Judging Freedom - Supreme Court begins new term

Episode Date: October 4, 2022

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Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Monday, October 3rd, 2022. It's about 625 in the evening here on the east coast of the United States. Today is the first Monday in October, which to lawyers and judges is a code word, code phrase for Supreme Court starts. So the Supreme Court began today. It didn't issue any major opinions, but I'm going to summarize for you the cases that will be argued before it in the next several weeks, some as soon as tomorrow. And of course, it's a very different looking Supreme Court. For the first time, there are four female members, one in the conservative block, Judge Amy Coney Barrett, appointed by former President Donald Trump, and three in the liberal block, the most recent member, just appointed last spring by President Joe Biden, Justice Katansky-Brown Jackson. The court is still

basically six to three, conservative versus liberal, but we'll see where it goes. Justice Kavanaugh and the chief have been known to jump on the other side, but here are the cases without getting too into the weeds. The first is a series of affirmative action cases. These are lawsuits brought by Asian American students and their families against Harvard University, of which Justice Katanji Brown Jackson is not only a graduate, but a former member of the Board of Trustees and was a member at the time that these events in the case took place. So I don't know if she's going to hear the case or not. But the lawsuits are against Harvard University and the University of North Carolina. Now they're different. University of North

Carolina is owned by the state of North Carolina. And as you know, basic constitutional law, the constitution governs the government. It doesn't govern private behavior. So the Harvard University can do things legally that the University of North Carolina cannot do. However, because Harvard has a financial relationship with the government, whereby the government gives Harvard tens of millions a year in research grants. Harvard has agreed to abide by the same standards as it would abide by if it were owned by the state of Massachusetts, which it's not. It's richer than the state of Massachusetts. So for all practical purposes, both cases will be viewed under the 14th Amendment, which basically says that the state of Massachusetts, Harvard, and the state of North Carolina, University of North Carolina, can't do? If the answer to that

is yes, then their admissions protocols are thrown out. If the answer is no, well, then the Supreme Court's going to have to come up with some major exception to the 14th Amendment, which prohibits the states from taking race into account. We'll see. Second major case involves the EPA. The Environmental Protection Administration can regulate navigable waters and waters on private property that connect to navigable waters that flow on federal lands. So the EPA can regulate the Delaware River. It can regulate a little tributary that runs along my property in New Jersey because that tributary connects to the Delaware River. But can it regulate a mud puddle? Can it regulate a

freestanding water that is not connected to any tributary that's connected to a river that runs along federal property? That's the issue that's before the Supreme Court. It seems absurd that the EPA would try to do this, but the court and the court just last year smacked the EPA down saying you don't have the broad discretion that you think you do unless Congress gave it to you, which it failed to do. So if you want a cocktail party conversation, it's, hey, can the EPA regulate a mud puddle? It's a big mud puddle, but it's a mud puddle. It's not navigable waters and it's not connected to any waters that flow along federal lands. The third important case involves election law. This is of profound significance. It pertains to whatever happened in the last presidential

election, whatever will happen in the next presidential election. And here we go. The elections clause of the Constitution says election laws in the states shall be crafted by the state legislatures. Again, North Carolina, the state of North Carolina, the legislature enacted an election law and the Supreme Court of North Carolina threw it out. So the legislature is appealing, saying the Supreme Court can't overrule us on this like they can on everything else, because the U.S. Constitution says the legislature of a state. So if we're going to literally read the Constitution, Justice Gorsuch, he's the literalist there, can the Supreme Court of North Carolina overrule the legislature? Or is the legislature supreme because the Constitution says legislature, it doesn't say state Supreme

Court? We'll see. Prediction, Supreme Court of North Carolina will prevail. They will throw out the election law and the legislature, a Republican one, will have to write a new one. The fourth interesting case involves voting rights, and this involves Alabama. So the Voting Rights Act of 1965 says that the representation in Congress of a given race, given minority, must approximate the percentage of that minority in the state. Alabama has 27% registered voters who are Black. It only has less than half of that, or just half of that, 14% Black representatives in Congress. So are Alabama's districting and apportionment laws, where they make the boundaries for congressional districts, violative of the Voting Rights Act? The court will have to decide. Last case is another LGBTQ case.

This case comes up because the famous wedding cake case the Supreme Court punted. If they hadn't punted, we would know what the law is. So here's another one where people who craft websites refuse to craft a website for a same-sex wedding. Does the Civil Rights Act of 1964 require the website designer to accept business from a same-sex couple? When the website designer says same-sex marriage is against my religion and therefore I can't get involved with it, the Supreme Court will now have to do what it failed to do in the wedding cake case and finally decide what the law is when profoundly held religious beliefs clash with the Civil Rights Act of 64. The difference is that last time the Civil Rights Act of 64 did not govern LGBTQ. Now it does. No, the law was not rewritten. The Supreme Court

reinterpreted it and ruled by a five to four vote that the Civil Rights Act of 64 prohibits public and private discrimination against members of the LGBTQ community. A very hot potato, and I can't predict until we get a little closer in time and I read the briefs, the legal arguments, I can't predict which way it's going to go. So a little bit different judging freedom for you tonight. Not one filled with my opinion, but filled with my familiarity with the way the Supreme Court operates and my understanding of the cases that are before it. More as we get it. Think some news coming out about President Trump and the Mar-a-Lago case will break this week. You'll know it first.

Judge Napolitano for judging freedom.