Tangle - The new Supreme Court term

Episode Date: October 3, 2022

We're covering the upcoming Supreme Court term. Also, a reader question about finding good presidential candidates and a brief note about the Brett Favre scandal.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have a nice day” story here.Today’s clickables: Quick hits (00:52), Today’s story (1:53), Right’s take (6:05), Left’s take (11:46), Isaac’s take (16:54), Listener question (21:06), Under the Radar (23:54), Numbers (24:44), Have a nice day (25:22)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and produced by Trevor Eichhorn. Music for the podcast was produced by Diet 75.Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. Twas the season of chaos, and all through the house, not one person was stressing. Holla differently this year with DoorDash.

Don't want to holla do the most? Holla don't. More festive, less frantic. Get deals for every occasion with DoorDash. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu.

It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place we get views from across the political spectrum. Some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about the upcoming Supreme Court term. SCOTUS is back in action on Monday, and there is a lot going on. So before we jump into that, we'll start off with some quick hits. First up, officials have confirmed Hurricane Ian has killed at least 76 people in Florida,

four in North Carolina, and three in Cuba. The toll is expected to rise in the coming days. Number two, Brazil's presidential election is headed to a runoff after neither President Jair Bolsonaro, with 43% of the vote nor former President Luiz Inácio Lula da Silva with 48% of the vote reached the 50% threshold for victory. Brazil is the world's fourth largest democracy. Number three, 125 people were killed and hundreds more were injured after a human stampede at a soccer game in Indonesia. Number four, Ukrainian forces claimed a key logistics hub in the disputed Donetsk region of eastern Ukraine. Number five, seven Americans, including five oil executives, were released from a Venezuelan prison in exchange for the U.S.

freeing two relatives of President Maduro's wife. tomorrow's the first monday in october which means a new supreme court term and new supreme court justice katanji brown jackson is now on the job ceremony comes as the court begins its new term this week meanwhile a few of the justices have been sparring with each other in an unusually public way. The previous term, of course, ended with the controversial ruling that overturned Roe v. Wade, affecting abortion rights in the U.S. And this term, more consequential rulings could be on the way. On Monday, the Supreme Court opens its nine-month term packed with major cases that are sure to dominate the political conversation in the coming months. The court is coming off a monumental term in which it struck down Roe v. Wade, expanded gun rights, ruled on cases involving school prayer, vaccine mandates,

a Trump-era immigration law, and also restricted the authority of the Environmental Protection Agency. On top of the historic term, the last year has been marred by a leak of a draft opinion revealing that Roe v. Wade was going to be struck down, an unprecedented breach of court decorum. Justices have also been bickering publicly over the court's direction, with Justice Elena Kagan and Justice Samuel Alito seemingly taking swipes at each other about the court's legitimacy with the public. On top of that, Ginny Thomas, the wife of Justice Clarence Thomas, was recently questioned by Congress for five hours about her role in attempting to overturn the 2020 election. In June, a Gallup poll found that only 25% of the American public has confidence

in the Supreme Court, an all-time low since they started tracking the question in 1975. At the end of the last term, Supreme Court Justice Stephen Breyer retired. He'll be replaced this term by Ketanji Brown Jackson, his former law clerk who graduated from Harvard Law School and served on the U.S. Court of Appeals for the District of Columbia Circuit. Jackson will also become the first black woman to sit on the Supreme Court. Court watchers are speculating that this term may bring just as many closely watched cases as the one before it. Monday will kick off with the justices hearing arguments from Chantel and Mike Sackett, a couple from Idaho who's trying to build a home on a property the EPA said is a

protected wetland. If they prevail, the case could limit the reach of the Clean Water Act of 1972. On Tuesday, the court will hear arguments in a case from Alabama, where the state is appealing a lower court's ruling that invalidated a gerrymandered map approved by the state's Republican-controlled legislature. The lower court said the Republican-drawn version diluted the electoral power of black voters and violated the Voting Rights Act. The Supreme Court froze the ruling, allowing the map to be used while litigation proceeds, and now will hear the case. Later this term, the court will also hear a challenge to affirmative action and mission policies, a case questioning whether a Colorado graphic designer is violating the state's anti-discrimination laws by noting that she doesn't serve same-sex couples on her

