The federal government remains partially shut down, but the U.S. Supreme Court’s nine justices are back at work. Today is the first day of their new term. They have agreed to hear more than 50 cases, some of which address issues that have placed social liberals and conservatives in sharply opposing camps, such as on abortion protests and the separation of church and state. Another is the first major campaign finance case since Citizens United in 2010. Once again the outcome of a number of cases could depend on Justice Kennedy. Last year his vote tipped more five-to-four decisions than any other justice. Diane and her guests talk about some of the key issues before the nation’s highest court this fall.


  • David Cole Law professor, Georgetown University Law Center and author, "The Torture Memos: Rationalizing the Unthinkable." His previous books include "Less Safe, Less Free" and "Terrorism and the Constitution."
  • Dahlia Lithwick Reporter,
  • Jeffrey Rosen President and CEO, The National Constitution Center; professor, George Washington University Law School; legal affairs editor, The New Republic; author, "The Supreme Court: The Personalities and Rivalries that Defined America" and co-editor, "Constitution 3.0."


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The nation's highest court begins a new term today. Abortion clinic protests and town hall prayers are just two among dozens of issues that nine Supreme Court justices will examine. They also revisit campaign finance and affirmative action. Here to preview what's before the Supreme Court this fall, David Cole of Georgetown University Law Center and Dahlia Lithwick of Slate.

  • 10:07:28

    MS. DIANE REHMJoining us from WHYY in Philadelphia, Jeffrey Rosen of the National Constitution Center and George Washington University School of Law. You are invited to take part in the program. Give us a call at 800-433-8850, send us an email to, follow us on Facebook, or send us a tweet. And welcome to all of you.

  • 10:08:00

    MR. DAVID COLEThanks for having us.

  • 10:08:01


  • 10:08:02

    MR. JEFFREY ROSENGood morning.

  • 10:08:03

    REHMGood to see you all, and, Jeffrey, good to have you with us. Dahlia, if I could start with you, on the McCutcheon v. Federal Election Commission, what's that all about?

  • 10:08:17

    LITHWICKThat has the potential to be, in so far as we have a blockbuster this year, that could be it, and it's going to be heard tomorrow at the court. And this is a kind of follow-on to Citizens United vs. FEC. That was 2010 case when the court struck down limits on independent spending by corporations and unions.

  • 10:08:34

    LITHWICKThis is the follow-on case, and it's really going to test something called aggregate limits of how much an individual donor can aggregate, give donations over and over and over again past the amount -- there's an amount right now that's -- by law, it's $123,000 over a two-year period. That's as much as he can give to be divided among candidates and parties and PACs. Sean McCutcheon is a wealthy donor. He's backed by the RNC in this case.

  • 10:09:06


  • 10:09:06

    LITHWICKAnd he wants to challenge the idea of those aggregate limits. He wants to say, I want to give more than that. I have more than that to give. And at bottom, this is going to be a case that really tests a longstanding distinction between whether we treat campaigns spending different than we treat campaign contributions. And we have just looked at those differently since 1976. That's the question.

  • 10:09:30

    REHMDavid Cole, what's at stake here?

  • 10:09:33

    COLEWell, Dahlia is absolutely right. The court in 1976 in a case called Buckley vs. Valeo said that limits on independent expenditures in connection with a political campaign are subject to what's called strict scrutiny -- almost always invalidated. And so there really are, at this point, virtually no limits, especially after Citizens United, on how much anyone or any organization can spend in its own speech, its own advertisements in support of a particular candidate.

  • 10:10:01

    COLEBut in Buckley vs. Valeo in 1976, the court said contribution limits are different. Contributions are not -- don't implicate First Amendment interests as strongly, and they're more risky in terms of quid pro quo corruption. If you're giving somebody money directly, that's more worrying with respect to corruption. And so those have been subjected to a less stringent scrutiny, have generally been upheld.

  • 10:10:24


  • 10:10:26

    COLEAnd this, you know, a situation in which the court may well strike down limits on contributions. And the parties have argued you can do this consistent with the existing regime that distinguishes between contributions and expenditures, but they've also argued -- and Sen. Mitch McConnell has commented independently to argue -- that you should just do away with contribution limits altogether.

  • 10:10:55

    REHMJeff Rosen, any sense in your mind as to how these justices might vote?

  • 10:11:05

    ROSENWell, at least three justices, Kennedy, Thomas and Scalia, do seem willing to overturn Buckley vs. Valeo and end all contribution as well as expenditure limits. Chief Justice Roberts decidedly refused to take that step a few terms ago. He said that the Buckley framework should be preserved, and Justice Scalia attacked him for full judicial restraint, which is sort of fighting words on the Supreme Court, the worst thing that he could claim.

  • 10:11:32

    ROSENSo it's not clear that Roberts is willing to take that final step. It's interesting that there are supporters of the Citizens United case, like Charles Fried, the former solicitor general for Ronald Reagan, who nevertheless think that the court should not overturn Buckley and should maintain the distinction between contributions and expenditures.

