Tangle - The Supreme Court's historic term begins.

Episode Date: October 6, 2021

On Monday, the Supreme Court began its fall term, which many experts on the court say could be the most consequential term in decades. After 18 months of remote activity, Justices returned to the bench for in-person oral arguments (with the exception of Brett Kavanaugh, who recently tested positive for Covid-19 and was calling in remotely). While the nine-month term began this week with a rather typical fight over water rights in Mississippi, the court is going to be hearing explosive cases on abortion rights, gun rights and religious rights over the next few months.Oral arguments in Dobbs v. Jackson Women's Health Organization, in which the state of Mississippi has asked the court to overturn Roe v. Wade, will begin on December 1. In New York State Rifle & Pistol Assn. v. Bruen, the National Rifle Association is fighting New York State's restrictions on people carrying concealed handguns in public. Oral arguments begin November 3. And in two separate cases, Carson v. Makin and Shurtleff v. Boston, Justices will consider battles over free speech rights and tax dollars being used for religious instruction in school.Our newsletter is written by Isaac Saul, 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.The podcast is edited by Trevor Eichhorn, and music for the podcast was produced by Diet 75.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle podcast, a place where you get views from across the political spectrum without all that hysterical nonsense you find everywhere else. I am your host, Isaac Saul, and on today's show, we're going to be talking about the Supreme Court and the pretty wild upcoming term they are facing right now. This is the second time I have recorded this podcast because I just realized that I did pretty much the whole thing without pressing the record button.

So I'm going to try and amp myself up and get this thing going. We'll start, as always, with the quick hit section. First up, Democrats are wrangling over how to shrink their $3.5 trillion reconciliation package. Number two, foreign tourists won't be allowed to visit Australia until at least 2022, according to Prime Minister Scott Morrison. Number three, Democrats are considering a change to the filibuster rule once again in order to raise the debt ceiling limit without support from Republicans. Number four, the social media app Snapchat added a run for office feature that will help young adults launch political campaigns. Number five, the CIA admitted to losing, quote, dozens of informants who have been captured, killed, or compromised. Alright, that brings us to our topic today, which is the Supreme Court and this fall term.

On Monday, the Supreme Court began its fall term, which many experts on the court say could be the most consequential term in decades. After 18 months of remote activity, justices returned to the bench for in-person oral arguments. That's with the exception of Brett Kavanaugh, who recently tested positive for COVID-19. He called in remotely. While the nine-month term began this week with a rather typical fight over water rights in Mississippi, began this week with a rather typical fight over water rights in Mississippi, the court is going to be hearing explosive cases on abortion rights, gun rights, and religious rights over the next few months. Oral arguments in Dobbs v. Jackson Women's Health Organization, in which the state of Mississippi has asked the court to overturn Roe v. Wade, will begin on December 1st. In New York

State Rifle and Pistol Association v. Bruin, the National Rifle Association is fighting New York State's restrictions on people carrying concealed handguns in public. Oral arguments in that case begin on November 3rd. And in two separate cases, Carson v. Macon and Shurtleff v. Boston, justices will consider battles over free speech rights and tax dollars being used for religious instruction in school. speech rights and tax dollars being used for religious instruction in school. So we have abortion, gun rights, free speech rights, and religious rights all on the docket this term, and that's not even everything. Not only is the term itself historic, but the timing of the term has created some added intrigue. National polling shows that the court's approval rating, which is traditionally steady, has plummeted in the wake of its decision not to strike down the new Texas abortion law. According to Gallup, just 40% of Americans approve of the court. That's one of its lowest scores ever, and it's compared to 49% as recently as July. Criticism of the court

has also prompted some very rare public remarks from the justices. Clarence Thomas, Stephen Breyer, and Amy Coney Barrett all made public pleas over the last month for Americans not to view the court as an extension of partisan politics, which naturally just elevated the discourse about how political the court might actually be right now. One of the other issues getting a lot of attention is the court's so-called shadow docket. The shadow docket is an informal court practice used to expedite rulings that the court issues, also referred to as a non-merits docket or an emergency proceeding. Frequently, these rulings come down with no oral arguments being heard or written opinions explaining the rulings as typically accompany court decisions. The shadow docket was used most recently when the court decided not to strike down the new Texas abortion law. Democrats and Republicans have in the past agreed that the shadow docket needed more transparency, but in a Senate hearing last month,

Democrats criticized the docket while Republicans claimed it was a normal part of the Supreme Court. With the blockbuster term up and running and the discourse about the court permeating the national political scene, we're going to take a look at what the left and right are saying and then my take. All right, first up, we'll start with the left. The left is arguing that the court is losing its legitimacy with overtly partisan precedent-breaking decisions and blatant double standards and appointments and confirmations. In the Washington Post, Ruth Marcus wrote about the court's crisis of legitimacy. Of course, the justices shouldn't simply follow the election returns, Marcus said. They have life tenure precisely to insulate them from political pressure. But a court whose ideological balance is out of line with that of the country can find itself in dangerous territory.

