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It’s the last day of the Supreme Court’s current term. The biggest decisions are often announced in the final weeks. Last week the court handed down decisions on affirmative action and immigration. Today the court weighs in on what’s been called the most significant abortion rights case in a generation. The eight justices also issue opinions on the public corruption conviction of former Virginia Gov. Bob McDonnell and a case involving the Second Amendment. We discuss these cases and how the court has been affected by a vacancy on the bench since the death of Antonin Scalia last winter.
- Jeffrey Rosen President and CEO, The National Constitution Center; author of "Louis D. Brandeis: American Prophet"
- Nan Hunter Professor of law, Georgetown University Law Center; distinguished scholar at the Williams Institute at UCLA; contributor to The Nation magazine
- Stuart Taylor Author, journalist and contributing editor of National Journal; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It"
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Whole Woman's Health versus Hellerstedt is considered the most significant abortion rights case to come before the Supreme Court in decades. Here in the studio to talk about the abortion case and to other decisions, author, journalist and Supreme Court watcher, Stuart Taylor and Nan Hunter of the Georgetown University Law Center.
MS. DIANE REHMFrom a studio in Philadelphia, Jeffrey Rosen of the National Constitution Center and author of the new book, "Louis D. Brandeis: American Prophet." I do welcome your questions, comments. I look forward to hearing you. You can call us, 800-433-8850. Send an email to email@example.com. Follow us on Facebook or send us a tweet. Well, it's good to see all of you.
MS. NAN HUNTERGreat to be here.
MR. STUART TAYLORGreat to be here.
MR. JEFFREY ROSENWonderful to be here.
REHMNice to see you all. Nan Hunter, tell us about the Supreme Court and the Texas abortion restrictions.
HUNTERWell, I think the Supreme Court today actually gave such enormous hope to pro-choice advocates. In fact, I think it took back some of what advocates had seen as the cutting into Roe versus Wade that happened in the Casey decision. What happened this morning is that the court struck down, quite definitively, abortion restrictions enacted by Texas that had singled out abortion providers for -- especially two very specific and burdensome restrictions involved requiring that physicians have admitting privileged nearby and requiring abortion facilities to have the same facilities, essentially, as hospitals.
HUNTERAnd -- or ambulatory surgical centers. And this was enormously important because every since the Casey decision in the late '90s, states have been whittling away at the effective ability of women to choose abortions and in Texas, it had become quite outrageous in that there was a -- if this lower court opinion had been upheld, there would've been a huge amount of the geographic area of Texas where there was no abortion provider. Of course, that horribly affects especially disadvantaged women.
REHMThe vote in this case was 5-3, which means that had Justice Scalia remained on the court, the vote would not have changed. Justice Breyer wrote the decision. Give us the back story on that.
HUNTERWell, the -- it is enormously important that this case -- the outcome did not turn on the absence of Justice Scalia because that solidifies the effect of it in a very powerful way. The interesting thing about Justice Breyer writing the opinion is that Justice Breyer and Justice Kennedy had written dueling opinions in a couple of case, you know, about 15 or 8 to 15 years ago, but one was in 2000, one was in 2007, about the legality of late second term abortions, so-called partial birth abortions.
HUNTERJustice Breyer wrote for the court, in the first case, that the statute restricting those was unconstitutional. Justice Kennedy wrote, seven years later, that a very similar but different statute was constitutional. And, of course, Breyer wrote the dissent. So here you have Breyer and Kennedy joining in an abortion rights decision and I think it may position Justice Breyer as -- giving him the status of being kind of a heavy hitter on one of the most controversial issues that the court has faced and I'm sure will face.
HUNTERAnd that's something new. Justice Breyer has not taken that specific role in this particular type of issue.
REHMJeffrey Rosen, how do you see the importance of this case?
ROSENWell, I think Nan is absolutely right that this removes any fear that Justice Kennedy, who, as Nan says, had voted to uphold partial birth abortion restriction, has, in any way, retreated from his landmark decision in Casey saying that pre-viability abortions must be protected. And it's so significant that the court subjected these restrictions to what's called strict scrutiny. It refused to defer to findings that it might be possible that these requirements were justified by a medical necessity. Justice Breyer was withering about the effect of these restrictions on women.
