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Brian Lehrer: It's Brian Lehrer's Show on WNYC, good morning again, everyone. I'll let you on a little behind the scenes drama that we have this morning, which is that we had Harvard professor Annette Gordon Reed originally booked for right now to talk about her new book on Juneteenth, but she had to cancel last minute, why? Because she was invited to the White House to speak there instead. That's in conjunction with the establishment of Juneteenth as the newest federal holiday which was passed by Congress yesterday.

All right, I guess if she had to choose between the Brian Lehrer Show, and the official Juneteenth commemoration at the White House, I don't know it's close, but we'll give Professor Gordon Reed a pass on this. Anyway, our loss is the country's gain, and we'll get her back another day to talk about her book.

What we'll do right now instead is we'll go on to a segment that we would have done later in the hour with our in house legal-legal to talk about Supreme Court cases as the court reaches its end of session traditionally, when the most contentious cases are decided here in the second half of June. There are a handful of cases we've been following and waiting for and this morning, this court upheld Obamacare for the third time and rejected a sweeping challenge backed by former President Trump and Republican state attorneys general.

Of course, they did strike down parts of Obamacare in the past, but most of it is intact. We'll talk about that and some other decisions that came down today with Jami Floyd, WNYC senior editor for race and justice and legal editor. Hey Jami, thanks for coming on.

Jami Floyd: Good morning, Brian. I'm honored to be able to stand in for Annette Gordon Reed. A brilliant woman with a brilliant new book out about Juneteenth.

Brian Lehrer: As I say, we'll have to reschedule her for a book interview. You don't have to just talk about Juneteenth on the days leading up to Juneteenth. I heard you did speak to Professor Gordon Reed earlier this week, any highlights?

Jami Lehrer: I did. Indeed. It was actually a conversation not just about her book, it was a conversation about the symbols of white supremacy and the rise of white nationalism, the Confederate flag. Indeed, we spoke very specifically about incidents in our region, New York, New Jersey. She's quite a brilliant woman. We talked about the history, the long history of white supremacy going all the way back to the earliest days of the Ku Klux Klan and reconstruction.

We did talk about her book a bit, although not as much as perhaps we thought or even that she'd hoped, but it is quite an excellent book and she's a brilliant speaker. I look forward to hearing her with you Brian, in the future.

Brian Lehrer: All right. For listeners who might be thinking, wait, Obamacare was in front of the Supreme Court again? What was this case?

Jami Floyd: That's right, Brian, the Affordable Care Act survived yet another-- And I would say a final challenge in the Supreme Court, as we just heard, Michael Hill, our colleague reports in the year since Obamacare was enacted way back in 2010. Republicans, as we've discussed so many times, Brian, have been working hard to frankly destroy it. President Trump relentlessly criticized it, but all of those attempts to repeal it failed, as did two earlier Supreme Court challenges 2012 and 2015. We were together for those, Brian.

This case was California versus Texas. It was brought by Republican officials who said that the mandate requiring health insurance coverage became unconstitutional after Congress zeroed it out. Basically eliminated the penalty that is in the law for failing to obtain coverage because now the mandate could no longer be justified as a tax. Brian, today the court did not reach that larger issue in the case, whether the bulk of Obamacare could stand without that provision that initially required Americans to obtain insurance or pay the penalty. Instead, Brian, a seven justice majority ruled that the petitioners had not suffered the direct injury that gave them the standing to sue. No standing therefore, no suit, goodbye lawsuit, and therefore, Obamacare lives to see another day.

Brian Lehrer: Seven to two.

Jami Floyd: That's right.

Brian Lehrer: Which Republican-appointed justices helped to uphold the Obamacare this time.

Jami Floyd: Well, let's just talk about the two who did not want to uphold it.

Brian Lehrer: I guess that's easier.

Jami Floyd: Thomas and Alito, together in dissent, they would have struck it down and they would have gone further than to say that the plaintiffs had standing. They felt that the provision that is still a tax makes it unconstitutional, that it could not be severed. The main issue was whether or not that tax provision then could be severed or severability as it's known in constitutional law.