Something to keep in mind is the court embarks on a term that already includes major cases that could result in further restrictions on abortion rights and gun regulation and might also sound the death knell for affirmative action in higher education. Consider 1969, the last time Democratic appointees constituted a majority on the Supreme Court, Republican presidents have named 15 of 19 justices. During that same period, Democrats have won six of 13 presidential elections and a majority or plurality of the popular vote and two more. The GOP advantage on the bench is partly a matter of luck about when the vacancies arose, and partly it reflects Republicans' willingness to play hardball to

prevent Democrats from filling Justice Antonin Scalia's seat in 2016 and the muscle through Barrett to replace Ruth Bader Ginsburg before Donald Trump's defeat in 2020. The systemic and entrenched disconnect between public opinion and the judicial philosophy of the court's majority creates a problem when it comes to assuring that the court's decisions are accepted and followed. creates a problem when it comes to assuring that the court's decisions are accepted and followed. In MSNBC, Jessica Levinson wrote a roundup of all the cases the court is facing and then made some bold predictions. Only fools make predictions, so here we go, she wrote. Ten months from now, when the court's term ends, Roe and Casey will no longer be law of the land. They will either be expressly or implicitly eviscerated. States will no longer

possess the authority to restrict people's ability to carry concealed weapons outside the home, or that authority will be severely narrowed. Senator Ted Cruz and his colleagues will be able to raise as much money as they want after an election to repay their personal loans on their campaigns. There are other consequential cases that the court will consider that could change our understanding of the contours of the First Amendment and the state's secrets privilege. But if only the two cases the court heard all term were the abortion and gun control cases, we can already predict that thanks to at least five people in a country of almost 330 million, our world is about to look a lot different. In Slate, Dahlia Lithwick and Mark Joseph Stern

said Republicans have no idea how to defend the shadow docket. Last week's Senate hearing focused on the conservative justices' use of unsigned late-night orders to overhaul the laws of the land, often with little or no justification, accompanied by minimal briefing and no oral argument, they wrote. The rise of the shadow docket to strike down COVID restrictions, reinstate Donald Trump's remain in Mexico policy, and end the Biden administration's eviction moratorium is proof positive that Republicans have won. They seized a sufficient number of Supreme Court seats to drive the law to the right at a faster pace than ever before. When the House of Representatives held a hearing on the same topic in February,

Republicans hadn't yet decided to pretend like this problem does not, in fact, exist. Instead, several GOP members of Congress condemned the court's secretive practices. Over the last seven months, though, it seems the Republican Party has decided to fiend outrage at Democrats' willingness to question the court's procedures and to pretend that justice has happened by the way of emergency orders since the founding. In reality, the court's use of the shadow docket to alter the law has exploded since justices Brett Kavanaugh and Amy Coney Barrett joined. All right, that's it for the left's take, and now we'll jump into what the right is saying. The right argues that attacks on the court are now based solely on its conservative lean and not on its actions.

Mario Loyola decried shadow docket concerns as a preemptive attack on the court. The progressive narrative here is based on an essential piece of misinformation, albeit one whose falsity is lost on most proponents, including that of a few law professors. That is the contention that Republicans in the Senate illegitimately blocked Barack Obama's nominee to fill a vacant seat during the 2016 election, but then turned around and confirmed Donald Trump's nominee four years later. Thus, through what Harry Reid used to call an untoward maneuver on Mitch McConnell's part, the Republicans erected an illegitimate supermajority of conservative justices. The Constitution provides that Supreme Court seats are to be filled by the president with the advice and consent of the Senate. Progressives are understandably worried about the direction that the Supreme Court could take in coming years, with arguably the strongest conservative majority since the election of Franklin D. Roosevelt in 1932. For well over half a century,

the Supreme Court seemed an endless fount of progressive achievement, and some of those decisions could now be overturned. Naturally, progressives now commonly argue that if the Supreme Court overturns any progressive precedents, it is ipso facto acting out of purely political motives and is therefore illegitimate. It's worth remembering that most progressive judicial victories of the past century were decisions by courts that showed little regard for the precedents binding on them. In American Greatness, Josh Hammer accused Justice Sonia Sotomayor of being a progressive partisan. Speaking at an American Bar Association event about diversity, the loose-lipped jurist

