ACLU Legal Director David Cole on the Supreme Court's Uncertain Future (ep. 3)

July 5, 2018
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An eventful Supreme Court session just came to a close. This year, the court handed down major decisions on partisan gerrymandering, warrantless searches and seizures, union dues, the religious rights of business owners, and the Trump administration's notorious travel ban —  to name a few. But the most consequential news from the court came once the session ended, with Justice Anthony Kennedy announcing his retirement. ACLU David Cole looks back on the most important cases of the session, and considers the court’s very uncertain future.

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LEE ROWLAND
[00:00:00] I'm Lee Rowland, and this is At Liberty, from the ACLU: the podcast that explores the biggest civil rights and civil liberties issues of our day.

[00:00:22] The Supreme Court's latest term just ended and it was a doozy. The court issued major opinions on partisan gerrymandering, warrantless searches and seizures, union dues, political speech, the religious rights of business owners, and the Trump administration's notorious travel ban, just to name a few. We also know now that it was Justice Anthony Kennedy's last term on the court, bringing an end to his thirty-year reign as a swing vote. The ACLU has been involved in many of these cases. And today we have the ACLU’s Legal Director, David Cole, here to reflect on the court's past year and its future. David leads and supports a nationwide litigation program with more than 300 staff attorneys, 1,700 cooperating attorneys and more than 1,400 active lawsuits. He's had a long career as a civil rights lawyer, a professor, and an author before coming to lead the legal department at the ACLU. Welcome David.

DAVID COLE
Thanks for having me, Lee.

LEE
[00:01:26] David let's please start with the good news, assuming there is at least some. What was the best Supreme Court decision we got this year, at least from your point of view?

DAVID
Well I think without question it’s Carpenter versus the United States, the case holding that the Fourth Amendment protects the information that cell phone companies collect about our location when we walk around with our cell phones. This was really a case about whether privacy will survive in the digital age, because the government's argument in this case was when you buy a cell phone and walk around with your cell phone and it pings the cell phone tower in order for the phone to connect to your Internet service provider or to anyone who's calling you or you’re calling, you've shared that information with the phone company, and so you have no expectation of privacy in it. And therefore, the Fourth Amendment — which generally requires the government to get a warrant for probable cause before it can invade privacy — has no applicability. And, if that's the case, it wouldn't be just cell phone location data that the government could get without a warrant. It would be any anything you do on your phone, on the internet, because all of that is shared with and if, as the government had argued, you thereby surrender all constitutional protections, then privacy would be dead.

LEE
[00:03:00] Why would the government be able to credibly argue that just because a third person saw it, you don't have any constitutional right to privacy?

DAVID
Right. Well you know the government actually had precedent on its side. And the precedent…You I think it makes sense in that sense. You know you can't really expect that the person you're speaking to — an ordinary person — will keep your secrets. You don't have a right against that.

LEE
Sure.

DAVID
But when you transpose that doctrine adopted in the analog age to the digital age, it just blows a hole in privacy that is unclosable. Because, again, virtually everything we do these days is recorded in some digital form. And that recording is maintained by some company. And if that meant that the government could get all that information just by going to those companies and saying, “Give me, you know, all the all the e-mails Lee Rowland has sent over the last six months or all the web pages she’s searched…”

LEE
God help us all. [laughs]

DAVID
[00:04:03] You know that I think that's, that's really creepy notion of government surveillance and so, it's very good that we won that — critically important to preserving privacy in the digital age. One of the surprising things was that we won it only by five to four. And it took Justice Chief Justice Roberts to join the liberal justices to give us that majority

LEE
Carpenter — this decision about cell phone data — isn't the only case that came out this term on the Fourth Amendment. The court also protected the privacy expectation of rental car drivers in a different case and in another one, held that the cops can't generally search a vehicle parked in someone's driveway without a warrant. And I'm wondering if you have any thoughts on why the Fourth Amendment seems to be so powerful and be able to garner these majorities on this court.

DAVID
[00:04:50] Well, I think there's two things. One is that privacy, which the Fourth Amendment protects, is something that is supported by people across the board — by libertarians as well as liberals by many conservatives. Secondly this court, the Roberts Court in particular, has really gutted the remedies for Fourth Amendment violations. The principal remedy for a Fourth Amendment violation is called the exclusionary rule: It’s the notion that if the government gets information from you by violating your Fourth Amendment rights then it can't use it in a criminal case against you. And the Roberts court has systematically destroyed the exclusionary rule. And as a result they can sort of robustly to protect the Fourth Amendment with decisions, knowing that in many, many instances it will not lead to the exclusion of evidence from a criminal case.

LEE
So, that was officially the good news segment of the podcast. Tell us what you think the worst news is that we saw come out of the court this term, from a civil rights point of view.

