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Judging The Health Care Law
Assessing The Supreme Court's Recent Term
Originally published on Mon July 2, 2012 11:43 am
An eventful term of the U.S. Supreme Court ended Thursday with the landmark 5-4 ruling affirming the legality of the Affordable Care Act. Much attention has focused on the pivotal role of Chief Justice John Roberts in the case — and whether some elements of his opinion in the health care ruling will have a conservative influence on future cases.
But the health care case wasn't the only important decision rendered by the court during its recent term. On Monday's Fresh Air, Adam Liptak, Supreme Court reporter for The New York Times, provides a roundup of the past year's most important Supreme Court decisions — including ones addressing health care reform, immigration law, campaign finance rules, the access of Guantanamo detainees to the courts, and the rights of criminal defendants while plea bargaining.
Liptak tells Dave Davies that the court voted unanimously in 44 percent of its cases this term, which is not unusual. What was unusual is that the court voted unanimously in major decisions — and not just trivial matters.
"This year, they were unanimous in cases that really mattered," he says. "And moreover, in many of these cases, they were unanimous in rejecting the position of the federal government and the Obama administration. And [that's] a sign that maybe the usual political explanations [for the court] don't quite work."
Liptak points to a case about whether employment discrimination laws applied to churches and religious schools who wanted to choose their religious leaders without interference from the government.
"There the court unanimously recognized a ministerial exception which says employment discrimination laws don't apply to such institutions, at least for ministers, rabbis and also for teachers of religion," says Liptak. "[The case] indicates, I think, that the chief justice may have done some work early in the term getting people united ... behind some broad ideas."
Much has been written about Chief Justice Roberts' decision to side with the four more liberal members of the Court on the health care decision last week.
"He is getting it from all sides, but one way to think about it was that it was a brilliant compromise," says Liptak. "He gave something to everybody."
Roberts upheld the core of the health care law on the grounds that Congress was authorized to do so under its power to levy taxes. At the same time, he and the four dissenting justices rejected the argument that the individual mandate was justified by Congress' ability to regulate interstate commerce. By rejecting that argument, the court's four more conservative members and Roberts breathed new life into a theory of the Commerce Clause, which could have the potential to affect cases down the road.
"On the one hand, the bottom line is that President Obama's signature health care legislation survives, and that's a huge victory for him," says Liptak. "On the other hand, it may be said that the chief justice put together these overlapping coalitions that gave a little something to everybody."
On Justice Roberts' legacy
"I do think John Roberts takes himself very seriously, and he should, as the custodian of the prestige and legitimacy of the branch of government that he heads. How much that entered his calculations in [the health care case], only he knows. But it's a perfectly appropriate consideration to make sure your branch, which is meant to be disinterested and apolitical and judicial, should not be perceived as yet a third political branch of government. And in the wake of ideological 5-4 decisions like Bush v. Gore and Citizens United, the Court has left itself open to that interpretation. And had it struck down the health care law 5-4 along ideological lines, there would have been some substantial attack on the credibility of the court."
On the Citizens United case
"Liberals love to hate Citizens United and love to blame it for everything. And it may be blameworthy, depending on your perspective, for allowing corporations and unions to spend unlimited sums on independent expenditures supporting individual candidates. But Citizens United can't be blamed for everything, and in fact, a part of Citizens United in an 8-1 ruling said that it endorsed the disclosure requirements put forward, that it's pro-disclosure, that disclosure plays an important role in the First Amendment analysis of political speech. And I think if you think about it for a second, that makes perfect sense. If you take the First Amendment view that it's a good idea to let everybody say what they have to say, and people can make up their own minds about who's right and who's wrong, it sure helps to know who's doing the talking. I might think differently about a proposition if I know someone is saying it who has a stake — financial or otherwise — in saying it."
DAVE DAVIES, HOST:
This is FRESH AIR. I'm Dave Davies, in for Terry Gross, who returns tomorrow.
An eventful term of the U.S. Supreme Court ended Thursday with the landmark five-four ruling affirming the legality of the Affordable Care Act. Many were surprised that Chief Justice John Roberts joined the court's four liberal justices in upholding the law.