ROSENHe noted that after the regulations came into effect, the number of facilities providing abortions dropped in half. Eight clinics closed. It would reduce the number of facilities to seven or eight clinics and their demand would go up five fold. He says it's impossible that they wouldn't be overburdened. And for this reason, there was a significant undue burden. Justice Thomas has an absolutely fascinating dissenting opinion in which not only does he criticize the court for subjecting these regulations to strict scrutiny to saying that they really have to be looked at skeptically.
ROSENHe calls into question the entire post-war constitutional juris prudence which held that personal rights, like the right to privacy and rights against discrimination, have to be protected more strictly than economic rights. And Thomas essentially says that both rights should be similarly protected, but he criticizes the court for treating abortion rights on the same level as other very protected human rights. So as Nan says, this is an unequivocal vote by Justice Kennedy in favor of protecting the right to choose before viability.
ROSENIt's also significant -- join it with Kennedy's vote to uphold affirmative action just last week. Justice Kennedy seeming to see which way the court is going and to side strongly with the liberals on two issues where he'd been more equivocable for and Justice Thomas, once again, criticizing Kennedy for saying, you know, the court is protecting affirmative action and abortion, but not economic rights. So whether it's a sign that Justice Scalia may be replaced by a Democratic president or just a decision by Justice Kennedy to double down on his previous decisions protecting abortion, it is a strong vote of favor of the right to choose by a majority of the court.
REHMAnd Stuart Taylor, one of the underlying questions in this case was whether the Texas law was necessary to protect women's health or just a pretext to prevent women from having abortion. Did the court address that at all?
TAYLORInterested kind of indirectly and the feeling you got was that the five in the majority thought it was largely a pretext that these laws were not really doing much about women's health. You know, maybe at the margins, they would've added a little bit of something. But that abortions are not really known as an unsafe procedure as Justice Ginsberg pointed out in a little concurrence. And, you know, it looked a lot like a pretext. And one telling thing about the dissents, they didn't say, oh, there's a terrible threat to women's health that we need these things to stop.
TAYLORThey argued on, you know, they made scholarly, procedural arguments that there had been an earlier lawsuit that should've precluded the court from deciding this one and that they struck down more provisions of these two laws than they really needed to to protect abortion right and that maybe it wasn't really going to close that many abortion clinics in a way that prevented women from getting services. So you got the feeling that the dissenters, and Justice Thomas was by himself, Justice Alito wrote a dissent also, joined by Thomas and Chief Justice Roberts, that they were picking around the edges of this.
TAYLORAnd I have to agree with what Jeff said about Justice Kennedy. I might go him one better. The argument after Justice Scalia's death is whether a new justice would make a solid 5-4 liberal majority. I think we may already have a solid 5-3 liberal majority if you look at the movement by Justice Kennedy not only in this case, but especially in last week's affirmative action case where he turned what everybody thought had been his juris prudence almost upside down.
REHMNow, we have a reaction from Planned Parenthood. Cecile Richards, president of the Planned Parenthood Federation of America, said we are thrilled these dangerous provisions have been struck down. This is a win for women. Every person must have the right to make their own personal decisions about abortion and we will fight like hell to insure they do. Nan Hunter?
HUNTERWell, I -- if I were working with Planned Parenthood, I would be celebrating this decision without question. In addition to striking down the restrictions in Texas, the court set a number of important metrics for standards for future challenges to abortion restrictions, saying that it is perfectly appropriate for courts to weigh the benefits and the burdens. And Texas had argued, well, no, you just look and see if there's a large burden, then -- and there isn't a large burden and the legislature had a reasonable basis or evidence before it to find that, then the court's role is over.
HUNTERAnd the five justices in the majority categorically rejected that and made clear that courts that are reviewing abortion restrictions in the future will use the higher standard, as Jeff mentioned, that they have an independent duty to review constitutionality.
REHMAll right. We're going to take a short break. When we come back, we'll talk further about other decisions the Supreme Court came down with today. Stay with us.
