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The Rachel Maddow Show, Transcript 06/25/15

Guests: Dahlia Lithwick

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend. HAYES: You bet. MADDOW: Thanks to you at home for joining us this hour. We`ve got a big show tonight. There`s lots to come tonight. It`s been a very exciting day. Big Supreme Court ruling today, obviously. That`s a huge story. There`s lots of political news today, including a presidential candidate denying that he`s about to announce his run for president, when his campaign says, yes, he`s about to announce his run for president. It`s very awkward. We`ve also got some financial tape tonight. Tape that is from the Supreme Court, but it`s not about this ruling that was just handed down today. It`s actually from the case that we`re about to get, maybe tomorrow. And that lots and lots and lots of people are anticipating with bated breath. Just amazing tape. You haven`t seen it anywhere else and we`ve got that coming up in just a minute. But we start tonight with me being wrong. Oh, boy, was I wrong. I was totally, 100 percent, joyously freaking wrong. Do you want to see me be wrong? Here`s me being wrong. (BEGIN VIDEO CLIP) MADDOW: Today, the Supreme Court heard oral arguments in a case involving the Fair Housing Act. The Fair Housing Act was signed into law in the immediate aftermath of Dr. Martin Luther King`s assassination in 1968. President Johnson signed it a week after Martin Luther King was killed, as basically a tribute to Dr. King and Dr. King`s fight to end racially segregated housing in this country. Well, the case that the Supreme Court took up and that they heard oral arguments in today comes from Dallas. There was no real reason, no real legal imperative why the court had to take this Dallas case on the Fair Housing Act, but the fact that the court did take it up has led to a lot of speculation that the Roberts` court went out of their way to take this case, specifically so they can gut the Fair Housing Act the way they gutted the voting rights act a year and a half ago. Happy Martin Luther King Day. (END VIDEO CLIP) MADDOW: That was Martin Luther King Day, earlier this year, in January. And I was wrong, as it turns out. I mean, it was a surprising thing, at the time, it was a surprising thing, on Martin Luther King Day this year, when the Supreme Court heard those arguments on that civil rights case, because, really, there was no -- no burning issue behind that case. There was no disagreement between lower courts or some other reason why the Supreme Court had to take up that Fair Housing Act case. It really looked like the conservative majority on the U.S. Supreme Court was just going out of their way to go after the Fair Housing Act, the way they`d gone after the Voting Rights Act, and the way they`ve gone after a number of other civil rights achievements. It was not just me who saw it that way. A lot of people looked at the Supreme Court taking that case and thought, uh-oh. You know, the court does not have to do this. They must be taking this case, just so they can kill another landmark civil rights law. That is basically what everybody thought. Turns out -- nope! Wrong! Missed it by that much. In a 5-4 ruling today, in which Justice Anthony Kennedy sided with the court`s typically liberal justices, the Supreme Court today upheld the Fair Housing Act, which raises the question of why they took up that case in the first place. I mean, this Civil Rights Act ruling today was basically a sweeping ruling on settled law that said in a big, loud, Supreme Court voice, this law is fine. Pretend this never happened. Move along. Which is weird, I don`t know why they took that case in the first place. They really did not have to take it, but they did. And they ruled to uphold the law today, and you know what, we`ll take it! Sometimes it`s good to be wrong. It was the same kind of reasoning, same kind of expectations and projections about what the court was thinking that had a lot of people, not just on the edge of their seats, but basically hovering a few inches beyond the edge of their seats, about the other major case on which the court ruled today. Until 10:00 this morning, when the ruling came out on this Obamacare case today, there was not just worry, but honest to goodness fear among most people I know who were following this case closely, real fear for the health system in this country and for what the conservatives in the Supreme Court might have been planning to do to it. And that fear derived from the fact basically that the court took this case at all in the first place. When the Supreme Court announced that they would hear arguments on this Obamacare case, there was a big uh-oh that swept across the land, not because of anything about the Affordable Care Act itself, not because there was some big weakness in the law that this case had ferreted out, it was that the court had showed a really aggressive tack, just in its decision to take this case. This wasn`t a case they had to take. It was basically an entire legal strategy against Obamacare, an entire lawsuit against Obamacare, based on a typo. It wasn`t exactly a typo, but this wasn`t a substantive complaint about the Obamacare law. This was basically, this whole case was basically about some descriptive language in this giantly long bill, and the language was inconsistently written between different parts of the legislation. Some conservative legal activists seized on that, that language problem, and thought they could basically pull that one inconsistent, awkward phrasing out of the bill, like it was a crucial Jenga block in a giant