Was This Past Supreme Court Session 'A Liberal Term For The Ages'?
The Supreme Court term that just ended included historic rulings in support of same-sex marriage and the Affordable Care Act. "Political scientists will say that this is a liberal term for the ages," Adam Liptak, the Supreme Court correspondent at The New York Times, tells Fresh Air's Terry Gross.
But Liptak also notes that the court's political leanings could change next term. "The court is set to look at some very significant issues — affirmative action, voting rights and public unions — where, if the conservatives get five votes, you could really see America transformed," he says.
Those decisions will probably be determined by the two justices whose votes are the most unpredictable: Chief Justice John Roberts and Justice Anthony Kennedy. Liptak says that Roberts' and Kennedy's written opinions reveal "two very distinct views of the Constitution and of the judicial role: Justice Kennedy embracing an evolving understanding of the Constitution to be applied by judges; Chief Justice Roberts saying the Constitution is a static document, the public has other ways to address these matters and it's not for judges to make these decisions."
On what other kinds of cases the Obergefell v. Hodges decision could apply to beyond marriage equality
It's a little hard to identify the precise legal holding in the case. Justice Kennedy opted for soaring and vague and uplifting language instead of rigorous legal analysis, so it's hard to think of it as the kind of precedent you can mechanically apply to the next case. But not a few people have said that in its willingness to find in the Constitution a fundamental right to same-sex marriage, it may make the court open to finding other kinds of fundamental rights, say, to assisted suicide, but that is a very general reading — and necessarily one — because it was a very generally written opinion, which is what caused Justice Antonin Scalia to say even if he were so inclined to vote in that direction, which obviously he wouldn't, he would not have signed that decision. He would rather have hid his head in a paper bag than to sign a decision that he said sounded like a fortune cookie, not like a legal decision.
On how Justice Scalia's dissent in the marriage equality decision mocked Justice Kennedy
That's another trend this term: The level of personal ad hominem animus, just personal insult — particularly from Scalia, but not only from Scalia — was really extraordinary this term. And you saw a kind of change in Justice Scalia, who, it must be said, in his earlier years was a towering legal figure and a vivid writer and sometimes a snarky writer, but a man who single-handedly transformed areas of American law. And now he seems to have turned a corner and is just spewing a kind of "get off my lawn" kind of bile that doesn't obviously advance his jurisprudential cause. He seems very angry.
On how Liptak is surprised that Chief Justice Roberts voted against the marriage equality ruling
What I was a tiny bit surprised by was that the Chief Justice — who is only 60 and who must care about his own judicial legacy — didn't find a way, if not to join Justice Kennedy's opinion, perhaps to find a way on some narrow ground to vote with it, because I think it already seems like in 20 or 30 years from now it will certainly seem like our grandchildren are going to scratch their heads and wonder why there were four votes on the other side. I'm not saying that because it's right or wrong, I'm just saying because the polling and the trend lines so clearly indicate that this is something where the train has left the station.
On the significance of the marriage equality ruling in the struggle for gay rights
It's a huge and important and transformative victory, but in some ways it's symbolic and partial, because much of the nation still doesn't have laws against discriminating against gay and lesbian people. So in much of the nation you can get married in the morning and fired in the afternoon from your job for being gay and then denied housing because you're gay. So the court decision only does so much and is limited to marriage, and unless legislatures act to impose general laws against sexual-orientation discrimination, the work of the gay-rights movement is not yet done. It's a funny thing that you get to marriage first and job discrimination later.
On the chance that Justice Ruth Bader Ginsburg will retire before the end of the Obama presidency
I think she's made the decision that she's going to hang on for the next administration. She has all but said that she thinks it's going to be a Democratic president. She said Democrats don't do that well in the midterms but they do well in the general, so she seems to be playing out a scenario in which she hangs on and hopes that presumably Hillary Clinton appoints her successor. ... Much of the court is quite old, so the next president is very likely to have one, two, three appointments, so that aspect of the presidential campaign — about what it will do to the Supreme Court — is one that I imagine will play [a] fairly large role.
