Reporter: In Court Rulings, Roberts Takes Long-Term Approach

Transcript

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. Last week, the Supreme Court wrapped up its eighth term under John Roberts. The chief justice's patient and methodical approach has allowed him to establish a robustly conservative record, writes my guest Adam Liptak, the New York Times Supreme Court correspondent. We're going to look at some of the major decisions the court handed down this term, including the two decisions last week on same-sex marriage. Liptak has written a new e-book called "To Have And Uphold: The Supreme Court and the Battle for Same-sex Marriage." It will be published by the New York Times July 9.

Adam Liptak, welcome back to FRESH AIR. Before we talk about your e-book and about same-sex marriage, I just want to look at the big picture of what happened this term in the court. You had an article last week headlined "Roberts Pulls the Supreme Court To the Right, Step by Step." In what sense do you think he's pulling the court to the right, step by step?

ADAM LIPTAK: I think he's a young man, only 58 years old, will be on the court for decades, and I see him planting seeds in cases where he may get a large majority, including the court's liberal wing, to sign on to short-term victories today that could result in long-term losses for the left tomorrow.

And the most notable version of that happened just last week, where drawing on language that eight justices, including all four liberals, had agreed to in a Voting Rights Act case, Chief Justice Roberts led the court in gutting the Voting Rights Act, relying on that very language that he had persuaded almost all of his colleagues to join on to four years before.

GROSS: So in what sense do you think that was a short-term victory for liberals in this compromise that could lead to long-term defeat?

LIPTAK: Four years ago, in a case called Northwest Austin, the court was asked to consider the constitutionality of Section 5, the heart of the Voting Rights Act. And in what at the time was called an act of statesmanship by Chief Justice Roberts, he persuaded eight of his colleagues, including four of the liberals, not to rule on the case. But the cost seemed to be that the liberals had to sign on to language agreeing that things had changed in the South, agreeing that there were serious federalism problems with Section 5, agreeing that there's a concept that not everybody agrees that there's a constitutional principle called the equal dignity of the states.

So, all of that language four years ago goes into a decision that at the time upheld Section 5. Four years later, last week, in Holder - Shelby County against Holder, the chief justice drew on that very language that the liberals had agreed to in order to strike down, essentially strike down Section 5.

GROSS: You say Roberts is very adept at persuading the court's more liberal justices to join opinions. What are the powers of persuasion?

LIPTAK: You know, the chief justice, like the rest of them, only gets one vote. So it's a little mysterious. He does have the power, when he's in the majority, as he very often is, to assign who writes the majority opinion. So that's a power. And beyond that, only the justices know their own motives, their own arrangements. But you see surprise after surprise.

For instance in the health care decision last year, the chief justice surprised us on the ultimate result and voted to uphold President Obama's health care law. But in the process he got two of the liberal members of the court, Justices Kagan and Breyer, to sign on to a part of the opinion that made the rollout of the law much more complicated. That's the part of the decision that allowed states to opt out of the Medicaid expansion.

GROSS: So that's a pretty big compromise that you could argue is really underlying a lot of the ability of Obamacare to really have the impact it's intended to have, and it also affects Obamacare financially. Why do you think the liberal justices joined the decision allowing states to opt out?

LIPTAK: It's absolutely baffling to me. At argument, they thought that that proposition was humorous that such a thing would be part of the Constitution's spending clause, that you couldn't require people who take new money to also live within the program looking backwards. So I don't know how to make sense of it except that the liberals were so delighted that the chief justice was ready to uphold the centerpiece of the law, the individual mandate, that they were willing to give him this.

GROSS: And do you think it was, like, an either-or, like either you sign onto this, or no Obamacare?

LIPTAK: I have no inside knowledge.

GROSS: Right.

LIPTAK: If you want me to speculate, I would think it was in the nature of a gift from the left, a thank you present.

GROSS: For not...

LIPTAK: For not...

GROSS: For not finding the health insurance reform unconstitutional?

LIPTAK: For not striking - that's right.

GROSS: If you're just joining us, my guest is Adam Liptak, the New York Times Supreme Court correspondent. And he has a new e-book called "To Have and Uphold: The Supreme Court and the Battle for Same-sex Marriage."

You say this has been a very contentious term for the Supreme Court, with almost 30 percent of the cases by five-justice majorities, compared with an average of 22 percent in recent years. Usually it's Kennedy who's most often in the majority, and then second to him is Roberts, the chief justice.