Jenga tower and by pulling that one piece out, they could cause the whole thing to collapse. The whole law, the whole American health care system, now built around this law, which provides health insurance to millions of families, they thought because of this one little drafting error in the legislation, they could use that to collapse the whole thing. And you know what? People are always trying that kind of stuff in the courts, at levels high and low. This is like, kind of the equivalent of some sovereign citizen guy, kook, saying he doesn`t have to go to jail, because he identifies as a man, not as a person and the law says person, and he`s nobody`s person, he`s man. So, he doesn`t have to go to jail. He doesn`t recognize that law. It`s kind of that level of argument. And courts at all levels of the judiciary regularly ignore that kind of featherbrained, picayune mole hill mountain making as legal argument. But this court, the Supreme Court on this typo case about Obamacare said, yes, we`ll take this case. So, this has basically been the mood of worry about Obamacare. (VIDEO CLIP PLAYS) MADDOW: I mean, not everybody in the country was watching this Obamacare case super closely, but the more closely a person was watching it, unless they were rooting for the demise of the American health care system, the more closely a person was watching this case, the more likely that person was expecting doom and gloom for the American health care system, just because the Supreme Court chose to take this one out. But then, again, when you are the doom and gloomer, it`s good to be wrong. It`s good to be very, very wrong. (BEGIN VIDEO CLIP) TV ANCHOR: NBC`s justice correspondent Pete Williams is at the court this morning. Pete, I know we have the decision. Do we know what it says yet? PETE WILLIAMS, NBC NEWS JUSTICE CORRESPONDENT: I`m just looking at it. They just handed it to me. It appears to say that the tax credits -- this is the big question. Who is eligible for the subsidies that make health insurance affordable? Is it -- is it only in the states that have their own exchanges, which would be just a small part of the country, 16 states, or is it available in all the rest of the states that do have insurance through the federal health care exchange? And my reading of it is that the subsidies are available to individuals in states that have a federal exchange. So, it is a big victory for the Obama administration. Basically, the Supreme Court has, for the second time, bailed out Obamacare. It has rescued it from a legal challenge. (END VIDEO CLIP) MADDOW: So, there`s two things to say here about what happened with this Obamacare case today, at least -- two things that seem important to me. The first is that this wasn`t just Obamacare dodging a bullet. This wasn`t, in the end, like the Fair Housing Act ruling today, which was a lot of noise and a lot of legal wrangling and a lot of worry and a lot of consternation and a lot of dollars paid to lawyers, just to end up back at base line. Just to end up back at zero, where something could have happened to the law, but instead, nothing happened, and it`s just like it was before this challenge ever happened. I sort of thought that`s how it was going to go with this Obamacare ruling, as a best-case scenario for Obamacare -- but that`s not at all what happened. What actually happened with this ruling today is not only did millions of families not get kicked off their health insurance today, the ruling went further than just leaving the law intact, than just leaving us at zero, leaving us at base line. The way this ruling was written today by Chief Justice John Roberts, it appears to have strengthened the law, to have strengthened Obamacare, so that once President Obama is out of office, if some Republican is elected after him who wants to gut the bill administratively, that president will not be able to do so on his or her own. And yes, a Republican Congress could work with a Republican president to throw everybody off their health care. But thanks to this ruling today, a Republican president couldn`t do this on his or her own terms, without Congress also being involved. And we`re going to have some expert legal consultation on that in just a moment, to be sure. But that is at least how I understand what happened today with this ruling. And that also brings us to the other big thing about this ruling today, this ruling that earned these hugs today in the Oval Office. That`s President Obama on the right, hugging Health Secretary, Sylvia Burwell. That`s Vice President Biden on the left, hugging chief of staff, Denis McDonough, who`s making a very funny face, but it kind of seems like he`s always making a funny face. This is the moment, apparently, that they heard the ruling came down -- the hugs in the Oval Office. The other thing that happened here, beyond the immediate policy questions of what could have happened and how the law was strengthened today. I think the other thing that happened here, big picture, is that we now know, basically, for sure, about what is going to be a huge part of the legacy of the presidency of Barack Obama. We know a lot more about how consequential his presidency will be seen in the long run of history. And, yes, he is and always will be our nation`s first African-American president. He is and always will be the president who had to catch the country mid-plummet into economic free fall and put us back on track. He will always be the president who got Osama bin Laden. He will always be the president who let gay people serve in the military. He will always be the president who rescued General Motors and Chrysler. All true. But