SCOTUS Lurches to the Right

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S1: You’d think it would be pretty simple to report about what happened at the Supreme Court this term, you can dial right into oral arguments. The court’s rulings are completely public. But Slate’s Mark Joseph Stern, he says he could start a little collection of the Supreme Court headlines he thinks totally missed the mark. This is from the AP. It came out last week. It read, Unusually agreeable Supreme Court ends their term with conservative wins. What do you think about a headline like that?

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S2: Wrong and bad. Bad. Very bad.

S1: Mark’s got a very particular way of looking at the nine justices, his headline last week when all the decisions were finally out, the Supreme Court’s conservatives have laid the groundwork for the devastation to come.

S2: You would have to be so Pollyanna ish and so blind to the internal dynamics of the court to believe that this term reflected any kind of actual agree ability across the justices. What we saw instead were bitter compromises and a couple of sort of merciful punts that will not, in the end, I fear, forestall the broader damage for that much longer.

S1: It’s funny because you’re making it sound more like a hostage situation for the liberal justices.

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S2: Yes, absolutely. That is what we’ve got going on here.

S1: To illustrate his point, Mark says just look at one of the court’s unanimous decisions this year, Foltyn versus Philadelphia. In this case, the justices mandated the city of Philadelphia had to continue working with Catholic Charities, even though the group openly discriminates against gay couples who want to foster children. And remember every liberal justice signed on here.

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S2: But I really resist even calling this unanimous because I have no doubt I would bet every penny that I own that if the liberal justices had two more votes to side with Philadelphia against the agency, they would have.

S1: Why do you say that? Is there something in the way they wrote that makes you think that is there? Do you have some inside gas for me?

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S2: Well, I don’t have a look. I don’t have any any true inside. What I will say is, first of all, they, I think, are in damage control mode. They are trying to sign on to the least bad option in a case like this. And I think that based on their questions during oral arguments, based on their past writings and their past votes, the liberal justices understand that this is a real affront to the equal dignity of same sex couples.

S1: There was a moment last year when Donald Trump was rushing Amy Coney Barrett onto the bench and a conservative super majority seemed inevitable. Liberal activists got worried, started talking seriously about the need to add more justices to the Supreme Court. Now, all that talk died down. I went back and I looked at what you and Dahlia wrote right as the term was starting up this this past year. You wrote, The Supreme Court term will either end with catastrophe or with 13 justices. We do not have 13 justices. So was this year a catastrophe?

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S2: Yes, this was catastrophe. Our prediction was correct. This was catastrophe. I feel confident standing by that one.

S1: Today on the show, in a term filled with so much supposed agreement, you’ve got to read between the lines to see how relationships on the Supreme Court are fracturing and what the consequences are going to be for the rest of us. I’m Mary Harris. You’re listening to what next? Stick around. Mark says it’s easy to get lost when the Supreme Court hands down dozens of individual rulings each spring, but if you put each decision in a wider context, year over year, you’ll see these patterns emerge and it’s those patterns that concern him. We’re going to talk about the last two decisions of the term. Put them in that wider context. The first case will lay out is Bernick versus DNC. In this case, Democrats sued the state of Arizona for restricting the way people vote. The state had put a stop to so-called ballot harvesting that lets community organizers collect ballots. Arizona also said that if residents cast their ballots in the wrong precinct, their votes would get thrown out. And both of these rules were much more likely to disenfranchise people of color. The thing is, the Supreme Court has a history with these sorts of rules. A few years back, the justices decided to limit the way the Voting Rights Act protects people. So this year’s ruling, it was kind of a rematch.

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S2: The Supreme Court gutted part of it in 2013, Shelby County v. Holder. But the Voting Rights Act is still here. And it has this thing called a results test. And what this law says is that the VRA doesn’t just ban voting restrictions that are intentionally racist because Congress understood that legislators don’t usually go onto the state House floor and say, I hate black people and I don’t want them to vote. And that’s why I’m passing this law. The Voting Rights Act also prohibits restrictions that result in unequal opportunity for racial minorities to vote, that have a disproportionate impact on racial minorities ability to cast a ballot, even if there’s not overt proof of racist intent. And so, again, the 9th Circuit said, look, these laws, both of them fall very heavily on the shoulders of racial minorities. They disproportionately impact these individuals in a way that they do not impact most white people. And so they violate the Voting Rights Act results test. And by a six to three vote, rather predictably, the U.S. Supreme Court reversed that decision and upheld both of Arizona’s laws.