  • 10:11:49

    ROSENOne thing jumped out at me. There is an absolutely fascinating brief filed by Lawrence Lessig of Harvard Law School. And he's making a bid for the conservative justices by saying the framers of the Constitution themselves would not have defined corruption merely to be limited to quid pro quo concerns. Instead, they were more broadly concerned about improper dependence of Congress on money. And they quote Alexander Hamilton and basically are trying to make an originalist argument for a broader definition of corruption, which is really at the center of this fascinating case.

  • 10:12:21

    REHMSo what happens in the end if Supreme Court does take this kind of action? Is that no organization, no individual would be limited in terms of the amount of money he or she or the organization could give, Dahlia?

  • 10:12:43

    LITHWICKWell, one study I saw said that there's only, in fact, 1,200 people in the United States in the 2012 cycle who could even get up to this aggregate amount, so this is not the 1 percent. This is a fraction of the 1 percent that can afford to give in these amounts.

  • 10:12:58


  • 10:13:01

    LITHWICKAnd I think that's one concern. I think the other concern is that the argument in this case is, look, if I can give to person A, B, C, D and E, why can't I give the same amount to person H? In other words, the aggregate limits don't create more corruption. They just spread it around. But, of course, the concern is the bundlers, people who can bundle all of these aggregated amounts and funnel them back to the same causes. So I think the outcome does not look good for anyone but those 1,200 people.

  • 10:13:31


  • 10:13:33

    COLEWell, I think that's right, but the real question will be -- I think it's likely that the conservative side will win, the challengers will win. But the question is, how big do they win? And a narrow victory says aggregate limits don't satisfy the existing framework for how you look at contribution limits. That does would not call into question what are called base limits, direct limits on how much an individual gives to any particular candidate. But the big win, and the argument that Sen. McConnell is making, is you should treat all limits very skeptically, and that would really rewrite campaign finance law.

  • 10:14:14

    REHMDavid Cole of Georgetown University School of Law. Do join us, 800-433-8850. The court's going to be looking at affirmative action again, David Cole. What's this case about?

  • 10:14:34

    COLEWell, this is a kind of twist. It's an affirmative action case coming out of Michigan in which the Michigan voters, through a ballot initiative, passed an amendment to their state constitution that prohibits state universities or state employers from adopting any racial preference, any affirmative action program. And the lower courts held that that was unconstitutional under a doctrine that goes back to the late '60s that says when a state restructures its political voting rules in a way that makes it harder for minorities to gain their objectives on a racial issue, that can be a violation of equal protection.

  • 10:15:20

    COLEAnd the state of Michigan says, this isn't a violation of equal protection because the amendment itself prohibits discriminating on the basis of race, so how could it be a violation of equal protection? My sense is that the court is hereto likely to reach a conservative result, likely to uphold the ballot initiative, which would mean that, you know, in states where the people are less enamored of affirmative action than, say, university administrators and the like, you could see affirmative action ended at the ballot box.

  • 10:15:58


  • 10:15:59

    LITHWICKYeah. I mean, it's an interesting problem because when the appeals court for the Sixth Circuit looked at this case, what they said looked very, very complicated, what they said is, if I'm just a legacy at Michigan and I don't get in, I have all sorts of avenues to appeal that decision not to get me in. If I'm a minority who doesn't get in, my only choice is to amend the constitution. So that was kind of the predicate, and, obviously, that seems, I think, to the folks in Michigan who like the ban on affirmative action like a stretched reaction.

  • 10:16:31

    LITHWICKBut I think the other thing that's -- this is a good place to note that what we've seen with the Robert's case is that sometime -- or the Robert's court, I'm sorry, is they sometimes lay down markers. They say we're not going to get to this now, but we're looking at you. And we certainly saw that with the Voting Rights Act, which they laid down a marker a few years back, and then yesterday -- last term, they struck down key provisions.

  • 10:16:53

    LITHWICKSo I think what we see with affirmative action is the court slowly laying down markers so even though the Texas case last year that was supposed to be the thermonuclear affirmative action case didn't play out thermonuclear, I think we're seeing a court that's saying, we're getting there.

  • 10:17:08

    REHMWhat do you think the broader consequences of this decision might be, David Cole?

  • 10:17:16

    COLEWell, as I said, you know, it is the case that in a number of states, the general population is not in favor of affirmative action. After all, it's a program that's designed to protect minorities, so the majority tends to not like it. But elite institutions employ state leaders. University leaders see affirmative action as a very important part of their mission and an important part of justice.

  • 10:17:44

    COLEAnd so, you know, in California, we have seen a referendum that basically banned affirmative action, here in Michigan, a referendum that bans affirmative action. So that's really what's at issue is whether the court is going to allow states, through these ballot initiatives, to allow the will of the majority to override the interests of minorities in getting a fair shake.

