Journalist Predicts SCOTUS, 'Under Strain,' Will Move Slowly On Abortion

May 30, 2019
Originally published on June 7, 2019 2:46 pm
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TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The Supreme Court will soon wrap up its first term with two sitting justices appointed by President Trump - Neil Gorsuch and Brett Kavanaugh. One of the big questions about this new court is, will it strike down Roe v. Wade or continue to allow states to chip away at women's access to abortion?

My guest Adam Liptak is the Supreme Court correspondent for The New York Times. We're going to talk about the direction of the court on issues pertaining to abortion and the Trump administration, and we'll examine how Gorsuch and Kavanaugh are changing the court.

Adam Liptak, welcome back to FRESH AIR. Let's talk about how the right to have an abortion is being challenged in the Supreme Court. And let's start with a case that was decided this week. Describe the law that had been struck down and was appealed to the Supreme Court.

ADAM LIPTAK: The law had two pieces. One piece said you can't have an abortion if you're doing it for a bad reason. And among those reasons were that the fetus has a disability or you wanted to choose the sex of a child. So that's part one of the law. Part two of the law tells abortion providers that they have to dispose of fetal remains by burying or cremating them.

GROSS: So how did the court decide?

LIPTAK: The court decided not to review the ruling on the forbidden grounds part of the law. It let stand a lower court ruling that struck down that law as contrary to Roe v. Wade, which, in essence, says the states can't ban abortions until viability - until the fetus is viable outside the womb. So it declines review in the forbidden grounds part of the law.

On the other hand, on the more modest part of the law on disposal of fetal remains, the court reverses the lower court and says that law is acceptable. But it says, at the same time, it's not really an abortion law. We're not analyzing it under abortion precedents. We're just saying a state is entitled to have such a law. Just as it could tell, say, a veterinarian how to dispose of the bodies of animals that died, it can tell abortion providers how to dispose of fetal remains.

GROSS: One of the things that really confuses me about the law that was overturned, the law that said that a woman can't decide to have an abortion based on choosing what gender she wanted to have or deciding to have an abortion because the fetus was diagnosed as having Down syndrome or another, you know, serious illness or abnormality - if a woman says, I'm having an abortion just 'cause I want to, who's to say that she's having it because she's choosing the gender? Who's to say she's having it because the fetus was diagnosed with Down syndrome? I mean, how can you know what's in a woman's heart when she decides to have an abortion?

LIPTAK: Right. And that goes to a point about many of these laws. They're symbolic, in a way. They'd be very, very hard to police. What woman is going to announce that - in the face of such a law, that she's aborting a fetus because of Down syndrome? It's also a curious law that says, sure, you can have an abortion on a whim. You just can't have it for an expressed reason that a lot of people might think was a sound reason.

GROSS: If the Supreme Court had heard the case, the part of the case pertaining to selectively having an abortion based on gender - the gender or the health of the fetus - would've given the court the first chance to consider the constitutionality of a state law restricting abortion since Kavanaugh replaced Kennedy last year. Do you think that the conservative members of the Supreme Court are just waiting for a better case to challenge Roe?

LIPTAK: No. My sense is that the court would rather move more cautiously and uphold more modest restrictions on abortion, rather than go headlong into the question of overruling Roe v. Wade. And there are a lot - so there are two kinds of abortion laws in the land. Some of them make it hard for women to get an abortion - laws about admitting privileges and waiting periods.

And I think the court is likely to take those kinds of cases, uphold the restrictions and make it harder for women - particularly women in red states, particularly poor women in red states - to get abortions, but is not particularly eager, in the next year, two, five, to headlong go into, is Roe v. Wade ready to be overturned? I - the court will get there, quite likely, but I don't think it's in a rush.

I think Chief Justice Roberts is not a friend of Roe, but is also an incrementalist, an institutionalist - wants to protect the legitimacy and prestige of his court and wants to move slowly. He's only 64 years old. He's got plenty of time.

