How the recent SCOTUS session renewed questions about the Court's legitimacy
TERRY GROSS, HOST:
This is FRESH AIR. I'm Terry Gross. In analyzing the Supreme Court term that ended last week, my guest Adam Liptak wrote, the Supreme Court's conservative supermajority has been moving at a brisk pace to take on some of the thorniest and most divisive issues in American society, including abortion, guns and race. He added that this term has renewed questions about whether the court's approach threatens the stability of the law and the court's legitimacy. This term, the court ruled against affirmative action and gay rights and struck down the Biden administration's student loan forgiveness plan. Nevertheless, Liptak says the entire story of the most recent term is considerably more complicated than that of the previous one, which had seemed to establish an unyielding conservative juggernaut characterized by impatience and ambition and built to last. Adam Liptak covers the Supreme Court for The New York Times. We recorded our interview yesterday morning.
Adam Liptak, welcome back to FRESH AIR. So despite these blockbuster rulings that basically ended affirmative action, limited gay rights, ended the Biden administration student loan forgiveness plan - these are all decisions in which conservatives were in the majority - you say the liberal wing did better than expected. And even David Cole, the national legal director of the ACLU, said losses in affirmative action and gay rights cases were unprecedented setbacks for equality, but beyond those cases, civil liberties and civil rights fared surprisingly well, better than anyone predicted. That's really surprising for me to hear. I did not notice that. So in what areas did civil liberties and civil rights fare surprisingly well?
ADAM LIPTAK: So, Terry, I would start by emphasizing that the blockbusters that ended the term - 6-3 decisions along the classical lines of the six Republican appointees in the majority, the three liberal appointees in dissent - were the signature cases of the term, and each of them transforms American society in a significant way and moves the law and American life to the right. There were a series of cases in which the liberals were in the majority. Those cases, in important areas - the Voting Rights Act, the role state legislatures play in federal elections, Native American adoptions, the Biden Administration's ability to set priorities in immigration enforcement - those are important cases too, but all they did, really, was maintain the status quo. They didn't move the court to the left, but it didn't get worse. And going into the term, it looked like - as with the previous term where there was a relentless onslaught of 6-3 cases, it looked like even in these cases I just listed, there would be conservative victories. And the liberals managed to hang on. And those victories were significant, but they maintain the status quo.
GROSS: There are other ways in which you say this term was more complicated than last term. Last year, Chief Justice Roberts seemed to have diminished in power, while Thomas' power expanded. How did that look this year?
LIPTAK: This term, the two members of the court most apt to be in dissent were the two most conservative justices, Clarence Thomas and Samuel Alito. So that alone tells you something. I mean, one way to think about this is that in the previous term, a law professor named Leah Litman said we're now living in the age of the YOLO court, the you-only-live-once court, the court that wants to do everything all at once.
LIPTAK: And here - we still have two YOLO justices in the new term, but there's a sense of tapping on the brakes, of incrementalism, of moving to the right more slowly by what might be said to be the center of the court, especially Chief Justice Roberts and Justice Brett Kavanaugh.
GROSS: What's an example of one of those incremental decisions that will probably continue to move to the right, but just more slowly?
LIPTAK: So I can give two examples. There was an important Voting Rights Act case which involved whether Alabama should have two voting districts for Congress in which Black voters make up a majority, as a lower court said, or only one, as Alabama said. And the court, by a 5-to-4 vote, says no, the right number is two. And the Chief Justice and Justice Brett Kavanaugh joined the court's liberal members in making that ruling. But then Justice Kavanaugh writes separately to say that taking account of race in drawing voting districts may not be something you want to do forever, that it may be a question the court should return to.
Similarly, the court rejected an equal protection challenge to the Indian Child Welfare Act, which is a federal law that seeks to keep Native American children with their tribes. But the court did so on the ground that the challengers lacked standing. And here, again, Justice Kavanaugh issues a concurring opinion, and he says this issue remains alive. Is there an equal protection problem with the law? And he said here, too, the court could return to it at a later date.
GROSS: I wouldn't categorize these necessarily as big victories, then...
GROSS: ...Because they're coming back. So let's look at some of this term's decisions. Let's start with affirmative action. Would you describe the outcome of this case?
