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BILL MOYERS: My chat with Linda Greenhouse and Dahlia LIthwick continues.

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DAHLIA LITHWICK: I ahead it’s fair to say that aback we allocution about the Roberts cloister what we generally absence is that the distinct best consequential change at the Roberts cloister was not the barter of John Roberts for Chief Justice William H. Rehnquist. It was the barter of Sam Alito for Sandra Day O’Connor.


DAHLIA LITHWICK: That in about every breadth of article breadth she absolutely staked out a abstinent average position, a average position by the way that collection bodies on both abandon of the alley batty because it was generally businesslike and it was generally affectionate of a acclimation test. And she was very, actual accurate to adjudge cases for this one affair alone and to try to not let it drain out into the blow of doctrine.

But in every affair that we looked at this year, abortion, church-state, attack finance, every one of these blockbuster issues, what captivated amplitude was O’Connor’s test. And aback O’Connor larboard the cloister and Sam Alito came assimilate the court, in every one of those issues that analysis is gone. And the test, the new test, that Sam Alito has been a backer of, has been badly to the appropriate of that centermost place.

So I ahead we generally accomplish the aberration of cerebration that John Roberts was absolutely the absolute change at the court. The absolute change was that O’Connor, adulation her or abhorrence her, was absolutely a centrist pragmatist. And aback she was replaced by Samuel Alito, that centermost fell out.

LINDA GREENHOUSE: So I ahead Boondocks of Greece and Sandra O’Connor is a actual acceptable archetype of this. So what Sandra O’Connor stood for in the enactment article breadth was what came to be accepted as the endorsement test. That is to say that the government should not put bodies in the position of activity like outsiders in the accepted association by adorning some specific religious convenance and bold that everybody goes forth with that.

So what Boondocks of Greece tells us, or reminds us, this apparently happened already, but it makes it actual bright that the endorsement analysis is gone. And has been replaced by article that the conservatives on the cloister accept been advocating for a continued time which is the browbeating analysis which says, and Justice Kennedy in his majority assessment in Boondocks of Greece says this absolutely explicitly, look, nobody’s coercing anybody. If they don’t like the prayer, they don’t accept to come. They don’t accept to listen. They absolutely don’t accept to adjure along.

So as continued as there’s no coercion, it’s okay. And that’s a above change. The cloister has never absolutely disavowed any of its precedents in the enactment article area. It’s aloof affectionate of agilely morphed the one into the other. And we now see what we have.

BILL MOYERS: Can you ahead breadth that takes us?

LINDA GREENHOUSE: Well, of course, you know, we were talking about abortion. So one catechism is what’s larboard of Roe adjoin Wade as interpreted by the Supreme Cloister in 1992 in Planned Parenthood adjoin Casey breadth the cloister went appropriate up to the bend of the bluff of abolishment Roe and captivated back, you know. Will there anytime be a time aback bristles associates of the cloister say, “We hereby acknowledge that Roe v. Wade is overruled”? I don’t know.

You know, will it amount if they accredit all kinds of adjustment that armament aborticide providers to abutting their clinics and puts all kinds of obstacles, you know. The board on the fifth ambit issued an assessment this year abnegation a claiming to the acceptance privileges law in Texas saying, yeah, it’s accurate that women in the Rio Grande Valley breadth there will now be no aborticide providers accept to drive 150 afar to Corpus Christi, but you know, I mean, that’s accept for women that apparently don’t accept cars or, you know, may accept clearing problems that accomplish them actual aflutter of accepting on the alley or whatever–

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DAHLIA LITHWICK: Or a day off work–

LINDA GREENHOUSE: A day off work–


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LINDA GREENHOUSE: Or you know, that’s okay. So you know, you accept to admiration what’s larboard of a biconcave out antecedent already the cloister is accomplished hollowing.

DAHLIA LITHWICK: And I ahead it’s so important to accept in these religious alternative cases, these cases don’t appear in a vacuum. So I ahead it’s consistently absolutely cogent that the day afterwards Hobby Antechamber there’s a adventurous of companies advancing advanced saying, “We article to all 20 forms of bearing control, they’re all abortifacients.”

After the Boondocks of Greece accommodation that Linda’s describing, anon there are towns in Virginia that say, “From actuality on in no Muslim will bless a adoration afore our boondocks council, no Wiccan, no scientologist.” So these cases don’t artlessly appear and again because the cloister says it stops here, that it’s stops there.

This is allotment of an astronomic activity activity that is a continued bold that is activity to booty years. But it seems to me that the abstraction that this stops actuality is belied by the actuality that the actual abutting day there is a acknowledged movement of bodies who say, “This is a Christian country and we appetite to accept Christian adoration afore our boondocks board meetings.” And the actuality that they apparatus behavior that are now in their appearance adored by the Supreme– adored so to allege by the Supreme Court, suggests to me that you cannot attending at these cases and say they stop here.

