Supreme Court decisions have long shelf lives – their impact on the American judicial system can last for decades after their publication. But it was revealed recently that justices often also quietly revise decisions after they’re issued, which can alter the law of the land with little notice. Kojo chats with journalist Adam Liptak about the court’s editing process and how it affects the American legal system.

Guests

  • Adam Liptak Supreme Court reporter, The New York Times

Transcript

  • 12:23:31

    MR. KOJO NNAMDIFew people in the United States can wield as much power with a single keystroke as the nine justices on the Supreme Court. But it turns out that their written opinions, the one that set precedent in courthouses across the entire country, are still subject to edits that can change the letter of American law outside the view of the public. Some changes attract a great deal of attention, like one Justice Anthony Scalia made earlier this year, to correct an error in a case about the Environmental Protection Agency.

  • 12:23:59

    MR. KOJO NNAMDIBut many are done quietly, including a few that made substantive changes, leaving those who had been relying on words they understood to be the official record of the court in a precarious position. Joining us to explore how the Court's editing process works and how it affects the administration of justice long after the original wordings of opinions are published, is Adam Liptak. He is the Supreme Court correspondent for the New York Times. Adam joins us in studio. Good to see you, again, Adam.

  • 12:24:24

    MR. ADAM LIPTAKGood to be here, Kojo.

  • 12:24:25

    NNAMDIIn the spring, after it was noticed that Justice Anthony Scalia had made a mistake in a 21-page dissenting opinion about a Court ruling on the EPA's cross-state pollution rules, the justice quietly scrubbed the error from his opinion. An edit that did not escape the eyes of law professors and court watchers who were paying attention. What was it about what Justice Scalia did and how he was able to do it that forced people to look harder at how the justices are able to edit opinions after they're announced?

  • 12:24:54

    LIPTAKWell, Justice Scalia's mistake was particularly embarrassing. He was so eager to beat up on the Environmental Protection Agency that he got an earlier ruling exactly backwards. Worse yet, he was the author of that earlier ruling. And when this came to people's attention, without any notice to the public, an extended passage from the opinion was revised and a subheading, which, you know, said something about -- like "the EPA's unending quest for endless authority," was quietly changed to a subheading along the lines of "are precedent."

  • 12:25:29

    LIPTAKAnd so this caused a lot of people to ask the question of how does this happen? How can the Court, after it issues a decision and after we seem to know what the law of the land is go ahead and change those decisions? And it turns out that a law professor at Harvard named Richard Lazarus, had been working on a piece looking at this phenomenon, which is old and happens often.

  • 12:25:51

    LIPTAKAnd it turns out -- we were talking, Kojo, about the Hobby Lobby case. That's been out for a couple weeks now. The final official version of that won't be published for five years. And between now and then it will not be at all unusual for the Court to make probably minor changes to it, probably some typos, maybe a factual error. But it happens from time to time that they actually alter a legal conclusion. And the fact that, you know, our Supreme Court decisions seem to be written on sand is something that was not widely known before Professor Lazarus and then the Times had a look at this.

  • 12:26:26

    NNAMDIAnd in this particular case, Justice Scalia, in order to emphasize his opinion, didn't merely write it. He spoke it. And so the words he spoke were ultimately erased from the public record?

  • 12:26:37

    LIPTAKWell, the spoken words are ultimately made public in audio tapes at the end of the term. And I don't think -- I don't think, but who knows. I didn't think the other thing happened either. I don't think the audio tape will be altered.

  • 12:26:51

    NNAMDIOkay. A lot of people assume that the opinions published the day that they are announced, or read from the bench, are final products. What exactly is the case?

  • 12:27:01

    LIPTAKIn fairness to the Court, when they hand out so-called bench opinions, there's a little notice at the top in tiny type, saying that it's subject to formal and typographical revision. And it even invites readers to notify the Court if they see any mistakes.

  • 12:27:18

    NNAMDII click, I agree, without having read it.

  • 12:27:23

    LIPTAKBut the problem is, you know, some of these changes -- I don't think anybody particularly minds if, you know, a semicolon goes outside the quotation mark or inside of it. That kind of editing -- although, we could ask the question of why is that editing getting done on the back end? But you can understand why that might happen. This category of formal or typographical errors, though, it seems -- turns out to be quite broad.

