Same-sex marriage supporter Vin Testa, of Washington, DC, waves a rainbow pride flag  April 28, 2015 near the Supreme Court in Washington, D.C.

Same-sex marriage supporter Vin Testa, of Washington, DC, waves a rainbow pride flag April 28, 2015 near the Supreme Court in Washington, D.C.

The U.S. Supreme Court has only about a month before its current term ends. There are a number of high-profile cases the justices are deciding, including same-sex marriage, considered by many to be the biggest civil rights issue of our time. The court will also issue rulings critical to the future of the Affordable Care Act and inmates on death row. Another important case to be determined deals with the First Amendment and social media. The Court is divided on many of the issues, and the outcome of the justices’ deliberations will affect millions of Americans. We review the arguments before the Supreme Court and what we could see come June.


  • Garrett Epps Professor of law, University of Baltimore; contributing writer and Supreme Court correspondent,; author of “To An Unknown God: Religious Freedom on Trial" and "American Justice 2014: Nine Clashing Visions on the Supreme Court."
  • Dahlia Lithwick Reporter,
  • Stuart Taylor Author and journalist; nonresident senior fellow, The Brookings Institution; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It."


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Supreme Court typically leaves the biggest decisions to the end of the term. Over the next month, the nine justices will weigh in on cases dealing with same sex marriage, the Affordable Care Act, lethal injections and freedom of speech on the internet.

  • 10:07:17

    MS. DIANE REHMJoining me to talk about these high profile cases and more, Supreme Court watchers, Stuart Taylor of The Brookings Institution and Garrett Epps of the University of Baltimore. From an NPR studio in Charlottesville, Virginia, Dahlia Lithwick. She covers the court for I hope you'll join us, 800-433-8850. Send an email to Follow us on Facebook or send us a tweet.

  • 10:07:54

    MS. DIANE REHMIt's so good to be back with all of you and welcome to our guests. Thanks for being here.

  • 10:08:01

    MR. STUART TAYLORThank you. Great to be here.

  • 10:08:03

    MR. GARRETT EPPSNice to be with you, Diane.

  • 10:08:05

    MS. DAHLIA LITHWICKThanks, Diane.

  • 10:08:06

    REHMStuart Taylor, remind us what's at stake in King V. Burwell, that's the Affordable Care Act Case.

  • 10:08:15

    TAYLORAnd it's not too big an exaggeration to say the fate of the Affordable Care Act, known as Obamacare, is at stake because the issue before the court is whether, through what most people think of as a drafting error, Congress made the subsidies, the critical part of the whole Obamacare scheme working, because without the subsidies, people can't afford the insurance, made the availability of those subsidies depend on whether states established the so-called exchanges where you buy the insurance or whether the federal government establishes it because the state didn't get around to it.

  • 10:08:57

    TAYLORNow, most states, about two-thirds, have not established these. So in those places, some 7 million plus people who now own insurance with the benefit of subsidies would lose the subsidies if the case comes down that way. And so it's a huge -- it would be a huge blow to Obamacare. Ironically, it might be a huge blow to the Republican Party, too, and in particular the next presidential candidate because they headlines will say 7 million people, if the case comes out that way, 7 million people have now been -- lost their subsidies and their insurance because of the right-wing Supreme Court.

  • 10:09:38

    TAYLORWhat are the Republicans in Congress gonna do about it? The Republicans in Congress have no idea what they're gonna do about it.

  • 10:09:44

    REHMBut Garrett Epps, in this morning's New York Times, wasn't there a piece saying that the authors did not intend that it be interpreted in that way?

  • 10:10:00

    EPPSWell, yes. It's a fairly comprehensive look at the drafting of the statute and it says what most people have already concluded, which was it's not simply that they didn't intend it. It's that no one even considered reading the statute that way. And by the court's own rules of statutory interpretation in a case that was not so politically charged, no one would be pursuing this reading.

  • 10:10:25

    EPPSIt's the -- the challengers have enacted an entirely new alternative narrative of the statute, just that seems to have come out of the air to say, oh, no, Congress secretly intended this.

  • 10:10:38

    REHMSo Dahlia, how do you read this?

  • 10:10:42

    LITHWICKI read it exactly as Stuart does. I think it is an enormously consequential case and one that a lot of people, I think, didn't fully understand what was going on. To me, the interesting moment, Diane, at oral argument was when Justice Anthony Kennedy, I think we can all agree we're gonna talk about him a lot today because he's the swing voter, seemed at least somewhat interested in the idea that the federal government simply can't give states a huge bonus, have the states rely on that and then yank it away.

  • 10:11:14

    LITHWICKSo there is this -- it's called a federalism argument, the states' rights argument, that I think looked attractive to Justice Kennedy and so the folks who are hoping that Obamacare isn't eviscerated are resting their hopes on Justice Kennedy's states' rights concerns.

  • 10:11:31

    REHMDo you agree, Garrett?