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S1: Do you want to talk about the reasoning a little bit? Because my understanding of the reasoning is that. People should just do it better. Rain like you should just get your act together a little bit, right?

S2: Yes. So Justice Kagan in her fantastic dissent in Burn a Bitch called Justice Alito’s majority opinion a law free zone. And I think that really hits the nail on the head. What’s remarkable about the majority opinion in Brunswick is how totally disconnected it is from the text of the Voting Rights Act, from the text of the law that Congress passed. And remember, this is supposed to be a textualist court, right. A court that just looks at the plain meaning of the words that the people’s representatives passed. But instead, Justice Alito said, OK, well, we don’t really believe that Congress could have possibly intended to prohibit voting restrictions that have a disproportionate impact on racial minorities. We just don’t think that could be, even

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S1: though that’s what they said,

S2: even though that’s what they said. And pretty clear terms, by the way. But Alito said so instead, we’re going to create these kind of a textual factors. We’re going to create these new rules that are totally divorced from the law itself. And in order for a law to be illegal under the Voting Rights Act, a court has to go through these factors first and find that they don’t apply. And so one rule that Alito comes up with is that if there are other opportunities to vote, so if it’s generally pretty easy for the average person to vote in a state, one specific restriction on one specific method of voting probably won’t be illegal, even if that one restriction targets the most popular method of voting among racial minorities. Alito says it’s still probably legal. Another rule that Alito concocts is that laws that were in place in 1982 when Congress passed the results test are sort of the baseline for voting rights and that if if if a state legislature passes a law that was common in 1982, then it’s probably not illegal today, which is shocking because almost every single state severely restricted both absentee voting and early voting in 1982. So Alito has essentially opened the door to unlimited cuts among states to early voting and absentee voting. And there’s almost no way to challenge those laws anymore because Alito says nineteen eighty two is the baseline. Never mind that Congress specifically passed this law because it felt that many voting restrictions in place in 1982 were unlawful. If Congress passed as a law, as an amendment to the Voting Rights Act, what the Supreme Court did in Bernard, which there would be massive outcry rallies the size of the women’s march in the streets, there would be protests and millions of letters flooding into Congress, huge campaigns to call your representatives. There would be a ton of news segments about it. It would dominate late night for weeks. It would be huge. It would be understood as a direct assault on equal access to the ballot in the United States is a huge blow to voting rights, the likes of which we have not seen from Congress in decades since the Jim Crow era, maybe, but instead because the Supreme Court did it and because it was wrapped in this kind of garbled legal ease. It got one news cycle, it got 24 hours, and then people moved on to their July 4th weekend. Nobody wants to be thinking about the gutting of the Voting Rights Act while they’re grilling hot dogs. And I think that is doubly catastrophic because it’s not just a terrible policy outcome, a terrible legal outcome. It’s not the kind of earthshaking news that people internalize and understand. Instead, it passes by. It floats away like so many other Supreme Court decisions, like tears in the rain. And we get a flood of end of term summaries that say everything wasn’t that bad. And people forget until Arizona flips back to red because tens of thousands of native and Hispanic people weren’t allowed to vote.

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S1: So with the Bernanke decision, you can see this arc in 2013, the Supreme Court hobbles the Voting Rights Act in one way. Eight years later, the court hobbles the law another way, a steady conservative progression. Then there’s Americans for Prosperity versus Bonta, a dark money case. It also came out on the final day of this term. Chief Justice John Roberts wrote the majority opinion.

S2: This case involves a California law that requires charities, including very political charities like Americans for Prosperity, which is a Coke run organization, have to disclose their very high dollar donors to the state attorney general because 25 percent of charities are located in California. Charitable fraud is a real problem, and one of the few ways to sniff it out is for state law enforcement to reach out to donors and make sure that charities are doing what they promised they would do. And here the Supreme Court said that this law is unconstitutional on its face, that it violates the First Amendment right to freedom of association, that it unconstitutionally chills freedom of speech and freedom of association, and that basically there’s no way it could be applied in a constitutional manner. And so it has to be struck down in its entirety.

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S1: And what happened here, my understanding is that somehow the information that was supposed to be kept confidential leaked out and so you could figure out who contributed to what. And was the idea that that made people vulnerable, that folks, you know, knew who is giving to these Koch affiliated organizations, and so therefore we’re targeting them in some way.

