SACHA PFEIFFER This is On the Media, I'm Sacha Pfeiffer sitting in for Brooke Gladstone. All the coverage of religious exemptions in response to the vaccine mandate has raised questions about the blurry lines between church and state. And when a person's religious practices collide with the law or when laws based on religious beliefs infringe on people's right. That's when the Supreme Court gets involved.
NEWS REPORT The U.S. Supreme Court on Wednesday handed a victory to religious conservatives in the fight over reproductive rights, allowing employers to opt out of covering contraception.
NEWS REPORT Last week, a decision in which they said that Montana could not exclude a school from a scholarship program simply because that school was church run. [END CLIP]
SACHA PFEIFFER And then earlier this month...
NEWS REPORT A majority of abortions in Texas are now banned after the Supreme Court did not rule on an emergency appeal to keep a new law from taking effect.
NEWS REPORT The law, known as Senate Bill 8, prohibits abortions after six weeks. It also allows people to sue abortion providers and people who...[END CLIP]
SACHA PFEIFFER Last Sunday, less than two weeks after the court allowed the gutting of Roe v. Wade in Texas, Justice Amy Coney Barrett had this to say about the coverage of recent Supreme Court rulings:
NEWS REPORT The newest Supreme Court Justice says she's worried the public thinks the court is partisan. Justice Amy Coney Barrett says justices must be hyper-vigilant to make sure they're not letting personal biases creep into their decisions. [END CLIP]
SACHA PFEIFFER Her timing raised eyebrows. So did where her words were spoken.
NEWS REPORT Judges are people, too, Barrett said in a lecture hosted by the University of Louisville's McConnell Center. Wait, that McConnell? [END CLIP]
SACHA PFEIFFER MSNBC's Chris Hayes.
TUCKER CARLSON Oh, yes, it continues, introduced by Senate Republican leader Mitch McConnell, who founded the center and played a key role in pushing through her confirmation in the last days of the Trump administration...[END CLIP]
SACHA PFEIFFER As much as Barrett and the other justices may protest otherwise, there is consensus among some about where today's Supreme Court lies on the political spectrum.
LINDA GREENHOUSE Every justice who's been appointed for the last number of decades by a Republican president has been more conservative than the justice that he replaced.
SACHA PFEIFFER Linda Greenhouse covered the Supreme Court for thirty years at The New York Times. She's now a clinical lecturer and senior research scholar at Yale Law School, and she writes opinion columns for the Times about the Supreme Court and the law.
LINDA GREENHOUSE The current court is generally regarded by scholars and historians of the Supreme Court as the most conservative Supreme Court since the 1930’s.
SACHA PFEIFFER In your column analyzing the last term of the Supreme Court, the column published in July 2021, entitled What the Supreme Court Did for Religion, you invited people who think this was a Supreme Court term in which nothing much happened, to take another look. Because you say that today's Supreme Court justices, or at least some of them, are more deferential to religion than past members of the court. What evidence is there for that?
LINDA GREENHOUSE Well, the major evidence that I'm sure people are aware of was what the court did in the context of the Covid-19 pandemic with regulations that various levels of government had put in limiting public gatherings in one place or another place. And so back in the spring and summer of 2020. First, it was a city in California, then it was the state of Nevada, limited all kinds of public gatherings, including gatherings for worship. And these were challenged as violations of religious freedom of the First Amendment free exercise clause. They came up to the Supreme Court and the court by a vote of five to four, upheld the regulations, rejected the challenge. Chief Justice Roberts was in the majority and so was Justice Ruth Bader Ginsburg. So, what happened? On the eve of Thanksgiving, this last Thanksgiving, November 2020, another one of these cases came up. This one was from New York and the court flipped. It was five to four the other way. The restrictions were struck down. Justice Ginsburg, of course, was no longer on the court and the justice who was there in her place, Justice Barrett, voted, as she would not have, and so it came out the other way. The majority seemed to think it was some kind of discrimination against religion to impose on worship services, the same kind of public health restrictions that were being imposed elsewhere.
SACHA PFEIFFER In your latest column for The Times, the headline says, God has no place in Supreme Court opinions. And you say, as the country lurches toward theocracy, we need to call out those who invoke God as their legislative drafting partner.
LINDA GREENHOUSE I have to say, I didn't write the headline. I did write every word of the column. My real aim was at the legislators of the country who are invoking God as the reason why they're shutting down access to abortion. And I quote in the column, Governor Abbott of Texas and Governor Ivey of Alabama, and I thought it was time to sort of call out this religiosity both in the legislative branches of the country and on the Supreme Court.
SACHA PFEIFFER You seem to be saying that as conservative lawmakers see a growing number of conservative judges on the Supreme Court, they're becoming emboldened to push for conservative legislation that will likely get upheld by the Supreme Court. And those lawmakers are also becoming more open about their religious motivations because they feel confident the Supreme Court will have their back, so they don't have to conceal their motives. Is that a fair summary of what you believe?