REHMAnd before we leave the abortion issue, on which the Supreme Court ruled today, the Texas Attorney General Ken Paxton said HB2, which was the case brought before the court, was an effort to improve minimum safety standards and ensure capable care for Texas women. It's exceedingly unfortunate that the court has taken the ability to protect women's health out of the hands of Texas citizens and their duly elected representatives.
REHMStuart Taylor, could the state of Texas do other things to somehow prevent women from having easy access to abortion despite the Supreme Court ruling?
TAYLORWell, I think the Supreme Court has made it pretty clear that they're going to strike down any rule that's going to impose big obstacles to women getting abortions unless there's a really important reason for it. Now protecting women's health is really important, but as we discussed earlier...
TAYLORI don't think the court really bought the idea that these provisions or any others that haven't already been adopted are necessary to protect women's health.
REHMAll right, and to you, Jeffrey Rosen, let's talk about Governor McDonnell. His total conviction was vacated. Tell us why the Supreme Court made that decision, and give us a little background.
ROSENSure, this is a unanimous decision by Chief Justice Roberts. It involves Governor McDonnell's conviction under the federal bribery statute, the Hobbs Act, which makes it a felony to take official action in exchange for anything of value. McDonnell was charged with violating the Hobbs Act, as well as the Honest Services Fraud statute and convicted of 11 criminal fraud counts.
ROSENHe said that his conviction endangered virtually every elected official who provide even small favors or gestures that don't affect government policy and that none of his actions involved official acts, and the Supreme Court unanimously agreed. The court held that an official act is a decision or action on a question in controversy, it has to involve a formal exercise of governmental power, it has to be specific and focused, the public official has to make a decision or take an action and that setting up a meeting or just talking to someone or organizing an event is not an official act, and therefore the jury may have convicted the governor for conduct that's not unlawful.
ROSENHis convictions were vacated, and as a result, it was a great decision for the governor, although he still may be retried. It's part of a series of decisions where both liberal and conservative justices have been suspicious of construing criminal statutes in ways that may endanger liberty, and the idea is that you have to give people fair notice of what they're being convicted of before they're convicted. And in that sense the McDonnell decision is related to another decision, which we can talk about in a moment, involving the Voisine decision, involving domestic violence.
ROSENIn that case, although the conviction was upheld by six of the justices, two of them, both Sotomayor and Thomas, dissented on the grounds that the statute didn't define domestic violence specifically enough to let people know what they were being convicted of. So we are seeing this civil libertarian, liberal and libertarian conservative coalescence here, and that was expressed unanimously in a very interesting McDonnell decision.
REHMStuart, you say that because of the instructions given to the jury in the McDonnell case that this became a case, a conviction very questionable.
TAYLORAnd the fact -- when this court overturns a conviction unanimously, you can bet it was very questionable, and I think...
REHMWhat was the matter with the way the jury was presented with the case?
TAYLORThey were instructed in a way that encouraged them to convict if they thought what he had done was sort of sleazy, if they thought he had accepted favors from this benefactor in exchange for official acts. And it came down to how do you define official acts. And it was defined very broadly in the jury instructions, and Chief Justice Roberts said no, setting up meetings doesn't really do it. You know, going to meetings, you know, being nice to people who give you money isn't an official act. It's an official act if you do something or if you order a subordinate to do something that causes a concrete benefit to the benefactor.
TAYLORBut I think Justice Robert's last few words were indicative of where they stand on this. And they all joined it, the chief justice. There's no doubt, he wrote, that this case is distasteful, meaning the behavior of the governor was distasteful. It may be worse than that. Where our concern is not with tawdry tales of Ferraris, Rolexes and ball gowns, it is instead with the broader legal implications of the government's boundless interpretation of the federal bribery statute, which they went on to show, I think convincingly, you know, if this conviction had stood, it would be a precedent for prosecuting just about any government -- elected government official who didn't get there as a billionaire without needing any help from anyone else.
REHMNan, what's your reaction?
HUNTERWell, I think what's interesting is what could happen next but probably won't, and that is that because this is statutory interpretation, Congress could redefine or clarify and make more specific within the bounds of any constitutional limits on vagueness exactly what they mean to include here. My prediction is there won't be such a refinement because there's...
REHMNot in their own self-interest.
