Noah Feldman on Pivotal Upcoming Supreme Court Cases

CHRISTIANE AMANPOUR, HOST: Turning to the U.S. Supreme Court now as a controversial term is already underway with religious rights, affirmed of action, and election laws on the docket. The six-three conservative super majority is expected to once again overturn precedent. Harvard law professor Noah Feldman joins Walter Isaacson to discuss this consequential term.

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WALTER ISAACSON, HOST: Thank you, Christiane. And Noah Feldman, welcome back to the show.

NOAH FELDMAN, PROFESSOR, HARVARD LAW SCHOOL: Thank you for having me, Walter.

ISAACSON: So, this past term, the Supreme Court was very activist. We saw some precedented chattering decisions, like overturning Roe v. Wade and others. Now, there are a lot of other things on the docket this coming term which began this month. Let’s start with affirmative action. You’re sitting up there at Harvard. Both Harvard and the University of North Carolina have cases on affirmative action. Explain what is at stake here.

FELDMAN: What’s at stake here is a setup that we’ve had since 1978 in which higher education is allowed to consider race of one factor in a holistic admission’s decision. So, they can’t put a number on race, they can’t assign new points if you’re one color or a different color but they can consider that as a part of their overall objective of creating a diverse educational classroom. And that’s sort of the idea that stands behind all of our cultures embrace of the idea of diversity in a whole range of areas. That’s in front of the Supreme Court with a real chance that it will be struck down by the court. And what that would look like would be the Supreme Court will be saying that it’s no longer constitutional for the universities to use diversity as their objective in trying to create a class that they’ve admitted. That would mean that race could not be any factor in any way in the admission’s decision. And In real world terms, that will probably reduce the total number of black and Latino students on campus.

ISAACSON: OK. But I don’t get it. Suppose Harvard decides its educational mission or North Carolina does. It’s not simply to take people gotten great board scores and make them a little bit smarter. But to train leaders for the future. And they say, that’s why we set our mission. Why would the government say, no, you can’t pursue the mission that way.

FELDMAN: The underlying principle at stake here is the equal protection clause of a constitution and federal anti-discrimination law. And until now, the Supreme Court has interpreted both of those to say that exactly what you described is permissible for the universities. They can say, we’re here to train leaders who want a broad and diverse educational experience in the classroom. If you’re going to be a leader, you have to attract (ph) people of lots (ph) and different backgrounds. You learn better with people with logics (ph) perspectives to offer. But there has been a persistent argument on the other side that the Supreme Court is very sympathetic to right now. Which says, look, diversity and educational purposes might be fine if you’re looking for class diversity. If you’re looking for income diversity. But if you’re taking race into account at all, that’s a violation of the basic principle of equal protection. And that’s the viewpoint that has not prevailed until now, although, it’s come close a few times over the last 40 years. But which very much looks like a majority of the Supreme Court is likely to embrace now.

ISAACSON: Is that because race is a protected class? And if so, isn’t religion, gender, and other things protected and yet some universities are able to give preferences based on background, religion, whatever.

FELDMAN: Well, you’re absolutely right that it’s because the equal protection clause protects race. And as you say it also protects against other kinds of differential treatment. Including national origin, including sex, including religion. When you talk about religion, what you are talking about is a university that’s organized for the purposes of religion. And if the university says, we’re a catholic school, or we’re a Jewish school, then it has the capacity to say, we’re going to give our preference to folks with those backgrounds. So, that is the, kind of, exception to the general principle of anti- discrimination which we see a lot in the context of religious liberty and that’s another major case the court’s is going to consider this term.

ISAACSON: When we’ve had from the Vatican cases in the past, stretching all the way back to the Bakke case. And then the ones that’s now really up for — whether or not it’s not going to be overturned, I think is a Michigan case, right? There’s always somebody who’s at swing vote in the middle. The Lewis Powell, the Sandra Day O’Connor who says, wait a minute, this is very complicated but there’s some middle ground here? Does the court have that now?

FELDMAN: I would love it to the case and the answer is yes. Because just as you say, Justice Powell in 1978 and then Justice O’Connor in the early 2000s. And then even Justice Kennedy, who in the past, had voted himself against the affirmative action. Flipped his vote towards the end of his career to be the deciding vote. Right now, the two potential swing voters would be Chief Justice Roberts, who’s extremely conservative but he’s less conservative than any other hard-core conservatives. But Chief Justice Roberts has written in previous cases involving the use of race in admissions in high-schools that more or less, “The only way to get beyond racial discrimination is to get beyond racial discrimination.” And so, that strongly telegraphs that he is against allowing affirmative action here. And then the potential, maybe, sometimes swing voter would be Justice Brett Kavanaugh. Right now, I don’t think it is very probable that he would deviate from the conservative majority and be the decisive vote to preserve affirmative action.

