case. And I’ve made my case. My friend, Mark Levin, a very, very good Constitutional lawyer, as you are and as I am, has a different view of it. What do you think he was doing there?
AL: I think the reality of it is, although you could argue backwards or forwards, that his tax rationale, the reality is that he did not want to have a Court made up of five Republican appointees over the dissent of four Democratic appointees, strike down, months before an election, a Democratic president’s signature legislative achievement, and leave the Court open to accusations that it’s a purely political institution. I thought he would rather put some political capital, as it were, in the bank, maintain the authority and prestige of the Court, and move onto issues he cares about more, notably race.
HH: And as you pointed out in this morning’s story, carve out an exception on Medicaid in that decision that has greatly complicated, if not doomed, Obamacare. That, by the way, was the singular insight in your story this morning that made me Tweet it out. I just thought not many commentators have figured this out, yet.
AL: And he got Justices Kagan and Breyer to sign onto that.
AL: So something is going on behind the scenes where he is persuading liberals to, in order to get a victory today, accept some pain tomorrow.
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HH: I’ve got to ask you my own, your assessment of my theory.
HH: Hobby Lobby decided by the 10th Circuit this week is effectively a declaration that Hobby Lobby does not have to comply with Obamacare as a privately-held company with religious scruples, which are true and no one can deny. It’s a huge 1st, a free exercise case. I think ten years from now, conservatives are going to look back at the fact that the free exercise issues raised by Obamacare are going to be resolved by the Roberts Court in favor of free exercise claims, and that that will have been worth the pain to build that wall of defense. What do you think of that, Adam Liptak?
AL: I do think the issue’s going to the Court, and I do think that this Court is skeptical of the Obama administration’s version of religious liberty. You remember a term or two ago in the Hosanna-Tabor Case…
HH: You bet.
AL: They unanimously slapped down the Obama administration’s assertion that a religious school did not have the right to fire a religious instructor if there was an argument that anti-discrimination laws had been violated.
HH: So I see in my mind a roadmap where after many years, although the enormous frustration of Obamacare resides with many conservative legal theorists, that they will be happy to have had this Court, before additional changes occur, decide free exercise claims in the face of a rapidly expanding federal state, Adam Liptak.
AL: I don’t disagree with that. I think if you ask them whether many conservatives would rather have the whole law come crashing down, because if you took out the mandate, you very likely take out the whole law, whereas this is an issue that you could probably sever from the rest of the law. And although it would be a victory for the right, and for religious liberty, it wouldn’t undo Obamacare in total.
HH: But religious liberty, if it is drawn the right way, will be the fortress for people of faith over the next many decades against a culture with which they are increasingly, obviously, at odds and a dwindling minority, aren’t they?
AL: That’s right, and it probably plays into some of these same sex marriage arguments, where it will be fairly hard to figure out how you harmonize a government committed to same sex marriage and religious liberty interests.
HH: Last question, in your new book, are you going to talk about Roberts’ temperament in his writing?
AL: Well, I’m going to finish it over the weekend, and you’ve given me a very good idea.
HH: (laughing) I look forward to reading it, Adam Liptak of the New York Times. Thanks for joining me. Great piece this morning, come back when the new e-book, To Have And Uphold, is out.
End of interview.