  • 10:18:08

    REHMDavid Cole of Georgetown University Law Center, Dahlia Lithwick, a reporter for Slate, and, joining us from WHYY in Philadelphia, Jeffrey Rosen. He's president and CEO of the National Constitution Center and professor of law at George Washington University School of Law. Jeffrey, I know you want to comment on this. We'll do it after a short break. Stay with us.

  • 10:20:00

    REHMAnd today is the first Monday in October. That means the start of the 2013 Supreme Court fall session. Here with me to talk about some of the issues, more than 50 that they have agreed to take up: David Cole of Georgetown University, Dahlia Lithwick of Slate magazine, and Jeffrey Rosen of George Washington University. I know, Jeff Rosen, you wanted to comment on the affirmative action case.

  • 10:20:40

    ROSENYes. It's a fascinating case, and I agree with David and Dahlia that since there are four justices who believe that the Constitution doesn't permit affirmative action, they are very unlikely to hold that it actually requires affirmative action. I wouldn't be surprised if some liberal justices decided to uphold this proposition. Remember it was passed after the Supreme Court in 2003 basically blessed affirmative action at the University of Michigan. A majority of voters reversed that.

  • 10:21:08

    ROSENAnd you could imagine the court ruling narrowly saying that the political process really wasn't restructured because it just was the regents who made this decision, not a local body. Well, I think one very interesting thing about this case, the State of California filed a brief in support of those who are challenging the Michigan initiative.

  • 10:21:28

    ROSENAnd basically the executive of California said, we don't think that these things are constitutional either, even though the Ninth Circuit actually upheld the initiative banning of affirmative action in California. So just like President Obama refusing to defend the Defense of Marriage Act, so you have state governors who are basically weighing in here. But I don't think that the Supreme Court is going to strike it down. And it doesn't tell us much about the future of affirmative action in higher education in that sense.

  • 10:21:56

    REHMAll right. First comment on Facebook from Greg: "Why isn't the Supreme Court shut down?" David?

  • 10:22:06

    COLEThey must be essential.

  • 10:22:08

    REHMAnd that's it. All right. And...

  • 10:22:12

    ROSENCertainly to us.

  • 10:22:12

    REHMAnd an email on McCutcheon vs. the FEC: "Our contribution limit's now irrelevant because of money flowing everywhere from undisclosed groups and persons through shell organizations?" David.

  • 10:22:32

    COLEWell, that is an argument that people make on both sides. People who think there should be no limits say, well, since money flows freely on the expenditure side, why do we have these, you know, false limits on the contribution side? On the other hand, people who are in favor of contribution limits say it's really problematic that we allow unlimited spending because that can be just as corrupting.

  • 10:22:56

    COLEAnd, you know, I think the reality is it was a compromise in 1976. I'm not sure it's worked. In fact, I'm quite sure it hasn't worked. And this is not a cord that's going to fix it, I don't think.

  • 10:23:08

    REHMAnd, Dahlia, this goes back to one of your comments. Brian says, "I don't begrudge Justice Scalia and his conservative cohorts their interpretation of the Constitution except that in the case of campaign finance, they seem to be codifying the idea that the Constitution is a document that favors the wealthy."

  • 10:23:36

    LITHWICKI mean, I think what Justice Scalia and his conservative cohorts would say in response to that is that ultimately this is about speech, and this is about free speech. And we always have to remember that when we talk about corporate free speech rights and we talk about, you know, unions and corporations having the right to speak freely, we're also talking about the New York Times. We're also talking about, you know, unions that are not the wealthiest.

  • 10:24:04

    LITHWICKAnd so I think it's important -- and this was always, I think, a really trick on the left in thinking about Citizens United was there were a lot of staunch, staunch liberals and staunch defenders of speech who came out saying, of course, this is unconstitutional because speech is speech. And money is speech for these purposes. So I think, you know, that's certainly the argument that's behind it.

  • 10:24:27

    REHMAll right. And moving on, Jeffrey Rosen, talk about McCullen v. Coakley, the antiabortion protests.

  • 10:24:38

    ROSENYes. This is a case involving a buffer zone passed in Massachusetts. It's a clinic buffer zone that doesn't allow people to approach abortion clinics unless they are clinic employees. And it's been challenged again on First Amendment grounds by those who say that this is not a content neutral regulation, that basically you can approach the clinic if you support its mission but not if you don't. The central question is the status of a 2000 decision called Hill vs. Colorado, which upheld a more modest buffer zone.

  • 10:25:10

    ROSENAnd there, there were three dissenters, including Justice Kennedy, Scalia and Thomas, who said that it was wrong to uphold abortion buffer zones at all. Justice Kennedy had an extremely passionate dissenting opinion in that case, which just shows how strongly he feels about the First Amendment issues that Dahlia was talking about. He says that there runs throughout our First Amendment theory a concept of immediacy. In a fleeting existence, we have but little time to find truth through discourse. No better illustration of the immediacy of speech, of the preciousness of time as presented in this case.

