Law professor Melissa Murray

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A former clerk for then-U.S. Court of Appeals Circuit Judge Sonia Sotomayor, Murray assesses the Roberts Supreme Court.

Melissa Murray is on the faculty of UC Berkeley's School of Law, where she teaches family law, criminal law and constitutional law. Her research encompasses such topics as marriage and its alternatives, the marriage equality debate and the legal recognition of caregiving and has been published in several law reviews/journals. Following graduation from Yale Law School, Murray clerked for Sonia Sotomayor, then of the U.S. Court of Appeals for the 2nd Circuit, and Stefan Underhill of the U.S. District Court for the District of Connecticut. She's a member of the New York bar and the American Law Institute and has served as a legal commentator for local media outlets.


Tavis: So the Roberts Court has concluded its ninth term now, last week in fact, with a series of decisions considered to be both far-reaching and contentious.

Although Chief Justice John Roberts had said he did not believe in an activist court, many observers are insisting that is exactly what we’re getting these days with these decisions regarding voting rights, corporations, the citizens and restrictions on the Affordable Care Act, decisions that, of course, are dividing the country.

Joining me now, U.C. Berkeley law professor, Melissa Murray, an expert in constitutional law and a former clerk for Sonia Sotomayor when she was on the U.S. Court of Appeals for the Second Circuit. Professor Murray, good to have you on this program.

Melissa Murray: Thanks for having me.

Tavis: Let me start by asking what your read of this Roberts Court is. You and I were talking before we came on the air that he has now, you know, been Chief Justice for nine terms. He said he didn’t want an activist court. There are those who think that’s exactly what we’re getting. What’s your read of it?

Murray: So one of the things that John Roberts specifically mentioned when he was appointed to the position of Chief Justice was that he wanted the court to be above the fray of politics. And he wanted to use the position of Chief Justice to sort of herd the court toward decisions that weren’t quite as polarized, that didn’t look quite as divisive. And I think you’re seeing that, especially in this term.

As you know, a number of the decisions that have come out in the last term have been unanimous decisions and it looks, for all intents and purposes, like the court has found common ground on some very important issues.

But I think that that unanimity is really elusory and that in fact the decisions are so narrowly decided, the unanimity is actually really fragile. And underneath that unanimity are real tensions that are roiling within the court.

So it’s actually more divided perhaps than it looks and Chief Justice Roberts has just really done a great job of making it look like there is consensus.

Tavis: Let me split those into two parts then and take them one at a time.

Murray: Okay.

Tavis: Let’s talk about the unanimity. Easy for me to say. We’ll talk about that first because this term, if my facts are right, 65% of the cases were unanimous which, again, is not the narrative that we get when we hear this court being discussed with these divided five to four decisions. So how is it they could have been unanimous on 65% of the cases?

Murray: So they’re deciding things on very narrow ground. So, for example, one case that really drew a lot of attention was the buffer zone case from Massachusetts, McCullen vs. Coakley, which deals with the buffer zone around abortion clinics and whether or not protestors or individuals who want to counsel women seeking abortions about the other options that are available to them can penetrate that buffer zone in order to do that.

The decision was unanimous, right? So on a narrow question of whether or not the buffer zone in question was unconstitutional, the entire court lined up and said that it was.

But there are a number of concurrences in this unanimous decision and you have some members of the court saying that buffer zones of any size would be unconstitutional and other members of the court saying that just smaller buffer zones would be fine.

So there’s a real disagreement on the court about this basic question of how far these protestors can get from the abortion clinic, how close they can get to the individuals seeking abortions. So the unanimity really masks some real tension on this court.

Tavis: So the other part of this – let me just preface it this way. I would like to assume that any case that’s heard by my Supreme Court is an important case for somebody in the country. But on the issues that really matter, these hot button issues that we’re all, you know, paying attention to, that’s where these five to four splits continue to happen.

Murray: Very big decisions. Even the unanimous cases, those are some big, big decisions. The abortion buffer zone case, a big decision, but narrowly decided, so you sort of avoid the bigger questions. But you’re exactly right that, on the real questions, the hot button issues that divide Americans, the court reflects that division.

Tavis: It reflects that division – I’m not naïve about this and neither are you. You’re a professor. You know how this works. I know who they’re appointed by, you know, for all the drama of the hearings in the Senate, we kind of know what we’re going to get, depending on who they’re appointed by.

And yet what is troubling for me is the degree to which the country doesn’t trust the Supreme Court anymore. I mean, whether one is left or right, Republican or Democrat, your heart has to, if not ache, certainly be concerned about what happens to a democracy when the people don’t trust its Supreme Court system. So now like 30% of us? That’s like a really low number.

