Foundation, supporting agencies who supports creatiivity in our society, committed to building a more just and peaceful world, park foundation, dedicated to heightening Public Awareness of critical issues, the Colbert Foundation and by our sole corporate sponsor, mutual of america, thats why were your retirement company. Welcome. If you had trouble sorting through the decisions released by the Supreme Court led by chief justice john roberts, you have come to the right place. Two of the most knowledgeable in journalism are here to help decode the implications of those 54 rulings on public prayer, organized labor and the hobby lobby case. Thats the decision that Certain Companies on religious grounds do not have to provide Health Insurance for some forms of Birth Control. Linda greenhouse covered the Supreme Court for the New York Times for 30 years and still writes a biweekly column for that paper. Shes a lecturer at the yale law school. Dalia litwick is a Senior Editor where she writes Supreme Court dispatches columns. Currently shes working on a book about the four women who have served as Supreme Court justices. Welcome to you both. Thank you. You have covered the court since 1978. In that context, what do you make of the Roberts Court . So i try to think generously about the court, but i think its hard for anybody looking at this court objectively to come away not thinking that its a court in pursuit of an agenda. And im sorry to say i think that agenda maps on pretty closely to a Republican Party platform in things that in the hot button issues that many of us care the most about. Is that eunique in the years you have covered the court . I have to say so, yes, in terms of a fivemember coalition having coalesced for those results. Not that there havent been conservative versus liberal splits on the court always and i covered the transition between the burger court to the chief justice who has an agenda with a states rights agenda that he was pretty successful in accomplishing, but what we see now, i think s a much broader effort across more areas of constitutional doctrine that really touched the lives of people whether its religion, speech, politics and so on. So its something that i find quite concerning. I agree. I think that you look no further than the winn record than the chamber of commerce. Big business at the court is having its winningest few seasons under the john Roberts Court. These are, you know, business interests that used to win 50 of the time, 60 of the time. In the last few years between 70 and 80 of the time issues on which the chamber of commerce and other pro business lobbies get involved in cases. Were looking at huge win rates. If you look at the architecture of unraveling the sort of court revolution, what the court stood for, you cannot look at the Roberts Court and say that they have done anything other than systemic unravel workers rights, environmental progress. Its a pretty palpable and i think unequivocal trend. You have also written that the right on the kourlt is further right than mainstream conservatives. Well, i think theres two things. One is that its absolutely clear, and i think this is proven, that the last few decades everybody who retires on the court is replaced by anyone either slightly to their right or significantly to their right. So the court has not kept a pace with mainstream legal thoughts. The court has torqued more and more to the right. I do think that on some of these issues notably Birth Control, which we saw kind of somewhat illuminated in the hobby lobby discussion, this is a view of Birth Control that is not all in step with where the American Public is on birth com. So in that sense, the court isnt to the right of mainstream legal thought but dramatically to the right of the rest of the country. So you have Justice Scalia and Justice Thomas way out there and chief justice roberts, i think misinterpreted in steering a moderate middle course. What he was doing is steering a strategic course to tee up the court to ultimately be in a place hed like it to be. But doesnt need it to be there all at once. Where do you think hed like it to be . I think he would like to get the government out of the business of exhibiting special claims of Racial Discrimination and they are moving right along with that. The Voting Rights decision indicates that and we didnt quite get what they wanted in the fisher case because they couldnt bring Justice Kennedy along. But that is certainly part of the agenda. Another part, the court is in the process of hijacking the First Amendment free speech principle as a tool of deregulation in a startling way. Startling . Startling. Not too many years ago that would be considered federal or state regulations of business activity, all of a sudden we see theres a First Amendment claim being raised by the business interest of free speech, special speech, corporate speech that they are being given deference. They keep push iing the noti of the corporations personhood. How far can they push that before they lose their claim to be rational and reasonable men . I think for a lot of court watchers, it was simply staggering to take the principle announced in Citizens United, which as controversial as it was, it wasnt all that controversial in the First Amendment community. But to extend that to religious freedom under the religious freedom restoration act was breathtaking. I mean that wasnt simply corporate personhood from Citizens United tweaked a little bit. That was saying that for purposes of religious freedom, corporations pull into the parking lot next to you at church and put on a hat and pray. And that they can exhibit religious conscious in a way that defies, i think, the metaphor, defies most of us, most of us cannot say that hobby lobby prays or exercises religion. Or has a sole. Most religious people believe co comes with the turf. Its a part of the case that a little bit disappeared in the conversation around Birth Control. But really the part that was breathtaking pr those of us watching the court was the ease they transported this idea that corporations are people too for speech purposes under a statute that was supposed to protect persons. Theres nothing in the opinion that you can say heres the stopping point. Instead you read it and say, whoa, this just goes on and on. It stops at hobby lobby today because hobby lobby brought the case, but theres no reason why it wouldnt apply to some other more conventionally organized