But some analysts believe elements of the ruling will exert a conservative influence on future cases. The court was also busy with a host of other issues, including immigration law, campaign finance rules, the access of Guantanamo detainees to the courts and the rights of criminal defendants in plea-bargaining.
Today, we'll talk about the justices and their decisions with Adam Liptak, who covers the Supreme Court for the New York Times. Liptak has a long association with the paper. He was a copyboy after college and returned as an attorney on the Times legal staff after he attended Yale Law School. He later became an investigative reporter, focusing on legal issues. He took over the Supreme Court beat in 2008.
Well, Adam Liptak, welcome back to FRESH AIR. Boy, what an eventful Supreme Court season. Let's start with the health care case, which everyone's been talking about for the last four days. And so much attention has focused on Chief Justice Roberts. Give us your take on what this decision tells us about his approach.
ADAM LIPTAK: He is getting - he's getting it from all sides, but one way to think about it was that it was a brilliant compromise. He gave something to everybody. He upheld the core of the health care law on a ground that no one had really anticipated, on the ground that Congress was authorized to do this under its power to levy taxes.
But at the same time, he and four dissenting justices agreeing with him breathed new life into a theory of the Commerce Clause, which had not before been taken very seriously. So he provides to the right a theory that may be useful in other cases. And similarly, he provides the right and delivers seven votes for the idea that the federal government can't impose conditions in many settings on the money they provide to states, which is also quite a large and conservative revision of the law.
So, on the one hand, the bottom line is that President Obama's signature health care legislation survives, and that's a huge victory for him. On the other hand, it may be said that the chief justice put together these overlapping coalitions that gave a little something to everybody.
DAVIES: Yeah. And you've read a lot of commentary - as many of us who have focused on this have - that, you know, that Obama won the battle, but that conservatives won the war here, that because of his very explicit statements about what the Commerce Clause can't do and because of what Congress can and can't do with Medicaid funding, that this will influence lower court decisions for years and years and make it much harder for the government to, you know, enact social welfare programs.
LIPTAK: Right. So my own analysis is that, probably, that's half-right. So the main argument from the 26 states and other plaintiffs challenging the law was that Congress has exceeded one of the list of powers granted to Congress in the Constitution. So Congress can't do anything it likes. It can only do those things that are in this list of enumerated powers.
One of them is the power to regulate interstate commerce. And the challengers argued that that allows you to regulate existing commerce. It doesn't allow you to force people into commerce. Sometimes, they said, it allows you to regulate activity, but not inactivity.
That theory was rejected by five justices of the court, and that, on its face, would seem to be a major revision of how we understand the constitutional structure, because the earlier cases in this area from the New Deal era had endorsed quite broad congressional power under the Commerce Clause.
The question, though, of whether this has teeth, whether going forward it's going to matter is more complicated. It does seem that in characterizing the health care mandate, which required Americans - most Americans to obtain insurance or pay a penalty, as novel, as something new, as something Congress has never done before.
By implication, that would suggest that existing laws are OK, won't be susceptible to this kind of attack. And you would then think going forward that any sensible Congress would avoid this particular form of mandate - because it would be constitutionally perilous - and go in some other direction. And we have a roadmap of what other direction you might go in, which is to work through the tax power.
DAVIES: So if the court says you can regulate commerce, but you can't compel someone to do something, you can't regulate inactivity, that means existing stuff is probably OK, just don't try and do that kind of a program?
LIPTAK: That's how I see it. Yeah.
DAVIES: You know, there was a piece in yesterday's Times by the Stanford professor Pamela Karlan, which said there's important stuff here on Congress' spending power, that essentially, that the holdings on what Congress can and can't do with Medicaid funding will really - in effect, could radically limit Congress' ability to pursue these kinds of programs. What do you think?
LIPTAK: I think that was a characteristically astute piece by Pam Karlan, who's really a first-rate legal scholar. And I think that's where the heart of the issue is, the heart of the win, you know, the sort of Trojan horse win for the right might be.
What the court said was that if states are receiving enormous amounts of money for the current Medicaid plan and are told that in order to receive additional money and take on additional obligations, they have to either agree to all these new conditions or lose money from dollar one for the old programs, that that's unconstitutionally coercive. And that's a very complicated way of saying that Congress can't change the rules in the middle of the game, can't add on conditions.
