Adam Liptak
Appearances
The Daily
A Constitutional Crisis
We don't know, of course, exactly what case will reach the court and exactly how the court will think about it. I think the court will be very scared of, alert to the possibility of a constitutional crisis, of a pure impasse. So my guess, Michael, is that the court is going to try to find a case where, in a splashy way,
The Daily
A Constitutional Crisis
It rebukes Trump, rules against him, but ideally in a case where the president can't really disobey the court's judgment. And birthright citizenship is the classic example of this.
The Daily
A Constitutional Crisis
It's just a logistical nightmare. It requires Trump to essentially instruct every hospital administrator in the nation about how to track the citizenship of every newborn. It's hard enough to do if you had the law at your back. In the face of a Supreme Court judgment, it becomes really hard to imagine.
The Daily
A Constitutional Crisis
I guess I can think of lots of examples, but why don't we talk about USAID? The president wants to do away with that. The court says, you can't do that on your own. You can go to Congress. But you are not authorized, Mr. President. to disobey Congress's instructions about the existence of, and the nature of, and the spending of that agency.
The Daily
A Constitutional Crisis
And Trump, let's posit, says, I disagree, and shuts the agency down anyway. The court doesn't want to find itself in that situation. The court has always, through its entire history, been very sensitive to the idea that it's not really clear why we do what it tells us to do. They don't have an army. They don't have the power of the purse.
The Daily
A Constitutional Crisis
They have this kind of fuzzy thing we call legitimacy and authority. And they're very wary of that being undermined. And all it takes is for the president one time to say, as Andrew Jackson did say, apocryphally, The chief justice has made his decision. Now let him enforce it.
The Daily
A Constitutional Crisis
I think you would get some motivated reasoning from justices who probably wouldn't put this at the forefront of their minds and but would talk themselves into thinking, well, maybe we rule for the president here. Maybe it's not such a bad thing.
The Daily
A Constitutional Crisis
And somewhere, you know, in the substrata of their consciousness is the lurking feeling that if we go the other way, things are going to be bad for the institution.
The Daily
A Constitutional Crisis
It can be thought of, and I take your point, as simply a reimagining of what the Constitution calls for, that maybe people approve of, and maybe what we're on the cusp of here is, you know, without an amendment, without a constitutional convention, just a reorientation of the separation of powers in a way that elevates
The Daily
A Constitutional Crisis
the president to a role that we've not seen before at the expense of the other branches. But all of that said, a crisis is a crisis. And if our very understanding of the Constitution is being tested by a president who, legal scholars say, seems to have a contempt for the document, We are in the midst of something profound, whether or not people are taking it seriously today.
The Daily
A Constitutional Crisis
Yeah, it sounds serious, doesn't it? It does. But I've been talking to a lot of law professors, and what emerges from those conversations is that there's no fixed, agreed-upon definition of a constitutional crisis. It has characteristics, notably when one of the three branches tries to get out of its lane, assert too much power.
The Daily
A Constitutional Crisis
It often involves a president flouting statutes, flouting the Constitution, flouting judicial orders. And it can be a single instance, but it's more typically cumulative. But it's not a binary thing. It's not a switch. It's a slope that can descend. And it takes on a quality of danger if there's a lot of it.
The Daily
A Constitutional Crisis
So the consensus is that this is a constitutional crisis. And let me try to unpack why so many people think that. The president will often use his power to its fullest extent to assert a constitutional authority to do things that other branches may oppose.
The Daily
A Constitutional Crisis
But what we have with President Trump is a kind of wholesale reconception of the part of the Constitution, Article 2, that sets out presidential power that asserts that he's basically the decision maker, that he can act alone. He can disregard instructions from Congress. And Congress is in Article I. Congress makes the law. That sounds significant.
The Daily
A Constitutional Crisis
The president is charged by the Constitution to take care that the laws be faithfully executed. That would seem ordinarily to put him in a subordinate role. But the music of Trump's actions over the past several weeks has been quite different, has meant to insist on his primacy.
The Daily
A Constitutional Crisis
So a couple of quick examples. Congress has instructed the president not to fire people unless he satisfies certain criteria. Sometimes he has to have a good reason. Sometimes he has to wait 30 days. Sometimes he has to explain himself to Congress. President Trump has busted through all those limitations and insisted that as head of the executive branch, he can fire whomever he will.
