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Key Takeaways From Supreme Court Term

Jul 10, 2020
Originally published on July 10, 2020 8:18 pm
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MARY LOUISE KELLY, HOST:

The Supreme Court wrapped up what turned out to be an important term yesterday. The last day was devoted to a rejection of the argument put forward by President Trump's legal team - that a president should enjoy absolute immunity from investigations, whether by state grand juries or Congress. The court ruled on lots of other big subjects with big consequences this term, including abortion, religion, immigration, LGBTQ and Native American rights.

Well, here to talk us through what they will be taking away from this term, I am joined now by NPR legal affairs correspondent Nina Totenberg and by Tom Goldstein, an attorney who's argued before the Supreme Court and is publisher of SCOTUSblog. So with that, let me welcome you both and, Nina, hand it over to you first - your top takeaways from this term.

NINA TOTENBERG, BYLINE: The biggest takeaway is that this chief justice has more control of any chief since Charles Evans Hughes in the 1930s. Chief Justice Roberts was in the majority an amazing 97% of the time. And that means that he's assigned which justices write the majority opinions. And that's an important thing because he can pick somebody who will write broadly or somebody who will write narrowly. He's the first justice who controls the narrative because he's also the chief justice.

KELLY: And, Tom, your top takeaway.

TOM GOLDSTEIN: I think it's that the chief justice also agreed with the more liberal justices in several really big cases just to not do very much, that they were very happy to have the term not be momentous on a lot of those questions. There were big exceptions for LGBTQ rights and employment discrimination. And on the other hand, the conservatives must be really happy with rulings on religious liberty for individuals and for institutions like religious schools.

KELLY: Although there was plenty this term for conservatives not to be happy about. And I think that maybe surprised a lot of people because Donald Trump managed to get two of his nominees onto the court. A lot of people were watching and thinking we'd be hearing about all these major 5-4 rulings. We didn't really see that. Nina, why not?

TOTENBERG: Mainly because the chief justice moved with the liberals to create in some key cases a sort of limited center. And the conservatives didn't agree with each other. There were 16 separate opinions in those 5-4 and 6-3 cases that were filed by the conservatives. And when they were in the majority, they didn't always agree with the reasoning on the outcome. And when they were in dissent, they were writing solo dissents all over the place. And they were taking hundreds and hundreds of pages to do it.

GOLDSTEIN: Well, the left in the Supreme Court is on defense, and they know it. They are just trying to have the law not get worse, and so they stick together. So all four of the more liberal justices voted together at least 80% of the time. The conservatives are on offense but disagree on how fast they can go and where they should go. And so they don't have anything like that level of agreement. As Nina suggested, the two most conservative justices, Justice Alito and Justice Thomas, wrote 500 separate pages of concurring and dissenting opinions.

KELLY: So let me turn us to the substance of what they ruled on. And was there a decision that we might be talking about years or decades to come? Did we get a ruling of the stature and longevity of, say, a Roe v. Wade or a Brown v. Board of Education? Tom.

GOLDSTEIN: We probably did when it comes to the presidential powers cases, the Trump tax cases. But in general, it was a very incremental term because of the chief justice's agreement with the left. So the court agreed to stick narrowly to a prior precedent on abortion rights without talking about where Roe v. Wade is going. It took a pass on a major gun rights case. It rejected the Trump administration's reasons for eliminating the DACA immigration program but gave the administration a further chance. And even on the tax return cases, it rejected the Trump administration's broadest arguments but left open the real possibility that House Democrats are going to get very, very little of the president's financial records.

KELLY: Nina, you want to jump in?

TOTENBERG: The church-state area is the one area where they made huge inroads for the conservative agenda and accomplished, I think, most of what the conservative evangelicals and Catholics wanted in the area of church-state relations. They moved dramatically to accommodate religion rather than sticking with the high wall of separation of church and state that had been the standard operating procedure for a very long time.

KELLY: So we all head out for summer break now or at least the justices and the people who cover them. You two, I guess, will get a few weeks of rest now I hope. But how does this set us up going forward on the very biggest issues in front of this country? I'm thinking about abortion. I'm thinking about the election that's looming and how President Trump and Joe Biden might use it. Nina.

TOTENBERG: Well, Joe Biden will undoubtedly try to use the court and the potential for more appointments as an issue. But Democrats just don't vote on this issue, not yet - perhaps they should, but they haven't in the past.

KELLY: Tom.

TOTENBERG: Yeah. I think that one of the ways that Chief Justice Roberts is so savvy is he has kept the Supreme Court out of the political picture, out of the election. It'll be very hard for the left to run against the Supreme Court. But conservatives have always, always, always recognized the importance of it and how much they can accomplish on issues like abortion gun and religion. So I expect the president to say, I need more appointments, you need evangelicals to turn out and vote for me.

KELLY: Attorney Tom Goldstein, who has argued many times before the Supreme Court, and NPR legal affairs correspondent Nina Totenberg, who has covered the court for many years. Thanks so much to both of you.

GOLDSTEIN: Thanks.

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