Preet Bharara:

From Cafe and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Adam Liptak:

Once we had Justice Ginsburg replaced by Justice Barrett and we have this six three super majority, you have a six three decision on guns. You have a six three decision on religion. You have a six three decision on climate change, a six three decision on abortion and that kind of predictability is less fun to cover.

Preet Bharara:

That’s Adam Liptak, he’s the Supreme Court correspondent at the New York Times and one of the most respected legal journalists in the country. Liptak joins me to discuss some of the key issues before the court affirmative action, LGBTQ+ rights, and the so-called independent state legislature theory. But we also have a wide ranging conversation about the craft of legal reporting, how the court has changed in recent years and Liptak’s unusual journey to becoming a reporter. That’s coming up. Stay tuned.

QUESTION & ANSWER:

Now, let’s get to your questions. This question comes in an email from Howard. Howard writes, the January 6th committee seems likely to be making criminal referrals. Should that come to pass, what weight are those referrals likely to carry with the DOJ investigation relative to the findings and recommendations of the special counsel? Well, that’s a common question I’ve been getting because people are wondering what it really means and what the impact is, just like you’re wondering Howard.

To my mind, January 6th committee, referrals of a criminal nature to the Department of Justice would carry somewhere between no weight and negative weight. Why do I say that? Well, in part because there’s already a special counsel in place. The investigation with respect to the conduct of President Trump and others surrounding January 6th is already underway. We know there had been subpoenas issued. We know there’s a grand jury paneled. We know that communications have been obtained. We know there’s lots and lots of activity going on with respect to the particular thing that that committee was looking at and might make a referral about. So no matter what you think about whether or not the committee’s work in the first place, go to the Justice Department into opening an investigation and taking it seriously and acting more aggressively. At this point, they are doing so. At this point, they have a lot of investigation underway and I don’t see what effect a criminal referral from the committee would have on an ongoing open, widely acknowledged investigation.

So that’s why I think it really has no weight. The possibility that it has some negative weight, I guess could be argued, from the idea that the Department of Justice, if it’s already doing something that they’re worried is going to be politicized and weaponized and criticized as political, may not want to look like they’re taking advice or counsel from a political body, which by definition the January 6th committee is.

So why would they do it? I think that the committee for its part is making a symbolic referral. They want to show that they have made a determination to their constituents and the voters and the public at large and for I guess posterity for the body of the Congress that they came to a conclusion that crimes were committed by Donald Trump and perhaps others. So I think this is a thing that they’re going to do symbolically for themselves and for their own body and understand because they’re bright people that it doesn’t have much of an effect on the Department of Justice.

Don:

Hey Preet. This is Don Wiggins from Spotswood, New Jersey. Been thinking about something lately with all the ongoing investigations and then potential indictments and trials and convictions and sentencings for the former president. I was wondering what special considerations a prosecutor might have in this sort of a case that would not be present in a case involving, for lack of a better term, an ordinary person. What do they need to be thinking about that they would not ordinarily be thinking about? Thanks so much. Love the show. Bye.

Preet Bharara:

Well, Don, thank you for your question and it’s a very good one and I’ll answer it I guess in this way. In an ideal world, and as a general matter, prosecutors would, I think, like to say that they apply the same kind of caution and discretion and wisdom and deliberation to every single case that they bring. And they think hard about bringing charges before they bring them. And there’s a process within each office for determining whether or not you bring them. And if the case is meritorious and righteous, you bring it. Whether it’s a case against someone that is not famous or a case against someone who is famous or was powerful or is powerful, there should be no difference in the way the government proceeds, whether someone is the former President of the United States, as a private citizen or, as you put it, an ordinary person. But I think in practice there’s probably not necessarily a special consideration, but in practice there are probably some other things that go on when someone is of the nature of a former President of the United States.

Before bringing a high profile case, you might imagine because the world is going to be watching, everyone is going to be criticizing, everyone is going to be scrutinizing not just the court, not just a jury ultimately, but also the press and the public and people on both sides of the political aisle. They’ll all be watching every single thing to make sure that all the T’s are crossed and all the I’s are dotted. And in those circumstances, as you might imagine, behind the scenes everything that’s done in a case like that is probably more fly specked is probably more deliberated upon, is probably looked at more carefully by more layers of review, both within the US attorney’s office or within the DA’s office all the way up to and including the US attorney himself or herself and probably the attorney general as well because so many people will be watching and because the stakes are so high.

Prosecutor’s offices, government agencies like any other kind of institution are mindful of reputational damage, and they know that if the whole world is watching and the stakes are so high that they can’t afford to make mistakes. Do they make mistakes sometimes in high profile cases? Yeah, of course. But they want to minimize that possibility because they understand that faith in their abilities and faith in their conduct is incredibly important, particularly in a polarized country as we are now.

The other thing that might happen because a case like that will receive such scrutiny and probably automatically criticism from one side of the aisle, is that maybe you do a little bit more explaining in the criminal complaint. The indictments, federal indictments at least are not required to have a lot of facts laid out in the indictment. The defendant gets that in discovery, you prove that at trial. It doesn’t have to be in the public document. That’s why every once in a while they’ll call something a speaking indictment, which is a subspecies of indictment in which the prosecutors lay out a lot more facts than they’re required to under the law.

I think it’s probably true when you’re bringing a case against a high profile person, whether it’s a former president or someone else. That at the outset when you have the first opportunity to tell the world about what your case is, you include more facts, more recitations, more details so that you can convince as many people as possible that you brought a meritorious case.