Murray: So I think there’s a general malaise in the country, so there has been a true dip in the credibility that all of the branches of government have experienced. So the president is at an all-time low, this president.

Congress is always the laggard in all of this, and the court has often enjoyed more credibility among the public than the other two coordinate branches. But, yes, I think we’re seeing a point in time where the court does look like it’s a bit enmeshed in politics and I don’t think that this is endemic to this particular court.

I mean, I think you have seen some skepticism on the part of the public as early as 2000 when it was Bush v. Gore, and it’s simply on these issues where the country is very much divided. You’re also seeing those divisions on the court and part of that is, again, as you suggest, we aren’t seeing sort of surprise Justices that we used to see.

Like David Souter was a surprise when he was nominated by George H.W. Bush. He thought he was getting a New Hampshire conservative and in fact he got someone who was far more moderate and indeed trended liberal on some very important issues. You don’t see that kind of surprise anymore.

Tavis: As a professor of law, are you in any way fretting what that – I don’t want to overstate it. I don’t think this is hyperbolic at all. I think it’s a very serious conversation about what it says about our democracy and the strength and the future of that democracy when the highest court in the land is not believed.

I mean, people trust PBS. Read the Pew data, Pew research. People trust PBS more than they trust the Supreme Court. I mean, I’m happy about that that they trust us, but the Supreme Court? That’s scary to me.

I guess the question is, if you can’t believe in a court system that is supposed to adjudicate, then what do we turn to? Because we know, to your earlier point, the Executive Branch, Legislative Branch, they’re out there. It’s like it’s the one institution that we expect to be above all that.

Murray: Well, to be clear, I think the court recognizes that its legitimacy as an institution really depends on the public really being invested in it and being credible to the public.

And I think that’s one of the reasons why you see Chief Justice Roberts showing this kind of leadership, trying to get consensus on these decisions, even if that consensus is quite fragile and quite narrow, wanting to make it look as though the court isn’t engaged in partisan politics, that it is above the fray.

Tavis: Okay, so Roberts may care about that. I hear your point about what he’s trying to do. You think Scalia and Thomas really care about that?

Murray: Well, I think Scalia and Thomas are offering a different vision of the Constitution, of…

Tavis: I know that, but do you think they care – we know they got a different vision than Sotomayor and Kagen and Ginsburg. That’s clear to me. The question is whether or not you think they really care.

Do you think in their down time, in their private time, when they’re with each other, that they really are given to conversation about how their decisions are being viewed by the country and how the country doesn’t trust or believe in them?

Murray: I do think they do. I mean, I think you see Justice Scalia in like this term and some of the unanimous decisions, he has filed concurrence that really feel more like dissent.

And he is speaking to a group of Americans, a group of constituents, about the loss of credibility of the court. Like he talks on the abortion cases that this court has sort of gone off on sort of an exceptional brand of abortion First Amendment jurisprudence that really is specific to abortion.

And he’s speaking to them and speaking to the concerns that they have. It’s just that he’s on a different wing of the court from some of the other members who are speaking to a completely different constituency.

So they’re both speaking to two different groups of people and, in doing that, they are really reflecting how riven we are over these hot button social issues.

Tavis: I was at a wonderful institution called the Chautauqua Institution just last weekend, literally a couple of days ago, giving a major presentation. And I was joined there by former Supreme Court Justice Sandra Day O’Conner who spoke right after I spoke.

So I had a chance to see her over the weekend and, in preparing for our conversation, I was thinking about the fact that she, if I could put in quotes, “saved affirmative action” at least for the moment with her decision, her point of view on this when she was on the court, which leads me to ask, given what we saw this year, what you make of “race-conscious” policies and this court in the next term or in the next few years.

Murray: So the last really big affirmative action case that the court took on and squarely addressed the question of whether race-conscious admissions offended the Constitution was in 2003 in Grutter vs. Bollinger and Gratz vs. Bollinger. And there, Justice O’Connor, writing for the majority and Grutter, upheld the use of race-conscious admissions in the University of Michigan’s law school program.

Since then, we’ve had two other cases, Fisher from last term on the University of Texas case, and then this term, Schuette. Both of these cases sort of kicked the can down the road. Fisher was sent back to the Fifth Circuit to apply strict scrutiny. The court said that the court below hadn’t applied the right standard of review or hadn’t done it rigorously.

And in Schuette, the decision really wasn’t – or the issue for the court wasn’t really about whether or not affirmative action is constitutional. Rather, it was about whether or not the people of Michigan, through their ballot initiative system, could actually decide this question. So the can is just being kicked down the road and eventually we are going to have a case that comes up.