  • 10:11:32

    EPPSWell, yes, I do. I thought that was a very important moment. But the other striking thing about the oral argument was that Chief Justice Roberts, who's not a shrinking violet on the bench, was absolutely mum. He gave away virtually nothing about his concern about this and, meaning, he went into conference in a very powerful position. Nobody know which way he was leaning and he would get the final word on that. And I thought that was very significant.

  • 10:12:00


  • 10:12:02

    TAYLORI think one of us should probably try and say what Justice Scalia would say if he were here, since none of seem to agree with that point of view.

  • 10:12:09

    REHMGo ahead.

  • 10:12:10

    TAYLORI think what he would say is, Congress wrote a statute that says exchanges established by the states and only those exchanges, the way it's worded, can confer subsidies. Congress must be held to have meant what it said. He's a textualist. We don't guess at what Congress intended in some larger sense. We apply the statute they wrote. I think that's what he would say.

  • 10:12:35

    REHMBut even if the authors themselves say that's not what we intended.

  • 10:12:43

    TAYLORI think that's his view and I think he came by this view, I think, in a way that's easier to understand than the way it plays in this case. For years, liberal Democratic Congresses would pass statutes that didn't really go as far as they wanted. Then, they'd put in a lot of legislative history, you know, a lot of committee reports and stuff that say, we really went to -- meant to go much farther and make it much more liberal.

  • 10:13:08

    TAYLORAnd liberals on the Supreme Court were saying, a-ha, you know, that's what they meant. And Scalia comes along and says, hold on a minute. Let's hold them to what they said. But I think, in this case, having done my best to summarize his view, he carries it to an untenable extreme.

  • 10:13:24

    EPPSYeah, I think that if you look at either of Justice Scalia's books on statutory reading, if you take way the political valance, this would be a case where he would say, no, you read the statute as a whole and it says, such exchange, that is the, you know, apodosis in the statue and that that must mean the same for state or federal. But because it is a highly politicized case and Justice Scalia has become more and more of a kind of partisan figure on the bench, I think he is misapplying his own method.

  • 10:13:56

    REHMSo talk about the politics, Dahlia.

  • 10:14:01

    LITHWICKThe politics are fascinating precisely because if you remember, the last time the court heard an Obamacare case, at the very last minute, and we have good evidence of this, it seems as though Chief Justice Roberts jumped ship and he defected and he voted with the liberals. And you'll probably also remember that was almost deemed an unforgivable betrayal by the right and there was all sorts of complicated reasons, most of which we may not know for a long time, about what Roberts aligning himself with Obamacare.

  • 10:14:30

    LITHWICKSo I think the politics are fascinating because we have to remember that Chief Justice John Roberts is, first and foremost, a Supreme Court institutionalist. Yes, he's very conservative, but I think he's always at great pains to say, this court is not political. We are not an ideological partisan court. And the fact that he kind of betrayed the political right the first time around raises all sorts of questions and expectations about whether he is going to do it again and try to uphold the law at the expense of really millions of people losing healthcare insurance and costs are high.

  • 10:15:07

    REHMAnd that's my next question, Garrett Epps. How many people could potentially lose their insurance if the Supreme Court rules with the plaintiffs?

  • 10:15:20

    EPPSWell, the minimum number of people I've seen who would be affected is 7.5 and I've had people say to me it's closer to 9.

  • 10:15:26


  • 10:15:27

    EPPSMillion people who have gotten insurance and subsidies. They would have to drop their insurance because they couldn't afford it.

  • 10:15:36

    REHMAnd forgive me, what's the total number who are under the ACA at this point? Is it something like 16?

  • 10:15:45

    EPPS16 is the figure I've heard, yeah.

  • 10:15:47


  • 10:15:47

    REHMOkay. All right. And do you, Stuart Taylor, think that the plaintiffs have standing?

  • 10:15:59

    TAYLORWell, I haven't done a deep analysis, but you could tell from the way the argument was going that the don't-have-standing view didn't seem to have a lot of support on the court. So I think the court will find that they have standing, unless somebody is looking for a way to ditch the case without having to confront the merits. And Dahlia suggested perhaps a theory why that might happen.

  • 10:16:23

    TAYLOROne interesting thing about the case is there's been a widespread expectation since they agreed to hear the case last fall that the court would rule against President Obama and knock out the subsidies and the whole thing would come crashing down. Why is that, given that the arguments, at least in the view of those of us who are here, don't seem very persuasive for that side? The court took the case a little bit eagerly.

  • 10:16:47

    TAYLORThere was no conflict at the time they agreed to hear it among lower courts. Usually, they don't jump into cases unless there's a conflict. So people are saying, a-ha, they want to, you know, they must be eager to strike it down. They don't want to fact, though, it only takes four votes to agree to hear a case. It takes five votes to win a case.

  • 10:17:05

    REHMGo ahead, Dahlia.

