Strict Scrutiny - Justice on the Brink

Episode Date: April 11, 2022

Melissa interviews Linda Greenhouse about her new book, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court. This conversation was originally a live, virtual event from the Brennen Center for Justice, produced in part­ner­ship with New York University’s John Brademas Center. Follow us on Instagram, Twitter, Threads, and Bluesky

Hey there, Strict Scrutiny listeners. This is Melissa Murray. On December 1st, the court heard oral arguments in Dobbs v. Jackson's Women's Health Organization. Later that night, however, I had the privilege to be in conversation with Linda Greenhouse of the New York Times about her new book, Justice on the Brink, which considers the way in which the change composition of the Roberts Court has affected the court's jurisprudence in this particular age. And of course, one of the highlights of our conversation was recapping the Dobbs oral

argument. We're really excited to bring you this special Strict Scrutiny episode, which is brought to you in collaboration with the Brennan Center for Justice. We hope you enjoy. When Ruth Bader Ginsburg passed away in September of 2020, then-President Donald Trump immediately nominated Amy Coney Barrett to replace the court's leading liberal. Over the course of his four years in the White House, Trump succeeded in placing three justices on the court, cementing a conservative

supermajority that would reshape the lives of Americans for a generation or more. From 2020 to 2021, the Supreme Court was at the center of major events, the center of the pandemic, the presidential election, the Trump campaign's major events, the center of the pandemic, the presidential election, the Trump campaign's legal challenges, and finally the January 6th Capitol riots. And key issues were being overseen by a court that was now decidedly more conservative than it had been just 10 years ago. Religious rights were elevated over questions of public health. The integrity of the presidential election and even state elections was at stake. And voting rights were under attack, as was Roe versus Wade, a question that is especially

poignant today when the Supreme Court took up oral arguments in Dobbs versus Jackson Women's Health Organization, a challenge to Mississippi HB 1510, and also a challenge that puts Roe versus Wade squarely in the court's crosshairs. To help us sort through these questions and the more existential questions facing the court, including whether Chief Justice John Roberts continues to lead the court that bears his name, or whether the new Trump appointees are steering the direction of this newly constituted conservative supermajority. To help us sort through all of that, we are delighted to be in conversation tonight with Linda Greenhouse, the author of Justice on the Brink. Linda is a Pulitzer Prize

winning journalist who, for over four decades, has reported on the Supreme Court for the New York Times. She currently writes a biweekly op-ed column on law and teaches at Yale Law School. Her other books include Becoming Justice Blackmun, The Burger Court and the Rise of the Judicial Right, and Before Roe v. Wade, Voices that Shape the Divorce and Debate Before the Supreme Court's Ruling. Welcome to the program, Linda. Well, it's my pleasure to be here. I always like talking to you, Melissa. Well, it's my pleasure to be here, and what a day for us to talk about this fantastic book. So maybe we should start by taking a step backwards. The book is going to get into so many

things, but one of the things I thought was very interesting is that when the book came out a few weeks ago, a number of critics praised your amazing facility with the case law, your ability to make the case law accessible to lay readers, and all of that is true. But one in particular noted that you seem to perhaps have overstated the reach of the book, the idea that this was a completely transformed court, one that was poised to take American jurisprudence in a decidedly conservative direction in ways that would be cataclysmic for the American public. According to that particular critic, the 2021 term for the court really did not see those

kinds of cataclysmic events. Instead, what we saw in his view were more moderate consensus-oriented opinions where the court struck narrow balances between the right and the left. I wonder what you make of that particular critique on an evening like this one, after a morning of very intense debate over abortion at the high court. Yeah, I found that review by a Harvard Law professor. I wasn't going to name names. I'm not naming names. There's a male Harvard law professor. Because, of course, anyone who really knows the court, which I assume such a person does, knows that one of its real powers is to set its own agenda.