And then of course, if we’re talking about Donald Trump, I guess consideration has to be paid to the possibility that there’ll be some special claims that he can make uniquely unlike other defendants, whether it’s executive privilege or something else. I think for the most part that’s been settled in favor of the government side. But that I guess would be one species of special consideration given the prior status of that particular defendant.

This question comes in an email from Tom who says, Hi and thanks for an informative and lively podcast. Thanks, Tom. Here’s my question. Can anybody appeal any verdict? It seems that every time we get close to seeing some justice done, including guilty verdicts, rulings on subpoenas and other judicial pronouncements, the next sentence is, but they’re going to appeal this. The time appeals take, the way the sense that appealing everything is possible, delaying justice possibly forever, is truly troubling and takes away my own confidence in the justice system. Thanks for any thoughts on that and I’ll stay tuned.

Well Tom, you raise an interesting question. The short answer to your question, can anybody appeal any verdict? The answer is no. Every criminal defendant can certainly appeal the verdict, and I think that’s important and it’s a matter of right, because if you’re going to have the prospect of separating someone from their liberty or putting on their permanent record a criminal conviction, you want to afford that person every opportunity to argue that it was not done properly and afford every bit of due process to overturn a verdict that may not have been proper. We do that in the system precisely because justice is important. The courts and our system have to balance, delay and promptness on the one hand versus justice and getting it right on the other hand. And yes, appeals cause some delay, but often it’s the case not unduly.

Who cannot appeal a verdict? Well, the prosecutors cannot if the verdict is an acquittal because of the double jeopardy principle. Also in most civil matters, whether you’re the plaintiff or the defendant, after the trial court has made a ruling and there’s been a verdict by a jury or by the court you can appeal as a matter of right as well. I understand that that delay can be frustrating, but it’s that delay sometimes that allows justice to be done and injustice to be righted.

We’ll be right back with my conversation with Adam Liptak.

THE INTERVIEW:

Before he became the Supreme Court correspondent for the New York Times, Adam Liptak was a practicing lawyer. In fact, when Liptak first joined the newsroom, he said the experience was one of pure terror. Adam Liptak, welcome to the show.

Adam Liptak:

It’s nice to be here.

Preet Bharara:

It’s great to have you. So can begin the interview by talking about your career arc. Is that all right?

Adam Liptak:

Sure.

Preet Bharara:

So you are, as one might say, began your career after graduating from law school, and forgive the term, as a proper lawyer. You practiced law, you were at Cahill Gordon, same firm my brother went to after law school, and you actually practiced law then at some point. You went to the New York Times as a lawyer and you represented the times in various matters. And then a couple of decades ago you made the switch from lawyer to person covering the law, from lawyer to journalist. What were you thinking?

Adam Liptak:

Yeah, I think the proper way to do it is to be a journalist first and then to get a real job as a lawyer, and I did it in the opposite direction. I think I had always wanted to be a journalist. I had worked as a copy boy at the New York Times between college and law school. I worked my first summer of law school in the corporate legal department of the New York Times. And I had this sense that I wanted to be a journalist, but I didn’t want to pay my dues. I didn’t want to start at the Kansas City Star and work my way up to the Boston Globe and hope someone would notice me from the New York Times and then get a good beat at the New York Times.

So without really thinking it through, I took a circuitous way around, continued to write even while I was a lawyer first at the firm and then in-house. I did enough of that to come to the attention of the editor of the New York Times who made what struck me as an insane idea. I’d been basically a libel lawyer for 10 years. Why don’t I come down to the newsroom and be the national legal correspondent of the Times, a job which I was wholly unqualified for.

Learning the rudiments of journalism on the national desk of the Times is not ideal. And for about six months it was pure terror, I didn’t have any sources. They’d say give us 800 words on some court decision and I had no sense of what 800 words was or how to fill up that space, I’d write 600 words and say, what do I do now? Now I know you just fill a couple more quotes from the opinion. But I gradually got the hang of it. It was an advantage of course to have not only a legal education, but substantial law practice experience. So that helps.

And then once you get the hang of the rudiments of the craft, it turned out to be a pretty good combination. I started writing a column on legal affairs called Sidebar. And then after covering the law generally for six or seven years on the national desk in New York, which was a great job where I really got to pick my spots and travel the land and draw attention to under covered areas of the law, legal disputes, maybe occasionally helped shed some light on injustice. Linda Greenhouse, the great Supreme Court reporter who’d covered the court for 30 years decides to retire. And that was bad news for me because I didn’t want to follow her. I didn’t want to move to Washington and I didn’t really want to cover cases that I wasn’t finding, but cases that nine people in robes were picking out. But notwithstanding all those hesitations I couldn’t figure out a way to turn down what may be the best job in American legal journalism. So 14 years ago I agreed to take this job on and I’ve been covering the Supreme Court ever since.

Preet Bharara:

So you have that background, which I presume is very, very helpful. There are people who cover the Supreme Court and other legal beats without having been to law school, much less having practiced law. Do you think you have an advantage over those folks or do they in some ways have an advantage by having some detachment from the profession? How do you think about that?

Adam Liptak:

So that’s an excellent question in both parts are very true. I think you do start out with a substantial advantage. There may be 25 of us who cover the court more or less full time, I guess half of us have law degrees. As far as I know, only Amy Howe at SCOTUSblog and I have substantial legal practice and it helps. Both things help. The legal education helps you understand the legal concept and the practice experience helps you understand the texture and dynamics of actual litigations, which doesn’t always show up in the opinions. At the same time, I’m probably more prone to jargon. Even now I’m probably more prone to not quite understanding what’s common knowledge and what’s not. Whereas reporters who are just good solid general assignment reporters are a proxy for the reader and may in some instances do a better job conveying what’s really going on.