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. We're going to take a look at the Supreme Court term that just ended with Adam Liptak, the Supreme Court correspondent at The New York Times. In addition to the landmark decision supporting the Affordable Care Act and marriage equality, the court made significant rulings on housing discrimination, power plant emissions, executive power and the rights of pregnant women. We'll examine some of those decisions. We'll also discuss how the liberal wing of the court has been united while the conservative wing has been rather splintered and how the court appears to have drifted toward the left in the past nine months.
Adam Liptak, welcome back to FRESH AIR. I was really surprised to read in your article this week that this term was the most liberal since the Warren Court in the late 1960s, according to two political science measurements of court voting data. So besides the real obvious examples - marriage equality and the ACA decision, the Obamacare decision - what are other examples of how this was the most liberal court since the Warren Court?
ADAM LIPTAK: In a whole host of discrimination cases - pregnancy discrimination, religious discrimination, the Fair Housing Act, in cases on presidential power, in the cases on the rights of criminal defendants - the four more liberal justices, voting very consistently as a block, managed to pick off time and time again one or more votes from the more conservative justices - and not only Justice Kennedy, although mostly Justice Kennedy. In notable cases, they picked off the chief justice and once, in a case involving the Confederate battle flag on license plates, Justice Thomas. So this was a court on which a very disciplined block of liberal justices did very, very well. It's also probably a consequence of some overreach on the part of conservative litigators in bringing cases to the court that were too ambitious and maybe on the part of conservative justices in voting to agree to hear cases where in the end, they couldn't prevail.
GROSS: Now, when you say that the court's liberal wing managed to pick off one or more votes from the five conservatives in several decisions, pick off makes it seem like they aggressively went after conservative votes and managed to persuade them as opposed to that a conservative independently decided this is my opinion. So is that what you're intending to say when you use the word pick off, that it was persuasion?
LIPTAK: No, that's a perfectly fair point. We don't know the inner workings of the court. It may be that even on the day the court decided to hear, say, the challenge to the Affordable Care Act, both Justices Kennedy and Chief Justice Roberts were ready to vote with the administration to uphold nationwide subsidies. But that didn't seem to be the dynamic at the time. It seemed to be a consequence of the briefing in the case and the opinions that must have circulated that may have caused that case, which looked pretty bad for the administration on the day the court agreed to hear it, to become a 6-3 victory for the administration. But your point is right. My language of picking off votes may diminish the authentic, rigorous, independent analysis that each justice comes to. But it doesn't change the bottom line. It doesn't change the bottom line that political scientists will say that this is a liberal term for the ages. And that's even before we start talking about the transformative same-sex marriage decision, which by itself is a data point that might overwhelm all the others.
GROSS: Let's get to the marriage equality decision. What are the key parts of this decision that may have precedence beyond marriage equality? Are there parts of the decision that will?
LIPTAK: It's a little hard to identify the precise legal holding in the case. Justice Kennedy opted for soaring and vague and uplifting language instead of rigorous legal analysis, so it's hard to think of it as the kind of precedent you can mechanically apply to the next case. But not a few people have said that in its willingness to find in the Constitution a fundamental right to same-sex marriage, it may make the court open to finding other kinds of fundamental rights, say, to assisted suicide. But that is a - you know, a very general reading of what - and necessarily one because it was a very generally written opinion, which is what caused Justice Antonin Scalia to say even if he were so inclined to vote in that direction, which obviously he wouldn't, he would not have signed that decision. He would rather have hid his head in a paper bag than to sign a decision that he said sounded like a fortune cookie, not like a legal decision.
GROSS: And let me quote him a little more. He wrote, "the opinion is couched in a style as pretentious as its content is egotistic. Of course, the opinion's showy profundities are often profoundly incoherent." Is it typical to blast the decision and then mock the justice's writing style?
