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Supreme Court Reporter: 'The Politics Of The First Amendment Have Completely Flipped'


This is FRESH AIR. I'm Terry Gross. My guest, Adam Liptak, is the Supreme Court correspondent for The New York Times. We're going to take a look back at the court's term that ended last week. Liptak says it was a bruising term marked by division, disruption and an extraordinary string of 5-4 conservative victories. On the term's final day, Justice Elena Kagan, in a dissenting opinion on a decision that delivered a blow to unions, accused conservative justices of weaponizing the First Amendment. The term ended with Justice Anthony Kennedy, the court's swing vote, announcing his retirement. Liptak, in an article written with Maggie Haberman, reported that the White House had launched a quiet campaign to encourage Kennedy to retire.

Adam Liptak, welcome back to FRESH AIR. So all the potential nominees for Supreme Court justice seem to have been vetted by The Federalist Society or The Heritage Foundation. So what assumptions do you think we can make about any of the potential nominees whose names will cross the president's desk?

ADAM LIPTAK: Oh, they will all be reliable conservatives. They will - any one of them who makes it onto the court will vote with the court's conservative wing, and that will transform the Supreme Court because we're losing the justice who is at the center of the court, who is its ideological fulcrum, Justice Anthony Kennedy. And now, we will have five committed conservatives on the court, and that will give us a very different America.

GROSS: You coauthored an article with Maggie Haberman about the White House's quiet campaign to create a Supreme Court opening. And you wrote - their goal was to assure Justice Kennedy that his judicial legacy would be in good hands if he retired at the end of the term, which of course he did. How did the Trump administration convey that to Kennedy?

LIPTAK: This is an administration that's been criticized for being chaotic and for not being very good on its legislative agenda. Its judicial agenda has been brilliantly executed and encouraging Justice Kennedy to leave the court is a prime example of that. They engaged in flattery. They put one of his former clerks, Justice Gorsuch, onto the Supreme Court. They are even now talking about two other former Kennedy clerks for the Supreme Court, Judges Brett Kavanaugh and Ray Kethledge. And they've put a bunch of Kennedy clerks onto the lower courts. And they seem to exploit some connections between the Kennedy and Trump families. Justice Kennedy's son, Justin, had business dealings with President Trump. Ivanka Trump visited the Supreme Court at Justice Kennedy's invitation after the two of them met after the inauguration.

So this was a very nicely executed plan to, if not usher him off the court, he has good reason to leave the court. He's 81 years old. His wife has had health problems. But at least to reassure him or try to reassure him that his legacy would be in good hands. So that President Trump, who has fiercely attacked the much more conservative Chief Justice Roberts, went out of his way repeatedly to praise Justice Kennedy, who, of course, has not been popular with conservatives because although generally conservative, he voted in liberal directions in really important cases on gay rights and affirmative action and abortion and the death penalty.

GROSS: Justice Kennedy's son worked for 10 years at Deutsche Bank and became the bank's global head of real estate capital markets. And Kennedy's son worked closely with Donald Trump when Trump was a real estate developer and Deutsche Bank became Trump's most important lender. So are there implications of that?

LIPTAK: You know, a lot of people on the left are quick to see some sort of conspiracy there. I don't actually track the logic of that. I think it's evidence that these were families that were comfortable with each other. But I don't think Justice Kennedy even knew President Trump before President Trump took office. And I don't think there's anything here beyond the fact that Justice Kennedy's adult sons - successful - moved in some of the same circles as President Trump and President Trump's sons.

GROSS: Justice Kennedy had been the center of the court and the swing vote, but you're right that this year he was more conservative. Can you give us some examples of that?

LIPTAK: Well, this year was a collapse for Justice Kennedy's alliance with his usual sometimes allies on the liberal wing of the court. So there are four liberal members of the court. And most terms, in 5-4 decisions, they picked up Justice Kennedy's vote more than 25 percent of the time. So that kind of captures where Justice Kennedy is ideologically. In 5-4 decisions over his 30 years in the court, he would join the four-member liberal wing about a quarter of time.