The big question would have been, could that be severed, and could the last stand without it? That would have been the big rather uninteresting constitutional question, but we never got to it because seven said there was no standing. The two dissenters in many cases this term have been Alito and Thomas and they were in this case. A ruling against the law would have been a huge issue on practical terms.

We've got so many people invested now in Obamacare, it's gained great popularity, as Michael just said in his newscast. It is President Obama's signature legislation. The justices aren't supposed to think about practical and policy and political implications, but one has to think that maybe they do, right?

Brian Lehrer: Before they throw millions of people off their health insurance at least give that a second thought. All right. I think, Justice Alito, tell me if I got this right, said something like, "This is the last book in the trilogy of Obamacare cases."

Jami Floyd: Well, I would agree with him on that.

Brian Lehrer: Do you think there will be more Obamacare-- You don't think there'll be more Obamacare cases in the future? Maybe a movie version or fun fiction something?

Jami Floyd: Oh God that sounds so dope? I certainly hope not. I like that he called it a trilogy was clever writing and I do agree, this is probably the end of the book on this. I think we can all I should hope we all move on to other issues.

Brian Lehrer: We move on to another case that's been on our list to watch. Jami and I get together a little more behind the scenes. Jami and I and producers get together usually in May every year, and we go well, okay, what are the cases that we're expecting to be decided near the end of the term in June, that we will stray from regular programming to cover on the mornings they come down?

Certainly the Obamacare case was one for this year. Another one is Fulton versus city of Philadelphia. This is a sort of gay rights versus "freedom of religion" case so can you remind listeners of the specifics in that one?

Jami Floyd: That's right. I agree with the way you frame this one, Brian, and you're also right that we've talked about it behind the scenes because it is yet another in the line of now increasingly familiar cases in our national debate pitting religious liberty claims against LBGTQI rights. In this one, the city of Philadelphia argued that Catholic Social Services should be prohibited from continuing to receive city funding, while refusing to place foster children with same-sex couples.

Which the city argued is a violation of Philadelphia's non discrimination policy. Two Catholic foster parents and Catholic Social Services claimed in the suit, that the city's policy was religious discrimination. This was a classic tension between LGBTQ rights and religious freedom. Just moments ago, Brian, the US Supreme Court ruled that Philadelphia was violating the Constitution when its officials excluded Catholic Charities from part of the city's foster care program, because the group wouldn't help place the children with the same-sex couples.

This unanimous ruling, Brian is bolstering the recent line of cases we're seeing in the area of religious freedom guarantees but Brian, it didn't go as far as religious rights advocates were hoping. The court said the city infringed on the rights of Catholic Social Services by enforcing the anti-discrimination requirements in contracts with private agencies that screen potential foster families.

The big takeaway is the case did not go as far as yet again, Justice Alito would have wanted and Justice Thomas would have wanted. It's not a full-blown religious freedom over everything else case. It was a very careful balancing and limited to this context of contractual relations. The court and the justices in the majority very plainly said that these families need to be referred to other services, other places where these children can be placed in foster care. It's a limited decision, but it does strike in favor of religious freedom.

Brian Lehrer: If I got this right, Catholic Charities in Philadelphia may refuse to consider foster placements in the homes of same-sex couples, but they can be required by the city at least to tell those couples where they can go elsewhere if they're interested in foster families?

Jami Floyd: That's right. Of course, the city is contracting with Catholic Charities but also with many, many other foster care placement organizations that does not have this kind of policy. Again, a balancing act by the court and the court says-- Also a balancing act by the city and by the larger society.

Brian Lehrer: Where would you say this fits into the body of case law on this now, probably the most famous one that our listeners will call up in their heads easily was the bakery that wanted to deny baking wedding cakes for same-sex couples. That went to the Supreme Court. When you take the result of that case and remind us of that, and the result of this case, what's the bigger lay of the land now for when frankly, same-sex couples can be constitutionally discriminated against?