ISAACSON: You said that this would definitely affect admissions in universities, that may fill black students in universities. But I think I heard you say it would have ramifications across all of society. Explain that to me.

FELDMAN: The reason it is likely to affect everybody is that our ideal of diversity, which we now talk about when we are hiring in private employments, which we talk about when we’re putting together the board of directors on our local library or the local pre-school. All of those situations and circumstances are part of a belief that goes back to that 1978 Supreme Court case, the Bakke case which embraced the idea of diversity. And over the last 40 plus years, we have gradually, as a society, taken that idea on board. Now, if the Supreme Court holds that in higher education admissions, racial diversity is an unconstitutional objective, that’s going to undermine our collective commitment to the idea of diversity. It is not going to happen overnight. We believe in diversity, or many of us do, and we’re likely to insist on it and try to push back and try to find proxies. For example, class diversity or income diversity. But overtime, we got this ideal of diversity because the Supreme Court said it was allowed. And if the Supreme Court says it is not allowed in a whole range of context, that’s in my view, very likely to undermine our societal commitment to that value. We may have to come up with some other terminology or some other set of values that helps us get where we want to go as a society.

ISAACSON: You know the Brown versus Board of Education decision in ’54 and many other, including the Civil Rights Act, they talked about being color blind. They talked about a society in which race is didn’t count. Isn’t that something, perhaps, as Senator Day O’Connor said, we do have to move to that at some point?

FELDMAN: You know, Walter, you’re really characteristically putting your finger on the exact point of disagreement here. Supporters affirmative action take the view that in light of our long history of slavery and then of segregation afterwards which ended in a lot of our lifetimes that it’s still required to engage in some consideration of race in order to achieve a society that’s generally color blind. Others think, and as you say, have fought for a long time that now is the time to go completely color blind. And to trust that overtime the consequences will lead to greater equality. That’s an empirical question of what will work. And it’s also a normative question, a values question of how long and to what extent we should account of race in order to achieve a society that is generally racially equal.

ISAACSON: One of the other cases coming out that I just find very interesting involves pork producers. In pork producers in the Midwest and California has passed a law saying that if you’re going to sell a pork in California that it had to be humane treatment of the sows. In other words, the pigs had to be treated humanely. I can pull out my constitution again and talk about the interstate Commerce Clause and the dormant interstate Commerce Clause which says that states cannot tell other states how to manufacture things. Tell me how that plays out in a case like pork producers from the Midwest fighting laws in California.

FELDMAN: What is going on here is that the framers (ph) of the constitution were doing something really fundamental to the United States. They were trying to turn us from 13 separate States that have, kind of, agreed to hang out together some of the time into a unified country. And creating a unified trade system was crucial to that. And so, one of the key elements about it was saying that individual states can’t impose tariffs or other kinds of taxes on out of state products. And the Supreme Court has gone on to interpret that principle to say that the state can’t disadvantage products from another place. But of course, that still leaves the possibility that states can issue regulations that affect other states provided they treat their own domestic state producers the same way.

ISAACSON: So, what is the question here? I mean, why —

FELDMAN: Well, the pork producers are saying, to the contrary, that effectively California is trying to do is force producers all over the country to follow their rules for how the livestock should be raised. And that they’re doing that through effectively what the producers call the trick of saying, well, we do this domestically. Because after all, the vast majority of the production of pork product in the United States does not take place in California. It takes place in other states. So, they’re saying it’s more, like, a barrier on trade and California is saying, no, this is just how we think about it in our state. And we don’t want you to follow the same rules that we follow in state.

ISAACSON: Well, is it partly because it’s a moralistic sort of thing and that could lead down a path in which maybe the legislature of Iowa says, we’re not going to allow any fruit that’s been picked by illegal immigrants. And sort of that targets California, perhaps. Is that the problem here?

FELDMAN: You know, the courts haven’t in modern era framed the distinction — as a distinction about whether the purpose is moral or whether the purpose is necessarily the protection of the consumer ultimately. Because historically when the court tried to do that, and they tried to do that not in the context of state regulations but of federal regulations, long about a century ago. It turned out to be really hard to draw that firm line. So, although it’s conceivable that the court might think that nowadays they could draw that line firmly, I would say that on the whole, that distinction has been hard sustain in our constitutional history. The other thing that I would add, Walter, about the Dormant Commerce Clause that you mentioned is, you know, the constitution that — the copy of the constitution that you waved, it has the interstate Commerce Clause that says Congress has the power to regulate commerce between the states. But it doesn’t say anything about the Dormant Commerce Clause. That is why it is called dormant. Dormant means it’s sleeping because it doesn’t actually appear in that constitution. So, critics of the Dormant Commerce Clause, jurisprudence, people like Justice Clarence Thomas, waved their copy the constitution and they say, there is no Dormant Commerce Clause. And so, maybe we shouldn’t pay attention to that doctrine at all. But that has not been the view that’s commanded the majority the court so far.