The Daily
A Constitutional Crisis
Congress has also passed laws instructing the president to spend money to do certain things. President Trump takes the view that if those instructions are inconsistent with his policy agenda, he doesn't have to do it, that Congress can't make him spend the money Congress has appropriated. And Congress, of course, has the power of the purse.
The Daily
A Constitutional Crisis
So you would think there's a pretty good argument that the president has to do with Congress says.
The Daily
A Constitutional Crisis
Yes. Congress told the president what to do. The president is doing the opposite. That seems to contain some real seeds of what most people would think of as a constitutional crisis. And this is notable, too, Michael. He's doing this in the face of a Congress that's not opposing him.
The Daily
A Constitutional Crisis
To the contrary, if President Trump were to seek legislation from this Congress limiting or shutting down USAID, I think he'd be very likely to succeed. But he seems not to be interested in working with the other branch, a branch that he essentially controls, but to insist that he has the sole power. to do things.
The Daily
A Constitutional Crisis
Yeah, it's a raw assertion of power, and it's a little surprising. I mean, if you have a Republican-controlled Congress... that's ready to do your bidding, and you could button this down and make lasting change that's unassailable, it's a little bit surprising that in the early weeks of a four-year term, he wants to do everything at once.
The Daily
A Constitutional Crisis
And that has the quality of a crisis too, this notion that we're flooding the zone with endless executive orders and scores of lawsuits. It just gives rise to the sense that we're encountering a wholly new and maybe dangerous atmosphere.
The Daily
A Constitutional Crisis
So where to begin? He has shut down all kinds of federal spending that Congress has instructed him to spend. He's deputized Elon Musk and his Doge warriors to inspect all kinds of government logs and computer activity that gives rise to at least some privacy concerns. And maybe notably, he has, by executive order, purported to do away with
The Daily
A Constitutional Crisis
with what is generally thought to be a fundamental constitutional right of birthright citizenship that is with very rare exceptions. If you're born in the United States, you're a United States citizen.
The Daily
A Constitutional Crisis
So I think I'd put it in three buckets, Michael. One is Trump's role as the head of the executive branch. And there he has pretty good arguments about
The Daily
A Constitutional Crisis
that he's the boss, that he can decide who works for him, and that he can fire people, including heads of independent agencies that Congress has tried to insulate from political pressure, inspectors general who have an important role in keeping fraud and corruption out of agencies.
The Daily
A Constitutional Crisis
That may not sound like the best idea as a policy matter, but the Supreme Court has been increasingly sympathetic to the idea that at least where it's all inside the executive branch, the president has a lot of power. So that first bucket, he may well succeed in many of his arguments.
The Daily
A Constitutional Crisis
Right. The second bucket gets much harder, where Congress has specifically instructed him to do something, to spend money, to maintain agencies, USAID, the Consumer Financial Protection Bureau, the Department of Education. The notion that the president is allowed to disregard congressional instructions on things like that, that's a tough argument. And then the third bucket is
The Daily
A Constitutional Crisis
gets even harder, where the Constitution, most people think, has insisted that there's a constitutional right to birthright citizenship. And under the conventional understanding, You can't do away with that by executive order. You can't do away with that by statute. Congress can't do away with it. It's in the Constitution.
The Daily
A Constitutional Crisis
If something's going to change, it needs to be done by constitutional amendment. So the president's order in the early days of his administration that says, I declare that this constitutional right doesn't exist is quite brazen and bold.
The Daily
A Constitutional Crisis
Right, and the courts are already dealing with an extraordinary number of suits. They seem to multiply by the day.
The Daily
A Constitutional Crisis
And while none of them have reached the Supreme Court yet, in the coming, I would say, weeks, we are going to have major clashes before a Supreme Court that, you know, is dominated by six conservative appointees and will be sympathetic to some of what Trump wants to achieve, but is not going to be on board for the whole project. And then the open question is, assuming the court rules against Trump
The Daily
A Constitutional Crisis
He has been on an epic losing streak. Some of that can be explained by plaintiffs suing in friendly courts, but appointees of all different kinds of presidents, including President Trump himself, have ruled against him and have said that Elon Musk can't have access to some materials,
The Daily
A Constitutional Crisis
that people can't be fired, that agencies can't be disassembled, that the birthright citizenship order is unconstitutional. And some of these judges have been very harsh. One of them, in blocking the birthright citizenship order, said that he had difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It boggles my mind.
The Daily
A Constitutional Crisis
So that gives you a flavor of how Trump is doing in the lower courts.