Now, that does mean he needs to reign in the justices to his right. Three of them seem ready to move. And that places the newest justice, Justice Kavanaugh, in an important position because although it takes five votes to decide a case at the Supreme Court, it only takes four votes to put the case on the docket. And if four justices do put a big abortion case on the docket, there's - it's not at all clear that at that point, forced to decide, Chief Justice Roberts will vote to sustain Roe. I think, more likely, he'd vote to strike it down.

GROSS: So voting it onto the docket is a really big issue right now. And you say it's really Kavanaugh who's going to be deciding that. What do we know about Kavanaugh's record on the right to abortion?

LIPTAK: On the appeals court, he participated in a decision in which it looked like he doesn't have a lot of use for Roe v. Wade. But he, too, at least in his early time on the court - and he's only been there for, you know, several months - has exhibited a kind of caution and there - and has voted closely with the chief justice, has been in the majority more than any other justice, doesn't seem to want to get out of the gate, particularly following his stormy confirmation hearings, doing something truly radical. So I think he, too, will be inclined to move slowly.

But, you know, as you say, Terry, it only takes the four votes. And if Kavanaugh were to join the three more conservative justices - Alito, Thomas and Gorsuch - to put the case on the docket, the court could well overturn Roe v. Wade.

GROSS: So what are the cases most likely to come to the Supreme Court because they were designed to be test cases?

LIPTAK: My sense is - so we're seeing these abortion laws all over the country. Seemingly every week, there's a new one. And they - and you know, Alabama says, you can't have an abortion at all, including if you were raped or the victim of incest, and wants to impose very harsh prison terms on doctors who perform abortions. Other states have these so-called fetal heartbeat laws, which effectively ban abortion at six weeks, a point in time when many women don't even know that they're pregnant.

Those cases, those outright bans on abortion that flatly conflict with Roe, are very likely to be struck down by lower courts. They really ought to be struck down by lower courts because lower courts are supposed to apply Supreme Court precedent, and Supreme Court precedent requires them to be struck down. Then the question is, does the Supreme Court simply deny review? - which is what it does routinely in the vast majority of cases. Ninety-nine percent of cases, the court simply denies review - or do we reach a point at which there are four votes to put such a case on the docket?

Again, I don't think that's going to happen particularly soon. I think the court will instead engage in a project of hollowing out the right to abortion by sustaining all kinds of restrictions on abortion, but is not really looking for a headline - a banner headline in the New York Times that says Supreme Court 5-4 overrules Roe v. Wade. It would rather do it a little more cautiously and incrementally.

GROSS: So if the Supreme Court is unlikely to overturn Roe v. Wade, it sounds like it might be more likely to overturn Casey, the 1992 decision? Do you want to explain that decision and where that figures in to where we're headed on abortion rights?

LIPTAK: In a sense, Roe and Casey do the same thing, but Casey introduces a new test on abortion laws, and it's a very squishy test. It says states can't pass laws prior to viability that impose an undue burden on a woman's right to abortion, that places substantial obstacles in the way of a woman's access to abortion. And that's really been the standard under which we've been living, much longer than Roe. And that standard will allow the court to sustain all kinds of abortion restrictions because they don't need to overrule Casey. They just need to say that's - we've looked at this. That's not an undue burden. It may be a burden, but it's not an undue burden.

It's just a set of words. They don't really have a lot of meaning, this phrase, undue burden. And if the court does want to get rid of abortion entirely, wants to withdraw the constitutional right to abortion established in Roe in '73 and reaffirmed in Casey in '92, it will have to do it in the context of one of these extreme abortion laws that are being passed by states all around the country, seemingly every week.

GROSS: Clarence Thomas has said that the Constitution itself is silent on abortion. So what does an originalist, like Clarence Thomas, who's trying to take every word in the Constitution as literally as possible and figure out what the founders meant when they wrote each of those words, what does someone like him to do with an issue like abortion, which, as he said, the Constitution does not directly address?

LIPTAK: The originalist view - and, you know, it's got a power to it - is that those things that are not spelled out in the Constitution are committed to the political process. And that means people, through their state legislators, can decide whether to allow, how much to allow abortion. And of course, in blue states, abortion, even if Roe is struck down, will remain freely available. In fact, many states are moving to reinforce the right to abortion in their state laws and constitutions. So an originalist would say, Constitution doesn't tell us what to do. The people can decide and states can make what laws they want.