  • 12:27:45

    LIPTAKAnd in subsequent versions of decisions -- and there'll turn out to be four in the end. There's a bench opinion, a slip opinion, a softcover version and finally, five years later, a hardcover version. And they say only that hardcover version is the formal, official, binding version of American law. And you won't find out what it is for five years.

  • 12:28:04

    NNAMDI800-433-8850. Adam Liptak is the Supreme Court correspondent for the New York Times. He's our guest. What do you think the Supreme Court should do to make the way it works more transparent? Do you think it needs to be more transparent at all? How do you feel about Supreme Court justices editing opinions after they're announced? 800-433-8850. What do you think they should do to make clear that they're making changes, no matter how big or small?

  • 12:28:28

    NNAMDIYou can send email to kojo@wamu.org. Or send us a tweet, @kojoshow. Adam, to what degree is it considered acceptable for the justices to alter the words they wrote in the first draft? Few people's words are as scrutinized as closely as those of the nine judges on that court. It doesn't seem like it would take much to affect how people might understand the intent of those words.

  • 12:28:50

    LIPTAKWell, some of these opinions, after they've been revised formally still continue to exit on reputable sites on the internet, in case books taught at law school. So people understand the law to be different than what it is. And law professors teach the law as different then what it is. So the fact that this happens is problematic. And the fact that it happens so secretly is double problematic. There's really no reason in the world -- understanding that some of these edits may well be important and can correct factual errors and just make the opinion right.

  • 12:29:27

    LIPTAKWhy the Court doesn't announce the changes as they go along is a little confusing to me. In journalism, if we make a factual error, we make a point of issuing a correction. The Court just goes and corrects.

  • 12:29:40

    NNAMDITo be clear, none of the edits noticed recently reverse decisions, did they?

  • 12:29:45

    LIPTAKNo. I don't know of a single outright reversal of a decision. But I do know of several comments in cases announcing a view of the law that the justices then thought better of, and they just scrubbed the sentence. And, you know, having announced what the law is on a particular subject, not an important subject, necessarily, they thought better of having reached that decision in a particular case and took out the sentence, took out the paragraph.

  • 12:30:14

    NNAMDIYou mentioned the small print notice that says that readers are asked to notify if there are any typographical or other formal errors. You also mentioned that the Court doesn't really do anything to announce that changes are being made. So is it all up to people who are paying attention to simply take notice when changes are made?

  • 12:30:33

    LIPTAKWell, really, the only way you can track these changes is by painstaking comparison of subsequent versions of the opinion. I will give some credit to some computer coders on a service that has a Twitter feed, called @SCOTUS_servo S-E-R-V-O that has set up an automatic system of comparing subsequent drafts. And has already come up with some minor changes that the Court has quietly been making.

  • 12:31:01

    NNAMDIAt what point are these opinions supposed to be no longer works in progress?

  • 12:31:06

    LIPTAKWhen they come out in hardcover form.1

  • 12:31:07

    NNAMDIWhich can be after five years?

  • 12:31:10

    LIPTAKAbout -- lately it's been about five years out. And even then, occasionally a subsequent hardcover version will have an errata sheet, you know, a sheet at the beginning of the next book saying the earlier one had a mistake. But that, at least, has the virtue of announcing that there's been a change. But the only time the Court feels obligated to announce the change is once the opinion is published in final form in hardcover.

  • 12:31:34

    NNAMDIIf you called in our earlier segment with questions or comments about Hobby Lobby, you can stay on the line. Adam Liptak can take some of those questions, too. If you want to call about the Supreme Court justices being able to make changes after rulings are given and until they are finally published, you can also call us at 800-433-8850. To what degree are you familiar with how the Court does business?

  • 12:31:56

    NNAMDIWould you say it's fair to describe it as an opaque institution? 800-433-8850. You can send email to kojo@wamu.org. Shoot us a tweet, @kojoshow. Adam, what's an example of an opinion where it's original words were debated and scrutinized, but those words now no longer exist?

  • 12:32:14

    LIPTAKA really good example, from 10 or 11 years ago in a major gay rights case, called Lawrence against Texas, Justice O'Connor writes a concurrence and says, you know, there's really no daylight between the majority, which struck down a Texas law which made gay sex a crime, and Justice Scalia, at least on this point, that our Court's equal protection precedents require that the gay rights side win.

