Front Burner - How the Supreme Court is reshaping America

Episode Date: July 12, 2022

At one point, a majority of Americans had confidence in the U.S. Supreme Court, and many viewed it as a fundamental part of the country's democracy, one that could rise above partisan politics. Now, polls indicate that confidence in the institution has sunk to an all-time low. Recent decisions by the U.S. Supreme Court — currently composed of six conservative and three liberal-leaning judges — are viewed as increasingly politicized. Those include the overturning last month of the landmark abortion rights ruling Roe v. Wade, but they also include cases that could have major impacts on climate change, the separation of church and state, and American democracy as a whole. Today, we take a look at those cases — and to what extent Americans now see the Supreme Court as legitimate — with Rhiannon Hamam, a public defender in Texas and a co-host of the podcast 5-4.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Allie Janes, in for Jamie Poisson. Last December, as the U.S. Supreme Court heard oral arguments about the Mississippi abortion case that would eventually overturn the landmark 1973 ruling Roe v. Wade, Justice Sonia Sotomayor issued a warning about the increasing risk that the court, now made up of six conservative and three liberal-leaning judges,

would lose its legitimacy in the eyes of the American public. The sponsors of this bill, the House bill in Mississippi, said we're doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsor said, we're doing it because we have new justices on the Supreme Court. Will this institution survive the stench that this creates in the public perception creates in the public perception that the Constitution and its reading are just political acts. At one point, a majority of Americans had confidence in the Supreme Court and viewed it as a crucial part of the country's democracy, one that could rise above partisan politics.

And many of the court's decisions, including Roe v. Wade, have fundamentally transformed American society. Brown v. Board of Education, which declared segregated schools unconstitutional. Loving v. Virginia, which legalized interracial marriage. Obergefell v. Hodges, which established the right to same-sex marriage. Now, polling has found that

confidence in that institution has sunk to an all-time low, and recent rulings by the 6-3 court are seen as increasingly politicized. Not just the overturning of Roe v. Wade, but decisions in the past few weeks that could have massive impacts on climate change, voting rights, and the separation of church and state. Plus, importantly, an upcoming decision the critics say could seriously undermine the ability to carry out a fair presidential election. So today we're taking a look at some of those major rulings, the impacts they could have on the country, and to what extent they're seen as legitimate by the American public. I'm speaking to Rhiannon Hamam.

She's a public defender in Texas and one of the hosts of the Supreme Court podcast 5 to 4. Hi, Rhiannon. Hi there. Thanks so much for being here. So let's start by talking about this climate change decision, West Virginia versus Environmental Protection Agency. And in super simple terms, what was being decided in this case? Yeah, so we have a piece of sweeping legislation from the early 70s called the Clean Air Act. And what the Clean Air Act does is give the EPA, the Environmental Protection Agency,

authority to implement a system of emission reduction for power plants. Now, in 2015, the Obama administration proposed the Clean Power Plan. Today, after working with states and cities and power companies, Today, after working with states and cities and power companies, the EPA is setting the first ever nationwide standards to end the limitless dumping of carbon pollution from power plants. Basically, a regulation which sought to fight climate change by reducing carbon emissions through something that's called generation shifting. It shifts power production away from high emission power plants and towards greener sources of energy, like wind farms, for example. So what the Supreme Court did was prohibit the generation shifting scheme, and it sides against the EPA in this case, saying that the EPA cannot require this kind of industry-wide shift from power plants to other energy sources.

The Supreme Court by a six to three vote has ruled that the Environmental Protection Agency does not have broad authority to try to set national energy policy by encouraging industries to switch to cleaner sources of power generation like wind and solar. The way they put it, when Congress passed the Clean Air Act and created the EPA, the EPA was not authorized to do industry-wide regulations. And the standards that they place on emissions have to be limited to what individual power plants can achieve instead of a regulation that shifts power generation away

from the fossil fuel industry. Okay. And this was a really weird case, right? In that, I mean, it centered around this Obama era policy that was never even implemented, right? So, I mean, this didn't even exist. Yeah, that's right. A lot of people were saying there was no case or controversy here because the regulation was not even in place. The Trump administration overturned it. It was a massive power grab. The EPA's regulators were putting people out of jobs by the hundreds of thousands. And regulations and permits started treating our wonderful small farmers and small businesses as if they were a major industrial polluter. They treated them horribly, horribly.