This term, he joined the four-member liberal members of the court in 5-4 decisions zero times. When the liberals won minor victories, that was either because they picked up the vote of Chief Justice Roberts, which they did twice, or Justice Gorsuch, which they did once. But the fact that their usual ally abandoned them completely is some indication that Justice Kennedy's last term was a very conservative term for him.

GROSS: Do you think he shifted to the right or was it just these individual decisions that he didn't side with the liberal wing on?

LIPTAK: Well, you know, to some extent, it's happenstance. To some extent, it's the particular cases that got to the court. But the numbers are really telling. We're talking about 14 decisions in which the five conservatives outnumbered the four liberals. And that's quite a run. And it includes some of the biggest cases of the term, including upholding the travel ban and dealing a blow to public unions. So it's hard to - it's hard not to think that there's enough data there to say that Justice Kennedy sort of gave up on the liberal project even as he was giving up on the court.

GROSS: So you wrote a fascinating article in The Times headlined "How Conservatives Weaponized The First Amendment," and that phrase is borrowed from Justice Elena Kagan's dissenting decision in the Supreme Court case involving public unions. Before we get to that case, give us a little overview of how it's become the right wing of the court that has been emphasizing the First Amendment in its decisions.

LIPTAK: So, Terry, the politics of free speech have over the past decades completely flipped. It used to be liberals who pressed First Amendment arguments. They used to press them in cases involving political dissenters and other people who were powerless. And they established a great body of First Amendment law which the right became attracted to. The right used to be wary of First Amendment arguments, but now they've come to embrace them. So we see a real complete flip here. And cases that were pressed by liberals like Ralph Nader and Eugene McCarthy have been flipped on their heads and used by conservatives to achieve conservative goals.

Now, I'm not unsympathetic to the conservative argument that you could say conservatives weaponized the First Amendment or liberals abandoned the First Amendment. But it's true that these days that free speech is much more of a conservative project. And liberals have become much more wary of free speech arguments. And in this last Supreme Court term, we saw some real examples of the way in which conservative free speech arguments can advance the conservative agenda.

GROSS: So let's look at one of those examples. Let's look at the example from which Elena Kagan wrote the dissenting decision using the expression that conservatives weaponized the First Amendment. And that was the case pertaining to public unions. So would you describe the case for us?

LIPTAK: Sure. So about 20 states have laws that say if you're a government worker and you want to work for the government, you're going to be represented by a public union. And you don't have to pay for their political activities, but you do have to pay fees for their collective bargaining on your behalf. And the five-justice majority of the court said that violates the First Amendment because it forces these nonmembers of public unions to take positions, to speak on issues like how much should they get paid and what kind of seniority should protect people from being fired and how many teachers should you have in a classroom? And those decisions, Justice Samuel Alito writing for the majority said, are political positions, and being forced to pay that is as though you were being forced to say things, that that's a compelled speech argument. And that notion carried the day.

The dissenters said, listen, it may be a good policy, maybe a bad policy, but governments are free to structure their workplaces as they wish. And if they want to have unions - only 22 states do have such laws - they should be allowed to do it. And the First Amendment has nothing to say to it. The First Amendment is not a weapon to strike down ordinary government regulations. But on the right, it has been turned into a weapon and has been a way for judges to look at laws, regulations and say the First Amendment prohibits people's elected representatives from making judgments like this one.

GROSS: So the previous law - the law that was overturned by the Supreme Court - said that workers who benefited from collective bargaining had to pay the union dues that cover collective bargaining but they wouldn't have to pay the part of the union dues that covered, you know, political speech.

LIPTAK: That's right.

GROSS: And so now they can just like not pay anything but still benefit from collective bargaining. And the fear that unions have includes the fear that people will say, well, I don't have to pay. I'll benefit from the collective bargaining anyway, so I'm going to save money and not pay my union dues.

LIPTAK: Sure. It's what economists call a free-rider problem. The economically rational decision today for someone who used to be a member of a public union is to say, hey, if I can get this for free, why should I pay for it? And that, of course, will deal a blow to the effectiveness of unions both in bargaining and in other activities. And it will diminish their power, which is a long-sought goal of conservatives.

GROSS: So let me quote Justice Kagan again in her dissenting decision. She said, "this decision weaponizes the First Amendment in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy." What is she saying?