LIPTAK: The court said that race-conscious admissions in higher education was unlawful. It said the admissions programs at Harvard, a private university subject to a federal statute, and the University of North Carolina, a public university subject to the Constitution's equal protection clause, violated the law by discriminating based on race. The chief justice, writing the decision, took an essentially colorblind view of the Constitution, saying you can't take account of race for positive or negative reasons. And he left the door open, ajar a tiny bit, in two senses.
First, he said he's not saying you can't take account of race in an individualized sense. And this basically talks about application essays, that you can write about overcoming adversity, including racial discrimination, in your application essay. And you can talk about how you celebrate your ethnic or racial heritage and the steps you've taken to connect with it. So, so long as the racial component in the admissions decision is tied to an individual, he says that's OK. But to the extent you're giving historically disadvantaged racial minorities a boost at a kind of check-the-box level to ensure that your college class looks like America, that's not acceptable.
The second exception he seemed to make was regarding military academies. He said the court wasn't deciding whether military academies could take account of race. And apparently - so we don't know that they can, but we also don't know that they can't. And there seemed to be, in a footnote in the case, a suggestion that national security concerns requires the leadership of the armed services to reflect the troops for reasons of morale, unit cohesion and so on.
GROSS: Do you understand why it should apply to the military and not to the education system, which is the future of our country?
LIPTAK: I can say what the reasoning would be. I'm not sure most people would find it entirely convincing. So the question is, if on the one side of the balance is ordinarily prohibited government distinctions based on race, what's the value on the other side? It seems to be that the chief justice is suggesting that if the only value on the other side is educational diversity, the idea that students learn better from each other if there are a variety of backgrounds in the class - that interest, he seems to suggest, is not sufficient to overcome the prohibition on taking account of race. But he would say, I guess, that national security and making sure that armed services are cohesive is such an interest. You make up your own mind.
GROSS: But what about the fact that we need educated people who - you know, with college degrees or advanced degrees who are Black and Latino and Muslim? We need everybody to be as educated as possible for our society to function in the future. Like, why doesn't that count?
LIPTAK: Well, it...
GROSS: Was that taken into account in any of the arguments?
LIPTAK: This case was argued as thoroughly as a case can be argued, and, certainly, people made the point that elite education from selective colleges and universities - that's a relatively small number. Most colleges and universities take almost everyone who applies. But the selective ones are really an important pipeline to leadership positions, not only in the military, but in the academy, in the business world. And if you constrict that pipeline and have fewer highly credentialed minority candidates, you're going to alter not only the student body in universities, but the leadership class in American society.
GROSS: Well, 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 covers the Supreme Court for The New York Times. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Adam Liptak. He covers the Supreme Court for The New York Times. We're looking back on the term that ended last week. When we left off, we were talking about the decision that basically struck down affirmative action.
So racial quotas were already outlawed in the Bakke decision in 1978. And that's why, like, diversity was emphasized after that, because you can't have quotas. Now diversity has been struck down, too. And a lot of people have raised this question, but what about, like, legacy admissions to elite institutions? It's basically perpetuating a cycle of wealthy white people admitted to these institutions because legacy admissions means, like, if your parents were in, that gives you a leg up to be admitted yourself. So it's perpetuating a cycle that advantages white people with money and disadvantages other people.
LIPTAK: Hard to argue with that. Legacy admissions as a policy matter are really hard to defend. Universities like them because alumni give them money, and they get disappointed if the kids don't get in and they stop giving them money. But legacy is not a characteristic the law cares about the way it cares about race, except maybe indirectly. There is a request now pending to the Department of Education that they take a look at Harvard's legacy program, because at least indirectly, as you point out, Terry, and indisputably correctly, it does have an effect on the racial composition of the class. The fifth-generation Harvard student is a white student.
GROSS: So Roberts' majority decision cited two precedents. Well, he cited the 14th Amendment to justify it, and that was ratified just three years after the Civil War ended. It was ratified in 1868, and it gave citizenship to all people born in the U.S., including formerly enslaved people. And the Equal Protection Clause said no state can deny any person within its jurisdiction the equal protection of its laws. So he used that to say it's denying people who aren't Black equal protection. And then he also cited Brown v. Board of Ed, which ended legal public school segregation. And he said that that decision showed that, quote, "the time for making distinctions based on race had passed."