You know, conservatives like to say that judges should be acting with restraint. But this is a great example of judicial activism where none was needed. The Supreme Court here was acting very proactively in inserting itself into this issue when they said, for the future, for a hypothetical regulation that may exist sometime in the future, EPA, you will not be able to implement that. Okay. And some legal experts have said that this could make it way harder for the Biden administration to fight climate change. Can you tell me more about that? Yeah, sure. So if President Biden wants to propose expansive regulations like this that the EPA would carry out, there would need to be basically new legislation from Congress that authorizes the EPA to specifically act in this broad way, in this

industry-wide way. And, you know, the decision has other effects, too. In a world very different than this one, a utopia, where something like a Green New Deal could be passed, that legislation would have to be very specific about what it was authorizing the EPA to do. And so this decision, you know, it creates a roadblock where there wasn't one before. So basically, just to summarize, like, up to this point, the EPA has been able to execute certain climate plans within the existing laws that it feels are kind of the most sensible way forward to fight climate change, where now they can't do that without first going back to Congress and getting Congress to approve

it. Would that be a fair sort of butchered way to summarize it? That's a fair assessment. Okay. And I mean, I read that in her dissent, Justice Elena Kagan wrote that this could leave really highly technical decisions that otherwise would be made by scientists to politicians in Congress who might not have any expertise whatsoever on this topic. Let's talk now about the school prayer case, which is known as Kennedy versus Bremerton School District. Can you briefly tell me, you know, what's the story there? Who is this guy, Joseph Kennedy? And, you know, what's the story of this case? Yeah. This case is about school prayer, like you said. So Joseph Kennedy was a football coach at a high school in Washington state. And over the course of his tenure there, he developed a tradition, a habit really, of leading a prayer at the 50-yard line after every football game.

So students would join in this prayer, and Joseph Kennedy would stand in front of all of them while they kneeled down, and he would give a religious speech. And the school told Kennedy to stop because his actions likely violated the separation of church and state. You know, he's an employee of a public school. And Kennedy turned around and sued, saying that actually, when the school prohibits me from doing this, it's a violation of my right to freely exercise my religion. Okay. And part of the argument here, as I understand it, was sort of whether what he was doing was like private personal prayer or whether this was, you know, a public act in his was just offering a sort of a short, private, personal prayer that didn't infringe on anybody else's rights.

That was not sort of publicly demanding, let's say. But that that's a lie. So, you know, Neil Gorsuch is only able to reach the conclusion that this display of religiosity at a public school by a public school employee is okay because he premises the whole argument on this lie. In reality, Joseph Kennedy led this kind of prayer for several years after every single football game while students and parents were still present. Students on the football team, in fact, complained that they felt compelled to join in the prayer or else they wouldn't get playing time or they wouldn't advance from junior varsity to varsity, etc. So when the school told Coach Kennedy to stop, he went on a media spree.

And I made a commitment with God that, hey, I'm going to give you the glory after every game. And so I just started taking a knee on the 50 the very first game. And from there, it just kind of grew a little bit. A couple of kids, I don't know, probably halfway through the year, asked me, well, what are you doing out there, coach? And I said, just giving thanks for what you guys did. And there was a couple of Christians that were on the team, and they said, well, hey, coach, can we pray with you?

And of course, I said, it's a free country. You can do whatever you want to do. Which resulted in reporters, state representatives and the public showing up to the games to support him. You know, this caused a melee at one of the games where a crowd rushed the football field to join Kennedy in prayer. Students were knocked down. This was not a private or isolated display of personal faith. Okay. And am I correct that the ruling from the Supreme Court here overturned a previous really important ruling about church and state? Yeah, that's exactly right. It does effectively overrule a case.

There's a famous case called Lemon v. Kurtzman in which the Supreme Court devised a rule, a test about what would violate the separation of church and state. It's called the Lemon Test. And basically it said that if the government is doing anything involved with religion, there has to be a secular purpose. In addition, it has to be neutral with regard to promoting or prohibiting one religion, and there can't appear to be excessive entanglement with religion by the government. So on these facts, according to that test, Coach Kennedy's behavior would fail the Lemon Test, and it would be a violation of the separation of church and state. But here, the court does away with that test and says instead, we're going to

look at the history and context of these religious displays and decide that way. Now, what's worrisome about this is how much subjectivity is injected into this analysis. You know, the conservatives on the Supreme Court don't like the lemon test because it doesn't lead to the results that they want. They're devout Christians who are clearly selective in their support of Christian displays. It's not hard to imagine how they would react to a Muslim coach doing the same thing, right? So long-term, this decision sort of stands for the proposition that the Supreme Court is going to ignore violations of the separation of church and state if they don't find them personally objectionable. In the Dragon's Den, a simple pitch can lead to a life-changing connection.

Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections. Hi, it's Ramit Sethi here. You may have seen my money show on Netflix. I've been talking about money for 20 years. I've talked to millions of people and I have some startling numbers to share with you. Did you know that of the people I speak to, 50% of them do not know their own household income? That's not a typo, 50%. That's because

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So the Voting Rights Act is a huge piece of legislation from the 1960s, and it prohibits racial discrimination in voting. And that includes racist gerrymandering. Millions of Americans are denied the right to vote because of their color. This law will ensure them the right to vote. So here, Alabama and Louisiana both drew their election maps so that Black people only had a majority in one voting district in each state. And then they spread out the rest of the Black population across the rest of the districts, resulting in a minority of Black voters in those districts. This obviously dilutes the votes of Black people, and it severely restricts their influence in elections. Just to explain with

numbers, you know, just with the Alabama example, Alabama's population is 27 percent Black, almost a third. But with this gerrymandering scheme, Black voters have meaningful influence over just 14 percent of the congressional seats in that state. And while 92 percent of the state's white population lives in a majority white district, less than one third of the Black population lives in a majority white district. Less than one third of the black population lives in a majority black district in Alabama now. So lower courts agreed that these election maps were violations of the Voting Rights Act. But the Supreme Court let these maps stay in place because they say it was too close to an election. Our November midterms coming

up, it's too close to that election to change the maps. And so they're saying they'll make a final decision next term. But in the meantime, those maps are in place. Right. And so obviously could have like a significant impact on the 2022 midterms. Yes, absolutely. Absolutely. And there are also other electoral questions that the court will be looking at likely this fall. I mean, in addition to these two, as you've just noted. And one of them seems like a pretty big deal, which is this case from North Carolina that's asking justices to approve something called the independent state legislature theory, which is a bit of a mouthful. But can you explain to me

what that is? I mean, and what the Supreme Court could be weighing here? Yeah, it's a bit of a mouthful and it's a bit of a mindful, too. This idea here is a wild idea. So with regard to elections, our federal constitution grants authority to state legislatures to design and implement federal elections how they see fit. You know, right now there might be different rules in different states for what's needed to register to vote. You know, the congressional districts are drawn by each state legislature, etc. But what the independent state legislature theory says is that not only do state legislatures have control over these mechanics, but they have total authority to determine how federal elections are conducted without any limitation, without any checks and balances from what state courts have to say or their own state constitutions.

So, for example, if a state constitution says that partisan gerrymandering is prohibited, the state legislature would be unbound under the independent state legislature theory, the state legislature would be unrestricted by that constitutional rule and could still gerrymander however it pleases with respect to federal elections. And taking it a step further, a legislature could, for example, set new election rules that take power away from voters when picking electors for the electoral college. And they could do this without any checks and balances from the state courts or state constitutions. Wow. OK, so so let's create like a hypothetical, maybe kind of extreme example of what this could like theoretically look like. So, I mean, let's just imagine for a minute that the independent state legislature theory had been adopted ahead of the 2020 presidential election.

So say, like, if we look at Arizona, where Biden won, but I'm sure lots of our listeners will remember that it was really, really tight. It took a really long time, like days and days to count the votes. So like theoretically, if the independent state legislature theory had been adopted in that election, I mean, could that have meant that lawmakers in Arizona could have just decided to give all those electoral college votes to Trump, even though Biden won? So that's what the that's exactly what the Trump administration was proposing and arguing for. But, you know, if in this hypothetical world where the independent state legislature theory is adopted by the Supreme Court, you know, ostensibly the state legislators would still be restrained from outright going against the popular vote and certifying their own slate

of electors. But you could imagine a scenario where they passed laws and rules ahead of time that would set them up to do just that. For example, they could implement rules that make voting in federal elections really difficult. They could make a law that says, for instance, is really difficult. They could make a law that says, for instance, a super majority of the popular vote is needed for the electoral college. And so in tight races, it goes to the state legislature to decide. Right. It is absolutely a recipe for election tampering. So and I mean, this seems like a blatantly obvious thing to say, but this just seems incredibly undemocratic. It absolutely is. And it's antithetical to democracy. It's antithetical to the system of voting and elections that we've set up so far over the course of the past 60 years or so since implementation of the Voting Rights Act.