LIPTAK: You know, that's another trend this term. The level of personal ad hominem animus, just personal insult - particularly from Scalia but not only from Scalia - was really extraordinary this term. And you saw a kind of change in Justice Scalia, who, it must be said, in his earlier years was a towering legal figure and a vivid writer and sometimes a snarky writer but a man who single-handedly transformed areas of American law. And now he seems to have turned a corner and is just spewing a kind of, you know, get-off-my-lawn kind of bile that doesn't obviously advance his jurisprudential cause. He seems very angry. He's - you know, he called a Justice Breyer opinion gobbledygook. He makes up phrases that sound like - I think he's making them up - that sound like, you know, kids insulting each other.
GROSS: Like jiggery-pokery?
LIPTAK: I mean, it's amusing. And for a newspaper writer, it's, you know, obviously great, quotable stuff. But it does seem to illustrate, you know, the very opposite of last term's trend toward unanimity, a really nasty slashing style.
GROSS: What to you stands out as the key sentences in the opinion written by Justice Kennedy on marriage equality?
LIPTAK: You know, I can't quote them verbatim. But he talks about aspirations for dignity and wanting to join an institution that's profound. And he talks in moving but not especially legal terms about the value and dignity of gay families. So, you know, one reading of the case and of the opinion, and I think one many Americans who are celebrating the establishment of a right to same-sex marriage, is you want to embrace it. But Justice Kennedy is also that justice who is sometimes the hardest to pin down exactly what legal principles he's using to arrive at his conclusions.
GROSS: Justice Kennedy wrote, (reading) the nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions. And so they entrusted to future generations a charter protecting the rights of all persons to enjoy liberty as we learn its meaning.
That's a really interesting thing to say, implying I think that the founding fathers didn't accept slavery as being unjust. They didn't accept denying women the right to vote as being unjust. But as we learn the true meaning of liberty and freedom and the pursuit of happiness, it becomes more inclusive. I think that's implicit in the decision, whereas Justice Roberts writes in his dissent, the Constitution itself says nothing about marriage. So what does that have to say about how they're both approaching the subject of marriage equality?
LIPTAK: So I'd say two things, one specific, one general. It's true, obviously, that society had to move past slavery and had to include women in democracy. But those things were not arrived at through judicial decisions. One was arrived at through a war and through a constitutional amendment, the second through a constitutional amendment. And so Chief Justice Roberts' point is that, yes, we do evolve, and we do come to new conclusions; but we don't rely on nine lawyers in robes to get us to those places. Justice Kennedy says it's the job of the court to take account of evolving societal understandings, of important civil rights moments, and confirm a societal consensus in favor of, say, same-sex marriage. So two very distinct views of the Constitution and of the judicial role, Justice Kennedy embracing an evolving understanding of the Constitution to be applied by judges, Chief Justice Roberts saying the Constitution's a static document; the public has other ways to address these matters, and it's not for judges to make these decisions.
GROSS: Were you surprised by the decision?
LIPTAK: No, the decision was all but inevitable. Justice Kennedy had written three earlier landmark gay-rights decisions, and you knew he was going to cement his legacy as the greatest judicial champion of gay rights in American judicial history with this decision. I think the open question was timing. The court moved fairly slowly. You remember, Terry, that in 2013, they faced the same question and declined to decide it. Back in October of last year, it looked like they were going to take some cases. They didn't. They let the country get used to it. They let same-sex marriages spread through a substantial majority of the nation. The nation didn't seem to fall apart when gay and lesbian couples got married. And then, when the nation was ready to move, the court confirmed the societal consensus. What I was a tiny bit surprised by was that the chief justice, who is only 60 and who must care about his own judicial legacy, didn't find a way, if not to join Justice Kennedy's opinion, perhaps to find a way on some narrow ground to vote with it because I think it already seems like in 20 or 30 years from now, it will certainly seem like our grandchildren are going to scratch their heads and wonder why there were four votes on the other side. And I'm not saying that because that's right or wrong. I'm just saying because the polling and the trend lines so clearly indicate that this is something where the train has left the station. So the chief justice, you know, you might even admire him for taking a sort of hit and adhering to a principled view of the Constitution as one that just doesn't deliver this particular thing. He didn't quite say, but he seemed to indicate, that if he was in a state legislature, he might indeed vote for same-sex marriage. He just didn't think that judges have the power to establish it.