put him on the board, man, put him on the board for having done what generations of Democratic presidents tried to do before him, but failed. I mean, it was FDR who did Social Security in the 1930s. And that took extreme poverty off the table for the elderly in America forever. It was LBJ who did Medicare in the 1960s, which is one of the most popular and successful large-scale government programs of any kind, anywhere in the world, and which has meant that every single person in this country who has the good fortune to grow old does so with the ironclad expectation that they will have health coverage for their health needs in their old age. And on that number line, you can put Barack Obama -- who has not just done it, but who has seen to it now that it will not be undone, who moved heaven and earth to pass this thing in the first place, and he paid huge political costs for it, both in Congress and in terms of everything else he couldn`t do, because he did this. But on this, he succeeded where every previous Democrat for half a century has failed before him, to substantively change the enormous system by which we treat the sick and have our babies and set our broken bones and prevent our cancers and get our shots in this country -- substantively changed that system, so that everybody can get care. He didn`t build a whole new system. He elected, instead, to just fix the old one. And it definitely needs, still, a lot more fixing. But the number of uninsured American families has finally, not just stopped rising, it`s fallen off a cliff. The costs of health care have finally started to slow down. I know, you know, we all know people who have health insurance now because of this law, who previously were covered only by prayer and good luck and wearing your seat belt and hoping it was true that the emergency room really couldn`t turn you away if worst came to worst and that is where you had to turn up. We all know people who have coverage now who didn`t have it before, who only have it now because of this law. Two major tests of Obamacare at the Supreme Court, both of them surprise victories. This one today, not just 5-4, like the first one, but 6-3. This one today, unapologetic, and assertive that this is the health care system of the United States of America now, and there has to be a good reason, not just a trick or a glitch or a typo or a gotcha that you can use as an excuse to tear it down. From the ruling, "Congress passed the Affordable Care Act to improve health care markets, not to destroy them. We must interpret the act in a way that is consistent with the former and avoids the latter." Twice now, the Supreme Court has taken up these tests, President Obama`s signature legislative achievement. Twice now, he has passed those tests. And as I see it, at least, looking at the pipeline of all the cases that are out there, all the legal strategies that are out there from the Republicans to try to tear this thing down, it looks like there`s not going to be another one of these tests at the Supreme Court, at least while President Obama is still in office. And so, yes, this is a huge deal. This is a huge day. And as policy, there is further to go to make the health system work better and to get more people covered. But as a political achievement, as something that president after president after president after president has tried and failed to do, Barack Obama, we now know, did it! This is signed, sealed, and delivered. He did it. We know a lot more today about what history will say about Barack Obama as president of the United States than we did before this surprise ruling today in Washington, this surprise ruling that proved all of the doom and gloom naysayers wrong, so very, very, very wrong. Joining us now is Michael Beschloss, NBC News`s presidential historian. Mr. Beschloss, Michael, it`s great to see you. Thanks for being here. MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN: Same here. Thank you, Rachel. MADDOW: So, how -- as you can tell from my introduction, I think this is a very big deal. BESCHLOSS: I got that idea. MADDOW: Yes. (LAUGHTER) MADDOW: In historical terms, how significant is this ruling for his legacy? How do you think historians will explain the importance of this today? BESCHLOSS: I completely agree with you. You know, assuming, Rachel, over the long run, that the health care law by Barack Obama does what it is supposed to and assuming that some future Congress and president don`t repeal it, this is going to be probably in the first sentence of what historians write about Barack Obama. And it really vindicates a big decision he made in his first term. As you`ll remember, a lot of people around him said, we know that you, during the campaign, said you were going to try to bring universal health care, but, you know, there`s a huge economic crisis, the worst since the 1930s. You know, do this at the beginning of your second term. Don`t spend the political capital now. Instead, he said, you know, I may not have this kind of Democratic Congress ever again. I`m going to try this in my first and second year, which he did, and it worked. And in retrospect, you know, had he waited, he might still have lost Congress and this would have been impossible. MADDOW: Right, right. And so, that`s very helpful in terms of understanding this as a matter of presidential decision making and prioritizing. BESCHLOSS: It matters who`s president. MADDOW: Yes, it very much matters who`s president and it matters whose advice he takes and whose advice he rejects. BESCHLOSS: Right. MADDOW: In terms of comparing him with other presidencies, and I`ve put him on that number