How the Supreme Court's move to the right could further transform life in the U.S.
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TERRY GROSS, HOST:
This is FRESH AIR. I am Terry Gross. The Supreme Court has become a conservative juggernaut, issuing far-reaching decisions that will transform American life. That's what my guest, Adam Liptak, writes. He covers the Supreme Court for The New York Times. The examples he offers include eliminating the constitutional right to abortion, recognizing a Second Amendment right to carry guns outside the home, making it harder to address climate change, and expanding the role of religion in public life.
With the court's new supermajority of conservative justices, we can expect the judicial philosophy known as originalism to be the framework for future decisions. It's a philosophy that tries to determine the original understanding of the Founding Fathers without addressing how everything from social norms to technology and weapons have changed over the centuries. This philosophy is likely to have a profound effect on future court decisions.
Adam Liptak, welcome back to FRESH AIR. The court seems divided in a way that seems more personal than ever, more angry than ever. And as an example, I'll give the joint dissent by the three liberal justices on the abortion decision. They write, the majority has overruled Roe and Casey for one and only one reason - because it has always despised them. The majority therefore substitutes a rule by judges for the rule of law. That sounds like a critique of the decision overturning Roe and a critique of the conservative supermajority. It also sounds like their dissent is sounding an alarm to the public. How do you read it?
ADAM LIPTAK: I agree with you that it's a very bitter critique of a court that seems to be in an exceptional hurry. The addition of three justices appointed by Donald Trump has created a conservative supermajority. So we now have six conservative Republican appointees and three liberal Democratic ones. And you might think that this coalition, which is likely to last for some time, can take its time to move the law to the right in incremental steps.
But instead, as that passage you read suggested, almost the moment the third justice, Amy Coney Barrett, arrived, the court overruled Roe v. Wade from 1973 and eliminated a constitutional right that had been in place for almost half a century. And that speed and the fact that it was based really solely on a change in personnel really is not a good look for the court and undermines the sense that it's an instrument of reason rather than power.
GROSS: So many Americans are still reeling from the overturning of Roe. Would you explain your understanding of the logic behind Justice Alito's majority opinion?
LIPTAK: There are two steps to it, Terry. The first is his analysis of whether the Constitution speaks to this question at all. He says that, you know, sort of obviously, the document doesn't include the word abortion, but he also says that a right to abortion can't be inferred from the provisions and principles in the Constitution. And it is true that Roe has been critiqued, including by prominent law professors on the left, as lacking a good theory at least in its first version when it was reaffirmed in Planned Parenthood against Casey in 1992. The logic of it was shored up, and to this day, probably the better way to think about Roe is an argument that was not made in Roe, which is that if women are to be full participants in the life of the nation, equal protection principles could be said to guarantee a right to abortion.
But anyway, Alito says there's nothing in the Constitution about it and it's so wrong that the court is going to take the rare step of overruling it, of deciding that what lawyers call the doctrine of stare decisis - that ordinarily, you stand by things decided, right or wrong - that the interest in consistency and public reliance and not making U-turns just because some new justices come on board - that all of those interests can be overcome because Roe was so wrong.
GROSS: So the Casey decision, which further restricted access to abortion but affirmed the constitutional right to abortion, that was based on the 14th Amendment - you know, equal justice under the law. But didn't Justice Alito say that that only - that the 14th Amendment only pertained to laws that were on the books when it was passed in 1868?
LIPTAK: Yeah, this goes back to the point you made a second ago, that this court is committed to originalism, and it asks the question of, what was the original public meaning of the 14th Amendment in 1868? And Justice Alito says, well, most states made abortion a crime back then. So it could not be that the people who drafted and ratified the 14th Amendment meant to guarantee a constitutional right to abortion.
GROSS: But those cases hadn't been tested yet 'cause the amendment was just passed. So I don't - I - like, I really - I'm baffled by the logic behind that. And also, it's supposed to apply to the future and to future laws and future interpretations of the law.
LIPTAK: Right. So I make two points. One is that the people he's talking about who drafted and ratified the 14th Amendment did not include one significant constituency, which is to say women. The people...
GROSS: Women couldn't vote yet.
