BROOKE GLADSTONE: From WNYC in New York, this is On the Media I’m Brooke Gladstone,

BOB GARFIELD: And I’m Bob Garfield. This past week was, as NPR’s Supreme Court Correspondent Nina Totenberg tweeted, quote, “the end of the world as we know it.” Justice Anthony Kennedy, for years the ideological center of the High Court and occasionally its high-profile swing voter, informed President Trump of his decision to retire. For progressives, it was clear, the center would no longer hold.

[CLIPS]:

MAN: In 1992, Anthony Kennedy’s vote saved Roe v. Wade.

MAN: You could have more restrictions on voting rights claims, employment discrimination claims.

SEN. BERNIE SANDERS: Everything to do with women’s rights, having to do with gay rights, having to do with solidifying the pro-corporate, anti-worker wing of the Supreme Court.

JOY BEHAR, THE VIEW: What happened to separation of powers? What happened to checks and balances in this country? Gone, gone!

[END CLIP]

BOB GARFIELD: Some noted that Justice Kennedy’s reputation as defender of liberalism and civil rights was rather overstated. His vote did determine the decision to legalize same-sex marriage but it also clinched the decision to subject our elections to unprecedented corporate influence, that is, Citizens United. Another historic Kennedy call, his concurring opinion this past week in Trump v. Hawaii.

[CLIP/PEOPLE CHANTING]:

FEMALE CORRESPONDENT: It is a 5-4 decision authored by Chief Justice John Roberts. He says the proclamation that’s Travel Ban 3.0 is squarely within the scope of presidential authority under the INA.

BOB GARFIELD: Yes, he stood with his conservative colleagues, although he did add to his opinion this, “An anxious world must know that our government remains committed always to the liberties the Constitution seeks to preserve and protect so that freedom extends outward and lasts.”

Alas, the handwringing following Kennedy's resignation betrays broad fears of a very different outcome. Adam Serwer is a senior editor for The Atlantic. Adam, welcome to OTM.

ADAM SERWER: Thank you for having me.

BOB GARFIELD: Donald Trump’s travel ban got the go-ahead from the Supreme Court because, as Chief Justice John Roberts put it in his decision, quote, “the text says nothing about religion.” Well, that’s true but there’s also nothing written on a shotgun shell about blowing someone’s head off. Is literalism a legal standard?

ADAM SERWER: There’s actually a long history of the Supreme Court deciding that something, even if it has the effect of discriminating against a particular group of people, is not discriminatory unless that intent is stamped in the document, regardless of the larger context in which that piece of legislation was passed.

BOB GARFIELD: But if text is the only measure of intent, as you pointed out earlier in the week, the Court could be upholding Jim Crow laws, nothing in there declaring blacks to be lesser humans or second-class citizens.

ADAM SERWER: Right, some Jim Crow laws. So specifically, you know, one of the things I mentioned was the Grandfather Clause, which conveniently said you can only vote if your grandfather could vote in this period. And what that meant, essentially, was that there was a cutoff point after which you couldn’t vote. Now, it didn’t say black people couldn’t vote. In fact, it didn’t actually technically prevent all black people from voting, since there were some free black people who would have come in under the line. But by Roberts’ logic, there’s nothing racist about this cornerstone of voter suppression under Jim Crow.

BOB GARFIELD: In a 2007 case involving school desegregation, Justice Roberts penned what amounts to, like, a personal legal mantra. He wrote, quote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” He’s also ruled against ongoing federal intervention in protecting minority voting rights. acknowledging the problem -- he says, yeah, that's, it's an issue -- but arguing there's no equitable constitutional remedy. And now he says a discriminatory law, whose motivation is clear by a vast collection of the president's own words, cannot be overturned, unless the text of the law confesses its own discriminatory intent. I’m seeing a pattern here.