line a little bit self-consciously with FDR with Social Security and LBJ and Medicare. Is there a parallel here in terms of the fight, in terms of how hard a fight it was to get those things, how hard Republicans contemporaneously fought against those things? BESCHLOSS: Oh, sure. And I think, you know, each case is always different, but FDR in the mid-1930s, fighting for Social Security, it was said to be socialistic, and once it passed, people said, either the Supreme Court will repeal it or some future Congress will. By the early 1950s, many Republicans were still saying, repeal Social Security. Dwight Eisenhower, when he was president around 1954, wrote a letter to his very conservative brother saying, these people talk about repealing Social Security. If a Republican president did that, he would be the head of a party that soon would very soon not exist. Lyndon Johnson, the same thing with Medicare in 1965. But, the test of all of this was that these programs worked, and now his history will show whether this one does. MADDOW: I feel like we`re getting to a point in the Obama presidency, and maybe it`s these big things happening. Maybe it`s just the passage of time, but I feel like we can start to sketch out what his impact has been, big terms, like, what he has changed, not just in terms of policy, but also in terms of politics. Do you feel like you can start to see the way that has changed Democratic politics -- BESCHLOSS: Sure. MADDOW: -- or the overall left/right direction of the country? BESCHLOSS: Take a look at the language within the Democratic Party right now. It`s much further to the left than it was in the 1990s or even in 2008. That is to some extent the effect of a president moving gently the Democratic Party to the left. MADDOW: NBC News presidential historian Michael Beschloss, it`s great to have you here, sir. Thank you for being here, Michael. BESCHLOSS: You, too. Thank you, Rachel. MADDOW: All right. We`ve got lots to come tonight, including the other ginormous ruling the Supreme Court could be ruling on tomorrow morning at 9:00 a.m. Please stay with us. (BEGIN VIDEO CLIP) BARACK OBAMA, PRESIDENT OF THE UNITED STATES: Five years in, this is no longer about a law. This is not about the Affordable Care Act as legislation or Obamacare as a political football. This is health care in America. So, this was a good day for America. Let`s get back to work. (END VIDEO CLIP) (COMMERCIAL BREAK) MADDOW: So, there`s more big news to get to tonight as it relates to the Supreme Court. We`re expecting another giant ruling from the court that could come as early as tomorrow morning. That`s still ahead. There`s also an incredibly emotional day today down in Charleston, South Carolina, and we`ll have details on that forthcoming. Please stay with us. (COMMERCIAL BREAK) MADDOW: OK. I think this is kind of a scoop. Does this man send you mail? This man is the chairman of the National Republican Party. His name is Reince Priebus. And if you are on any of his National Republican Party solicitation lists, you may want to keep a close eye on your mailbox over the next few days. Because one of you lovely folks, one of our viewers, who watches this show from Orange County, California, recently just sent to us this remarkable mailer. This mailer, he says he just received it, unsolicited, from Reince Priebus, and the Republican National Committee. And, naturally, it`s a request for money. Everything`s a request for money, right? But what`s amazing, what`s surprising, actually, is how the National Republican Party and Reince Priebus are actually asking for your money right now. This whole mailer is designed to sort of trick you into thinking that this is a ballot. This is the ballot on which you will cast your vote for who you want to be the Republican nominee for president. It see, it says, "RNC, presidential primary ballot" right on it, like official type face. It`s got a date by which you must respond. That`s the date on which it`s due. It shows you how to cast your vote. Don`t put a check mark or an "x," make sure you fill it in on the way to make sure your vote counts. Your vote actually will not count. This is just a fundraising thing. It`s a fake ballot. But check out who the Republican Party is offering as the choices for who you could vote for as president. It`s all these different people you see on the lower third of the mailer here. But this is only the front page of this mailer. Flip it over and there`s even more. The Republican Party, the National Republican Party is sending out these fake primary ballots to Republican voters or people on their lists across the country, and they`ve got 30 different Republican candidates on them for president, 30! I mean, we`ve been marveling at how many Republicans are running this year or are likely to run this year, we`ve been tracking 19 candidates or possible candidates, 13 of whom have already formally declared. And that is an unimaginably huge number. Right? The hugeness of that number creates all these different logistical choices for the Republicans this year. It`s got them all furious at each other about who`s going to be allowed on the stage at the debates. It`s got the Republicans in the early states, not just mad at FOX News, which is hosting the first debate, it`s got the early state Republicans also mad at the National Republican Party. I think the National Republican Party and FOX News are going to have to change what they`re planning on doing about the debates, because of that criticism. You can`t be the official TV channel of the Republican Party. You can`t be the Republican Party and give a one-finger salute to all three of