LIPTAK: Right. And the second point is - and this is a - you know, the dispute about originalism versus what, broadly speaking, the alternative is - people call it sometimes living constitutionalism - whether the Constitution is a legal document like a will or a lease. Or is it something that sets out a general structure of principles and values that succeeding generations can and should apply to contemporary circumstances?
GROSS: Justice Alito, in his majority opinion, wrote that nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. What's the logic behind limiting such a profound precedent to just abortion?
LIPTAK: You know, that's like a sentence. That's an assertion that cuts against the logic of the opinion. The logic of the opinion would suggest that the right to same-sex marriage is at risk, the right not to have criminal laws against gay intimacy at risk. The right to contraception could be at risk. The right to interracial marriage could be at risk. And it's very nice that Justice Alito will write his sentences, don't worry. Nothing to see here. But as the dissenters point out in the abortion case, the law is about logic, not about assertions.
And in a concurrence, Justice Clarence Thomas, part of the majority, said, let's go. It's time for us to reconsider and overrule the same-sex marriage case, the gay sex case, and the contraception case. So I wouldn't feel a lot of comfort from the bland assurance by Justice Alito, who has written very bitterly about Obergefell, the same-sex marriage case, that the court is, as a matter of principle, going to stop here. Now, they may not have the votes, and I don't know that they have the votes of the chief justice and Justice Kavanaugh. They may not get to five on these issues. But, you know, it's very nice to write a sentence. But future courts are going to look at the logic of the decision not to promise that it stops here.
GROSS: Yeah. And Clarence Thomas, in the concurrence that you referred to, called the decision on marriage equality, sexual relations that aren't heterosexual relations and contraception, he called those decisions demonstrably erroneous decisions. How are they demonstrably erroneous in Thomas' point of view?
LIPTAK: In precisely the same way he thinks a right to abortion is not contained in the Constitution or inferable from the 14th Amendment and what the drafters and ratifiers of the 14th Amendment meant in 1868. He says, just as they didn't think about a right to abortion, they didn't think about a right to same-sex marriage. And they didn't, right? They didn't think about a right to be free from being prosecuted for gay intimacy. They didn't think about a right to contraception. You know, credit where credit is due - at least Clarence Thomas is transparent and frank about where the logic of the abortion decision leads.
GROSS: In Justice Roberts' concurring opinion, he would have upheld the Mississippi law banning abortion after 15 weeks but would not have struck down Roe. He's an incrementalist, as you describe him. But as an incrementalist, do you think that he would have liked to see this decision as one step closer to striking down Roe, but just, like, take it more gradually? But, I mean, do you think his ultimate goal would have been to strike down Roe but just more slowly?
LIPTAK: It's hard to say. I don't think John Roberts is a fan of Roe. But nor is he a fan of what he called at his confirmation hearings jolts to the legal system when the court moves too fast. So I think it's possible that Roberts, given his druthers, would have done it in stages. But I'm not sure he would go to zero. Fifteen weeks, he says, is OK. He says that still gives most women most of the time a fair opportunity to obtain an abortion. You don't overrule a constitutional right announced almost 50 years ago. And the majority says, well, wait a second. Then we have to decide whether 12 is OK, whether six is OK. And that's true. But it's possible, at least, that you have different answers, at least John Roberts would say, at different points in the process.
And I say that in part because while Planned Parenthood against Casey, which reaffirmed the core holding of Roe, which said you can't ban abortions before viability, before the fetus can survive outside the womb - these days, that's 23 weeks. The Mississippi law was 15 weeks. So the Mississippi law, without question, is in conflict with Roe. But what Casey said also is that women have a right not to have an undue burden placed on their right to abortion, that you shouldn't put substantial obstacles in their way. And you could imagine a world in which you had a shorter time frame in which to obtain an abortion, but that most women most of the time could do so. And while the comparison isn't perfect, because the social systems are quite different, in much of Western Europe, the nominal limit is 12 weeks.
Now, to be sure, it's easier to get an abortion there in those 12 weeks. The state will often pay for the abortion, so it's not a perfect analogy. But it's possible to conceive of a world being, you don't have 23 weeks. You maybe don't have 15 weeks. You have 12 weeks. And I think John Roberts might be willing to compromise around that number.