So the purpose of the 14th Amendment really was to help people who had been formerly enslaved, and the purpose of Brown v. Board of Ed was to desegregate schools. How did he manage to turn those kind of on their head? Am I right in saying that he turned them on their head?
LIPTAK: You and Justice Sotomayor agree that that is a weird reading of the 14th Amendment and Brown v. Board of Education and its legacy. The chief justice draws a different lesson. He says the Constitution and Brown, which is a towering achievement of the Supreme Court, meant to establish colorblindness on the part of the government. Justice Sotomayor says that's a profound misreading of history and what Brown was meant to accomplish, that we live in a nation with a terrible history of slavery, Jim Crow, persistent and systemic racism that requires you to be open to - not to be blind to, but to be open to the role race plays. And it means that the government and institutions of higher education subject to federal law should be allowed to - including, as a matter of academic freedom, to select their classes in a way that responds to that history.
GROSS: There were two cases about affirmative action. One had to do with the University of North Carolina and one with Harvard. Both cases were brought by a group called Students for Fair Admissions that was founded by someone named Edward Blum, who's a legal activist who's organized a lot of lawsuits challenging race-conscious admissions policies, as well as voting rights laws. Tell us a little bit about him and his group.
LIPTAK: He is a very successful legal entrepreneur. He's not a lawyer. He is, by his own description, a one-man show. He's raised money from conservative groups and organized these lawsuits and has met with remarkable success at the Supreme Court. I mean, notice, for starters, that there's no particular student named in this suit. This group claims to represent students, and in particular, Asian American students, but they were not identified.
And Ed Blum has been hard at work on this issue for some time now. He brought a case against the University of Texas to the court twice before this one, didn't manage to win that one. But as the composition of the court changed, his chances got better. And he also hit upon a strategy that resonates with at least some people on the court, that there is, in addition to a question about whether you should give advantages to Black and Hispanic applicants, he also pressed the point that Asian American applicants have been disadvantaged and have a much harder time getting into elite colleges and universities than their peers.
GROSS: How might the affirmative action decision affect other institutions that aren't universities and colleges? For instance, you say it might affect hiring practices.
LIPTAK: It's already unlawful to take account of race in hiring decisions. But many companies have diversity programs that do what they can within the law to make sure that their workforces are diverse. I don't know that there will be a direct legal, logical link between the education cases and workplace cases. But when the Supreme Court speaks, it sends a kind of message. It's kind of a teaching moment. It suggests there's a correct view of the role race should play not only in colleges and universities, but more generally. And if history is any guide, society listens. And that means that there may be some reluctance in some quarters to do as much as companies have been doing in this area.
GROSS: Let's talk about the case involving the website designer, Lorie Smith, who was starting up her website design company and challenged a Colorado anti-discrimination law that included outlawing discrimination against gay people. She feared that that Colorado law would force her to do things that she didn't want to do - for example, creating a gay wedding website for a gay couple, which I think she said her religion would basically prohibit her from doing, because she doesn't believe in gay marriage based on her religious beliefs. So this was an unusual case in the sense that, like, the business didn't even exist yet. What gave her standing to challenge a law when she hadn't really started the business yet?
LIPTAK: What Justice Gorsuch writing for the majority, said - and this is a real doctrine - is that there are circumstances where if you authentically have a credible fear of punishment for exercising a constitutional right, you don't have to violate the law, get punished and then sue - that you can sue in what's called a pre-enforcement challenge. So the majority in the Supreme Court seemed satisfied that there's standing here.
Whether that's correct or not, it's a really unsatisfactory setting for the court to be making a decision in because, ordinarily, you want to know, well, who asked? And what was the discussion like? And what would the website look like? And would the website suggest that it was the speech of the web designer, Laurie Smith, or of the couple? And we had none of that granular texture, detail or context. So even if the majority is right on standing, it still leaves open the question of, is this the right setting in which to make this kind of groundbreaking decision?