  • 10:25:42

    ROSENBasically, he's saying that the only chance that these antiabortion protestors have to make their case is to approach people on the street. If the court rules narrowly and doesn't overturn the Hill case, then these buffer zones which exist in many states can still exist but only within sharper limits. If it takes the more dramatic step of overturning Hill, that would mean that buffer zones are impermissible.

  • 10:26:04

    ROSENOnce again, we don't know what Chief Justice Roberts and Justice Alito will do. Justice Alito often rules against First Amendment claims when there are socially conservative interests on the other side, as he did in his lone dissent from the Phelps Baptist case involving funeral protests. But here both the First Amendment arguments and the socially conservative arguments point in the same direction, so he might be inclined to overturn Hill vs. Colorado.

  • 10:26:27

    LITHWICKThe other really critical thing about this case is that the buffer zone protects only theoretically certain speech. In other words, what it says is, if you're a clinic worker, you're helping someone into the building, you are for abortion. Your speech is protected. So the challenge really is based in this idea that this is classic viewpoint discrimination. We are only prohibiting the speech of people who don't like abortion. And that's really problematic. I mean, I think that is the sticky wicket in this case is that you can't really say only people who are pro-abortion get to speak within the bubble.

  • 10:27:05


  • 10:27:06

    COLEWell, I don't think they're quite saying that, Dahlia. I think what Massachusetts would say is, we have a 35-foot zone that bars people from being in that zone, period. And we obviously have to have exemption for the people who work in the clinic 'cause they have to go through the zone in order to get into their office, and that's what the exemption's for. But you're absolutely right. The challengers say, well, that lets pro-abortion people in and keeps antiabortion people out. Even if it has a neutral purpose, it has the effect of discriminating on the basis of view.

  • 10:27:40

    REHMThere's yet another case involving abortion, Cline v. Oklahoma. What's that one about, David?

  • 10:27:48

    COLEWell, that's a potentially much bigger case. It involves an Oklahoma law that restricts the use of RU486, an abortion-inducing drug, to the particular way -- methods of use that are on the label approved by the FDA. And what happens with FDA label approvals is that the FDA approves a drug for particular uses at time X. It's then approved. Then doctors use that drug, and they use it for a variety -- in a variety of ways.

  • 10:28:23

    COLEAnd they often learn over time that there are better ways and different ways to use that drug. And that's what's happened here. The medical community has come to understand that there are better and more effective and safer ways to use the drug. And the Oklahoma legislature comes in and says, no, doctors may not prescribe RU486 in ways that differ from the FDA label restrictions.

  • 10:28:49

    REHMAnd what is that restriction?

  • 10:28:52

    COLEWell, there's a -- it's the -- Dahlia probably has the details. It's the time at which it's used and the other drugs that's used with -- you might give them...

  • 10:29:03

    LITHWICKYeah, I mean, the on-label period...

  • 10:29:07


  • 10:29:07

    LITHWICK...was it goes from 49 days on-label of gestation to 63 days gestation off-label. So that's quite a significantly longer period of time in which you can prescribe it. But also -- and I think this is really critical -- doctors have determined that the original on-label dosages are too high and in quite -- in fact, some cases quite dangerous to the mothers.

  • 10:29:30

    LITHWICKAnd so the off-label dosage should be lower simply for the health of the mother. So this not only implicates the length of time in which a woman's right to have an abortion is involved. It also, in fact, does raise questions about the health of the mother.

  • 10:29:46

    REHMI see. Jeffrey Rosen.

  • 10:29:49

    ROSENOf course, the question of how broad the health exception had to be was at the center of the Carhart case where the court upheld the federal partial-birth abortion law. And that's why this case could be so significant. Carhart seemed to suggest that pre-viability restrictions on abortion could be allowed if they banned a particular procedure, namely partial-birth abortion. And those who are trying to get Oklahoma to follow federal procedures here say, this is just banning one particular procedure. It happens to be in the first trimester.

  • 10:30:18

    ROSENNow, if that's upheld, that would be a fundamental challenge to the basic line of Roe v. Wade and Casey vs. Planned Parenthood which said that abortions may not be banned in the pre-viability period. And to the degree that this on-label procedure prevents women from taking the pill during the first trimester, that seems to be a very basic challenge to viability. So that's why it does have potential to be a blockbuster.

  • 10:30:39

    REHMIn the New York -- The New York Times said the Oklahoma case is "part of an effort to undo the right to choose under the guise of protecting women's health." Dahlia.

  • 10:30:55

    LITHWICKThe other really critical component of this is this is not about surgical abortions. Surgical abortions are starting to become harder and harder to obtain in this country. So then the battle front moves to these abortion pills. And this ends a lot of the hassles around closing abortion clinics. And, you know, all the things that have raised real hurdles to surgical abortions kind of get undermined when you can have access to a couple of pills over a few days.