And in this case, the numbers were very large. So this is a very large part of most states' budgets, this joint federal-state program called Medicaid, which delivers health care to poor and disabled people. And the health care law expands it dramatically.
The court said that states don't have to participate in the add-on part of it, and if they decide not to, they can still participate in the old part of it. So that's important in itself, but the theory that the federal government can't add certain conditions to certain programs could have all kinds of effects on all kinds of programs, and at a minimum, will give rise to lots and lots of litigation.
What Professor Karlan said in her piece by way of example is what about a civil rights statute which currently prohibits discrimination against - on the basis of race, religion, ethnicity or gender? What if Congress wants to add the condition that you can't discriminate on the basis of sexual orientation? Is Congress allowed to make that change? And that really raises some very significant questions.
DAVIES: Right. In that case, the possibility is that Congress simply couldn't use the lever of its continued funding of a program to insist that that additional kind of discrimination be avoided.
LIPTAK: That's right. So, so long as we have Congress providing money to the states subject to some conditions, this decision really raises the question of how much and in what circumstances you can ever change those conditions.
DAVIES: Now, what about the argument that Roberts was concerned about the image of the court, about, you know, making sure that it was not perceived as politically partisan? Do you ascribe much to that?
LIPTAK: I do think that John Roberts takes himself very seriously, and he should, as the custodian of the prestige and legitimacy of the branch of government that he hits. How much that entered his calculations in this particular case, only he knows, but it's a perfectly appropriate consideration to make sure that your branch - which is meant to be disinterested and apolitical and judicial - should not be perceived as yet a third political branch of government.
And in the wake of ideologically divided five-four decisions like Bush v. Gore and Citizens United, the court has left itself open to that criticism. And had it struck down the health care law along five-four ideological lines, there would have been some substantial attack on the credibility of the court.
DAVIES: You know, there's been some speculation that Justice Roberts - Chief Justice Roberts may have changed his vote over the course of the deliberations. Do you think that's possible? Does it matter?
LIPTAK: It is possible, and there's not a little evidence on the face of the various opinions that came out on Thursday to suggest that might be so. Does it matter? It's certainly interesting. It's the sort of thing historians might care about. You want to know everything you can about the blow-by-blow, but there's nothing wrong with changing your mind.
It happens not infrequently that justices, in the course of thinking and exchanging drafts, might decide that their tentative view was not the right view. And, in fact, you wouldn't want a court, I don't think, in which the judging process was not deliberate and fluid and interactive among the members of the court.
DAVIES: Maybe this takes us too far into the weeds of it, but how can you tell from other opinions that he may have changed his mind?
LIPTAK: So there's, first of all, a quite unusual - in form - dissenting opinion by the four other more conservative justices, who each of them put their name to it. So it's a joint opinion from Justices Thomas, Scalia, Alito and Kennedy. That's unusual by itself.
It doesn't join, it doesn't even concur in the judgment of the Roberts opinion, even on the points that it's in general agreement with Roberts own. That's an unusual move. That joint opinion refers to Justice Ginsberg's partial concurrence, partial dissent, as the dissent, which might make you think that the Ginsberg opinion was initially a pure dissent.
The Ginsberg opinion on the Commerce Clause grounds is very bitter and nasty and slashing, and not the sort of tone you might take from somebody who needs the vote of the chief justice and, in fact, in the end prevails. So those are a handful of hints. But it's consistent with the idea that there was some moving around in the deliberation and drafting process.
DAVIES: Interesting forensics there.
DAVIES: We're speaking with Adam Liptak. He covers the Supreme Court for the New York Times. We'll talk more after a short break. This is FRESH AIR.
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DAVIES: If you're just joining us, we're speaking with Adam Liptak. He covers the Supreme Court for the New York Times, and of course we've just finished a very eventful term of the court.
Let's talk a little bit more broadly about the court term that just finished.
You write that the court acted with unanimity on important cases in this term far more often than many realize. Do you want to maybe give us an example and tell us the significance of that?