GROSS: And Roberts, by all accounts, is very legacy oriented. And in taking a stand against marriage equality in this decision, he knows that's going to be part of his legacy.
LIPTAK: Agreed. And he tried to write the decision in a way that, you know, took no position on whether same-sex marriage is a good idea, took a position only on whether the Constitution guarantees it and whether judges can deliver it.
GROSS: If you're just joining us, my guest is Adam Liptak. He's the Supreme Court correspondent for The New York Times. Let's take a short break, and then we'll talk some more. This is FRESH AIR.
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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Adam Liptak, the Supreme Court correspondent for The New York Times. And we're talking about the term that just wrapped up. Now, we've been talking about the marriage equality decision. And something that you wrote I found so interesting about this, which is that a lot of law firms wouldn't touch the anti-marriage equality side. Why not?
LIPTAK: Among a large number of Americans, and certainly Americans on the coast and certainly Americans who come from, call it elite backgrounds - you know, from the fancy colleges and law schools - and certainly what Justice Scalia in a memorable phrase called lawyers who work in high-rise buildings, this issue is done. There's only one side to it, and the other side is pure bigotry. So that told you something about where at least the legal culture - the mainstream legal culture - was on this question. And, you know, that's a contrast to, say, Brown V Board of Education, where the leading appellate lawyer of his day, John Davis, one of the founders of the prominent New York firm Davis Polk, argued in favor of segregated schools - or at least that the court should not stop them. So that was a change in the culture that was yet another indication that the court was going to come out the way it did.
GROSS: And it sounds like it was a business decision too - because you write that a lot of law firms were afraid if they took the position against marriage equality that they would lose clients, and they would have a difficult time attracting good lawyers to their firm. Those are business decisions.
LIPTAK: So that is absolutely true as a factual matter. The firms would say this is a matter of principle for them, and they didn't take account of business realities. But we do have, you know, one example from just a few years ago, where quite possibly the best Supreme Court advocate of our day, Paul Clement, agreed to represent Congress - shouldn't be a particularly controversial client - in defending the Defense of Marriage Act, which denied federal benefits to married same-sex couples. His firm essentially fired him for agreeing to represent Congress in trying to persuade the court to uphold a duly enacted law signed by President Clinton. So that tells you that this is - this is something where the firms were not inclined to take these cases.
GROSS: So do you think that the marriage equality decision lays the groundwork to opening up gay rights in other areas where it is still in question?
LIPTAK: It's a huge and important and transformative victory. But in some ways, it's symbolic and partial because much of the nation still doesn't have laws against discriminating against gay and lesbian people. So in much of the nation, you can get married in the morning and fired in the afternoon from your job for being gay - and then denied housing because you're gay. So the court decision only does so much and is limited to marriage. And unless legislatures act to impose general laws against sexual orientation discrimination, the work of the gay rights movement is not yet done. It's a funny thing, that you get to marriage first and job discrimination later.
GROSS: Let's move on to the decision on the Affordable Care Act. And what was in question was whether the federal government could subsidize health insurance for people who couldn't afford it. There was a line in the Affordable Care Act that said subsidies would be available only to people buying insurance on, quote, "an exchange established by the state." And what was in question whether - was whether state literally meant, like, the state of Pennsylvania or the state of Virginia, or whether it meant the government, the more broader definition of state. And the Liberals won on this, saying that the federal government is assumed to be what this word meant. Let's start with Chief Justice Roberts' majority opinion. Do you think he sees the ACA as part of his legacy? I mean, he voted for it, and I think he saw that as a legacy kind of decision.