The other side of it is that the Constitution is written in grand, open-textured phrases that are meant to be filled in by succeeding generations confronting contemporary problems, and that as women's rights came to be acknowledged to be protected by the Constitution, the Constitution, these people would say, should protect women's autonomy, should protect their ability to control their own bodies, should protect their ability to participate fully in the social life of the nation.

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

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GROSS: This is FRESH AIR. And if you're just joining us, my guest is Adam Liptak, the New York Times Supreme Court correspondent.

I know you think the right to abortion is likely to be chipped away at incrementally, as opposed to Roe v. Wade being overturned, but where is Roe most vulnerable?

LIPTAK: Listen. It's not hard to write a decision striking down Roe, and we've already sketched out a little bit of how that would work. All you need to do is to say it's built on quicksand. There's nothing in the Constitution. People have struggled to find a provision of the Constitution to root Roe in. The case that all of this was built on, a case about contraception, called Griswold, said you could find a right to privacy that encompasses reproductive rights in the emanations and penumbras of various parts of the Constitution.

And just saying those words make it easy to see how a decision going the other way could be very workmanlike. And we just say, we express no view on whether abortion is good or bad. All we can tell you is this is not a right protected by the Constitution, and the people can decide how much they want to allow or limit abortion through the political process.

The day may come when Chief Justice Roberts, writing for five justices of the Supreme Court, writes such a decision. And I may turn out to be wrong, that this is five years from now, not one or two years from now. But it just doesn't seem to me that the court is hellbent to do this right away.

GROSS: So Roe is grounded in the right to privacy, but the right to privacy isn't stated directly in the Constitution. It's just the penumbra of, (laughter), privacy that's in the Constitution. And then that's where Roe is vulnerable?

LIPTAK: Right. Yes. Or the phrase of the Constitution that Justice Kennedy and other justices leaned on in Casey was the 14th Amendment's protection of liberty. But that phrase in the Constitution says that states can't deprive people of life, liberty or property without due process of law.

So the word liberty standing alone sounds pretty good. That sort of, you know, sounds like autonomy. But all it says is, you can't do it without due process of law, which is, like, a procedural right, not a substantive right. So this is getting a little tangled, I know. But there again, it's a legal matter. There are vulnerabilities to the constitutional basis for Roe and Casey.

GROSS: Since Roberts is considered the swing vote now, and he's more conservative on some issues such as the right to abortion and LGBTQ equality, tell us where you think Roberts stands on abortion.

LIPTAK: John Roberts is not a fan of abortion. In a case a couple years ago out of Texas, he voted in dissent to sustain some tough restrictions on - in a Texas abortion law that could have driven the number of clinics in the state down to 10 - huge state - from 40. So we don't know a ton about him, jurisprudentially. But on those occasions when he's voted in abortion cases, he's voted to restrict the right to abortion.

GROSS: Let's talk about President Trump and the Supreme Court. Let's start with this. You know, Merrick Garland, who was President Obama's pick to be the next Supreme Court justice when Obama was president - that nomination was totally blocked by Mitch McConnell.

Now Merrick Garland's circuit will hear an appeal pertaining to President Trump. Garland is the chief judge on the D.C. Circuit Court of Appeals. And they're going to hear the Trump administration's appeal of a decision saying that President Trump had to hand over his financial records to a congressional committee. So exactly what will Merrick Garland's role be on this?

LIPTAK: In the short-term, nothing. He's not on the three-judge panel that will hear the case. Should the losing side of the three-judge panel seek to take the case to the full D.C. Circuit, I imagine Chief Judge Garland would sit. I don't see any reason why he would have to recuse himself. And he would have one vote like anyone else.

Chief judge is an administrative title. It doesn't give you any particular sway at the court. So I've seen a lot of commentary about, oh, isn't this weird? Isn't this comeuppance of some sort? But I think that's overreading the situation.