GROSS: You write that with the decision that struck down Roe, the court humiliated Chief Justice Roberts and rejected major elements of his jurisprudence. Can you explain what you mean by that?
LIPTAK: Well, the argument took place in December. It was clear that the argument that the chief justice had - a kind of compromise that would have meant a serious blow to abortion rights in the United States and would have been consistent with the chief justice's philosophy of incrementalism and his deep and abiding concern for the reputation and prestige of the Supreme Court. And the five justices to his right rejected all of that and, without question, did damage to the court's public credibility and confidence and moved much faster than the chief would have. So at least those two elements of his general judicial philosophy got no takers on a court that he is the supposed leader of.
GROSS: Well, let's take a break here, and then we'll talk some more. If you're just joining us, my guest is Adam Liptak, who has been covering the Supreme Court for The New York Times for 14 years. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. My guest is Adam Liptak, Supreme Court reporter for The New York Times. We're talking about the term that just ended and the court's swing further to the right with its new conservative supermajority.
Let's talk about the decision pertaining to guns and a state's ability to regulate who can carry a gun outside the home. And the Supreme Court struck down the state's ability for - to regulate guns outside the home. What was the premise of that decision?
LIPTAK: The case involved a New York law that required people seeking a license to carry a gun outside the home to have a proper cause, a reason to get a license, something that distinguishes that person's need for a gun from the average person's need for a gun. And the court said, wait a second. The Second Amendment guarantees you a right. And just as you don't have to explain to the government why you want to exercise your First Amendment right to speak or to practice your religion, you shouldn't be required to give a special reason to carry a gun in public, as you have to do in about half a dozen states. So it strikes down this law, which is, of course, a serious gun control measure in a very violent time.
But it does more than that. It also announces for the first time - I mean, Second Amendment law is quite underdeveloped. It announces for the first time that you have a Second Amendment right to carry guns in public. All we knew so far was that in 2008, the court said, you have a right to have a gun in your home for self-defense. Now they've expanded that right to you have a right to carry a gun in public for self-defense. And there are a lot of questions that are still unanswered. But that's a vast expansion of Second Amendment rights.
GROSS: That's another thing that I really don't understand about the originalist philosophy of the conservatives on the Supreme Court. If they want to follow as closely as they can the original understanding of what the founders wrote in the Constitution, why don't they notice that the Second Amendment applies to a well-regulated militia? So you've got militia, and you've got well-regulated, and yet they seem to oppose any regulation of individuals who are not members of a militia.
LIPTAK: So they read the first clause of the Second Amendment to be an illustration of what the amendment is about and not a limiting clause. And it'll make more sense if I just read you the text. It says, (reading) a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
So it's possible to read that provision in two ways - that the first clause about a well-regulated militia limits the scope of the second; another way to read it is that it's an illustration of a goal of the operative clause but not a limit on the operative clause. And, in truth, there's a lot of historical scholarship that points in both directions. The justices have written hundreds of pages about the right way to read this. But certainly to a contemporary reader, a perfectly natural way to read it is that it tells us something about militia service, not about, you know, packing sidearms in Chicago.
GROSS: So between the court's ruling on guns and its ruling on abortion, what kind of future court actions are you expecting to see?
LIPTAK: Well, there are a lot of unanswered questions in both cases. So the court has said states can do almost anything they like in restricting or allowing abortion. But there are unanswered questions. Like, for instance, what exceptions does a state have to include? What about a threat to the life of the woman? What about a threat to the health of the woman? What about a threat to the mental health of the woman? What about rape? What about incest? What about young girls getting pregnant? What about serious fetal abnormalities? All of that will be the subject of litigation. So if the court thought it was sort of shutting down this area, I think they're quite wrong. I think we are entering an area of a ton of litigation over all kinds of creative abortion restrictions and including, can states stop you or prosecute you for going to another state to get an abortion?
So on abortion, we have that can of worms. On guns - New York state quickly responded to the guns ruling by pressing on another aspect of gun control legislation. OK, you can't make people come up with a good reason to get a license to carry arms in public. But the court suggested that you can restrict bringing guns into sensitive places, and even the majority opinion said schools and government buildings - you know, the Supreme Court - you can restrict guns there. And the New York Legislature went much broader than that, including, say, Times Square and subways.