The Daily
A Constitutional Crisis
Right. And J.D. Vance, the vice president, has taken the most assertive attitude toward this, saying that the president doesn't have to obey rulings from courts that are at odds with his understanding of the Constitution.
The Daily
A Constitutional Crisis
So it sounds quite radical, doesn't it? I mean, we generally agree as Americans that the court has the last word over the constitutionality of congressional action, executive action. And if J.D. Vance is suggesting as a general matter that the president disagrees with that, well, that's a constitutional crisis.
The Daily
A Constitutional Crisis
I guess I would make, though, an observation, Michael, that there are probably some areas where if the Constitution distinctly and exclusively commits some right to the president, like, say, the pardon power, and a court were to say, no, you can't pardon your buddy, The president's interpretation of the Constitution could well govern there.
The Daily
A Constitutional Crisis
And there's a flavor of this in the Supreme Court's decision in July granting Trump broad immunity from prosecution, where the court talks about those powers that are core executive powers are for the president only. The Vance statement seems to resonate with that way of thinking, too.
The Daily
A Constitutional Crisis
Right, but I don't want to minimize it. I mean, it's a hell of a thing to even contemplate the Supreme Court saying to Richard Nixon, you got to turn over the White House tapes. And Richard Nixon, and he thought about this, saying no. That would be a classic constitutional crisis.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
He has then and now never had a criminal record in El Salvador or the United States. And goes before an immigration judge, and the judge, and this is important, issues a ruling that says he faces dire consequences if he were to be sent back to El Salvador. And the judge issues a ruling that says you may not deport him to El Salvador.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Exactly. They say that the Supreme Court has essentially said, not, we're nudging you, you should bring him home, but rather, you decide. You get to decide in the area of foreign affairs and immigration. who gets deported, who doesn't, whom you bring back, whom you don't. And so the two sides managed to read the same judicial decision quite differently.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So that's a very good question, Rachel. And we used to think that there are two things that could go on. There's the administration making weak, not very persuasive arguments, but still kind of doing law. And then at the other end of the spectrum, the administration being told to do something and refusing to do it. And that's defiance, and that's the classic constitutional crisis.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So here we have something I didn't anticipate, a third thing, where everybody acknowledges that the initial deportation in the Abrego Garcia case was unlawful. And yet the administration continues to make kind of legalistic arguments defending it. And this third thing may be the constitutional crisis everyone's been waiting for.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
It doesn't take the classic form, but it gets you to pretty much the same place.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
What I would say is that there's really nothing in the administration's legal logic that would prohibit the administration from picking an American citizen off the street, send them to a vicious prison in another country where torture is routine, conceitedly lawlessly, and then say, whoops, sorry, nothing we can do about it. You're going to spend the rest of your days there.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
The legal logic of the Obrego-Garcia case is no different than the legal logic of sending Rachel Abrams or Adam Liptak to El Salvador for the rest of our days.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
The logic and implications of the administration's position can only be called deeply disturbing.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And he goes on living in the United States, has a work permit, checks in with the immigration authorities every year, gets married, is raising three kids. And a few weeks ago, he is detained again. And this time he gets no process. He is sent to Louisiana, a detention facility, and then is put on an airplane to El Salvador, the one place he cannot be deported to under the immigration law.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And moreover, he's sent to El Salvador. to a notoriously inhumane, squalid, and dangerous prison there called the Center for Terrorism Confinement. And there he sits. And his lawyers go to court in Maryland. And the lawyer says, there's been a terrible injustice here. We've got to get him back. And the government's initial response is, that's right. There's been an administrative error here.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
This shouldn't have happened. He shouldn't be in El Salvador. The lawyers initially say, we're looking into it. We're trying to figure out how to fix it. The lawyer says he's not getting cooperation from his superiors.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Yes, but everybody agrees this shouldn't have happened. And you might think the answer is to take steps to bring them back. But then the administration, as this goes up the food chain in the Trump administration, starts to dig in his heels. And here's a bad sign for Mr. Obrego-Garcia. The government lawyer who made those concessions is put on administrative leave Because Pam Bondi, the U.S.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Attorney General, says the lawyer had not zealously represented the position of the United States.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Because the lawyer did the ordinary thing expected of an American attorney in an American courtroom. which is to be candid with the court. Zealous advocacy is one thing, but you also have an obligation as an officer of the court to tell the truth.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
She couldn't be more appalled. She says this shocks the conscience. that this kind of lawless behavior is un-American. And she orders the government to facilitate and effectuate, and those words may become important as we talk about this, his return in very short order. She tells the government to bring him home.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
A couple things. One, that this was in plain violation of a court order. Two, that he wasn't afforded the merest amount of due process for And if he had been afforded that, he could have made two points. One, that he's exempt from being deported to El Salvador. And two, that if there are other things to be said about his life, he could dispute that, put in evidence, call witnesses.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