GROSS: Can you tell us about this case and what its importance is?

LIPTAK: We have a whole set of subpoenas from the Democratically controlled House of Representatives seeking to get information about President Trump, his official actions and his record as a businessman.

The case that made it to the D.C. Circuit first - although there will be lots of litigation - concerns an attempt to get records from President Trump's accounting firm. A district court judge ordered those records to be disclosed. The D.C. Circuit has put it on a fast track. And one of these cases, or more than one of them, may well reach the Supreme Court.

GROSS: If it does reach the Supreme Court - if one of these cases does reach the Supreme Court, what do you think the outcome would be?

LIPTAK: The cases are different, and they present different issues. But broadly speaking, the Supreme Court has enforced congressional subpoenas seeking information. And I would expect the administration to have some challenges at the Supreme Court. Congress has substantial rights to seek information, at least in connection with its legislative function. The court has said - and this makes perfect, common sense - that you can't legislate wisely without having information, and you need to be able to obtain information.

Now, the Trump people come back and say, yes, but this is for political reasons. It's not authentically in aid of a legislative function. But the Supreme Court and other courts are very reluctant to look behind the motivation of a subpoena, just as they're very unlikely to look behind the motivation of a statute. They look at the words on the page, and if it fits with a very broad conception of the legislative function, most judges are likely to affirm it.

So while - when President Trump reaches the Supreme Court in other contexts - like, say, the travel ban or the upcoming case on the census - I think the court is likely to be receptive. The court's conservatives, in particular, are likely to be receptive to the Trump administration's arguments.

The subpoena cases are a little different, and as I say, they all have different factors. Some of them have - the tax case has a statute that requires disclosure of tax returns. That's a particularly strong case. The attempt to subpoena the Mueller report, which has redacted grand jury information in it, might be a weaker case. They're all a little different.

But I don't think this is, by any means, a lock that we're going to see 5-4 decisions, with the five Republican appointees lining up with the Trump administration. I think there's good reason to think that the House will do well in many courts and even the Supreme Court.

GROSS: My guest is Adam Liptak, New York Times Supreme Court correspondent. After a break, we'll talk about whether we're in a constitutional crisis, how Robert Mueller's statement yesterday could affect the congressional investigations of the president and how Justices Gorsuch and Kavanaugh are changing the Supreme Court.

Later, jazz critic Kevin Whitehead will review a new album by drummer and composer Jeff Williams. He's played with Stan Getz, Lee Konitz and Joe Lovano. I'm Terry Gross, and this is FRESH AIR.

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GROSS: This is FRESH AIR. I'm Terry Gross. Let's get back to my interview with Adam Liptak, the Supreme Court correspondent for the New York Times. When we left off, we were talking about the role the Supreme Court might end up playing in the standoff between House congressional committees, which have demanded documents and testimony from the Trump administration, and the president, who has refused to comply.

Well, you wrote the framers didn't anticipate every problem, including Congress's power to investigate the executive branch or the president's right to keep secrets from Congress. So where does that leave the Supreme Court if there's no constitutional guidance?

LIPTAK: The court has inferred from the structure of the Constitution both of these things - that you can't legislate without knowing facts; therefore, you have to have the ability to gather facts, including by subpoenas. And that's been made clear in a number of Supreme Court cases. They're not going to walk away from that.

Similarly, the court has said that there are at least some situations where the president can decline to comply and assert executive privilege and keep secrets. But that's a fairly narrow band, and it's not unyielding. It probably refers to deliberations with close advisers, to national security matters, to the commander in chief power.

But in the Nixon tapes case, where a criminal inquiry sought access to tapes of Nixon consulting with his advisers in the Oval Office, the Supreme Court unanimously said, yes, there's such a thing as executive privilege. Yes, you can assert it. But it must yield in the face of an important inquiry. So executive privilege is a real thing, too, but it's not a showstopper.

GROSS: So a case dating back to 1927 is being seen as a precedent for whether the president has to hand over what congressional committees are demanding of him. And so that's a precedent from the Teapot Dome corruption scandal. What was that precedent, and how might it be used in terms of Trump versus congressional investigations?