So we're now going to move from the question of what kind of reason do you have to give to get a license to where can you bring a gun to. And in a concurring opinion, Justice Kavanaugh, joined by the chief justice, also suggested that while you can't have a kind of subjective, discretionary regime for issuing gun licenses, you can have objective criteria - like mental health test, background tests, fingerprinting, firearms training. So it may be that even the licensing scheme is not completely dead. But you just can't sort of have government officials deciding who's got a special need to have a gun in public.
GROSS: So we can expect a lot of test cases on certain limits in both abortion and guns.
LIPTAK: Quite right.
GROSS: Let me reintroduce you here. If you're just joining us, my guest is Adam Liptak, the Supreme Court reporter for The New York Times. We'll talk more after a short break. I'm Terry Gross, and this is FRESH AIR.
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GROSS: This is FRESH AIR. I am Terry Gross. Let's get back to my interview with Adam Liptak, who covers the Supreme Court for The New York Times. He's been covering the court for 14 years. We're talking about the term that just ended and the court's swing further to the right with its new conservative supermajority.
You write that this is the most conservative Supreme Court term since 1931 and that the court's power is amplified because of gridlock in Congress. Would you explain the connection?
LIPTAK: Sure. The court issues two basic kinds of decisions. Sometimes, it tells us what the Constitution means, and those are basically showstoppers. There, the court essentially has the last word unless you get a constitutional amendment or a later court to overrule the decision. The constitutional decision is fixed. But a lot of their decisions are statutory decisions. They merely interpret what Congress said, and they say, well, we understand Congress to have said X. If Congress disagrees, they can, the next day, say, nope, that's wrong. We meant Y, and we mean it, and we're going to pass a new law. And that kind of dialogue between the court and Congress used to be commonplace.
In the '90s, they would routinely - Congress would routinely override Supreme Court decisions. You might remember the Lilly Ledbetter case about time limits in sex discrimination cases. Justice Ruth Bader Ginsburg in dissent says, I disagree with the majority - with what the majority said. And Congress, you should please act and change it. And Congress did. But now that we have a Congress that's essentially paralyzed by political polarization, you don't have that kind of dialogue. And that means that this court, which is already so ambitious and so powerful, becomes even more powerful because there's this - not this counterweight of dialogue between the branches, but the supremacy of a single branch.
GROSS: How do you expect that to be evident in the Supreme Court decision preventing the Environmental Protection Agency from regulating power plant emissions including carbon emissions that contribute greatly to climate change?
LIPTAK: If Congress were not so polarized, and if it followed the wishes of the average American voter, it would take some steps, perhaps more modest than some would like. But it would take some steps to address climate change. And it would say what was missing, according to the Supreme Court. It would say to the EPA, you can do this. You can't do that. We are going to take charge here. And we're going to amend the Clean Air Act - which hasn't been amended since 1990 - to give EPA at least some power to take bold action to address climate change.
But this Congress is incapable of reacting to Supreme Court decisions. And that means, as a practical matter, that the Supreme Court has the last word. But it's a funny thing. The structure of their decision is, we invite Congress to act, if Congress would only speak more clearly - in the full knowledge that it can't and won't.
GROSS: It appears that the court is intent on moving toward deregulation 'cause in another decision and - earlier, the court ruled that the CDC wasn't authorized to impose a moratorium on evictions during the early days of the pandemic and that the Occupational Safety and Health Administration wasn't authorized to tell large employers to have their workers vaccinated or undergo frequent testing. So are these decisions weakening the power of all regulatory agencies?
LIPTAK: Yes. Let me answer in a narrow way and then in a broader way. The narrow way is the court has lately adopted and given real teeth to what they call the major questions doctrine. It says that if an agency is to address an area of important political or economic consequences, it has to act on the basis of particularly clear congressional authorization. It's not enough that the statute in question seems to give them power. It has to be an explicit mandate. That's a new idea.
It's also part of a general conservative project to undo what they call the administrative state. They're very unhappy about agencies vigorously regulating American life. And through all kinds of theories and means, they've tried to undermine the ability of people they would call unelected bureaucrats to issue regulations on public health, on the environment, on all kinds of things. And they do it often in the form of, this is for Congress to address, not for the executive branch and bureaucrats. And there's a general suspicion of expertise.