He was afforded neither of those things.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So as the case moves up through the legal system, the government never backs off its concession that this was an oversight, a mistake. But they now say that they're not capable of fixing the mistake because Mr. Obrego Garcia is in the custody of El Salvador. And the United States is powerless to retrieve him.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the government starts to lean on a theory that Abrego Garcia is a member of an El Salvador gang, MS-13. They have very little evidence for this. A confidential informant—we don't know who this is— accused Obrego Garcia of being affiliated with an upstate New York branch of the gang. He says he's never been to upstate New York. And in any event, even if everything was true,
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
even if he's a member of this gang, even if that's criminal conduct, even if it's criminal conduct in the United States, that still doesn't give the government the right to deport him. Maybe it gives them the right to prosecute him in the United States. Maybe it gives them the right to send him somewhere other than El Salvador.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
But the one thing we know is that it's unlawful to send him to El Salvador. And their legal argument basically consists of It's a pity it happened. Shouldn't have happened. But now that he's in El Salvador, we have no way of getting him back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
It goes to a federal appeals court. All three judges on the federal appeals court say the government needs to take steps to get him back. It then goes to the U.S. Supreme Court. And in what is basically a unanimous decision, The Supreme Court affirms most of what the trial judge said. Remember, the judge used two verbs, facilitate and effectuate.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the court, in an unsigned decision, bears down on those two words and endorses facilitate. You've got to get to work. people. You have to take steps. Clearly, something has gone wrong here. And the court says, take steps to fix it. But the court stops short of endorsing effectuate. It says it's not quite clear what the judge meant by that and that it's possible that it goes too far.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
The court doesn't like to, doesn't want to tell the president how to conduct foreign affairs, how to supervise the immigration system.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
I think what it means is that the court is not ordering an outcome. It's ordering process. But the thrust of the court's decision is, let's be serious, you've got to get them back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
That puts it very well. That's right.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So there are things the United States could do. You could extradite Abrego Garcia. If the U.S. contends he's a criminal, start extradition proceedings and have him returned here. Recall also that we are paying the government of El Salvador $6 million to house these people we've deported there. You would think that alone would give us the power to say, you know what? We're not paying for this guy.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Send him back. The United States is a very powerful country. And if it wants to achieve something as simple as having an ally to accomplish something, it just beggars belief that it couldn't be achieved.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
That's what the Supreme Court said and meant. That's what lower courts have said and meant. They probably, on some level, didn't think that it would take more than that. You're right, Rachel, in suggesting this is kind of a judicial nudge. It's not an order. This is difficult. The court acknowledges that it owes the president some deference in his conduct of foreign affairs.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
But still, I think the courts, and uniformly so, hoped and believed that it wouldn't take very much to persuade the government of the United States to do something when it concedes that a terrible injustice has been done.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So his name is Kilmar Abrego Garcia. He was born in El Salvador in 1995. He moved to the United States when he was 16 years old after a gang in El Salvador threatened him in trying to extort money from his family's business. He arrives here in 2011, enters without authorization, finds work, goes about his business, and is arrested in 2019 on immigration offenses.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Abrego Garcia's lawyer issued a statement after the Supreme Court ruled that said the rule of law has prevailed. Bring him home. And there was a sense, at least initially, that the administration would say, okay, we hear the nudge, we'll take steps, and we'll bring them home. But almost immediately, it became clear that the administration had no particular interest in doing that.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So the court rules on Thursday evening, and Friday morning the trial judge says, I want answers. I want a status report. I want to know what you're doing, what steps you're taking to bring Abrego Garcia home. That also echoes language in the Supreme Court's order. And the administration on Friday morning says, you know what? We need more time. We're not ready to come talk to you.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Why don't you set this down? Not for Friday, not over the weekend, not for Monday, but for Tuesday. And the judge is flabbergasted by that idea. After all, Abrego Garcia has been wrongly confined in El Salvador for a month by then. And she says, no, I want answers right now. And I want daily reports on what's happening here, what you're doing to get him back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And those daily reports start to come in. And they are very thin reports. They don't indicate that the administration is doing anything. The administration almost grudgingly says, well, he's alive and he's being held at this terrorism prison and essentially says nothing more other than that. We are powerless to get him back. He's in the hands of another nation's sovereign authorities.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the judge's attempts to get this thing rolling are stymied.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
No, the government gets more and more hostile, more and more dug in, until on Sunday they, in essence, tell the judge that she's powerless to do anything.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Right. And also that we don't want to get them back.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
So this was brought into vivid relief on Monday. when El Salvador's president, President Nayib Bukele, pays a visit to Donald Trump in the Oval Office and is asked, Can President Bukele weigh in on this?
