A Dream Supreme Court Term for Conservatives

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S1: Mark Joseph Stern covers the Supreme Court for Slate. So this is not how I expected him to describe his first day back. Terrifying. Oh my God it’s so terrifying.

S2: I expected less dread in his voice.

S3: I am just chilled to the bone popping Xanax left and right. Like doing my breathing exercises. This is bad folks.

S4: Note to self do not call Mark when you need someone to chill you out.

S3: This is gonna be a really bad term. This term is going to be a blood bath for progressives. It is going to usher in a conservative revolution in jurisprudence that knocks down decades worth of liberal precedents. It is going to fundamentally alter the scope and nature of our federal laws and state laws. It’s gonna be a wipe out and I’m terrified and I’m not ready for it and I kind of want to just crawl back into bed to hug Mark. I always do.

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S4: Why do you think this term is going to be a bloodbath.

S5: Those are that’s a big word because part of the reason that last term was kind of sleepy and kind of pleasantly surprising is that the Supreme Court ducked a bunch of big cases it ducked cases about abortion. It ducked cases about immigration and DACA and dreamers. It basically just said look this is Brett Kavanaugh his first term and we’re all going to kind of work together to keep our heads down and avoid as many controversial disputes as we can. And it and it mostly worked.

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S1: It mostly worked because of one guy. Chief Justice John Roberts.

S5: Roberts willingness to kind of tip toe to the left from time to time. That is not going to be on display this term pretty much at all.

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S4: Hold it. Why do you say that. If it sounds like you’re reading the justices minds they wouldn’t like that.

S5: ROBERTS only flips when the legitimacy of the court is at stake right. He’s an institutionalist. Roberts does not want the American people to think that the Supreme Court is a political branch. He wants it to rise above politics. That’s the reason he voted to block the census citizenship question because it had become so painfully apparent that the Trump administration was just lying and lying to the court. And Roberts could not abide by that. But I don’t really see any cases along those lines this term. This term is just a bunch of straight forward cases about whether the law should be liberal or conservative. To put it in very reductive terms and when those cases come before John Roberts desk he sides with the conservatives.

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S6: Mark Joseph Stern is here with a bunch of spooky stories for progressives anyway only these aren’t ghost stories. They’re legal cases. Cases you’re about to see play out in front of the highest court in the land.

S3: I am here to terrify you and to hopefully make you extremely afraid of the federal judiciary for the rest of your life.

S6: Happy Halloween. Mark a start. I’m Mary Harris. You’re listening to what next. Stick with us.

S4: So the Supreme Court opened yesterday. Today we’re seeing one of these cases that you’ve said is a potential blockbuster. It’s actually three cases a trans woman and two gay men coming to the court and saying we were fired and it’s sex discrimination. Can we talk about that a little bit.

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S7: OK. So here’s what you have to understand. Federal law has for a really long time prohibited discrimination against employees because of sex. Right. So we all know that a boss can’t say I don’t like women. Women are really bad at working. They should be at home doing stupid things. So I’m going to fire all women right we know that. So. So think about it this way. There are two employees at a company. They’re a man and a woman right. But both of them happen to get married on the same weekend. Terrible timing you know friends have to choose one wedding or the other it’s a huge social catastrophe.

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S5: But there you have it. Get back to the office on Monday the man puts up a picture of her husband on his desk nice little framed picture. The woman puts up a picture of her husband on the desk. You know a nice little frame. The employer comes in and he looks at the man and he looks at the picture of the man’s husband and he says I’m firing you. Why did he fire that guy. OK. Was it because he was gay. Yes. That’s part of it. But if he had been a woman then he wouldn’t have been fired because the boss says hey women can marry men but men aren’t supposed to be marrying other men that squeaks me out. The plaintiffs in this case say look if you change the sex there is no discrimination that means this is sex discrimination. Sex was a key factor in the discrimination.

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S8: So how is firing a trans worker sex discrimination.

S5: So that’s even simpler because what’s happening there is an employer is looking at someone who transitioned from say male to female and saying hey you present as a woman. But I think that you should act like a man. And so the employer is saying you’re not allowed to transition from one sex to the other that is off the table for me. And it is literally impossible to perform that calculus without taking the person’s sex into account.

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S8: So what are the rulings before this case reached the Supreme Court that give you any idea of what’s going to happen now.