LIPTAK: So in that 1927 decision, which involved an investigation of government corruption, the Supreme Court said that congressional inquiries were, quote, "an essential and appropriate auxiliary to the legislative function." So in English, that means you can't oversee the executive branch without access to information. And that's Congress's job. Congress is in Article I of the Constitution. It makes the laws. The president executes the laws. So in these and other cases, the House starts off in a fairly strong position.

Now, let me give you a little bit of the arguments going the other way. One of them is, the Trump administration will say, at least as to some of these subpoenas, it's not an authentic legislative task to figure out whether the president committed tax fraud 10 years ago. That has nothing to do with Congress's ability to write tax laws.

They will also say - and this has some force - that it may be Congress's right, but this is not a matter for the courts. Congress has other tools. The House can deny appropriations. The House can impeach - that this is not something to go to the Supreme Court about, but to use the powers you already have in the Constitution to address a president who's not complying with your demands.

GROSS: Do you think we're in a constitutional crisis? And I think my larger question is, exactly what is a constitutional crisis? It's an expression I hear all the time. And I've heard at least three or four different definitions about what it is.

LIPTAK: There's no fixed definition. My editors ask me about once a week, are we in a constitutional crisis?

GROSS: (Laughter).

LIPTAK: I mean, one constitutional crisis I can think of is, the Supreme Court says to President Trump - as it said to President Nixon - you must comply with a subpoena. And were President Trump not to comply, that would be a full-blown constitutional crisis. Another kind of...

GROSS: Because you have two branches of government - Congress versus the executive branch - at odds with each other and no one to decide who wins.

LIPTAK: Right. If you have a complete breakdown of the complicated, interlocking set of checks and balances that has actually served us very well for more than 200 years - if you just have complete lack of cooperation where, say, the Supreme Court says, Congress wins, and the president says, very interesting you said that; I'm not going to comply - that's a constitutional crisis. We're not particularly close to that.

Another kind of constitutional crisis I could imagine - let's say a Democrat is elected in 2020, and Republicans continue to control the Senate. And we lose one Supreme Court justice after the other, and nobody is confirmed. You can imagine that kind of constitutional crisis.

But the term is thrown around a little too loosely. The Constitution is a pretty resilient document. And it may be that we'll be able to muddle our way through even what looks today to be a real crisis not because there haven't been clashes between the branches before - bear in mind that officials of both the George W. Bush and Obama administration were held in contempt by Congress, and those cases went to court and they - over time, they sort of got sorted out.

But what we have here is, on the one hand, an extremely large number of demands from the House - by the Trump administration's count, more than a hundred - and a complete categorical, totalist (ph), maximalist response by President Trump, who says, we're not complying with any of the subpoenas. Now, if we're to take him at his word - which maybe we shouldn't - that does seem to be the kind of standoff that, if not a constitutional crisis, is a threat to the constitutional order.

GROSS: So if - somebody would have to bring a case saying that President Trump has to comply with subpoenas or turn over his tax records, and that case would have to make its way to the Supreme Court.

LIPTAK: Yeah, that's right. But that's underway. I mean, some of those cases are in court. Others will be in court soon enough. One of the cases is already before a federal appeals court, which I think - we'll hear arguments in July, which is fast by legal standards. So this - these cases could reach the court in quite short order.

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.

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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.

Well, Robert Mueller just broke his silence and made a public statement pertaining to the report and also pertaining to the fact that he's not going to make any more public statements. So what do you feel like you learned from what Mueller said?

LIPTAK: I think, to a large extent, he set the record straight about the second part of his report, the part involving questions of obstruction of justice by the president. He plainly said that they didn't clear the president. He plainly said that they weren't in a position to indict the president.

And you put those two things together, and you read between the lines just a little bit. He certainly seems to be suggesting that there is substantial evidence that the House could look at if it were interested in pursuing impeachment charges against the president. And perhaps after the president leaves office, it's possible that a prosecutor might want to consider indicting the president then.