S2: So I think that Roberts would have reached the same conclusion if the state of California had an airtight security protocol here and not a single donor disclosure had leaked. But, yes, that was part of the court’s reasoning, part of Robert’s reasoning that unfortunately, the attorney general did not have great Web security when this law first took effect several years back. Unfortunately, some of these these disclosures did leak to the public. I will note that the plaintiffs actually hired an expert hacker to find a way around California security protocols to obtain this information and then called that a leak. So it’s not exactly a totally organic leak. But leaving that aside, the conservative justices have a deep, deep concern for these donors, for these California billionaires who are turning over hundreds of thousands of dollars to groups like Americans for Prosperity and think that, you know, they will be so harassed, they will be so targeted if their names are revealed, you know, their feelings will be so hurt that the courts cannot possibly uphold this law because it would just be too chilling to these sweet, benevolent guys, zillionaires who only want to purchase elections and, you know, just are asking for the basic constitutional right not to have their feelings hurt.

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S1: And this decision is an important change, because when the Supreme Court voted to allow corporations and other outside groups to freely spend money on politics the way they did with Citizens United a decade ago, disclosure was an important element of their decision. In fact, the justices agreed disclosure was an essential tool. Now disclosure is presumed to be unconstitutional. I want to just pause for a second and think about these two cases, the voting rights case and the donor disclosure case as one, and put them in the broader context, because we talked a little bit about the trouble with seeing each individual case, but then never really zooming out to see the forest for the trees. And I think these are two really good examples of that. What it looks like is kind of this reverse game of Jenga where you have the court, you know, picking away slowly but surely at rules and ideas with the idea that in the end the whole thing will topple as opposed to like, you know, I think we’re looking at brick by brick most of the time. Yes. But then when you look at all of these cases, you see how, oh, hold it. There’s actually a methodical thing happening here and you might not see it if you just look at case by case or year by year.

S2: Absolutely right. And my colleague Dahlia Lithwick calls this the John Roberts two step. And we’ve seen it many times before. And in fact, when the Supreme Court gutted Section five of the Voting Rights Act in 2013, that was the second step. The first step had come a few years earlier in a case that most people did not pay a ton of attention to, where John Roberts said, OK, well, we’re upholding. The Voting Rights Act are upholding Section five, but we’re very concerned about it. We’re not totally sure if it’s constitutional Congress. You might want to take a look at this. So then a few years later, when when he dismantles that, he can say, well, we warned you. And that’s this is the Roberts to step in action in Shelby County. He says, well, section two is still there. We’ve still got this permanent nationwide ban on on race discrimination, in voting. And then in of it, she signs on to an opinion that says we don’t really like what what Section two says. So we’re going to water it down to a kind of meaningless standard that’s going to make it impossible or near impossible to block voter suppression laws in court. And, you know, Roberts gets a lot of credit for those compromise opinions and not as many people pay attention to what comes a few years after those compromises when he decides, OK, enough compromise, now it’s time to pull the trigger. And so looking at these case by case, as you said, I think is the right metaphor here. You can’t just take a look at the last opinions to come down at the end of the term and say not as bad as it could be, will give it like a B minus. You have to look at how John Roberts is selectively pulling out the Jenga blocks and getting ready for the tower to crumble.

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S1: When we come back, a deeper look at Justice’s Amy Coney Barrett and Brett Kavanaugh. We’ll be right back. Can we talk about what we learned about the justices as people this term, it was obviously Amy Coney Barrett first term on the bench and there was a lot of concern when she replaced Ruth Bader Ginsburg about how she would rule and who she would be. And I think some of the narrative around her coming out of this term is, oh, she’s she’s more moderate than we expected. But I wonder if you would agree with that.

S2: Totally disagree with that. She is not moderate. That is a complete misinterpretation of what game she’s playing here. I think the most important data point is that she’s only been on the bench for about eight to nine months. She will be on the Supreme Court for 30 more years. Why would she rush to issue a ton of conservative decisions in her first nine months on the bench when she’s got decades to set the trajectory of this court? And I think when you keep that data point in mind, her votes make a little bit more sense to me.

S1: John Roberts,

S2: she’s doing the John Roberts and so is Brett Kavanaugh. I think they both do have some concern for the institutional legitimacy of the Supreme Court, at least insofar as their power rests on that legitimacy. Right. The Supreme Court doesn’t have its own army. It can’t send its marshals to go enforce a ruling. But I also think the most notable votes that Barrett and Kavanaugh cast were to not hear certain cases. So think about the Gavin Grimm case. Right. A trans boy who was not allowed to use the boy’s bathroom at school. The lower courts found in his favor and the Supreme Court refused to take that case. I do not think that Amy Coney Barrett and Brett Kavanaugh respects the rights of transgender people. I really doubt they think those lower court decisions were correct.