Everyone is always trying to figure out how is Justice Kennedy going to lean, because the assumption is he's likely to be the swing vote. So has your reading of Kennedy changed in this past term?

LIPTAK: No, Justice Kennedy is a swing justice not in the sense that the term swing would suggest, that he swings back and forth, that he can't make a decision. He's just at the ideological center of the court. But the things he believes, he believes very strongly. And he is the court's most libertarian member. So he believes strongly in individual freedom and states' rights, in the First Amendment. That generally but not always drives him to the right.

There were 16 cases in which there was the classic five-four combination, in which it was either Kennedy plus four liberals or Kennedy plus four conservatives. In 10 of them, he leaned right; in six of them, he leaned left. And that's about in keeping with his voting in earlier terms.

GROSS: He's 76, and you think he's trying to create his legacy in the Supreme Court. What do you think he wants his legacy to be?

LIPTAK: Well, he is - he's done a couple of big things, but he is now the justice who has created the gay rights movement in the American courts. He was the author of all three major gay rights decisions over the years, including one exactly 10 years before the case striking down the Defense of Marriage Act. Lawrence v. Texas 10 years ago struck down a Texas law making gay sex a crime.

Now Justice Kennedy has written a decision striking down a federal law that denied benefits to married same-sex couples. He will be remembered in history as a path-breaking justice in the area of gay rights. He's also done substantial work in limiting the death penalty, again a fairly liberal project. But he was also the author of Citizens United, the much criticized decision allowing unlimited corporate spending in elections.

GROSS: Looking more at the big picture of this term at the Supreme Court, civil rights, how did - what direction did civil rights decisions head in?

LIPTAK: So this is a court that's committed to a version of equality but maybe not the version that everyone would sign on to. It's a version that's fairly mechanical and formal. It says the government should treat everybody the same and put aside history, put aside contemporary circumstances, put aside context, and that means that in affirmative action the court is more inclined to say listen, just treat the white kid like you treat the black kid and decide if he gets into college.

Treat the Southern state like you treat the Northern state, notwithstanding the history of discrimination in voting in the South, the same. And treat same-sex couples and opposite-sex couples the same. So there is this kind of through-line of a version of equality. There's also, in the Defense of Marriage Act case, the case striking down the federal law, denying benefits to same-sex couples, a sense that if the government goes out of its way to single out a group to be demeaned and degraded and shunted off from society, the court will step in.

Bt if everyone is merely being treated the same on a superficial level, then that's fine.

GROSS: OK, so you're saying that the court has been taking decisions out of historical context in civil rights. But in the DOMA decision, Justice Alito argued that same-sex marriage was even newer than cell phones, so we should wait for more information. So isn't that about trying to put it into context and say we don't know yet enough about the historical - you know, what a change in the historical direction would mean, so let's slow down on this.

LIPTAK: It says exactly that, but it says that from someone in dissent. So that would still be consistent that the majority, at least...

GROSS: Sure, right.

LIPTAK: Is ready to do this in a historical way.

GROSS: But he probably voted on the majority decisions in terms of the civil rights thing, saying let's take this out of context, not look at the history of race and slavery in the U.S. and just look at it now. So do you think he's playing both sides on that?

LIPTAK: You could say that about just about every justice on the court except for Justice Kennedy. Almost all of the justices in a certain sense are talking out of both sides of their mouth. Some of them are saying it's a terrible blow not to defer to Congress in its decision to have the Voting Rights Act. But those same justices are saying we're perfectly ready to override Congress in how it decided to enact the Defense of Marriage Act.

So, you know, you can try to harmonize these decisions all day long, and there may be theories that allow you to make them consistent, but there's an ideological component, as well. And so the right won on the Voting Rights Act, and the left won on the Defense of Marriage Act.

GROSS: Getting back to the kind of compromises that you say John Roberts helped organize this term, and in previous terms as well, is there a real, like, if you give me this, I'll give you that that goes on, as kind of like trading to work out a compromise language, kind of like legislation?

LIPTAK: The justices adamantly deny that, and I believe them. I don't think there's horse trading. I don't think there's I'll give you my vote today if you give me your vote tomorrow. That said, there are probably decisions, and not a few of them, on which many of the justices could go either way, don't care about it deeply, could be persuaded to go either way and might for various reasons, partly in order to keep good relations with one another, partly because they all of them care about the reputation of the court, to simply go along with what the majority wants to do, and that may pay dividends in the future both in individual cases and for the reputation of the court.