HUNTERThat's right, in the same way that this was a unanimous decision by the court, not to impute partisan motives to justices, but I don't think there will be a huge move by either political party in Congress to amend the law to scoop up some of these tawdry events. And it's interesting to me because this was a jury decision to convict the McDonnells, and that might signify some of the difference between elites and populists in terms of what, you know, whether something should be criminal in a very colloquial sense.
REHMAren't people going to wonder, well, you know, a Rolex watch, probably a few, at least a few thousand dollars, a ball gown, at least a few thousand dollars, I mean, where does the line get drawn, Stuart?
TAYLORThe court went on at considerable length about where the line is drawn, and it would be kind of boring to go through every detail. But, you know, in one category, it would have you set up a meeting for somebody or went to a function with him, you pat him on the back, you introduced him to your health secretary, you know, and he gave you money. And the other side would be you told your health secretary, go buy some of this guy's stuff. That would cross the line into official act. But I think...
REHMBut what happens to his wife, who was the recipient of a great many things?
TAYLORI think if the Virginia authorities interpret this decision correctly, his wife's -- his wife's conviction will be thrown out, too, and neither of them will be prosecuted again. Now there may be populist -- there may be populist pressure to change the law along the lines you said, but there is -- the court also has an ace in the hole. He, McDonnell, said that if these laws were interpreted to validate his conviction, then they would be unconstitutionally vague.
REHMI see, I see.
TAYLORAnd so if there's a populist uproar, and if Congress passes a new law, don't be surprised if the Supreme Court says now you've gone too far.
ROSENYes, I think it's great that the -- this is an area that unite justices of all descriptions because it just shows a commitment not to construe vagueness against defendants. And remember Justice Scalia, the late Justice Scalia, was often on the side of defendants when it came to the right to confront accusers, when it came to Fourth Amendment rights against unreasonable searches and seizures. So on this polarized court, where we're seeing so much division on culture war issues like affirmation action and abortion, it's nice that on statutory issues involving federal crimes, the courts are uniting in favor of strictly construing criminal liability.
HUNTERI'm in favor of strictly construing criminal liability for the reasons that Stuart and Jeff have said. But, you know, vagueness can be resolved by specificity. And it's possible that Congress could rewrite the statute in a way that very specifically would say we believe, you know, this is where the line is, and if you cross this line, you're committing a criminal act, and then everyone is on notice.
HUNTERThe problem is that, I mean, this is how politics functions, and there's going to be, I would think, an enormous resistance to actually specifying, so that the law is not vague, that some of the acts that were engaged in are illegal.
REHMWell, pardon me for bringing politics into this, but isn't this part of the underlying reason why people are so furious these days, because politicians get away with stuff, and this is stuff that the ordinary human being would not, Stuart?
TAYLORWell, I think the court's attitude is this is -- you know, if what -- if this was illegal, you know, if the law could be applied this broadly, then almost all politicians are in danger of being prosecuted, which would...
REHMWell, they ought to be if they're taking stuff.
TAYLORWhich would put huge power to -- that could be abused in the hands of prosecutors. You could have a Democrat or Republican administration that's just looking for Democrats to prosecute, and we've seen that, or the other way around. And so I think I agree with Jeff. I think it's a good decision, and I think unanimity shows it's a good decision. There is one thing that's bothered me in this area. These people were taking personal benefits. These weren't campaign contributions. This isn't putting an ad on TV saying elect Governor McDonnell, and that is sleazier.
TAYLORYou know, it's sleazier to take the Rolex or the free vacation than it is to take $10,000 for a campaign ad. As of now, the law doesn't differentiate between those types of things.
REHMAnd that's what Nan is saying.
TAYLORAnd maybe it should.
REHMYeah, and you don't see any possibility of that really happening?
HUNTERWell, I would love to be surprised. I would love for both sides of the aisle to join together to reword the statute so that there -- so that people do have fair notice, so that politicians can know what to avoid and to scoop up, for example, the sorts of actions that Stuart just described.