GROSS: Well, let's take another break here, and then we'll talk some more about the Supreme Court term that just ended. My guest is Adam Liptak. He covers the court for The New York Times. We'll be right back. 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 the interview I recorded yesterday with Adam Liptak about the Supreme Court term that ended last week. He covers the court for The New York Times. When we left off, we were talking about the case involving the web designer who didn't want to design websites for people who were gay and were getting married, and the court ruled in her favor that having to do so would violate her right to free speech.
There was one ask that was - one document saying, you know, I'm part of a gay couple, and we want a gay wedding website. We want you to design it. But that document has been challenged as being completely bogus. Tell us about that document.
LIPTAK: The day after Lorie Smith files suit and there's some press coverage of the suit, someone makes a request on her website, someone named Stuart, saying more or less that Stuart would like to have a wedding website with his partner Mike and puts down a real email address and a real phone number. And in subsequent court papers after she files suit, Lorie Smith starts to refer to this to say, this is - the prospect of me being asked is real. She never tried to run down or contact whoever made this request. And when reporters just days before the decision finally did so, a reporter for The New Republic in the first place, it turns out that the person whose email address that was, Stuart, is straight, married to a woman, a supporter of gay rights.
GROSS: Justice Gorsuch wrote the majority opinion and said that the First Amendment protected the web designer from being compelled to express views she opposed. And you say that this case was framed as freedom of speech versus gay rights. But the designer - the web designer is Christian, and she cited her Christian religion as the reason why she can't make a website for people who want to get gay married because her religion opposes that. So do you think that that advantaged her with the conservative supermajority because it was based on Christian beliefs?
LIPTAK: I think both sides of the dispute helped her. So as a legal matter, it's about her free speech rights, and it doesn't matter whether her beliefs were grounded in religion or something else. And it applies in many settings. But nonetheless, it certainly advantages her before this court that on the one side is religion; on the other side is gay rights. If that's all you know about the case, whether it's free exercise of religion or free speech or whatever, you have a pretty good idea where the court's going to come out.
GROSS: What do you think the decision might be extended to cover?
LIPTAK: The logic of the decision would allow any business engaged in expression. So that limits it quite a lot. I mean, if you're selling widgets or tires or you're Walmart, this has nothing to do with you. But if you're engaged in expression and if you're selling it on a custom basis where you are creating an expressive work for a client, if you're a songwriter, a painter, a press release writer or a ghostwriter, you have a First Amendment right not to have your beliefs, religious or not, violated.
So if you - and here's an example from Justice Sotomayor. If you're a photographer and you're taking school photos and you decline to take a picture of an interracial child because you don't approve of interracial marriage, you would seem to be protected. If you're a photographer who shows up to take pictures of members of a corporate board and you don't believe that women should serve on corporate boards, you're protected in not taking those photos. So the logic of the decision is expansive and, to many people, deeply troubling.
GROSS: And this really limits governmental anti-discrimination laws. It limits the scope of it.
LIPTAK: Right. We - from the civil rights era on, we've come to a societal understanding that if you're a business open to the public, you can't discriminate based on - and it varies with the statutes and localities, but almost everywhere - race, religion, gender and, in many, many places, sexual orientation.
GROSS: One of the decisions that was won by liberals during this term was the decision about the independent state legislature. Would you describe what that is?
LIPTAK: That's a theory, a quite radical theory, that - relying on a provision of the Constitution that says rules for federal elections shall be - I'm paraphrasing - set by the legislature thereof, the legislature of the states. The theory is that that means that the state legislature is the only actor in the state government that matters, that it doesn't have to comply, say, with the state constitution, that it's not subject to supervision by the state Supreme Court. And if that theory had been accepted, particularly given that many legislatures around the country are controlled by Republicans, it would have fundamentally altered American democracy.