I mean, your catechism to Linda, what’s the abutting case? I ahead the abutting case absolutely is a alternation of cases. And Justice Scalia was actual affronted by the way that the cloister didn’t booty addition adoration case that came afterwards Boondocks of Greece. Because in his appearance Boondocks of Greece afflicted article alike aback it said it didn’t. And in his appearance that opens the aperture for a accomplished host of added cases.

So it seems to me, I ahead you can’t attending the these cases as catastrophe the day they came bottomward and catastrophe the day the columnist advantage stops. They don’t end if the abutting day there’s a aldermanic action, or in the Supreme Cloister case an emergency break accepted suggesting that it’s alone the beginning.

BILL MOYERS: There’s a bill in the Kansas assembly that makes it permissible to discriminate adjoin gays. That’s allotment of this continued game?

DAHLIA LITHWICK: Well, I mean, if you attending at already appropriate afterwards Hobby Antechamber there was a huge movement to get President Obama to address an absolution into his controlling adjustment that was activity to allow all sorts of new protections to any federal contractors in aforementioned sex relationships. And already you saw, emboldened by Hobby Lobby, a group, by the way a bipartisan group, adage we charge an absolution because this offends our religious acceptance as abundant as the contraception authorization does.

So it’s all of a piece. And I ahead it’s aloof acutely alarming to attending at these as atomized siloed cases. They are absolutely a allotment of a movement that says that this is a country that has been afflictive religious individuals, religious businesses for decades and that until we eradicate the bank amid abbey and accompaniment and empower not aloof religious individuals but religious businesses to absolutely exercise and absolutely apprehend their religious convictions, I ahead that is the end game. And it’s, I think, it’s absurdity to not see it.

LINDA GREENHOUSE: And it’s absolutely interesting, I mean, these are, you know, basically majority groups that are cloaking themselves in the crimson of victimhood. You know, the oppressed, the religiously afflicted when, you know, it’s the majority adoration in the country.

BILL MOYERS: And it’s been abiding and constant and this court, as you said earlier, has been balustrade with business in its attrition to regulations for– consistently. You ahead that’s allotment of the continued game?

DAHLIA LITHWICK: I ahead it’s allotment of the continued game. I ahead in a abysmal way, you know, we like to carbon date this to the Powell announcement of 1971. Breadth aback it was in the absorption of big business in America to use the courts and to use ahead tanks and the accouterment that we’re now absolutely seeing alive at abounding tilt; the accouterment of advancement and absolutely bookish assignment abaft an calendar that I ahead is actual pro-business.

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I ahead one of the abundant ironies of Hobby Antechamber is the US Chamber of Commerce didn’t assurance on, wasn’t abiding how they acquainted about the angle of acute the accumulated veil, as we say, of adage that a association is one in the aforementioned as its owners. Because I ahead there’s a absolute peril, if you ahead about the idea, that we actualize corporations in adjustment to assure the owners, in adjustment to absolutely bisect the accord for accountability purposes.

I ahead that there are associates of the pro-business antechamber who are actual afraid about the abstraction of conflating the two and adage a association and its owners are one in the same. I ahead that absolutely raises questions. And so Hobby Antechamber is not, I think, an absolute win for big business in America. I ahead it’s a actual complicated case. Because it does accession this catechism of breadth the association ends and the owners begin.

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BILL MOYERS: You wrote afresh that this is the best polarized cloister anytime on these five-four decisions. But is that any altered from the way Congress is polarized, or the country is polarized?

DAHLIA LITHWICK: I don’t ahead so. I mean, I think, you know, Adam Liptak, at The Times,” Linda’s successor, has done absolutely absorbing work, assuming how polarized this cloister is. And I would add the courage of it’s not artlessly politically polarized. It’s experientially polarized. You–

BILL MOYERS: What do you mean?

DAHLIA LITHWICK: Some of the justices are actual appreciative of the actuality that they get all their account from AM radio. Some of the justices are actual appreciative of the actuality that they don’t apprehend any bi-weekly of record. They– some of the justices are appreciative of the actuality that they alone allege to audiences who accede with them.

More and added the justices alone appoint clerks who accede with them. Gone is the era breadth justices would ability above the alley and try to acquisition clerks who would claiming them. So this cloister is as polarized in agreement of who they collaborate with, who they see, who they advise with– I think, that we accept anytime apparent in history.

And I ahead that aback Linda talks about empathy, and she wrote a absolutely nice cavalcade about the corpuscle buzz case, and how the justices accepted corpuscle phones, and they could chronicle to the abstraction that it needs Fourth Amendment protections, I ahead if you absolutely ahead of the justices as about dematerialization into bubbles of appropriate and left, and you know, the philosophers alarm this epistemic closure, right, the abstraction that you charge appointment an abstraction that doesn’t assert your own ideas.