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S1: So what do you think happened?

S2: I think they know that next term is already full of blockbusters. They’ve already set their sights on Roe vs. Wade. There’s going to be a major abortion case next term. There’s going to be a major gun rights case about concealed carry. And they don’t want to overstuff their docket with culture war stuff. They’re slowing the goal. They’ve got decades to do this. There’s kind of there’s a million more trans kids out there being told that they can’t use the right bathroom at school, filing lawsuits. They can wait. They can afford to wait. And that’s something that I think their conservative benefactors don’t always understand. You saw a lot of kind of whining and moaning when the court turned away the Gavin Grimm case. You know, where is Amy Coney Barrett? Why isn’t she following through for us? Look at how much we did for her. But I think Barret’s got the right strategy here. If your ultimate goal is to strip transgender people of their legal rights, you don’t want to just immediately take that up and burn trans equality to the ground. The same time you’re overturning Roe and creating a constitutional right to concealed carry, then I think the game is too obvious. You’ve got to slow your roll, as you put it, and pick your battles and prioritize the things that truly matter to you. And so I think we have learned that overturning Roe v. Wade seems to matter a lot to these conservatives.

S1: Yeah. Is there a difference between the Trump justices and the other conservative justices?

S2: So, you know, the Trump justices are not all the same. I think that Barrett and Cavnar are different from Gorsuch. I think that Gorsuch is in some ways a little nihilistic. Gorsuch truly does not care about the impact of his decisions.

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S1: He do say that that’s that’s harsh.

S2: Is that is that harsh? I think he would take it as a compliment because the philosophy that he promotes is pure textualism, pure originalism. Right. We follow the text by its original public meaning and we don’t look to the consequences. Barrett and Cavnar are very different. They definitely care how they are perceived. I think Cavnar wants to be seen as a reasonable moderate guy, as a likable guy the conservative liberals can love. And I think Barrett wants to be seen as a serious intellectual, as a real professor who brings kind of firepower to the courts as a brilliant thinker and jurist. And they both care about their public perception and they understand that the impact of their rulings will factor into that perception.

S1: Is that good news? Because it means that they are fundamentally influential in some way.

S2: Maybe I am skeptical that they are influential, I think that this manifests itself more in decisions like the juvenile life without parole case, where Brett Kavanaugh voted to restore juvenile life without parole, but wrote in his opinion, oh, you know, we care so much about these young people. And the states and governors can grant clemency and legislatures can change the law. He essentially virtue signals. Right to make it to make it seem like his rulings aren’t as bad as they are. He did this in last year’s big gay rights case. He voted against gay rights, but then said, oh, but I love gay people so much. You’re my best friends. Please keep inviting me to your soirees. You know, I really I wish you had rights is just so sad that you don’t. And I have to rule against you. That’s how Kavanagh’s desire to be liked and admired and seen as a centrist manifest itself. I think with Barett, she’s she’s again playing a little bit of a different game, although it leads to some of the same results where she wants to be viewed as not a partisan and not even an ideologue, but a genius. And I do think she’s very smart, but I don’t think that she’s going to let public outcry or liberal rage influence the way that she’s voting.

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S1: While we’re talking about individual justices, I want to make sure we talk about one more. Justice Breyer, there’s been a nascent movement to get him to retire with the fear because Mitch McConnell has said if he is in power, he will not seat a justice for President Biden. And I’m just wondering what you make of all this. Like, first of all, is Breyer influenced, Bill, in this way? Is any of this helpful?

S2: No, I don’t think that Breyer is influential. And Dahlia Lithwick wrote a terrific piece about this, that trying to make Breyer understand the partisanship of the courts is like getting the Easter Bunny in a headlock and trying to make him admit he’s not real. Buyer has totally bought in to the mythology of the Supreme Court. And somehow, despite working with Sam Alito for more than 15 years, he really thinks that the Supreme Court is a glorious, nonpartisan institution. And more than that, he seems to think that Congress works, that the Senate works, that when he chooses to retire, he will be replaced and it won’t be a big deal. Despite watching, you know, the Garland Scalia thing, despite seeing Justice Ginsburg die and be replaced by Barrett. I think there’s just maybe like a pipe burst in the Supreme Court decades ago that filters in some rare gas that makes justices deny their own mortality, like I think he really believes look all live as long as I want and I’ll just keep working as long as I want. And when it’s time to retire, everything will work out. And do you

S1: think Briar’s being selfish?