  • 10:31:24

    LITHWICKSo it's really important to see this not only as a challenge to Casey -- as Jeff was saying, a challenge to sort of fundamental principles of abortion. But it's also, I think, a way of moving the front in this battle away from surgical abortions to the abortion pill battle, which is going to be next.

  • 10:31:42

    COLEI would be very surprised if the court upholds this law. I think it's clearly an example of bad faith legislating. What the court has said is it's permissible to regulate in the interest of women's health. And so Oklahoma is taking this technicality of the FDA label and saying, oh, well, that's the healthy way to do it, so we're going to restrict you to using that, when every doctor knows that FDA labeling requirements are not the healthiest way necessarily to use a drug and that it is perfectly lawful under federal law.

  • 10:32:16

    COLEAnd the FDA understands that people quite often use drugs in ways that are not specified on the label. So it's bad faith. It's not designed to further women's health. I would be very surprised if it gets upheld.

  • 10:32:31

    REHMAnd you're listening to "The Diane Rehm Show." Jeffrey Rosen, tell us about the case of the Town of Greece vs. Galloway. What's that all about?

  • 10:32:47

    ROSENThis is a fascinating question, which raises basic issues about the separation of church and state. The City of Greece basically allows a legislative prayer before its town council where citizens can come and do business. And for a long time, it was mostly a Christian prayer, although the procedure was later revised so that a Wiccan and some other non-Christian prayers were allowed.

  • 10:33:10

    ROSENAnd the question is whether, narrowly, this could be upheld within the rubric of a case called Marsh vs. Chambers, which basically upheld the State of Nebraska's legislative chaplaincy because it said there's a longstanding tradition of legislative prayers. To the surprise of many, the Obama Administration weighed in in favor of the legislative prayer.

  • 10:33:31

    ROSENIt said that it's not a front to church and state just because there's this long tradition of praying before legislatures. The broader question though is, are there five votes on the Supreme Court to reexamine the entire approach to church state questions, in particular a test that has prevailed for a long time that was embraced by Justice Sandra Day O'Connor called the endorsement test? And that's the question of whether a reasonable observer would view a particular practice as endorsing religion.

  • 10:33:57

    ROSENJustices like Justice Scalia and Thomas don't like this test. They think it -- they have no problem with open expressions of state and religious expression as long as they don't discriminate among sects. And therefore they would overturn the endorsement test and allow for not only legislative prayers but even school prayer if it did not discriminate among religious sects.

  • 10:34:18

    ROSENSo once again, we have not heard from Chief Justice Roberts or Justice Alito about where they fall in the spectrum. Are they religious supremacists like Justice Scalia and Thomas, or are they more close to the neutrality position that Justice O'Connor and Kennedy have embraced? And that's why the case is so interesting.

  • 10:34:36

    COLEYeah, I think that's right. This is another case like so many this term in which the conservatives are likely to win. But the question is not whether they win but how they win. And so they could win on -- the narrow ruling would simply be, we've recognized an exception for legislative chaplains because at the time the First Amendment was written there were -- they opened, you know, legislative sessions with prayers. And so they just couldn't have understood that to be an establishment of religion. It's a narrow exception that just applies to that tradition.

  • 10:35:09

    COLEThe broader approach would be, as Jeff suggests, abandoning the endorsement test and adopting a much more restrictive -- a test that finds establishment clause violations much less often and allows the government to essentially endorse religions as long as it doesn't coerce people into practicing those religions. And that's the view that Justice Kennedy, Justice Scalia, Justice Thomas have all signed off on. So it is up to Roberts and Alito.

  • 10:35:41

    REHMWhat happens in the Congress daily? Is there a prayer that opens each session of Congress by a chaplain?

  • 10:35:54

    COLEYou know, I'm not sure whether there is at each session. I think -- well, each session, I'm pretty sure there is. There certainly are in most state legislative assemblies. There is -- you know, the Supreme Court, it opens with the clerk coming out and saying, God, save this honorable court. But, you know, this was a situation in which they invited in Christian ministers to say prayers like -- you know, imagine this at the opening of the Supreme Court.

  • 10:36:20

    COLEWe recognize -- you know, all stand for the justices. We recognize that Jesus Christ is our savior and that we all are Christians. Jesus Christ, save this honorable court. That feels very differently, and that's why the lower courts found that this was unconstitutional.

  • 10:36:32

    REHMOf course. Yeah.

  • 10:36:36

    LITHWICKYeah, the lower court, I think, found that almost two-thirds of the prayer -- this is the Second Circuit when they looked at this -- that almost two-thirds of the prayers either used the word, your son, Jesus Christ, Holy Spirit, so it was not, you know, that the Wiccans were getting a lot of air time. This was a pretty -- you know, clearly sectarian.