And it's important to say, Terry, that you're quite right that this was a very contentious term in terms of five-fours, very high, at almost 30 percent by historical standards. But it was also an extraordinarily harmonious term in terms of unanimous decisions, where almost 50 percent of the decisions were unanimous.

So you do have two things going on at once.

GROSS: When you say a lot of the decisions were unanimous, are those mostly, like, technical decisions, where anybody who knows the law would know that this can't hold?

LIPTAK: I'd put them in two categories, and I wouldn't - one category I'd characterize pretty much as you just did, or cases where the stakes are so small it almost doesn't matter what the answer is, you just have to have a rule that people will then follow. So there is a category of cases which truly are trivial.

But there were some fairly big cases, too, like the question of can a human gene be patented. They agreed nine-nothing that at least an isolated human gene cannot be patented. That's a big decision. They agreed that a farmer who wanted to save seeds from patented Monsanto soybeans, genetically altered soybeans, could not do so, nine-nothing. That's a pretty big case.

They sometimes when nine-nothing on cases where they were divided on the rationale, they would have - they have a very different thinking about why they got there, but in a major case about whether corporations can be sued for human rights abuses abroad, again nine-nothing. So it's not the case that every single one of the unanimous cases is a minor case.

GROSS: I thought it was interesting that Justice Thomas wrote the opinion for the genetic patenting case.

LIPTAK: Yes, Justice Thomas because he's so idiosyncratic, very seldom gets assigned a major case, and that may be the biggest case he ever wrote. And it was possible for him to write it because it was on an area where his views on originalism(ph) and so on didn't really come into play, and he could write for a majority.

And there was a - you know, there was a funny little concurrence from Justice Alito saying sounds right to me, but I don't really understand this science, so I'm telling you I - the general result sounds correct, but the science may be off.

GROSS: If you're just joining us, my guest is Adam Liptak. He covers the Supreme Court for the New York Times. And now he has a new e-book called "To Have and Uphold: The Supreme Court and the Battle for Same-sex Marriage." We'll talk about that book in a few minutes. First we take a short break; this is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: My guest is Adam Liptak, he's the Supreme Court reporter for the New York Times and author of the new e-book "To Have and Uphold: The Supreme Court and the Battle for Same-sex Marriage." And before we talk more about same-sex marriage, we're looking at the big picture of this term in the Supreme Court. How would you describe this term in terms of business-related decisions?

LIPTAK: This court is the most pro-business court since at least the second world war. And it routinely votes in favor of business in cases on arbitration, class actions, employment discrimination, injuries from dangerous drugs. The business community, the Chamber of Commerce, loves this court. If you look at all of the justice who have served in that period of time since the second world war, the two most likely to vote in favor of business are the two justices appointed by President George W. Bush: Justice Alito and Chief Justice Roberts.

GROSS: What was one of the big business decisions, pro-business decisions in the court this term?

LIPTAK: Well, the court is really going out of its way to make it hard to file class actions. And so maybe the biggest class action case was called American Express against Italian Colors, where simply by having a business' customers sign one of those boilerplate agreements that you get at a car rental counter or when you buy a cell phone, you can make people sign away their rights to join together in a class action.

And that has profound consequences because without a class action vehicle, somebody who's been injured for, let's say, three bucks is never going to sue. But a million people injured for three bucks would certainly sue. But that - you need that mechanism to vindicate those rights.

GROSS: That makes me wonder, you know those like, super-long agreements that you have to X and say yes, you agree, when you buy a new app or, you know, any new program on your computer, and I don't think anybody reads that. I don't think anybody's expected to read it. You just scroll to the bottom, you check yes, and you move on.

I wonder, like, what's in there that we're signing away that we don't know about that's going to come to court sometime in the future?

LIPTAK: Nothing good, Terry.

(LAUGHTER)

LIPTAK: And this court has made it clear that they will view that contract as an authentic, bargained-for, meeting-of-the-minds contract of the kind that they taught us about in law school. So that gives you a flavor for just how well business is doing in this court.

GROSS: So has one of those agreements actually come to the court yet, one of those just like X on the computer?

LIPTAK: Yeah, no there - a couple of terms ago there was a cell phone contract case, which was just that kind of agreement.

