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'Fractures' In The Supreme Court Revealed In This Year's Decisions


What a finish to a Supreme Court term. Last week, two very big decisions were released. Same-sex marriage is legal nationwide, and the Affordable Care Act, aka Obamacare, stands - federal insurance exchanges and all. Well, joining us to talk about the term just ended, and especially those two rulings, are Tom Goldstein, the publisher of SCOTUSblog, and our own legal affairs correspondent, Nina Totenberg. Welcome to both of you.


NINA TOTENBERG, BYLINE: Happy to be here.

SIEGEL: If each of you had to sum up just in a nutshell what this last term did or what was significant about it, what would you say, Nina?

TOTENBERG: Well, this was a term that remarkably had no race issues, which is where the court has been most conservative. And instead, it had same-sex marriage. It preserved Obamacare, and in the end, it looked very much like a liberal court.

SIEGEL: Looked like, we'll return to - substance as opposed to appearance in a moment. Tom Goldstein, in a nutshell, this past term.

GOLDSTEIN: I saw the fractures in the court. I mean, you had conservatives joining the liberals in a variety of cases that gave rise to this, perhaps, optical illusion. And there were just a huge proportion of very close cases - 5-4, 6-3 - 40 percent of all the cases at the Supreme Court were that close.

SIEGEL: It has been observed by some people - some of them very critically - that the Supreme Court is now a liberal court. It upheld Obamacare. It made same-sex marriage legal. Nina, you say it may look that way, but...

TOTENBERG: Last year, they were saying - the - you know, the opiners were saying that it was a court with more unanimity than ever. You just heard Tom say it (laughter) wasn't this year. It's very much dependent on among other things - the issues that come before the court. And this year, they were issues on which there was a liberal majority. Next year, we've got affirmative action in higher education, abortion probably again. And we've got a case that could basically gut public employee unions. And the chances of the liberals coming out with real clear-cut victories in any or all of those are minimal.

SIEGEL: Let's talk about the Obergefell case first, the one that resulted in Justice Anthony Kennedy joining the Court's four liberals to declare that same-sex marriage is a right protected by the 14th amendment. What was your sense of what led the court to a position that 15 years ago would've been considered absolutely impossible?

TOTENBERG: Well, I can't say that I was surprised because the Court has been led by Justice Kennedy, has been driving towards this moment with considerable consistency. And we have to remember that in 1986 the Supreme Court upheld the law that made it a crime to commit consenting homosexual conduct in the privacy of one's home. And over the course of that 20 years that followed, Anthony Kennedy wrote every opinion and ultimately reversing that decision, giving more rights to gay and lesbian people and striking down the federal law that barred recognition of same-sex marriages performed in states where they were legal. And then we come to this moment and I thought it was presumptively probable that he was going to say that there's a right to same-sex marriage.

SIEGEL: And, Tom, you would agree and you would assume that it would have been Justice Kennedy who obviously was going to be the fifth vote in this.

GOLDSTEIN: For sure. What I learned from the case is that as much as we think the justices are just up there on a monument deciding law, the court is very aware - or some members of it - of what's going on in society. And so it mattered enormously, I think, the public perception shift on this question. But I also wouldn't extrapolate from it. The discrimination against homosexuals is a very special issue in the Court because Justice Kennedy has embraced it.

SIEGEL: On Obamacare, it was Chief Justice Roberts who joined the liberals to uphold the president's signature piece of legislation. Tom, what do you make of the fact that he has now saved the ACA twice?

GOLDSTEIN: (Laughter) I think this really typifies what the chief justice thinks of the role of the Supreme Court. He did not want the justices resolving this question which had been debated in America for decades. He was much happier saying essentially, look, if Congress wrote a bad law it's going to be Congress's job to fix it. I perceive that the general intent here was to improve the state of health care and make these subsidies available, and I'll go with that.

SIEGEL: Nina, you see a consistency there to Justice Roberts...

TOTENBERG: And I see consistency actually on Roberts in that case and the same-sex marriage case from which he dissented. And it was his first oral dissent from the bench in his 10-year time on the Supreme Court bench.

SIEGEL: Which is a sign of saying I really disagree with this opinion.

TOTENBERG: I really disagree with this. And what he was saying in both cases is we live in a democratic country. The people get to pick who represents them. The representatives write legislation. Here they wrote legislation - this is Nina talking - that I, John Roberts, would personally hate, but it's not my job to overturn it. And even though state laws banning same-sex marriage may not be what most people want nowadays, it's up to the state legislatures to fix that.

SIEGEL: It is. Now, I'm surprised. You brought this to my attention that this is now 10 years since John Roberts has been chief justice. It doesn't feel that long to me somehow (laughter) but I guess we're older than I think. Can one now speak of a Roberts court that has a particular flavor to it?

TOTENBERG: His model for what a chief justice should be was Charles Evans Hughes, who was a great chief justice during the New Deal era and basically saved the Court in many ways from being dismantled or added to by Franklin Delano Roosevelt. He's an institutionalist like Hughes, so that's what I take from it. He writes beautifully. He is a - pretty much a purist on the First Amendment, he and Kennedy. But I don't think he's a beloved chief justice either.


GOLDSTEIN: Well, what we hear from inside the building is that he does run the Supreme Court and the federal judiciary very well and that's his principal job. But, of course, he only has one vote and he does not have a Roberts court in that sense. He finds himself in big case after big case often in dissent. Justice Kennedy is the justice who is really controlling the swings in the court as we know 'cause he's in the ideological center. So there's - he's doing what he can, but frequently it's not much.

SIEGEL: Nina, I have a question. In his decision in the Obergefell case, the same-sex marriage case, Justice Kennedy had this concluding paragraph - peroration - in forming a marital union, two people become something greater than once they were. Justice Scalia said that sort of thing belonged inside a fortune cookie. But do the justices actually write that? I mean, are there - when you say Justice Roberts writes well, are there very gifted clerks working for him right now or...

TOTENBERG: Clerks usually write the first draft, but the first draft is sort of bloodless. And so when you read something like that, especially with Kennedy where he has been writing some version of this for at least 10 years, one suspects that that is his language. His critics says its flowery, stupid stuff that should be in a fortune cookie, but it is rather nice to read on occasion.

SIEGEL: Tom, any wisdom about authorship...


SIEGEL: ...And auteur theories on the Supreme Court?

GOLDSTEIN: There's no shot that anybody other than Anthony Kennedy wrote every single word of - that you just quoted in 90 percent of what's in the opinion. There's some legalistic stuff in there, more about legal doctrine that you suspect might have come from someone like Justice Kagan. But when you see the verbiage from Kagan, Roberts, Kennedy, it's very distinctly their style. I don't think you see the fingerprints of the law clerks in any serious way on the words.

TOTENBERG: You know, for those of us who are tea leaf readers, Kremlin watchers so to speak, you could give us an opinion and not tell us who wrote it and I think we would be able to know who wrote it. It's like listening to Maria Callas. You recognize the voice. There's something very distinctive about it.

SIEGEL: I think with Maria Callas you have paid an enormous compliment to the nine justices of the Supreme Court.

TOTENBERG: (Laughter).

SIEGEL: And, Nina Totenberg, our legal affairs correspondent, and Tom Goldstein of SCOTUSblog, thanks to both of you.

GOLDSTEIN: Thanks so much.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

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