He's stuck in this weird box where he says, as a matter of Justice Department policy and fundamental fairness, he can't indict the president. But, he says, if I could've cleared him, I would have. And you put those two pieces together, and you go, man, I guess there's some evidence here.

GROSS: Do you think what Mueller said has any implications for the House committees that are currently investigating the president?

LIPTAK: I'm not sure it adds anything to a fair reading of the report itself, but some of the commentary around the report and some of the attorney general's summary of the report may have clouded people's understanding of what the report's conclusion, particularly on obstruction, was. And this, you know, crisp, brisk statement from Mueller brings things back into focus.

GROSS: Do you think Mueller's public comments add anything to the question of, should the president be investigated for obstructing justice, and is that impeachable?

LIPTAK: No, I think it leaves that conclusion to the House. And the House has complicated calculations to make, some of them legal, some of them political. They are up against the reality that whatever they do, a Republican-controlled Senate is not going to remove the president and the possibility, at least, and maybe even the probability, based on history, based on the Bill Clinton impeachment, that impeaching Trump is actually politically good for Trump.

So you have conflicting impulses. On the one hand, there's this evidence that looks real of attempts to obstruct an inquiry, and on the other hand, the political reality that the tool the Constitution gives the House - impeachment, an accusation against the president which would be tried in the Senate - is one that is not likely to work and might actually redound to the president's benefit.

GROSS: If the House decided to impeach President Trump, would that give the House more power to get access to witnesses who Trump has asked not to comply with subpoenas or to information like tax records that the president has decided not to hand over?

LIPTAK: Very good question, and the answer is an emphatic yes. So congressional subpoenas, when they're merely issued in aid of its legislative responsibilities, can sometimes be overcome. Sometimes courts will allow them, sometimes not. But there's really no question but that the House's power to compel testimony in aid of an impeachment inquiry, as distinguished from legislation, is at its height and that courts are likely to affirm that. And if the president and his associates were to decline to cooperate with subpoenas issued in aid of an impeachment inquiry, they're likely to lose.

And moreover - and there's historical precedent for this - that would itself be an impeachable offense. So when Nixon declined to comply with congressional subpoenas, the House Judiciary Committee drafted articles of impeachment for that. So it's - there's a chicken and the egg thing here. You get more subpoena power, and a failure to comply with such a subpoena - there's historical precedent for - is itself an impeachable offense when the subpoena comes out of the impeachment inquiry.

GROSS: So do you think that Robert Mueller just gave the House more reason to - or more evidence for pursuing impeachment?

LIPTAK: No, I guess I don't go that far. I don't think Mueller said very much beyond what's on the face of the report, although he said it much more crisply. You know, the report is 400 pages long. Almost nobody has read all of it, and the conclusions are a little hard to sort through.

But in hitting the bullet points, the high points, I don't think he was speaking so much to members of Congress who are - and their staff who are studying this closely. But I think he does put into context for the American public what the basic ground rules here are.

GROSS: So we have a new court with two Trump appointees - Neil Gorsuch and Brett Kavanaugh. You've written about the surprising number of things they have in common. Can you sketch out where their backgrounds intersect?

LIPTAK: It's sort of extraordinary. They - both of them went to the same Jesuit high school in the suburbs of Washington at the same time. They were two years apart. Kavanaugh was two years ahead of Gorsuch. And then they both went to Ivy League colleges. They both went to Ivy League law schools. They both clerked on the Supreme Court - very prestigious job to be a law clerk to a Supreme Court justice - and a clerk for the same justice - Justice Anthony Kennedy. And they clerked for the same justice in the same term. So their lives have overlapped very closely.

And then they go on for about a decade each to be appeals court judges, issuing conservative opinions that the conservative legal movement, the Federalist Society loves. They're - make it onto the lists that candidate and then President Trump circulates. They're confirmed by close votes in the Senate. And you would think, you know, we have twins. You know, we have two people who were put in a test tube to be exactly the same person. And they get on the court. And it turns out they're human beings, and they have some significant differences.

GROSS: What are some of their differences?