LIPTAK: It would have given state legislatures the power, for instance - but only as a for instance - to gerrymander to a fare-thee-well a congressional voting district to advantage their own party. It would have allowed them to set all kinds of voting rules without supervision from their own state Supreme Courts. It would have sort of undone federalism. And there was great fear when the court agreed to hear the case that it would adopt this theory. Four justices had written sympathetically about it. But as it turns out, the broadest form of the theory was roundly rejected in a decision by Chief Justice Roberts, with the three most conservative justices in dissent - Clarence Thomas, Neil Gorsuch and Samuel Alito. The court did leave the door open for some federal court supervision of state Supreme Court decisions about state law. Ordinarily, federal courts have nothing to say about state law. That's a matter for the state courts. So this was maybe not a resounding victory for liberals. But in rejecting this radical theory, election law specialists breathed a sigh of relief.
GROSS: And Chief Justice Roberts, in his majority decision, wrote that the Constitution does not exempt state legislatures from the ordinary constraints imposed by state law. In other words, the Constitution doesn't exempt state legislatures from being overruled by the state Supreme Court saying, no, what you did, what you just passed was unconstitutional.
LIPTAK: It's a hell of an idea, really, that the legislature of a state, which is created by the state constitution, should not be bound by the state constitution.
GROSS: So another election-related decision was that the Supreme Court rejected a voter map in Alabama's redistricting after the 2020 census that would have redistricted in such a way that Black voters, Black people, would only have, like, one seat in the House. So that was a victory for liberals. It was a victory for Black voters. And Justice Roberts, who is usually not in agreement with race playing a role in decisions, he agreed that race could play a role in redistricting.
LIPTAK: This was a real surprise. Nobody - almost nobody - thought it would come out this way. And if it were to come out this way, almost nobody thought Chief Justice Roberts, as you say, Terry, who's been hostile to race particularly in the area of voting, would write the majority decision, joined by Justice Kavanaugh and the three liberals in a 5-to-4 decision. So, I mean, Chief Justice Roberts wrote the Shelby County case, which tore out the heart of the Voting Rights Act, the same law that was at issue here. So this is some significant evidence of the chief justice at least trying to maintain the status quo, trying to leave the Voting Rights Act with some bite and some protection of minority voters.
GROSS: Some people are saying that this decision could be a determining factor in who controls the House in the next election because Republicans are likely to lose at least one seat because of this decision.
LIPTAK: Right. And the logic of the decision will almost certainly affect Louisiana, also, an additional minority voting district there. And, you know, I mean, there's such a strong correlation between minority voting and Democratic voting, that these are - this is good news for Democrats in other states also. So there may be two, three, four more seats that flip as a consequence of this decision. And that's notable because there has in the past been a seemingly perfect alignment between the interests of Republicans in election and voting cases and Supreme Court rulings. And here, the court rules in a way that benefits Democrats.
GROSS: Well, let's take another break here and then we'll talk some more. If you're just joining us, my guest is Adam Liptak. He covers the Supreme Court for The New York Times. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to the interview I recorded yesterday with Adam Liptak, who covers the Supreme Court for The New York Times. And we're talking about the term that ended last week.
How did the Biden administration do this term?
LIPTAK: Well, they lost the biggest case, the student loan case. That was one of the most expensive proposed executive actions in history. It would have forgiven more than $400 billion of student debt. And by the usual 6-3 split, the court said that the Biden administration was not authorized by Congress to forgive that debt. So that was a real setback.
GROSS: So in Chief Justice Roberts' decision, he wrote that a mass debt cancellation program of such significance required clear approval by Congress, and his decision conforms to what's known as the major questions doctrine. What is this major questions doctrine?
LIPTAK: The major questions doctrine is a court-created rule of statutory interpretation that says if Congress is going to delegate authority to the executive branch on a major political or economic question, it needs to do so exceptionally clearly.
GROSS: You question whether this doctrine is actually a doctrine, per se. So what is your question based on?
LIPTAK: It's a rule of statutory interpretation that's played some role in some form in earlier cases, but it hasn't been invoked by name in a majority decision until last year's big climate change case, which said the EPA didn't have the authority to address climate change vigorously. And Justice Elena Kagan, in particular, adamantly thinks it's a made-up doctrine. Others say that it's a sensible, ordinary approach to interpreting statutes, that if Congress is going to do something big, it needs to do so clearly. It doesn't hide it in clause 14B, subsection, you know, X. It says so in so many words. Justice Kagan responds in the student loan case that, fine, that's precisely what Congress did in something called the HEROES Act, enacted after 9/11 and then expanded a couple of years later. Congress gave the education secretary vast powers, she says, to waive or modify federal statutes or regulations after terrorist attacks or other emergencies. And she says the pandemic certainly qualifies as an emergency - in fact, the Trump administration invoked that emergency and that law to put off student loan repayments - and that there's no significant difference between putting off student loan repayments, which have cost the government more than $100 billion, and forgiving some debt to the tune of more than $400 billion.