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S5: Yes. So it’s interesting because you have a bunch of lower courts and judges including very conservative Republican nominees agreeing with the theory that I just laid out and saying look we’re textural lists we just look at the words and call balls and strikes. Right. You can not describe an instance of anti-gay discrimination without taking the person’s sex into account. So this is sex discrimination. You have seen far more judges side with that theory than you’ve seen them side against it. It is definitely a consensus in the lower courts though there have been some deviations. Now the theory is gonna be tested at SCOTUS and we know SCOTUS does not mind overruling all of the lower courts and reminding them who’s boss. So everyone is very nervous in the advocacy world because they are fearing and perhaps predicting a wipe out at SCOTUS.

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S9: Another group that’s fearing a wipe out at SCOTUS. Immigration advocates.

S4: That’s because in November the justices are going to decide whether the president has the power to rescind Daka the policy that lets so-called DREAMers stay in the country legally even though their parents brought them here illegally. OK. So we have this case that will test whether the president can rescind Dhaka. Tell me a little bit about it how it got here and what we know so far.

S5: Yes. So here’s the thing. You may remember Attorney General Jeff Sessions. He was not good at his job. He was actually quite bad at it because one of the easiest things that an administration can do is repeal its predecessors policies Dhaka which as we know deferred deportation to undocumented immigrants who were brought to the country as children right give them work permits allowed them to live here Dhaka was just an executive policy that Barack Obama set up should have been easy for Jeff Sessions to come in and say we don’t like this policy we’re scrapping it. But instead he did something really weird. He said I think that Dhaka isn’t just bad. But I think it’s unconstitutional. I’ve made this this sort of ruling. And so I’m going to rescind it because of my belief that it’s unconstitutional. And that is very strange because that is not how it actually works. What you are supposed to do is say we don’t like this policy so we are taking it away. You are not supposed to make up this new constitution theory and change the face of federal law on the basis of your own speculation. Courts don’t like that. It’s just not the kind of thing that attorneys general are supposed to do.

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S8: This sounds like the census case all over again where you had Wilbur Ross kind of going to the Justice Department and saying hey maybe you could find a reason why we need this question on the census. I wonder if that’s the tack that the people on the other side are taking whether they’re looking for documentary evidence of this.

S5: Well I don’t I don’t know that they have found any. What they have found instead is just a lot of circumstantial evidence that suggests the administration was acting in bad faith that it was acting for sort of arbitrary and artificial reasons and they’re going to the court and saying look you know even if we accept that that Trump can do this he has to do it the right way and that’s very similar to the Census litigation as you pointed out. You know maybe this is something they can do but they have to follow the rules. I don’t think the court’s going to accept their arguments but it’s definitely the smartest litigation strategy. It’ll be interesting to see how it plays out.

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S8: There’s another case I want to talk about because we spoke about it earlier this year and it’s gone through some interesting changes in the months since. This is this new york state gun law where we talked about it back in January because you said when you saw that the court had decided to take up this case you wanted to raise the red flag and say this is a big deal. So update me a little bit on where this case is.

S7: Yeah. So it’s a big deal because New York City had a law that prohibited gun owners from taking their firearms anywhere except in New York City shooting. And so if you’re going to the grocery store if you’re going to the park if you’re going to a shooting range outside the city or a second home in another state you couldn’t bring your gun. Right.

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S4: And it basically became this way for the law enforcement agencies to you know they could arrest you if you had a gun basically almost any time unless you could prove you were going to a gun range.

S7: Yeah that’s exactly right. This was a way to prevent public carry. You know New York has banned public carry and they said well we don’t want this sort of loophole where people can just pretend to be going somewhere valid like we want a limited number of places where people can take their guns. So the Supreme Court took a challenge to this law in New York repealed it. The law is gone. It is done. It is dead. Gun owners in New York City are free to take their firearms to second homes and shooting ranges far away from Manhattan or either of the other four boroughs.

S5: So the question now is can the courts still decide this case. And the court’s not really supposed to because it’s supposed to decide real controversies like the Constitution actually says that. And this is not a controversy. This is just kind of a philosophical fight over whether New York should have ever had this law. The law is gone. And so what we’ll see here is a kind of a philosophical dispute and also a sort of indication of how aggressively the Supreme Court wants to move on the second amendment. Now that Cavanaugh is there you know five justices could still say well screw it we’re the Supreme Court we can do anything we want and we’re going to strike down this law even though it doesn’t exist anymore. I think that’s a real possibility.