S2: Yeah, I do. I think it’s being selfish. I think he has a really cool job. It would be super fun to be a Supreme Court justice. I mean, yeah, it’s like somewhat hard work, but you get the summers off to go chillax in Austria or California or wherever you want to go. You’ve got clerks to do the heavy lifting, to write the boring opinions, and then you can just kind of jump in when you’ve got something interesting to say. I think it’s it’s a really awesome job. And he wants to keep it for a while longer. He’s not ready to give it up. And that, I’m afraid to say, is kind of like the definition of selfishness.

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S1: You’ve alluded to what next term looks like, the fact that there’s an abortion case, there’s a gun rights case, and you’ve publicly worried that even though the justices seem to be taking this brick by brick approach of plucking away rights as they go and sort of kicking legs out of tables and watching them fall, that they could come in next session and say, screw it, let’s be legit. Yes, which I loved when you said that. But do you really think that’s going to happen, given what you saw this term like? Is that. I know that there are people who are more moderate than you who are like, Mark, you know this it’s not going to be that bad, but is is the real fear screw it, let’s be legends, or is it that they just take another brick or two away and we realize in 10 years what legends they were?

S2: Well, why not both? There are a lot of rights out there that are very vulnerable at this Supreme Court. And something I’ve tried to stress today is this matter of priorities of what is at the very top of the list for the conservative justices and what can wait for a few terms or a few more years. And I think that by taking up this pair of cases, the challenge to Roe v. Wade and the challenge to limits on concealed carry, the conservative justices have revealed to priorities they really want to overturn Roe and they really want to establish a constitutional right to concealed carry and expand the scope of the Second Amendment. I don’t see any other explanation for those moves because remember, this time last year, the Supreme Court had just turned away a bunch of very similar cases. The court had turned away abortion cases and had turned away gun cases. It had said, we’re not dealing with these. It’s not our priority. And there was great reporting by Joan Biskupic that revealed the reason why was because the chief justice more or less said, I will not go with you, like I will not walk with you down this road to the rest of the conservatives. He said, I am not ready for this. This is not what I want yet. Yes, this is not what I want yet. But now the chief justice has been sidelined. And, you know, it only takes four votes for the Supreme Court to hear a case just for. And so last year, Cavnar, Gorsuch, Alito and Thomas did not all vote to take up all those big cases because they knew Roberts would not go with them, would not walk with them down that road

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S1: to be the fifth vote to actually do what they wanted when the case

S2: came to them. Exactly. And this year, something changed. What changed? Aaberg was replaced with Amy Coney Barrett. And so those four votes that weren’t there last year because they were afraid of John Roberts, they suddenly materialized because there’s no longer a reason to fear John Roberts, because Barrett is here and there are five ultra conservative votes for these priorities.

S1: Well, there’s another way to see that, which is that there are four votes to take the case, but there may not be five votes to rule the way the ultra conservatives want to rule.

S2: That is a plausible theory, but it rests on the four ultra conservatives being really naive or ignorant or tactless, because, again, this time last year, they said that fifth vote isn’t here. So we’re not going to take up these cases. And now they’ve decided the fifth vote is here. Do we think that they misread someone? Do we think that they’re calling it wrong? I don’t know. I don’t know the answer. Maybe. Yes, maybe we’ll be pleasantly surprised next year. But it seems to me that if there were four votes to take up these hugely contentious cases, then there had to have been some summit behind the scenes. There had to have been some conversation where five justices all agreed that they would go the same way on these cases, that they would not take this risk without making sure that there was a solid majority to do the work here and to issue that conservative decision that Republicans have been dreaming of for decades.

S1: Mark Joseph Stern, thank you so much for joining me.

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S2: Always a pleasure. Thanks so much.

S1: Mark Joseph Stern reports on courts and the law for Slate. You can catch him and Dahlia Lithwick on the latest episode of Slate’s Amicus podcast. They will dive even deeper into all things Supreme Court. Go check it out. All right, that’s the show, What Next is produced by Mary Wilson, Carmel Delshad, Davis, Landolina, Schwartz and Danielle Hewitt. We are led by Allison Benedictine, Alicia Montgomery. And I’m Mary Harris. You can go track me down on Twitter. I’m at Mary desk. Thanks for listening. I’ll catch you back here tomorrow.