And here again, this would make a trifle more sense if we had a Congress that was prepared to act. But again, in kicking this over to Congress, when Congress is not going to react, the Supreme Court essentially makes itself the regulator in these areas.
GROSS: You know, it's interesting to contrast the majority and minority opinions on the EPA ruling because as you've pointed out, the majority opinion doesn't mention climate change, but the dissenting opinion does.
LIPTAK: So sometimes, the conservative majority writes these formal, legal opinions that don't even mention or take account of the crisis in question - whether it's the pandemic, whether it's climate change - and has a kind of blinkered view of the role of law and executive agencies when - I think everyone would agree - something needs to be done. And yet the court says the agency can't do it. Congress won't do it. And we're just going to sit here and see what happens.
GROSS: Well, let's take another break here, then we'll talk some more. If you're just joining us, my guest is Adam Liptak, Supreme Court reporter for The New York Times. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Adam Liptak, the Supreme Court reporter for The New York Times.
So there's a big voting rights case coming before the Supreme Court next term. Would you describe that case?
LIPTAK: Yeah, this is what an election law professor called an 800-pound gorilla of a case. The Constitution has a couple of provisions in it that says state legislatures get to set voting rules for federal elections. And, you know, that's fine so far as it goes. Congress can override the state legislature. But lately, the court has been very intrigued by what it calls the independent state legislature doctrine. And what's important about that is that people who promote that doctrine say, yes, the state legislature gets to set the rules, and nobody at the state level has anything more to say about it. The state Supreme Court can't say this violates the state Constitution. Executive agencies can't say voting rules ought to be different because of the pandemic, that the legislature gets to act by itself unmoored from the state Constitution.
And that means that, for instance, maps struck down as partisan gerrymanders by a state Supreme Court don't stay struck down, that the state legislatures, which are, these days, most of them controlled by Republicans, get a lot more room to maneuver. And if the court has agreed to hear this case, we don't know yet whether it's going to adopt the independent state legislature doctrine. But at least four justices have indicated that they think the doctrine has real force. And that means in the 2024 election, this could have a vast impact on how those elections are conducted.
GROSS: So with state Supreme Courts no longer having the ability to overturn electoral decisions from the legislature, even if the state Supreme Court considers those new laws to be unconstitutional, those new laws pertaining to voting rights and elections, is it conceivable that this could lead to the possibility of state legislatures appointing fake electors consistent with the scheme that Trump and his lawyers and other of his supporters had to use fake electors to overturn the 2020 presidential election and hand it to Trump instead of Biden?
LIPTAK: That's certainly what legal experts fear.
GROSS: So if the Supreme Court says next term that state Supreme Courts have no ability to overturn unconstitutional election laws, does that mean that state legislatures, which are now largely Republican-controlled, will have absolutely no oversight?
LIPTAK: The only oversight comes from Congress. And just to repeat myself, Congress doesn't do anything.
GROSS: So that leaves a lot of room for things that might not be constitutional.
LIPTAK: Let me read you one of these clauses because this gives you a sense of the kind of formalism that may be attractive to some justices. The clause at issue in the case the court's going to hear, the elections clause, says, the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. And you can have a kind of wooden literal reading of that, that the legislature is the only body that counts. But legislatures are, of course, embedded in a legal system and are subject to a state Constitution and are subject to review by the state Supreme Court and to read the elections clause to promote the legislature to this kind of position superior to every other organ of state government would be quite a step.
GROSS: I mean, that undermines the whole democratic principle of checks and balances that we were allegedly founded on.
LIPTAK: Right. Now, I guess the other argument is that the framers meant to pluck this organ of a state government out of the general scheme and empower them. Legal scholars say there's no historical evidence for that, and there's no good reason for that.
GROSS: What recourse do state Supreme Courts have?
LIPTAK: At the moment, they maintain their power. But should the Supreme Court rule in a different direction and say that state legislatures in the election setting and in rules governing federal elections get the last word, the state Supreme Courts would be cut out of the process. Now, I should say that state Supreme Courts are not impervious to partisanship. Many of them are elected on partisan lines and may be influenced by politics. But, still, they almost certainly have a greater commitment to neutral principles of the rule of law than state lawmakers.