company too. What do you make of the fact that Justice Alito said this applies only to the contraceptive mandate. Do you take him literally at his word . What worries me about the hobby lobby decision if hes going to say contraception is different, and he said that in the opinion, this is different from real medical interest like vaccinations, but contraception is different. I find that in and of itself terrifying. If i have to take him at his word that this is an unserious government interest, then thats problematic for womens reproductive freedom. Theres a way in which one has to look at and Justice Ginsberg called this a mine field. What hes opening up is a pandoras box. And clearly if you read the opinion, there is no limiting principle, hes just asserting for purposes of this case, contraception isnt a compelling thing not just to protect and privilege, but to discuss in the opinion. He just e lieds over the problem of it. To me it raises one terrifying possibility that contraception isnt a real medical need and that scares me. The other is that maybe this religion is somehow just a real religion and that the court is inserting itself into the business of deciding when the witnesses come along and the scientologyologists that their claims are less privileged. You left out a whole bunch of other stuff. For instance, gay rights is the courts silence on that was rather thunderous. Thats really the next frontier because we have seen this even before the hobby lobby case where religiously motivated employers will say i dont approve of this lifestyle. So i dont need to hire or do business with, i dont need to bake a cake for a same sex wedding. And so i found out a very telling silence both from the alito majority opinion and the kennedy concurring opinion. Justice kennedy is being hailed as a hero for having written the courts majority opinion on the windsor case that validated the defense of marriage act and has been a couple dozen Federal District judges state provisions that rule out samesex marriage. So where was kennedy on this . Is Justice Alito the most partisan of the justices as you see the court . Theres competition for that title. Justice scalia much his senior has distinguished himself for many years in writing opinions that basically mobilize the base. The wall street journal has an editorial this week purporting to criticize Justice Ginsbergs opinion as being overblown and seeking to mobilize the progressive base against the courts majority. And i thought, havent they been listening to their friend for the last 30 years . Before you came, i have been leafing through the new book by lawrence tribe and joshua mat. Reminding us that justices can frame the way we live. So how is the Roberts Court framing the way we live . Lets take race. Lets take how the Roberts Court a year ago with five members of that majority framed the story of america and race. If you read that opinion, problem solved. We had a problem once. We had sort of a serious problem once. Low and behold shs the problem is over. The law that was powerful tool to deal with Racial Discrimination is outdated. Theres no need for it anymore. Congress has stubbornly refused to bring it up to modern reality and so that part of the law the formula that set in in motion is unconstitutional. Thats a framing device and i assume theres some believing in it, but i think its not the american story that most of us understand it to be. And i would just add to that. I think one of the most powerful dissents written this year comes up out of dpan. This isnt directly an afirestormtive action case, its the flip of the case. But the court does another recitation of the only way to get beyond race is to get beyond race and we have to all acknowledge that racism is a problem, but thankfully its over. And justice zone owe Sonia Sotomayor writes this piece that draws from her experience that has not gotten beyond race and says, look at me, look at me and people like me before you say that the way to get beyond race is to get beyond race. The way to get beyond race is to talk about it and to acknowledge what it is to be an oud outsider in this country. And this isnt the america we experience. We as women, we as minorities, we as people seeking justice at the hands of the court system, this isnt the america we see. So i think theres a real pushback in the decents that says it may be that you have gotten beyond race. The rest of us are still really struggling. So in the hobby lobby case, are they framing corporations possessing more rights as persons than people as individuals . Or are they framing to corporations . I think you have to understand hobby hobby setting it alongside the other cases. Town of greece against galloway, which upheld the recitation of christian prayers at the start of town board meetings in this upstate new york town. And this practice was challenged by two nonchristian citizens who didnt feel like having to listen to these prayers when they showed up at the town to conduct their business. And they argued and the lower court agreed that this was an establishment of religion in violation of the First Amendment establishment clause. Justice kennedy writing for the majority overturned the lower court and upheld the prayer and says these two plaintiffs were offended, but adults in america hear lots of offensive speech and basically just deal with it. A total lack of em pathy of thee plaintiffs who were being made to feel excluded as citizens in their community. Take a look at that and eight weeks later we come down with hobby lobby where the courts solicitude for the conscious claim of hobby lobbys owners not from having to hand out Birth Control to their employees, but simply following a federal law that includes contraception within the Employee Health plan and the employees could decide to do whatever they want about that. This claim was so worthy of being heard that the court was just dripping with empathy for hobby lobbys owners. Do you sense any empathy there for women in the majority . Whats interesting to me, and somebody counted the words, the number of times the word women appeared in the majority opinion as opposed to all this language of real deep identification with the religious owners. And its clearly disparate. Its not only that women dont show up, but Justice Scalia does this thing where ricky used to talk to lucy. He says im going to grant you that this is important so i dont have to argue it. Alito says lets concede its