GROSS: Wow, so are we - are we kind of giving away our rights to class action suits in those, too?

LIPTAK: Yes, that - any smart business today puts in a clause that says you must arbitrate, and you can't join up with other people to do so, you can't do it in arbitration, you can't do it in court, you're on your own.

GROSS: And nobody knows they're giving this up, I presume?

(LAUGHTER)

LIPTAK: Maybe some of them do now.

GROSS: Right, OK. But of course if you don't agree to that, you can proceed and use it, you know.

LIPTAK: Yeah, it's a take-it-or-leave-it contract. It's what lawyers call a contract of adhesion.

GROSS: And those are legal?

LIPTAK: It wasn't universally thought to be so, but we're sure moving in that direction.

GROSS: It's interesting, you know, in a court that you describe as, you know, the most pro-business court since World War II, that corporations now will not be allowed to patent human genes. So do you think that that kind of goes against the pro-business direction of the court, or do you see that as being a separate issue?

LIPTAK: I would put patent cases to one side because very, very often there are businesses on both sides. So it's - you can call it pro-business, you can call it anti-business. A business is winning either way.

GROSS: Right because if one business gets the patent, that's great for that business, but it's bad for the other businesses that want to use that gene or work with that gene.

LIPTAK: That's right.

GROSS: I see what you're saying, OK.

LIPTAK: Whereas the other major patent case of the term was indisputably a very-good-for-Monsanto decision, allowing it to protect its genetically altered soybean seeds against patent infringement in the following way: Farmer plants seeds, farmer harvests seeds, farmer save seeds, farmer does what farmer has done since the beginning of time, and that was said to be patent infringement.

GROSS: So a farmer can't plant the seed from a Monsanto genetically engineered product?

LIPTAK: That's right.

GROSS: I mean the seed that grows after the first planting.

LIPTAK: The second generation.

GROSS: The second generation, thank you.

(LAUGHTER)

GROSS: Adam Liptak will be back in the second half of the show. He's the Supreme Court correspondent for the New York Times. His new e-book, "To Have and Uphold," about the Supreme Court and the battle for same-sex marriage, will be published July 9th. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. I'm Terry Gross back with Adam Liptak, the Supreme Court correspondent for The New York Times. We've been talking about some of the major decisions the court handed down in the term that ended last week - the eighth term in which John Roberts has served as chief justice.

Adam Liptak was in the court when the justices issued their two decisions on same-sex marriage. He's written a new e-book about the Supreme Court and the legal battle over same-sex marriage called "To Have and Uphold." It will be published by The New York Times July 9th.

So let's look at these two big same-sex marriage cases that came before the court this term. Let's start with Proposition 8. Now David Boies, who's liberal and Ted Olson, who's conservative, and who argued opposite each other in Bush v. Gore, they came together and they wanted this decision to not only overturn for good Proposition 8, which made same-sex marriage illegal in California, but they wanted a ruling saying that same-sex marriage was constitutionally legal and that it was constitutionally - it violated the Constitution to outlaw same-sex marriage.

But that's not what happened. What did happen?

LIPTAK: So in 2009, Olson and Boies filed this very ambitious suit. They did it right after California voters in Proposition 8 banned same-sex marriage in California, and they made a claim that was big, and that made a lot of other gay-rights lawyers nervous. They said the Constitution requires that states - all states, Mississippi, every state - have same-sex marriage, and that they were going to take this case to the Supreme Court. They won at trial. At trial Judge Vaughn Walker struck down Proposition 8. They won in the appeals court - the Ninth Circuit in San Francisco - although on an fairly idiosyncratic ground - that struck down Proposition 8, but only in California.

And then they get to the Supreme Court. And the Supreme Court basically ducks the issue, says - on standing grounds, which we can talk about later, if you want - that it can't decide the issue. That has the practical effect of a big, big victory. As a practical matter, that meant that marriages - same-sex marriages in California - could resume. And so it was a victory for Olson and Boies, but it wasn't the victory they were looking for. And they are still hard at work trying to figure out how to get the next case to the Supreme Court that would decide that ultimate question, which we didn't get an answer to: what does the Constitution have to say about same-sex marriage?

GROSS: Can you explain why the Supreme Court said that the people challenging the lower court decision - the people trying to uphold Proposition 8 and outlaw gay marriage - why those people had no standing?