DAVID
Well, the most consequential news was, of course, Justice Kennedy's retirement. That just is going to shape the court for a generation to come, in all likelihood. And if his seat is replaced by a conservative, rigid, right-wing justice, you're going to have five conservative right-wing justices on the court and that's going to be, I think, a disaster for civil rights and civil liberties for a long time.

LEE
[00:06:31] And for listeners on tender hooks, I promise, I really want to fully discuss Kennedy's retirement and your thoughts on what's next. For purposes of this depressing question though, I'm wondering what you would identify as the opinion that the court has issued this term that you think has done the most damage to individual liberty.

DAVID
Well there's… that's, that's so hard, Lee. There are so many choices. I mean, I think the Muslim ban decision is… is really very, very disturbing. I mean here you've got the president of the United States who promised to ban Muslims, said he would do it by targeting territories, put that in place a week after taking office, doubled down on that promise repeatedly as president in tweets and otherwise. And the lower courts had all struck down every version of the Muslim ban. And the Supreme Court takes it up, and upholds it 5 to 4. And to me what is most disturbing about it is they didn't dispute that President Trump acted out of anti-Muslim intent. They essentially said, “so what?” They essentially said, “Even if he was acting out of anti-Muslim intent, we're going to apply what's known as rational basis review — the most anemic scrutiny that the court applies.” And if there's--

LEE
[00:07:54] Just to break in, David, sorry when you say scrutiny what you're describing is how carefully a court will review the justifications given by the government. Is that right?

DAVID
Yeah that's right. So, and under rational basis review, the court basically says, if we can conceive of a possible rational justification for this law or this act we will uphold it, regardless of what the actual justifications or actual purpose of the act is, and regardless of whether the act actually furthers those purposes. And so here they said, well, as long as there's any plausible national security justification for what the president was doing we're going to uphold it even if we know he did it to target Muslims because he believes Islam hates us.

LEE
We have a court that's kind of tying itself in knots to kind of put on a theater of rationalizing away an intent that is plain for all of us to see. Do you think the courts are able to handle something as norm-busting as a President Trump? And what does it say about how this court is going to look at his actions going forward?

DAVID
So, you know, I think they could handle President Trump. They didn't. They weren't willing to. They weren't willing to spend the capital, or what have you, to stand up against the president on behalf of the millions of Muslim Americans and Muslim foreign nationals who were targeted by this ban. I think it's a failure of duty. The whole idea of separation of powers and judicial review is that the court is there to stand up for constitutional rights when the government violates them, and never more importantly then when the most powerful actor in the government violates them. I imagine we'll talk about Masterpiece Cakeshop, but in that case the court went out of its way to excoriate a low-level Colorado Civil Rights Commission Member for having made a stray remark that they considered to be anti-religious. And they rested their decision on that. Here, by contrast, the president of the United States explicitly said he's going to keep out Muslims and this is how he's going to do it, and they looked the other way.

LEE
What did you make of Justice Kennedy's concurrence in the travel ban case, and can you tell us a little bit about what it said?

DAVID
[00:10:27] This is interesting. This is Justice Kennedy's last opinion as a justice because he didn't write in the two cases that came down the following day, and this was the second to last day of the court's term. And he writes a two-page concurrence in which he says, “I join fully the majority opinion of Chief Justice Roberts, writing for the five conservative justices on the court. But the fact that we are upholding the president's action doesn't mean that he's not bound by the Constitution including the establishment clause and ought not exercise self-restraint to abide by the Constitution.”

First of all, the notion that you're lecturing President Trump on self-restraint, I mean he is the last person I think you could expect to exercise self-restraint. But secondly, the court's role is to rule — when the president acts unconstitutionally — against him and to demand that he abide by the Constitution, not to sit back and let him violate the Constitution and say, “Oh but we really wish you would abide by the constitution even though we're not going to require you to do so.” And Justice Kennedy knows this. Justice Kennedy wrote the opinion for the Supreme Court in a case called Boumediene versus Bush in 2008, which involved the habeas corpus judicial review of the detentions of the people being held at Guantanamo. And, in that case, the president said these people are enemy combatants. And Congress said we don't want courts to review these detentions because we want to support the president and his action. And nonetheless, Justice Kennedy writes the opinion for the court saying they have a constitutional right to come to court to challenge the legality of their detention. You know, it’s just very, very disappointing that on his last act as a justice he didn't follow his oath and hold the president accountable.

LEE
So, you mentioned Masterpiece Cakeshop. And — just a little background for listeners — this was a case in which the ACLU represented a gay couple who was denied a cake by a baker who disagreed with their marriage. And for folks who don't know, David actually argued the Masterpiece Cakeshop case before the court. So can you tell us a little bit both about that case? The arguments that the ACLU clients made and the result in that decision.