GROSS: So now that the Supreme Court has cited this doctrine, does it become more of a doctrine?
LIPTAK: Yes, so doctrine is a funny word. There's a good law review article essentially exploring this question of, what is a doctrine? A doctrine is what the court - Supreme Court says it is. It doesn't come out of - you know, directly from the Constitution or a statute or a regulation. It's a rule of decision that the court announces and then perhaps rigorously and perhaps opportunistically employs.
GROSS: What might the ripple effects of this decision be beyond student loans?
LIPTAK: If you take the doctrine seriously, it makes it harder for presidents of either party to act unilaterally and requires Congress to speak clearly and to anticipate, you know, maybe decades into the future, the kinds of authority it wants to give the executive branch. So it basically elevates congressional power in theory, but in fact elevates the Supreme Court's power to be the final decision-maker in all kinds of vastly consequential questions.
GROSS: Well, let's take another short break here and then we'll talk some more. If you're just joining us, my guest is Adam Liptak. He covers the Supreme Court for The New York Times. We'll be right back. This is FRESH AIR.
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GROSS: This is FRESH AIR. Let's get back to my interview with Adam Liptak. He covers the Supreme Court for The New York Times. We're looking back on the term that just ended.
Let's talk about some of the conflicts or potential conflicts of interest of some of the Supreme Court members and ethical questions that have been raised about them. Justice Alito took a trip to a remote part of Alaska on a private jet owned by Paul Singer, who's a hedge fund manager, very wealthy. He's a Republican donor. Singer apparently has had cases before the court. He was involved in cases that were before the court. And Alito didn't recuse himself from those cases.
LIPTAK: Yeah, this whole thing is troubling on two levels. Justice Alito didn't disclose this significant gift, and then he didn't recuse himself from a case in which Paul Singer's companies were involved. He says he didn't need to disclose. And people can argue about whether the statute applies to private jet travel or not. There are strong reasons to think that it does. But had he disclosed, you wouldn't have run into the second problem of not knowing whether you should recuse because it would have been on a public document, and it would have been crowdsourced. And people could have told you, you should recuse. But even so, even without disclosing it, it seemed like everyone else in the world knew this involved Paul Singer. The headlines concerning one case in which Justice Alito voted with a 7-1 majority in favor of Singer's company, the headlines say Supreme Court rules for Paul Singer. So it wasn't a mystery.
GROSS: One of Alito's justifications for taking this paid-for trip paid for by Paul Singer, the hedge fund manager and Republican donor, was that it would have been an empty seat, so it wouldn't have cost Paul Singer anything, so it didn't matter. I would like the same to apply to me when I'm flying someplace or taking the Amtrak and there's an empty seat. I'd rather not pay for it because it would have been empty if I wasn't on it.
LIPTAK: That argument from Justice Alito did not strike many people as a serious one.
GROSS: Let's move on to Justice Clarence Thomas. And there were several ethical stories involving him this year, involving his wife, Ginni Thomas, involving a Republican megadonor who's also a friend, Harlan Crow. Do you want to just sum up the ethical questions that now surround Clarence Thomas?
LIPTAK: I guess there are two sets of them. And as with the information about Justice Alito, the reporting on Justice Thomas has come from the news organization ProPublica. And they demonstrated in a series of stories that Justice Thomas, who likes to talk about how much he likes to hang out in his RV in Walmart parking lots, also takes luxury trips by private jet and fancy yacht in Indonesia and elsewhere, paid for by Harlan Crow, who has also made real estate transactions with Justice Thomas, who has also paid the private school tuition of Justice Thomas' grandnephew. So there's a lot of money flowing from Harlan Crow to Justice Thomas.