LIPTAK: So the Supreme Court and all federal courts only decide cases where the parties involve have been directly hurt in some way. You can't go to court and say, geez, I'm only interested in the following question. Would you answer for me whether the Constitution, you know, does this or that? The court only decides, as the Constitution says, actual cases or controversies. And there was no question that the trial court when two couples, represented by Olson and Boies, sued California state officials wanting to get married that there was a standing there. But once they won and once California state officials said we're not going to appeal, it wasn't clear that anyone had a right to appeal. Nonetheless, the proponents of Proposition 8, the people who put the ballot initiative on the ballot, said we're going to step into the shoes of California, we're going to file the appeal. And what the Supreme Court said was they hadn't suffered a concrete injury. They were just citizens of California like anybody else and they couldn't come to court to ask for essentially an advisory opinion, and that only California state officials had the right to represent California state officials.

Now, you know, that may sound pretty much right, at least as I told it just then, but consider the opposite. It also suggests that the voters of California felt strongly enough to put into the state constitution a ban on same-sex marriage, and simply because the governor decides not to appeal, their votes didn't count. So there's an element in the Prop 8 case which is probably very disheartening - at least in an abstract level - to people who support direct democracy in California.

GROSS: I'm wondering why the Supreme Court took the case. I can't say I still understand that. If they thought the people taking it to the court had no standing, why didn't the courts say, you have no standing so we're not going to take it?

LIPTAK: Terry, the more I think about it the less I understand it. My going-in theory - and I'm not alone - was that the court had to take the Defense of Marriage Act case. Two federal courts had struck down a federal law. That's going to go to court. Why they also took the more ambitious Proposition 8 case is very confusing. My best guess is that the conservative wing of the court thought that this was their last best chance to get Justice Kennedy's vote. That once Justice Kennedy wrote the Defense of Marriage Act case, as he turned out to, and dug himself into a logical and rhetorical hole from which he would never emerge, he would be lost when the actual constitutional question got to the court. So better to make him try to decide both cases right away and maybe split the baby. It's not that they thought they would win on the merits necessarily, but that they didn't think their situation would get any better. That theory is not easy to reconcile with the votes we got in the end on the standing question. But the standing question was one question among many, so it's very hard to make sense of what the logic of it was.

Certainly, the argument in the Proposition 8 case, over and over again justices, the liberals and Kennedy and the chief justice said, why did we take this case? Why do we have to decide this case? And they were looking for an exit ramp and they found one, or at least five of them did on standing.

GROSS: Why did they take the case?

(LAUGHTER)

GROSS: I mean...

LIPTAK: That's the question.

GROSS: All right. OK. So, you know, with Sotomayor voting in the minority, she voted in the minority because she thought the question should be decided on constitutional grounds. And I think what she probably wanted was to say gay people have a constitutional right to marriage, that marriage equality should be a constitutional right. And she probably could afford to vote against the majority in the Prop 8 decision only because she knew that she wasn't going to get that constitutional right right now in that decision, and she knew that there was already a majority saying there's no standing in this, so the lower court decision holds. Is that your reading?

LIPTAK: Yeah, I think that's a very astute analysis, Terry. I think that if she had to vote the other way to avoid a decision on the merits that she would not like she certainly would've voted the other way.

I should say just to be clear that there's a weird procedure at the court, where it takes four votes to agree to hear a case and five votes decide it. And the moment you start thinking about that you see how there could be a real weird gap there, where four people can put something on the agenda that five people don't want to decide, and I think some version of that happened here.

And the other point I might make is that the four dissenters in Prop 8, the ones who said they thought the court should give an answer, as your question suggests Terry, they would not have given the same answer. So Thomas and Alito would certainly give the answer that there is no constitutional right to same-sex marriage. Sotomayor almost certainly would give the answer that there is a constitutional right to same-sex marriage. And likely, but not certain, Justice Kennedy would've said the same thing.

GROSS: But that wouldn't have given the constitutionality - there is a constitutional right, a majority? If Kennedy and Sotomayor...

LIPTAK: Yes. If...

GROSS: ...voted for constitutional right.

LIPTAK: Right. If Justice Kennedy was prepared to go that far I don't think the left would have abandoned him. It was clear at the argument that Kennedy did not want to decide. But - and this gets awfully complicated - but nor did he want to do damage to the California initiative process. So the justices often have to operate in a kind of three dimensional chess across several dimensions at once to do the least damage to the things they care about while also pursuing their larger goals.