ROSENBut I'd just like to add, it's a little afield, one of the great civil libertarians of our lifetimes, Harvey Silverglate, a Boston lawyer, wrote a book called "Three Felonies a Day." And the gist of it is the average American, or at least Americans of the sorts we know, commits maybe three felonies a day just in the course of everyday life. Example, when I sign my tax return saying I understood this, I committed a felony. I didn't understand it. Did you understand yours? That's number one.
REHMBut were you attempting to commit a felony?
ROSENWell, I would say no, obviously, I don't want to confess on the radio.
REHMYeah, well, that's my point.
ROSENBut I was interpreting -- but when I said I really understand everything in this tax return, I had a feeling, like...
REHMYeah, but that's pretty benign, that's pretty benign, and that's not harming anybody else or not taking something that really...
ROSENBut it's an extreme example, but the point of the book and the point of I think -- the point of this decision is if you give powers to prosecutors by looking at what they do in cases where people are really sleazy, then -- but if you give them overly broad powers, so they're going to go after people who aren't doing -- being really sleazy, and there's lots of examples of that.
REHMAuthor and journalist Stuart Taylor, he's at the Brookings Institution. He's co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It." And you're listening to "The Diane Rehm Show." And we have a caller in Texas. Let's open the phones. Hector, you're on the air.
HECTORHow are you doing?
HECTORGreat, great. No, I just wanted to kind of address the abortion issue here.
HECTORTexas, I was born and raised here, but as a gay man, I recently married my husband, it's really striking how Christian conservatives rebuff against, you know, black matters, rights, you've got the gay, lesbian, transgender rights, you've got abortionists, they just -- anti-abortionists, just -- it's just everything that those -- goes against their Christian beliefs, and it's just unfair.
HECTORWe pay our taxes, we are good citizens, but yet they have an issue with us, and that's the problem. If someone like -- my mom has said a woman's body is her own, a man has no right to say anything. It's not about him. It's about her, her decision, and that's where it lies.
REHMAny comment, Nan?
HUNTERWell, I would say that what you're really alluding to, of course, is a whole series of issues that have roiled American politics and law now for decades. And they all turn really on whose concept of morality is going to govern. And what the court has said, and it said it in Casey, the abortion decision that essentially got reaffirmed today and I think strengthened, it said it in Lawrence versus Texas, involving homosexual acts, it said it again in the marriage case, is it's not up to the state, to the law, to impose one moral code over another, that there has to be space in America for people to follow their own beliefs and live life in their important decisions according to the way that they feel is best.
HUNTERAnd issues involving sexuality and gender are very often the flashpoint where that -- those arguments arise. But I think what we've seen in, you know, in, you know, say the last 15 years has been a consistent statement by the court that it will hold back from imposing a moral code on everyone. And so I think it's a court that from your perspective and my perspective is moving in the right direction.
TAYLORI'll disagree just a little bit. I think the code -- the court is imposing a moral code on the country. The moral code says thou shalt respect gay marriage. And I do, but there are a lot of Americans who don't. Thou shalt respect virtually unlimited abortion rights, and I respect abortion rights, but I think the court is going very far towards displacing the judgments of the legislative bodies of the land, the elected officials, with the judgment of five unelected lawyers.
TAYLORAnd there's a danger in that if they overdo it, and they're getting close, I think.
ROSENJustice Kennedy said in the Lawrence and Texas decision that moral disapproval is not a legitimate basis for legislation. And the late Justice Scalia said this means the end of morals legislation, we're imposing John Stuart Mill's harm principle on an unwilling nation. Well, for better or for worse, this is now clearly the law of the land. It has been reaffirmed strongly by Justice Kennedy and by the liberal justices in this abortion case. So this drama that has gripped constitutional law ever since the 1960s is now settled, at least for the foreseeable future, and...
REHMAll right, and we'll leave it right there, short break, right back.
REHMAnd welcome back. You can tell we are here in the studio, continuing to talk about these latest decisions from the Supreme Court. And, Jeffrey, you mentioned the Voisine decision. Talk about that. It's about a man who apparently was involved in an abuse situation with his wife. And then wanted to carry a gun, shot one in the air. What happened?