  • 10:17:07

    LITHWICKI think one other thing that was really noteworthy at oral argument was the extent to which -- and Stuart was right to say this is what Justice Scalia worries about. Both Justice Scalia and Justice Samuel Alito were really concerned about the fact that this is fixable. So Justice Alito, for instance, says, oh, it's not too late. You know, if we were to strike this down, Congress could still fix it. The states could create exchanges. There was a great moment where Justice Scalia said, you know, Congress is not gonna just sit around while all these disastrous consequences ensue.

  • 10:17:38

    LITHWICKAnd Don Verrilli, the solicitor general, said, this Congress, your honor? In other words, there was a real moment of seeing, how does this get fixed?

  • 10:17:47

    REHMDahlia Lithwick, she's a reporter for When we come back, we're going to talk about same sex marriage cases. We'll talk about other big ones on which we await the Supreme Court. Stay with us.

  • 10:20:02

    REHMWelcome back. We're talking about the Supreme Court end of session and the cases on which we're expecting rulings before the end of June. Here in the studio, Garrett Epps. He's professor of law at the University of Baltimore. Stuart Taylor is at The Brookings Institution. Dahlia Lithwick joins us and she is a reporter at Dahlia, I want to start with you on same-sex marriage, especially considering that you've just had the first country in the world, Ireland, come up with a yea vote on same-sex marriage. Remind us what exactly the court is considering in these same-sex marriage cases.

  • 10:21:09

    LITHWICKDiane, I think it's fair to say this is the civil liberties issue of our time. And it's an issue that, if we had considered doing this show five years ago and thought this was going to come up now, I think we'd all have been shocked. It came barreling at the court, this issue of the states who have bans on same-sex marriage. And really the question is, you know, the court has long said that the right to marry is a basic fundamental liberty. It is protected by the constitution. This was a challenge brought by same-sex couples, some of whom have been together for a long time, some of whom are raising children.

  • 10:21:46

    LITHWICKAnd they are simply saying that they have either a liberty interest or an equal rights interest, protected by the 14th Amendment, in a marriage license and that the states who are banning gay marriage -- in this case, Kentucky, Michigan, Ohio and Tennessee -- are violating their constitutional rights.

  • 10:22:04

    REHMSo what, Garrett Epps, in the case of states that have already decided, is this likely to affect the outcome of this case in the minds of those on the court?

  • 10:22:24

    EPPSWell, I have to say that this case came to the court with sort of astonishing momentum behind it. The court, on the first Monday of October, was widely agreed. We all agreed down in the pressroom, the one thing this court was not going to do was deny review of all the cases that said there was a right, which were cases in, I think, 24 states that said...

  • 10:22:46

    REHMAnd you put them under one umbrella.

  • 10:22:49

    EPPSAnd the court refused to review any of those cases, which meant marriages would go ahead, families would be formed, adoptions would take place under a federal rule that said there was a right to marry a partner of the same sex and to be recognized as having married that partner. So flash-forward until we get the Six Circuit, which finally creates a conflict and the court then has to step in. But it's really -- seems to be at the last minute, you know, that the institution has so much that the idea of same-sex marriage has so much momentum behind it, the court would be putting itself in a very strange position if it suddenly said, No, you know, never mind. We didn't mean the earlier things we said.

  • 10:23:35

    REHMSo, Stuart, compare same-sex marriage to the interracial marriage decision back in 1967.

  • 10:23:46

    TAYLORSure. That was Loving versus Virginia. And Virginia and many other states still had laws that said not only marriage but sex among people of different races was a crime. And the Lovings were prosecuted for -- I think it was prosecuted -- for...

  • 10:24:05

    EPPSOh, yeah.

  • 10:24:06

    TAYLOR...getting married in Virginia, they were prosecuted. And they...

  • 10:24:09

    EPPSThey had to leave the state, totally leave the state.

  • 10:24:09

    TAYLOR...they had to leave the state. I think they got married in D.C. And that was a great landmark in civil rights. It was a little bit confused doctrinally because you were saying, you know, well, whites couldn't marry blacks and blacks couldn't marry whites, so where's the discrimination, right? And this one is a little bit that way. I'll say the biggest differences are you don't go to prison for having sex if you're gay. Back then you did go to prison for having sex if it's interracial. And it wasn't part of a still-existing system of oppression that covered every area of life. And so I think it's fair to say that the case for a constitutional right to gay marriage I don't think is as overwhelming as was the case then. But it's still pretty strong.

  • 10:24:57


  • 10:24:58

    LITHWICKI think that what's important, the important difference between this and Loving, the anti-miscegenation case, is that opponents of same-sex marriage say this isn't about marriage. Marriage has been the same for millennia. That was the word Justice Kennedy used in the first moments of oral argument. You are changing the definition of marriage when you say people of the same sex are entering into it. And so we're almost having a definitional fight right now about marriage, the right to marriage, which is protected by the constitution, or the right to do something else and call it marriage. And that really is, I think, the nut of the fight that's going on at the Supreme Court.