GROSS: And who were the four justices who decided to hear the case?

LIPTAK: We don't know and we probably won't know for decades. My best guess continues to be that it was the four conservatives.

GROSS: Because they thought things would only get more liberal on this issue as time went on, so they wanted to have a decision now?

LIPTAK: Yes. If they were ever going to get a decision that said the Constitution has nothing to say on this issue, this is an issue for the states only, they were much more likely to get that in 2013 than in 2015 or 2020. The law and public opinion and the number of states having same-sex marriage is moving extraordinarily fast and the court doesn't get very far out of step with the American public.

GROSS: My guest is Adam Liptak, the Supreme Court correspondent for The New York Times. He's written a new e-book about the Supreme Court and the battle over same-sex marriage called "To Have and Uphold." We'll talk more after a break.

This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: If you're just joining us, guest is Adam Liptak, and he covers the Supreme Court for The New York Times. And now he has a new e-book called "To Have and Uphold: The Supreme Court And the Battle for Same-Sex Marriage."

Well let's get to the Supreme Court, DOMA, decision. And the Supreme Court struck down the part of that law that says that the federal government won't recognize same-sex unions. That, you know, a state can, but the federal government won't. So now the federal government is recognizing marriage equality and that means there will be benefits and, you know, marriage tax breaks and so on for gay couples. So it's a huge victory for gay people who want to marry and for gay rights in general.

What is the language in that - the specific language in that - that you think is going to have the strongest influence on the future of gay issues in the courts?

LIPTAK: So this decision delivers benefits to people married in the 13 states that now allow same-sex marriage. It doesn't do anything in the other states. But it has language in it that really resonates. It says discriminating against gay couples who want to marry demeans them and humiliates their children. Now, you know, that's a punch in the gut. That's language that Justice Kennedy wrote from the heart and it's in keeping with a trend in public opinion. So I can certainly imagine in more liberal states judges adopting just that language to strike down bans on same-sex marriage. Of course, there will also be challenges in state legislatures. There will be challenges at the ballot box. And we will probably in short order have many more states with same-sex marriage than just the 13 we have now.

GROSS: Was the language you quoted the language that Justice Scalia cited that said, you know, this is really going to, you know, what was the language you used? That it was going to hurt...

LIPTAK: It was going to demean, humiliate. Yeah. He said once you're talking in those terms you can't be on the other side. You will be made to seem - I think I'm paraphrasing pretty closely - an enemy of human decency. So he knows that this is a situation in which Justice Kennedy has basically drawn a line where there are right-thinking people on one side and bigots on the other, and he's telling you make a choice.

GROSS: So the test case for DOMA was about Edith Windsor, who had been with the woman who she eventually married since, I think it was like 1977.

LIPTAK: Many, many decades.

GROSS: Yeah.

LIPTAK: A lifelong love affair.

GROSS: And they married when they could, when it was legal. But when Edith Windsor's spouse died, she had to pay this huge tax on the estate that she wouldn't have had to pay if their marriage was federally recognized. And so that became the test case. Why was that the test case? I'm sure there were others who wanted to be the test case. There were probably, I'm sure there were probably discussions within the gay-rights movement about which case would be the best case take before the Supreme Court to challenge DOMA.

LIPTAK: Well, there were at least four cases jockeying to get to the court first. Gay-rights advocates should have been very happy that the court chose this one because Eddie Windsor is such a sympathetic figure and the notion that a married couple should have to pay $360,000 in estate taxes that a straight married couple would not offends a lot of people sense of fairness.

The main reason - a main reason - the court chose this case as opposed to some others, is that Elena Kagan had been the federal government's top appellate lawyer, its solicitor general, and had something to do with some of the cases - including one out of Boston - and that channeled the court toward this case. And it's probably just as well because if you do the math, if Kagan hadn't been able to sit on the Windsor case, it would have been a 4-4 tie, and that just automatically affirms whatever happened in the appeals court without reasoning, and that's not what we want from our Supreme Court.

GROSS: The governor of California, Jerry Brown, refused to defend Proposition 8 when it reached the Supreme Court. President Obama didn't want to, you know, refused to defend DOMA when it reached the Supreme Court. What impact do think that had on the decision?