ADAM SERWER: Yeah, I would say that the more honest version of Justice Roberts’ famous line is that the way to stop discriminating on the basis of race is simply to pretend that discrimination on the basis of race is not occurring. Roberts never says, oh, I don't care that these laws discriminate. What he says is, the federal government has simply exceeded its powers in this realm. What Roberts has in common with that approach to racial discrimination he shares with the post-Reconstruction era Supreme Court, which consistently ruled against laws that were meant to protect black rights, not on the grounds that black men had no rights that a white man was bound to respect, rather they simply said that the federal government was exceeding its powers and, therefore, the laws were unconstitutional.

BOB GARFIELD: During the oral arguments and in their decisions, what did the Court, the majority, in this case, make of the just vast amount of presidential rhetoric and that of his proxies that made very clear that this immigration action was, indeed, intended to be a Muslim ban? I mean, just for example this is Trump himself after signing the first version of the travel ban.

[CLIP]:

PRESIDENT DONALD TRUMP: This is the protection of the nation from foreign terrorists entering into the United States. We all know what that means.

[END CLIP]

BOB GARFIELD: Well, we do all know what that means. It means keeping Muslims out. Justice Sotomayor pointed to that moment, among many, many others, in her dissent, but still the Court's majority managed to be blind to everything. How did they reconcile that?

ADAM SERWER: For one thing, they said, oh, the ban doesn't apply to every majority Muslim country in the world, so it's really not fair to say that it's rooted in anti-Muslim animus. And what Sotomayor’s dissent said was that essentially that you guys are kidding yourselves, that it's actually quite clear that this was intended this way.

Part of what's interesting about this is that the decision overturns Korematsu, the decision justifying Japanese internment during World War II, as rooted in animus. But the Korematsu decision was justified on the grounds that this was necessary for national security and something similar has happened here. The Court has said, you know, this is a national security decision and the Executive gets deference in this area, and it's obvious, based on how the, the order doesn't mention Islam, that this is not actually rooted in animus in the way that the Korematsu decision was. But the logic is actually very similar.

BOB GARFIELD: Roberts and his conservative colleagues on the Court had scrutinized the travel ban using what the Court calls rational basis review. This imagines a reasonable observer who they believe, in this case, would hear all of the president’s rhetoric and still not see an anti-Muslim animus. Who gets to decide whether this observer is reasonable, as opposed to oblivious?

ADAM SERWER: The Court applied rational basis scrutiny and determined that, you know, since the government has a rational basis in trying to prevent terrorism the government should be deferred to in this case. But I think the more disturbing thing is that Roberts has essentially drawn a roadmap for the Trump administration to turn the president’s prejudices into law because what he, what he said is that if you don't mention the group that you’re discriminating against then you can do pretty much whatever you want, even if everybody knows that what you're doing is motivated in animus. What that means is that this case, though, for obvious reasons, it's been seen as a thing that primarily affects Muslims, is actually going to affect many, many more people as the Trump administration continues to pursue its agenda.

BOB GARFIELD: But its decisions aren't necessarily immutable. Is there a chance that this ruling will somehow become undone in my lifetime?

ADAM SERWER: Look, I, I just want to be clear about something. The implications of a monopoly on the Court are tremendous. In the aftermath of Reconstruction, the Supreme Court dismantled every major effort to legislate racial equality in the United States and, in doing so, they helped construct the edifice of Jim Crow that lasted for about a century. So the potential here is really that the Trump administration makes a mark on the United States of America for decades to come. It really should not be understated.

BOB GARFIELD: One last straw to grasp at is that all of these decisions which seem so retrograde to me are the result of a legitimate ideological question rooted in the, the Framers’ intent and that they are not intrinsically racist but just part of the ebb and flow of political ideology and that when push comes to shove, even the conservative jurists, notwithstanding their record to date, will somehow do the right thing.

ADAM SERWER: Well, I would say that they think that they are doing the right thing for society. They think that they're doing their jobs. They’re upholding the Constitution. And they’re going to continue to do that [LAUGHS], no matter how absurd or discriminatory or wrong it feels to their liberal critics.