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
Are you going to send Obrigo Garcia back?
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And he treats that as a kind of laughable question.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
He says, what am I going to do, send a terrorist into the United States? So you could tell that the two presidents, Trump and Bukele, were on the same page and had no interest in returning Abrego Garcia to Maryland.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And the president's chief immigration advisor, Stephen Miller, pipes up.
The Daily
Trapped Abroad: The Man at the Center of a Constitutional Standoff
And proposes an interpretation of the Supreme Court decision in the Obrego-Garcia case. which is that it was a nine to nothing win for the administration because of its reference to the president's power to conduct foreign affairs. And so focusing on a phrase in the decision, Stephen Miller completely flips what is the great bulk and thrust of the court's opinion.
The Daily
'The Interview': Ramy Youssef Is Just Trying to Be ‘Emotionally Correct’
I'll have a lot of grandmothers come to my shows, and they love me. I do really good with grandmothers. And I always love that because I don't think there's much being made that they could go to. Certainly not stand-up comedy. No, no, no. That's the goal. I'm trying to be only grandmothers. Shows are at 8, 30 a.m. That's the late show.
The Daily
Children’s Books Go Before the Supreme Court
And Alito says, essentially, shouldn't age be a factor here? And I guess there's a logic to that position. I mean, assuming you accept that the books are pushing a vision of family life at odds with what religious parents want to have their children see and read.
The Daily
Children’s Books Go Before the Supreme Court
It's probably true that a young child, more impressionable, less likely to use critical thought and pushback on what a teacher is reading to him or her, is more likely to be, whatever coercion means, coerced than an older kid who might read a book and apply critical faculties to it and accept it or not and kind of reason with it, debate with it,
The Daily
Children’s Books Go Before the Supreme Court
The case arose from the curriculum of Montgomery County, Maryland public schools. Montgomery County is a quite liberal suburb of Washington, DC. And in 2022, along with all the other storybooks that kids in pre-K through fifth grade read, they added initially seven new books that included gay and trans characters and themes. And when they first introduced these new books,
The Daily
Children’s Books Go Before the Supreme Court
So it may be that exposure is more likely to be the apt word for a teenager, while coercion would fit more neatly when we're talking about a very young child.
The Daily
Children’s Books Go Before the Supreme Court
Yeah, that's right so far as it goes, Rachel. Justice Jackson? Justice Katonji Brown Jackson pushes back on the idea.
The Daily
Children’s Books Go Before the Supreme Court
Even in school, you're exposed to all kinds of ideas, not just in the books you're reading. And she brings up some examples.
The Daily
Children’s Books Go Before the Supreme Court
What if you have a gay teacher who puts out a wedding picture on her desk and talks about her wedding? Is that coercion?
The Daily
Children’s Books Go Before the Supreme Court
What about having a trans kid in the class or a trans teacher or posters celebrating gay rights?
The Daily
Children’s Books Go Before the Supreme Court
Exactly. We live in the world, even if we're young children. We see what we see, we learn what we learn, and we go home and our parents can explain it to us.
The Daily
Children’s Books Go Before the Supreme Court
Justice Jackson certainly seems to think that this is not a case where you give parents veto power over what their children learn in school and to pick and choose from a public school's curriculum.
The Daily
Children’s Books Go Before the Supreme Court
One is practical, that opt-outs are allowed in a lot of the country, and they're not much used, and it hasn't been a real problem. The other, though, is that he says yes. As a religious matter, if you have a sincerely held religious belief, you can object to many things.
The Daily
Children’s Books Go Before the Supreme Court
And the teaching of those things to your children in public school does burden your religious rights. He acknowledges that that's not the end of the inquiry. After you've found a burden, you still apply a kind of balancing test.