an important issue. But he never engages with it. He never says there are all sorts of nonprocreative reasons, Urgent Health reasons, basic reasons that have to do with womens ability to control their reproductive lives, none of that is acknowledged. So theres a way in which by simply conceding it, he gets around the fact he doesnt have to talk about it. It seems to me this country, if you think about the rhetoric around the hobby lobby case and the degree to which this has been represented as loose women too lazy to go to the drugstore to buy a condom. The blowback, had the court had the conversation that says heres a reason that 99 of american women use contraception and these are all the medicallyindicated reasons that sometimes a very expensive iud is the thing the doctor will recommend, none of that happened. Because it doesnt happen in the court, it doesnt happen in the conversation around the decision and it seems to me that our ability to have the conversation about why this is one of the central tragedies of hobby lobby. We also have to acknowledge that this whole contraception discussion in hobby lobby is a proxy for abortion. So hobby lobbys owners say not all the religious objectors to the contraception mandate are in the same position. Hobby lobbys owners say are the abortion among the 20 or so required contraceptions by this. And of course, thats a total its a total falsehood actually because if you take medical definition of pregnancy, what does abortion do . It ends an ongoing pregnancy. None of these contraceptive actually do that. None of them that are on that list work after the fertilized egg has implanted in the uterus. So if somebody wants to believe that a fertilized egg, thats their privilege but thats not a medical definition of pregnancy. So the hijacking of this issue of importing it into the abortion issue is a very clever move thats really at the center even if unacknowledged in this whole daeblt debate. I would just add, linda said we have to look at the legislative prayer case. We have to look at it next to mccullen, the abortion buffer case. That case removed any buffer between the protesters outside who in some cases were harass ing the women going into the clinic. Now they can go right up to the door. There was a 35foot buffer, this is massachusetts, it comes up after a history of horrific Clinic Violence including shootings at clinics and massachusetts said we dont know how to keep these women safe and how to keep Public Safety in Health Beyond this 35foot buffer. It comes up as a free speech ca case. In the opinion written by chief justice roberts, the solicitude for these sidewalk counsellors and the implication of anyone who stood out does so in gentle tone with sweetness and light and without any acknowledgment that there is a reason, an historic reason that these women needed to be protected on their way into the clinics is really another example of what linda is describing as that overempathizing with one set of interests and almost total disregard for the interests of those women seeking abortions. I just think i track both of these as going back to Justice Anthony kennedy in the last time the court heard a major Abortion Case was so careful to say were just worried women are extra frail and sometimes they regret their abortions and we have to be super careful with getting them good information. And it seems to me that thats kind of the pill from which so much of this sentiment that all of First Amendment law stops and all of religious freedom stops and everything in the constitutional architecture of this country stops when were talking about women and their reproductive systems. Its so strange. You are both reporters and well respected, but as women, can you be objective about religiously conservative men making it harder for women to get help with Birth Control . Im not trying to be objective. Im trying to figure out where they are coming from. These days im paid to be an opinion columnist and i like to back up my opinion with facts. Where do you think they are coming from. They are coming from a narrow world view. Lets be impolite and point out that five of them are roman cathol catholics and in service of an agenda by a couple of president s who were elected on a Republican Party platform called for picking judges who would overturn roe against wade. I think that wildly rstates ease f the great majority of american clic women. So these five guys who have a narrow background who live in a certain bubble and i think are projecting their perspective on to the face of constitutional law. Well continue this discussion online. Linda greenhouse, tonya, thank you for being with us. Thank you for having us. On our website, you can see my complete conversation and well connect you to their mote recent reporting on the Supreme Court. Ill see you there and ill see court. Ill see you there and ill see you here next time. Captions by vitac www. Vitac. Com dont wait a week to get more moyers. Go online to get more blogs and video features. Funding is provided by ann gumowitz encouraging democracy, carnegie corporation, supporting education and democratic engagement and advancement of International Peace and security, the ford foundation, working with visionaries on the front lines of social change worldwide, the herb albert foundation, supporting organizations Whose Mission is to promote compassion and creativity in our society, the john d. And katherine t. Mcarthur foundation, park foundation, dedicated to height ning Public Awareness of critical issues, the Colbert Foundation, and by our sole corporate sponsor, mutual of america, designing customized individual and Group Retirement products. This week on Moyers Company the battle over Womens Health and reproductive rights. Its better to be a corporation today than to be a woman in front of the Supreme Court. There has to be, in this country, a Public Health care system that will insure that women can get access to the care that they need regardless of religion. Announcer funding is provided by anne gumowitz, encouraging the renewal of democracy. Carnegie corporation of new york, supporting innovations in education, democratic engagement, and the advancement of International Peace and security at carnegie. Org. The ford foundation, working with visionaries on the front lines of social change worldwide. The herb alpert foundation, supporting organizations Whose Mission is to promote compassion and creativity in our society