S8: Huh. What I thought was so interesting about this case was that New York repealed the law but it wasn’t just this law. New York seems to be seeing the things that you’re seeing that this is a very conservative court and trying to scrub all kinds of things from its law books just to avoid going to the court like in addition to taking this gun law off the books. They also took a law off the books about conversion therapy gay conversion therapy because they saw a lawsuit coming their way and they said we don’t want to have a law in place that is going to somehow take away from LGBTQ rights.

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S7: Yeah. And in that situation there was not a huge downside to New York City repealing its conversion therapy ban because New York state had already passed one. So the city basically said look there’s already a state ban. That one’s going to get sued too. Why should we have to spend a ton of time and money defending our own ban when there is a real chance that the courts are going to strike it down. And I should note that a federal court in Florida is strongly considering striking down a conversion therapy ban there. This is a real problem for LGBT advocates it looks like the Supreme Court is going to very aggressively protect the rights of conservative Christians in areas like abortion and anti LGBT speech including sort of torture which is what conversion therapy is. So yeah New York City is looking at the Supreme Court looking at Justice Brett Kavanaugh and saying we don’t want anything before that guy. We do not want him to touch our law. So whatever they think is gonna get challenged wherever they think is gonna get struck down. They’re going to repeal it. First.

S10: I wanted to talk about one more case with Mark. This one has to do with abortion rights in Louisiana.

S8: I’m glad you brought up abortion because of course just last week the court added a case on abortion. And I want to talk about it. It’s this Louisiana case. And what’s interesting is that they made a decision on basically the same issues that are at play here a couple years ago but now it’s back. So explain exactly what’s happened here.

S5: Yeah I mean this is another trap law right targeted regulation of abortion providers also known as a trap law. And the court has seen this before this particular law is in Louisiana. It says that abortion providers have to get admitting privileges at a hospital within 30 miles of their clinic. Texas passed an identical law years ago and the Supreme Court struck it down in 2016 and said Look patients can go to any hospital anytime right. This is just a smokescreen. This is a pretext because we know that it’s really difficult to get admitting privileges and in fact lots of hospitals in southern states won’t give them to abortion providers because they hate abortion. So the Supreme Court looked at the Texas law and said You guys are just trying to shut down abortion clinics like it’s really obvious what you’re doing here and you’ve succeeded like this law is going to make most women in Texas have to drive hundreds and hundreds of miles into another state perhaps just to exercise a constitutional right. So you’d think that after the court struck down the Texas law it was case closed. But it just so happens that Justice Anthony Kennedy cast the fifth vote to invalidate the Texas statute. And as we know Kennedy is gone now replaced by Brett Kavanaugh. Cabinet is extremely anti-abortion. And now that he is on the court it seems that the conservative majority is going to take this Louisiana law that is identical to a Texas law it already struck down and say well guess what. We have a new friend. His name is Brett Kavanaugh. He really hates abortion and he’s not like that Tony Kennedy guy. So this new gang of five is going to change the rules and say hey Southern states by all means pass whatever B.S. laws you need to to make sure that every clinic has to shut their doors.

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S4: I mean you sound really certain here. But I wonder if that’s because the fact that they’ve actually taken this law up is a signal of how they’re going to rule.

S11: Yeah. So here’s the procedural twist here that it’s a little in the weeds but it’s important to know the Supreme Court can reverse lower courts without doing the whole oral arguments thing. Right. They don’t have to set the case for arguments here all these briefs here hear the arguments. You know the whole drawn out process that’s only supposed to be four hard cases that present new questions of law or really difficult disputes. The arguments are just supposed to be when it’s hard when the court gets a really easy case it can do something called a summary reversal. It can take the decision below. And instead of having arguments and more briefing it congest issue an order that says you guys got it wrong you need to reread our precedents and get it right this time. And if any of the five conservative justices were prepared to vote against the Louisiana law they would have joined with the four liberals and issued a summary reversal and said hey Louisiana go back and read whole women’s health Hey lower courts whole women’s health is still on the books. That’s the decision that struck down the Texas law and the Louisiana law says the same thing but they didn’t do it. And so the very fact that the court took up this case says to me these five conservative justices are prepared to uphold the Louisiana law overturn whole woman’s health and let states regulate abortion clinics out of existence.