DAVID
Sure. Yes. So this is essentially about whether there is a First Amendment right to discriminate. The couple — Charlie Craig and Dave Mullins — were turned away by a bakery that is otherwise open to the public because they were gay. The baker made many wedding cakes for opposite sex couples. But he said I won't make one for a same sex couple. That violated Colorado's anti-discrimination law, a public accommodations law that basically says if you open your business to the public you can't discriminate on various protected grounds like race, gender, sexual orientation, religion and the like. And that's a pretty straightforward claim, and we made that claim on their behalf. But then the baker argued in his defense that he had a First Amendment right not to serve them because he objected both on moral grounds and religious grounds to the to the fact of same sex marriage. And he said the First Amendment trumps the obligation to treat all customers equally when you are a business open to all.

LEE
Can you tell us a little bit about the specifics of that argument? Was this a religious right? The first amendment includes both a right to free speech a right to religious expression.

DAVID
They made essentially both arguments. They made an argument that because the cake — the making of a wedding cake — is expressive, it should be protected by the First Amendment, and compelling him to make the cake for this couple was compelling his speech and therefore violated the speech clause. And then because his objection was rooted in his Christianity, he argued that it violated the religious free exercise clause as well. The Trump administration came into the case on his side and argued only on the speech claim. A remarkable argument from the Justice Department, because the Justice Department's… one of its principal responsibilities is to enforce nondiscrimination laws, including public accommodations laws. The court did not accept that argument and, in fact, it wrote a decision in which it very strongly said quite the opposite —said philosophical and religious objections do not generally permit a business to refuse to abide by a neutral nondiscrimination law. And Justice Kennedy wrote the opinion and he went on to say, you know, otherwise if that were the case, then we could have bakeries and all kinds of other businesses across the country putting signs up in their windows saying, we don't serve gays and lesbians; or we don't serve Muslims; or we don't serve women, because we object to the message it would send for us to provide them with whatever service it is

LEE
So it sounds like there were some very creative arguments about the expressiveness of cakes and buildings, et cetera. What ultimately swayed the court? What was the holding we got and was it a loss?

DAVID
[00:15:58] I think it was it was technically a loss, but I think, you know, we won the war but we lost the battle. Because the war was really over whether there would be such a First Amendment right to discriminate. That's what the baker and the Trump administration were pushing for. The court seven to two essentially said no. But then it went on and ruled for the baker. They concluded that the civil rights commission that had adjudicated this was itself biased against religion, and the bias caused it to violate the baker's right.

So the baker wins, but he doesn't win a right to discriminate. What he really wins is a right to have a hearing before a non-biased panel, and that's not what they were asking for. If it goes back into the business it's still going to have to serve everyone, because the court did not say he has the right to refuse service.

LEE
David, let's turn to talking about Justice Kennedy. How would you, overall, describe his legacy for civil rights and civil liberties?

DAVID
So, Justice Kennedy, I think, is the reason that the Supreme Court has remained within the mainstream of American society and not veered sharply to the right. The court has had a conservative majority since about 1972, but it's tended not to veer sharply right because it's almost always had someone who played a more moderating role. You had Justice O'Connor before Justice Kennedy. You had Justice Powell. Stuart. Souter, who was a Republican appointee who moved to the left. And so you sort of had a basically a fair shake before the Supreme Court. Kennedy was the key to that from the point at which Justice O'Connor stepped down and we had the Roberts Court. We call it the Roberts Court because he’s the Chief Justice, but really Kennedy was the deciding vote on most of the contentious cases. And he went with the conservatives often, but he went with the liberals a significant number of times and on very significant cases. So he wrote all of the court's cases recognizing lesbian and gay rights, including the two marriage equality decisions. He wrote the court's decision 5-4 striking down the death penalty for kids. He wrote the court's decision 5-4 allowing affirmative action to continue. He wrote the decision 5-4 for the court recognizing that you could make disparate impact claims under the Fair Housing Act, which is critical to racial justice in that area. He wrote, along with Justice Souter and Justice O'Connor, wrote Planned Parenthood versus Casey which was the case that preserved Roe versus Wade when it was most under attack and very close to being overturned. So, he had an open mind. He believed in an evolving Constitution. And he was not a rigid ideologue. And it meant that the court stayed within the mainstream of American society and I think, you know, we have to thank Justice Kennedy for that.

LEE
[00:19:16] You just mentioned due process, LGBT rights, affirmative action, the right to have an abortion, discrimination in housing. These are huge social issues. Is it true that each of these legal decisions is as fragile as a single vote? That is, is it the case that Kennedy's successor — if he felt differently about abortion, or if he felt differently about LGBT rights — could just undo that in a single decision?