LIPTAK: Sure. The justices often respond to the criticism that they're always divided, and it's always five-four and it's always along ideological lines, to say, look. We're unanimous a lot of the time. We're unanimous maybe 40 percent of the time. And this term, they were unanimous 44 percent of the time.
But when you hear that kind of response in earlier years and you look at the cases they were referring to, they tend to be trivial, statutory construction cases. And it's very nice that they're unanimous, but who cares? This year, they were unanimous in cases that really mattered.
There was - and moreover, in many of these cases, they were unanimous in rejecting the position of the federal government, of the Obama administration - itself sort of interesting, and itself a sign that maybe the usual political explanations don't quite work.
The best example is probably a case about religious liberty, about whether employment discrimination laws apply to churches and religious schools who want to choose their leaders without interference from the government. And there, the court unanimously - nine-zero, and for the first time - recognized a ministerial exception, which says employment discrimination laws don't apply to such institutions, at least for ministers, rabbis and so on, and also for people who are charged with leading the faithful, including teachers of religion.
DAVIES: So what do you make of this unanimity in all these cases, rejecting the Obama point of view? Does this say something about the relations among the court, or maybe about, you know, their own legal and ideological bent?
LIPTAK: Well, in the religion case, they actually thought the administration had taken quite an extreme position in saying that the religious liberty clauses of the First Amendment had nothing to tell us about this particular problem and got a fairly rough response from the court.
You also saw, in that case, an unusual alliance between Justice Elena Kagan, who's a recent and liberal Obama appointee, and Justice Samuel Alito, who's an appointee of the second President Bush, and the two of them concurring together. So you see those odd alliances popping up across the docket.
It also indicates, I think, in the words of former Solicitor General Gregory Garre, that the chief justice may have done some valuable work in - at least early in the term - getting people united behind some broad ideas. And this applies also in cases about property rights, in cases about global positioning devices in a patent case.
You had a run of nine-nothing cases in major cases.
DAVIES: Well, let's talk about some of the other cases that the ruled or declined to rule on. One of them involved campaign finance, the - Montana had a state law which barred corporations from spending to influence its elections. And, of course, that appeared to differ from the Citizens United holding of the court. Give us a sense of what was at stake, here. Was there any reason to believe that the court might reconsider Citizens United?
LIPTAK: Lots and lots of people hoped so. They were proved quite wrong. They had hoped that at least the court would ask for full briefing and oral arguments in the case. And in a case where four justices disagree with the initial holding, that would seem to be the usual course of events.
Instead - and this cuts against what we've been talking about, about unusual alliances and unusual opinions. Instead, you have the five justices who were in the majority in Citizens United in 2010 making very quick work of this case, summarily reversing, in a one-page decision, the Montana Supreme Court and suggesting that it had simply gone rogue, that it had impudently and lawlessly disregarded the clear command of Citizens United - which is that both federal and state laws which seek to limit independent expenditures from corporations in candidate elections - are protected by the First Amendment, and that those kinds of laws cannot stand.
DAVIES: Now, you've written that an important part of this case, the Montana campaign finance case, involves how the court decided to reverse the state supreme court. Why was that significant?
LIPTAK: The court this year in general has done a lot of its work in an under-examined way. The usual way you think about the Supreme Court deciding a case is to get a stack of briefs, supporting briefs, friend of the court briefs, to have an hour of oral argument, to have a month or two or three or four of deliberation and drafts being exchanged, and in that methodical way, rendering a decision after a lot of consideration.
Ten times this year, the court did something different. It, on hearing that somebody wanted to have their case heard, before having briefs and without arguments, with on the briefs on the question of should the court hear the case, not what should the result be, the court summarily reversed in an unsigned opinion.
So you - and then they tend to be brief. It's hard - you can't tell who's writing. And that kind of unsigned opinion - lawyers call them per curiam opinions, which means for the court - would ordinarily suggest that this is something so routine that no serious person could object, and therefore we're just going to get rid of this in, you know, a sort of backhanded fashion.
That's hard to reconcile with cases - and it happened three times - where there are significant dissents from the per curiam opinion. There were two six-threes and in this Montana case, there was a five-four. And so that raises a question about whether the court isn't acting a little too rashly and without adequate deliberation in using this device of the unsigned summary reversal.