GROSS: Let's look at religion and the major decisions that the court made on religion this term. The most recent one involves an assistant coach who prayed on the 50-yard line after games, and the court upheld his right to do that. What was in contention in this decision?
LIPTAK: This case really captured the imagination of my readers. I think I probably got more feedback, more online comments, more readership on this case than in some ways the big cases we were talking about. People really care about this case. The question in the case was, did a high school football coach have a constitutional right under the First Amendment's free exercise of religion clause and under its free speech clause to pray at the 50-yard line after his team's games? And what was odd about the case was that the two sides - and I should say the majority in this dissent have completely different accounts of the facts of the case. To hear the majority tell it, this was a fleeting, private moment, little different from saying grace before a meal. And they said a teacher or coach doesn't leave his or her constitutional rights at the schoolhouse gate and taking a knee for a moment and saying a prayer is protected.
Now, to hear the other side tell it, this coach routinely and for years led prayers in the locker room, prayed with his students on the field, and students felt coerced to pray with the coach. And you saw pictures - Justice Sonia Sotomayor, in her dissent, including pictures which indisputably showed crowds of people kneeling and seemingly praying with the coach. And then there's a lot of factual dispute. Well, was that in the relevant time period? Is that what the school disciplined him for? Were those his players or players from the opposite team? She had this very unsatisfactory dispute about the facts.
But it does seem that this is another 6-to-3 case divided along the predictable lines, and this does seem to be part of a general trend of the court being quite sympathetic to religious people and groups and, I should say, Christian people and groups in particular, in its jurisprudence and really elevating the place of religion in public life. It wasn't so long ago that the court was very wary of prayer in schools.
GROSS: Is the court elevating the religious rights of Muslims?
LIPTAK: There are scattered cases where, say, a Muslim prisoner is allowed to have a beard. But the cases that reach the court - and there have been studies on this - these days, in contrast to the Warren Court in the '50s and '60s, which tended to protect the religious rights of dissidents and minority sects, these days the cases the court agrees to hear almost always involve Christians.
GROSS: Are there other ways the court has recently expanded the place of religion and public life, kind of blurring the line between church and state?
LIPTAK: The court has methodically made it easier for religious schools to get public aid. The case this term was part of this trend - concerned a Maine law. Maine is so rural that a lot of places in Maine don't have their own high schools, and under the state's policy, it sometimes contracts with nearby high schools and sends kids to those, or it will pay for part or all of the tuition at private schools. But the state says, we don't want to pay for religious schools. We want to maintain separation of church and state. We want to replicate the public school experience. If you send your kids to a private school, we'll pay your tuition, but if you send them to a religious private school, we won't. And the Supreme Court said, nope, if you're going to pay for anybody's private schooling, you have to treat religious schools the same way.
GROSS: Well, let's take another break here. If you're just joining us, my guest is Adam Liptak, Supreme Court reporter for The New York Times. We'll be right back. This is FRESH AIR.
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PATTI SMITH: (Vocalizing).
GROSS: This is FRESH AIR. Let's get back to my interview with Adam Liptak, the Supreme Court reporter for The New York Times. We're talking about the term that just ended and the court's swing further to the right with its new conservative supermajority.
Clarence Thomas, Justice Thomas, didn't recuse himself from a decision regarding former President Trump's request to block release of White House records pertaining to January 6. Then, a couple of months later, it became public that Thomas' wife, Ginni Thomas, who's a conspiracy theorist, wanted to overturn the results of the 2020 presidential election. She even texted Trump's chief of staff, Mark Meadows, urging him to take action. There will be other decisions pertaining to January 6 likely to come before the Supreme Court. My understanding is, like, no one has any power, except for Thomas himself, to decide whether he needs to recuse himself from decisions pertaining to January 6 because of his wife's involvement in trying to overturn the election. What's your understanding of that?