  • 10:25:37


  • 10:25:37

    EPPSWell, and one of -- that (word?) argument is seeming like the strongest argument that the states had for maintaining their bans. But what was fascinating was that during the oral argument, the states basically argued, well, no they want to change marriage into something -- gays are going to change marriage into something that's a about love. It's about mutual support. It's about commitment. Marriage has nothing to do with that. I'm really not caricaturing what was said. Marriage is only about biology and chaining parents to their biological children. And all of this talk about love and dignity and respect, literally, the state has no interest in that.

  • 10:26:16

    EPPSThat was an astonishing moment. And it was a moment when it occurred to me that the states had probably thrown away whatever chance they had to win the case.

  • 10:26:25


  • 10:26:25

    TAYLORI think one -- there are a lot of ways of looking at this. One way of looking at part of what's going on here is Roberts, and to some extent Kennedy and even Breyer and others said, for millennia, it's been a man and a woman. Marriage is a man and a woman. You know, who are we, nine unelected justices -- five unelected justices probably -- to come along and change everything? To which the counterargument is, well, what harm would it do?

  • 10:26:52


  • 10:26:52

    TAYLORIt's -- there are a lot of gay people to whom it's very important. Who would it hurt? And that's a powerful argument coming back.

  • 10:27:00

    REHMAnd there are lots of heterosexual couples who chose not to have children. So why bring in the whole having children aspect?

  • 10:27:14

    TAYLORWell, and the other thing was that if you go back to Justice Kennedy's opinion in Windsor, he talks about families and children of same-sex couples as suffering from discrimination. Very much, he says, this case -- we must hear the voices of these children. And the same thing is true here. Because if you say, oh, marriage is only about biological parenting, then you're saying, oh, well the adopted children -- and bear in mind, the Chief Justice is the father of two adopted children -- that was a very odd moment when the states started to go to the idea that adoption was a second-best way of forming a family.

  • 10:27:52

    LITHWICKAnd just a quick observation, Diane. It's so important to look at how the arguments against same-sex marriage have changed over the years. A few years ago, we were talking about, oh, it's bad for children. There's all this evidence. You need a mother and a father. All that has dropped out of this case. And what you're left with is exactly what Garrett Epps just characterized, this argument that marriage exists only to shackle parents to their kids. And that if you afford that to same-sex couples, heterosexual couples won't want marriage anymore. That's the best argument against it. That's really different from what we were hearing before.

  • 10:28:26

    REHMNow, Dahlia, let me take you then to the current presidential race and the candidates who themselves have expressed their opposition to same-sex marriage. How might a decision from the court in favor of same-sex marriage affect their standing?

  • 10:28:53

    LITHWICKWell, I think it -- there's going to be enormous blowback if the Supreme Court decide five to four, six to three -- as Stuart said, this is an unelected, nonrepresentative court imposing it on the country -- I think there will be significant blowback in the states that don't want it. I find most interesting, Diane, the way that everybody's trying to slice the salami and having candidates that say, well, I believe in gay marriage, but I would never go to one. Or I would attend a reception, but not the wedding itself. I think it goes to how fraught this has become. They are very few candidates who are willing to say, I know a gay couple and I disapprove of what they're doing.

  • 10:29:32

    LITHWICKAnd so then you get all these very, very freighted half arguments about, well, I would go to the ceremony, but I'd cover my eyes. And it seems to me that that shows you how completely insane the conversation is going to be.

  • 10:29:45

    REHMSo what would states, who have already expressly opposed same-sex marriages, do? Could they, in any way, continue to resist allowing same-sex marriage?

  • 10:30:03

    EPPSThey could not, if the Supreme Court comes down with an unambiguous -- and I think it would be unambiguous -- decision saying that same-sex marriage is a constitutional right. Now, there might be some justices of the, you know, some judges down there in the hinterland and maybe even the Supreme Court -- a State Supreme Court or two that would say, well, we're not doing what the Supreme Court says. But that would be more or less unheard of in modern times. It would take you back to the defiance in Little Rock at the time of desegregation. And that's not going to happen on a wide scale.

  • 10:30:33


  • 10:30:34

    EPPSOne thing I might add about the Republican presidential candidates, I would think that the ones who really hope to actually get nominated would be immensely relieved if this were taken off the table. I don't think they want to have to run -- and to get the nomination, they have to run against gay marriage. But to win the election, running against gay marriage is not going to be a plus. If you can just say, well, that's history. I think they would probably like that better.

  • 10:30:58

    EPPSWhat actually happens the day after a decision in Obergefell, if it upholds the right of same-sex marriage, is that the action shifts to the so-called religious objection issue, the question of to what extent can states proclaim that people whose religion requires them to dissociate themselves from same-sex marriage can refuse to be part of it. And in Louisiana, for example, the governor has tried to order that even state officials, you know, who don't believe in same-sex marriage, won't have to recognize them. And this is going to be a very intensely fought battle because there are parts...