ISAACSON: There are religious cases coming up. And this court seems much more sensitive than previous courts to people who made claims that their religious rights have been violated somehow. There’s a case that involves both religious rights and now it’s been focused too on free speech rights which is web designer who says I don’t want to do a web design for same-sex marriage. It sort of harkens back to that Colorado baker who didn’t want to bake a cake for a same-sex marriage. Parse that out for me. Is that a test of religion? A test of free speech? And what’s the claim here?

FELDMAN: It’s all of the above. And as you mentioned, a few years ago when the Supreme Court took on this issue or were supposed take on this issue in the Masterpiece Cakeshop case, about the cake baker. The court ultimately docked the issue. They didn’t want to reach a final decision and they found a way to dispose of the case on other grounds. This time all indications are they really want to take the issue on directly. And here’s the question, and it’s a deep one, we know that you should have a principle of free speech. And that includes not being forced to say something you don’t want to say. And if you’re producing art and you may think of the website that you produce for your clients as a form of art, or as a form of expression, then in principle, you ought to have free speech rights. On the other hand, States have anti-discrimination laws that say you can’t discriminate if you’re in business and you can’t say well, you showed up at my door. I don’t want to serve you because you’re gay or I don’t want to serve you because you’re black. Those are core civil rights commitments. The question is, do you get an exemption from that general principle of nondiscrimination if you say, I have a strong conscientious objection either based on my religion or potentially based on my free speech rights?

ISAACSON: So, how far could that go? Could a baker or a website designer say, I’m Christian and — practicing Christian. I don’t want to do cakes for Jews or I don’t want to do cakes for blacks?

FELDMAN: That’s exactly the argument that’s being made by those who believe that anti-discrimination law should Trump in this case. They say that all of our progress on civil rights could really be reversed if people could just assert that based on their own religious beliefs or their own sense of self-expression, their businesses are no longer going to serve people of different races or of a different religion. On the other hand, are those who say that the principle of free speech and free association has been interpreted in the past to go far enough to allow, say, private clubs to discriminate against women if they show choose, or to allow the boy scouts, back in the day, to discriminate against gay scoutmasters. And so, therefore, that the free speech principle, the free association principle, and maybe the freedom of religion principle should win the fight. And this is very, very hard set of issues. One potential way that a liberal approach would try to resolve it would be by saying, it depends on whether you’re open for business and you’re trying to make money. Either way, I think of this is, if you’re serving mammon (ph), you shouldn’t be able to also simultaneously say that you’re serving the Lord God. And in that view, if you’re a business, you should be subject to the anti-discrimination laws. I mean —

ISAACSON: Wait, wait. Why? What is the principal there? Why can’t I serve both God and mammon (ph)?

FELDMAN: Well, that’s what the response is. My view is that religious exercise — free religious exercise under the constitution was designed to facilitate exactly what it says, religious exercise, which is faith and worship, and the expression of ones core religious beliefs. And that’s rather different from saying that, I’m going to do business, but I’m not going to do business with certain people because my religion prohibits me from doing it. Certainly, in the case of a large corporation, I think that argument is pretty powerful. But the counterargument, as you’ve just mentioned, Walter, is that — let’s say you’re a sole proprietor. And it’s just you doing the business. And you don’t think you can differentiate your religious beliefs from what you get up in the morning and every day. And therefore, you ought to be entitled to an exemption. And I think the hard part is if you reach that conclusion, you open the possibility of larger business and companies actively discriminating against gay people, against black people, and using religion as their explanation and justification for that discrimination. And that would set us way back along our civil rights path.

ISAACSON: Elena Kagan, this summer says that the Supreme Court has been damaging its legitimacy. Is she right?

FELDMAN: In my view, yes. I think when the Supreme Court decides a case like the Dobbs case where it overturned Roe V. Wade, it’s basically saying to the public, our legitimate reason for doing what we do all the time has been expanding peoples’ rights. Sometimes conservative rights, like gun rights or corporate rights. Sometimes liberal rights, like, gay rights. And nevertheless, we have given something to everybody. So, we’re legitimate. In the modern era, the Supreme Court has never before fundamentally reversed a set of rights that human beings have had for more than a century, which was the case for the right to choose. And when it does that, it undermines its claim to be the right body to decide crucial issues for our country. And so, to that extent, I think the court did to a very meaningful degree undermine its legitimacy. And it remains to be seen over the next several years whether the court can, sort of, get that back. I think when the Supreme Court is seen serving primarily the interests of one ideological point view, it makes the public less trusting of it. When the court goes back and forth and shows that it’s got people of different viewpoints and reaches different kinds of conclusions and different kinds of cases, lots of people dislike individual decisions. But I think the public accepts that overall, the court is doing the best that it can to interpret the constitution according to its own likes.

ISAACSON: Professor Noah Feldman, thank you for joining us.

FELDMAN: Thank you for having me.