DAVIES: And you're seeing more in this term than we have in the past.
LIPTAK: That's right.
DAVIES: Now, the other interesting thing about Citizens United - which, of course, has been so controversial, and that and other rulings have led to the influence of superPACs in the presidential race - you have written that another aspect of the Citizens United decision has actually tilted lower-court decisions in a direction that reformers actually like, towards more disclosure.
LIPTAK: So, liberals love to hate Citizens United and love to blame it for everything, and it may be blameworthy - depending on your perspective - for allowing corporations and unions to spend unlimited sums on independent expenditures supporting or opposing individual candidates. That's a big move.
But Citizens United can't be blamed for everything. And, in fact, a part of Citizens United, by an eight-one ruling, said that it endorsed the disclosure requirements before it, that it's pro-disclosure, that disclosure plays an important role in the First Amendment analysis of political speech. And I think if you think about it for a second, that makes perfect sense.
If you take the First Amendment view that it's a good idea to let everybody say what they have to say and people can make up their own minds about who's right and who's wrong, it sure helps in that analysis to know who's doing the talking. I might think differently about a proposition if I know someone is saying it who's got a stake - a financial or other stake - in saying it.
And for the same reason that I care when I look at a newspaper whose byline something appears under, knowing who's doing the talking sure helps me evaluate the speech. And the Supreme Court seems to take that line.
DAVIES: Right. Now, we should note, of course, that there still are mechanisms by which big donors manage to remain anonymous, through these, you know, nonprofit social welfare organizations. But you're saying that there are cases in which lower courts have followed the guidance of the courts towards more disclosure and required more disclosure.
LIPTAK: So just to be perfectly clear, the existing disclosure laws, the laws passed by legislatures, are, on the whole, quite weak. If legislatures wanted to pass stronger laws, the Citizens United decision suggests that they be upheld, that challenges to those would be rejected. And we've seen that over and over again.
That's not to say we live in some utopia of perfect disclosure. Disclosure is weak. But its - but that weakness should be blamed on Congress and state legislatures and not on the Supreme Court's decision in Citizens United.
DAVIES: Adam Liptak is the U.S. Supreme Court correspondent for the New York Times. He'll be back in the second half of the show. I'm Dave Davies, and this is FRESH AIR.
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DAVIES: This is FRESH AIR. I'm Dave Davies in for Terry Gross who returns tomorrow. The U.S. Supreme Court finished its term in dramatic fashion Thursday, with its landmark ruling, affirming the legality of the Affordable Care Act. Today, we're discussing that and other decisions with Adam Liptak, who covers the court for The New York Times.
Let's look at some other important cases. The case on the Arizona immigration law got a lot of attention. It was sort of regarded as a split decision in that kind of the controversial provision of the law which allowed law enforcement to require documentation when it suspects someone is in the country illegally, that was upheld, other aspects of it were not. What could this ruling tell us about the court and immigration policy?
LIPTAK: So this is another case where we saw an unusual alignment. Justice Kagan was recused. You saw the chief justice, as in the health care case, but now joined with Justice Kennedy, typically the swing vote, to go along with the more liberal members in striking down three of the four contested provisions of this very tough Arizona immigration law. The court unanimously upheld, but with lots and lots of limitations, the provision that everyone seemed to focus on going in - the so-called Show Me Your Papers provision, which requires local law enforcement officials to ascertain the immigration status of people they stop or arrest if they have a reasonable suspicion that they might be in the country illegally.
So that Show Me Your Papers provision survived but in weakened form and the court made quite clear that it was ruling on a ground we can talk about in a second, preemption, and not on the ground that people really care about, about whether this is a form of ethnic or racial profiling. The court left the door wide open to further challenges along those lines. So I guess the overall take away from this is that the majority of the Supreme Court gave the federal government - endorsed a broad view of federal control over immigration policy and really cut down the sorts of things states can do to supplement that authority.
DAVIES: You said the preemption issue was critical. Explain that?