LIPTAK: Well, he's now saved President Obama's, you know, landmark signature legislative legacy twice. But this time, it was different. The first time, it was a kind of grudging, 5-to-4 decision where no other member of the court joined the entirety of his opinion. And he was plainly holding his nose and saying, listen, if this is what you guys want, you can have it; but it doesn't seem like the world's best law to me. Three years later, writing for a strong and united and lopsided six justice majority, he seems to embrace the law. And he seems to think, you know, it has to be read in a way that it delivers all of its promises. And even though the phrase you quoted he acknowledges, Terry, read in isolation probably helps the challengers, he, in a very clear and again seemingly, you know, almost enthusiastic way, reads the various parts of the law to say Congress meant to expand the delivery of health care to many Americans and didn't put this little time bomb in the law to destroy its operations for many of those Americans. So it had a quite different feel to it.
GROSS: You know, it's interesting that the constructionists in the Supreme Court - and correct me if I'm wrong here - basically said when they say state, it means state; you can't rewrite the law. And it just seems to me, like, if you're a constructionist and you're trying to interpret what the founding fathers literally meant hundreds of years ago, you can't ask them. And, you know, if you're a constructionist, you do your best to literally interpret that. But this is a law that was very recently written. You can ask the people who wrote it what they meant. The meaning, in the larger context, seems clear. And I guess I don't really understand why you would take something that literally when a word is clearly ambiguous and, again, the writers are alive. You can ask.
LIPTAK: I guess Justice Scalia would respond that we don't care what the person who wrote it meant. We care what the entire Congress voted on. And the entire Congress didn't write it. The entire Congress took a bit of compromised language that a lot of people had a hand in and decided to vote on it, up or down. And the fact that two years later, somebody said, well, when I wrote that, I meant blah blah blah, doesn't tell you the answer. The text itself tells you the answer. And I don't think that's a crazy objection. But in this case, almost all of the evidence of what lawyers call legislative history, the drafting history, and very good reporting, including by my colleague Robert Pear, does seem to suggest that nobody thought it meant what the challengers said it meant.
GROSS: Do you think that this is the end of legal challenges against the Affordable Care Act? Or do you think that there will continue to be lawsuits that nip at various aspects of it?
LIPTAK: There's a significant pending lawsuit still in the District Court about whether Congress had authorized payments in another part of the law. And there is deep-seated angry opposition to this law and in particular, from groups who have very good lawyers who continue to read every part of this sprawling and, as the Chief Justice said, in-artfully drafted law. So I don't expect it to be over in the sense of other challenges. I would be very, very surprised if another case reaches the Supreme Court that has the potential really to undo the basic parts of the law. I think the president is probably right in saying we're done. This is woven into the fabric of American society. This law probably joins other great social legislation, like Social Security and Medicare and Medicaid, as a fact of life.
GROSS: My guest is Adam Liptak, the Supreme Court correspondent for The New York Times. After a break, we'll talk more about the term that just ended and about how Chief Justice Roberts has been a disappointment to many conservatives. And our film critic David Edelstein will review two sequels, "Terminator Genisys" and "Magic Mike XXL." I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I'm Terry Gross back with Adam Liptak, the Supreme Court correspondent for The New York Times. We're talking about the term that ended this week.
In one of the decisions very recently handed down, there was a big fight. And this was over the use of the lethal injection drug that three death row inmates said would put them at risk of severe pain if and when they were executed. I don't know how to pronounce this drug. Is it...
LIPTAK: I think it's midazolam.
GROSS: Midazolam, thank you. The conservatives won this and said you can use this drug for execution. What was the biggest point of contention in the dissenting opinions?