S4: Here’s the thing I don’t get though. Justice Roberts was supposed to be the moderating force on the court. And in fact with this Louisiana law he was the guy who stayed it originally. Yes. So why do you think that all the sudden he’s changing his mind. Why do you think that Roberts may not be this moderating force.

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S11: Well this gets back to that that institutional legitimacy question we were talking about earlier right. ROBERTS hates abortion. He dissented in whole woman’s health. He would have upheld the Texas law. He does not like Roe v. Wade but Roberts knows that lower courts are not supposed to overturn Supreme Court precedents. Right. That’s not how it works. Lower courts don’t get to reverse the Supreme Court’s decisions. The Supreme Court is the only one that can reverse its own decision and what happened here with this Louisiana law is that after Justice Kennedy retired the 5th Circuit Court of Appeals basically took it upon itself to reverse Whole Woman’s Health and said in so many words like we don’t like this decision so we’re going to pretend that it doesn’t say what it says and we’re going to uphold this law.

S5: They want to do that. No they’re not allowed to do that of course not. And that’s why I think Roberts stated the law because he looked at the 5th Circuit and he said You guys are just openly defying us like I don’t like abortion you don’t like abortion but we have to play by the rules. And so I suspect that Roberts said I’ll stay the law for now. But when this case actually comes to us I’m going to you know show my anti-abortion side and uphold this law and totally change abortion jurisprudence.

S1: OK Mark your hair is totally on fire. You are predicting the end of the world. I mean it sounds crazy.

S4: I mean is there any chance you’re wrong here.

S5: My friend always a chance on your friends who disagree with you.

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S8: What do they say to you.

S7: So those who disagree with me say essentially that the chief justice and to a lesser extent Justice Kavanaugh are very worried about the court’s legitimacy and prestige and that they will be willing to strike compromises with the liberal justices to find sort of balanced or centrist decisions that don’t rock the boat too much and small decisions right.

S8: They’re there. They’re fans of small decisions.

S7: That’s Justice Elena Kagan famously said Our job is to take big issues and make them small.

S4: Yeah. So there’s hope that by the end of this term I’m not going to be walking around in one of those red capes and white hoods from The Handmaid’s Tale. That’s it you’re telling me.

S5: I think there is always a chance for hope. And we have been in a situation like this before where it seemed like all was lost and a few justices surprised us. Right. That is why the constitutional right to abortion access still exists. That is why affirmative action still exists. But I mean Republicans the Republican Party has really built its modern form around avoiding those kind of surprises. Their motto is no more shooters right. No more David Souter is no more Anthony Kennedy is no more Sandra Day O’Connor is no more justices who will go soft or squishy or move to the center or even to the left. They have chosen the five conservative justices very well they have chosen them because they think they will not defect. So I guess I would put the question to you. Do you think that many extremely smart political strategists and multimillionaires and organizations with hundreds of millions of dollars that have all spent so much time and energy selecting these justices and breeding them and hatching them in Federalist Society labs do you think that they were wrong.

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S1: And if so then you should have reason for hope there aren’t actual labs Mark.

S7: No but they’re working on it. You know it’s like the little DNA guy in Jurassic Park. That’s what Federalist Society is doing. That’s their phase 2. They’re going to be hatching mini meal courses out of dinosaur eggs.

S12: OK. It’s always morally clarifying to talk to you. I really hope for these days. Right. Mark Joseph Stern thank you so much for joining me. Always a pleasure. Mark Joseph Stern covers the Supreme Court for Slate. All right. That’s the show. What next is produced by Jason De Leon. Mary Wilson Morris Silvers and Daniela Hewitt are editor and managerial guru is Allison Benedict. If you want to follow me during the day hop on over to Twitter. You can follow me at Mary’s desk. And while you’re online make sure you track down Mark Joseph Stearns excellent writing over at Slate. But just know if you ask Mark covering the Supreme Court it’s not all that so at first it’ll be like happy first day of school.

S3: But then I’ll quickly be miserable and I’ll be stuck in the courtroom and I’ll have to pee.

S5: 20 minutes in but I can’t leave for another two hours. And you know it’s just gonna be back to the freakin grind.

S12: I’m Mary Harris. I will talk to you tomorrow.