LIPTAK: She's saying that this line of decisions gives judges enormous power because almost all human activity involves speech. And if judges are able to say that any kind of regulation - securities regulation, regulation of pharmaceuticals, regulation of public safety - because it involves speech may violate the First Amendment, that's transferring a ton of power from elected legislators who usually make laws to judges.

GROSS: I just want to read a couple of other things in her decision here. She said that the justices overruled the previous law because they wanted to. The First Amendment was meant for better things. It was meant not to undermine, but to protect democratic governments, including the role of public-sector unions. And she added - at every stop, black-robed rulers are overriding citizens' choices. What struck me as especially interesting about that is that she's really criticizing judges as a group. I don't know whether she's criticizing just the justices or judges in general for overruling things because they want to and for overriding citizens' choices. Black-robed rulers, that's a strong phrase when you're talking about your fellow justices.

LIPTAK: Yes. And it's coming from Justice Kagan, who is not a bomb-thrower, who is actually a very strategic thinker who doesn't lightly make these accusations. So for her to get so worked up means that something very important is happening here. One way to shorthand what she's saying is she's accusing her conservative colleagues of what we used to call judicial activism, of using judicial power to strike down duly-enacted laws and saying that they've found now a tool which gives them that opportunity in many, many settings.

GROSS: The tool being the First Amendment?

LIPTAK: That's right.

GROSS: So officially, judicial conservatives are supposed to be translating, you know, the Constitution to the letter of the law. And they're supposed to be opposed to judicial activism.

LIPTAK: Well, you know, in their defense, they would say the First Amendment is an important value. It's an important way to protect citizens from an overreaching government. They would say that the states that had these public union laws had no business telling workers what they should say. Now, you may question whether in paying a fair share fee or agency fee, as these things are called, is actually speaking. But if you believe that, the First Amendment should protect you from having to do that.

GROSS: The fact that Elena Kagan condemned black-robed rulers overriding citizens' choices, is that also an indication that there is more tension within the Supreme Court? I think you've said in the past that, in spite of conflicting decisions, the justices get along. I'm wondering if that's starting to change.

LIPTAK: I share your intuition, Terry. I think this last term was very divisive. They issued a very small number of decisions, but it took them forever to do it. There were many, many separate opinions in this sense. There were a lot of heated exchanges. There were many fewer unanimous decisions than we had last term. I think this is a court in transition. And whatever tensions we saw this last term will only increase when we get - if we get, when we get - a new Trump justice on the court which will really alter the ideological composition of the Supreme Court. So I think this is a tense body at the moment.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Adam Liptak. He's the Supreme Court correspondent for The New York Times. We'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, my guest is Adam Liptak, the Supreme Court correspondent for The New York Times. And we're looking back on this last term of the Supreme Court.

So we've been talking about how the First Amendment is being used now by the right wing of the court in its decisions. Another example of that is the decision pertaining to so-called crisis pregnancy centers. Would you describe that decision?

LIPTAK: So the case involves crisis pregnancy centers, which are religiously-affiliated centers that oppose abortion. And the state of California said that's fine, but we want you also to post a notice that says here is how you can obtain an abortion. And the question in that case was whether that was also a First Amendment problem, whether those centers were being compelled to speak, compelled to convey a message with which they disagreed. And again, 5-4, the conservatives in the majority said, yes, that is a First Amendment problem. And the four liberals in dissent said, no, that's an ordinary disclosure requirement, not uncommon. It's done all the time.

And there again we see a divide between the two sides. I think this compelled speech argument, many First Amendment experts would say, is a closer question. And lower courts have divided on this question. I might have thought that one or two of the liberals might have even seen the compelled speech argument with more favor. But the fact that they went 5-4 and it was on the next-to-last day of the term - the very last day of the term was the public unions case - was some sign that they're really in a heated battle over the meaning of the First Amendment.

GROSS: But I think part of this case was predicated on the fact that the California Legislature had found that about 20 of these centers in the state used intentionally deceptive advertising and counseling practices that often misinformed or even intimidated women from making fully informed decisions about their pregnancy.