Yeah, and it has at least four votes from conservatives on the Supreme Court right now. You know, on the note of democracy, the courts with the Supreme Court at the very top are thought of as one of the three pillars of American democracy. Right. So, I mean, how representative is this court right now and how much support does it have among the American people? And how much support does it have among the American people? So since the court overruled Roe v. Wade, you know, recent polling shows that Americans have little confidence in the Supreme Court and that actually a majority of Americans did not think Roe v. Wade should have been overturned. There are a lot of reasons why the public has little confidence in the Supreme Court right now. And one of those reasons, I think, is because the court is so unrepresentative of the people and what people are concerned with. You know, six out of the nine justices currently on the court were appointed by presidents who had lost the popular vote. The court has been increasingly deciding cases where only very wealthy wealthy moneyed interests are concerned. And, you know, the politics and dark money behind Supreme Court nominations have eroded

public trust as well. And of course, this is to say nothing of the corruption at the Supreme Court that has been uncovered recently in the revelation that Justice Clarence Thomas's wife, Ginny, was employed by organizations that had cases in front of the Supreme Court that her husband was deciding on. Most recently, signing on to this open letter from conservatives to House Minority Leader Kevin McCarthy denouncing the January 6th committee. One month after that letter, Justice Thomas was the lone public dissent in a case involving the January 6th committee. Thomas provided no explanation for his dissent. I mean, the most recent polling that I saw, I think this was from Gallup, and it would have, I think it came out on June 23rd, so like right before the Roe decision, I mean, officially came down. But, you know, even there, like we're talking

about 75 percent of the population who are saying that they don't have, you know, they're not, I think it was like somewhat or very confident in the Supreme Court. I mean, how much of a problem do you think that is if the vast majority of Americans don't have faith in this institution? Do you think that is if the vast majority of Americans don't have faith in this institution? Yeah, it's a problem, but it's also the continuation of an already existing problem, which is that people in the United States don't really trust that the government as a whole is doing anything for them at all. You know, Congress is extremely ineffective at getting anything done. The president isn't delivering on his campaign promises. And the Supreme Court is disconnected from the people, except in these instances where it's stripping

important rights away. I think the Supreme Court is an institution that is undeserving of our faith and confidence. And I would hope that that lack of trust would lead to meaningful institutional reforms. And on that note, I mean, theoretically, what could President Biden or Congress do to fix some of this? Congress and the executive branches could change this institution. They could enact term limits so that the justices do not have lifetime appointments. They could pack the court so that there are more justices and President Biden could fill those seats with liberals. Congress could implement something that's called jurisdiction stripping. Those are laws that mean the Supreme Court is not the final say on certain kinds of cases. Congress could tell the court that

it needs a super majority of justices to find a law unconstitutional. They're on and on. There are many options for how the institution could be held accountable and restrained in its rogue power. Unfortunately, I don't think there's appetite for doing that from this administration and this Congress. Just finally, Rhiannon, when you look at all of these decisions that we've been talking about today, if you look at all of them together, so Roe v. Wade, the EPA decision, the Kennedy decision on school prayer, these electoral and voting rights laws that we were just talking about. What's the picture that you walk away with of how the Supreme Court is reshaping the country? You know, there's no question that the Supreme Court is acting as a

conduit for the Republican Party's goals. You know, what Republicans can't get done on a federal level because they represent a minority of Americans, they get done with the Supreme Court, which is all too ready to do its dirty work, all too ready to empower reactionary tendencies in state governments, and really all too ready to protect dark money-funded conservative organizations and institutions who have an undue influence on our politics. It's a major concern. It weighs heavy on me. But I think you also have to think about it in terms of social change and movements. This Supreme Court is the culmination of a decades-long project by the right. They worked for it. They got what they wanted with a conservative supermajority. And that's a massive reactionary win. But it also means it can be undone, right? We need a movement to make government more accountable to the people and build a concerted effort to reform the institution, because this iteration of the

Supreme Court is very dangerous. iteration of the Supreme Court is very dangerous. Rhiannon, thank you so much. This was fascinating. I really appreciated you coming on to talk to us about it. Thank you so much for having me. That's all for today. I'm Allie Janes, filling in for Jamie Poisson. Thanks for listening to FrontBurner, and we'll talk to you tomorrow.