website, a challenge to President Biden's immigration policy to prioritize deporting violent, unauthorized immigrants, and a case that could reshape the way tribal sovereignty works in the United States. We'll cover many of these cases individually down the line, but today, we're just going to take a look at some commentary about the upcoming term from across the political spectrum, and then my take. First up, we'll start with what the right is saying. The right says it is an important term, but that it won't rise to the level of the last term. Many criticize the left for questioning the court's legitimacy because it is now more conservative. Some hope for a continued momentum in the conservative judicial movement. In National Review, Adam Carrington called it another important term

and highlighted cases that were important to him. First, the court will take up important matters regarding election law. In Moore v. Harper, the justices will address how much control state legislatures possess over federal elections. North Carolina's legislature redistricted its House seats following the 2020 census. The state Supreme Court then struck down that new map as partisan gerrymandering, which it said violated the state's constitution. The North Carolina Supreme Court then created a panel of experts who designed their own district map for use in future congressional elections. Certain legislators sued and will now argue before SCOTUS that the U.S. Constitution requires that they, not any other state officers, make decisions about federal elections. Second, the court will continue to define the scope of

constitutional protections for religious liberty. 303 Creative LLC v. Alanis hinges on whether the state of Colorado can force a web designer to work with same-sex weddings if she holds religious objections to those unions. Third, the court will take up an important immigration case in United States v. Texas, Carrington wrote. The Biden administration gave quote-unquote guidance on the enforcement of immigration law that prioritized deporting violent and otherwise dangerous illegal immigrants over others who are here against the law. Though the debate about immigration policy is among our most partisan issues, the court will focus on the exercise of executive and bureaucratic power. Fourth and finally, the court's biggest decision may come about the future of affirmative action. In two

cases, the court will address whether colleges can take race into account in their admissions. If the justices decide that colleges cannot, it would overturn the important precedent of Grutter v. Bollinger, which in 2003 said colleges could take race into account because of the important educational benefits of classroom diversity, so long as the college made race one factor for admission among many. In the Washington Examiner, Beckett Adams said our institutions are legitimate so long as the left is in charge. For constitutionalists and longtime pro-life advocates, the court's July ruling in Dobbs v. Jackson Women's Health Organization came as a shock. Many were convinced

the court would simply go along with precedent rather than reverse course entirely, Adams said. But then the court announced its decision, addressing at long last the constitutionality of the matter. The majority opinion, written by Justice Samuel Alito, debunked the notion that the Constitution guarantees a right to abortion. Even left-leaning legal scholars admit Roe is an egregious misreading of the Constitution, handing the matter back to the states for voters and legislators to decide. It's a perfectly reasonable and sound opinion, legally speaking. Politically, however, Dobbs is not the outcome liberals wanted, Adams said. So, like with everything else that doesn't go their way, they're trying to undermine the legitimacy of a conservative victory by undermining the authority of the institution from which it

came. Earlier this month, Kagan said in a rather unsubtle dig at the court's recent decisions that judges create legitimacy problems for themselves, undermine their legitimacy when they don't act so much like courts, and when they don't do things that are recognizably law. What childish nonsense. How long have Justices Clarence Thomas and Samuel Alito served on the court, watching year after year as its liberal bloc handed down poorly reasoned and unconstitutional decisions? How many times did they respond by disparaging the legitimacy of the institution? In Newsweek, Josh Hammer asked if the conservative movement could maintain its momentum. The court most recently upheld race-conscious university admissions policies in the 2003 case

of Grutter v. Bollinger, in which Justice Sandra Day O'Connor's majority opinion explicitly stated that race-conscious admissions policies must be limited in time, and added that the court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interests approved today. In fact, not only did the Grutter Court presciently telegraph its own ruling's possible demise in the twin SFFA cases, but affirmative action is also one rare area where even Chief Justice John Roberts has shined as a voice of sanity, Hammer said. There is thus a very strong chance the court finally ends vile affirmative action policies, which, contra Black Lives Matter propaganda, represent the genuine last remnants of systemic racism in America this term. The other big culture

war case this term is a First Amendment religious liberty-adjacent case out of Colorado, 303 Creative LLC v. Alanis. Sound familiar? It should. The court ruled on a similar First Amendment religious liberty case out of Colorado just five terms ago in Masterpiece Cake Shop v. Colorado Civil Rights Commission. But in Masterpiece Cake Shop, the Justice Anthony Kennedy-led court majority issued an extremely narrow ruling that redounded to Christian cake baker Jack Phillips' case-specific free exercise interests, but failed to render a constitutionally meaningful judgment about the thorny intersection of non-discrimination law, freedom of speech, and freedom of religion, Hammer said. The fact