ROSENThat's exactly what happened. Steven Voisine and someone else, William Armstrong, both plead guilty to these misdemeanor assaults on their domestic partners. They were both charged with violating a federal law that prohibits the possession of firearms by people who've previously been convicted a misdemeanor crime of domestic violence. And the question was whether these convictions qualified as misdemeanor crimes because they involved conduct that was supposedly reckless, rather than intentional.
ROSENIn other words, they didn't intentionally commit the violence. Under state law, the relevant offense included intentional, as well as reckless conduct. So basically what the majority of the Supreme Court held in a 6-2 split in an opinion written by Justice Kagan was that a reckless domestic assault qualifies as a misdemeanor crime of domestic violence. She based her decision on the statutory text, saying that the law doesn't distinguish between knowing and intentional and reckless domestic assault.
ROSENShe used the dictionary and she said recklessness includes the conscious disregard of a known risk. She also looked at the history, noting that many states have similar laws and Congress wanted to get at a broad range of abusers. In some ways the really interesting aspect of this case was the unusual bedfellows in the dissent. Both Justice Thomas and Justice Sotomayor were not usually together -- indeed, a recent "New York Times" study continued that they are now the most liberal and most conservative justices -- joined.
ROSENJustice Thomas said the federal statute didn't include reckless acts, but required intentional conduct. He parsed the word use and the words use of physical force. He looked at context. And, more broadly, he said we have to avoid construing statutes in ways that raise constitutional problems. The law's already very broad and it includes a lifetime ban on gun ownership for a single, intentional, non-consensual touching of a family member.
ROSENRemember, Justice Thomas broke his longstanding silence at oral argument in this case. It was right after Justice Scalia died and he asked a series of questions. And in his opinion here he drew on some of them. He noted that a mother who slaps her 18-year-old son for talking back to her, an intentional use of force, could lose her right to bear arms forever if she's cited by the police under a local ordinance.
ROSENSo in other words, he was concerned that people who comment violence recklessly, rather than intentionally, could lose their Second Amendment gun rights. And he continued in his dissent here, "The Second Amendment protects the right of the people to keep and bear arms. Today the majority expands the statute into patently unconstitutional territory. We treat no other constitutional right so cavalierly. I have little doubt the majority would strike down an absolute ban on publishing by a person previously committed of misdemeanor liable."
ROSENSo that was just a dramatic defense of Second Amendment rights. And it was so interesting that Justice Sotomayor, although she didn't join all of that Second Amendment stuff, also wanted to construe the law strictly not to cover the conduct in this case. Quite an unusual and interesting case.
REHMNan, do you want to comment?
HUNTERWell, just that what Jeff, Jeffrey just said. It was very interesting that Justice Sotomayor joined the portions of the decision relying on a strict definition under the terms of the statute, the criminal statute. Really, the same kind of thing that was at issue in the McDonnell case, in terms of strictly construing a criminal statute for the benefit of the defendant. But she did not join Justice Thomas's opinion as it went into gun rights, especially.1
TAYLORI think it's interesting that Justice Sotomayor, who's one of the few prosecutors on the Court, former prosecutors, is perhaps the most protective of criminal defendants' rights in the case, in all the kinds of cases that come before them. She was very passionate in dissent in a Fourth Amendment search case a week or two ago. She's in the -- she was with Thomas here. And, of course, she's in the majority in the McDonnell case on, you know, it a very different kind of a case. A politician charged with sleazy behavior.
TAYLORAnd -- but I think you need somebody to be holding down that end. I'm glad she's holding that -- down that end of the argument. And I also would emphasize in this whole context, especially the McDonnell case, the importance of unanimity. When the Supreme Court is unanimous or close to unanimous, I think -- I respect the decision more before I read it than I would otherwise.
REHMInteresting. Here's a comment on that case, saying, "Given the Court's deafness regarding their own ethics, paid trips, gifts, failures to report income from spouses, etcetera, the decision was expected. The Court is inherently conservative, supportive of bested interests, while harsh toward impoverished criminal. It defers to the quaint notion that those in power are able to police themselves. Experience shows they are not." Nan?
HUNTERWell, I'd certainly agree with the sentiment behind that, and actually the final part of it, in terms of self-regulation. And it's important to remember, again, not in terms of the legal question before the Court in the McDonnell case -- a decision that I would have joined if I had been on the Court. Because I agree that the statute was unconstitutionally vague, as it was being interpreted.