LIPTAK: That's quite right. And it may be that the right way to address that is through fraud statutes and other regulatory efforts rather than to force them to put up notices. The majority said, listen; if the state wants to tell women about how to get abortions, it can take out advertisements. There are lots of ways to reach women without compelling these centers to speak about things they don't want to speak about. I don't disagree with you, Terry, that there's substantial evidence that there's misleading stuff going on at these centers, but it's not clear that this is the best way to address that.

GROSS: Justice Breyer, who dissented from the bench, indicating that this was a strongly felt dissent, referred to a 1992 Supreme Court decision upholding a Pennsylvania law. What was that law, and why did he see a contradiction between upholding that law and striking down the law that required these pregnancy centers to disclose the possibility of abortion?

LIPTAK: Well, there does seem to be a real disconnect between the two. The '92 decision Planned Parenthood v. Casey said that abortion providers do have to provide some kinds of information to women. They can be compelled to speak. But crisis pregnancy centers, it turns out, do not have to provide some kinds of information to women because that would be compelled speech. And Justice Breyer, in trying to reconcile these two, said - these two decisions - that he couldn't, and he cited the legal proposition, what's sauce for the goose is sauce for the gander. And he couldn't make sense of why we're going in different directions in the two settings.

GROSS: So just looking back a little bit historically, just, like, in the past few years, like, in the Roberts court, what are some of the other ways that the right wing of the court has used the First Amendment to justify their decisions?

LIPTAK: Well, most notably, in the campaign finance area. Citizens United, the 5-4 decision that endorsed unlimited corporate and union spending in candidate elections, was a First Amendment decision. It was a decision that said, the government can't regulate the political marketplace; the First Amendment protects political speech. And that was, in a way, the turning point. People have written that that was the first time where, in an important First Amendment case, the court divided ideologically with the five conservatives in the majority. Again, the First Amendment used to be a liberal project. It used to be liberals in the Warren court who were pressing First Amendment arguments. And the politics of the First Amendment have completely flipped.

GROSS: My guest is Adam Liptak, the Supreme Court correspondent for The New York Times. After a break, we'll talk about decisions pertaining to the travel ban and the baker who refused to make a wedding cake for a gay couple. And we'll discuss what this term's decisions say about the direction the Supreme Court is heading in. I'm Terry Gross, and this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to our interview with Adam Liptak, the Supreme Court correspondent for The New York Times. We're looking at the term that ended last week.

So let's look at another big case that the court heard this term, and this was on the president's travel ban - an overview of the case, please.

LIPTAK: Sure. President Trump campaigned, as you recall, Terry, that he wanted to impose a complete and total shutdown on Muslims. And then he gets into office and issues a series of increasingly refined travel bans. The third one of those gets to the court, and 5-4 again - I'm going to be tired of saying it. The five conservatives in the majority uphold the latest travel ban, saying two things. One, Congress has given the president vast authority over immigration, and he's entitled to exercise that authority, particularly when there are national security concerns at stake. And second, that, yes, he said some loose things here and there, but the court is only going to look at what's on the face of the travel order itself, a presidential proclamation from September. And that was neutral on its face. That was the result of study and consultation - end of story.

The dissenters, of course - and in particularly, a heated dissent from Justice Sotomayor joined by Justice Ginsburg - said, wait a second. This is at odds with America's values. This is - we have to take the president at his word, and this is really just discrimination. And it's of a piece with one of the most reviled Supreme Court decisions in its entire history, Korematsu, in which the court endorsed the internment of Japanese-Americans during World War II. Those were very, very tough words from Justice Sotomayor.

GROSS: And Sotomayor's dissent also said, referring to Trump's having retweeted three anti-Muslim videos as president and tweeted that we need a travel ban for certain dangerous countries - she wrote, let the gravity of those statements sink in; most of these words were spoken or written by the current president of the United States. That sounds to me like an unusual statement, too, coming from a justice. Like, she's saying, look; this is what the president said. She's basically saying, like, it's inconceivable a president would say this.

LIPTAK: Yeah. So the two sides on the court are actually addressing slightly different questions. The majority would like to think it's making a ruling about the powers of the presidency in general. Justice Sotomayor is saying, listen; you got to close your eyes to reality to not think that we have to make a decision based on this particular president, who is so unusual.