the states who vote first in the Republican primaries. You just can`t do that. So, I think they`ll have to change what their plans are on how to handle this giant field. But you have to sort of feel for them logistically. It`s going to be difficult for them to handle this huge number of candidates. And we`ve understand that thus far. But lest you think that the Republican Party is embarrassed by that problem. Lest we think that the Republican Party is at all bothered by this unwieldy, historically enormous field of candidates, they`re really not bothered by it, quite the contrary, because, apparently, the Republican party is fake canvassing Republican mailing list patsies all over the country with a supposed candidate list of not just the 19 might be candidates who really might be running, the Republican Party has added to the list all these other people who definitely are not running. I mean, they`ve got on their list, Mike Pence. He`s not running. Sarah Palin, no, I don`t think so. They`ve got Herman Cain on the list. They`ve got Kelly Ayotte. John Thune is on their list, Condoleezza Rice? Tim Pawlenty, seriously, Tim Pawlenty? None of these people are running. And neither are like a half dozen more people who they put on there. Nikki Haley is on there, Allen West is on there. But the Republican National Committee is promoting them all as potential presidential candidates anyway. It`s very strange. We have posted the screen shots of this direct mail at We`ve also posted a link to the Republican Party`s online version of it, It`s not really a primary ballot. But it`s strange. It`s surprising to me that the Republican Party is pushing even more candidates than the zillions of candidates who they already really have running. And speaking of those zillions, get ready for zillion and one. New Jersey Governor Chris Christie has reportedly now set a date. Multiple reports today saying that Chris Christie will be announcing on Tuesday in Livingston, New Jersey, that he`s running for president. Although, weirdly, tonight on his monthly "Ask the Governor" radio show, he denied having made any final decision, despite those leaks to the president by his own campaign. (BEGIN VIDEO CLIP) RADIO HOST: Are you denying that there is going to be an announcement made Tuesday in Livingston? GOV. CHRIS CHRISTIE (R), NEW JERSEY: I can`t deny that, because I haven`t made a decision. RADIO HOST: OK. CHRISTIE: Once I make a decision, then I`ll decide how I want to do it. (END VIDEO CLIP) MADDOW: So, Chris Christie may or may not be making that announcement on Tuesday in Livingston, New Jersey. Oh, please. "I haven`t decided." Then, after he decides, after we hear from him in Livingston, New Jersey, on Tuesday, next will come Governor Scott Walker, who tonight told my friend, Greta Van Susteren, that he will make his announcement the week of July 13th. After that, we will still be awaiting expected announcements from Ohio Governor John Kasich, from my dear friends, Governor Bob Ehrlich from Maryland and Governor John Gilmore from Virginia -- hi you guys! And then there will presumably be Peter King, the congressman from New York. And then he knows, maybe Reince Priebus is telling us to gird our loins and get ready for a giant onslaught of announcements from people who we weren`t expecting, from Sarah Palin and Condoleezza Rice and John Thune and Tim Pawlenty. Oh, my God, Tim Pawlenty. Who knows? But apparently they are imagining some kind of all game here where the more candidates you put on the field, more chances you have to win. Like each of them is a quarter and it`s all pinball. Anyway, sky`s the limit. Come one, come all. Everybody gets to run this year. (COMMERCIAL BREAK) MADDOW: So, we have some really remarkable tape, just ahead tonight. And when this stuff first came out, it really got lost in the news cycle because there was something else big that broke at exactly the same time and this basically got completely buried. But we have unearthed it tonight. It has been uncovered for your glorious enjoyment. And if you want just a teeny, teeny, tiny hint of what it is, I can tell you that it involves one of this nation`s highest ranking officials, discussing on tape, the sexual preferences of Plato. Not play- doh the toy, Plato the philosopher. I know. That`s coming up next. Stay with us. (COMMERCIAL BREAK) MADDOW: So, today was the Obamacare ruling at the Supreme Court. There are five more Supreme Court rulings to go. And you don`t know what cases they`re going to rule on until the day they rule. And so, every day, in line, first in line, to find out if today would be his day, has been this man, Jim Obergefell. He`s got the red arrow to him there. First in line, early this morning, this is him, just as he has been on every other Supreme Court decision day this month. He`s been there, number one, waiting in line, along with everyone else. It was Mr. Obergefell`s lawsuit against the state of Ohio that turned into the marriage case that could tomorrow, or any day now, result in gay marriage being legalized nationwide or it could result in potentially the opposite of that or it could result in something in between. In his case, Jim Obergefell has been seeking to have his marriage recognized, specifically on his late husband`s death certificate. And so, he stood there this morning, in line at the Supreme Court, with a photo of his late husband and his Supreme Court admissions card with the number 1 on it, because Jim Obergefell is first in line every day, waiting to get into the court to hear. When the court first heard the oral arguments in his case, in April, Mr. Obergefell`s side was argued in part