  • 10:36:53

    LITHWICKAnd if I could just make one other point, I think that this is another one of those examples where -- you know, Jeff said this, and it's so important -- this is a Justice Sandra Day O'Connor test. This wasn't just O'Connor, the fifth vote back in the day when she was the swing vote at the court. This is Justice Sandra Day O'Connor saying, I'm just going to imagine for a second what a reasonable person would think. That's gone now.

  • 10:37:18

    REHMDahlia Lithwick, she's a reporter for Slate. When we come back, we'll open the phones, hear your comments, questions. I look forward to speaking with you.

  • 10:39:57

    REHMAnd before we move on to other cases -- for example, the Hobby Lobby vs. Sebelius to emails on buffer zones -- how do the Supreme Court positions on buffer zones for abortion clinics compare to their positions on buffer zones around military funerals, particularly as relates to the First Amendment? Also, if buffers are decided to be unconstitutional, are there other protections in place for the employees and patients if they are accosted by protestors? Can they accuse the protestors of assault? Jeffrey Rosen.

  • 10:40:50

    ROSENWhat a good question. And, of course, in the funeral protest case, the court 8-to-1 struck down what could indeed be considered a sort of buffer zone because the First Amendment trumped. So that's a suggestion that you might well have at least the conservative justices who are inclined to overturn on First Amendment grounds those earlier decisions of holding buffer zones.

  • 10:41:12

    ROSENAnd, you know, one question is whether any liberals might join them. One expects not because this seems less like a pure political speech case. The funeral protests were doing nothing more than expressing political viewpoints. And here the effort has actually discouraged women from entering clinics and in some ways to block access to the clinics, so I guess that would be the distinction between the two cases.

  • 10:41:38


  • 10:41:39

    COLEWell, I mean, it is important to know that there are plenty of buffer zones that have been used for a long period of time. When the Republican National Convention or the Democratic National Convention occurs, there -- and there's a doctrine that says that states and localities can impose reasonable time, place and manner restrictions on speech in public, as long as they're content neutral.

  • 10:42:02

    COLEAnd the real dispute here is whether this is a content neutral restriction on place. So the buffer zone says you can speak. You have to speak out here, not inside the buffer zone. But the challengers are saying, in this particular example, because it's only around abortion clinics and because they let the workers go in, it's not neutral.

  • 10:42:23

    REHMBut how could that be if you're thinking about the Democratic National Convention and you've got protestors confined a block away? I mean, how...

  • 10:42:37

    COLEWell, the location is -- I mean, the limitation is upheld on the ground that it is formally neutral. That is, for any convention, they're going to say the protestors are in -- the speakers, however they're speaking, have to be -- can't be right in front of the place because people need ingress and egress.

  • 10:42:56


  • 10:42:59

    COLESo that's said to be neutral although its effect, of course, is to make it more difficult for protestors to speak. But, I mean, there's an understandable interest on the other side which is that you have to -- you know, cities have to be able to control crowds.

  • 10:43:13


  • 10:43:15

    COLEAnd so as long as you develop neutral rules, if they have disparate effects, that's generally been deemed OK.

  • 10:43:22


  • 10:43:22

    LITHWICKJust a quick note to the callers. Second point, the buffer zone, at least the one in question in Massachusetts, was actually established in 1994 after women were killed in an attack on a Brookline clinic, so...

  • 10:43:34

    REHMI see.

  • 10:43:34's not -- this is not some airy fairy possibility of being harmed.

  • 10:43:37

    REHMYeah, right.

  • 10:43:38

    LITHWICKThis is what Massachusetts was genuinely worried about.

  • 10:43:40

    REHMAll right, Dahlia. Go on to the Hobby Lobby v. Sebelius.

  • 10:43:47

    LITHWICKThis is a case that the court has not yet accepted, although I think it's fair to say it's 99 percent likely the court is going to have to take this. And this is a really big test of the constitutionality of the contraception mandate that's in the Affordable Care Act. So the ACA says that employers must provide contraception to their workers. Certain religious institutions like churches are exempt from that, but these are secular nonprofit employers. Hobby Lobby is a big chain of stores that sells hobby and craft products, but...

  • 10:44:22

    REHMSo with no religious affiliation.

  • 10:44:26

    LITHWICKWell, no religious affiliation, except that the owners say we are very religious. We close our stores on Sunday. We operate by Christian principles. In other words, I think they would argue they have strong corporate religions convictions, and they don't want to afford birth control to their workers. They say it violates their free -- their right to have their religious freedom under RFRA, under the Religious Freedom Restoration Act.

  • 10:44:52

    LITHWICKThis is a problematic case because one appeals court, the Third Circuit, said, there's no such thing as corporate conscience. You can't have religious rights for your corporation. But the Tenth Circuit ruled differently. They ruled in favor of Hobby Lobby. So we have a direct conflict of two appeals court, and the Obama administration has asked the court to resolve it.

  • 10:45:14

    REHMAll right. Jeffrey Rosen, comment.

