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.