And in setting its own agenda, of course, it's setting our agenda, the social, political, legal agenda for the country. So two of the agenda-setting moves the court made last spring, the first term, of course, with Amy Coney Barrett, the first term with the three Trump justices, the subject of my book, was to decide to hear the Mississippi abortion case, the state's appeal from a decision of the most conservative appeals court in the country that had overturned the Mississippi law, which bans abortion after 15 weeks, flagrantly unconstitutional under current law. So the question is, is current law going to survive? And also the court granted review in the

New York gun case, the first Second Amendment case, major Second Amendment case that's going to hear since the court decided in the Heller decision that the Second Amendment conveys an individual right to keep a gun at home for self-defense. And the question in the New York case is, under what conditions can somebody be authorized to walk around with a concealed weapon? So those are two things that the court did last spring that never would have happened had the three Trump justices not been serving on the court.

So why do I say that? Well, the red states, the red state legislatures have been enacting tons of gun laws and abortion laws, restrictions on abortion. The court, the abortion restrictive laws have been consistently struck down by every federal appeals court because those courts, of course, are bound by Supreme Court precedent. Why take the Mississippi case? Because they want to change the law. That's a direct outgrowth of what happened in the court's last term. So what did you make of this morning's oral argument? Was this the court that you envisioned really pushing rights over the edge? If 2021 had been mere

table setting for what was to come, was this the actual buffet at which the court's conservatives were finally going to feast? This was the whole meal with candlesticks and champagne. This was the culmination of a decades-long project. You know, Ed Meese, the former Attorney General, had an op-ed the other day in the Washington Post, and he said, if the court fails to overturn Roe against Wade, it means the conservative legal movement has failed. And I read that and I thought, wow, what a sad statement.

I mean, is that all the conservative legal movement has stood for for almost 50 years? Well, whether it stood for that or stood for a few other things on top of it, that's what we saw playing out in the right to abortion. I think I count five votes to flatly overturn Roe v. Wade and Casey v. Planned Parenthood. And I thought I was beyond getting surprised, let alone shocked, in anything that the court does. But I found the argument pretty shocking, actually. What did you find shocking in particular? The chief justice, for one thing, who is somebody who is in very, very tight control of his public persona and usually is, you know, almost maddeningly neutral on the bench. He radiated hostility toward the Supreme Court's precedents. I mean, it was just clear that was one. Amy Coney Barrett went down a road that I never would have predicted anybody would go down, actually.

She started talking about what are called safe haven laws. And under those laws, if somebody has a baby that they don't want to keep within a specified period of time, a day or two, they can basically leave the baby in a basket at a police station or a hospital and walk away. I should back up a second. One of the arguments for retaining the right to abortion is that women in today's world

need the right to structure their lives so that they can be full participants in whatever aspect of life they want. And if they decide that being a mother would interfere with that, they have the right to terminate a pregnancy. So one of the things that Justice Barrett seemed to be suggesting was that now that there's the prospect of infant safe haven laws where women can relinquish their newborns, they aren't necessarily burdened by parenthood. And so the fact that you can avoid the demands of parenthood and raising a child suggests that the fact of an abortion restriction is not

constitutionally burdensome in a way that the court is obliged to address. Is that a fair statement? Yes. The way she puts it, she says, I have a question about the safe haven laws. You can terminate parental rights by relinquishing the child afterward. She says, it seems to me both Roe and Casey emphasize the burdens of parenting, insofar as you and many of your amici focus on the ways in which forced parenting, forced motherhood, would hinder women's access to the workplace and to equal opportunities. It's also focused on the consequences of parenting. Why don't the safe haven laws take care of that problem? It seems to me that it focuses the burden much more narrowly.

In other words, she's disaggregating the fact of pregnancy and the fact of motherhood, saying, oh, you can go through with childbirth and leave the baby in a basket on a doorstep, and what is your problem? And this is a woman who gave birth to five children, adopted two more. And she's basically saying, I did it. And look at me. I made it all the way to the Supreme Court. What about this is problematic? And I just, you know, the kind of lack of self-awareness that would posit, that would fail to understand that the notion of coercing a woman who does not want to be a mother to go through nine months of pregnancy, give birth, and then say, well, you can leave the baby in a basket. What is your problem? I just found that a shocking life including. And she pursued it again with Solicitor General Prelogar later. And it reminded me, before Justice Barrett was nominated to fill Justice Ginsburg's seat,