Prude allegedly said, according to CNN, you know I can't change Texas law, but you can and everyone else who may or may not like it can go out there and be lobbying forces and changing laws you don't like. Sotomayor's gaffe is yet another eye-opening insight into the legal left's view of the courts. That of transparently political institutions pliable to political, read, judicial actors' sheer force of will. The remedy at this increasingly late hour of the American republic is not for the legal right to wholly abandon its more traditional formalist fidelities to constitutional text, structure, and history, but rather to embrace a more holistic, morally imbued and substantive

conception of the relevant text structure and history, Hammer said. The time for avowedly neutral legal positivism has long passed, if it was ever felicitous to begin with. The legal right should not stoop to the legal left's level, but it must get comfortable jurisprudence unabashedly rooted in the morality and justice of the American founding and substantively oriented to reclaiming that morality and justice from those who seek to destroy it. Meanwhile, the Wall Street Journal editorial board defended the shadow docket. Why has what is formally known as the orders list become a lightning rod? The short answer is that the Supreme Court has moved in a conservative direction,

so Democrats and the legal establishment have ramped up the volume on their criticism, the board said. The long answer is that since about 2014, the court's emergency orders have become more frequent, despite the justices' preference that the case be resolved through regular briefing and argument process. But the reasons for this have almost nothing to do with the court's ideological makeup and almost everything to do with the increasing polarization in American society. The rise of the internet has facilitated the faster resolution of emergency judicial petitions than in the pre-internet era, the board added. In its summary of Justice Alito's remarks, SCOTUSblog noted that the internet now allows the justices to receive the party's papers immediately, access to the full record in the courts below, and communicate with each other anywhere, anytime. That includes when the justices are on, quote, recess during the

summer. The explosion of high-profile nationwide injunctions by lower courts has also forced the Supreme Court's hand. Such injunctions started to climb in response to President Obama's pen and a phone governance in his second term, and accelerated as liberal district judges blocked President Trump's policies. All right, all that brings us to my take. So the Supreme Court has always been one of my favorite things to read and write about. There is something in all of this, though, that strikes me as deeply concerning, which is that there's no real mechanism for enforcing the court's power.

Justice Stephen Breyer is famous for telling a story about his dissenting vote in Bush v. Gore, the 5-4 Supreme Court decision that ultimately handed the 2000 presidential race to George W. Bush. Breyer said that while he was in dissent and voted against the outcome, he was also encouraged by it because there were no riots, there were no police in the streets, there were no people throwing stones. Breyer's observation on the whole is one that is both illuminating and chilling. It's that the Supreme Court's authority fundamentally comes from the public trust, the public reaction to what the Supreme Court does. If the public lost its faith in the institution,

something that has truly never happened in a wholesale way, it would upend the system we rely on as the final arbiter to settle our most contentious disputes. This term, mixed with the current state of U.S. politics, seems to be a primed opportunity for that to happen, and I have no idea where things go if that becomes reality. On the question of the politicization of the court, I find the framing a bit disingenuous. Of course the Supreme Court is political. Justices are approved by the President and the Senate, whose members are voted for by us and whose nominees frequently share the ideological tilt of the people who select them. Amy Coney Barrett, for instance, gave her speech

defending the court's impartiality in Louisville, Kentucky at a venue named after Senate Republican leader Mitch McConnell, who happened to be sitting on the stage next to her and who is also directly responsible for her being on the court. More appropriate is the question of whether the court can act impartially with the justices consistently applying their constitutional standards and schools of thought to every case, regardless of whether the outcome is something they may not choose in a vacuum. That question raises a lot more ambiguity, and many justices, both present day and historically, deserve credit for ruling unpredictably or at least landing in places where their supporters may not have wanted them to because they followed the law's intent as they saw it. Still, the biggest

process question on this court right now is the shadow docket, and it seems clear-cut to me that the process needs reform. The dockets important in uses have skyrocketed, and high-profile decisions with huge significance to the public are being handed down in these unsigned emergency orders with little or no explanation. These kinds of rulings are not tenable for maintaining public trust, and they shouldn't be happening at the clip they are right now. Stephen Vladek, a left-wing law professor who has been an outspoken critic of the court, testified about the docket before Congress. SCOTUSblog, a legitimately independent and even-handed news source for all things Supreme Court, covered the testimony extensively. Vladek made several compelling points, including that seven

emergency writs of injunction have been issued since November of 2020, and the court had only issued four others between that time and John Roberts' 2005 confirmation. This cannot simply be dismissed as the advent of the internet, as the Wall Street Journal seemed to do. It's just true that the shadow docket is being used a lot more and that the court needs to address the fact that it is eroding public trust. All right, so that's it for today's main topic. We are now going to move into the question and answer section of the podcast. And today's listener question comes from KM in Seattle, Washington. They ask, I'd be really interested in your take on the post-left movement among Zoomers