LIPTAK: Well, Jerry Brown did a little more than the federal government did. Jerry Brown didn't even file an appeal, and that's what - that's basically the reason that the case went off the rails. The Obama administration did something a little bit different. It continued to enforce the Defense of Marriage Act. It went to court to argue that even though it was enforcing it, it thought the law was unconstitutional and should be struck down.

But every step of the way, it did file an appeal to make sure that the court had jurisdiction to decide the case. But in general, both men did something very unusual. The ordinary job of the Executive Branch is to execute the law. It's to enforce the law. It's to argue for the constitutionality of the law, and each of them did something that, you know, some people criticized them for, which is to say that they were acting in a sort of lawless fashion and not doing the job to which - it's ordinarily their job. They would say, I think, that they have an independent duty to assess the constitutionality of laws, and they came to the conclusion that these laws were unconstitutional.

GROSS: So, there are a lot of still-to-be-worked-out impacts of the DOMA decision. So what are some of the ripple effects you see it having now?

LIPTAK: The easy question is if you're married in a state that allows same-sex marriage, and you live in that state, you will now get the whole array of federal benefits: tax breaks, Social Security, if you're a federal employee, healthcare and so on. The harder question - although I think I know the answer - is: What if you're married in Massachusetts, but move to Mississippi?

There are some federal laws that seem to say it's whether the state you live - not the state where your marriage was celebrated - that counts for purposes of are you legally married. But I think the administration is working hard to try to make sure to deliver benefits to anybody whose marriage comes from a state where it was lawful.

GROSS: In order to do that, does the administration need an executive order or legislation? What does it take?

LIPTAK: It will vary. Most of it will get done by executive order. There may be the odd case involving, I don't know, immigration, where only legislative relief will count. But the administration has made clear that it's going to do whatever it can in its power to make sure that lawful same-sex marriages count for purposes of federal benefits, in as broad an array of settings as it can manage.

GROSS: In 2003, when the sodomy laws in Texas were declared unconstitutional by the Supreme Court, Justice Scalia - who was in the dissenting part of the court - said that this decision would probably lead to the legalization of same-sex marriage. OK. So here we are now, closer to marriage equality. Did that - the decision on the Texas sodomy laws have anything to do with that? Or was that just another indication of the way the country is moving?

LIPTAK: Justice Scalia is - he's got a boy-who-cries-wolf quality to him. He does an odd thing in his dissents. He did it 10 years ago in Lawrence v. Texas. He did it last week in the DOMA case. He makes the case even worse for his side than it was. So, 10 years ago, he says the logic of this decision would require same-sex marriage. At the time, no court had recognized same-sex marriage, and I think he was trying to make a rhetorical point, saying look how absurd this is.

But his - that decision and his dissent was cited by courts that later did recognize same-sex marriage. So he turned out to be right. I don't think he wanted to be right. He turned out to be right. Now, in a very similar move, he says that the logic of the Defense of Marriage Act case applying to a federal law would also apply to state bans on same-sex marriage.

Again, I don't think he wants to be right, but he's going to make it more likely that he's right by banging the drum on that point.

GROSS: What effect do you think the Prop 8 decision is going to have on other states?

LIPTAK: Prop 8, let's be clear, is, in a way, a little bit of a dud. It makes no doctrine. It sets no precedent. It will be of interest to standing law scholars, which is to say very small subculture of the legal academy. All it does is do something practical, which is return marriage to California. Now, that's a big practical thing, but it's not a decision that's going to be cited. It's a consequence, an on-the-ground consequence that will make same-sex marriage more widely accepted, adopted, and it will help people who are on the fence come to a conclusion about whether there's any problem, you know, whether this does harm to straight marriages, whether anything negative flows from it.

So Prop 8 is not an important legal decision. The Defense of Marriage Act case is a very important legal decision, and that's where the legal firepower will come from.

GROSS: Adam Liptak, it's always a pleasure to have you on FRESH AIR. Thank you so much for talking with us.

LIPTAK: Really nice to be back, Terry. Thank you.

GROSS: Adam Liptak is the Supreme Court correspondent for the New York Times. He's written a new e-book called, "To Have and Uphold," about the Supreme Court and the legal battle over same-sex marriage. It will be published next week. You'll find links to some of his recent articles on our website, freshair.npr.org. Coming up, Maureen Corrigan recommends a new mystery novel by Sara Gran, her second featuring post-punk private eye Claire DeWitt. This is FRESH AIR. Transcript provided by NPR, Copyright NPR.