The Daily
Children’s Books Go Before the Supreme Court
But that second answer sure suggests that if the court rules in favor of the parents, there will be some very difficult issues about how to manage public schools in the face of religious objections going forward. And much of the second half of the argument is dominated by those concerns.
The Daily
Children’s Books Go Before the Supreme Court
Well, now it's the school board's chance to argue, represented by a lawyer named Alan Schoenfeld.
The Daily
Children’s Books Go Before the Supreme Court
They gave parents with religious objections notice that on a certain day, the books would be discussed in class. And if you wanted to take your kids out of class, if you wanted to opt out, you could. And a number of parents did, and that system went on for about a year. According to the school board, it wasn't working. It was hard to administer. You had to figure out where to put the kids.
The Daily
Children’s Books Go Before the Supreme Court
And he basically says, look, there's a lot of stuff in the world that's offensive to people with various kinds of beliefs, including religious ones.
The Daily
Children’s Books Go Before the Supreme Court
But just being exposed to ideas is not contrary to religion.
The Daily
Children’s Books Go Before the Supreme Court
And he also says that there are practical problems here, that if you let this kind of lawsuit move forward, it's going to be very hard to figure out how that works in practice, and that courts would hear... An infinite variety of curriculum challenges brought by parents with different religious beliefs. An infinite variety of objections to all sorts of things.
The Daily
Children’s Books Go Before the Supreme Court
They travel much of the same territory they did in the first half. Mr. Schoenfeld, could I make sure I understand what you mean by coercion? They ask about the difference between exposure and coercion.
The Daily
Children’s Books Go Before the Supreme Court
The school's lawyer predictably says that these books are not coercive and therefore not burdensome.
The Daily
Children’s Books Go Before the Supreme Court
Chief Justice Roberts tries to pin down how much age is a factor.
The Daily
Children’s Books Go Before the Supreme Court
And even as the lawyer for the school board insists that his client is not pushing any particular worldview...
The Daily
Children’s Books Go Before the Supreme Court
Several of the conservative justices seem pretty skeptical of that.
The Daily
Children’s Books Go Before the Supreme Court
Justice Alito says, essentially, just own up to it. These books are meant to endorse certain values, and those are not values shared by people of all religious faiths.
The Daily
Children’s Books Go Before the Supreme Court
Justice Gorsuch, for instance, seems to have read a book for pre-kindergarten named Pride Puppy quite closely. So the book is an alphabet primer. A is for something, B is for something, and so on in each page. And there are pictures of lots of things on those pages.
The Daily
Children’s Books Go Before the Supreme Court
Yeah. And he doesn't perfectly match up to what the book says, but he sure has the impression that there's something gone terribly awry here. And what emerges from all of this is that it's kind of hard to find the line of what crosses the line into being a violation of religious freedom.
The Daily
Children’s Books Go Before the Supreme Court
But one thing that seems pretty clear for several of the conservative justices is that whatever else you can say these books for young children crossed the line.
The Daily
Children’s Books Go Before the Supreme Court
Well, the Supreme Court does two things. It decides individual disputes, but it also lays down general legal principles that will apply in all kinds of cases. And I think the court is having a hard time figuring out
The Daily
Children’s Books Go Before the Supreme Court
It seemed to be leading to absenteeism all day. And they said also that it stigmatized kids from families with gay and trans members who were confused about why discussion of books reflecting their lives was so provocative that other kids had to be withdrawn from school. So on that reasoning, the school said, we're not going to give notice anymore. We're not going to let you opt out.
The Daily
Children’s Books Go Before the Supreme Court
what the implications of a ruling for the parents here would be for other kinds of religious objections to say, and these are real cases, books about wizards and giants, books about evolution and the Big Bang Theory. even books about children doing things that don't conform to traditional stereotypes of gender roles.
The Daily
Children’s Books Go Before the Supreme Court
Parents have objected to a book where one student, a girl, reads a recipe and another student, a boy, cooks the meal. So the court is a little concerned that it not come up with a rule that is going to complicate the lives of teachers and school administrators all across the country.
The Daily
Children’s Books Go Before the Supreme Court
That's right. But as complicated as finding the line may be for several of the justices, there's also this sense on the right side of the court—
The Daily
Children’s Books Go Before the Supreme Court
Particularly for Justices Alito and Kavanaugh, that this particular problem shouldn't be that hard to solve.