  • 10:31:38

    REHMBut how do they fight it if it comes down that the Supreme Court favors the allowance of same-sex marriage?

  • 10:31:49

    EPPSWell, the answer to that will be, yes, we will recognize same-sex marriage. We have to perform them if the court says so. But people -- we don't have to recognize them. People don't have to serve same-sex couples. People don't have to...

  • 10:32:01

    REHMBut isn't that what the case is all about, in part?

  • 10:32:06

    EPPSWell, yes. I mean, the idea is, is marriage -- is same-sex marriage going to be equal. But on the other side, the argument is look at Hobby Lobby, look at the enormous deference that this court has given to religious objections to general programs. And a lot of people, you know, Bobby Jindal is really out front on this. A lot of Christians say, never same-sex marriage. I can't be associated with it in any way. And we're going to make that possible, which will have the effect of turning same-sex marriages into, you know, what Justice Ginsburg called skim-milk marriages.

  • 10:32:37


  • 10:32:39

    LITHWICKI think it's so important what Garrett is saying that at oral argument we heard over and over again from Justice Antonin Scalia, is this going to force ministers to perform marriages against their belief? Justice Kagan had to basically say to him, they already cannot be allowed to do that. But I think that Garrett is absolutely right, that the next front is going to be the cake bakers and the florists and the caterers who say, I simply have a religious objection. And like Hobby Lobby, despite the constitutional right to birth control, I will not participate. That's where the action is going to be in the coming year.

  • 10:33:13

    REHMSo what does that mean, that's where the action is going to be? I don't get it. If the court comes down and says same-sex marriage is legal and the cake bakers still resist, what happens next?

  • 10:33:29

    EPPSIt's much less about cake bakers, because that's -- really could be a First Amendment case. It's going to be about the daycare that doesn't want same-sex family children. And it's going to be about doctors and pediatricians who don't want to treat them. It's going to be about adoption agencies that don't want to place children with same-sex couples. Do they have a religious right to do that even though these couples are legally married. And these are very important for those couples.

  • 10:33:53

    REHMSo you're saying, it's going to go back to the Supreme Court in another form?

  • 10:34:00

    EPPSIt will be in court for sure.

  • 10:34:03

    REHMAnd you're listening to "The Diane Rehm Show." Stuart.

  • 10:34:09

    TAYLORIt could. But I think there's an important distinction here that I'm not sure we've captured yet. It's the difference between saying, the government must recognize and facilitate same-sex marriage and saying everyone, every cake maker and dress maker in the country must facilitate same-sex marriage. When the cake makers and so forth come along and say -- or when a religious school comes along and says, so now you want us to hire same-sex married teachers? You're going to take away our tax exemption if we don't do it? That does, I think, raise serious issues of freedom of conscience.

  • 10:34:43

    TAYLORAnd frankly, it's not going to be much of an obstacle to anyone. Anyone who -- gay people who want to get married are not -- are going to be able to get married with no trouble, even if some cake maker in time won't bake their cake.

  • 10:34:57

    REHMAll right. Let's move on to another case. And this is Elonis versus U.S. Garrett, tell us what that one's all about.

  • 10:35:11

    EPPSWell, Mr. Elonis was divorced from -- his wife left him and took the children. And he seemed to experience a sort of a breakdown. He began posting -- she got a protective order because of threats and threatening behavior. He was fired from his job because he was -- seemed as threatening to his coworkers. And he began putting up Facebook posts that seemed to be or claimed to be rap lyrics. And they were, you know, about how I'm going to find a gun, I'm going to find a school. How many kids can I take out? There's this many schools, you know, within so many miles of me. And the FBI came to investigate. And then he wrote a rap lyric about, cut the little FBI agent's throat. Leave her bleeding. You better come. I got a gun.

  • 10:35:54


  • 10:35:54

    EPPSYou didn't know. And so that he was prosecuted under a federal statute that makes it a crime to make threats. And the issue in the case was, did the government have to prove that he intended those things to be threats. Because he said, oh, no, they were just rap lyrics. Or is it enough to prove that a reasonable person would have known.

  • 10:36:17

    REHMIt's that phrase, reasonable person.

  • 10:36:20

    EPPSMm-hmm. Yes. And, you know, the issue really is, how much should the government have to show before they can put you in jail because you engage in intemperate or threatening speech. I think Elonis is guilty under either standard. That's what's interesting there.

  • 10:36:37


  • 10:36:38

    LITHWICKJust such an interesting part of this case, Diane and listeners, it would be amazing if you could go back -- you should go back and listen to oral argument, because so much of this is about rap music, something that the -- some of the justices who are approaching 80 may not be entirely familiar with. But, you know, Anthony Elonis said, I'm a rapper. I'm just like Eminem. This is performance art, this kind of extremely violent, threatening, First-Amendment protected speech is art. And so it's just an interesting question. The court has to grapple not just with this true-threats doctrine, and as Garrett said, the question of whether it's intended, but also about the nature of rap music.