GROSS: But that - you know, it leads me to think that the justices - at least, the liberal justices - are wondering, how do you deal with decisions, how do you deal with ideological divisions in the court when the president is Donald Trump?

LIPTAK: They're in a tough spot. They're in a tough spot in so many ways. They don't have the votes. They're about to have even less power on the court with the replacement of Justice Kennedy. And they can either - there are really two schools of thought, and you saw it in the travel ban case. There was one dissent from Justice Breyer that was fairly mild and technical, and which tried to build bridges and leave open possibilities for future coalitions. And then there was Sotomayor and Ginsburg, who sort of threw up their hands and gave up and said, we can't work with these people; this is crazy talk.

GROSS: Are there cases in which the justices did not come out on ideological, predictable lines?

LIPTAK: I can think of three, and they're all important, and they all affect sort of the way Americans will go about their lives. One of them effectively struck down a ban on legal sports gambling. That's going to make a big difference in the lives of sports fans and states, which will make a lot of revenue off of this. A second allowed states to require Internet vendors, Internet merchants to collect sales taxes - also good for state revenues, maybe a little bad for consumers. And then, finally, the court said that cellphone companies that collect data about your location - you know, as you move around town, they actually leave a kind of digital trail of where you been. When the police want to get those records, they have to get a warrant, and that's an important victory for digital privacy. And in those three cases, you either had lopsided or scrambled majorities. So I don't want to completely overstate the point that they're all 5-4 decisions in all of them, the conservatives on one side and the liberals on the other. There are exceptions. But this has been a term where the main theme has been ideological division.

GROSS: Are there any decisions we haven't talked about that you think are very important but were basically overlooked because other news stories were overpowering it?

LIPTAK: Well, there are two decisions that turned out to be nondecisions but could have been enormous, and both of them were very closely followed. In fact, aside from the travel ban case, they were probably the two most important or most visible cases of the term. One of them was Masterpiece Cakeshop - the question of, could a Colorado baker refuse to bake a wedding cake for a same-sex couple. And the court ended up not really deciding the case. But that clash of values between gay rights on the one side and claims of religious liberty on the other side is a question the court's going to have to get back to sooner or later.

As it happened, by a 7-2 majority, Justice Kennedy writing the majority decision and not taking a position on the ultimate question was again some indication that he was thinking of leaving. He ended up saying that the baker in the particular case had not gotten a fair shake from the Colorado Civil Rights Commission because a commissioner had said things hostile to religion. And that disposed of the particular case. But that was a case people were really focused on, and a lot of people have very strong views on both sides about whether businesses open to the public should be allowed to discriminate against gay customers on earnestly held religious grounds.

GROSS: Knowing as little as I know, my impression about that decision was that all the judges - the justices on both sides - were afraid that an actual decision would not be in their favor, so they all decided to punt as opposed to lose the case. Do you think there's any truth to that?

LIPTAK: I think that's a very sophisticated analysis. I think when the court decides not to decide, it's because there are too many balls in play, and no one knows exactly how they're going to come out. It's also a case that the court really struggled with whether it should hear the case at all. It met in its private conference - I forget the exact number, but an extraordinary number of times - like, 15 times to decide whether or not to hear the case. And after Justice Gorsuch joined the court, they did put it on the docket. I don't think Justice Kennedy wanted to make that choice in the case because it involves two of his most important commitments. He is the leading judicial champion of gay rights on the court. He wrote every single major gay rights decision, so his legacy is centrally involved with gay rights. But he is also a very committed free speech absolutist. And here, again, this was one of these compelled-speech cases. The baker's argument was that he was being forced to say something in violation of the First Amendment by creating this cake. So in not deciding, I think you're quite right, Terry, that that was a signal that they couldn't decide.

GROSS: And you seem to think that the fact that Kennedy decided to punt on this was a sign that he was preparing to retire. Why do you see that as a sign?

LIPTAK: It was just part of a whole trend of things, where in that case and a pair of cases about partisan gerrymandering, everyone was looking to see, is he finally going to make some of the biggest decisions that someone might want to make? And the fact that he kind of ran out of steam was some indication that maybe he was ready to go.

GROSS: Now, I think there was a second case that you thought was somewhat overlooked.