  • 12:32:43

    LIPTAKAnd that statement was thought by many to be important, was widely quoted, continues to exist in case books, but -- and now I'm speculating -- but Justice O'Connor decided to take it out of her opinion probably because Justice Scalia objected. Why he didn't object at the time -- and only afterwards, if that indeed is what happened -- I don't know.

  • 12:33:03

    NNAMDIHow often has this kind of editing happened over time? Is it new to this Court?

  • 12:33:08

    LIPTAKNo. There's a long history of this. And, in fact, some of the edits have been much more radical. In the, you know, one of the Court's most rightly maligned precedents, the Dred Scott decision, 17 or 18 pages were added to the majority opinion by the chief justice after it was first announced. So this Court, by those standards, is much more restrained.

  • 12:33:30

    NNAMDIHave justices ever wrestled with what kind of editing the Court deems acceptable? That is have they ever done so publicly, so that you or others would know? Has anyone ever tried to change the policies that they adhered to?

  • 12:33:43

    LIPTAKThe Court's internal papers do note this phenomenon. And there has been some discussion of the following question, which is indeed difficult. What if you're not the author of the decision, but you voted with the author of the decision? Should you have a chance to look at what that author is doing to the decision after it was issued? And, at least in the Rehnquist Court, the chief justice insisted that if there was substantive changes -- not typographical changes -- to opinions, everybody on the majority side should have a look at what's being done to the opinion that they signed onto.

  • 12:34:18

    NNAMDIBut did that ever actually happen?

  • 12:34:21

    LIPTAKThe release papers are old and sketchy on that point, but that seems to have been the regime in the Rehnquist Court and I wouldn't be surprised if it's still the regime in the Roberts Court.

  • 12:34:32

    NNAMDIIs there any sense that after the attention that Justice Scalia's edits drew earlier this spring, that the current Court might look at trying to change its editing policies?

  • 12:34:41

    LIPTAKI have reason to think the Court is reviewing whether it shouldn't be more transparent about it. I don't know that they have a particular problem with the idea that they're rushing these decisions out. They need to get a proper editing scrub, even after the fact. And really, the question from the Court's point of view, I would think, the open question is should they be more forthright about changes when they do make changes, not that changes might sometimes be warranted.

  • 12:35:07

    NNAMDISomething popped into my mind when I was reading this. And it said what would the delay for editing purposes of opinions before any public release -- what would that incur?

  • 12:35:21

    LIPTAKThe, you know, the Court has boxed itself into a corner by its own self-imposed deadline. The way the Court works is they hear arguments between October and April, and they sort of promised everybody by their internal rules, that they'll get all their decisions out by June. And there's a mad rush at the end of the term. And there's also a feeling that once you have five votes for your side, let's get it out. Let's get it published. Because, who knows, someone might change his or her mind.

  • 12:35:49

    LIPTAKSo the Court has imposed on itself this time pressure, which means they're putting out, in a sense, a rough draft that they then go back and do professional editing on. One of the justices once wrote that they do -- this is exactly the reverse of what publishing houses do. You know, they take the draft, edit it, then publish it. What the Court does is publishes the draft and then edits it.

  • 12:36:12

    NNAMDIAnd one wonders, however, if there are justices who would rationalize that, well, we say justice must not only be whatever, it also must be swift. And therefore when we arrive at a ruling, Adam Liptak wants to know immediately after we've arrived at that ruling.

  • 12:36:25

    LIPTAKI don't know that I figure very much in their calculations. You know, other courts, good, important courts release decisions when they're ready. And sometimes it's a month and sometimes it's a year. And then if there are changes after the fact, the front page of the opinion says we've altered the following the three statements, and we've dropped a footnote and we've added this and we've clarified that. And that seems to me a, you know, a desirable way to do things.

  • 12:36:53

    NNAMDIOnto the telephones. We go to Hamid, in Fairfax, Va. Hamid, you're on the air. Go ahead, please.

  • 12:36:59

    HAMIDHi, Kojo. Thanks for the program. I have two points. One is about the Hobby Lobby.

  • 12:37:04

    NNAMDIOkay.

  • 12:37:06

    HAMIDAnd that is -- that is not about religious freedom. Who supported all the lawyers going to the Supreme Court? And pay them for all the fees and all that stuff to bring this to the Supreme Court decision?

  • 12:37:20

    NNAMDIWho did?

  • 12:37:23

    HAMIDI would say the lobbyists of the pro-life people.

  • 12:37:25

    NNAMDIOkay.