And here, again, there are questions about disclosure. None of this has been disclosed. And there are questions about recusal. They're less stark than in the case of Justice Alito and Paul Singer. But there has been reporting that at least one case involving Harlan Crow was before the court and there's no indication that Clarence Thomas recused himself. Then there's a separate bucket of issues involving his wife, Ginni Thomas, a political activist who worked hard to encourage people to overturn the 2020 election. And nonetheless, Clarence Thomas sat on at least two cases involving those events, and many legal experts think he should have recused himself.
GROSS: Do you have any indication of whether other justices on the Supreme Court are questioning Alito's, but even more so, Thomas' ethical sense?
LIPTAK: There's been no direct response from the court directed to particular justices. Chief Justice Roberts plainly seems concerned, and made a statement accepting an award a few weeks ago, that the court remains at work in trying to address these questions generally. But at the same time, he made the point - the case that as an independent institution, we should allow the Supreme Court to take care of this matter and that Congress shouldn't act. And that's opened the question - Congress controls many aspects of the Supreme Court's work. It has enacted legislation that does apply to the Supreme Court by its terms. And it seems plain that most Americans want somebody to do something about all of this.
GROSS: Why is there no code of ethics for the Supreme Court justices when there are codes of ethics for judges?
LIPTAK: There are federal statutes that apply to the justices on disclosure and recusal. So it's not as though they're completely unbounded. But the general code of ethics that applies to all federal judges does not apply to the justices. Moreover, the justices make their own decisions about whether to recuse or not, not subject to second-guessing from anyone else. And that is, you know, at odds with the old adage that no one should be a judge in his or her own case. The largest problem - well, there are many problems. A large problem is that it is a little hard to figure out what the enforcement mechanism ought to be.
If it's the Supreme Court, it's hard to know how you're going to put another body above the Supreme Court and decide when the justices have violated ethics provisions. And it's also probably problematic to let the other justices decide, for instance, who should recuse because that could give rise to strategic behavior to try to get people off a case for reasons unrelated to ethics and related to the outcome of the case. So the whole thing is a tangle, and what you would hope for is that the justices would feel shame and just try to act responsibly.
GROSS: They're the highest court in the land. Like, they are the Supreme Court. And if they don't abide by ethics, then what does it say about the ethics of the decisions and of the court itself? I mean, they're supposed to be monitoring everybody else's ethics.
LIPTAK: The Supreme Court should be a role model. The Supreme Court should be above reproach. The Supreme Court should be the last place we should look for ethics scandals, and yet they seem to arise almost weekly.
GROSS: You know, at the same time, some members of the court might be ethically challenged. Many legal experts think the court is expanding its own power. So if that's true, if there are people on the court who are ethically challenged and, at the same time, the court is expanding its power, that seems like a very questionable combination.
LIPTAK: Yeah, that's not a great combination. And maybe the two things move together because if you have the self-confidence to think you can decide your own ethics principles, you probably also have the self-confidence to think you can decide every other question imaginable.
GROSS: Adam Liptak, thank you so much for talking with us. I really appreciate it.
LIPTAK: Thank you, Terry. It's always a treat to be here.
GROSS: Adam Liptak covers the Supreme Court for The New York Times. We recorded our interview yesterday. If you'd like to catch up on FRESH AIR interviews you missed, check out our podcast. You'll find lots of FRESH AIR interviews. And don't forget, you can subscribe to our newsletter, which has behind-the-scenes stories, staff recommendations, links and a good supply of funny asides from our producers Seth and Molly, who write the newsletter. You can subscribe at whyy.org/freshair.
FRESH AIR's executive producer is Danny Miller. Our technical director and engineer is Audrey Bentham. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Sam Briger, Lauren Krenzel, Heidi Saman, Ann Marie Baldonado, Therese Madden, Thea Chaloner, Seth Kelley and Susan Nyakundi. Our digital media producer is Molly Seavy-Nesper. Roberta Shorrock directs the show. Our co-host is Tonya Mosley. I'm Terry Gross.
(SOUNDBITE OF FRED HERSCH'S "A RIDDLE SONG") Transcript provided by NPR, Copyright NPR.