The Daily
Children’s Books Go Before the Supreme Court
They repeatedly say, what is the big deal about allowing them to opt out of this? Is this really so tough to let people opt out of these particular classes?
The Daily
Children’s Books Go Before the Supreme Court
For example, dozens of students being opted out in... It's not so easy to find something else for the kid to do who's opted out of the class.
The Daily
Children’s Books Go Before the Supreme Court
But Justice Kavanaugh, in particular, thinks that this is fairly straightforward and that compromise is the best solution.
The Daily
Children’s Books Go Before the Supreme Court
And that idea... seems to have the support of a majority of the justices. And this is in keeping with really countless cases from the Roberts Court, which has been in business for two decades now and has ruled in favor of religious groups and religious individuals and religious claims at a higher rate than any court in modern history. And just to remind you of a couple of them,
The Daily
Children’s Books Go Before the Supreme Court
A web designer who didn't want to create websites for same-sex marriages won.
The Daily
Children’s Books Go Before the Supreme Court
A high school football coach who wanted to pray on the 50-yard line after his games won. It's really been an extraordinary winning streak for religion, and it seems like it will continue here.
The Daily
Children’s Books Go Before the Supreme Court
Well, if the court rules as I expect it will, it will give religion a major role in shaping American public education. It will mean that teachers, principals, and public schools everywhere will have to consider at least the possibility that of these kinds of objections when they're putting together a curriculum.
The Daily
Children’s Books Go Before the Supreme Court
And the materials they choose that may be objectionable to some religious parents will come at a cost. They'll have to create a structure around those materials to let kids opt out of being exposed to them.
The Daily
Children’s Books Go Before the Supreme Court
If you want to go to public school, you will have the whole curriculum, including these books.
The Daily
Children’s Books Go Before the Supreme Court
It's sure a lot easier just to say, let's skip it. Let's use other books. Let's not use books that are going to provoke a reaction. And maybe that's the right attitude. Maybe it's the wrong attitude, but it's certainly going to make for changes.
The Daily
Children’s Books Go Before the Supreme Court
And if, as the school's lawyers said at the argument, the opt-out policies are too hard to implement, the bottom line is that these materials may not be taught at all. And it might be easier to stick to books like Jack and Jill or Sleeping Beauty and forget about Uncle Bobby's wedding.
The Daily
Children’s Books Go Before the Supreme Court
So parents of many faiths were quite upset. They sued. They said, we're not asking you to take these books out of the library. We're not even asking you to take these books out of the classroom. We just want to go back to the system where on days these books are going to be discussed, you tell us and you give us the option to take our kids out of class.
The Daily
Children’s Books Go Before the Supreme Court
The parents say that these books are a kind of indoctrination. That in depicting families with gay members, with trans members, in talking about same-sex marriage, in talking about preferred pronouns... The books tackle subjects that the parents say are not only age-inappropriate, but at odds with their ability to exercise the religious freedom guaranteed to them by the Constitution.
The Daily
Children’s Books Go Before the Supreme Court
Yeah, that's right. So these parents, and they're of many faiths, Muslim, Catholic.
The Daily
Children’s Books Go Before the Supreme Court
Protestant, other, say that their faiths don't acknowledge same-sex marriage, for instance, and that having their children exposed to these ideas puts a burden on their constitutional right, guaranteed by the Free Exercise Clause of the First Amendment, to raise their kids as they wish without hearing things in a public school mandated by the government,
The Daily
Children’s Books Go Before the Supreme Court
at odds with what they believe to be appropriate.
The Daily
Children’s Books Go Before the Supreme Court
Well, Rachel, I happen to have a couple of the books. And let me give you a tour of one of them.
The Daily
Children’s Books Go Before the Supreme Court
It's a storybook for young kids. It's full of colorful pictures. And the theme of the book is that a young girl named Chloe has a favorite uncle, Bobby, who's getting married to another man, Jamie. And she's unhappy about this. I'm going to pick up in the middle of the book, read you a little bit of it just to give you the flavor.
The Daily
Children’s Books Go Before the Supreme Court
Mummy, said Chloe, I don't understand. Why is Uncle Bobby getting married? Bobby and Jamie love each other, said Mummy. When grown-up people love each other that much, sometimes they get married. But, said Chloe, Bobby is my special uncle. I don't want him to get married. I think you should talk to him, said Mummy. Chloe found Uncle Bobby sitting on a swing.