  • 12:37:26

    HAMIDHobby Lobby didn't spend that kind of money to take it to the Supreme Court for all these years.

  • 12:37:31

    NNAMDIOkay. Actually…

  • 12:37:32

    HAMIDAnd then, if it is about religious freedom, so the Muslims believe that the gays should be stoned. So if any corporation does it, the Muslim owner can stone the gays now?

  • 12:37:43

    NNAMDIThat is precisely the kind of implication, the kind of possible precedent that it seems that Sen. Timothy Kaine and others who oppose this decision are worried about, Adam Liptak.

  • 12:37:54

    LIPTAKQuite…

  • 12:37:54

    NNAMDIThe stoning didn't come up, but I guess.

  • 12:37:57

    LIPTAKRight. So quite right. I mean, the logic of the decision might suggest -- I don't know about stoning, but certainly that some employer might have a religious objection to hiring a gay person or providing services at a same-sex wedding ceremony. And even though the dissent flagged that issue and said that might be a problem, the majority opinion, which when out its way to give us reassurance about vaccines and transfusions and race discrimination, was conspicuously silent about what would happen if there were religious objections based on sexual orientation.

  • 12:38:36

    NNAMDIHamid, thank you very much for your call. We move on to Steven, in Washington, D.C. Steven, you're on the air. Go ahead, please.

  • 12:38:44

    STEVENThank you. Interesting topic. I had heard numerous times that Hobby Lobby invests in heavily in companies that make these birth control products. In fact, it seems to be the majority of their investments. Is this true? And if so, doesn't it completely undermine everything about the case?

  • 12:39:05

    NNAMDIWhat is true that Adam Liptak can address is that in her dissent Justice Ruth Bader Ginsberg did make a point along those lines.

  • 12:39:12

    LIPTAKWell, Hobby Lobby is a big company. And it has lots of interests. And I don’t know the precise details of its portfolio. But there have been more than a few press reports suggesting that in some sense it might be said to be hypocritical. I would say though, also, that both sides, the majority and the dissent, said they did not dispute the sincerity of Hobby Lobby's religious beliefs. And if no justice was willing to go there, then I suppose, as a legal matter, whatever else it's doing in its business may not be legally relevant.

  • 12:39:45

    NNAMDIThank you very much for your call. And Debra, in Vienna, Va. Debra, it's your turn. You're on the air. Go ahead, please.

  • 12:39:54

    DEBRAKojo, good to talk to you. I love your show.

  • 12:39:56

    NNAMDIThanks.

  • 12:39:57

    DEBRAI just -- I just wanted to say that it seems like a legalized form of discrimination to me. Eventually, over time, everyone who works at Hobby Lobby will most likely share the religious views of the owners. And it seems like a really easy way to discriminate against your hires.

  • 12:40:14

    NNAMDIWell, again, that's what the people -- some of the people who oppose the opinion have said. Care to comment, Adam?

  • 12:40:22

    LIPTAKI guess the contrary view would be -- I'm just repeating it, I'm not endorsing it -- is that this is a small number of kinds of birth control, that no one is stopping people from spending their own money on it, that the Affordable Care Act's requirement and regulations under the Affordable Care Act that this contraception coverage be free is a fairly recent innovation. So, I'm not disagreeing with anything the caller said, but it may not be quite as radical as some people think.

  • 12:40:50

    NNAMDIThank you for your call, Deborah. We got an email from Raja (sp?) who asked, "Can you please explain why SCOTUS has a three-month recess? The executive and legislative branches are open for business during the summer."

  • 12:41:01

    LIPTAKYou know, when Chief Justice John Roberts was a young lawyer in the White House, he wrote a memo once with a memorable line in it. He said that only schoolchildren and the Supreme Court justices get the summer off.

  • 12:41:12

    NNAMDIYeah, I'd like to be a part of that. We're going to take a short break. When we come back, we'll continue our conversation with Adam Liptak. He is the Supreme Court correspondent for the New York Times, and take your calls at 800-433-8850. What do you think the Court should do to make the way it works more transparent? How do you feel about Supreme Court justices editing opinions after they are announced? 800-433-8850. I'm Kojo Nnamdi.