The other thing I’d say is that if you do the job long enough, Linda did it for 30 years, and all you do is read briefs and go to arguments and cover decisions, you’re basically going to law school 10 times in a row. I mean, you learn a lot of law covering the Supreme Court.

Preet Bharara:

Is one of the advantages you have, and tell me if this is right or wrong, with sources? Do sources accord you and afford you more respect when they’re lawyers and another talking to a fellow lawyer? Or does that not really figure into it?

Adam Liptak:

I think it does figure into it. It helps a lot at first and at first when I’d call people up I’d make a point of telling them I was a lawyer. I don’t do that anymore. I’m hopeful that I’ve established a reputation with or without that particular credential as someone who knows what he’s talking about. But I do think it puts people at ease that they can, first of all, talk to you as a lawyer. That you can say a summary in judgment motion and you don’t have to back up and spend a paragraph explaining to me what that is. I think there’s some weariness on the parts of some people to talk to reporters.

The other thing I should say is putting all of that aside, it helps to work for the New York Times. People tend to return calls from the New York Times.

Preet Bharara:

Are there any parallels? I suppose there are many, but can you describe what the parallels are and what the differences are between working at the Times as a libel lawyer versus working at the Times as a legal journalist?

Adam Liptak:

Well, when you’re working as a lawyer you’re advancing the interests of your clients who are typically reporters and you’re trying to help them win a libel lawsuit. You’re trying to help them not respond to a subpoena. You’re trying to help them get access to information through court motions or FOIA requests. And that’s good and valuable work, but you’re sort of not a principal. And being a reporter isn’t exactly being a principal either, but you have a little more autonomy and you have a lot more immediate impact. As you know Preet, litigation is interesting and satisfying but it takes forever. Writing a newspaper article is something you do in an hour and a half and then it’s posted on the website of the New York Times and it’s there for the world to see and to criticize. But in any event, you sort of have instant gratification.

Preet Bharara:

You said a couple minutes ago that covering the Supreme Court full-time is the best job in legal journalism. What makes it so?

Adam Liptak:

I’m not sure what I said, but I might have said most prestigious job in legal journalism. There are a lot of great jobs in legal journalism. I find covering the court very satisfying because I’m interested intellectually in the actual work of the court and actual legal doctrines, and that is not mostly what people care about the court for. Particularly these days when the court has been so aggressive in some of its moves, that I have to remind myself that, you want to cover the arguments and you want to cover the decisions but you also have to bring a broader context to it when we have a court in transition the way it is today.

Preet Bharara:

Does it ever get boring? Because there are obviously personnel changes from time to time, but years go by with the same static court. That’s not dull to you ever?

Adam Liptak:

In truth, I haven’t really experienced that. I started covering the court in ’08, and that was right about the time when we started having a quick succession change at the court. So since I’ve started everyone but the Chief Justice and Justice Alito and Thomas, all the other positions have switched. I don’t actually care that much about new justices as such. I mean sometimes they make a difference, but mostly they’re one for one ideological swaps. The justices who’ve been around for a while, when Justice Scalia was on the bench for a long time, he was maybe more fun to cover than when he joined the court because he had a very good sense of what he was up to.

The main change I would identify at the court, and this is quite recent, is that when I started, it was the last days… Well, for almost all my time in covering the Supreme Court it was a five four court with someone in the middle who would lean right, Justice Kennedy, but surprise you. And in major cases on abortion, gay rights, affirmative action, he would occasionally swing left and you wouldn’t know for sure how a case was going to come out. And then after Kennedy left, the chief justice was basically in that role. That kind of court, which was unpredictable, was more fun to cover for that reason, but also more fun to cover because it seemed more like a court. Where you didn’t have the moment they took the case, have this baked in expectation that it was going to be a six three decision. But once we had Justice Ginsburg replaced by Justice Barrett and we have this six three super majority, you now have a court which is predictable and therefore less fun to cover. So at the end of the last term, you have a six three decision on guns. You have a six three decision on religion. You have a six three decision on climate change. You have basically, although the chief was in a slightly different position, a six three decision on abortion. That kind of predictability is less fun to cover.

Preet Bharara:

Okay, so I’m going to ask you a question, you have to be honest. Does that kind of predictability allow you sometimes to write your stories in advance?

Adam Liptak:

Sure. But the old kind of unpredictability didn’t stop me from writing stories in advance. I just write more of them in advance.

Preet Bharara:

I see. Well, that’s kind of helpful.

Adam Liptak:

You have no choice. I mean, in the internet era, when I started covering the court, I said, stupidly, well, I’ll tell you one thing I’ll never write about a decision until I’ve read it. And that gradually and then not so gradually became completely unworkable. Now literally within minutes of a major decision landing, I will scan it just long enough to know who won and who lost, maybe long enough to put in a vote count and then post what is essentially a pre-written story on the web and only then maybe go back and add a couple quotes and only then sit down and spend an hour, which is what it takes to, I mean, a Supreme Court decision is often 100 pages long and closely reasoned-

Preet Bharara:

Takes me more than an hour. I’ve read many, takes me a lot more than an hour sometimes.

Adam Liptak:

Properly done… But to do even a rudimentary understanding of the architecture of the decision and where it’s moving, the doctrine and how the concurrences and dissents agree and don’t, it takes some real work. And you have to do that after you’ve put up a first take, which is not ideal.