she had been much discussed as a potential replacement for Justice Kennedy. And in fact, Ramesh Ponaru, the conservative pundit, had written in an op-ed for Bloomberg that she should be the pick because when the time came for the court to get to its sort of inevitable confrontation with Roe versus Wade, it would be vitally important for the court that overruled Roe to not do so with every woman on the court in dissent. So his point was that she was needed as a woman to perhaps provide some feminine legitimacy. And in this moment, this morning, she not only provided feminine legitimacy, she really leaned into her own experience of maternity to basically ask why abortion rights

were necessary for any women if there was the possibility of surrendering a child for adoption, a path that she herself had once selected. Yeah, it was breathtaking. And of course, my book starts out with the image of Amy Barrett and Donald Trump up there on the Truman balcony that night in October after she was confirmed. Trump had nominated her before Ruth Ginsburg was even buried. I mean, the shocking speed of it, the kind of inevitability of it. You know, the night that Ruth Ginsburg died, September 18th, we learned later, Mitch McConnell placed a call to President Trump, who was on Air Force One, coming back from a campaign stop, and McConnell said to him, you're going to do two things. You're going to fill the vacancy, and you're going to fill it with Amy Coney Barrett.

So there it was, you know. I mean, the election was already underway, the 2020 election, in states with early voting. Millions of Americans had voted in the spring of 2017. Before she became a judge and had to be more tempered about things, she had expressed extreme hostility to the right to abortion. And there she was getting confirmed and nobody could really ask that question. That was one of the things that was not, you can't ask a nominee to sort of commit or non-commit on the question. And so it was kind of danced around with various dog whistles and winks and so on. But here we have it. So Justice Barrett is obviously a key player in the story that you are weaving about the court's most recent term and what it means for the court's future.

But another equally important player here is the chief justice himself. And the picture you paint is one that's incredibly complicated. He is the man for whom this court is named. It's known as the Roberts Court. But the picture that you paint is one where he seems to be losing control of the conservative bloc. And he's certainly, I think, parted ways with some of the more stalwart members of the court's conservative bloc, namely Justices Alito and Gorsuch. What do you see in terms of how the Chief Justice will navigate, how he navigated last term, and what it's going to mean for him to navigate this term. And did we see anything from him today that gives us any

indication of what the path forward looks like? Well, he was the only member of the court who seemed at all interested, actually, in the question that the court had agreed to decide in the Mississippi case. And that was a question of fetal viability. So just to provide the context, so viability has been the firewall ever since Roe, 1973, that has protected the right to abortion. Whatever the court has done, the court has said in later cases, you know, you can make a woman jump through various hoops. You can make her listen to a, you know, very biased, so-called informed consent statement. You can require her to do this and that. But at the end of the day, before fetal viability, she has an absolute right to decide to terminate the pregnancy. The Mississippi law banning abortion after 15 weeks, which was months before viability,

obviously violates that. And that's the question the court had agreed to decide. The court agreed to decide explicitly the question, does a ban on abortion before viability, does it violate the Constitution flatly, or is there any exception? Only John Roberts seemed interested in exploring that. But the way he explored it made it quite clear that he actually doesn't think viability is a legitimate firewall or is any kind of firewall, because he asked the Mississippi lawyer, Scott Stewart, the Solicitor General of Mississippi, he said, was viability even an issue in Roe v. Wade? And didn't Justice Blackmun in his private papers, which unfortunately, Chief Justice

said, are open to the world, say that he chose viability as kind of an arbitrary cutoff? That was really a weird line of inquiry because whatever Justice Blackmun said in his private papers or, you know, in a letter to his best friend or in his diary, that's not material that one actually cites in a judicial opinion. But leaving that aside, what he obviously was trying to do was delegitimize viability and kind of play around with the notion of why do we even have such a concept in our abortion laws? So, you know, on the one hand, it seems he might be interested in drawing some kind of intermediate line. But as I read the transcript and thought

about the implications of what he actually said, I think he's got to be fully on board the project, which is overturn Roe, overturn Casey. So where does this leave everything else? So it seems obvious to everyone that the Mississippi law will be upheld. I think the question is whether we will have a nuclear option overruling Roe versus Wade or the evisceration of viability, which, though less nuclear than overruling Roe, would still be a sweeping change to the reproductive rights landscape and would give states wide latitude to regulate abortion in ways that would have enormous complications and implications for access. What other issues are on the brink, as you say here? What else should we be looking for as the court goes into this really fraught October 21 term? Yeah, I think the two big issues that are

currently on the table is the Second Amendment and the religion clauses of the First Amendment, specifically the free exercise guarantee of the First Amendment. So we mentioned the gun case already. It was argued last month, early November, and it seemed pretty clear that the New York law, which is one of the stricter laws in the country about licensing somebody to carry a concealed weapon, is not going to survive. It's encountered with the court, so that opens a whole line of questions because the Heller opinion itself really was limited to keeping a gun at home for self-defense. The court in all these years, Heller was in 2008, has not expanded that understanding of the Second Amendment,

which has been very annoying to Justice Alito, Justice Thomas, Justice Gorsuch, who've been complaining. We're treating the Second Amendment like a second-class right. We've got to take one of these cases. So something finally gelled in the term I'm writing about, and they decided to take that. Religion is a huge issue. The first indication last term that something dramatic had changed came within a couple weeks of Justice Barrett going on the court replacing Justice Ginsburg. And this was one of the many cases that came before the court, several cases, involving the public health limitations on the number of people who could gather in indoor spaces as a way of trying to limit the spread of the COVID pandemic. When Justice Ginsburg was still alive in the spring

and early summer of 2020, churches had brought challenges to these limitations, and the court had rejected the challenges by a vote of five to four, the chief justice, and then four liberals to his left. Amy Barrett comes on the court substituting for Justice Ginsburg. The first case that comes up was Thanksgiving Eve last year, a challenge to the capacity limitations in New York. And right away, the court flipped. Five to four, rejected the limitation. by the end of the term had rejected the limitations in a couple more cases including one at the end of the term from california that really showed us how far down the road the court has gone to privileging religious claims above all other claims including the claims of public health and uh you remember this case, I think it's

a case called Tandon. Ms. Newsom came up on the court shadow docket. The court didn't even bother to grant review and have full briefing and argument. It was one of these late night things. And it was a challenge to a California regulation that said that in a private home, no more than three unrelated people, unrelated groups, couples, something like that, it was a small number, could gather for whatever reason, have a birthday party, have a prayer service, have whatever. Religion wasn't on the table. Two individuals sued and said, we use our homes for religious purposes. We have a prayer meeting.

We have a Bible study meeting. And this regulation discriminates against religion. The district court judge said, no, it doesn't. You can't have more than X number of people in your home for any reason. There's nothing about religion that's in this regulation. Treated exactly the same. The Ninth Circuit upheld that. The challenge was, oh yeah, but you let people in the mall. You let people do their grocery shopping, but you don't let them gather in their home for religion. So that's discrimination against religion. It's

really a mix-up of the comparators, but the court struck down the regulation that said this is a discrimination against religion because some other activity out there in the world is being treated better than religion. And we can't have that. Religion has to be treated as favorably as anything else. And so that's where the term left us. And there's a big religion case that's going to be argued next week, actually. And we'll see. I think that it's a pretty foreordained outcome that religion is going to prevail in that case, too. Well, so the case that you are alluding to is Carson versus Macon, which is a challenge to a main policy that allows for the state to subsidize private schools because there aren't enough public schools in some of the more rural areas of the

state. And so the challenge is to the fact that those public subsidies are not available for sectarian schools, schools that are religious in nature. And the question is whether they can be extended to also include religious schools. So this would obviously have really important implications for school voucher programs, things of that nature. But I raise it because it reminds me of a case, I think from October term 2016, Trinity Lutheran versus Comer, which was about a public program for resurfacing playgrounds using old tires. And a church, Trinity Lutheran, had applied for the program, had been rejected on the ground that

the state did not subsidize religious entities. And the court, which included a majority of, that included some of the liberal members of the court, agreed to allow the free exercise clause to be deployed in such a way to allow the free exercise clause to be deployed in such a way to permit the church to participate in this program, and said the state had to include the church as well. The picture that you paint in the book is that the conservative legal movement has been very slowly laying breadcrumbs and very tidily tending their crops for some time, and now they're all sort of blossoming and coming to fruition. Why did the liberals allow this kind of First Amendment husbandry to happen on their watch?

I mean, Justice Breyer was in that majority in Trinity Lutheran. Yeah, and Justice Ginsburg was not. That's true. I think, not to put too fine a point on it, I think they got stucker. And I think it was at their insistence, they being Justice Breyer, Justice Kagan, the Chief Justice put a really strange footnote in that case.

He said, we're only talking about tires being used to resurface playgrounds. We're not talking about anything else. We're just talking about a else. We're just talking about a church that was ruled ineligible for this subsidy because of its identity as a church. And he said that kind of discrimination is odious to the Constitution. Then comes the next case, which was a case decided two years ago. This is a project. This is part of the Chief Justice's project. And it was another one of these, can the state be required to subsidize tuition?

That was about your case from Montana. And the Chief Justice said, yeah, what about the Trinity Lutheran case? Don't you understand? These religious schools are being discriminated against, not because of anything they do, not because of any use they would put the money to, but because of their identity. Now, Justice Gorsuch, to his credit, wrote a separate opinion in that case. It's a case called Espinoza, in which he said,

when you're talking about a religious school, there's no difference between identity and use. He said it's a religious school. It's because they want to instruct students, and they want to inculcate the religious doctrine in their students. That's why they exist. But the whole thing in that case is that was simply about identity, not about use. Now this case case comes and it's about use. It's the next step. It's the final step, because there's no doubt that the religious schools that are claiming a right to the tuition

subsidy in the state of Maine, they make no bones about it. They're religious schools and they want to teach religion, which obviously is their perfect right. The question is, do they have a right to do it with public money? And that's a big bridge to cross. The court's been inching up to it. Back in the 50s and 60s,

there were big fights about what used to be called parochial aid and that there was a kind of a settlement. And the settlement was government can subsidize the bus transportation fights about what used to be called parochial aid, and that there was a kind of a settlement. And the settlement was government can subsidize the bus transportation, the math books, the other secular textbooks can give release time from the public schools so that students can go and get their religious education elsewhere. That settlement is now flown apart. And so the question now isn't, may a state subsidize religious education, but rather must a state under a pre-exercise First Amendment claim, must a state subsidize religious education? And that's the threshold we're at in this case from

Mayness Carson against Macon case was granted in the term that I'm writing about and the step-by-step nature of the court's project on this side of the religion clauses forget the establishment clause that's been basically erased it's really a major theme of the last term of the court that's now coming as we said now coming to fruition It's really a major theme of the last term of the court that's now coming, as you said, now coming to fruition. Earlier in the years, around September, after the court refused to intervene in SB8, the justices did seem concerned that the public viewed them as overly partisan or somehow captured by a particular ideological concern. Do you think the prospect of structural reform of the court or any kind of report from the

Supreme Court Commission is something that weigh on the justices? Well, if it's weighing on them, they have a very strange way of manifesting their concern because, of course, the moment at which the public approval of the court seemed to plummet was the beginning of September when the court allowed the vigilante law in Texas, SB 8, to take effect without bothering to hear arguments or anything. Of course, correlation is not causation, but I think many people assume that the Texas law being allowed to go into effect had something to do with the fact that the public approval rating of the court in the Gallup poll plummeted from something in the high 50s to 40%. But, you know, if the court cared about that, They might have been when the second challenge to the Texas law came in a few weeks later. They could have issued an requested injunction against the Texas law.

So I don't see much evidence that other than kind of rhetorically that they have all that much concern. And maybe not even rhetorically. I mean, Justice Barrett did go to the McConnell Center at the University of Louisville, named for the same Mitch McConnell, who is so instrumental in her appointment, to disclaim the idea that she and her colleagues were partisan hacks. Optics might have looked better if it hadn't been the McConnell Center and if Mitch McConnell had not been with her on the dais when she said that. What should we make of the two other women on the court? How do Justices Sotomayor and Kagan sort of interact with their colleagues on the right and with Breyer, who seems to be more willing to move between these two different camps? Yeah, I mean, Justice Sotomayor and Justice Kagan are very different in the way they're approaching their job. If people want to see like the very, very best of Sonia Sotomayor,

tune into the audio of the argument this morning. I mean, she was quite fabulous in calling out everything that needed to be called out in the Mississippi case. Not because she thought she was going to change any votes, I believe, but because she was making a record. She's going to write a dissenting opinion that will speak to history. And that, I think, is how she sees her role on the court at this time. Justice Kagan, that's not her. She thinks with the force of her very considerable intellect and mastery of material, she may be able to, if not change a vote, at least maybe modify, moderate a vote. And so she's, I think, more willing to kind of put a hand out and work with her colleagues on the other side of the street. And as far as I know, she may have made some

inroads. I mean, there have been some decisions in recent years that didn't go as far to the right as one might have expected. So she's got her kind of long-range strategy. But I don't mean to suggest that she's kind of, you know, kind of a mushy, moderate person. I mean, she's capable of writing extremely compelling, dissenting opinions, as she did at the end of the term this summer in the Arizona voting rights case. That was, you know, one of her all-time best dissenting opinions.

But they carry themselves differently within SCOTUS world, I'd say. I think that's fair to say as well. Justice Kagan was more muted today and almost seemed a little shocked by what sort of unfolded. Like she didn't ask many questions. I think she, too, might have been surprised by the tenor of the conversation.

Maybe so. Or maybe, you know, Justice Sotomayor was so forceful, maybe she kind of took the air out of the left-hand side of the bench. Well, Justice Kagan had been quite expressive in the oral arguments in SB8 just a few weeks ago. So maybe they're tag-teaming, and they know this is a marathon and not a sprint, and they have to team up. Yeah, or maybe they had agreed that Justice Sunweiler would sort of take the laboring order.

I mean, who knows? But, yes, she was kind of surprisingly quiet, but we haven't heard the last from her, that's for sure. Well, you know who is not quiet? Our audience members are not quiet, and they have lots of questions for you. So the first question is about Justice Kavanaugh, who we've not spoken about.

What did you think about Justice Kavanaugh's suggestion today, an oral argument, that the court should be quote-unquote neutral with respect to abortion. Personally, I thought it was ridiculous. Basically, he was saying, well, there's a big dispute going on. Some people think that some people think that's what the court should just be neutral. Excuse me, we've got 50 years of precedent here. We've got major individual rights at stake. You know, neutrality, as he phrased it, would mean taking away from the women of America a right that has protected their personal autonomy for 50 years. I don't get the notion of neutrality. You know, the world wasn't made new on December 1st when the court heard argument.

In this case, we've got history. And I thought it was a rather typical Brett Kavanaugh move. We've seen this before, where he will try to frame an issue in a very kind of superficially attractive way, a very moderate seeming way. We're just, we're just talking about neutrality. And then he went on with that list of earlier cases in which the court had overturned precedent. You know, it's just normal to overturn precedent. I mean, what's wrong with overturning Plessy against Ferguson? I mean, we just overturn precedents whenever we think something's wrong. So, you know, these are theatrical moves, but he's going to be exactly in the same camp

as the rest of people on his side of the street. And ultimately, the point of that neutrality argument is he wants Roe overturned and the question of abortion to be returned to the states to decide for themselves how to do this. He said neutrality is a meaningless word in the actual context in which he was using it. So with that in mind, has there ever been a circumstance where the court has saw fit to overturn a right that had previously been extended? All of the cases that he mentioned where decisions had been overruled had actually

been about extending or elaborating rights, not withdrawing them. You're exactly right. I mean, I think you could find cases in the commercial area or like a long time ago where rights that had been recognized or asserted or cut back or something. But when it comes to a major individual right, all the overturning of precedents have been in one direction, in the direction of rights expansion, not rights withdrawal. And that's just a fact. And, you know, you're going to do what they're going to do, but they cannot pretend that this is a normal thing to do. How rare is it for the court to overrule a prior decision?

It's not totally rare. I mean, if it's maybe once or twice a term, the Library of Congress keeps a running list of them. And it's, of them and it's anonymous actually but something of a lot of the arguments that I actually went to this point

as to whether there's something special about overturning a precedent that not only has been maybe sitting there for a few years but a precedent that not only has been maybe sitting there for a few years or whatever, but a precedent that's been fully considered and reaffirmed in the full light of day. appointed justices who formed the nucleus of the five to four outcome in Casey when the court refused to overturn Roe said, we may not have endorsed, voted with the majority in Roe against Wade as an original matter had we been on the court in 1973. But that's not the point. That's

not the point. The point is, what do we do about it today? And does the question of overturning it meet our usual criteria for when we overturn a prior decision? And these Republican appointed justices said the answer to that question is no. And of course, that's the same question today. But the justices, the conservative justices were acting as if, oh, we're asked to write the law of abortion today, December 1st, 2021. There's no history. There's no past except for some mistake that unaccountably was made 50 years ago. And we're here to rectify that. It was a very something very bizarre about that argument. Where would this leave us? If the court is poised to either uphold the Mississippi law or uphold the Mississippi law and overrule Roe versus Wade, we have the expansion of free exercise rights. We have the expansion of corporate rights,

limits on the role of unions to organize. What does this leave of the progressive legal project that had been in place from the Warren court forward? Well, of course, there's been a great asymmetry for decades in how much attention progressives and conservatives have paid to the courts. I mean, it's very fascinating. Progressives have had a broad agenda, much of which they wanted to achieve by legislation. Conservatives not being able to muster a majority for their legislative projects have turned to the courts, and progressives have been kind of asleep at the switch. I mean, look at how diffident both President Clinton and President Obama were about filling vacancies that they inherited or that occurred during their tenure.

I have to say, people aren't giving President Biden enough credit for how enthusiastically he is filling those vacancies which he has to fill i think he's now in round 10 of of judicial appointments and there are really some fabulous appointments there and his people are getting confirmed so he was head of the senate judiciary committee he understands that and his chief of staff ron claim who was his chief of staff in the Senate, understands that. And it's really a great difference. But, you know, so what did progressives do now that the courts have been lost? They've got to play the same long game that conservatives played. And conservatives won that game in politics by getting people elected who would carry it out and exercise their constitutional authority

to nominate and confirm people to the courts who would do what they wanted them to do. And that's the situation we're in right now. And the prospect of that seems a little distant right now. I mean, basically, you have progressives who seem a little disenchanted with the president and his agenda. There's discussions about whether there's an enthusiasm gap among Democrats going into the midterm elections. And this is probably not the moment to have an enthusiasm gap. Like we probably need to have an enthusiasm surplus at this point, because without the Senate, nothing is going to happen going forward, and likely without the House as well.

And so how do progressives sort of get on board? And what do people in the progressive legal community, what can they do to sort of make this situation somewhat less dystopic? Well, I think they might want to spend less time on perseverating about what should be done about the Supreme Court and work in politics and make sure that they keep hold of the Senate and try to, you know, prevent bad things from happening in the Senate or help good things to happen. That's almost counterintuitive, Linda. You know, to get back the courts, forget about them and work in the other branches for a while. You know, I mean, get some strong voting rights protection, get some protection for reproductive freedom.

It can be done by legislation. There's all kinds of things that can be done. I think the focus on, you know, should we add people to the court? Should we do this and that about the court? That's not where the answer lies. We've got to worry about redistricting and gerrymandering. The court's not going to save us from that. They told us that. Good old-fashioned politics, I think. So it's good old-fashioned politics, and we shouldn't really be focused on the courts. The courts are lost, at least for the next couple of years to us, and so we should be

focused on politics. Should we be concerned that justice is on the brink? Like, is there anything that we can do in this moment to save what is left of this progressive legal agenda? Well, I guess I'm kind of with Sonia Sotomayor. I think we need to keep a very close watch. We need to record. We need to use our voices as she does.

We've got to speak to history and history will judge this period. I think history will judge the last presidential administration pretty harshly. How history judges the Supreme Court's response to it and what the court is on the verge of doing, you know, we'll see. But it's not a very encouraging prospect. So in the book, you chronicle some of the highlights of last term, as well as some of the lowlights, some of the things that were decisions that will really have deep, deep repercussions going forward for questions of religious rights, reproductive rights, all of that. Is there a sort of sleeper case that kind of went under the radar that no one really talked about that you think will actually have really broad implications and we should be paying attention to?

Well, one case that I think didn't get the attention that it really merited was the big property rights case. Cedar Point. And then the term case was Cedar Point. That, like so much else that we've talked about, was the culmination of a long project. It actually was Justice Scalia's project.

And when he died in 2016, he died with that project unfulfilled. And what he wanted to do was to change the way the court looked at what is a, quote, taking a term of art under the amendment.

Government cannot take private property without due compensation. And the governing precedence in that is that an absolute taking meant a real physical taking, a physical invasion, like eminent domain, that kind of thing. Anything else was deemed a so-called regulatory taking and was subject to a balancing test about what's the extent of the regulatory burden, what's the purpose of it.

We balanced these various factors. What the Cedar Point case did was break down that wall between the per se taking and the regulatory taking and said that a California law that allowed union organizers to go onto farms before the workday and after the workday to try to organize the farm workers was an absolute per se taking by the state of private property, even though, you know,

no property obviously was changing hands and there was no interference with the business model of these agribusiness entities. But that's a take. And that was really a major step that, as Justice Breyer said in dissent, opened a real can of worms about all kinds of government regulation where government inspectors go on private property to look for violations of mine safety know, mine safety, worker safety, all kinds of things. And what about that?

And we'll see what about that. But that was really a major step that I think maybe you agree, you know, ended up under the radar of people's attention. Well, I'm glad you mentioned it because I don't think it got a lot of play last term, but it really was quite sweeping, like had immediate repercussions for union organizers, but ostensibly would have repercussions for any kind of government agency that has to go on to property. It really makes the whole prospect of regulation much more difficult on the employer's property. So we have time for one final question before we end. And the question

comes from one of our audience members. They'd like to know what's the best way for individuals, whether they are journalists or not, to stay updated about what goes on in and around the Supreme Court. So what's in your media diet as you stay one of the nation's most avid court watchers? Well, of course, the court's website is actually pretty user-friendly these days. And all the resources that somebody needs to follow the court are up on the website. Of course, they can listen to Strict Scrutiny, your podcast. Thank you for the plug. Appreciate it.

They can follow SCOTUSb blog, which is a free website. When I was first considering whether to embark on this project of writing the book, my first thought was, you know, it's a pandemic. I'm not going to be in Washington. I'm not going to be at the court. How can I really, you know, do this? And I thought, nobody's at the court. The court was closed because of pandemic the justices were conducting their arguments by telephone and everything I need

is going to be on the website so that's true you know it takes a little work but um you know for instance in the abortion case that was argued today there were 140 briefs filed. Now, I cannot sit here and say I read 140 briefs. I certainly did not. I can't say the justices did either, for that matter. So, you know, you have to learn how to navigate the resources that are available, but they are definitely available. So that's a good place to stop. So the court has a very user-friendly website. You will find audio of the live-streamed oral arguments. You'll also find transcripts, usually on the same day that the oral argument happens. So that's supremecourt.gov. And then there are all of these other resources like SCOTUSblog and a number of podcasts, including strict scrutiny,

but not limited to strict scrutiny, that are available. But Linda, this has been such a fascinating conversation. It was such a great treat to be able to read this book and to reflect on last term. And again, if you haven't read Linda's other work on the Supreme Court, highly, highly recommended. Becoming Justice Blackmun is one of my favorites. Justice on the Brink is quickly becoming a new favorite. So Linda, we wish you the best of luck with this favorites. Justice on the Brink is quickly becoming a new favorite. So Linda, we wish you the best of luck with this book, Justice on the Brink, The Death of Ruth Bader Ginsburg, The Rise of Amy Coney Barrett, and 12 Months That Transformed the Supreme Court. And we are very grateful for our partners in today's event, NYU's John Brademas Center and

the Birnbaum Women's Leadership Network at NYU School of Law. I'm Melissa Murray. And with a quick note from the Brennan Center before we leave you, you can stay up to date on key issues impacting our democracy with weekly analysis and insights from Brennan Center experts. All you have to do is sign up for the briefing newsletter at BrennanCenter.org slash briefing. And you can also register for all of the great events at the Brennan Center, including Brennan Center live events at brendancenter.org slash events. Thank you all for attending tonight and for supporting the Brennan Center and its terrific work. Thank you. Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leo Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell.

Audio engineering by Kyle Seglin. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. With digital support from Amelia Montooth.