that the court granted Sertuari and 303 Creative LLC and opted to hear the case, especially coming so soon after Masterpiece Cake Shop and due to the court's notable personnel changes in 2018, strongly suggests that the court is prepared to issue a more sweeping ruling. All right, that is it for what the right is saying, which brings us to what the left is saying. The left warns about another disastrous term for liberals in the U.S. Many call out threats to democracy and LGBTQ rights. Some say conservatives are in denial about the court's legitimacy crisis. Ruth Marcus said the public will have no time to settle from the cataclysmic term that just ended.

Nothing in the behavior of the court's emboldened majority suggests any inclination to pull back on the throttle. The Supreme Court is master of its docket, which means that it controls what cases it will hear, subject to the agreement of four justices. Already, with its calendar only partly filled, the justices have once again piled onto their agenda cases that embroil the court in some of the most inflammatory issues confronting the nation, and more are on the way, Marcus said. Last term, in addition to overruling Roe v. Wade, the conservative majority expanded gun rights, imposed severe new constraints on the power of regulatory agencies, and further dismantled the

wall of separation between church and state. In assembling its cases for the term, the conservative wing has at times displayed an unseemly haste, prodded by conservative activists who have seized on the opportunities presented by a court open to their efforts to reshape the law, Marcus wrote. The court reached out to decide a dispute about when's complaint that Colorado's law barring discrimination on the basis of sexual orientation violates her free speech rights to oppose same-sex marriage, even though Colorado authorities had not filed any complaint against her. It took the marquee case of the term, the Constitutionality of Affirmative Action Programs at colleges and universities, although the law in this area has been settled and there is no division among the lower courts. In Slate, Dahlia Lithwick said John Roberts can't admit what's happening to the court. After a term that featured gross misconduct and impropriety both on the docket

overturning Roe v. Wade, expanding gun rights in a nation drowning in guns, and fetishizing religious liberty over basic equality, and off the docket, internal leaks, inappropriate speeches, spouses fomenting insurrection, the briefs have been filed and the court's own public legitimacy is now being litigated. If you thought last term started off badly, just wait, Lithwick wrote. While it was already a thing to have Justice Clarence Thomas trash-talking his colleagues, his chief, and his court last spring, it's quite another when the term opens with Roberts and Kagan prepared to litigate on public stages the matter of who is trashing the court's reputation. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu,

a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases.

What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. To Kagan, this current legitimacy crisis is not the fault of a public that has, you know, eyes and ears. It is the responsibility of justices who, as she put it, stray into places where it looks like they are an extension of the

political process or where they are imposing their own personal preferences. When Roberts lays blame on the public for losing confidence in the court, he fails to recognize that while he couldn't have done anything to stop a runaway majority from taking away basic freedom, dignity, and equality all year, he did nothing about the things that were ostensibly in his power to control. The grotesque abuse of the court's emergency shadow docket to create new law that is not properly explained or applied, the wildly unethical behavior of his colleagues ranging from Ginny Thomas's improper involvement in efforts to end abortion, to the partisan speeches that make the injustices sound like partisan hacks, and the non-existent ethics

rules that allow his colleagues to do all this with impunity. In the Los Angeles Times, Erwin Chemerinsky said, prepare for the law to move even more to the right. Traditionally, the justices have focused on granting review in cases where there is a disagreement among the lower courts, with the Supreme Court's role being to resolve these conflicts, Chemerinsky wrote. Often in the past, the justices have stressed that they want to wait until many lower courts have ruled, until the issue has percolated before weighing in. But in many of the high-profile cases for this coming term, the court has stepped in even though there is no disagreement among the lower courts. For example, on October 31st, the Supreme Court will hear two cases about whether to end affirmative action by colleges

and universities, Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. Harvard College. In decisions in 1978, 2003, and 2016, the court held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions decisions and carrying out their educational mission. This is settled law. Affirmative action like abortion has long been a target of conservatives, he said. The widespread expectation is that here, too, the activist conservatives on the court will overrule more than 40 years of precedents they oppose politically. Nothing about the law in this area or how it has been interpreted by the lower courts calls for reopening this issue.