LIPTAK: What - some of it is stylistic. Neil Gorsuch is a big personality - folksy, a showy writer, a kind of - how to say this nicely - on the bench, he sometimes have - has a certain self-satisfied air. He arrived on the job and felt very comfortable on the job almost immediately. So that's one set of stylistic approaches to the job.

Brett Kavanaugh, so far, has been much more modest, workmanlike. A good, crisp writer, but not one with a lot of flair. And a sort of straight-ahead questioner on the bench. So there are stylistic differences.

But more importantly, there are interpretive differences. They approach the Constitution and statutes a little differently. Gorsuch, who seems to be the more conservative of the two, is very much an originalist, meaning he wants to figure out what the Constitution meant when it was adopted, and a textualist, meaning he only cares about the words of the statute Congress passed and not about what the purpose of the statute was, not about what the consequences of a given ruling might be.

Kavanaugh - and the evidence is thin. He's only been on the court for a little bit - seems much more pragmatic, seems much more open to saying, well, what makes sense here? What's the workable, sensible answer to this question. Sure, you can interpret it this way. You can interpret it that way. But which way is America better off?

And that has caused them, on not a few occasions, to be on the other side of some cases. Not the biggest cases, but still enough to illuminate the differences.

GROSS: Are you sensing a growing amount of tension between the justices? You used the word rancorous in (laughter) a recent article.

LIPTAK: Very much so, and especially in the area of the death penalty. The liberal justices and the conservative justices are deeply divided on issues that arise in last-minute stays, requests, in death penalty cases. Justice Breyer, who is not easily angered, wrote a bitter dissent at 3 o'clock in the morning, saying his colleagues wouldn't even wait till the morning to discuss a case with him. And over and over again, the right side of the court has said that there are abuses in death penalty litigations and people are bringing groundless claims at the last minute in a kind of cynical gamesmanship.

And the left side of the court is saying, wait a second, these are serious issues. They involve life or death. Why don't we consider them in a deliberate way? And where, when Justice Kennedy was on the court, he seemed to be a moderating force - he would sometimes go one way, sometimes go the other. Always keep it civil - now there's a level of rancor and anger on the court, which is quite new.

GROSS: How is that being expressed? In writing, or in discussions? What access do you have to that?

LIPTAK: Well, it's certainly been discussed in a whole series of opinions, including - and this is so weird - opinions issued weeks after the fact. They keep relitigating these issues. And in a different case, they'll drop a footnote about the old case. And so they can't let it go.

And they have even on occasion, again, in writing, sort of opened the curtain on behind-the-scenes deliberations on how they can't even get along well enough to sit down together to discuss something. So you're seeing a new era at the court. This is a court in transition, and it's a little rocky.

GROSS: So Justice Kennedy had been considered the swing vote in the Supreme Court, and he's retired. So Justice Roberts, the chief justice, is now seen as the swing vote. How swingy has he been? Like, what can you learn from his recent decisions?

LIPTAK: Justice Kennedy, although basically conservative, leaned left in important areas like abortion and affirmative action and, most importantly, gay rights. Those are not areas in which the chief justice is likely to go in a liberal direction.

But there have been a couple of instances where the chief justice has joined the four liberals to make up a 5-4 majority. One of them involved a case about an abortion restriction out of Louisiana which the chief justice, agreeing with the liberals, provisionally blocked.

A second one involved a Trump administration asylum policy where, again, the chief justice with the four liberals, in a 5-4 decision, blocked. Chief Justice Roberts is a very smart and savvy man, and I'm sure he's thinking very carefully about how to thread the needle between what, on the one hand, is an impulse to move the court to the right and is, on the other hand, an impulse to be cautious and to guard the institutional reputation of his court.

GROSS: Adam Liptak, thank you so much for coming back to FRESH AIR. It's always a pleasure to have you on our show. Thank you.

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

GROSS: Adam Liptak is the Supreme Court correspondent for The New York Times.

After we take a short break, jazz critic Kevin Whitehead will review a new album by drummer Jeff Williams, who's played with Stan Getz and Joe Lovano. This is FRESH AIR.

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