  • 10:37:18

    REHMAll right. We've got to take a short break here. When we come back, we're going to open the phones. We're also going to talk about lethal injections. Stay with us.

  • 10:40:00

    REHMAnd welcome back. Just before the break, we were talking about the Elonis case, what is it that constitutes a reasonable person, this man who has been using really harsh language on the - on email but says that he's simply a rapper. What does whatever is handed down in this case mean for using Facebook and other social media in the context of the First Amendment, Garett?

  • 10:40:42

    EPPSYou know, I see this case as being less about social media as just about media generally. I mean, one of the fascinating things that went on during the pendency of this case was that federal prosecutors, state prosecutors in California, tried to put a rapper named Tiny Doo in prison for life simply because he made rap songs that he said glorified a gang. That, they said, made him guilty of the gang's murders.

  • 10:41:08

    EPPSSo you can see that there's a real desire on the part of prosecutors to use Facebook postings, to use Twitter, to use rap, in order to criminalize people, and the counter-argument is that when you do that, it is the marginal communities, such as rappers, who suffer. Right? I don't think anybody in this case has any sympathy for Mr. Elonis at all.

  • 10:41:32

    REHMAnother difference from in the past that makes the social media aspect salient is 20 years ago, if somebody threatened a murderer's wife, she heard him, but nobody else did, he denies it, where's the case. Now there's documentary evidence. Everybody who's reading Facebook see it, and that presents an issue to the court that it's never quite had to deal with in the same way before.

  • 10:41:55


  • 10:41:56

    LITHWICKOne other important layer to this case, I think, is that women feel that the stakes are very high for them, that what they perceive as threats is different. And we have good data showing that women experience horrible online abuse, horrible, horrible threats and really terrifying threats of violence that actually make them withdraw from social media, from blogs. And so one piece of this case that's really interesting is I think there's a difference between the way women and men experience online threats, and that's something that has to be a little bit on the justices' minds.

  • 10:42:32

    REHMAnd, you know, just to support what Dahlia is saying, the domestic violence legal community has very much lined up with the government on this. They're saying we have to be able to use this reasonable standard. We don't have to make a subjective inquiry into the individual's intent, and they feel very strongly about it.

  • 10:42:51

    REHMAll right, we got first email from Andrew in Fort Wayne, Indiana, who says, why did no one push back against the argument that marriage has not changed in millennia? The institution and meaning have often changed across time and culture. How can a justice get away with saying something so clearly false?

  • 10:43:19

    TAYLORWell, it's important to understand that Justice Ruth Bader Ginsburg did immediately push back against that, and she said, you know, when you talk about millennia, as recently as 100 years ago, 150 years ago, marriage was a completely different institution.

  • 10:43:33

    REHMAnd women were chattel within that institution.

  • 10:43:35

    TAYLORThere was what she called the civil death of a woman who no longer had a legal existence when she married. This institution historically is changing all the time. It didn't seem to make much impression. A lot of the justices have a sense of history, which is I looked it up in the big book, and that's what it says. And so actually arguing a sophisticated historical analysis didn't seem to go very well.

  • 10:44:00

    REHMAll right, I'm going to open the phones now, take a call from Madisonville, Kentucky. Jack, you're on the air. Go right ahead, please.

  • 10:44:11

    JACKYes, ma'am, how are you today?

  • 10:44:13

    REHMFine, thank you.

  • 10:44:16

    JACKGood. My question concerns - I'm a magistrate, some people will call it a justice of the peace. When the case on same-sex marriage is decided, would a minor government official, would it affect whether they have to do same-sex marriages, or will they have the same protections that a pastor would have?

  • 10:44:36

    REHMWhat do you think, Stuart?

  • 10:44:39

    EPPSI haven't done the research, but my guess if you're a government official, you're bound by the Supreme Court's statement of what people have constitutional rights to do, and you have to help. You know, you don't have to do a gay marriage, but if you're a government official, if you want to keep being a government official, I think you probably do have to do it. Now, there may be ways of kind of getting out of the way and deferring to the justice of the peace next door.

  • 10:45:08

    REHMAnd skipping your own responsibility. All right, to Spencer in Charlotte, North Carolina. You're on the air.

  • 10:45:15

    SPENCERGood morning, Diane.

  • 10:45:16


  • 10:45:18

    SPENCERI want to go back to the ACA.

  • 10:45:20


  • 10:45:22

    SPENCERHad the last Supreme Court decision on the ACA gone the other way, in other words had the states been forced to set up the Medicaid exchanges, then the case before the Supreme Court would be moot. Congress wrote the four words in light of having the exchanges forced upon the states. There was no fallback plan written into the law.