LINDA GREENHOUSE Yes, that is a fair summary. You know, not so long ago, if a governor or a legislator was endorsing an anti-abortion bill, they would give these kind of phony secular reasons for doing what they were doing and saying abortion hurts women, abortion hurts the medical profession. I mean, all kinds of stuff, and they didn't say what they really meant, which is we oppose abortion because it's against our religious doctrine. And, of course, it's everybody's perfect privilege to think that abortion is against the religious doctrine, but what I'm trying to say is it's not their privilege to enforce their religion on the rest of us. There are some justices on the court who have an agenda. We know that. They're very open about it. I mean, Justice Sam Alito spends a lot of his energy writing opinions that basically invite disaffected members of the public to bring issues to the court. For instance, he's convinced that there's a real threat in the country of discrimination against people who oppose same sex marriage for religious reasons. He says they're going to be subject to discrimination. They're going to be written off as bigots when just a few years ago, it was a majority view to oppose same sex marriage, this kind of thing. I think the public can watch this and say, wait a minute, we thought the court was the passive recipient of the disputes that are roiling the country. Not going out, seeking to foment those kind of disputes so that the Supreme Court has the raw material to enable it to decide the way it wants to decide.
SACHA PFEIFFER And remind us of the denominational breakdown of the court.
LINDA GREENHOUSE Justice Neil Gorsuch is Episcopalian, he was raised Catholic. He attended the same Jesuit boys prep school that Justice Brett Kavanaugh did. So let's say there were seven justices raised Catholic on the Supreme Court, and there are two who were raised Jewish. And you can say, how did this happen? I think it happened, I mean, people can dispute this, but this is my observation, that because Republican presidents have basically pledged to appoint judges and justices who would overturn Roe against Wade, how do you do that? You can ask a potential nominee, by the way, will you promise me that you're going to vote to overturn Roe? So you use proxies, you use the evidence at hand. And I think the proxy have come to be Catholicism.
SACHA PFEIFFER You wrote that you consider religion American society's last taboo. We're afraid, will be accused of being antireligious if we ask whether certain politicians have a religious agenda. So first, I have to ask you, do you really believe religion is our last taboo, even more than money or certain political topics?
LINDA GREENHOUSE I do, actually. I mean, there's really nothing we can't talk about in polite society these days except somebody's religion. And what I had in mind when I wrote that and I didn't have space in the column, even in the virtual space, is not unlimited to recount what happened to Senator Dianne Feinstein back in 2017 when Amy Coney Barrett was nominated by President Trump to the U.S. Court of Appeals for the 7th Circuit in Chicago. Amy Barrett was at that time a professor at Notre Dame, and she had been signing statements and expressing her doctrine based views about abortion and so on. And so Senator Feinstein had the nerve to ask her to tell the public, okay, you obviously have strong beliefs in this area. And if you become a life tenured judge on the federal appeals court, would you be able to put these beliefs aside.
DIANNE FEINSTEIN When you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that's of concern. [END CLIP]
LINDA GREENHOUSE And of course, Amy Barrett said she could. But the point is that Dianne Feinstein was just blasted by Republicans and more privately by Democrats. So what happened was during Amy Barrett's confirmation hearing in 2020 for the Supreme Court, the Democrats showing really astonishingly unusual discipline did not ask her any questions about religion. In what was kind of funny in a grim way, is that the Republican senators were primed for the Democrats to ask these questions, and so they had their own questions. Basically, isn't it terrible that people are challenging your religious beliefs? Nobody in the hearing had challenged your religious beliefs. So it was grimly humorous to watch Lindsey Graham and a couple of the others asking her these leading questions that didn't lead anywhere because they didn't come from anything, because the Democrats have been so disciplined in not asking her those questions.
SACHA PFEIFFER The recent Biden order essentially mandated vaccines for employees of companies of a certain size. Inevitably will begin to bring up the issue of religious exemptions as some people try to get out of vaccines by claiming a religious exemption. Is that when you expect to go to the Supreme Court eventually?
LINDA GREENHOUSE It may. Well, I think a lawsuit was filed just yesterday starting this thing off. I would say looking ahead to the coming term to watch that space, because the end of one term in the beginning of another is in a way it could have an artificial dividing line. So the court has already told us that it's going to continue on its road to expansion of the role of religion in our public life. They've accepted a case about state aid to parochial schools from a case from Maine that I think is going to be quite important. So we can assume that the court is finished with its project. One of privileging the role of religion over other rights that our Constitution gives us in our public life.
SACHA PFEIFFER Linda Greenhouse was a long time Supreme Court reporter for The New York Times. She now writes opinion columns for the Times about the Supreme Court and the law.
LINDA GREENHOUSE OK, thank you, Sasha.
SACHA PFEIFFER Coming up, why TV news still has a problem with climate change.
SPEAKER 6 Let's dispense with this idea that, oh, there's not time or room. I think it is a dodge. All it takes is one sentence to say, as Al Roker said from the ground in New Orleans, this is an example of climate change.
SACHA PFEIFFER This is On the Media.