LIPTAK: Well, the biggest point of contention, and a big move really, is that the two most senior liberal justices, Justice Stephen Breyer joined by Justice Ruth Bader Ginsburg, basically announced that they think the death penalty as such is unconstitutional, much bigger than whether you can use this drug or that. They think the death penalty is applied arbitrarily, has resulted in innocent people being executed in countless death row exonerations, infected by race, worked by politics. So that was a real sweeping statement but only by two justices. That gives rise to a heated response from separate concurrences, from Justices Scalia and Thomas. So you have that kind of general war going on in the middle of the decision even as the general question in the case is whether you can use this particular execution drug. And there, Justice Alito, writing for five justices, says two things. One of them, you know, I don't have the pharmacological expertise to judge. But he thinks the inmates had not made the case that this puts them at risk of a torturous death. He also says though - and this is maybe more surprising - that it's up to the inmates to come up with a different method of execution if they want to challenge the one they have a problem with. So they have to volunteer, you can kill us some other way, in order to challenge the way the state intends to kill them. That gave rise to another heated dissent from Justice Sotomayor, who says - what? - you mean if the state intends to draw and quarter you, you have to come up with a different method that the Constitution doesn't protect you from that kind of death. So that was an example, and perhaps the emblematic example, of the term of just how divided these justices can be. It's also the case that was argued in the last day of the term and the level of animosity on that bench was just extraordinary. And it was entirely at odds with what the chief justice wants to achieve. I might make a final point about the case because I think in a way, it's the opposite of what we saw in most of the term. In most of the term, I'm guessing the conservative justices tried to move the law. It only takes four votes of nine to put a case on the agenda, to accept review of a case. They tried to move the law in a conservative direction, and they often failed. This was probably a case where the four liberal justices said maybe we can get Justice Kennedy on this. And they put it on the agenda, and they failed badly.
GROSS: What happened in the court this term in terms of reproductive issues?
LIPTAK: We didn't have a true abortion case, and we didn't have a follow on to the Hobby Lobby case about whether religiously controlled corporations have to provide insurance coverage for contraception. So reproductive rights was - is - was not directly involved in the term. But the court did twice step in and block a lower court from closing about half of the abortion clinics in Texas. And that definitely - it sends a strong signal that they're likely to take a major abortion case next year.
GROSS: How do you interpret the fact that the court blocked closing the Texas abortion clinics while the justices consider whether to hear an appeal from a decision that would have closed them? Is that a sign that the justices are leaning pro-reproductive rights? Or is that just a sign of a kind of technical staying until they look at the decision?
LIPTAK: It's probably only a sign that it's generally good practice to maintain the status quo while you decide something so that when you decided it, the thing is still capable of being decided. And the clinics say if they're forced to close, they may not be able to reopen again. So I wouldn't read too much into it. And I'd also say that the most recent move was 5-to-4, with Roberts, Scalia, Thomas and Alito dissenting from even maintaining the status quo. So I think abortion rights groups have reason to be nervous.
GROSS: So the decision that the court will hear next term about abortion rights is about whether an individual state has the right to impose strict requirements on abortion providers that are the same as the requirements for, say, a surgery center?
LIPTAK: Yes. Now, to clarify, Terry, they haven't yet decided to hear the case. They've decided to maintain the status quo while they decide to hear the case. But having done that, the chances of them taking it are quite strong. And then, you're right. These are regulations that look neutral on their face, that state officials say are meant to protect women's health but that reproductive rights groups say are a ruse, are a way to close clinics and make it harder to get abortions.
GROSS: What do you consider the most consequential decision in the court this term regarding religion?
LIPTAK: There were not huge cases, but I can think of three. One said that Arkansas prisons can't stop Muslim inmates from having beards. One said that Abercrombie & Fitch could be sued for refusing to hire a woman wearing a Muslim headscarf because it went against their preppy look. And one said that a town ordinance in Arizona regulating the sizes of signs couldn't discriminate against church signs as opposed to political signs. The court is very protective of religious liberty in general. And in these cases, they were often united or close to united.