  • 10:45:48

    REHMYou're shaking your head.

  • 10:45:50

    EPPSYeah, I think actually we're confusing two issues. One is whether the states had to expand their Medicaid programs, and that did not involve exchanges. And the first case held that the federal government could not require states, as a condition of getting Medicaid funding, to expand eligibility for the programs. That's not a question about exchanges.

  • 10:46:09

    EPPSThere was never - everyone understood, going into the drafting of this statute, that the federal government cannot order the states simply to set up anything. States, under the 10th Amendment, cannot be required by the federal government to create new programs. So they wrote a provision that said we expect the states to do this. If they don't, the federal government will set up such exchange. And so the word such, again, is a sort of, you know, and this points you to it being the same kind of exchange. So the two cases shouldn't be confused.

  • 10:46:46

    REHMAll right, let's talk about this lethal injection case, Stuart, Glossip versus Gross. Tell us what it's all about.

  • 10:46:57

    TAYLORIt's basically about whether the lethal injection procedure used by some states creates such a risk of agonizing pain for the condemned person while he's dying...

  • 10:47:11

    REHMAs it did in at least one case.

  • 10:47:13

    TAYLORAnd there have been several botched cases. Perhaps most dramatically, for purposes of this case, there was somebody who was originally in this case who lost his motion for a stay and on January 15 was executed, and his last words reported as, my body is on fire. There's a fair amount of evidence - now people wonder, well, wait a minute, I put my cat to sleep, you know, people in Oregon get euthanasia, what's so hard about this. What's so hard about it for executioners is that the foreign drug companies that make the kind of drugs that make an easy execution painless refuse to let their drugs be used for that purpose...

  • 10:47:57

    REHMAnd why is that?

  • 10:47:59

    TAYLORBecause anti-death penalty activism has deterred them from it. So the states that need drugs for executions have had to fall back on a drug that that's reliable as the first drug. The first drug is the critical one in terms of painlessness because it's supposed to put you in a coma-like state so that even if things go wrong with the ones that kill you, it's not going to hurt you. But now they've got a problem where that drug isn't so reliable, and the conservative justices are frustrated, and that may be why they took this case.

  • 10:48:30

    TAYLORJustice Alito said something like, what we're dealing with is whether the judiciary ought to countenance a guerrilla war against the death penalty, designed to make it impossible to have a painless death penalty, and then therefore you can't do it. Meanwhile, states that want to have the death penalty if they lose - if this case goes the wrong way for them, are looking up - thinking, well, maybe we'll go back to firing squads and stuff like that.

  • 10:48:53

    REHMExactly, or hanging.

  • 10:48:56

    EPPSYeah, well, it's important to understand that these - this idea of the guerrilla warfare or the anti-death penalty activists who are causing all the problems is really a kind of a false narrative, that in fact the big problem with importing these drugs is that the European Union will not permit their companies within the union to export drugs that can be used anywhere in the world, including Pakistan, Bangladesh, all kinds of, that can be used for executions.

  • 10:49:24

    REHMBecause the European Union is opposed the death penalty.

  • 10:49:29

    EPPSRight, but that is a government. It's not some sort of guerrilla warfare. People are not - you know, there's a claim that there are threats and so forth. I've spent the last two weeks trying to find these threats. They're very elusive. It seems mostly to be that the European Union says no, you can violate human rights, U.S., if you want, but our companies cannot do it, just as won't sell torture equipment to governments in the Middle East.

  • 10:49:49


  • 10:49:51

    LITHWICKI think two things, Diane, that are important. One is that this oral argument, this whole case, became a proxy war about the death penalty. On one hand, it looked like it was a fight about whether we were - you know, we don't have sodium thiopental, so now we need midazolam, and that was the fight. But the real fight between the justices, and I want to assert here that it was one of the ugliest and most personal oral arguments I've ever seen, was the liberal justices saying, for instance Sotomayor, saying you're creating a substantial risk of burning a person alive who's been paralyzed.

  • 10:50:22

    LITHWICKThat's her view of this case, that we're torturing people. On the other hand, as Stuart said, the conservative justices saying you created this problem. We had a really great death penalty system, and, you know, guerrillas and activists screwed it up, and now we're using bad drugs. And it was to me fascinating because I think one of the things that's happened, as protest about these drugs has increased, is that the states have increased their secrecy.

  • 10:50:47

    LITHWICKAnd so they're getting drugs from all sorts of strange places. They procure them from these compounding pharmacies. Nobody knows what the states are doing, and I think the lack of transparency in these death penalty protocols is what was making the liberal justices very, very anxious.

  • 10:51:04

    REHMSo what about the public reaction, the public vote to abolish the death penalty? Does that get in here?