LIPTAK: So the legal question in the case, and people often misunderstood this, but the legal question in the case was not whether this was ethnic or racial profiling. The legal question was: is there a conflict between federal immigration law and policy and these four provisions of an Arizona state law? If there is an authentic conflict between federal and state law, the federal law wins under the Constitution's "supremacy clause," and that kind of analysis is, is there conflict that we can't get past and therefore the feds have to win, is what lawyers call preemption analysis. And in this case the court said that three of the four provisions of the Arizona law were preempted. That Arizona was not entitled to say, for instance, that it could make it a crime for people here illegally to seek or obtain work.
DAVIES: You know, another interesting aspect of this decision was Justice Scalia's taking upon himself to attack President Obama's recent decision not to deport certain undocumented workers here, those under 30 who, you know, had no criminal records and had been here for a long time. Justice Scalia also was the one who invoked the notion of the government making us buy broccoli in the healthcare debate. If there's sort of an escalating rhetoric on this court?
LIPTAK: Justice Scalia has always been the most sarcastic, the most boisterous, the most slashing, the most inclined to attack his colleagues directly, member of the court. But I think we really saw that amped up and maybe taking a bit of a turn away from the sorts of qualities we associate with this interest at judging and something a more political in the classic sense - in the sort of the cable news sense. It was quite surprising to hear commentary from the bench, from Justice Scalia, on a matter that was not directly before the court that happened after briefing and argument in the Arizona case and he got a lot of criticism for it. I don't know whether that criticism was warranted but I do think that it was an unusual move.
DAVIES: You know, you have in Justice Scalia's comment in this case, I mean, a justice of the Supreme Court addressing an issue that really wasn't before the Supreme Court but involved something the president had done in an election year in which this very thing will be an issue. I mean, is there a view that he's sort of gone beyond the delineated role of the court?
LIPTAK: You have opinion writers saying so. It was a very unusual moment. His defenders might say that he was using this by way of example, of the Obama administration's commitment to a set of immigration priorities that are at odds with states immigration earnings. You can make in that defense what you would. But I spent a little time calling around asking whether anyone could think of a similar instance of a justice from the Supreme Court bench criticizing, on political grounds, an issue of not directly before the court. And lots of people who have looked at the courts for decades and decades said that this was a singular event that they could not think of an analogy for it.
DAVIES: Justices have enormous autonomy, of course. But you do have a chief justice here, Justice Roberts, who had - as we have been saying - is concerned about the perception of the court as being overly political. Can he, would he do anything about this?
LIPTAK: Well, there was another moment with Justice Scalia on the third day of the health care arguments, where everyone had gotten a little bit giddy. But there came a moment when Justice Scalia kept going on about how the Medicaid expansion was like a Jack Benny joke: your money or your life. And the joke wasn't particularly funny and it was quite hard to follow. At one point the chief justice looked over at him and said, that's enough frivolity for a little while. So maybe that's an indication of a level of tension between the two of them.
DAVIES: We're speaking with Adam Liptak. He covers the Supreme Court for The New York Times. More after a break. This is FRESH AIR.
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DAVIES: If you're just joining us, we're speaking with Adam Liptak. He covers the Supreme Court for The New York Times. Just finished, of course, a very eventful term.
You know, one of the ways in which the court regularly affects life in the United States and the legal system is through criminal procedures. And you write that this year the court turned its attention away from criminal trials, which are vanishingly rare, and toward the real world of criminal justice in which plea bargained are the norm and harsh sentences commonplace. There were some interesting cases on criminal justice, one of them involving legal representation and plea bargaining. You want to tell us about that one?
LIPTAK: Sure. So maybe 95, maybe as many as 97 percent of criminal prosecutions end in plea deals. And the court likes to focus in on the theater that is a trial and getting all those rules right and that's important. But if the vast majority of the criminal justice system happens at the plea stage, you might think that it would also want to make sure that that's happening in some kind of sensible way. And in a pair of decisions this year, five to four with Justice Kennedy joining the Liberals, the court said that the Sixth Amendment's right to counsel and the right to effective representation applies to the plea bargain stage. So if your lawyer doesn't tell you that you've gotten a really good offer and you go on to plead guilty or go to trial and get a long-term, there may be situations in which that ineffective lawyering should entitle you to get the original offer back. So bringing the Constitution to this area of the law was a very large move.