  • 12:43:34

    NNAMDIWelcome back. Our guest is Adam Liptak. He is the Supreme Court correspondent for the New York Times. And we're inviting your calls at 800-433-8850. Your emails to kojo@wamu.org. We got an email from Jake who writes, "The five-year wait until finalization of opinion gives the Court time to see the effects of its decision. For example, the Hobby Lobby case has many far-reaching effects that one specific justice said would not happen. When they do, then can the opinion be tweaked?"

  • 12:44:06

    LIPTAKThat's a very interesting point.

  • 12:44:07

    NNAMDIFascinating.

  • 12:44:08

    LIPTAKNow, you know, the idea behind the adversary process of the Supreme Court is that if, you know, the court is going to take account of something, it should hear arguments from both sides before it starts making the law different. So I guess I'd be a little troubled by the idea that they'd announce something, see how it's working out. And then without further legal proceedings, make a change, make an adjustment in light of those consequences.

  • 12:44:33

    LIPTAKBut that enormous gap of time and why it should take five years (unintelligible) or not enormously long opinions does raise the idea that, you know, by the time the decision lands, you kind of know how it's working in the real world.

  • 12:44:47

    NNAMDIThere are a lot of people who are already concerned about the general level of transparency of the Court. There has been a debate going on for some time about whether the Court should film oral arguments so that more people could see them. Where do you feel editing fits into the broader conversation about making the Court more transparent?

  • 12:45:04

    LIPTAKI think the Court is very concerned about its mystique, its prestige, its authority, and it wants to look something like infallible. And one of the reasons that it doesn't want to announce that it makes the mistakes that all human beings make is that it thinks it would hurt its prestige, its authority, its legitimacy. And there's something about cameras that goes in the same direction.

  • 12:45:31

    LIPTAKI think the justices are afraid that clips will turn up on YouTube or the Colbert or Stewart and that they would be mocked and that the world would think less of them. And they're not wrong to think that they don't have an army, they don't have the power of the purse as other branches do. What they have is their authority and they're wary of anything that would give -- that would chip away at that authority.

  • 12:45:57

    NNAMDIThat said, is this conversation about cameras in the Court going anywhere anytime soon?

  • 12:46:03

    LIPTAKThere's no reason to think we will have cameras in the courtroom anytime soon. At their confirmation hearings, justices often say they're interested, they're open to it. And once they get on the court, they seem to change their minds. So you saw both Kagan and Sotomayor...

  • 12:46:18

    NNAMDII remember that.

  • 12:46:19

    LIPTAK...they seem to be pro-camera and now they're not.

  • 12:46:22

    NNAMDIYou wrote this week that this recent stretch of the Court was one when a lot of people expected the precedents would be tossed out, but they survived. What happened?

  • 12:46:31

    LIPTAKAt the beginning of the term, there were at least eight cases in which it looked like the court was on the verge of striking down an important precedent. And every single time, although the precedents got sometimes beaten up, sometimes hollowed out, sometimes altered, sometimes distinguished, every single precedent stayed. And that was to the dismay of the three most conservative justices.

  • 12:46:56

    LIPTAKJustices Scalia, Thomas and Alito over and over again said, even though they're on the winning side, we're not going far enough. We should overrule this case. We should overrule the second case. There were 13 votes to overrule precedents and 11 of them came from just those three justices.

  • 12:47:10

    NNAMDIWhy are precedents under fire in such an intense way now?

  • 12:47:13

    LIPTAKIt has something to do with the 2006 re-composition of the Court where Justice O'Connor, a moderate, was replaced by Justice Alito, a conservative. And that meant that in closely divided cases where O'Connor had cast the deciding vote, a lot of precedents seem to be up for grabs. And some of them have fallen. Citizens United overturned the decision in which Justice O'Connor was in the majority.

  • 12:47:39

    NNAMDIAnd so if on this court there are a lot of 5-4 votes, you can expect in the future that depending on the composition of future courts, they can be situational precedents are under fire again?

  • 12:47:51

    LIPTAKI think, you know, the conservative wing of the Court, the five justices in the majority in Hobby Lobby are divided on this question. Three of them want to go fast. And right now, Chief Justice Roberts, who is only 59 will be on the Court for a long time and views himself as the steward of the institutional authority of the Court, wants to go slower. But they're headed in the same direction, the question is just speed.

  • 12:48:19

    NNAMDIOn to Mary in Rockville, MD. Mary, you're on the air, go ahead please.

  • 12:48:24

    MARYHi, this is a really interesting show. Thank you.