Preet Bharara:

And we saw that happen, very deliberate debate and discourse about Bush v Gore. People were running from the courthouse-

Adam Liptak:

On TV

Preet Bharara:

… To the steps. And that was a complicated decision.

Adam Liptak:

And that was a decision also which didn’t even contain, you’ll know what this means Preet but I’ll explain it for the listeners, the court has a syllabus at the beginning, a kind of summary, a quite dense summary, but at least at a minimum it lays out the vote count and who joined what part of which decision? Bush v. Gore didn’t even have that and I think it came out at 11:00 or midnight it was a tough day for people. Luckily I was not yet covering the court.

Preet Bharara:

This may be an odd and bizarre and morbid question, but you were talking about pre-written work and I was at a function recently and there was a journalist there who was asking me questions about somebody because she was responsible for writing for a major publication, the obituary. And I think many people know, but maybe not everyone, that for prominent people there are pre-written obituaries and that’s why they can come out 1,000, 2,000 words or longer. If you can answer this question, have you written any of the obituaries for the current Supreme Court Justices?

Adam Liptak:

Yeah. I don’t think that’s a state secret. We have thousands of obituaries ready to go. When I think only one advanced obituary of mine has been published out of Justice Scalia, and that was a summer of work. It was 5 or 6,000 words long. You couldn’t possibly write that from a standing start, so you have to be ready. I guess I’m more ready on some of the older justices and the retiring justices, but advanced obituaries are part of what major newspapers do.

Preet Bharara:

Is that weird personally to put yourself in the mindset of someone who is speaking about a person as dead though they’re still alive or you’re a pro and you just do it?

Adam Liptak:

It probably ought to be. It probably is a character flaw-

Preet Bharara:

It’s not for you.

Adam Liptak:

Probably a character flaw of mine, but just seems like routine words.

Preet Bharara:

I don’t know. I’m just fascinated by this. How far in advance of Scalia’s actual death did you do a draft of his obit?

Adam Liptak:

I think it had been in the can for three years, long enough that I think I freshened it up once.

Preet Bharara:

Did you freshen up to lead paragraph?

Adam Liptak:

I don’t remember, but my guess is no.

Preet Bharara:

And then along the way, and I’ll move on to something less morbid, so for example, if there’s an obituary of Justice Alito and the Dobbs decision comes down, does someone go back into that draft and change maybe the opening and other paragraphs because the arc of that person’s jurisprudential life has changed significantly?

Adam Liptak:

Hypothetically yes, certainly should.

Preet Bharara:

I’m going to take that as a yes, Adam.

Adam Liptak:

No, of course. I mean a development like that not only changes the kind of overview, but it kind of has a gravitational force. That’s easily the most important decision that Justice Alito has ever written and probably will ever write and you need to take account of it.

Preet Bharara:

How far into an obituary of Justice Thomas, did the Anita Hill allegations pop up and does that change over time?

Adam Liptak:

I don’t think I should be sketching out for you. I know the answer but-

Preet Bharara:

You’re indulging me so.

Adam Liptak:

I know the answer to that question. Once in a while, prominent people will say, can I have a look at my advanced obituary? And we will tell them, I’m afraid not, but we will sell you a posthumous subscription.

Preet Bharara:

That seems wrong. Do you sometimes say, this isn’t the Supreme Court, we don’t leak obits like you leak opinions in advance?

Adam Liptak:

I wouldn’t stoop to that level of humor.

Preet Bharara:

You wouldn’t. You wouldn’t. No, just the posthumous subscription humor. You’re not above that.

I ask this question of political reporters from time to time who are straight journalists and I ask them if they have a political point of view. Sometimes they say they’re kind of neutral, sometimes they say, of course they do, but they don’t advertise it. Some say they don’t vote to preserve the appearance of neutrality or objectivity or whatever you want to call it. Do yourself as a person who graduated from law school and a practicing lawyer and a journalist, do you have your own philosophy of jurisprudence and if so, do you share it?

Adam Liptak:

Philosophy in jurisprudence is quite a highfalutin thing to have, but I do have-

Preet Bharara:

We can make it more mundane, yeah.

Adam Liptak:

I do have intuitions about the right answers to many legal questions, and I do sometimes have a view about what the right outcome in a given case will be. I will say that one good news journalistically for me piece about the Supreme Court is that in many, many cases the quality of the advocacy is so high that you read the opening brief and you go, that sounds right. And then you read the response and you go, wait, I think that sounds right. And I’m not sure what I think, and I don’t force myself to come to a conclusion. So, there are many typically more minor cases, but many cases where if you ask me I’d say, I’m just not sure. I don’t have a settled view. I don’t know what the right answer is, I’ll be interested to see what they do.

In the bigger cases I think it’s fair to say that there’s less legal reasoning going on and more ideological, political, even partisan thinking going on the part of the justices and there I’m more in the mode of predicting how they’re going to come out and not trying to reason from doctrine and precedent what the right answer is. And then do I share it with people? Not in my writing almost never, I don’t think. Among good friends on the understanding that we’re speaking to just one another. I’m not a monk, I do enjoy talking about legal issues.

Preet Bharara:

What about on podcast, you’re going to tell us your views of Dobbs?

Adam Liptak:

It would depend on the question, but probably not.

Preet Bharara:

Okay, that’s what I thought. I think you said a few minutes ago, and I’m paraphrasing and obviously I don’t have a running transcript, you said something about how you are focused on and enjoy thinking about and writing about the legal questions and issues and analyses that the court puts out, and many people are not as interested in that as they are in other things. What are the other things?