DAVIES: It also ruled on life terms for juvenile defendants. Explain that ruling.
LIPTAK: The court has been methodically whittling back at really harsh punishments for people who committed crimes under 18. In 2005, it barred the juvenile death penalty. More recently it said that juveniles who were not involved in killings, you know, who guilty of terrible crimes - rape, and arson, and beatings - could not be subject to life without even the possibility of parole - to life without any chance to try to make the case when they turn 40 or 50 or 60 that they've reformed themselves, that they're not the same kid that they were when they were 14 or 15 and did something in credibly terrible and stupid.
Now the question for the court was what do you do about kids who were involved in killings? What do you do about those roughly 2,500 kids who are behind bars for the rest of their lives for murders or for being accomplices in murders? And the court didn't do what it had done in the earlier cases, which is to say categorically that punishment is no good. What it did say was that in the many states that have laws that make it mandatory for people convicted of certain crimes to get life without parole, those laws cannot stand where juveniles are concerned. Where juveniles are concerned, the majority said, judges and juries have to take account of the special characteristics of youth. You know, the impetuousness, the susceptibility to peer pressure, the potential for maturing later on, and that's not to say that life without parole may never be imposed on a juvenile killer, only that it can't be automatically imposed, only that the sentencing has to take account of all of the relevant factors.
DAVIES: Can you say anything overall about the court's direction on cases of, you know, defendant's rights in criminal cases?
LIPTAK: Well, in these major cases - juveniles and the guilty plea cases, and a third one involving the retroactive application of a law that narrowed the gap between crack and powdered cocaine, and in a case last term about overcrowding in California prisons - the general trend in these, kind of - call them structural cases - was to be sensitive to a criminal justice system that by international standards is exceptionally punitive and is very large. And the court does seem to be interested in trying to make sure that's where the Constitution has something to say about these things, the rights of people accused and convicted of crimes are protected.
DAVIES: Now there were some cases before the court involving detainees at Guantanamo. And, I guess in 2008, the court ruled that detainees were entitled to a meaningful opportunity to challenge their detentions in the courts of the United States. What did the current cases and the court's action on them tell us about where this is going?
LIPTAK: The court has seemed to have gotten out of the business of supervising Guantanamo. It has outsourced that job to the federal appeals court in Washington, the United States Court of Appeals for the District of Columbia circuit. And that court has not been very open to claims from people at Guantanamo that they deserve to be released. There's some reason to say - and a dissenting judge, David Tatel, on one of the panels in the D.C. circuit has said - that the promise of that 2008 case of meaningful review seems to have fallen by the wayside. So it was a real disappointment to the lawyers of people held at Guantanamo - that the court turned down a whole series of cases - I think involving eight different detainees not long ago - and wouldn't hear them, didn't say why it wouldn't hear them. But it seems to have washed its hands of Guantanamo after a series of cases in the Bush administration where it seemed to be quite engaged by the question of under what conditions can we hold people without charge for the rest of their lives.
DAVIES: Yeah. Well, one of these cases involved a man who had been arrested, I guess, on the Afghan-Pakistani border in 2001, on the basis of an intelligence report - this was a time when, of course, after the 9/11 attacks and a lot of people were being picked up and being accused of al-Qaida ties. And he had argued he had a different reason for being in the area. And it looks as if that appeals court in Washington looked at it and said well, you know, we have to give, kind of, I guess, the benefit of the doubt to this intelligence report that suggests that he was al-Qaida. What might the court had done differently in this case? I mean it seems as if the court looked at the facts as it had them and made a judgment.
LIPTAK: Well, the appeals court did little more than that. It applied what it called a presumption of regularity to a report that it itself conceded took place, you know, was gathered in battlefield conditions, was hard to follow, may have been subject to translation errors; and almost certainly in the context of an authentic criminal trial, it would not by itself have carried the day to allow life imprisonment for a criminal defendant.
Now the rules I suppose, are different if you conceive of the war on terror as a military action. And I guess the appeals court did that. But this presumption of regularity, this notion that you are essentially going to buy what's ever on this piece of paper, was something that the Supreme Court could have examined and it might have given some guidance about whether they had put the needle at too lenient a place or not. It's also very hard to evaluate this case because the appeals court's decision had pages and pages of blacked out material. So it was hard to feel just what was going on.