LIPTAK: Yes. I think the two partisan gerrymandering cases had the potential to transform American democracy, and a lot of people were hopeful that the court would finally address the question. Partisan gerrymandering, as you know, Terry, is when state legislatures draw election maps, voting districts, to favor their own party. And they're so good at doing this these days that they can be in the minority in a given year and still get 60 or 70 percent of the vote. And the question of whether the Constitution has anything to say about that has long been an open question for the court. And in taking not one but two of these cases, a lot of people were hoping they'd finally answer that question - can you challenge partisan gerrymandering as a violation of the Constitution's equal protection principles or maybe its First Amendment principles? And end of the term came, and they managed to punt in both cases.

GROSS: Let's take a short break here, and then we'll talk some more. If you're just joining us, my guest is Adam Liptak, Supreme Court correspondent for The New York Times. We'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, my guest is Adam Liptak who covers the Supreme Court for The New York Times. So this was the first term with Neil Gorsuch on the court. And he was the decisive vote in 15 of the 18 cases decided by a 5-to-4 margin. Give us your analysis of how he performed in this, his first term.

LIPTAK: He got off to quite a start. So those statistics alone tell you something. And one thing they tell you is that almost every one - if not every one of those cases - would have been decided differently had Judge Merrick Garland, President Obama's nominee, gotten onto the court rather than been blockaded by Senate Republicans. So that tells you what a transformative figure Justice Gorsuch is simply by his vote. But he also hit the ground running - very active questioner, wrote a lot of separate opinions. And Chief Justice Roberts entrusted him with some major decisions, including his very second assignment. Sometimes it takes years for a junior justice to get a decent case. They usually get what people at the court called dogs - trivial, complicated, boring cases.

His second assignment was a major case on workplace arbitration, probably the most important business case of the term, in which the court said that businesses can force their employees, as a condition of employment, to give up their right to go into court and file class actions over things like wage theft and even to join together in the informal dispute resolution proceedings known as arbitrations. Even there, they have to arbitrate these disputes one by one even though the sums involved can be quite small. And Justice Gorsuch wrote the majority opinion for a 5-4 majority. Again, the conservatives in the majority; the liberals in dissent. And the fact that Chief Justice Roberts entrusted him with that important decision is a telling vote of confidence.

GROSS: Yet you say that it's unusual for a junior justice to get major decisions to write. So elaborate on what that says.

LIPTAK: It says that he entered the court as a full partner. The early thinking was - and it was in my early thinking, too - was that he would simply be an ally of the most conservative members of the court, Justices Thomas and Alito. He'd vote along with them. He wouldn't surprise us in any way. But he was actually a more nimble figure. He was closer to the center of the court. Really, the center of the court this last term was Roberts, Kennedy and Gorsuch. And his vote was occasionally in play. On one occasion, in an important immigration case, he did join the court's liberals. So he's a much more dynamic and interesting figure than some of us initially thought.

GROSS: President Obama had nominated Merrick Garland for the Supreme Court. That was blocked by Mitch McConnell who said - no, no, no. It's an election year. Your term's almost over. We have to let the American people decide by voting. And liberals are still furious about how Obama's nominee was blocked. And the Supreme Court would have been so different had Merrick Garland been the nominee and not Neil Gorsuch. And now President Trump gets to choose a second nominee to the court. I can't help but wonder how the liberal wing of the court feels about Garland's nomination having been blocked.

LIPTAK: So they may or may not have views about whether that was proper, whether that violated any kinds of norms. But there's every reason to think that they are sorely disappointed. Had there been a fifth liberal vote on the court, we would be back to the Warren Court era. We would have, for the first time in many decades, a majority of liberals on the court. And they would have used that power to press a progressive agenda. So they can't but be disappointed.

And, you know, Gorsuch was a blow. This next justice will be a further blow. And it's very hard to see how we won't now have a conservative majority entrenched on the Supreme Court for many years after Donald Trump has left office and in which - at least conceivably - the other branches of the federal government could turn blue. The Supreme Court will remain red for as long as, you know, maybe we'll be alive.