Adam Liptak:

Well, to some extent they’re interested in personality, about knowing more about the justices as people, and I think that’s an actual human impulse. It’s not my strong suit to write those kinds of feature stories. They’re interested in the dynamics of nominations and confirmations, and I do cover confirmation hearings and people have raised quite legitimate questions about the Republican blockade of Merrick Garland, about the rush to confirm Justice Barrett. Then we have, call them scandals about Ginni Thomas’s activities in trying to help overturn the election about ethical questions about Clarence Thomas, about the leak of the Dobbs decision. So there’s all kinds of news that is unrelated or not particularly closely related to the actual legal work of the court.

Preet Bharara:

Are you at this moment close personal friends with any member of the court?

Adam Liptak:

No.

Preet Bharara:

Do you have a view on that? There are legal journalists.

Adam Liptak:

Nina Totenberg was quite close to Justice Ginsburg and to Justice Scalia and perhaps others. I feel I have cordial relations with many of the justices. I guess don’t have a fixed view about when that might make it difficult to cover the court. I mean, it’s a complicated thing. You want to cultivate sources, you want to know stuff, but you don’t want to be in a position where you’re not going to write something that needs to be written because somebody is a friend of yours.

Preet Bharara:

Yeah, no, I get that. You mentioned the leak of the Dobbs decision. Do you have a view, even though this is not going at what you said as your strong suit, legal analysis, do you think that’s fractured the court in some way or hurt relationships or changed things materially or it’s something that happened and people have just gotten past it?

Adam Liptak:

It was certainly a major breach at the court that at least in the short term caused real disruption in the relations among the justices. And Justice Thomas, a week or two after the leak said he viewed it in the nature of an infidelity. That it used to be that you could trust your colleagues back in the day, he didn’t feel that way any longer. So we know from public comments that this was very difficult for the justices. And then Justice Alito only a month or two ago said, and the logic of this follows, that whoever leaked that decision put the lives of the justices in the majority at risk because until it was issued it wasn’t law. If one of them was killed and you didn’t have five justices for the result anymore, Dobbs would not have been the law. It’s not holy fanciful that someone might get killed because a deranged person did show up at Kavanaugh’s house and said he intended to assassinate him.

So, I say that not because I’m saying that Alito was right or not, but if you think that, and he does, that’s not going to make you very sympathetic to a court where somebody thought it was a good idea to the decision.

Preet Bharara:

We’ll be right back with more of my conversation with Adam Liptak.

What do you think about all this debate concerning the decline in legitimacy and respect for the court? Is that a real thing or are people making too much of that?

Adam Liptak:

It’s a real thing that public approval is dropping. Now, you see those numbers as a single number. They’ve dropped radically among Democrats and among Republicans I don’t think they’ve dropped, I think in fact they’ve gone up. So it’s in one sense another instance of the polarization and partisan divide we have in every part of our society. Then people talk about the court’s legitimacy, and I’m not sure everyone really knows what they’re saying when they talk about legitimacy. I think legitimacy ultimately comes down to will people follow what the court says? Will they do what the court commands?

I think we’re pretty far from eras in which President Jackson actually didn’t follow what the court told him to do, where the south after Brown against Board of Education actively resisted that decision. I don’t think we’re in that setting yet, but I don’t think we’re super far from it. At the same time, you hear only the Vegas talk of even a political response to the court’s actions. I mean, Congress has powers, it could increase the number of justices simply by statute. It could probably require constitutional amendment, but it could impose term limits or mandatory retirement ages. It could constrain the court’s docket and attempt to tell the justices what they can and can’t decide. So, it could impeach people. It’s not wholly powerless. And yet none of that stuff partly is a consequence of how closely divided Congress is. Seems to be on the horizon.

Preet Bharara:

But it’s popular in some circles. Do you have a view on any of those things?

Adam Liptak:

I think every developed nation in the world imposes term limits or mandatory retirement ages on the justices of its top courts. I think almost nobody thinks that it’s good policy to let people on the US Supreme Court choose their own retirements. I mean, it’s problematic enough that the appointment of justices on the front end is political. The political branches, The president nominates, the Senate confirms, it’s a political process. It’s ugly. And then to inject that on the back end and allow the justice to decide when to retire and try to time his or her retirement to suit the politics of the President then in office doesn’t seem like a good idea, nor does it seem like a good idea for people to have these jobs so long that at least the possibility of cognitive decline comes into play. So I think that there are excellent arguments for term limits and law professors debate this, but I think it probably requires a constitutional amendment. And if that’s so it’s a complete non-starter.

Preet Bharara:

Yeah, it’s not going to happen. Can we talk about some current issues and topics at the court and get your thoughts and maybe even get you to predict some things if you’re up for it? So we’ve been talking on this podcast and on another podcast we do the, Cafe Insider, about a case that has a lot of people focused on it, Moore v. Harper, which is a little bit complicated. But in essence it’s a case about something called the independent state legislature doctrine or theory whereby on one side you have people arguing that pursuant to a clause in the Constitution that the state legislature of a particular state reigns supreme and has unfettered power to set the time, place and manner of elections. I’m simplifying obviously, and you’ll elaborate. On the other side, you have people who are saying, well, that violates the sort of principle that we have of checks and balances. And if you have a state legislature that goes off the deep end, you need to be able to be reigned in by the state constitution by virtue of what the state judiciary might think up to the top court in the state. And that has ramifications for how elections will be conducted in the future. Oral argument was just held. Do you have a thought about that case? Are people overstating its importance? How’s it going to go?