DAVIES: So the situation is if you're in Guantanamo, you can file an appeal to the D.C. - Washington, D.C. Circuit Court of Appeals but the Supreme Court isn't going to second-guess their judgment, look at what kind of standards are applied.
LIPTAK: Yeah. Roughly correct. You start by filing a habeus petition but that's - and in the D.C. district court. But that's where it ends up. And while the district court judges have given various rulings, the D.C. circuit, the appeals court, has been very strict in pushing back against these habeus petitions.
DAVIES: What's coming up in the next term that we should be paying attention to?
LIPTAK: You know, this term was good. And the next term will be good, too. We know for sure that the next term will have an affirmative action case on it, about whether public universities can take account of race in their admissions decisions. This was an issue that you might've thought was settled in 2003 when Justice Sandra Day O'Connor wrote that let's put this to the side for 25 years.
We have a kind of accommodation where you can take account of it so long as it's not the only factor. You can't make it a quota, but there is a place for educational diversity in the admissions analysis. Now, we have a case coming out of Texas which may well not only revisit but alter that analysis and that's going to be a big case. That's called Fisher v. Texas.
And then right behind that quite likely are challenges to the heart of the Voting Rights Act which the court ducked just a couple years ago but seem to be coming back. And it may be that that Civil Rights Era landmark is under threat. And then, one or more same-sex marriage cases are likely to reach the court.
In fact, an appeal was filed just the other day from a Boston decision, a Boston federal appeals court decision in a defense of marriage act case, a case about whether the federal government can decide it won't recognize same-sex marriages in states where it's lawful.
And not far behind that is the case everyone's been paying attention to out of California brought by Ted Olsen and David Boies challenging California's Proposition 8, where there the 9th Circuit has said that at least in California, which went through some funny procedural maneuvers, there has to be a right to same-sex marriage.
So those cases, the marriage cases, if they land at the court - and at least one of them is quite likely to - will make for a very, very big term.
DAVIES: You know, you wrote in a piece on Friday, you mentioned some of these cases and said that the novel alignment in Thursday's health care case is unlikely to be repeated on many of these. Why?
LIPTAK: Well, there's a school of thought that Chief Justice Roberts doesn't really live or die for these federalism issues, that he's been employed by the federal government for much, if not most, of his working life and that he's comfortable with federal power.
He does seem to care deeply about race. In earlier cases concerning race he has really pushed hard against taking account of race in all sorts of settings - in public school integration, in tests for firefighters. And what we're likely to see then in the voting rights and affirmative action cases is an alliance between the chief justice and his traditional conservative allies versus the liberals.
So that we might be back into that kind of 5-4 setting. And in the same-sex marriage case, the conventional wisdom is that it's all up to Anthony Kennedy. And I think there may be some reason to hope, particularly if the cases arrive presenting incremental questions rather than the ultimate question of is there a constitutional right to same-sex marriage, that Justice Kennedy's vote is gettable.
And in earlier gay rights cases he has written the decisions. So there I don't think the chief justice will be at center stage but rather Justice Kennedy.
DAVIES: So looking back at this term what does it tell us about how we can define this court? How it sees itself?
LIPTAK: So we have a court now for the first time since the 1950s at least where the more conservative members were all appointed by Republican presidents, the more liberal members all by Democratic presidents and that led for a lot of people to fear that the court's rulings would be not only predictable ideologically but also predictable along these partisan political lines of Republicans versus Democrats.
I think you have to say to the court's credit, however you feel about the particular decisions, that in scrambling their alignments, in being unanimous in a lot of cases, and being surprising in others, the court vindicated the notion that it's not a political institution but rather one committed to constitutional values.
DAVIES: Well, Adam Liptak, I know it's been a really busy stretch for you. I want to thank you for making time for us.
LIPTAK: It was a real treat to be here, Dave. Thank you.
DAVIES: Adam Liptak covers the U.S. Supreme Court for the New York Times. Coming up, Maureen Corrigan reviews a debut novel imagining how we'd react if the Earth's rotation began to slow, making days and nights longer. This is FRESH AIR.
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