Tuesday, July 2, 2013
Last week, the Supreme Court wrapped up its eighth term under Chief Justice John Roberts, in which it handed down historic opinions on gay marriage, the Voting Rights Act and genetic patenting. Adam Liptak, who covers the court for The New York Times, says that in the years Roberts has led the court, the chief justice's patient and methodical approach has allowed him to establish a robustly conservative record.
"I see him planting seeds in cases where he may get a large majority, including the court's liberal wing, to sign on to short-term victories today that could result [in] long-term losses for the left tomorrow," Liptak tells Fresh Air's Terry Gross.
The most notable example of this happened just last week, Liptak says. Drawing on language all eight justices had agreed to in a Voting Rights Act case four years ago, Roberts led the court in gutting a key section of the 1965 law, which addressed voting discrimination. The decision struck down a formula that was used to determine which jurisdictions needed federal approval before changing their voting rules. That freed nine states, mostly in the South, from federal oversight and ostensibly returned the issue to Congress.
On July 9, The New York Times will publish an e-book by Liptak called To Have and Uphold: The Supreme Court and the Battle for Same-Sex Marriage.
On Justice Anthony Kennedy's legacy
"He is now the justice ... who has created the gay-rights movement in the American courts. He was the author of all three major gay-rights decisions over the years, including one exactly 10 years before the case striking down the Defense of Marriage Act. Lawrence v. Texas 10 years ago struck down a Texas law making gay sex a crime. Now Justice Kennedy has written a decision striking down a federal law that denied benefits to married same-sex couples. He will be remembered in history as a pathbreaking justice in the area of gay rights. He's also done substantial work in limiting the death penalty. Again, a fairly liberal project, but he was also the author of Citizens United, the much-criticized decision allowing unlimited corporate spending in elections."
On the Roberts court's civil rights opinions
"This is a court that's committed to a version of equality, but maybe not the version that everyone would sign on to. It's a version that's fairly mechanical and formal. It says the government should treat everybody the same: put aside history; put aside contemporary circumstances; put aside context. And that means that in affirmative action the court is more inclined to say, 'Listen, treat the white kid like you treat the black kid in deciding who gets into college. Treat the Southern state like you treat the Northern state, notwithstanding the history of discrimination in voting in the South ... and treat same-sex couples and opposite-sex couples the same.' So there is this kind of through line of a version of equality."
On Justice Clarence Thomas writing the opinion for the Myriad Genetics gene-patenting case
"Justice Thomas, because he's so idiosyncratic, very seldom gets assigned a major case, and that may be the biggest case he ever wrote. And it was possible for him to write it because it was on an area where his views on originalism and so on didn't really come into play and he could write for a majority. And there's a funny little concurrence from Justice Alito saying, 'Sounds right to me, but I don't really understand the science, so I'm telling you the general result sounds correct, but the science may be off.' "
On the court's pro-business decisions
"This court is the most pro-business court since at least the Second World War, and it routinely votes in favor of business in cases on arbitration, class actions, employment discrimination, injuries from dangerous drugs. The business community, the Chamber of Commerce, loves this court. If you look at all of the justices that have served in that period of time since the Second World War, the two most likely to vote in favor of business are the two justices appointed by President George W. Bush: Justice Alito and Chief Justice Roberts."
On the language in the DOMA opinion and the influence it could have on the future of gay issues in the courts
"So this decision delivers benefits to people married in the 13 states that now allow same-sex marriage. It doesn't do anything in the other states, but it has language in it that really resonates. It says discriminating against gay couples that want to marry demeans them and humiliates their children, and that's a punch in the gut. That's language that Justice Kennedy wrote from the heart, and it's in keeping with a trend in public opinion. So I can certainly imagine, in more liberal states, judges adopting just that language to strike down bans on same-sex marriage."
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