  • 12:48:27

    NNAMDIYou're welcome. Go ahead.

  • 12:48:28

    MARYI teach high school social studies in Montgomery County, MD and we teach that the Brown versus Board of Education case, when they desegregated the schools and then, of course, none of the states desegregated their schools. Later on, there was something that we teach in Brown versus Board of Education 2 in which the Court said they had desegregate with all deliberate speed.

  • 12:48:50

    MARYAnd so now, I'm curious, is that -- was that a completely separate case or is this now an example of the editing later on that you are talking about today?

  • 12:48:58

    NNAMDIYou mean the addition of with all deliberate speed?

  • 12:49:01

    MARYYes.

  • 12:49:02

    NNAMDIAdam?

  • 12:49:02

    LIPTAKSo that's such an interesting thing to teach. There were two separate decisions in Brown. One on the result and the second on what the Court call the remedy. And it was that second decision in Brown 2 which introduced what, you know, sounded like a nice phrase, with all deliberate speed, but it seem to be a code for go as slow as you like. And there are justices on the current Supreme Court who think that was a real misstep. That if you were going to make the South desegregate, you really had to make them do it, not just symbolically suggest that someday it would be nice.

  • 12:49:36

    NNAMDIMary, thank you very much for your call.

  • 12:49:38

    MARYThank you.

  • 12:49:38

    NNAMDIYou too can call us at 800-433-8850 with your comments or questions. Here is Matt in Annapolis, MD. Matt, you're on the air, go ahead please.

  • 12:49:48

    MATTHello, Kojo. Thank you so much for taking my call.

  • 12:49:51

    NNAMDIYou're welcome, Matt.

  • 12:49:53

    MATTAnd thank you, Mr. Liptak, for your comments. I don't want to go too far afield here, but I'm wondering if Mr. Liptak can comment about the Supreme Court and whether it's used these issues of potentially abortifacient contraception and abortion in general as, quote, "a religious liberty issue." Just briefly, I am a pro-life supporter, but I do so because I see it as a human rights issue.

  • 12:50:18

    MATTHas there been any debate in the Court about abortion and similar issues as a human rights issue, the right of another person to life as opposed to an expression of religious liberty? Thank you.

  • 12:50:28

    NNAMDIThank you.

  • 12:50:31

    LIPTAKThe Court has looked at abortion through many lenses. But in this most recent case, they credited -- and the science on this is contested. So these drugs and devices that some people view as abortifacient many scientists say are not. But the Court was willing to accept, as a religious liberty matter, that right or wrong scientifically, these were sincerely held religious beliefs.

  • 12:50:56

    NNAMDI800-433-8850 is our number. Adam Liptak is our guest. He is the Supreme Court correspondent for the New York Times. You can also shoot your questions to us by way of email. Matt in Annapolis, does that answer your question, Matt?

  • 12:51:10

    MATTThat was good. I look forward to getting more information. Thank you so much for your time.

  • 12:51:14

    NNAMDIYou're welcome. We move on to Eli-Ana (sp?), you are on the air, go ahead please.

  • 12:51:21

    ELIANAHi. My name is Eliana (sp?).

  • 12:51:23

    NNAMDIEliana, thank you.

  • 12:51:24

    ELIANAYes, sorry. My -- first of all, Gonzales v. Carhart where Kennedy wrote the majority opinion shows his overly paternalistic view that women basically have a place as only mothers and that anything second trimester forward was eliminating the right of what describe a baby, a child. But my -- the reason why I called was because corporations have the ability to create political action committees.

  • 12:52:09

    NNAMDIYes.

  • 12:52:09

    ELIANAWhich is the -- which is the mechanism that they're supposed to express their political views...

  • 12:52:18

    NNAMDIYes.

  • 12:52:21

    ELIANA...their religious views, any -- that whole sector.

  • 12:52:25

    NNAMDIAny views that they have.

  • 12:52:27

    ELIANAExactly. And the fact that the court is completely disregarding the ability of corporations to express their views in other means that do not infringe upon the rights of their employees and, frankly, of humans in general because, in my opinion, as a person that has been on birth control since the age of 13 for medical reasons, that infringes upon my right to live a happy, healthy life.

  • 12:53:07

    NNAMDIYou raise a fascinating question that's been, I guess, Adam, ever since the Citizens United decision, the question of exactly what corporations are. The Court seems to be on a tendency, if you will, on a trajectory more and more to think of corporations as having the same rights as individuals. There's a great deal of concern about exactly where this trajectory can lead.