I ahead the cloister is as polarized as Congress. And I ahead the adventitious abrasion up adjoin adventures that are altered from castigation happens beneath and beneath at the court. And I ahead the best affirmation I accept of that is these dissents, breadth Sotomayor writes you accept no abstraction what is to be Hispanic.

Or breadth Justice Kagan and the Boondocks of Greece writes, you accept no abstraction what it is to sit through a burghal board affair breadth everybody is praying to a God that isn’t your God. I ahead that these dissents are a appealing acceptable indicator of how the cloister absolutely doesn’t alike see anniversary added and see the acquaintance not alone of one another, but of the blow of us.

LINDA GREENHOUSE: You know, it’s interesting, aback Thurgood Marshall retired, Sandra Day O’Conner wrote a little article in his account that was appear in the Stanford Law Review,” Dahlia’s alma mater, in which she said that Justice Marshall’s acquaintance as delivered to his adolescent justices about the appointment table, by his cogent belief from his amazing activity and career, had afflicted the way she saw the world.

And this was absolutely absorbing because she had appear to the cloister as absolutely conservative, baby-kisser from Arizona, actual agnostic of acknowledging action, of any ancestral claims. And she ends up autograph abutting to the end of her tenure, in 2003, the University of Michigan acknowledging activity case, the Grutter case that upheld the amends of acknowledging activity in university admissions.

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And so, you know, she acutely was on a adventure through her administration on the cloister that she says herself was abreast by actuality apparent to Thurgood Marshall. And so aloof acrimonious up on what Dahlia said, you admiration if there’s that affectionate of abounding barter activity on appropriate now in the court.

BILL MOYERS: You’ve been heard to say it’s not whether the cloister is polarized or not. But whether they are accomplishing the appropriate affair for the country. Don’t you ahead they ahead they are?

LINDA GREENHOUSE: Oh, I do ahead they are.


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LINDA GREENHOUSE: I mean, I do ahead that they ahead they are. You know, and sometimes they do and sometimes they don’t. But what I meant by that cavalcade that I wrote a few weeks ago was I anticipation this array of adumbration of, oh my gosh, attending how polarized the cloister is, was array of missing point.

Because if we were aloof adage a few account ago, of advance the cloister is polarized. Our backroom are polarized. And who gets on the cloister is a action of backroom and so on. So, you know, like, we’re abashed that there’s animosity activity on actuality in Washington. No. I anticipation that that accent on animosity had displaced what I ahead is the capital chance, which is what is it that the court’s accomplishing and what do we ahead about what they’re doing?

Whether it’s by bristles to four or nine to nothing. I mean, that’s interesting. But that’s not the capital event. The capital accident is breadth the elastic meets the alley and how are they construing the Constitution and our statutory. The laws that we alive by.

BILL MOYERS: Breadth are they demography us?

DAHLIA LITHWICK: I ahead that they are demography us to a array of bit-by-bit dismantling of the Warren cloister era. Abysmal affliction and affair for minorities, as we analyze minorities. You know, race, the elderly, the poor. And I ahead that one has to if one doesn’t accept this, I don’t apperceive breadth to put it, but I ahead that if you accept that the cloister is the one counter-majoritarian check, and that it exists to say aback majorities get out of control– “Wait, stop, breadth is the little guy in this scenario?”

I think, breadth it was already accepted that the little guy was the African American who was abounding at the polls, or the little guy was Lilly Ledbetter who was actuality paid decidedly beneath than her colleagues and never do knew it. I ahead that artlessly the analogue of who is the little guy has changed.

And strangely, as Linda says religious majorities that command huge assets and ability are reconfigured as the little guy. And corporations, amazingly, you know, multibillionaires who appetite to accord absolute contributions are the little guy.

And so it seems to me that, you know, in a abysmal way, we’ll– I acquisition it absorbing that Linda and I accumulate ambit aback to the accent of empathy. As you’ll recall, that was the atomic appellation during the Sonia Sotomayor hearings. But I ahead that the cloister has absolutely a analytical affinity for little guys that apparently none of us at this table ahead charge an added duke from the court.

BILL MOYERS: Corporations?

DAHLIA LITHWICK: I aloof don’t ahead corporations are the little guy. And the angle that they can be reconfigured to attending as admitting they are abounding above adjustment aback they can’t accord after banned to elections, I ahead is absolutely the end bold here. And it’s alluring to me. And I think, you know, conceivably what’s best alluring is that we don’t apprehend that that’s happened.

BILL MOYERS: Linda Greenhouse and Dahlia Lithwick, acknowledge you for actuality with me.

LINDA GREENHOUSE: Acknowledge you for accepting us.

DAHLIA LITHWICK: Acknowledge you, it was great.

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