BOB GARFIELD: Adam, thank you.

ADAM SERWER: Thank you for having me.

BOB GARFIELD: Adam Serwer is a senior editor at The Atlantic.

BROOKE GLADSTONE: To quote Nina Totenberg, once again, on Tuesday she tweeted that without audio of today’s announcement, there is no way to replicate Sotomayor’s fury in a 20-minute dissent from the bench re: today’s travel ban decision. The justices have spoken many times over the years, explaining their views rejecting same-day audio and cameras in the courtroom, so back in 2015, OTM producer Jesse Brenneman composed a song using the justices’ own words.

[SONG]

JUSTICE: Television in court.

JUSTICE: I was for it when I first joined the Court and switched and remained on that side of it.

JUSTICE: I do not believe the purpose would be to educate the American people.

JUSTICE: It will alter the way in which we hear our cases, the way in which we talk to counsel, the way in which we use that precious power.

JUSTICE: Please don’t introduce into the dynamic, the temptation, the insidious temptation to think that one of my colleagues is trying to get a sound bite for the television. We don’t want that.

JUSTICE: Please, Senator, we don’t want that.

JUSTICE: Please don’t introduce the temptation, the insidious temptation

JUSTICE: Television in the court.

JUSTICE: The way in which we use that precious, precious power.

JUSTICE: Television in the court.

JUSTICE: We’ll have to talk together.

JUSTICE: We don’t want that.

JUSTICE: Television is the court.

JUSTICE: I think that would be a terrific thing.

JUSTICE: Please don’t introduce the insidious temptation -- trying, trying, trying to get a sound bite for the television…

[END CLIP]

BOB GARFIELD: Could you argue the opposite position?

JUSTICE: I could make a lot of points for educating the public.

JUSTICE: If the American people watched our proceedings gavel to gavel, they would never again ask, Judge Scalia, why do you have to be a lawyer to be on the Supreme Court?

JUSTICE: When you see what happens, it’s an inspiring sight, all nine justices so prepared, so smart, so thorough, really seeing government at work.

JUSTICE: If a million people could have seen that oral argument, that would be wonderful.

JUSTICE: I have had positive experiences with cameras.

JUSTICE: It seems somewhat perverse to exclude the television.

JUSTICE: I don’t see any problem with having proceedings televised.

[END CLIP]

BROOKE GLADSTONE: So it sounds like you all -- changed your minds.

JUSTICE: The day you see a camera come into our courtroom, it’s going to roll over my dead body.

JUSTICE: Regular appearances on TV would mean significant changes in the way my colleagues could conduct their lives. My anonymity is already gone.

JUSTICE: …most of the American people would see 15-second takeouts and those takeouts would not be characteristic of what we do. They would be uncharacteristic.

JUSTICE: Yeah, now what we see is an article in a newspaper that’s out of context…

JUSTICE: That’s fine, and people read that and they say, well, it’s an article in a newspaper but somehow when you see it live, see it live, an excerpt live, it has a much greater impact.

JUSTICE: Television in the court.

JUSTICE: Over my dead body.

JUSTICE: Good for the public.

JUSTICE: Television in the court.

JUSTICE: That would be wonderful.

JUSTICE: We don’t want that.

JUSTICE: Television in the court.

JUSTICE: My anonymity is already gone.

JUSTICE: It means I’d have to get my hair done more often, Senator Specter.

[LAUGHTER]

SENATOR SPECTER: Let me commend you on that last comment.

[LAUGHTER][END CLIP]

BROOKE GLADSTONE: Jesse Brenneman who composed the last piece is hilarious, kind, a forever-young old soul, someone you are so grateful you got to hang out with for a few years. Now, like Mary Poppins, he’s flying off this week to move back to his home state of Montana. Yeah, I know, she wasn't from Montana. We’ll miss you, Jesse. Hot pie forever!

BOB GARFIELD: Godspeed, young man. We will miss you. This is On the Media.

[PROMOS]