GROSS: Were there any decisions that really surprised you this term?
LIPTAK: I might have thought that the Fair Housing Act case, which civil rights groups and the administration had tried very hard to keep out of the court and they were very afraid of how it was going to come out, might come out in a conservative direction. Yet, it comes out liberal. And there were cases involving redistricting and voting rights which similarly had, you know, civil rights groups nervous that again came out 5-4 in a liberal direction. So the surprises, one by one by one by one, are that attempts to move the law to the right were blocked by five or six justices over and over again.
GROSS: If you're just joining us, my guest is Adam Liptak. He's the Supreme Court correspondent for The New York Times. Let's take a short break, then we'll talk some more. This is FRESH AIR.
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GROSS: This is FRESH AIR and if you're just joining us, my guest is Adam Liptak, the Supreme Court correspondent for The New York Times. And we're talking about the Court's term that just ended. What cases are coming up next term that you think will be important?
LIPTAK: We've got three big cases, all three of them brought by sort of right-wing movement organizations, all three of them probably accepted for review by the votes of four conservative justices, and so we may see a very different term next term than we saw this term. One of them is a renewed attack on affirmative action in higher education. A second one is about the meaning of one person one vote, whether we count every single person in a voting district or only eligible voters. It's a little bit complicated, but the upshot of that case is it could easily move power away from blue urban centers to red rural districts. And then just this week, the court agreed to hear a case that could really devastate public sector unions by saying that people who don't choose to join their unions - government workers who don't choice to join their unions, need not pay fees for collective bargaining. And that could really cause public-sector unions to go into a death spiral. So between those three things, affirmative action, voting rights and public unions, the court is set to look at some very significant issues where if the conservatives get five votes, you know, you could really see America transformed. Or you can see a repeat of this term where having put them on the agenda, the conservatives couldn't quite manage to get a majority.
GROSS: Justice Ginsburg has kind of taken the lead in the liberal block of the Supreme Court. And I think there's such strong and ambivalent feelings about her among liberals now. I think she's, like, beloved for her decisions and her opinions. At the same time, I think a lot of liberals really want her to retire while there are still a Democrat in the White House not knowing what the future holds. So I'm wondering if she has made any move toward retirement.
LIPTAK: I don't think she's going in this administration. I think she's made the decision that she's going to hang on for the next administration. She has said - all but said that she thinks it's going to be a Democratic president. She said, you know, Democrats don't do that well in the midterms, but they do well in the general. So she seems to be playing out a scenario in which she hangs on in hopes that presumably Hillary Clinton appoints her successor.
GROSS: What do you know about how her health has been?
LIPTAK: It seems to be just fine. And she's vigorous, omnipresent, interviewed every day everywhere and sharp as a tack. So I don't - she's had some health scares. She seems to have worked through them. She's in good shape physically and mentally. And, you know, the nightmare scenario for liberals of her health really taking a dive doesn't seem to be on the horizon. And I think her plan to hold in to the next administration will probably work. Her prediction about what the next administration will look like, you know, only time will tell.
GROSS: Justice Scalia is nearing 80, I think.
LIPTAK: The entire court - you know, not the entire court, but much of the court is quite old. So the next president is very likely to have one, two, three appointments. And so that aspect of the presidential campaign about what it will do to the Supreme Court is one that I imagine will play a fairly large role.
GROSS: Are there any other cases that you found especially interesting because of how the justices aligned in the final opinions?
LIPTAK: There's one, Terry. You know, often the 5-4s were the liberals plus Kennedy, but there was a 5-4 which was the liberals plus the chief justice - only the second time that's ever happened. The first time was in the 2012 health care case. And the question in the case was whether Florida was entitled to forbid candidates for judicial office from personally asking for campaign contributions. And the chief justice wrote the opinion, and he said no, that's OK, the First Amendment allows that - that the idea of judges running around personally asking for money is sort of so offensive to our sensibilities that he's going to let that go.