Adam Liptak:

If the court were to adopt the most expensive version of the independent state legislature theory, that would be a radical change in how American elections are conducted. And people are right to be paying a lot of attention to it. And it’s unfortunate that it’s a tiny bit complicated, but if all you say is, okay, the constitution refers to the state legislature as the organ of state government that is going to, in the first instance, set the rules for federal elections, draw congressional voting maps, decide how elections are conducted. And we have over more than two centuries never thought that meant that the legislature is kind of plucked out and elevated from the state government so that in its strongest form, the governor can’t veto what it does. The State Supreme Court can’t test the constitutionality under the state constitution of what it does. That would be a huge change. And as a practical matter, it would mean that these days, because most state legislatures are controlled by Republicans, it would give a real advantage to Republicans.

The facts of the particular case sort of tell this story. The North Carolina Republican state legislature drew a congressional voting map that most people thought would generate 10 Republican seats and 4 Democratic seats in a state that’s deep purple, it’s 50-50 state. The State Supreme Court rejected it. State courts asked independent experts to draw the map. That was the map under which the recent election was conducted and it resulted in seven Republican and seven Democratic seats mirroring the politics of North Carolina. But North Carolina State legislatures go, whoa, wait a second. The State Supreme Court doesn’t have a right to tell us what to do. We should be able to draw that gerrymandered map.

When it gets to the US Supreme Court, I think there were probably only three votes for the most expansive version of this theory. So this doesn’t look like this is going to be one of those predictable six three cases. Only the most conservative justices, Thomas, Alito and Gorsuch seem to track to the hard version of the case. Tellingly the three justices who on a very conservative court these days constitute the middle, the Chief Justice, Justice Kavanaugh, Justice Barrett seem not to be willing to go that far. But they did want to, and this is characteristic of the Supreme Court across all kinds of areas, they did seem to want to carve out a role for themselves.

This is radical enough, I mean except for the fact that we’re talking about a really crazy theory where they seem to want to end up is to say even in cases of state constitutional law, which typically the US Supreme Court has nothing to say about, that’s not their job, even in those cases they suggested that they might want to retain for themselves the power in truly extreme situations, they would say, to second guess the State Supreme Court. But it’s still in a sense, if that’s the outcome from the perspective of critics of the independent state legislature theory, kind of a good news answer because it wouldn’t oust the State Supreme Court in every instance from judging state legislative action. It would only insert the US Supreme Court in rare cases where the State Supreme Court might be said to have truly gone rogue.

Preet Bharara:

So I’m going to ask you about a different case that’s up your alley given your focus on the First Amendment, and it’s a case called one of the parties is 303 Creative, which is a web design company. Is that a case about religious and speech freedom or about discrimination or both things? Can you tell us about that and why it’s important?

Adam Liptak:

Yeah, it’s about all three things. So you’ll probably remember, Preet, about five years ago there was a case also from Colorado involving a baker who didn’t want to bake wedding cakes for same-sex couples. It goes to the Supreme Court and the Supreme Court basically punts, it doesn’t answer the question. And we’ve been waiting for them to return to that broad question of conflicts between, call it, religion on one side and gay rights on the other. And this is meaningful, especially in the wake of the decision establishing a constitutional right, the same-sex marriage and questions about whether this court is prepared to chip away at it.

So this sequel to the Colorado baker case involves a Colorado web designer who also doesn’t want to create websites for same sex weddings. It’s different from the baker case in that the baker actually turned down an actual gay couple and a civil rights commission actually tried to punish the baker for it. So there was a real life dispute. This is a hypothetical dispute. This web designer says she hasn’t yet made any websites for weddings, gay or straight, but she’s afraid she’ll be punished if she does. So she’s going to mount a pre-enforcement challenge and it goes to the Supreme Court. And although it’s really a conflict between her religion, she says her faith doesn’t allow her to work on behalf of or to celebrate the same-sex marriages. It reaches the court is a free speech case.

The question the justices agreed to decide was whether the state anti-discrimination law, which forbids discrimination based on sexual orientation in this setting is compelling the web designer to say something she doesn’t believe, and compelled speech is in fact a violation of the First Amendment. But whether this amounts to that is complicated by the fact that it’s a hypothetical case. It’s complicated by the fact that she’s a business open to the public and state anti-discrimination law requires her to serve everybody equally. So there are values on both sides. This, unlike the case we were just talking about, but like many big cases these days strikes me as a perfectly predictable six three outcome where the conservative justices, the six Republican appointees are going to vote for the web designer and the three Democratic appointees are going to dissent.

Preet Bharara:

And are there consequences beyond wedding cakes and websites if the case goes that way? In other words, if you live in that state and you’re a same-sex couple, can a waiter in a restaurant refuse to serve you? Can a restaurant refuse to take your reservation?

Adam Liptak:

The answer to that I think is no. Since it’s a First Amendment right, you need to be engaged in First Amendment expression. So if you’re just selling tacos or tires, you can’t discriminate. But at the same time, it could be much broader than same-sex couples because it’s a speech case. Anyone with an earnestly held view about anything, doesn’t need to be religious. The white supremacist can say I would like to discriminate against Black people and my business is expressive, I’m a photographer, I’m a musician, I’m a speechwriter. So on the one hand, narrower because you have to be expressive, but on the other hand broader because it’s not limited to religion, it can be any of you someone holds. So it really has the potential to blow a hole through anti-discrimination laws which are commonplace around the nation.