  • 10:45:17

    ROSENAnd, of course, as we've been discussing, this has huge echoes of Citizens United. Citizens United said that corporations are persons, insofar as they have full free speech rights under the First Amendment. And here the claim is that corporations are also persons for having First Amendment religious expression rights under the First Amendment.

  • 10:45:37

    ROSENThe Obama Administration says that this is a dramatic misreading of the First Amendment, that the Affordable Care Act very carefully distinguished between religious corporations, which do get an exemption, and nonreligious money-making corporations that can't have their own religious beliefs. So if the court were, in fact, to strike down the refusal to protect religious corporations, it would further and dramatically expand the First Amendment rights of corporations in a way that might support, Diane, your earlier suggestion that many people view that this is a pro-corporate court.

  • 10:46:12

    REHMAll right. Let's open the phones, 800-433-8850, first to Karen in Indianapolis. You're on the air.

  • 10:46:25

    KARENHi, Diane. Thanks for taking my call.

  • 10:46:27


  • 10:46:28

    KARENIn reference to the RU486 pill, the pill was established initially to give women an opportunity to induce a miscarriage in their homes, as overseen by a doctor. And the FDA's approved way is to ingest both pills. One pill opens the cervix. The other sloughs off the uterine lining. And the alternative method is to insert the second pill.

  • 10:46:51

    KARENWhat that does is it prevents both pills from having to go through the digestive system, which causes extra side effects that are painful, uncomfortable, and make it altogether a more uncomfortable experience. And the concern among those who think that women should have a right to choose is that the reason they're pushing for only the FDA approved way is so that the experience is more uncomfortable and painful for the woman to use it as a deterrent.

  • 10:47:16

    REHMDahlia, would you agree with that?

  • 10:47:18

    LITHWICKI think that the caller knows an awful lot more than I do about the combination of the two pills. But I certainly agree that in principle the reason we let doctors prescribe off-label is that this drug was approved by the FDA in 2000. We've had 13 years for doctors to learn better safer ways to administer this. And, again, I just want to echo what I said before. I think it's implied in what the caller says. Surgical abortion is declining in this country. Fifty-four clinics in 27 states have closed in the last three years. For many, many women these abortion pills become the only option.

  • 10:47:54


  • 10:47:55

    COLENo, I think that's -- I have nothing to add to that. That's absolutely right.

  • 10:47:58

    REHMAll right. To Win in Durham, N.C. You're on the air.

  • 10:48:04

    WINThank you, Diane. It's good to hear you again.

  • 10:48:05

    REHMThank you.

  • 10:48:07

    WINYes, ma'am. I think the unprincipled activism of this court is just really scary. That's the single reason I voted for Obama this last time. If you read Justice Stevens' dissent in Citizens United, it just lays out a roadmap of internal rule breaking, for instance, sua sponte recognizing justiciable issues that didn't exist in the courts below. I think the Stevens' dissent is going to rank with Harlan's in Plessy v. Ferguson in the light of history. This is a very scary court. Justice Roberts is far from an umpire just calling balls and strikes.

  • 10:48:50

    REHMAll right.

  • 10:48:51

    WINHe is changing the strikes and as the ball approaches the batter. Thank you.

  • 10:48:55

    REHMAll right. Thanks for calling. David.

  • 10:48:57

    COLEI think actually the truth is a little more complicated than that. I think that there are instances in which the court sort of reached out and reached pretty radically conservative results, as in Citizens United, as with the Voting Rights Act case from last term. But there are also cases in which this court has reached either liberal results or conservative with a small "C" results where they basically maintain the status quo. So this past term they struck down limits on marriage equality for same-sex couples. They did not end affirmative action.

  • 10:49:38

    COLEAnd so I think, you know, that's really the question with respect to this court. And this term is going to be a great way to sort of get a read on that because there are so many cases. Almost all the cases we've talked about are cases in which they could decide in a narrow way that leaves existing precedent intact. But they also could use these cases -- and the lawyers have argued that they should use these cases -- to overturn longstanding past precedents. And so we'll know at the end of the term whether this is conservative with a small "C" or conservative with a capital "C" court.

  • 10:50:11

    LITHWICKI also -- I think I want to add that sort of baked into the caller's question, I think, is this question of this is an aging court. This is a court that, you know, members are -- several members, four, are either 80 or soon to be 80. And it's a court that, you know, the question I'm asked most often this summer is, who's retiring? What's up next?

  • 10:50:31

    REHMBut Ruth Bader Ginsburg has already said she's not retiring.

  • 10:50:36

    LITHWICKShe has made that abundantly clear.

  • 10:50:38


  • 10:50:38

    LITHWICKBut I do think it's worth just flagging that there has been a trend at this court for the last several decades that every retiring justice has been replaced by someone either slightly to their right or very much to their right. And Justice Stevens is a good example of someone who started off at the court as a moderate centrist. And by the time the court had kind of torqued around him politically, he was the radical lefty on the court. So I do think the court, simply by, you know, the laws of appointments, has become more conservative.