And that’s the kind of the thing with this court, right? You see the seeds being planted in earlier cases and it’s sort of like a game of chess. Like you’re getting your pieces in position and eventually, in three or four moves down the line, you’re going to checkmate.

Tavis: So you’re much more cosmopolitan and generous than I am ’cause my read of this is they are waiting for the right case.

Murray: I think that’s exactly right. I think they’re sort of laying the seeds and cultivating something that’s going to happen in the future. So, for example, Shelby County last term, really, really interesting decision, a really difficult decision for a lot of people who believe very strongly that the Voting Rights Act is necessary in certain parts of the country to ensure the enfranchisement of racial minorities.

The seeds of that decision were actually sown in 2009 in a smaller case narrowly decided called Northwest Austin Municipal District. It was about a water district in Texas challenging the Voting Rights Act.

The court decided it on very, very narrow grounds, but in doing so, laid the foundation for eventually dismantling the preclearance provisions of the Voting Rights Act in Shelby County.

Tavis: So real quick questions in the minute or so that I have left. What are we learning from the Roberts Court about over-reading narrow decisions?

Murray: So Justice Alito in Hobby Lobby was at great pains to emphasize how narrow that decision was. It was only about these four forms of contraception. It was only about these closely-held corporations. And that’s true, but this is a court that is playing a long game, right? And we have to be cognizant of that.

So, yes, Hobby Lobby is narrowly decided, but the logic of Hobby Lobby, the reasoning of Hobby Lobby, has legs and it’s going to have legs that go far beyond the four forms of contraception that are being objected to, beyond the closely-held corporations that are filing those objections. And this is a logic that’s going to have legs in the future and we’re going to see more of it.

Tavis: And finally, just because I’m curious as to your take on this, given that you happen to be a professor of law who happens to be an African American woman, what do you make of the fact that, as we are in this historical moment where we’re celebrating 50 years of so many seminal pieces of legislation and court decisions, Voting Rights Act, Civil Rights Act, etc., etc., here we are 50 years later with all these major seminal moments in the court being celebrated and yet we now have the most multicultural, multiracial, multiethnic court we’ve ever had.

And for those of us who happen to be more progressive, the decisions we’re getting out of this court pale in comparison to what we got out of a court with nine white males. I was just thinking the other day that’s really fascinating for me. Nine white males advanced the country.

We have a court now that’s more diverse than ever and the decisions coming out of this court are retrograde, retrogressive. You tell me what your thoughts are.

Murray: We are far past the era of the Warren Court. And to be clear, we think about the Warren Court as being this incredibly progressive moment, but the Warren Court was also quite conservative on certain points.

Tavis: Fair enough, fair enough.

Murray: I think this court has been progressive in certain ways, like the cell phone case, Riley, from this term.

Tavis: That’s ’cause they all have cell phones.

Murray: But that’s…

Tavis: All the Justices have cell phones [laugh].

Murray: But that’s – I think there is a degree of empathy in that cell phone case. Like everyone can understand what it would be like, what a violation it would be to have your cell phone searched.

Tavis: But why does the empathy only exist when it comes to something that they – I’m not naïve again. So I get the empathy ’cause they have a cell phone. But where is that empathy on the other issues?

Murray: So I think Justice Sotomayor’s dissent in Schuette, the Michigan affirmative action case, is really telling. I mean, Justice Sotomayor has a completely different background from some of the other members of the court. And, for her, the questions of race really are things that we need to talk about, that we need to talk about as a country.

And in contrast, Chief Justice Roberts chides her. Like he says, like we should stop talking about race so much. Like that’s the best way to get past this. And her response is we have to talk about this. Of course, we must talk about this. This is something that is everywhere in our society and we have to talk about it.

I think one of the reasons why you have such different decisions 50 years ago is that we were in a time when we could talk about this, where there was debate and there was sort of an exchange of ideas on the court, in the country.

Now I think we’re just sort of entrenched in our positions and there’s not a lot of cross-fertilization and you’re seeing that on the court.

Tavis: It’s an interesting irony, especially in the era of an African American president – which is not his issue. It’s not his fault. I’m just saying that it’s just an interesting irony that all this progress has been made and yet, where these decisions are concerned, we seem to be going backwards, but I digress. I’m glad to have you here.

Murray: Thanks for having me.

Tavis: Melissa Murray, professor of law at UC Berkeley, make that Boalt Law School.

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Last modified: July 28, 2014 at 2:09 pm