  • 12:53:30

    LIPTAKSo -- and the caller makes an interesting distinction that the Citizens United decision, which acknowledge the First Amendment free speech and free press rights of corporations gave corporations an outlet in which to make their arguments about birth control or anything else. And here in the Hobby Lobby case, we move to another part of the First Amendment, giving at least some corporations religious liberty rights.

  • 12:53:56

    LIPTAKAnd whether that's -- you know, whether that follows from Citizens United, is in harmony with Citizens United or in fact Citizens United might have given corporations another way to express their views is a really interesting thing to think about.

  • 12:54:11

    NNAMDIIt really is. Thank you very much for your call, Eliana. On to Jeff in Silver Spring, MD. Jeff, your turn.

  • 12:54:20

    JEFFGood afternoon. My question also pertains to the Hobby Lobby case. My question is how does the Court evaluate whether the owners of Hobby Lobby sincerely hold their religious beliefs versus merely claiming those beliefs without actually demonstrating them in their private lives? And my second question is, suppose the owners of Hobby Lobby change their religious beliefs or entirely drop their religious beliefs and, in fact, become atheists, how would that change in the private life of the owners of the company affect the Supreme Court decision?

  • 12:54:59

    NNAMDIYou mention that the Supreme Court justices chose to believe that Hobby Lobby was sincere in its religious belief, on what basis?

  • 12:55:07

    LIPTAKThe justices are very nervous about being the arbiters of what's an authentically held religious belief, whether a religious belief is reasonable or not. And they basically give believers wide, wide latitude because that's the very point of religion, in a way, that it doesn't make necessarily logical sense. So -- but I don't disagree that this really boxes you into some very difficult problems if there's not authentic adjudication of a belief system, probably because there can't be.

  • 12:55:41

    NNAMDIAnd the notion of the possibility of -- not just Hobby Lobby, but any other family -- changing its religious beliefs. Was that incorporated at all in any way in this decision?

  • 12:55:52

    LIPTAKIt didn't come up. And I'm not a real student of Hobby Lobby's daily practices, but they do hold themselves out as a small, tightly held company, run on religious practices. They close on Sundays. They have a subsidiary or affiliate which publishes religious books. Many people are prepared to credit that Hobby Lobby believes what it says.

  • 12:56:18

    NNAMDIThank you very much for your call, Jeff. We got an email from Davis in Gaithersburg, "Adam is so right about the justices becoming fodder for late night comedy if there were to be more transparency or even cameras at the Court. While I'd like to think C-SPAN holds members of Congress in check on their behavior in the Capitol, it clearly doesn't. C-SPAN is a treasure trove the men and women in Congress saying and doing absurd things on the floor and in committee."

  • 12:56:43

    NNAMDI"Sadly, the prospect of 'I might end up on YouTube or Colbert' doesn't force people to behave in a more dignified way." That is the fear of members of the Court.

  • 12:56:53

    LIPTAKIt's -- you know, it's true. And bless them that it's true. The justices say goofy things on the bench. They like to crack a joke. They like to spinout a wild hypothetical question. It makes the arguments a lot of fun to cover. But if you were to take bits of that, it might expose them to mockery. I'm not suggesting that's a principled reason not to have cameras in the Court, but I think it does animate their thinking.

  • 12:57:16

    NNAMDIAnd finally, here's Chuck in Lovettsville, VA. Chuck, you only have about a minute left, but go ahead please.

  • 12:57:22

    CHUCKOkay. I'm a Quaker and Quakers have been around a long, long time and we are very much against war. Does the Hobby Lobby situation make it easier for me to say I don't have to pay 20 percent of my taxes because it goes to the Defense Department?

  • 12:57:42

    LIPTAKThe short answer is no.

  • 12:57:46

    NNAMDIYes, the Supreme Court said it's limited to contraception in this case, it doesn't extend to whether or not you can withhold that percentage of your taxes that you perceive going to the defense budget. But I'm afraid that's all the time we have. Better luck next time, Chuck. Adam Liptak, thank you so much for joining us.

  • 12:58:03

    LIPTAKThank you, Kojo.

  • 12:58:04

    NNAMDIAdam Liptak is the Supreme Court correspondent for the New York Times. And thank you all for listening. I'm Kojo Nnamdi.

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