Jami Floyd: Well, you're exactly right. The court is increasingly striking in favor of religious freedom. It does, as we said at the beginning of this part of our conversation, very often pit religious liberty claims against LGBTQ rights or one would say discrimination. This court with Thomas and Alito, and one would think Cavanaugh, Amy Coney Barrett, increasingly conservative court now in the majority is creating a line of cases that favors religious freedom over other freedoms, if you will.

This is in the tradition of Antonin Scalia, who is no longer on the court, but wrote the very famous Peyote case. You'll remember Brian, and it's cited by the way here. Throughout both Justice Alito's, by the way, 87-page dissent. He wanted to overturn, he wanted to write a bigger, more impressive, more full-blown religious freedom case here. The Peyote case is the case that really establishes the right to practice your religion, free of state interference. Smoking peyote had been regulated by the state, it was illegal. The Supreme Court said no, if you're doing that as a matter of your religious practice, it cannot be regulated by the state. Scalia wrote that big religious freedom case.

Increasingly, the court is pushing in favor of more and more religious freedom and Alito wants to say that case wasn't enough, we need more complete free exercise with no state intervention at all. Here, Brian, is the big takeaway I saw today. Amy Coney Barrett, who one would think would be with Alito and Thomas, they're more conservatives on religious freedom. That's what we thought about, talked about, heard about during her confirmation here.

Brian Lehrer: Right. She came from this very conservative Christian sect.

Jami Floyd: Exactly. She wrote a concurrent directly disagreeing with Alito saying the court should not, in this case, reinterpret or perhaps overturn the peyote case, the free exercise case. She does not think it is right in this case and she says likely to think it ever to be a case to be reinterpreted in a larger more expansive way.

Brian Lehrer: Interesting.

Jami Floyd: Yes. I don't know where they're going basically. I see where they've been and they are little by little ticking forward in the religious freedom expansion, but I don't know that we're going to see a full-blown. I don't know that Alito and Thomas have the votes to create the war and ask. Let me explain what I'm talking about. The Warren Court being in my mind, the most powerful Supreme Court we've ever had with Earl` Warren as Chief Justice and a very, very solid majority to really establish a line of cases that protected civil rights and civil liberties, Brown versus Board, Loving versus Virginia.

I could name the list of cases and it would take the rest of the time we have together. I don't think Justice Roberts has that power on the court nor do I think he shares the philosophy of Justice Alito and Justice Thomas. I don't think they're all together Cavanaugh and Coney Barrett in thinking and philosophy in intent. I'm not behind the scenes. I don't know for sure, but the sense that I get is if we're not going to have a Roberts Court, that mirror or something like the Warren Court, or the earliest days of the US Supreme Court at the very beginning of its inception. We've only had one or two powerful courts like that. I don't see that happening here.

Brian Lehrer: Before we move on to some other cases, how far could a group or an individual go now if they want to discriminate against some other group? These seem to be built particularly on the constitutional equal protection of LGBTQ people versus the constitutional protections for expression of religious liberty on the part of the bakery in Colorado that didn't want to serve that wedding and now Catholic Charities in Philadelphia, which doesn't want to place foster kids in their homes.

Let's say Catholic Charities or that bakery said, "Well, because of our religious beliefs we don't want to serve Jews." They don't believe what's consistent with our belief. We don't want to serve Black people if they decided to take that stance for whatever reason.

Jami Floyd: We've had those cases. Those are the cases from the 1960s. The famous barbecue, very famous, famous barbecue case, we talked about it on More Perfect. The podcast we had about the US Supreme Court. There are different levels of scrutiny for different behaviors. It was talked about in this case today, in the Fulton case. When religious freedom is at issue, strict scrutiny is applied.

We always have to remember when we're talking about constitutional issues, the question is, what is the state doing? It's not about the individual. I always say to my kids, my kids will say-- I think I said this to you the last time we spoke, Brian. My kids will say, "I have the right to speak in this house." I say, "Well, actually, you don't. You don't have the right to speak."