LIPTAK: That's my understanding. Also, I want to add one thing to what you said, Terry. He not only didn't recuse himself; he was the sole noted dissent in favor of former President Trump. So he was an active participant on the other side in that case. And experts in legal ethics say he was obliged to recuse himself. There's a federal statute that seems to say just that. But as you say, the way the Supreme Court is set up, each justice gets to decide for him or herself whether to recuse. There's an old adage that you shouldn't be a judge in your own case. But this is an exception to that adage. Now, the court will say, what's the alternative? Are the other members of the court supposed to vote if someone can't hear a case? If they were to do that, would they act for strategic reasons to try to block someone from participating in a case that they don't want on the case? So there's no easy answer other than to hope and trust that the justices will follow the law.
And I guess we don't know for sure what Justice Thomas knew when he dissented in that case. But it's very hard to imagine. He talks all the time about how close he is with his wife and how they're life partners - very hard to imagine he didn't know about her activities. And that really, in the eyes of almost all legal ethics experts, should have required recusal. Now that this has become a matter of public controversy, when the next case arises, it'll be very interesting to see what Justice Thomas does.
GROSS: Stepping back for a minute, was there anything - you've been covering the Supreme Court for 14 years. Was there anything this term that really took you by surprise?
LIPTAK: Terry, I was pretty confident going into the argument of the abortion case that the position sketched out by Chief Justice Roberts, that they'd uphold the Mississippi law but not do something as dramatic as overrule Roe v. Wade, that that would be the position the court would come out at. And when the argument made clear that they were ready, you know, kind of moments after they achieved their supermajority, to overrule a 50-year-old precedent, I thought, man, we are in for a different Supreme Court. This is not what I expected. That was a surprise. The ultimate decision, not so much of a surprise - one, because of the argument, two, because of the leaked draft of the majority opinion. But that moment at the argument when it seemed clear that there were five votes in a case that didn't even present the question to overrule Roe v. Wade, I thought, this - you know, from here on in, I'm covering a different Supreme Court.
GROSS: Some people who are very concerned about the far-right supermajority on the Supreme Court now think that President Biden should increase the size of the court and appoint more justices to counterbalance the conservatives and dilute their power. What would the impact and possible consequences of that be if it happened, if the president decided to actually do that?
LIPTAK: Well, the president would need Congress to be on board, and that doesn't seem likely in light of the filibuster rule in particular. But assuming it happened, it wouldn't be out of keeping with other instances of the size of the court going up or down over American history. It used to be fairly commonplace for the court to become bigger or smaller, and it doesn't require a constitutional amendment. It only requires legislative action. So it could be done.
I think the fear would be that there would be a tit-for-tat response of the next time Republicans controlled the government. But there's a school of thought among progressives that this is a break-glass-in-case-of-emergency moment and that it requires dramatic action to increase the size of the court, to stop the court from moving to the right. There's not substantial public support for the idea, I think, even now.
Another thing progressives would say is, well, you shouldn't be concerned about tit for tat because if the shoe is on the other foot, Republicans would, without question, continue to play the kind of hardball we've seen them play. And progressives would say, they would act. Why shouldn't we?
GROSS: Adam Liptak, thank you so much for coming back to our show. We often have you on at the end of a Supreme Court term, and I'm so glad we got to do that this year.
LIPTAK: Thank you, Terry.
GROSS: Adam Liptak covers the Supreme Court for The New York Times. If you'd like to catch up on FRESH AIR interviews you missed, like this week's interview with pediatric neurosurgeon Jay Wellons or our holiday archive interviews with the great soul singer Al Green, check out our podcast. You'll find lots of FRESH AIR interviews. And if you want to hear stories from behind the scenes at FRESH AIR, check out our newsletter. You can subscribe via our website, freshair.npr.org.
(SOUNDBITE OF TED NASH'S "WATER IN CUPPED HANDS (AUNG SAN SUU KYI)")
GROSS: FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Sam Briger, Lauren Krenzel, Heidi Saman, Therese Madden, Ann Marie Baldonado, Seth Kelley, Susan Nyakundi and Joel Wolfram. Our digital media producer is Molly Seavy-Nesper. Thea Chaloner directed today's show. I am Terry Gross.
(SOUNDBITE OF TED NASH'S "WATER IN CUPPED HANDS (AUNG SAN SUU KYI)") Transcript provided by NPR, Copyright NPR.