HUNTERBut apart from that, in a broader sense of ethics rules, there are a lot of different ethics rules that people are abiding by just within the beltway where we sit. Judges have a set of ethics rules. Members of Congress have a different set. Senior political appointees have a different set.
HUNTERAnd sometimes they can reach really kind of silly proportions and yet, at the same time, something else that is much more problematic can be lawful.
REHMSo is our emailer correct regarding the ethics of the Supreme Court justices accepting paid trips, gifts, failures to report income from spouses, Stuart?
TAYLORI think he has a point, he or she, the caller. They have been sloppy about appearances. They take too many free trips. Now, they disclose them, usually. They're pretty good about disclosing them. I'm not sure what the nondisclosure complaint was. And they're legal. But it does give an appearance of being part of the, you know, the kind of the privileged class. And at…
REHMWhat about the trip that Justice Scalia took when he died?
TAYLORIt was a typical example of the kind of thing they do. He got all expenses paid to go on a hunting trip with some rich guy with a bunch of rich people. Now, I don't think people, you know, who follow the Court closely think therefore he comes back and he votes for rich people. But it's not unfair for members of the general public to suspect that. And for that reason, I don't think they should accept so many freebies.
TAYLORI'd give them a raise so that they don't feel like they need to accept so many freebies.
REHMI'd give teachers a raise before I'd do that, Stuart. Here's an email from Dr. Harder, who says, "Indiana is overlooked, but we have very similar laws about abortion facility upgrades. Might the Courts ruling affect other states or is it too narrow?" Nan?
HUNTERNo, it's not too narrow. It will affect other states.
HUNTERThere, I mean, and there are any number of states where the laws are in litigation and some of the lower courts, the courts of appeal have struck down those laws on pretty much the same reasoning that the Supreme Court adopted today. But the Supreme Court's decision today really, of course, makes that approach the law of the land and will subject any laws that single out abortion providers in a way that is medically disproportionate to the medical risk of the procedure.
HUNTERIt will make those, as Justice Ginsburg says, she write -- she wrote a one paragraph concurrence. And the point of her concurrence I think was to hammer this issue of abortion laws being singled out. It was a point that was not emphasized so much in Justice Breyer's opinion for the Court. And she says that, "Target irregulation of abortion, provider laws will not survive judicial review."
REHMIn fact, haven't the numbers of abortions gone down rather dramatically?
HUNTERYes. I mean, that's -- that -- reasons for that may vary from place to place. I mean, in the Texas case they had very strong evidence about the number of abortions being roughly the same percent of the number of pregnancies until this law took effect. And then it dropped. They had evidence that some abortion clinics closed the day the law took effect. And then when a stay of the injunction was issued, those same facilities reopened. So they had some very dramatic evidence of the impact of the Texas law.
TAYLORThat all sounds right to me. Now, where the dissenters are coming in, Alito said generally we're very differential when state's pass laws that are supposed to protect health, etcetera, even when the laws seem kind of dumb, even when they're saying, say, opticians can't do what ophthalmologists can do or something like that. And, you know, Alito thinks that kind of analysis ought to apply in the context of abortion health regulations.
TAYLORAnd as Nan points out, when you say that abortion is a fundamental right, you bring in a whole different attitude towards whether to give the state the benefit of the doubt when they say, oh, we need to do this, that and the other thing to protect health. You know, the Court's gonna say, you really, do you really need to do that to protect health. And unless you got pretty good evidence, they're gonna say you can't do it.
REHMGo ahead, Jeffrey.
ROSENThat's exactly right. And the big drama here was is abortion the kind of regulation that is going to lead to differential scrutiny. And it's clear here that the dissenters really wanted to overturn that part of Roe v. Wade and Casey v. Planned Parenthood that said that when a fundamental right like abortion is at stake you can't defer. You have to be skeptical. And when Justice Alito came up with other hypothetical reasons that clinics might have ceased operations, like the withdrawal of Texas Family Planning funds and the nationwide decline in abortion demand, the majority said absolutely not.