The first amendment is about the state infringing your first amendment rights, your right to speak. It's not about your parent or even a private-- If you work for a law firm and they tell you, you can't say something, they can pretty much tell you that. It's about the state shall not infringe your right to speak, the state shall not infringe religious freedom. That's the first question, is it a state infringement? That's why we have distinctions between what public schools do and what private schools do.

They're two different things when it comes to constitutional analysis. To get to your question, Brian, I had to lay all that out because the first question the court asks is who is the actor? Who is the actor? Then the second question is who is complaining and do they have standing? Then depending on the actor, we have to apply a certain analysis. If someone is complaining about religious discrimination, the question is whether or not the state is infringing upon your religious freedom.

If you are LGBTQ, or if you are a woman, or if you are African-American, or Native-American, there are all different levels of scrutiny depending on your status in our country under the Constitution. Now, we could do a whole hour on this, Brian, so I can't, but believe it or not, different levels of scrutiny apply depending on who you are. The highest scrutiny is based on race.

That's the strict scrutiny. Why? Because of our legacy with slavery, 13th amendment, 14th amendment, and 15th amendment. They're not about these other things. I'm a woman, I care about being a woman, but those three amendments have nothing to do with gender. They have to do with race and our ugly history with race which we all know we are still grappling with. That is the strictest scrutiny, the strictest discrimination that we care about the most constitutionally, the rest of it. I'm sorry, go ahead.

[crosstalk]

We do care very much about obviously religious freedom that's the first amendment. The rest of it has been largely interpreted into the constitution by the justices over the years things like the right to choose to have an abortion, that's nowhere in the Constitution. That's constitutional interpretation and things like age discrimination. Gender came later, as we all know, later in the constitutional amendments. This is why I love constitutional law, I could talk about it forever. [laughs]

Brian Lehrer: I can listen to you.

Jami Floyd: It is really complicated. That's why this balancing and this is why our society so richly diverse, and I love our city, I love our country because of its diversity but balancing all of these interests because they do compete is so critically important because we all have to get along in our beautiful fabric of a rich, diverse society. How do we get along, I believe we have to have laws, we have to have a constitutionally fair society where everybody gets a chance to live a fully actualized life.

Brian Lehrer: It wasn't that long ago, and political terms that Congressman Ron Paul, father of Rand Paul, was running for president, having had earlier in his life oppose the 1964 Civil Rights Act, that bedrock civil rights act on the libertarian grounds that the government shouldn't tell private businesses what they have to do, including who they have to serve, even based on race. I want to move on.

If you're just joining us, listeners, we have a few minutes left with our legal editor Jami Floyd on some Supreme Court decisions that have come down this week. I want to touch briefly on a few rulings that came down having to do with sentencing. First, on Monday, the court ruled that some crack cocaine offenders sentenced to years in prison cannot get their sentences reduced under the recent First Step Act. Clarence Thomas wrote that majority opinion wasn't the First Step Act written to do just that to revise the overly harsh sentences that we now think are wrong for nonviolent drug crimes?

Jami Floyd: That's right and this is a really technical decision. In the end, the court ruled unanimously, Brian, that the way in which the law was written means that it does not require new sentences for some low-level drug offenders. What's really interesting, Brian, anyone who has any interest in reading this set of opinions, I know it's a lot to read a US Supreme Court opinion but it's really a fascinating debate between Justice Thomas and Justice Sotomayor, who in the end signed the opinion.

Because when you're a justice, you have to read the law and apply the law, and the way the First Step Act is written it does not require new sentences for this man who came to the court asking for one. In the end, the reason it's interesting to read it, Brian, is that even though they all agree that looking at the letter of the law, this man does not get a new sentence. They are sharply divided about the history of sentencing law.

They go all the way back to 1986. The law that subjected drug dealers selling crack cocaine to the same sentences as people selling 100 times as much powder cocaine. Justice Thomas writes about the 1986 law, and he talks about how it had overwhelming bipartisan support, including from the Congressional Black Caucus, and this man, Tariq Terry was convicted and pleaded guilty to the intent to distribute four grams of crack.