The Daily
Children’s Books Go Before the Supreme Court
Why do you have to get married, she asked. Jamie and I want to live together and have our own family, said Bobby. You want kids? Only if they're just like you, said Bobby. And it goes on... Chloe becomes more cheerful. She actually saves the day near the end of the book when a wedding ring goes missing and she finds it and the wedding goes off without a hitch and everyone is happy.
The Daily
Children’s Books Go Before the Supreme Court
They start with a lawyer for the parents, Eric Baxter.
The Daily
Children’s Books Go Before the Supreme Court
These books are ours with our faith. All we want to do is take our kids out of class when they're discussed. And the alternative, he says, is really difficult for parents because their alternative is to withdraw their kids from public school.
The Daily
Children’s Books Go Before the Supreme Court
Which may not be possible for some people. So he's sort of saying... Let's weigh the equities here. Let's sort of balance out what the cost and the benefit is here. And he says it's a small ask.
The Daily
Children’s Books Go Before the Supreme Court
But for the justices to decide this question, they have to think about a threshold question. Is the mere exposure of kids to ideas like this a burden on religion? And it's not obvious that it is. And so right away, Justice Clarence Thomas dives into this question about whether schools are burdening the religious freedom of parents.
The Daily
Children’s Books Go Before the Supreme Court
And he focuses on a distinction that's a little legalistic, but it's really at the heart of what we're talking about. And that's the question of a distinction between exposure on the one hand and coercion on the other.
The Daily
Children’s Books Go Before the Supreme Court
Well, exposure is something that happens to all of us every day. We read things, see things, apply critical analysis to them. Just because we've heard it doesn't mean we believe it. Coercion is kind of indoctrination, is kind of... forcing someone to say or believe something.
The Daily
Children’s Books Go Before the Supreme Court
And the question for the court is, does that interfere with the parental right at home to raise kids in their faith to the extent that we've moved from mere exposure to something much more significant, coercion?
The Daily
Children’s Books Go Before the Supreme Court
The lawyer for the parents repeatedly makes the point that this is not about books being available to kids.
The Daily
Children’s Books Go Before the Supreme Court
This is about books being required to be read in class and discussed.
The Daily
Children’s Books Go Before the Supreme Court
So that, he says, makes it much more likely to be coercive than something sitting on a shelf that a child may read him or herself.
The Daily
Children’s Books Go Before the Supreme Court
Well, what they say is that the books are meant to teach respect and kindness. And to introduce kids to the idea that there are all sorts of different people from all sorts of different kinds of families. And to reinforce the idea that it's important to respect people's differences.
The Daily
Children’s Books Go Before the Supreme Court
Well, they do it in what may be the most obvious way. Justice Sotomayor jumps in and says, let's talk about the actual books. Let's talk about Uncle Bobby's Wedding.
The Daily
Children’s Books Go Before the Supreme Court
Uncle Bobby's Wedding is going to be, as a result of this, you know, shooting up the bestseller list, I imagine.
The Daily
Children’s Books Go Before the Supreme Court
Listen, this is just a story about a couple who love each other and get married. And what's the problem here? And Justice Alito jumps in and says, wait a second. To Uncle Bobby's wedding. I've read that book as well as a lot of these other books.
The Daily
Children’s Books Go Before the Supreme Court
Right. Obviously, we have a constitutional crisis or a series of them. hanging like a cloud over the court. But the Roberts Court is still in business, still hearing major cases on culture wars issues. And on Tuesday, they heard a good one.
The Daily
Children’s Books Go Before the Supreme Court
And it not only features same-sex marriage, which some people think is a good idea, but some people with religious objections think is a bad idea. But it also endorses it.
The Daily
Children’s Books Go Before the Supreme Court
Because little Chloe has an objection to same-sex marriage, and her mother disagrees with her and tells her it's fine. Justice Sotomayor says that's a misreading of Uncle Bobby's wedding.
The Daily
Children’s Books Go Before the Supreme Court
So we sort of have a book club going on at the Supreme Court with varying interpretations of Uncle Bobby's wedding.
The Daily
Children’s Books Go Before the Supreme Court
It also tells you something about the Supreme Court, that they managed to read it differently. And it's one thing if you read a statute differently, but you would think that there could be consensus on the meaning of a children's book.
The Daily
Children’s Books Go Before the Supreme Court
And Justice Alito follows up on that point. What are the ages of the children who are involved here? He asks, how old are the children reading these books?