DAVID
Yes, yes it is. And that's what's so scary about Justice Kennedy's replacement. I mean, you've got a lot of rights that hang on a one vote thread, and we may very well have a very different vote. Now I will say that I wouldn't predict that every one of them will be reversed, because the court abides by precedents generally, and that the doctrine of stare decisis means that the court is supposed to stick with the decisions it decided before, even if it doesn't really like them very much anymore. But it's not a rigid rule, this notion that you're supposed to stick with prior precedents. And if you've got five votes, you can overturn them. And the courts, you know, not infrequently do overturn their precedents. They did the last day that term this year — they overturned a 40-year-old precedent that allowed public sector unions to charge the people that they provide services to a fair fee for services they provide, because five justices no longer believed in it. And so, I would not predict that every one of those rights will go by the wayside. But I do think that we have to think about this replacement. We have to urge our senators to think about this replacement as somebody who could overturn all of those precedents if he or she chose to.

LEE
[00:21:07] If indeed there is a justice who's confirmed that would go the other way on all of these rights you mentioned, how do legal strategies change for civil rights advocates if they have a court that is fundamentally hostile to their perception of individual liberties?

DAVID
So that's a great question, one we're going to be grappling with, I think. I think there's a number of answers to it. One is, in a lot of cases, you really don't have a choice. If a legislature, you know, enacts a law that makes it a crime to have an abortion, or prohibits abortion at six weeks, you have to challenge that. You can't say, “Oh well we might lose the Supreme Court so we are going to let them do it.” We’re not going to be developing long-term strategies to create expansive rights if we've got a very conservative court at the end of the rainbow who will say no. So I think it will affect your long term strategies. But we play defense all the time, and we have to play defense when a legislator or executive branch member violates a constitutional right. You've got to fight it. But you don't just fight it in the courts and this is the biggest lesson going forward.

[00:22:23] People who’ve looked back at the Supreme Court and noted two things. One, it's almost always had been a conservative body. And that's kind of not surprising, given that people get appointed for life. So, the court’s always going to kind of reflect the politics of a bygone era, because its members are people who came to power decades ago, often.

LEE
And, in addition to that, as you noted when you were describing precedent and stare decisis, their kind of whole operating model is to look to the past for examples of what we should do.

DAVID
Exactly, and you don't want law to be changing radically every moment so. Yeah. So it's an inherently conservative body. At the same time, what scholars have found is that the court doesn't actually deviate, generally, very far from where the public is on any given issue. And if it does, it gets corrected over time. And so I think if we lose the court, we have to turn to the people. We have to engage with the people — through communications, through advocacy, through elections — to ensure that we have a citizenry that is progressive, a citizenry that believes in liberty and stands up for civil rights and civil liberties. And if we do, they will elect politicians who believe in those rights and liberties. And the court will be limited in how much damage it can do. So, we're not going to get much help from the court. But I think if we refocus our energies on the ultimate guardians of liberty, the people themselves, I think we can we can continue to make significant progress.

LEE
[00:23:56] Do you have any predictions for what we’re going to see during this confirmation fight for the new justice?

DAVID
Well I think it's going to be a bitter fight. The conservative foundations have already invested tremendous amounts of money in advertising for the confirmation of the pick even though the pick hasn't been named yet. The other side is gearing up as well. There's a 50-49 balance in the Senate right now. And so, if the Democrats stick together and one Republican votes the other way, the Senate can reject a nominee that President Trump puts forward. So, I think that puts some pressure on President Trump to try to identify someone who is less easily defeated. That doesn't necessarily mean less rigidly ideological, it means less obviously rigidly ideological. But we're all going to have to just pay a lot of attention, and really insist that senators do their job in ensuring that the replacement for Justice Kennedy has the same openness, willingness to hear from both sides, is not a rigid right-wing ideologue, because otherwise the court will really be pushed out of the mainstream of American society.

LEE
Is there a way to do that that's anything more than just a dog and pony show? Are there real questions to be asked? Or is this a foregone conclusion that's just dependent on the party who's in control?

DAVID
[00:25:27] Well, it's not a foregone conclusion. Judge Bork was rejected because of his extreme views. Other nominees have been put forth and defeated for one reason or another because of opposition. I think both sides are quite sophisticated at this point, so I don't I don't expect to see a stupid mistake on the part of the Republicans. You know, as George Bush named Harriet Miers, someone who had really no experience and she had to be withdrawn. Reagan nominated Ginsburg, without knowing that he had been found to have allegedly smoked marijuana with his students, and he had to be withdrawn.

I don't think those kinds of mistakes are likely to happen. But, you know, this is about the makeup of the Supreme Court for the next generation. We have to fight this battle as hard as we possibly can, and even if we lose then we have to fight in the midterms to ensure that the next time around there's a Senate that respects liberty and civil rights in a more fulsome manner.

LEE
David thank you so much for spending your morning talking to us.

DAVID
Thanks for having me. Nice to talk to you.

LEE
From the ACLU, this has been At Liberty. Thanks for listening, and be sure to subscribe anywhere you get your podcasts.

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