Justice Sotomayor writes in her concurrence that this is, "Less than the weight of four paperclips." He is then sent to prison because he's a career offender, three strikes, and sentenced to 15 years. We asked to be resentenced under the First Step Act, and, Justice Thomas writes a very accurate and thoughtful opinion, "Many Black leaders in that era professed to concerns." He writes.

First crack was fueling crime against residents in inner cities who are predominantly Black and he knows that the NAACP chapter in Washington called crack, quote, "The worst thing to hit us since slavery." Then Justice Sotomayor responds, Brian, and her concurrence. The court barely references the real-world impact of the sentencing disparities between crack and powder cocaine.

Black people bore the brunt of this disparity. 80 to 90% of those convicted of crack offenses between 92 and 2006 were Black. While Black people made up only 30% of powder cocaine offenders in those same years. Brian, the reason I'm saying Black the way I am, Justice Sotomayor capitalizes Black throughout her entire opinion. Just to emphasize to Justice Thomas, how she feels he completely misread this history.

It's a really fascinating opinion in the end, but Mr. Terry does not get his sentence reduced, even though by the way, this took so long to wind its way through the courts. He's about to get out anyway.

Brian Lehrer: Isn't that standard writing, though, by the way, I think in the New York Times, and just about everywhere. I think Standard English now is to capitalize the word Black when you're talking about Black people, as you would capitalize Jewish or other ethnic groups, I'd say.

Jami Floyd: Yes, there's a big debate about it. Honestly, Brian, we capitalize it at New York Public Radio, it is in our style guide to capitalize Black, The New York Times capitalized is Black and they did an editorial about why Justice Sotomayor capitalized throughout, Justice Thomas did not. There are some prominent African American scholars who do not feel we should be capitalizing Black.

Howard Bryant has written quite a bit about why he feels we should not capitalize Blacks. It's not a settled point but it is rather ironic, is it not that the Black Supreme Court Justice did not capitalize Black and Sotomayor, who is not Black, but is Afro Latina, chose to?

Brian Lehrer: Before we run out of time, one other case about sentencing that was decided, last week, the court ruled that violent felonies committed recklessly as opposed to intentionally do not count as strikes under the armed career criminal act, that law requires mandatory 15-year sentences for people convicted of possessing firearms, if they have earlier been found guilty of three violent felonies, one of those street three strikes and you're outlaws. We see this in all kinds of laws. As we start to run out of time, Jami, maybe you can frame the difference under the law between reckless and intentional.

Jami Floyd: This is pretty straightforward. Brian, as you say, the Federal armed career criminal act is what the case was about. It is essentially a three-strikes statute, and the case was just about what is a strike and what is not a strike. They said that if you commit a crime recklessly, as opposed to intentionally or knowingly, that's not a strike, that doesn't count as a strike, you have to do three intentional crimes for it to be a strike.

You're right, Brian, there is a big difference in the law between intentional acts and reckless acts. When you go to law school, happiest years of my life, I will say, the first thing you learn, you learn two Latin phrases, Actis Reyes and mens rea. The act is the actus Reya and the men's Reya is the intention, the state of mind, what were you thinking? Did you mean to do it or was it just something you did recklessly?

If you drive your car intentionally into a crowd that's one kind of crime but if you just recklessly drive your car and you happen to roll into a crowd, that's something else. It could still be a crime, it could be an accident, it could be a crime, but if it's lacking in intent, it's not going to be first-degree murder. That's what this case is about. It's not fair to call it a strike for three purposes in federal law if you didn't intend to do it and in criminal law, intent is everything. We see it in every case.

Brian Lehrer: What are we still waiting for from the court before the end of the month? Jami, we have 20 seconds.

Jami Floyd: We have a couple of big cases coming down and we have a couple of big cases in the next term as well. They took Star Niab, they have affirmative action. We have a big gun case in New York State. We'll be talking about a lot of stuff, Brian.

Brian Lehrer: At least one more time. I have a feeling before the end of June and the final Supreme Court decisions for this term. WNYC senior editor for racing justice and our legal editor Jami Floyd. Jami. Thanks.

Jami Floyd: Thank you, Brian.

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