Preet Bharara:

Now you talked about how the earlier case from some years ago, Masterpiece Cake Shop, the court punted. Can you explain for folks why a court sometimes punts when it doesn’t have to and why it sometimes decides also when it doesn’t have to?

Adam Liptak:

So my guess is that the court punted, and when I talked about the court, I’m really talking about Justice Kennedy. Justice Kennedy wrote the majority opinion and he couldn’t figure out, he had deep commitments to two different ideas. He was the author of every major gay rights decision. He was the greatest champion of gay rights in American law. He was deeply committed to gay rights. He was also the court’s strongest proponent of First Amendment free expression rights and was also quite sympathetic to religious liberty. And he couldn’t make up his mind about which value should triumph, so he came up with this not very convincing way to resolve the case and said that somewhere along the lines in the legal proceedings, a member of a Colorado commission had made anti-religious remarks and therefore the baker didn’t get a fair shake and therefore the baker wins. But we’re not going to tell you the answer to the big question.

My guess is that the reason that happened is that at the Supreme Court as nine members, it only takes four votes to add a case to the docket. And I don’t think Kennedy was on board for hearing the case. And once the case arrives at the court, he is looking for a way out and he found it and he picked up enough votes to make that happen.

Preet Bharara:

I want to talk about another case that maybe is predictive in the way that you’ve described and certainly a lot of experts think so, and that’s the combined affirmative action cases that were argued in front of the Supreme Court recently. Is race-based consideration in higher education soon going to be a thing of the past?

Adam Liptak:

I sure think so. I think that has six three written all over it. I don’t think they take the case for any reason but to do away with affirmative action. That’s been a project of Chief Justice Roberts’ for decades. He doesn’t think the government should make distinctions based on race for good reason or bad. The case involves the University of North Carolina public institution, therefore the government. It also involves Harvard, which is not subject to the constitutional restriction, but is subject to a statute that says if you take federal money, you can’t discriminate. And I think the court is prepared to say that even admissions policies which take account of race as one factor among many in a holistic admissions process are no good.

The question in the case is not so much the outcome, but how far the court will go in doing away with taking account of race even in say proxy situations. Even if you’re, you say, okay, you can’t take account of race as such but can you use socioeconomic distinctions to achieve some diversity in your classes? Can you do top 10 programs in the state where every student in the top 10% of his or her class, even in good schools, bad schools, segregated schools, unsegregated schools gets in? But the bottom line answer is the court going to do away with affirmative action? Seems pretty sure to me yes. And the last time the court looked at this issue, about 22 years ago, Justice Sandra Day O’Connor writing for the majority said she didn’t expect there still to be a need for race conscious admissions policies after 25 years. The argument there was a lot of talk about that, that this was meant to be a policy with the self-destruct mechanism that we shouldn’t do this forever. So there sure seemed to be a lot of momentum at the court among the conservative majority for getting rid of affirmative action in higher education.

Preet Bharara:

Now, if the court were to do that, it would obviously be overruling its own precedent. They did that in a very significant way, as we’ve already mentioned in Dobbs, which overruled Roe v. Wade. Do you think there’s anything to the notion that once they go down the path of twice in rapid succession and maybe more times in matters than I’m not thinking of, doing a significant reversal of themselves, that they’re somewhat liberated from this idea of following precedent in the future? Or do they have the view that if they’ve done it once or twice, they shouldn’t make a habit of it and the gravitational pull of precedent weighs more heavily? Does any of that make sense?

Adam Liptak:

I guess I’m with the first possibility that having done it, having suffered no severe consequences for it, having established a framework for how to decide when to overrule precedent, lawyers call it stare decisis, and having figured out ways to do it before the court might feel that they can opportunistically do it again. At the same time, I don’t think the court, even this court, is wholly out of step with public opinion. And while the logic of the Dobbs decision could easily be mapped onto the right to same-sex marriage and could easily justify just by its legal logic doing away with that, right, I don’t think a majority of the court is prepared to do that. And that’s mostly because same-sex marriage is very quickly been accepted by large parts of the public in a way that abortion always remained controversial. And just the enactment of the Respect for Marriage Act is some evidence of that.

Preet Bharara:

So in some ways though it’s possible to coin a phrase, we’ve reached some kind of escape velocity from precedent because as you say, no major consequence. When you say no major consequence, what do you mean by that?

Adam Liptak:

It goes back to this concept of legitimacy we were talking about a little bit ago. I think as soon as the court either faces a situation where it orders something to happen and people say, that’s very nice, you ordered that, but where’s your army? Where’s your power of the purse? We decline to follow what you say. Which happens around the world. I mean, there are courts that issue decrees that simply aren’t followed or there’s a political response in terms of term limit source court expansion or whatever. At that point, there are consequences. But people writing nasty op-eds, I don’t know that the court really cares about that.

Preet Bharara:

I’m going to ask you about another concept that doesn’t get talked about as much, and it’s kind of complicated, but I think more important people give it credit for. And there’s this emerging, I guess it’s more than emerging doctrine, mostly on the part of people like Alito and Gorsuch, the conservative wing of the court, which they refer to, and I guess only explicitly have referred to it once, I think, the major questions doctrine. Which has to do with the circumstances under which the court can basically tell an agency, a government agency, that it has overstepped its bounds and gone beyond the powers given to it by Congress, by my lights. It strikes me as kind of arbitrary and convenient for when a justice doesn’t like a particular policy, they can say, well, that’s a major question and we’re going to weigh in on this way or this other way. Can you explain what that is and do you agree that it’s important?