All that has changed since 2016 is that three Trump-appointed justices, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, have joined the court. Alright, that is it for the left and the right are saying, which brings us to my take. So listen, we're going to get into a lot of these cases as they come. So I just say, like, I'm hesitant to speak in specifics right now. I can tell you there's one case in particular I'll be keeping my eye on, and that's Moore v. Harper, which is the Supreme Court case where they're going to decide whether the North Carolina Supreme Court can strike down the legislature's

gerrymandered congressional map. We wrote and did a podcast about the scourge of gerrymandering in January. The idea that the state court and state constitution cannot act as a guardrail on the legislature to operate elections should be ridiculous on its face. But that the court is taking it up at all has rightfully created fears of a ruling that would be legitimately disastrous for democratic norms. If voters have no judicial remedy to fight extreme gerrymandering, you will naturally see the already bad problem become significantly worse. It's quite possible that the court just rules narrowly here, or even sides against the North Carolina legislature. But it's the one I'll be most

closely following, and I think it's the one that has the biggest ramifications for the country. Of course, this is hardly the only significant case on the docket. I imagine Tangle's going to be covering the voting rights case in Alabama, the challenges to affirmative action, and the clash between free speech and LGBTQ rights in Colorado. I obviously have some preconceived opinions about all those cases, but the Morvey Harper one's very obvious feeling to me. All the other ones on the docket, I'm really curious to hear the arguments and read more about them and do a lot more research. And maybe my opinion will change on Morvey Harper. I really doubt it, but I'm going to the other ones

as open-minded as I can. Either way, all of those cases are going to draw out huge amounts of political debate and probably set the discourse on fire for weeks at a time. I mean, I think they're going to be that potent in terms of what's happening and what the results of the ruling might be. In the interim, my overwhelming feeling is just one of unease. Questions about the court's legitimacy have been floated for years in the public discourse, but to see justices openly sparring with each other just months after the unprecedented leak of a Supreme Court opinion, it's pretty worrisome. And for whatever it's worth, I don't find the Supreme Court illegitimate, at least in the sense that I understand it. The Oxford definition is that illegitimate means not authorized by law, not in accordance with accepted standards or rules.

Justice Neil Gorsuch made his way to the bench through a broken and partisan process, in which Republicans refused to even consider a sitting president's nominee for almost an entire year. And then they flipped their entire script on its head to quickly rush Amy Coney Barrett's nomination through before Trump left office. I certainly understand why Democrats are mad about that, and I was too. I mean, I thought it was very hypocritical, and I think the controversy there is pretty obvious. But ultimately, that process was marred by tradition being upended. Republicans only reap the rewards because they won an election, Trump's election in 2016, fairly and legitimately. No laws were broken. No elections were stolen in order for Republicans to get a conservative majority, even if it took unbound hypocrisy

and incredible luck for them to seal the deal. I did not like the process in which Gorsuch or Barrett's nomination process happened, But nobody was confirmed illegitimately. My concern, obviously, is that none of that really assuages the public. So much is happening around the court right now that feels unprecedented. The leaks, the Ginny Thomas scandal, the justices public and thinly veiled barbing at each other about the court's legitimacy. None of it feels good. And if the court is not trusted by the public or its rulings are dismissed

or ignored by the people that's a legitimacy crisis and that's something we should be talking about this next term almost certainly not going to help the battlegrounds will be race voting rights gay rights immigration environmentalism issues that consistently draw the fervor of voters so you know if i were you i would buckle up we'll do our best to cover it like we do, but we're going to wait a little bit to get into the specifics of some of the stuff coming down the pike. All right, that is it for my take, which brings us to your questions answered. This one's from Wendy in Austin, Texas. Wendy said, I know it's my responsibility as an American to be informed and vote for our leader, but honestly, I just feel so sad and hopeless about every presidential candidate, Republican or Democrat, and I know many others feel the same. It is as

if the voter has to make a choice between competence or character and who leads our country, and I haven't seen someone who checks off both boxes in years, with 330 million people in America. Is it too much to ask to have both a good person and a competent decision maker to choose from in leading our country? Do you have any hope about this? I know it's not your job to endorse a candidate, but is there one on each side that you think is worth considering on the criteria of character and competence for the job? Okay, Wendy, thank you for the question. I certainly don't think you're alone. I hear this sentiment a lot from my readers and more generally from friends and family. I think you're asking two separate questions here,