And that was a little bit surprising because what he did was, you know, uphold a campaign-finance regulation, which is what that was, and also say judges are different from other people which is at odds with an earlier decision that he wrote a very vigorous dissent in. So it showed Chief Justice Roberts being very attentive to the judicial role. So attentive indeed that in dissent, Justice Scalia said that he had been influenced by the brotherhood of the robe. And so that alignment struck me as quite interesting.
GROSS: You've written about how the justices seem to be engaging and more sniping at each other in their opinions. And do you have any insight into whether that sniping is carrying over into their lives into their interactions off the bench?
LIPTAK: When they speak in public, they always say - and until recently I've always believed them - that they are very collegial, that none of the sniping on the bench or the nasty comments and the opinions rubs off on them. I find that a little hard to believe this year that Justice Kennedy feels very good about the things Justice Scalia said about him, that Justices Alito and Sotomayor who really went at each other in the lethal injection argument aren't welcoming a chance to be away from each other this summer.
GROSS: You know, and that makes me wonder with Justice Kennedy who has been an advocate for gay rights. When he hears some of the dissenting opinions on the marriage equality case, where some of the justices seem to think that, you know, it's just so, like, socially wrong to allow gay marriage, it makes me wonder how that affects how he feels about the conservative justices and if it affects his own willingness to side with them. I don't mean to challenge his principled views on things and say oh, he has to be chummy with somebody to side with them, but still, when somebody disagrees with you on a fundamental thing, it makes you see - it sometimes makes you see their larger world view a little differently.
LIPTAK: I think there's probably something to that. It's hard to tell with Justice Kennedy. But there's pretty good evidence that when a similar dynamic formed between Justice Scalia and someone who was likely when she came on the court to be his ally, Justice Sandra Day O'Connor, that he did seem to drive her away and maybe drove her toward the middle of the court.
GROSS: So a lot of conservatives, I think, felt betrayed when John Roberts, the chief justice, sided with the liberal wing of the court in the Affordable Care Act decision, enabling federal subsidies to move forward. And Bobby Jindal, who is a Republican candidate now, said this means we should get rid of the Supreme Court. Ted Cruz, who is running in the Republican presidential primary, said that the chief justice violated his oath. So what do you make of conservatives not only criticizing the court but being so extreme in their statement and, you know, some even actually calling for like the end of the court - like this is the end of the line?
LIPTAK: Well, it operates on two levels. One is John Roberts was thought to be a very reliable conservative vote when he was nominated by President George W. Bush. And it's - he has in the ACA cases at least and maybe in other cases, been a huge disappointment to movement conservatives. So that reflects a kind of sense of personal betrayal. The other point about, and this comes out more in the marriage case, that who decided to give the Supreme Court the last word? Is - you know, if you're a law professor, that's a perfectly legitimate debate to have.
It's not clear that the Constitution established the power of judicial review for the Supreme Court to strike down laws and so on. But that train has left the station. We are now a nation that is built on the idea that, at least as regards the Constitution, the Supreme Court does have the last word. And we accept, you know, all kinds of decisions that a lot of people might be unhappy with. Think of Bush v. Gore. The reaction to that was not riots in the street but, well, the Supreme Court has spoken. I may not like it, but they provided us the answer and in our system, they get to have the last word. So it's a little bit surprising to hear actual on-the-ground politicians making suggestions that they would reopen that fundamental debate.
GROSS: Well, Adam Liptak it's great to talk with you again. I'm glad we got to do this term-end wrap up. Thank you so much for your time.
LIPTAK: Oh, it's always a treat to be here, Terry. Thank you.
GROSS: Adam Liptak is the Supreme Court correspondent for The New York Times. After we take a short break, our film critic David Edelstein will review two new sequels, "Terminator Genisys" and "Magic Mike XXL" This is FRESH AIR. Transcript provided by NPR, Copyright NPR.