ROSENWe're not gonna defer here. We're gonna look very closely at what the actual effect of these laws were. It's also interesting that Justice Ginsburg said, you're treating abortion different than tonsillectomies, colonoscopies, in-office dental surgery. These are all procedures that aren't subject to special health regulations. It's not fair to single out abortion. That's why this decision is so significant.
TAYLORAnd indeed childbirth. Right, Nan?
TAYLORI mean, you can…
HUNTERBut childbirth is much riskier…
HUNTER…than -- and here you have abortions and abortion facilities made subject to regulations that -- for -- that would apply appropriately to procedures with much higher complication rates. And there are lower complication rates for abortion than there are for cosmetic surgery.
REHMAnd you're listening to "The Diane Rehm Show." Finally, I want to talk a little bit about the impact of having only eight justices on the Court. And whether if Hillary Clinton is selected you believe that Merrick Garland, the judge nominated by Barack Obama, will be approved for the Court. Stuart?
TAYLORI think that's gonna be up to Hillary Clinton, if she's elected. Because…
REHMWell, but what about a lame duck…
TAYLORRight. But that -- but even the lame duck. Because McConnell, the Senate Majority Leader and other Republicans who have said we will not have hearings on Merrick Garland, their justification is well, the next president should be choosing the next justice.
REHMHe has said that, but…
TAYLORHe had said that. It's not easy for him to go back on that, but it would be easy if Hillary Clinton said why don't you guys just go ahead and confirm Garland, after she had become the next president. Then you would have had nowhere to hide. Now, it would require a total reversal of the principle he claims he's been espousing for him to give Garland a vote, unless Hillary sort of gives a thumbs up.
REHMWhat do you think, Nan?
HUNTERI think it would be to Secretary Clinton's benefit, if she's elected, that she immediately says, and I call on the Senate to confirm Judge Garland. Because I think it would demonstrate a kind of continuity with the Obama administration and would play well in terms of the politics of the Senate. Now, of course, the other big question for the lame duck session is who is gonna control the Senate come January. Will it still be a Republican majority or will it be a Democratic majority? And that's also going to play into the mix.
REHMJeffrey, how do you see it?
ROSENYou know, on the effect of Justice Scalia's death, plenty of people have predicted we'd see a lot of 4-4 decisions where the Court was deadlocked. But, in fact, there were only two, two big ones, the First Amendment case involving union rights and the very important immigration decision, which left in place the bar on President Obama's order. But Chief Justice Roberts was successful in coming up with a compromise in the contraception case, which sent it back to the lower courts.
ROSENAnd then for abortion, affirmative action and voting rights, we didn't see 4-4 splits, but sort of lopsided victories on the liberal side. So this is a Court that has been tending liberal even before Merrick Garland or another liberal is confirmed. And that just reinforces the huge importance of the election in determining the future of the Supreme Court.
TAYLORAnd also I think there's one complication on the Merrick Garland front, and full disclosure, he and I shared an apartment in law school together for a month or two and were friends and still are. And I think it'd be a terrific Supreme Court justice. But the president, if Hillary Clinton's elected, she will come under significant pressure from the left wing of her Party to dump Merrick Garland and adopt someone more -- and go for someone more liberal than he is. The very reason he was appointed is that he was the Democratic judicial appointee most acceptable to Republicans. He is liberal, but he's not very liberal.
REHMBut see, that's why I'm wondering whether Mitch McConnell might say we're gonna go ahead and approve Merrick Garland because we don't want Hillary Clinton to appoint someone more liberal.
TAYLORWell, I don't think that's how he'd set it, but I hope he does it. Let's put it that way. But I think, I think Hillary can make, Hillary Clinton can make it easy for him to do it or can make it hard for him to do it. That's my point.
HUNTERI think it would be, frankly, in the interest of both, a President-elect Hillary Clinton, if that's what happens, and the Republican Senate.
REHMAll right. We'll leave it there. Nan Hunter, professor of law at Georgetown University's Law Center, Stuart Taylor of Brookings, Jeffrey Rosen, president and CEO of the National Constitution Center and author of the new book, "Louis D. Brandeis: American Prophet." Thank you all so much.
REHMGood to be with you.
REHMAnd thanks, all, for listening. I'm Diane Rehm.
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