so I want to just try to address them separately, I guess. One is if there are competent decision makers who are also good people that exist, are in politics, and could one day be president? The answer is yes. I think there are actually quite a few of them, both serving in Congress and in governorships or state legislatures across the country. Politicians are not inherently bad people. In order to succeed in politics, I think you need to be confident, willing to upset some people, and thick-skinned. Sometimes that means successful politicians are arrogant, cutthroat, and lack self-skinned. Sometimes that means successful politicians are arrogant, cutthroat, and lack self-awareness. It's a really fine line between those things. Still, yes, those people exist. As you mentioned, I don't endorse candidates in Tangle, but I'm

happy to give you two low-stakes examples. New Hampshire Governor Chris Sununu, a Republican, and Senator Sherrod Brown, a Democrat from Ohio. To be clear, I'm not endorsing either of their political ideologies. That'd be impossible since they're basically diametrically opposed to each other. But both are principled, they have consistent ideologies, they advocate well for their constituents, they win over voters on both sides, and they don't compromise any of their values. I've heard them both described as extreme or radical by people on the other side, yet they find ways to win moderate voters. So those are two people who I think are basically

scandal-free, seem like good people, seem like competent decision makers, and I think many more exist. I think the trick to us as a political body is helping those people rise to the top. To do that, we have to avoid this kind of cult of personality that has infected so many of our last elections. Now that is a big task, and I don't have a good answer for how we find ways to elect presidents in a process more akin to a job interview than a popularity contest, but I certainly hope we find our way soon. All right, next up is our Under the Radar section. Former NFL star Brett Favre is embroiled in the biggest public corruption case in the state of Mississippi's history. The state spent millions of dollars in anti-poverty money on a volleyball arena at the University of Southern Mississippi,

where Favre graduated and his daughter went to school. Text messages filed in court show Favre and then-Mississippi Governor Phil Bryant discussing using public funds for a football facility after private funding fell through. Favre, who is now being represented by Eric Hirschman, a top White House lawyer to former President Trump, has been charged in a civil lawsuit, but not with any criminal charges.

The state is trying to recover $20 million in funds. Mississippi State has the story, and there's a link to it in20 million in funds. Mississippi State has the story and there's a link to it in today's episode description. All right, next up is our numbers section. In June of 2017, the percentage of Americans who said they had confidence in the U.S. Supreme Court was 40%. In June of 2022, the percentage of Americans who said they had confidence in the U.S. Supreme Court was 25 percent. The amount of money Democratic candidates and their allied super PACs have spent on 100 abortion-centered TV ads in battleground states is $18 million. The percentage of Democrats who view the Democratic Party favorably is 80 percent.

The percentage of Republicans who view the Republican Party favorably is 73%. And last but not least, our have a nice day section. The ice bucket challenge wasn't just a social media hit. It has succeeded at its primary goal, which was funding a new ALS drug. You may remember the viral videos from 2014 when friends were standing in their yards awaiting a dousing of ice-cold water. Afterward, that friend probably made a pledge to donate money to the ALS Association. Those donations eventually totaled $115 million, and $2.2 million of that was used directly to fund the development and trial of a new drug that the Food and Drug Administration approved this week to treat ALS, also known as Lou Gehrig's disease. The drug is not a cure, but it does slow the effects of the neurodegenerative disease. The ALS Association says 130 research projects in 12 different countries and 40 separate potential treatments are also being developed with the money.

NPR has the story, and there's a link to it in today's newsletter. All right, everybody, that is it for today's podcast. As always, if you wanna support our work, please go to readtangle.com slash membership and become a member. And don't forget, as we announced on Friday, if you share the link readtangle.com slash give with someone who signs up for free,

just signs up to be on our mailing list, we'll donate $1 to charity. That means for every person who signs up for free, just signs up to be on our mailing list, we'll donate $1 to charity. That means for every person who signs up for free for Tangle at readtangle.com slash give, we're gonna donate $1 to either No Kid Hungry or Meals on Wheels, a combination of both. Please, please, please spread the word. We're doing this at least for all of October

headed into midterm season. All right, everybody, that is it for the podcast. We'll be right back here same time tomorrow. Have a good one. Peace. Weitzman, Sean Brady, and Bailey Saul. Shout out to our interns, Audrey Moorhead and Watkins Kelly, and our social media manager, Magdalena Bokova, who designed our logo. Music for the podcast was produced by Diet75. For more from Tangle, subscribe to our newsletter or check out our website at www. We'll see you next time. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown.

When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot.

Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages 6 months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca.