The U.S. Supreme Court just wrapped up one of the most consequential terms in recent memory, handing down a string of momentous decisions that strike at the heart of our legal system. In this episode, Joan Biskupic, legal analyst for CNN and the author of several books about the court, joins Dean Erwin Chemerinsky to discuss what happened and the implications of these opinions.
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More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
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Episode Transcript
ERWIN CHEMERINSKY: I’m Erwin Chemerinsky, Dean of Berkeley Law. And this is more just a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The United States Supreme Court just wrapped up one of the most consequential terms in recent memory– handing down a string of momentous decisions about some of those divisive issues in our society. I’ve been teaching constitutional law for 42 years, and I cannot think of another term like this one.
The only analog I could think of in the past was 1937, when the court overruled 40 years of precedents and dramatically changed constitutional law. In this episode, I’m delighted to be joined by Joan Biskupic, who’s covered the Supreme Court for decades. We’ll discuss about what happened this term and especially the implications of those opinions.
Joan is currently a legal analyst for CNN, the author of several major books about the Court, years ago, a terrific book about Chief Justice John Roberts. And she has a new book coming out in early 2023, a group portrait of the effect of the justices appointed by President Trump and through this term, the Biden era, in some ways, of the Supreme Court. Joan, thank you so much for doing this.
JOAN BISKUPIC: It’s wonderful to be here with you, Erwin.
ERWIN CHEMERINSKY: I guess, the place to start is by asking, what’s your overall reaction to the term?
JOAN BISKUPIC: Well, you referred to the 1930s as a benchmark. I have to say, I’ve been covering the courts since the ’88, ’89 term. And I remember at the time, using words like “watershed” because that was the year of the Webster abortion case and flag burning and all the job bias rulings. And it felt so huge.
And of course, I’ve been on the beat through Casey in 1992 through Obergefell through the Affordable Care Act cases– everything that always seems so colossal. And all of that pales compared to where we are right now. It’s almost as if it’s hard to have a comparison. It’s hard to have words that take account of how much the law is being changed right now and how swiftly things have changed in the last 20 months since Justice Amy Coney Barrett took her seat.
If you remember in 2021, the first term with her, the justices moved to the right, but it sort of baby steps in some ways. And this, a whole swath of law has been changed, more so than we could have ever predicted on Second Amendment rights, on regulatory power, and of course, the biggest, privacy rights for women and for all people in the Dobbs ruling.
And then just one other piece, Erwin, the backdrop is so different now. It seems like the nine are so much more embattled. They have all the fencing and barricades up around the building because of protests. They were struggling with the lingering effects of COVID.
But again, those have also paled in light of how they sort of barricaded themselves into their column building and also how much they’ve walked away from precedent and the idea of what’s ahead with what they’ve taken for the new term. So it’s almost as if this is a term that defies adjectives and even comparisons.
ERWIN CHEMERINSKY: I wouldn’t discuss all of that. But I want to focus a bit on you’re talking about how within the court, they seem embattled. You’re there. You talk from time to time with some of the justices. What’s your sense of the internal dynamics of the court?
JOAN BISKUPIC: They’re so fraught in so many different ways now because of both the ideological differences and just the internal us versus them that’s going on, in part, driven by the three new appointees but also lingering hard feelings by Justice Thomas and Justice Alito.
Justice Thomas did something last month– actually, it was in May– that was so unlike him to talk publicly about how divided the court had been, about how much he was looking over his shoulder. He talked about how much the court had changed since John Roberts took over in 2005 from the late Chief Justice William Rehnquist.
And Clarence Thomas has had some of those feelings about the relatively new chief, even though John Roberts has been chief since 2005. He’s longed for Chief Justice Rehnquist, in some ways, but he never put it out in the public. And the justices, themselves, are questioning each other’s motives much more publicly. So you have that all going on.
And I have to say that something else that’s changed. And that’s the loss of Stephen Breyer. Stephen Breyer has been the internal glue of these justices in some ways. Everyone liked him. He was decent. He gave his colleagues the benefit of the doubt. And I think relations might continue to deteriorate just because he’s gone.
He’d been around since 1994. The Chief Justice had come to count on him in some ways. He was someone who, in their private conferences, again, seemed to want to compromise and cut colleagues slack even though he didn’t agree with them.
ERWIN CHEMERINSKY: On May 2, Politico published a draft of the opinion in Dobbs. I certainly can’t think of another instance where a draft opinion was published in advance, let alone in a case like that. What was the effect of that on the damaged record? I remember reading a piece you wrote for cnn.com about the leaks investigation and the tension it was causing.
JOAN BISKUPIC: That’s right. What was so startling about that draft was that it was so extensive, 98 pages. It was at such an early stage of negotiations. Some of us will get tips about how things are about to turn out within days, weeks of when it’s going to be announced. But this was so much earlier. That draft, remember, was dated February 10. So we got such an early view of things.
And then to have it burst on the scene and the public be made aware of it in this strange way through a leak that Politico published. Now, the chief, the very next day, said it was authentic, which it was more than authentic since it’s practically the document that was then issued on June 24. I was frankly surprised that Justice Alito didn’t change more of it or that the folks who signed on with him didn’t want more changes.
But that was it. That was what became the law of the land. So it was to the justices, themselves, they felt so violated. The very next day, in addition to the chief authenticating that, he said that they were launching this investigation.
And what I learned, as you just mentioned, Erwin, is that they had the law clerks signed affidavits that they hadn’t had a role in this, that they had not leaked it. And they started taking steps to obtain cell phone data.
Now, I don’t know how extensively they ended up going with that because that was a move that immediately set off alarm bells among the law clerks. You know so many law clerks. These are people who you have taught through the years. These are people that many folks in our audience know are the elite of the elite. These are folks of color within the lines.
They are rule followers, and they are very, very smart. And I don’t know if one of them did disclose this draft. But I frankly would be very surprised if it was a law clerk deliberately giving a document like this to a news entity, Politico. But the court wanted to pursue that route and launch a pretty intrusive investigation of the law clerks, as I say, down to requesting private cell phone data.
That just raised the tensions even more because in late May, in June, you already have a lot of difficulty. They’re working practically around the clock to serve these justices. And there’s so much tension as drafts are being circulated in the building. So that did not help anything.
And then all the protests out front, which you understood why people would be coming to the court to protest, but that just made them even more embattled with adding more and more barriers and taking more and more steps to try to remove themselves from public view.
ERWIN CHEMERINSKY: I want to talk about some of the decisions. But looking at them overall, obviously, it was a term where the conservatives triumphed. There was a front page story in The New York Times on July 2 that said, by a statistical analysis, it was the most conservative term since 1931.
I was struck by how much it was an originalist term. It wasn’t that long ago that originalism was really a fringe theory of constitutional law. Robert Bork got rejected in 1987 for saying the Constitution should mean the same thing today is when it was adopted. I think if Hillary Clinton had won in 2016, had she appointed the three justices of the court.
You’d have Justice Thomas as an originalist. You’d have law professors that vanished. But in case after case, the Supreme Court’s approach was entirely originalist– looking on history, original meaning, and maybe unbroken tradition in some of the cases. What was your sense of that overall aspect of the term?
JOAN BISKUPIC: Well, I do think that’s the theme. But I also think that we need to stress that there are different strands of originalism. Just think back to Heller in 2008. Justice John Paul Stevens in his dissent felt that he was taking an originalist view.
The Biden administration, through the briefs submitted by– I think, Brian Fletcher took the lead on that one. He felt that the materials he put forward to dissuade the court from going in the direction it went in the new Bruen case was an originalist take.
So it’s a type of originalism that is, as you say, it’s the more controversial version that’s taking everyone so much further backwards and looking at specific types of history and specific types of original interpretation and meaning that certainly is putting the court in reverse, more than anything.
ERWIN CHEMERINSKY: That’s a terrific point. Let me use that to talk about the Bruen case. New York Rifle and Pistol Association v. Bruen involves a 1911 law adopted in New York, the Sullivan Act, that limits having weapons in public. It says to have a concealed weapon, you need a permit. In order to get a permit, you have to show cause.
The New York courts interpreted that to say, you have to show a safety need to have a permit. The Supreme Court declares this unconstitutional. What was so striking to me was how the Court didn’t use traditional tests of constitutional law.
When it’s a fundamental right, like free speech or free exercise of religion or privacy, in the past, the court has said, the government can act if it can meet what’s called strict scrutiny, its action being necessary to achieve a compelling purpose. But Justice Thomas, in his approach, rejected that and said, only if it’s a kind of regulation to be historically allowed is it permitted.
Let me just read a quick quote from Justice Thomas. “Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that individual’s conduct falls outside the Second Amendment command.” He says, “the Second Amendment is the very product of an interest balancing by the people. And it surely elevates above all other interests throughout a law-abiding citizens to use arms for self-defense.”
I’ve never seen a case where the court said, the First Amendment elevates freedom of speech or free exercise of religion over all other interests. I’ve never seen a case where the court said that the Constitution elevates privacy above all other interests. Doesn’t this then provide more protection for Second Amendment rights than almost any other right in the Constitution?
JOAN BISKUPIC: It would seem that way. And what I was so struck by is the real victory that Justice Thomas could claim here and that his five colleagues on the right all signed without caveat, including Chief Justice John Roberts.
And I know from earlier reporting that Chief Justice John Roberts was someone who had put a bit of a brake on the justices going further on the Heller rationale and on Second Amendment cases. He was the one in 2020 who helped write the opinion to moot out the earlier New York Rifle Pistol case that we had.
And he also was the vote that the other justices weren’t sure they can get for moving so robustly such a muscular approach to the Second Amendment that Clarence Thomas took. And there he was. He signed it in full.
And I was reminded back in 2020 when the justices rejected several pending petitions from gun rights groups that Clarence Thomas was talking about how there is no way that Heller should be interpreted as just involving a right in the home, self-defense right.
And he had that line that said, it is extremely improbable that the framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen. That was in a New Jersey case Rogers versus Grewal. Thomas was always either out there by himself or with a single other justice joining him. And that, it was Brett Kavanaugh.
And I remember right after Justice Scalia’s death, it was Clarence Thomas and Sam Alito, generally, by themselves, protesting when their colleagues didn’t want to take up a gun rights case. But here, he went for broke, and he had six justices on that opinion. I think that was a very, very big development. And it shows how there’s no more incrementalism here.
ERWIN CHEMERINSKY: Great point. And I wonder why Roberts and Kavanaugh, who are not self-avowed originalists, went along with the decision that went so far. Couldn’t they have, in order for Thomas to get their votes, pushed it towards still a gun rights decision but not such an extreme one?
JOAN BISKUPIC: Well, I might have predicted that at one point. But obviously, this was a term when any kind of predictions of moderation were totally wrong, very, very, very wrong. We’ll talk about Dobbs in a second. But in the back of my mind, I kept thinking, maybe the chief can pull a rabbit out of a hat there and on guns.
I had known through my sources and it was pretty obvious that Justice Thomas had that opinion. But it was the chief who obviously would assign him that opinion because he was the senior person on that majority. And I thought, well, maybe that would force Justice Thomas to hedge a little bit to make sure the chief stayed on.
But the chief stayed on. And if the chief was ever going to write some sort of concurrence and whatever he was thinking about writing, it did not trim the sails of Justice Thomas at all on this one.
ERWIN CHEMERINSKY: You’ve observed, many times, that no longer is Roberts the ideological medium justice on the court, that there are five justices to the right of him. And so at best, what he could have done here is concur in the judgment, which is what he did in Dobbs. And Dobbs is the most important case of the term– I think one of the most important in our lifetime.
And yet, what Roberts wanted was to uphold the Mississippi law that was abortions after the 15th of pregnancy. So states could prohibit abortions before viability but not reach the question of whether to overrule Roe versus Wade. But there were five justices that obviously wanted to go much further into overrule Roe here.
What do you think this means about Roberts’ overall role on the court that there are five justices much more conservative than him?
JOAN BISKUPIC: Well, you know, Erwin, I think we should take this case with the one we just discussed on guns because it shows the chief moving tactically in two different ways. One is if he really thinks this is going to stain the court in some way, institutionally, in terms of its stature in America, which he obviously believed in the abortion rights ruling, he’s not going to join those on the right.
He’s going to hold his ground. He will do what he needs to do there. But you take the Second Amendment– and I still can’t imagine that he didn’t have some hesitations about all that Clarence Thomas wrote. But he obviously felt that that one, it was not worth separating himself out. He didn’t want to further exacerbate the tensions he has with the justices on the right.
And he might not have wanted to send the signal that this court is so fractured on so many cases, where he’s writing alone. So I think that in these areas of the law, we have to take them one by one by one, especially when you talk about John Roberts’ leadership.
First of all, this is a chief who still controls on racial issues. He still controls on religion. And we’re going to talk about, obviously, Makin and Kennedy in a minute. He still controls on campaign finance. He controls on many, many areas of the law. It’s just that on the defining case of his generation, one that we both agree, is probably going to be, over time, still one of the top 10 rulings that people point to in defining this Supreme Court. He was not with the majority.
Now, on that one, I believe that he eventually would have wanted to overturn Roe. It’s just that he did not want to do it on a case. First of all, that question wasn’t even teed up properly. And also, that it was so quick, so quick. After even 2020, when the justices implicitly affirmed Roe in the Louisiana case, that he voted to strike down the Louisiana physician credentialing rule.
ERWIN CHEMERINSKY: And, of course, the difference is in 2020, Justice Ginsburg was still on the court. And then she passed away in September 2020. Amy Coney Barrett is confirmed in October 2020. And that’s what leads to Dobbs. What was your reaction when you read the draft opinion on May 2, besides being surprised by the leak itself?
JOAN BISKUPIC: Earlier in that day, I had been doing reporting to figure out if the chief had been making any progress on some sort of middle ground, on his yes, we’ll uphold 15 weeks, but we’re not going to go further. And when I went home that day on May 2, before I left, I told one of my bosses, I said, I think we can do a story saying that chief isn’t making headway.
But I said then and I even said on the air that night, but there are several more weeks to go. And I will never discount the chief’s persuasive ability. Again, that was another bad– [CHUCKLES] bad mindset on my part when you think of where this term went. But I knew from my own sources, that there were five votes to do what Sam Alito was doing.
So that part didn’t surprise me. It was more the approach, that heavy-handed idea of just discarding precedent, how widely he was sweeping, the tone. Now, he did take out one or two little references, that thing about there’s never been abortion. There’s never been any kind of writing in the Constitution, zero, none. He did take out the zero, none there.
But I was frankly surprised at how bold that document was. I just didn’t think that it would end up ever coming out as a final document.
ERWIN CHEMERINSKY: The language that Roe was egregiously wrong and exceedingly poorly reasoned– I mean, that’s about as harsh a tone as you can get. I wouldn’t think in writing about a former colleague scholarship to say, what they did was egregiously wrong and exceedingly poorly reasoned. And yet very much, here you’ve got the five justices condemning what their colleagues had said.
And it was striking– and I think I wrote this to you in an email– that all five justices had been in the majority in Planned Parenthood versus Casey had been Republican appointees to the Supreme Court. Blackmun by Nixon, Stevens by Ford, O’Connor and Kennedy by Reagan, Souter by the first president Bush. But that didn’t keep them in the harshest language, saying that those precedents were just wrong.
JOAN BISKUPIC: And I do want to comment on the plurality opinion from 1992 in Planned Parenthood versus Casey. That was a very, very difficult decision for Justice O’Connor, Kennedy, and Souter. And Justice O’Connor said from the bench, when that was announced on June 29– I believe it was– in 1992, some of us would have never voted for Roe v. Wade. Some of us still don’t like it.
But we’re not here to dictate the moral rules for everyone, for ourselves. We have to look at the whole country. And I think that those three justices did a lot of soul searching. And I was aware in the Alito draft and then the Alito final opinion, how much those justices and the plurality, whose legacy is still much more present than, let’s say Harry Blackmun is for some of these justices, how much disrespect was shown to them.
And then– this is something that’s typical of Justice Brett Kavanaugh– he then writes a concurrence to say how much he respects those three justices. Well, but you signed on to this whole other thing– [LAUGHS] that doesn’t show any kind of respect for what those justices in the plurality did back in 1992.
ERWIN CHEMERINSKY: I found the Kavanaugh concurrence interesting because he wants to reassure everyone that overruling Roe doesn’t put any other rights in jeopardy. Justice Alito tried to say that in the majority opinion. Then Justice Thomas writes his concurrence and says, yes, we should overrule the earlier decisions that are inconsistent with the approach taken in Dobbs.
Dobbs says the right is protected only if it’s in the text, or it’s part of the original meaning where there’s a long unbroken tradition. And Thomas says, Griswold versus Connecticut, the right to contraception doesn’t fit within that. Lawrence versus Texas, the protected right to engage in private consensual adult same-sex sexual activity doesn’t fit in that. Obergefell versus Hodges doesn’t fit in that.
How much should we give way to the Alito-Kavanaugh reassurance? Or how much should we fear what Thomas says is going to come down the road?
JOAN BISKUPIC: I don’t think it should be reassuring, especially given how much Justice Thomas’s view has become the majority view. Even five years ago, I would have said, they’re never going to overturn Roe v. Wade. The Republicans on the court know that it would be handing the Democratic Party a gift politically, although that certainly remains to be seen here.
I didn’t think that they would want to walk away from decades of precedent. And I also thought that the plurality opinion from 1992 was one that they would feel some loyalty, to some regard, for much more than they gave it. So I don’t think we can say never about anything. Let’s just take Griswold because all of us would think, how could anybody question Griswold at this point, from 1965 on access to contraceptives?
Well, there’s such a large theme in the Dobbs ruling about regard for fetal life. And what if that takes on more weight in certain kinds of contraceptives naturally are going to be viewed with a whole different kind of scrutiny because of this, for starters, and then, on the deeply rooted rights that you talk about having to do with marriage?
And then again, Obergefell, I would say, look at the way everybody is living now. Look at the reliance interest for families who– same-sex couples who have married, who have had children, who are raising families. Look at the reliance interest there. But look at the reliance interest of Roe. So I don’t think anything’s off the table. Bottom line, I don’t think anything is off the table, Erwin.
ERWIN CHEMERINSKY: I think you’re right. And I’ll go to the examples you point to, say, with regard to contraception. I don’t imagine a state’s going to adopt a law like Connecticut had, prohibiting the sale, distribution, and use of all contraceptives. But I do imagine that some states are going to have laws that prohibit types of contraceptions that take effect after conception, like the morning-after pill can or IUDs can.
And then Justice Alito says, when it comes to regulation of abortion, it’s only rational basis test. Will the court regard that as a regulation of abortion? I know that there’s already cases in the lower courts try to get to the Supreme Court vehicle to overrule Obergefell versus Hodges that found a right to marriage equality for gays and lesbians.
Chief Justice Roberts dissented in that case quite vehemently. I think it’s still the only dissent he’s ever read orally from the bench.
JOAN BISKUPIC: That’s true.
ERWIN CHEMERINSKY: Justice Alito wrote a impassioned dissent in that case. Justice Thomas dissented. I think there might be two or three votes to overrule that. So that’s why I raised the question of how sanguine should we be about Justice Alito and Kavanaugh saying, oh, don’t worry, we’re not going to overrule other precedents?
JOAN BISKUPIC: Well, as I say, I don’t think anything’s off the table. Given the tone of where the majority opinions are.
ERWIN CHEMERINSKY: I’ve been trying to think, since Dobbs, about what’s different now compared to before 1973. And there’s things that seem positive in terms of abortion rights and negative. More states in this country will allow abortion than existed prior to 1973. There’s medically-induced abortions that over half of all of the abortions.
On the other hand, I fear that the Republicans and conservatives have so made of abortion their dominant issue. This could be a lot more aggressive prosecution of doctors and even women for having abortions. There’s been much more in effort to adopt ever increasingly restrictive laws that touch on the issue of abortion.
JOAN BISKUPIC: When you think of the wider societal scheme, obviously, women’s rights have progressed so much since the early ’70s. So you have that backdrop. But the political calculation has tainted so much. I know that you’re aware that President Nixon didn’t even want to speak publicly about it in 1973 when it came out.
He had some criticism of it on the old taping system but nothing that he even wanted to enter the public sphere with because it wasn’t politicized. And we know what happened in 1980 when the Moral Majority and the Reagan coalitions first embraced abortion rights as an issue, taking it much further than the Catholic Church had taken it in its opposition.
And it’s been such a salient political issue that it’s hard to believe that the politicians, who have used it, are going to walk away from it. And we know they’re not. We already know they’re not from what they’ve said and what we’ve seen, for example, in Oklahoma with its moment of fertilization legislation.
So I think that there are competing strands here. Medical developments and women’s rights would maybe go in one direction, but the politics in America might yank every one or the other.
ERWIN CHEMERINSKY: There’s so much talk about Dobbs. But I also want to be sure we have a chance to talk about the two religion cases because I think they are also a major sea shift from the court. One, Carson versus Makin involved the state of Maine. There’s parts of Maine that are too rural to support public school systems.
In those areas, the State provides funds for parents to send their children to private secular schools. The money can’t be used for quote, sectarian schools. Maine says that its goal is to make sure that there’s a free secular education for all students.
The Supreme Court, 6 to 3, declares this unconstitutional. Chief Justice Roberts writing for the court saying, whenever the government provides aid for private secular schools, it must provide the aid for religious schools. And then there was Kennedy versus Bremerton School that you mentioned. This involved the high school football Coach Joseph Kennedy.
I’ve rarely seen a case with the majority and the dissent described the facts so differently. But there’s no dispute. It involves a high school football coach who went under the 50-yard line, would engage in silent prayer, would be joined by players from his and the other team sometimes, and then engage in delivering inspirational Christian messages joined by players in the stands.
And the Supreme Court, 6 to 3, said that it violated his free exercise and free speech rights to discipline him for engaging this religious behavior. How do you put these two cases together? What conclusion do you draw from them?
JOAN BISKUPIC: Well, I think, they’re of a piece. And this is an area of the law where the Roberts court has been very consistent, very, very consistent. And you don’t see hesitation on the part of the chief in this area, for sure. And he obviously wrote the majority opinion in the main case, the Makin case.
And I think that this is only going to keep the justices moving ahead to lower the wall of separation between church and state, allow more religion in public places that would we allow but then also require more public money for religious programs, specifically religious education.
A couple of things about that– the chief, back in 2017, in the Trinity Lutheran case that involved that the playground resurfacing at Trinity Lutheran Church, he made a big deal about the difference between status or character discrimination against a religious entity and use discrimination. But in the main case, he merged those. And he said, I know, even though there was a distinction, I didn’t say we were going to keep to it.
And Justice Breyer, in his dissent, asked, what happens when may becomes must, when public funds must be used for religious education? Does that transformation mean that a school district that pays for public schools must pay an equivalent funds to parents who want to send their kids to religious schools? What about vouchers?
All these questions are wide open now, and this is one area where the Court, I felt, was always in sync with the Trump administration. It recalls, of course, Betsy DeVos, who was Secretary of Education, who was really pushing this kind of thing.
So I would say there’s a larger picture here that favors the Free Exercise Clause at the expense of the Establishment Clause. But it has really a lot of real-world consequences for education in America.
ERWIN CHEMERINSKY: I want to highlight two things you say. One is the tremendous shift in the law. For decades, the question was, when may the government give aid to religious schools without that violating the Establishment Clause? There’s a case about, can the government give audiovisual equipment? Can the government invite sign language interpreters?
Now, the question is, when must the government give aid where it violates the Free Exercise of religion? And Trinity Lutheran had a footnote by Chief Justice Roberts, footnote three, that said, well, this is just about aid for playgrounds– but not at all. Now, it seems the Court is saying, whenever the government provides aid for private secular purposes, it must provide it to religious institutions. And that’s so dramatic.
The other thing that you say that seems so important is the protection of free exercise and really ignoring or reading out of the Constitution the Establishment Clause. That was Justice Breyer’s point in his dissent in Carson versus Makin and Justice Sotomayor’s point in dissent in Kennedy versus Bremerton Schools.
JOAN BISKUPIC: Yeah. And one other thing I want to mention about Justice Sotomayor’s dissent that I think it’s really important here, the competing versions of facts that you noted and the fact that she included pictures. She wanted to say, look, Justice Gorsuch is portraying the situation so wrong that I’m going to bring in some documentary evidence here.
And I think that case was so spun in various ways and not only by one side. I mean, we just had a lot of competing versions of what was going on there. But that was one where they had wanted to take that up. What was like? Three years ago when the case first came to the court from the Ninth Circuit, that Justice Alito was very suspicious about what was happening with the Bremerton School District.
But this is a really big deal for these school officials who are trying to just– [LAUGHS] maintain some order at these games and in school facilities. And you have other coaches being run off. And problems with school instructors now feeling like they’re under pressure. So as I said, it’s a very big deal on the ground in America.
ERWIN CHEMERINSKY: Oh, I think, you’re absolutely right. Since the early 1960s, the Supreme Court had so strictly prohibited prayer of any sort in schools. In 1985, the court struck down an Alabama law that said that each school must begin every day with a moment of silent prayer. In 1992, the court said, there can’t be clergy-delivered prayers at public school graduations.
In 2000, the court said, there can’t be student-delivered prayers at high school football games. The court’s seeing the need to close that door. Now, the Supreme Court, the way I read it, says, so long as– I’ll use Justice Alito’s words from a concurring opinion– it’s a lull in the activities, then there can be prayer.
So I would think that a teacher before school, at recess or at lunch, or after school with just a moment when students have their heads down on the desk can engage in prayer, in which the discourse says, if the students want to join the teacher, that doesn’t offend the Constitution at all.
I had not thought of it until you just said this, but this would seem to make it so difficult for school officials to know where that line is to be drawn.
JOAN BISKUPIC: Yes. And one of the things I want to say is that prayer, generally, is good. Prayer is OK but not in the context of public entities and the coercion factor. And I was also struck by the fact that they minimize the idea of coercion of these young kids who doesn’t want to get playing time and would want to do what the coach would do.
Who doesn’t want to get an A in chemistry and would want to pray? If the chemistry teacher says, I’m just going to take a little brief moment for my own private prayer over this very successful little lab experiment, I would think a lot of students could easily be coerced in these situations and feel awfully left out if they happen to be of different faiths.
ERWIN CHEMERINSKY: It’s really important because the conservative view of the Establishment Clause is it prohibits government coercion. And here, for example, there was a parent who complained to the school that his son was an atheist, he felt pressure to participate in the prayer in order to get playing time. Yet, Justice Gorsuch says, we don’t really what that complaint was.
I think Gorsuch said, quote, it’s hearsay. Maybe it was complaints about an earlier practice of prayers in the locker room and completely minimizes the coercion. And I don’t know how you can prove coercion in a way that would satisfy Justice Gorsuch and the conservatives.
JOAN BISKUPIC: Yeah. But I think, we’ll probably– because of both these cases, the Coach Kennedy one and the main decision on funding, I think we’re going to just keep having more and more challenges come up to the Supreme Court.
ERWIN CHEMERINSKY: I know we’ve only got about five minutes left. I want to talk about two other things. One concerns the legitimacy of the Supreme Court. There was a Gallup poll last fall that showed the Court to have its lowest public approval ratings in history– 40% approval, 53% disapproval. There’s a Gallup poll in June before Dobbs that showed that the Supreme Court had public confidence but only 25% of the public.
I saw a CNN poll that almost 2/3 of the public disapproved of the Supreme Court’s decision in Dobbs. Do you have a thought about what’s this going to mean for the legitimacy of the court, and will it matter?
JOAN BISKUPIC: Yeah. I think that that second question is especially relevant and tough to answer. They’re all appointed for life. They’re not going anywhere. And they’re all young. They’re young as we’ve talked before. The three Trump appointees are still in their 50s. Justice Clarence Thomas is already getting near records for his tenure of 30 years. And he’s only 74. And Sam Alito is only 72. And the chief is only 67.
So nobody’s going anywhere quickly except for Stephen Breyer, and he’s gone. So there’s nothing– I don’t think– what will make them change? What will make them change? And there’s a whole group of people in the country, remember, Erwin, who don’t want them to change, who are happy with this.
So I think, the chief has been most anxious about the Court’s public stature and had always talked about how nine are not politicians in robes. And I’ve quoted him so many times saying, just look at our rulings, just look at our rulings. Well, if you look at their rulings, that adds more evidence, the idea that they are politically motivated or if not politically motivated, inclined because of the politics.
Justice Sotomayor had that very harsh line during the oral arguments in the abortion case about, can this court survive the stench? And the reason she said that was that she was quoting Mississippi officials, I believe. Yeah, I’m pretty sure it was the Mississippi official saying, look, we’ve got a court that’s really going to welcome these laws.
This is a court because of who’s now on it, though want to cut back on Roe v. Wade, because these are Trump appointees, these are hard right Republican appointees, well, even if the chief and the other justices want to say, we’re not voting based on our politics, the signal to the public is that they’re so open for business based on politics. And you just cannot deny that the one thing that has changed, that got us to this court is the personnel, not the law, not President. It’s the personnel.
ERWIN CHEMERINSKY: No one disputes that had Hillary Clinton won in 2016. And if she picked two justices, Roe would be secure for decades. None of the cases we’ve talked about would have come out the same way. I wonder if that matters in any way to the five most conservative justices on the court. You’ve always have how Roberts cares about the institutional legitimacy. I wonder their views on that.
And also, they live in their bubble. They’re heroes right now within their bubble. Conservatives are jubilant. They have what they’ve wanted for the last 50 years. Do you think this is going to inhibit them in any way, especially with the kind of cases on the docket for next term?
JOAN BISKUPIC: I don’t. And I think, exactly for two of those reasons. One is that the people, who they are closest to, are very pleased with these rulings. I think that’s an important thing to keep in mind. This is a court that’s pleasing a whole chunk of people in America. And they are associating with those people in a lot of ways.
And then, I think that the embattlement around the justices, the idea that they feel that they’re under siege from– as they refer to the media leak, they refer to the legal elite. And they all come from the legal elite, for goodness sakes. [LAUGHS] But they see themselves as somehow on the down side.
And I think that we saw that reflected in some of the comments that the justices made in speeches at the start of the session, when Justice Amy Coney Barrett said to the audience in Louisville, I’m trying to convince you that we’re not just a group of partisan hacks. And I thought that was a defensive comment to be sure.
Justice Alito, when he was speaking at Notre Dame, talked about how our critics just see us as sneaky and snide because of what we do on our emergency docket, the so-called shadow docket. So I think that they feel that they, themselves, are on the defensive.
I don’t think that they’re open to seeing what some of the– I was going to say, they’re not open to some of the advocacy that’s going to come before them and that has recently come before them. I think there’s a real problem with advocacy before the Supreme Court.
When a lawyer stands at the lectern, it used to be that she would believe that she had an open-minded audience. I don’t know if that’s going to change. If some lawyers are just going to think, they’re just not listening. They’re off on an agenda. And I think that’s a risk.
ERWIN CHEMERINSKY: Oh, what’s different as having argued in the court, I always, in those cases, thought there was a justice or two that was in play. I knew there was some I wasn’t going to get. I knew there was some I was likely to get. But there were justices who were there, who could be the swing votes. Now, it’s much harder to understand, in certainly most divisive cases, who’s going to be the swing votes.
One last question to tie it back to the focus of this podcast. What do we teach law students? The very first episode of this podcast is a conversation with Dahlia Lithwick, Melissa Murray, and Jeffrey Abramson about, how do we teach about the court at a time when our students are so discouraged?
Now, that was several months ago before the decisions that we’ve talked about today. What do you think? I mean, I’m going to teach constitutional law next year, both to undergraduates and law students. How do we approach the Supreme Court and the Constitution now in light of these decisions?
JOAN BISKUPIC: Well, that’s a tough one for me. I have heard law professor friends just expressing so much angst over how they will go forward and teach. I’ll tell you the best thing I can do is I can refer to something that Justice Sotomayor said because she’s right there. She’s right in the middle of it all, and she’s on the losing side so much.
And she was talking about how she goes forward, that she has to believe that she can keep making a difference some way or another. And she said, if she were just to relegate herself to bystanders’ status, she’d just be waiting for a bus to hit her. And I think that someone in her position is probably as discouraged as some of the law professors that you’re referring to.
But I think, again, it’s easy for me to say as an outsider to academia, as an outsider to the court, that people just have to keep putting one foot in front of her the other and hope that in the end, there will be justice.
One line that I often recall– and again, I was recalling this line even before this term. Chief Justice John Roberts at the end of– I think it was 2019 in his year end report. He said, just remember, justice is not inevitable. That’s a line that resonated then and certainly resonates now.
ERWIN CHEMERINSKY: It’s a perfect way to end this conversation. Joan, I am so grateful to you for doing this. Joan is the legal analyst for CNN covering the Supreme Court. She’s the author of many books and will have a new wonderful book coming out in early 2023 that really provides a group portrait of these justices and what they’re meaning for constitutional law in the country.
I hope you’ve enjoyed this episode of More Just. Be sure to subscribe wherever you get your podcasts. If you have a question about the law or topic you’ll let us cover, please send us an email with your thoughts. Until next time. I’m Berkeley Law Dean. Erwin Chemerinsky.
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