by a lawyer who is a legend in the activist world and the legal community, Mary Bonauto, but she had never before argued a case before the Supreme Court. And because it`s the Supreme Court, we don`t have video of the arguments. But we do have the audio for what happened in the court that day, on the marriage case, as they were arguing this case in April, and this is what happened as Mary Bonauto finished up her arguments. Check this out. (BEGIN AUDIO CLIP) MARY BONAUTO, ATTORNEY: And I will say before I sit down, if I may reserve my time, your honor, that in terms of the question of who decides, it`s not about the court versus the states, it`s about the individual making the choice to marry and with whom to marry, and the government. CHIEF JUSTICE JOHN ROBERTS: Thank you, Counsel. DEMONSTRATOR: The bible teaches that if you support gay marriage, then you could burn in hell for eternity. (INAUDIBLE) ROBERTS: General, would you like to take a moment? SOLICITOR GENERAL DONALD VERILLI: I will. Thank you, Mr. Chief Justice. Actually, Mr. Chief justice, if the court is ready -- ROBERTS: We`re ready. OK. JUSTICE ANTONIN SCALIA: It was rather refreshing, actually. (LAUGHTER) (END AUDIO CLIP) MADDOW: Justice Scalia said, hearing from the "burn in hell" guy was rather refreshing moment at the Supreme Court that day in April, as they heard the arguments on the marriage case. Supreme Court police ended up arresting the demonstrator, the guy who was yelling about hell and homosexuality being an abomination and what God thinks, the Supreme Court police charged him with making a harangue in the Supreme Court, which is an illegal thing. He`s done it before, at the Senate from the gallery, from President Obama`s inauguration from a tree, as you see here. But in April, at arguments in the pager case, he got inside the Supreme Court and he screamed and screamed in the court, but they dragged him out and then the solicitor general, Don Verrilli was able to begin his part of the case. And that was one of the more remarkable things that happened during those oral arguments. One of the other remarkable things was the moment when the conservative justice Samuel Alito mused out loud about a hypothetical adult brother and sister who have lived together for 25 years and who love each other just like married couples do. Just exactly like that. It was a weird moment. (BEGIN AUDIO CLIP) JUSTICE SAMUEL ALITO: Well, let`s -- let`s think about two groups of two people. The first is the same-sex couple who have been together for 25 years and they get married, either as a result of a change in state law or as a result of a court decision. The second, two people are unmarried siblings. They`ve lived together for 25 years. Their financial relationship is the same as the same-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way. Is there any reason why the law should treat the two groups differently? (END AUDIO CLIP) MADDOW: You sure they care for each other in the exact same way? If he means that, Justice Sam Alito in the marriage case, comparing gay couples, apparently, to brother/sister adult incest. And that was before he suggested it would be as absurd to let gay couples be married as it would be to let a group of four well-educated lawyers get married as a foursome. Things got a little weird on this subject with Justice Alito. (BEGIN AUDIO CLIP) ALITO: Suppose we rule in your favor in this case and then after that, a group consisting of two men and two women apply for a marriage license. Would there be any ground for denying them a license? These are four people, two men and two women, it`s not -- it`s not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let`s say they`re all consenting adults, highly educated, they`re all lawyers. (LAUGHTER) ALITO: What would be the ground under the logic of the decision you would like us to hand down in this case, what would be the logic of denying them the same right? (END AUDIO CLIP) MADDOW: Gay couples, random groups of four people with the same profession, adult brother/sister couples who sleep together. It`s all the same. There was a sort of creep factor to the questioning in this case from Justice Alito, certainly, but from some of the other justices, as well. And if you`re now sort of trying to read the tea leaves from these little excerpts so you can guess how the court is going to rule tomorrow or Monday, you do have a lot of leads to pick from. Listen to this exchange. This was the lawyer from Michigan, defending the Michigan state man on same-sex marriage. You`ll also hear two justices here jump in. Sonia Sotomayor -- happy birthday -- and Justice Anthony Kennedy. Michigan`s argument for why they want to ban gay people from getting married. That Michigan says, if gay people can get married in Michigan, that will mean more children will be born out-of-wedlock in Michigan, which is a hard thing to get your head around, right? At least that`s how it went for poor Michigan lawyer, Jon Bursch, who just got live dissected here by the justices. (BEGIN AUDIO CLIP) JOHN BURSCH, ATTORNEY: The out-of-wedlock birthrate in this country has gone from 10 percent to 40 percent from 1970 to today. And I think everybody would agree that that`s not a good result for children. And to the extent that you`re changing the meaning of marriage -- JUSTICE SONIA SOTOMAYOR: But that wasn`t changed because of the recent gay marriages. BURSCH: No, I`m not saying that at all. SOTOMAYOR: In Massachusetts, we`ve got data that it`s -- the rates have remained constant since they changed their law. BURSCH: Right. But as several justices have noted, that`s a very short time frame. The whole