Adam Liptak:

It’s a big development. So at the broadest level, the conservative legal movement, one of its projects is to undermine, if not do away with the administrative state. Which is to say with executive agencies staffed by experts that actually do all the regulation on important matters like the environment and food safety and all kinds of other stuff. So there’s a general hostility to that kind of expertise and this notion that that’s the deep state, and these are unelected bureaucrats who are doing stuff.

That manifests itself in a lot of ways, but most importantly recently in the major questions doctrine. Which says that even if Congress has delegated power to an agency, even if Congress is told the EPA say that you should regulate air pollution, unless Congress does it very directly in some class of cases that involve what the court calls major questions. And as you suggest preet, this is a made up concept. It comes from nowhere. The notion that there’s a major questions doctrine is just somebody writes this on a piece of paper and all of a sudden there’s a doctrine. And that means that the agency is not free to complete its mission.

This of course arose, this is not hypothetical, this arose in the case in June on climate change-

Preet Bharara:

West Virginia v. EPA.

Adam Liptak:

Where the court said the EPA A is not allowed to address climate change except in a narrow way because Congress hadn’t spoken directly enough and given it authority directly enough. Justice Elena Kagan, who is such a good writer, sort of harken back to a speech she gave at Harvard where she said, we are all textualist now. Meaning, that the court as a general matter looks at the words of the statute and tries to figure out what the statute means. And she said, well, I guess I was wrong. Because this statute does say of course, that the EPA should regulate in this area. But the major questions doctrine, she says, is a get out of text free card. Which is to say it overrides textualism and it is, she didn’t say this but I will, it’s a kind of characteristic opportunism of the current court where they will find a way to do what they want to do, even if it requires creating new doctrines unheard of only years ago.

Preet Bharara:

Now, are all six of the conservatives on board with this doctrine or is there some space between some of the justices?

Adam Liptak:

All six of them signed on to the Chief Justice’s majority opinion in the West Virginia case this EPA climate case, and that was the first majority opinion ever to use the term. But some are more enthusiastic than others, and I would say Justice Gorsuch is the most enthusiastic of all of them.

Preet Bharara:

Can you elaborate for a moment on what that decision might mean in other areas and for other agencies?

Adam Liptak:

Well, we already saw it come up without maybe using the words directly in the majority opinion, but when the Centers for Disease Control were not allowed to impose an eviction moratorium in response to the pandemic. When OSHA was not allowed to tell large employers that they had to require their workers to be vaccinated or tested. In both of those settings, it was said that the authorizing statute wasn’t clear enough, and now the court has agreed to hear challenge to President Biden’s Student Debt Relief Program, and thereto, a likely outcome is that the statute under which he acted was going to be said to present a major question and not give him the power directly enough for him to implement the program.

Preet Bharara:

Adam Liptak, thank you for your service. Thank you for coming on the show.

Adam Liptak:

Thank you Preet.

Preet Bharara:

BUTTON:

My conversation with Adam Liptak continues for members of the Cafe Insider community. To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

Folks, the holidays are upon us. For some, it’s a joyous time. For some, a hard and emotional time. And for others, it’s a little of both. But it’s also a time when people slow down and come together in one way or another. So to highlight what I think is special about the holidays, I want to share a story about a man by the name of George Dowling. As told by the Washington Post, Dowling, who’s 95 years old, lost his wife Lucille in 2013 after 70 years of marriage. And while he feels the loss of his life partner all the time, December is especially hard because Lucille loved Christmas. She would cook and bake and fill their home in Rhode Island with holiday spirit. So without her, December was cold and empty and he had a very hard time celebrating.

So the year after Lucille died, their daughter Susan, thought of ways to brighten her dad’s holiday season. She told the post that her dad loved getting mail, so she asked friends and family on Facebook to send him Christmas cards to cheer them up, and they did. He got about 30 cards that first year, and they carried him through. The number cards Dowling received grew each year to reach over 100 until last year when the number plummeted to just 14, and he was gutted by it. So this year, Susan, with the help of her daughter, who has a larger social media network, posted her request on Facebook earlier than usual. She shared the story of her father’s grief and asked people to send him letters to help him get through the holidays, and the request blew up. Appearing on TikTok, Twitter and even the local news.

Within eight days of the Post, Dowling had received over 10,000 cards. 10,000. He had never seen so many cards. Susan told the Washington Post that this was the biggest, best thing that could ever happen to him. They’re averaging 2,000 cards per day. Amazingly, letters have arrived at their home from all over the world, the US, UK South America, Australia, and Asia. From kids, adults and everyone in between. Some people shared their own stories of loss and grief and how the holidays are hard for them too. Others offer words of love and encouragement. According to the Post, Dowling reads each and every card he receives. He said they help him to remember that people are good. Amen to that. He’s gotten more than just cards, too gifts like handmade knits, ornaments, and treats arrived in the mail. He even got a card from the White House Historical Association.

While he, of course still misses his wife, he told the Post that the unexpected show of support from people near and far has made this holiday season a happy one. This story reminds us, like Dowling said, that people are good. It’s also a reminder that keeping in touch with people, though it can be hard in the day-to-day hustle of our lives is so important. So maybe send someone a card, pick up the phone, tell someone they’re important to you. If you’re inclined to send Mr. Dowling a card, the information is in the show notes to this episode.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest Adam Liptak.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet. Or you can call and leave me a message at 669-247-7338. That’s 669-24PREET or you can send an email to letters@cafe.com.

Stay Tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producers are Adam Waller and Matthew Billy. The Cafe team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dos. I’m your host Preet Bharara. Stay tuned.