  • 10:51:15

    TAYLORI think it does in this sense. The death penalty is less and less popular. There's still a majority for it in the American public, but there are a lot of very committed anti-death penalty people. A lot of states have abolished it. And so going back to, say, firing squads is an option, and that apparently wouldn't - you know, that was remove this problem, right. But firing squads are kind of ugly. And I think one reason why the states moved to lethal injections is the idea that, well, it's painless, it's quiet, you know, it won't horrify too many people.

  • 10:51:50

    TAYLORWell, if you go back to methods that are more horrifying to more people, that increases the momentum towards opposing the death penalty and in some cases legislatively banning the death penalty.

  • 10:52:00


  • 10:52:01

    EPPSYeah, and if you go back to Baze versus Rees, which is the case that approved the three-drug cocktail, the earlier cocktail that was used for lethal injection, one of the things that the chief justice, in a plurality opinion, says is, well, the states have an interest. He in essence said the states have an interest in making it look humane, and so we need to have drugs that paralyze people and that make it look like the death is, but the court was less concerned in that case with whether it's actually painless and more, and this is the theory behind lethal injection since the '70s, was that it would look better if we did it this way.

  • 10:52:38

    REHMSo if, in fact, the court says these drugs will no longer be used, could another case come back regarding the death penalty itself? Is that what you might expect, Dahlia?

  • 10:53:00

    LITHWICKYeah, I mean, I think this case is quite limited. It's about the use of one drug, and you're just going to continue to see - you know, we'll just see cases about firing squads and asphyxiation and other things until the court rules definitively on the Eighth Amendment and the death penalty.

  • 10:53:15

    REHMAll right, and you're listening to the Diane Rehm Show. All right, let's take a call from Sara in Houston, Texas. You're on the air.

  • 10:53:32

    SARAGood morning. I was calling in about the same-sex marriage issue.

  • 10:53:35


  • 10:53:36

    SARAAnd as a Christian, I - my biggest thing is why the word marriage, and why is that so important because I think as a Christian, I have friends who have wonderful relationships, who are same-sex, but I struggle with using the word marriage because the marriage in my mind, it's for male and female. That's the way our bodies are made. When you say sex in the same-sex marriage, they are unable to have sex the way that the male and female can couple, and that to me is the biggest issues, how - why the word. Why is that, why is the word marriage so important?

  • 10:54:19

    TAYLORWell, this issue is very much present. It was present in the earlier same-sex marriage cases because the argument was made, for example in California, with the Proposition 8 case, they said gay couples can have every right a married couple has, we just can't call it marriage under California law, to which the answer of the lower courts was, oh, in other words, you are maintaining this different name simply to say that gay couples are inferior and not as good. It is - you know, the idea was this is a stigma, it's a brand of inferiority.

  • 10:54:54

    TAYLORAnd Justice Kennedy said this hurts the children of these marriages. They want to know they are part of families.

  • 10:55:01


  • 10:55:01

    LITHWICKAnd I think Sara hits on something really important we haven't mentioned, which is in this country, we conflate religious ideas about marriage with legal ideas about marriage. Marriage is, first and foremost in the United States, a legal institution. It's got a religious valence around it, we can't escape that, but it is both things. That's why this case is so very complicated.

  • 10:55:23

    REHMTwo quick cases I want to ask you about, Zivotofsky vs. Kerry, the Jerusalem passport case.

  • 10:55:31

    EPPSWell, in this case, Congress in 2002 passed a statute that said that if an American citizen is born in Jerusalem and wants to have Israel listed as the place of birth, then that person has a statutory right to that. And the Bush administration, and now the Obama administration, have consistently said two things. One, this will cause damage to our diplomacy, our attempt to reach a settlement.

  • 10:55:57


  • 10:55:58

    EPPSBecause the final status of Jerusalem is to be settled among the parties, and Israel is the occupying power in Jerusalem right now, but we don't recognize that as part of Israel. And they've also said this is not Congress' power, it's the executive's power.

  • 10:56:14

    REHMAnd what about the Arizona legislature on redistricting?

  • 10:56:19

    EPPSThis is a very consequential case because it determines whether the people of a state can say we are sick of this partisan gerrymandering that is producing gridlock in Washington, and we want to have neutral gerrymandering. They had an initiative in Arizona, where they said we want competitive districts, we don't want this done to protect incumbents, and the Supreme Court seems poised to say you can't do that, the legislature can do whatever it wants. It will be quite an important and, I think, negative decision if they reach that.

  • 10:56:49

    REHMStuart, very briefly?

  • 10:56:51

    TAYLORYeah, that - I agree with Garrett, the prediction, it didn't look good for that law. And it may be a case where those of who think it would be good to get away from this...

  • 10:57:00


  • 10:57:01

    TAYLORPolarization running smack, head-on into the language of the Constitution, which says the legislatures of the states decide these things.

  • 10:57:11

    REHMAll right, great round-up everybody, thank you so much. Stuart Taylor, Garrett Epps, Dahlia Lithwick, I know a lot more now. Thanks for listening, all. I'm Diane Rehm.

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