  • 10:51:11

    REHMAll right. To Diane in Edmond, Okla. You're on the air.

  • 10:51:18

    DIANEHi. My question is, why would it be OK for a company to go ahead and say that they don't want to have contraceptives for women, but it is OK for them to have Viagra for men? On a religious note, you know, sexual encounters are only supposed to be for procreation to have children, where they're saying that, you know, that part's OK, we'll forget the God issue on that part and let men have Viagra, so they can continue to have sex whenever they want.

  • 10:51:55

    REHMJeff Rosen, do you want to weigh in on that?

  • 10:51:58

    ROSENI guess the argument would be that the Religious Freedom Restoration Act allows individuals to decide when their own free exercise rights are being violated, and for the state to take the least restrictive means of burdening religious rights. And you could have an individual who says, I believe in good faith that the Catholic Church is teaching on abortion and contraception are correct, but I don't agree that all non-procreative sex is impermissible and, therefore, I have no problem with Viagra.

  • 10:52:27

    ROSENOr you might just think that, you know, the Viagra's being used for procreation. So the court tends not to second-guess the good faith claims of individuals and saying what they believe is impermissible. But the caller's question highlights the oddity of trying to ascribe free exercise rights to a corporation. I mean, does the owner of the store of Hobby Lobby have to say this is my distinction between Viagra and contraception? It kind of -- it highlights the oddity of ascribing doctrinal views to groups rather than individuals. That's a good question.

  • 10:52:58

    REHMAnd then beyond the Holly (sic) Lobby, there is Holly vs. Mt. Holly Gardens Citizens in Action. David.

  • 10:53:10

    COLERight. This is a case that is a statutory case about the scope of the Fair Housing Act, which prohibits discrimination in housing. And all of the lower courts and the Federal Housing Agency have interpreted the law to prohibit not only housing rules that intentionally discriminate on the basis of race, but also those that have a disparate effect on racial minorities. And that's the question that has come up to the Supreme Court, whether, in fact, it reaches laws that have a disparate impact on minorities.

  • 10:53:45

    REHMAnd you're listening to "The Diane Rehm Show." And, Jeffrey, on that case I gather you see potential implications for the challenge to North Carolina's voter ID laws.

  • 10:54:00

    ROSENYes. The Justice Department has announced that it's going to challenge the North Carolina voter ID laws under sections of the Voting Rights Act that the Supreme Court did not strike down last June, in particular, Section II of the Voting Rights Act which allows discrimination that has a disparate impact. And the truth is that the conservative justices have interpreted that section to require something close to intentional discrimination. So the basic question in the Mount Holly case, as in the voting rights challenge, is how clear the evidence for intention discrimination has to be.

  • 10:54:29

    ROSENThe conservatives seem to say you need almost a smoking gun that there was an attempt to discriminate. And that would represent a big change from the way that the Fair Housing Act has been interpreted in the past. The Obama administration stresses that every court has allowed for disparate impact suits under the Fair Housing Law. So once again this is a struggle for the soul of anti-discrimination laws, and the conservatives want to interpret intentional discrimination far more strictly than the liberals do.

  • 10:54:56

    REHMAnd to Mike in Dover, Tenn. You're on the air.

  • 10:55:02

    MIKEOK. In reference to this argument about contributions from corporations and the First Amendment rights, the First Amendment everyone knows is a basic pillar of democracy. But it is seldom for obvious reasons coupled with anonymity. Doesn't anonymity along with ability to give unlimited contributions create an atmosphere for abuse?

  • 10:55:27


  • 10:55:28

    LITHWICKWell, I think that the -- for me, I mean, I agree with the caller. And I always felt that the building block of the campaign finance doctrine was that there was going to be disclosure so that you knew who was giving what, and that was meant to be the best disinfectant. But I think that just as the rest of the law has been eroded, the disclosure provisions are being challenged and eroded as well. So I think it's quite right that, in addition to not being able to limit the amounts of money, it's not knowing where it's coming from that's doubly troubling.

  • 10:56:01


  • 10:56:02

    COLEWell, I think the court hasn't really, to my understanding, questioned disclosure requirements. It's a question of whether Congress has the political will to put in sufficient disclosure requirements. That's number one. But number two is, the argument is even with disclosure. I mean, we all know the Koch brothers are giving millions and millions of dollars. That doesn't undermine the kind of improper influence that they might well have on the electoral system. So they're not sufficient to deal with the concern about money and politics.

  • 10:56:36

    REHMAnd there are many, many more cases we haven't been able to get to. This was just a preview, so I know you'll be watching and listening for court arguments. David Cole, Dahlia Lithwick and Jeffrey Rosen, thank you all so much.

  • 10:57:00

    COLEThank you.

  • 10:57:00

    LITHWICKPleasure to be here.

  • 10:57:01

    ROSENThank you.

  • 10:57:01

    REHMAnd thanks for listening, all. I'm Diane Rehm.

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