GROSS: You know, when I wonder about what the Supreme Court justices from the liberal wing think of how Merrick Garland was blocked, I think to - you know, it's the justices' job to rule on, you know, what's legal under the Constitution and what's not. And I wonder, you know, what they think of the techniques that Mitch McConnell used - you know, the rationale that he used to block Obama from choosing a nominee. I mean, that was never even brought to the Judiciary Committee.

LIPTAK: Well, listen. It was doubtless political hardball. And there are lots of people who think the tactic was unpleasant and ugly and bruising and bad for the Senate and bad for the nation. But the Constitution does give the Senate the right to advise and consent. And there's lots of reason to think that they can do that one nominee by one nominee, or they can do it wholesale. I don't know that they didn't have that power. And it's certainly impossible to see how it could turn into a court case. So you know, I understand people's frustrations and criticism. But I don't know that there was a legal violation there.

GROSS: So President Trump has stated a lot of things during his presidency that are just factually not true. But whether he believes that or not, whether he's intentionally lying or not, I don't know. But I do know a lot of people believe what he says when he states something that is provably false. Is there any legal way of holding him accountable for that?

LIPTAK: The short answer is no. You could imagine a narrow class of cases in which he says something that's both false and harmful to someone's reputation, which would allow that person to sue for libel. And he is being sued for libel by a woman who accused him of sexual harassment. And he said that was false, and she's suing him for defamation. But libel is a very narrow category.

And this goes back to a larger point about the First Amendment. The Supreme Court has in recent years been exceptionally protective of even false statements in the political sphere. For instance, a California candidate for some water board commission falsely said that he'd won a Congressional Medal of Honor, you know, which is a decoration for which people have died. And the court said, we're not going to get in the middle that. We're - the First Amendment gives you so much leeway, particularly in the political sphere, to say even false things that that's just not something for the government to regulate.

GROSS: Because of the ideological divisions within the court and because presidents have so much power to potentially change the court for generations, some people are proposing that there should be term limits on justices. Is that a very radical and perhaps impossible (laughter) suggestion?

LIPTAK: It's the opposite of radical. Every other country in the world has either term limits or a retirement age for justices. And the idea that justices should serve until they're 90, that Justice Kennedy - appointed by Ronald Reagan - should continue to work on the court, would strike the rest of the world as extremely unusual.

Now, is it practical? It almost certainly requires a constitutional amendment, and constitutional amendments never happen. So it's not particularly easy to get from here to there. But many, many people of all ideological stripes think there are good reasons to think that you shouldn't have people serving on the court forever.

GROSS: Does the Constitution say that it's a lifetime appointment?

LIPTAK: The Constitution doesn't use the term life tenure. It speaks about good behavior. But everyone understands it to be, unless you're impeached, that you can serve for as long as you wish to.

GROSS: So what's your summer looking like now that another seat is in play?

LIPTAK: My summer has gotten much more complicated, Terry. I had hoped that - as of last Wednesday, we wrote about the last decision of the term, the last big decision, the travel ban decision - and that I could embark on a lazy summer. And now I'll be covering the confirmation process, the confirmation hearings. And - you know, bad news for Liptak.

GROSS: (Laughter) Is it an exciting story to cover?

LIPTAK: It's a great story. I mean, I really can't overemphasize how different Justice Kennedy's retirement is from just about anybody else's. It's the end of the world as we know it. It's a transformative moment in American life. He has been so important, so central to the work of the court and to the meaning of the Constitution. And whoever succeeds him will cause the court to be a completely different place.

GROSS: OK. Adam Liptak, it is always a pleasure to talk with you. Thank you so much.

LIPTAK: It's great to be here, Terry.

GROSS: Adam Liptak is the Supreme Court correspondent for The New York Times. After we take a short break, we have a follow-up to our interview with Boots Riley, who wrote and directed the new film satire "Sorry To Bother You." This is FRESH AIR.


Combine an intelligent interviewer with a roster of guests that, according to the Chicago Tribune, would be prized by any talk-show host, and you're bound to get an interesting conversation. Fresh Air interviews, though, are in a category by themselves, distinguished by the unique approach of host and executive producer Terry Gross. "A remarkable blend of empathy and warmth, genuine curiosity and sharp intelligence," says the San Francisco Chronicle.
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