idea of -- JUSTICE ANTHONY KENNEDY: But you`re the one that brought the statistic up. And under -- BURSCH: Right. But, listen -- KENNEDY: And under your view, it would be very difficult for same- sex couples to adopt some of these children. I think the argument cuts quite against you. BURSCH: Well, what I`m talking -- KENNEDY: And goes back to the basic point where you began that you had some premise that only opposite-sex couples can have a bonding with the child. That`s -- that was very interesting, it`s just a wrong premise. (END AUDIO CLIP) MADDOW: Justice Anthony Kennedy, who everybody expects to author the decision in this case, if it is a pro-gay marriage decision, Anthony Kennedy there just picking apart the argument of the anti-gay marriage lawyer from Michigan at the Supreme Court when the case was argued. I just have one more for you. This is the moment where Justice Alito led a back and forth with the gay rights lawyer Mary Bonauto on whether or not the philosopher Plato was kind of into gay sex. (BEGIN AUDIO CLIP) ALITO: But did they have same-sex marriage in ancient Greece? BONAUTO: Yes, they don`t -- I don`t think they have anything comparable to what we have, Your Honor. ALITO: Well, they had marriage, didn`t they? BONAUTO: Yes, they had -- yes. They had some sort of marriage. ALITO: And they had same-sex relations, did they not? BONAUTO: Yes, and they also were able to -- ALITO: People like Plato wrote in favor of that, did he not? BONAUTO: In favor of? ALITO: Same-sex -- wrote approvingly of same-sex relationships, did he not? BONAUTO: I believe so, Your Honor. (END AUDIO CLIP) MADDOW: Yes, Justice Alito, I think Plato was into that. Can we talk about something else? At times, the argument was a little weird, right? This marriage case, when it was argued, the reason you haven`t heard this tape before, was at the time this case was argued in April, it was overshadowed in the news by the giant riots in Baltimore, which happened in the same time in this exact same news cycle. But this is a huge case, and the oral arguments in this case were really strange and fascinating. At one point, after Justice Kennedy and Justice Scalia kept talking about the unchanging nature of marriage for millennia, there was this moment where Justice Ginsburg jumped to point out that actually wives aren`t their husband`s property anymore and marriage has changed a lot, thank you very much. Just these great, fascinating and at-times strange arguments. All that and Plato`s sex life and Justice Alito`s weird incest thing and lawyers marrying in groups and the guy screaming about hell, fire, and damnation being dragged out of the courtroom, it was a very, very exciting argument. And now here we are, two months later, and we are about to get this ruling. And Jim Obergefell has been there first in line, waiting in line, and he has sat in the court to hear every decision the justices have handed down this month, but they have not yet handed down their decision on his case. And now, there are only two decision days left, tomorrow and Monday. We had kind of assumed that the justices would wait for their very last day to release this ruling, one of their most consequential rulings in modern history, let alone this term. But there have been reports and rumors and anecdotal suggestions that perhaps it`s not going to be Monday, perhaps it`s going to be tomorrow. Hold that thought. (COMMERCIAL BREAK) MADDOW: This is one of the funniest things I`ve ever had to correct. At the top of the show, I showed this photo, reaction to the Obamacare ruling today in the Oval Office. On the left side of your screen, Vice President Biden hugging chief of staff Denis McDonough, who`s making a funny face. And I said it was President Obama hugging Health Secretary Sylvia Burwell, which is what I thought at the time. Turns out, that`s not who the president is hugging. He`s actually hugging deputy White House chief of staff, Kristie Canegallo, at least according to Pete Souza. So wrong person, but right hug. My fault. I got that wrong. Very sorry. We`ll be right back. (COMMERCIAL BREAK) MADDOW: Do you have any liberal friends? If your liberal friends are like my liberal friends I bet you have had this conversation on loop for past several days. So, when is the Supreme Court rule on gay marriage? Friday, in time for gay pride weekend. No, it would be Monday, biggest decision always goes last. When will the court rule on gay marriage? It will be Monday because it`s going to be a bad ruling and they don`t want riots at gay parade. It will be Friday because it`s going to be a good ruling and they want it to be the best pride ever. It`s going to be Monday or it`s going to be Friday -- we don`t know. But we can relax for a minute, because we are joined now by "Slate" senior editor and legal correspondent Dahlia Lithwick, who we know knows all. Dahlia, thank you so much for being here. DAHLIA LITHWICK, SLATE: It`s a trap. Run. MADDOW: There`s no way you can got out of this one. I know. We don`t actually know if it`s going to be tomorrow or Monday, do we? LITHWICK: We don`t. We really, really don`t. MADDOW: Why is everybody -- well, not everybody -- why are people telling me it will be tomorrow? LITHWICK: Well, I think if you think the court is a sentimental place or that Justice Kennedy is a kind of poetic justice, it`s not just that pride is happening. It`s that tomorrow is the anniversary of two really consequential gay rights cases of Lawrence and of Casey. And so -- I`m sorry, Windsor. And so, I think there`s some reason to believe that that day could be significant and if the court wanted to do something with certain symmetry and poetry, it might be nice to drop the next big gay rights decision on that anniversary. But I`m not sure the court is all that fussed about that sort of thing. I think probably more likely we are just getting opinions and dissents and concurrences in line and they`re going to come when they come. MADDOW: OK. So, to be clear, the anniversary tomorrow is Lawrence v. Texas, which was the striking down sodomy laws, and it`s Edie Windsor case, the big marriage case from two summers ago. LITHWICK: Correct. MADDOW: OK. On the Obamacare ruling today, my read on this and I said this on the air earlier and I want to get your correction of it, particularly if I said it wrong. My read was it wasn`t just the rejection of a challenge to Obamacare today, which would get us back to zero. I feel like the ruling today made Obamacare stronger. It made it harder for some future Republican president to gut the law on his or her own say so. Is that your reading of it? LITHWICK: I think that`s absolutely the reading. I think if John Roberts wanted to hedge this so that the next president could come along and say we`re going to defer to the IRS, with this what`s called Chevron deference where you defer to the agency to interpret its own rules. He could have done that. It would have been a narrow ruling and it would have left a big opening to come in the next president and say, OK, IRS set new rules. He did not do that. He made a statutory ruling that said this law does not say what the challengers say. And so, I think it is quite right. I think was a thumping for that reason alone. MADDOW: Yes. And you can tell in the tone and specifically in that -- not just that specific part of the legal reasoning, all the language in terms of the way they are talking about this as something that shouldn`t be trifled with because it is the America health care system. I thought it was remarkable. Also want to ask you about the other side of the ruling, Justice Scalia, one of his trademark, honestly, kind of awesome dissents today. At one point, he called the majority ruling "pure applesauce". That was the whole sentence, "pure applesauce." Is his quotability on these things strategic or does he actually think like a cartoon character? LITHWICK: No. I think, you know, when you`re throwing around jiggery-pokery, you are bringing it. I think he -- a couple of things. I mean, certainly, he is the most quotable justice. Sometimes it borders on A.M. radio quotable, but I think he`s certainly -- he`s a word smith and eh thinks this way and loves this. But I also think, Rachel, he is angry. You know, at the heart of it what the court does is fully renounces this interpretive mode of thinking that the only thing that matters when you look at a statute is what those four words established by the state what that means in the dictionary. If it guts the statute so be it. And he didn`t get, not four votes, not five votes, he got three he votes for that proposition and I think he`s really upset. This is his life`s work being renounced by the chief justice. MADDOW: Dahlia Lithwick, senior editor and legal correspondent at "Slate Magazine", she who knows all -- Dahlia, thank you for talking to me again and again, as many times as I need it. Appreciate it. LITHWICK: Thanks, Rachel. MADDOW: We`ve got more to come tonight. Please stay with us. (COMMERCIAL BREAK) (BEGIN VIDEO CLIP) BRANDON RISHER, GRANDMOTHER KILLED IN CHARLESTON SHOOTING: As I stand here today, and I look down and see my grandmother, all I feel is pain. Another part of me is to say most people in death don`t get to represent a symbol. She and those nine victims get to. She gets to represent something that we all know is there, which is hate, right? She was a victim of hate. She can be a symbol for love. That`s what she was in life. (APPLAUSE) (END VIDEO CLIP) MADDOW: First of nine funerals for the nine victims who were killed in Charleston, South Carolina today. The first service was for 70-year-old Ethel Lance. She`s a woman with a high school education who this morning we remembered among others by her granddaughter who was now determined and on her way to get her PhD. She worked at the Mother Emanuel Church in Charleston for decades as the sexton, who`s basically caretaker of the church. Today, some of the most powerful people in the state filed in to the pews to pay their respects. They released doves at Ethel Lance`s gravesite today. Later in the day, across town, Governor Nikki Haley spoke at the funeral for another one of the victims, Sharonda Coleman Singleton. She was the speech therapist and a girl high school track coach at the local high school. She`s a mother of three. Tonight, the body of Reverend Clementa Pinckney has returned to Emanuel AME Church in Charleston after laying in state at the state capital rotunda yesterday. Today, hundreds of people filed in to pay their respects at Mother Emanuel. Tomorrow, Reverend Pinckney will be laid to rest following a funeral at the College of Charleston. More than 5,000 people are expected to attend that service for him, including President Obama, First Lady Michelle Obama and Vice President Biden. They will all be there in person. We`ve also learned that former Secretary of State Hillary Clinton will attend. A senior administration official says tonight that President Obama will be spending tonight working on this eulogy for Reverend Clementa Pinckney. It will not be a policy speech. It will just be a remembrance. That does it for us tonight. We will see you tomorrow. Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL." Good evening, Lawrence. THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END