and younger millennials. It seems like economic populism and conservatism is gaining steam with the same faction that supported Bernie's campaign in 2016. I would say this shift is represented by certain thinkers. They list Anna Katchian, Amy Teresi, Angela Nagel, to name a few. Does this movement have any swaying power or viability? So it's a great question. I could probably write a whole newsletter about this and kind of the post-left movement. I know there are probably a lot of

readers who don't spend all day online who are wondering what the post-left is. It's sort of hard to define. It's probably easiest to define based on what they're against, which is fascism, political correctness, civility, conservatives, centrists, liberals. They're basically against everything. As Carl Beiser has said in a really interesting piece trying to define the post-left movement, he wrote, they are uniquely free-thinking, equal-opportunity offenders who operate outside ideological and partisan boundaries. But like most self-identified independents, their actual ideological, political, and even cultural commitments map quite clearly onto the usual camps and divisions.

I think this is a fairly accurate way to describe them. Ultimately, no, I don't see a ton of staying power in the movement. I could be wrong, but there are too many contradictions and too many fractures even within the post-left movement for it to have viability as an influential political caucus or political movement. They are so, so, so very online and immersed in the lords of the internet that to me they often seem just as disconnected from your average voters as elites in each main party, not just in policy, but in culture and tone and vision for the country. I do think they represent an important trend in America and they can tell us a lot about the current political state, namely a couple things. One,

there's sort of an eroding fear of Marxism or Marxist ideology, which the post-left movement sometimes embraces. There's also a ruthless political independence and loathing for mainstream anything on each side that inhabit a lot of young voters. And I think these are some of the young voters in the post-left movement. Also, they sort of speak to how bad the modern left is at winning people over with purity tests and how so many liberals are viewed as insufferable, self-righteous virtue signalers and how this has fostered a major blowback to political correctness. One of the big themes in the post-left movement is sort of that clickiness of the left, the virtue signaling, the self-righteousness of the left. They're very outspoken and critical about that. And I think that is a view shared by a lot of people in America. critical about that. And I think that is a view shared by a lot of people in America.

More than anything, though, I think the post-left just sort of strikes me as our generation's angsty, youthful political faction that every generation has. And typically over time, historically shows that, you know, groups like that, their views moderate and become more predictable as they age. So we'll see, I guess, you know, I'm not the best political predictor, but those are my two cents. All right. And that brings us to our story that matters for the day. Today's story that matters is actually about an 82 page report on the Democratic Party's worsening performance in the Midwest from 2012 to 2020. The performance was apparently worse than counties that had the steepest losses in manufacturing and union jobs and then saw a decline in health care. The report is set to be released later this month, and it's one of the latest pieces of evidence that sheds light on how Democrats have lost strength in Midwestern working class counties where they used to thrive.

President Biden's election last year, Democratic campaign veteran Richard Martin notes that Democrats gained about 1.55 million votes in the big cities and suburbs, but in the same period, they lost about 557,000 votes in heavily rural counties. The New York Times has some coverage of this report that's interesting. If you want to check it out, it's linked to in today's newsletter. All right, and that brings us to our numbers section, which has some ties to today's main story. 62% is the percentage of Americans who approved of the Supreme Court in 2001, which was the highest rating at any point in the last 20 years. 37% is the percentage of U.S. adults who say the court's ideology is too conservative. 40% is the percentage of U.S. adults who say the court's ideology is too conservative. 40% is the percentage of U.S. adults who say the court's ideology is just about right. 20% is the percentage of U.S. adults who

say the court's ideology is too liberal. $76.2 million is the amount of money the National Republican Senatorial Committee has raised so far this year, which is more than what it raised in all of 2019. They are churning out donations right now. All right, and now our have a nice day section, your good news to wash it all down. This one is straight from my hometown, New York City. The public library system here announced it is ending all late fees.

The largest public library system in the country says it will no longer charge fines for overdue materials and that library cardholders can have their accounts cleared of fines. It's a bid to help encourage library patrons to spend more time getting resources and to level the playing field for low-income people scared of racking up fees if they use the library. New York Public Library President Anthony W. Marks said, for those who can't afford the fines disproportionately low-income New Yorkers, they become a real barrier to access

that we can no longer accept. This is a step towards more equitable society, and with more New Yorkers reading and using libraries, we are proud to make it happen. I know that I have some librarians listening to this podcast, so I'm so curious what you guys think. Write in Isaac at ReadTangle.com and let me know your feelings on this story. Is this good or bad?

It seems good to me. That's why it's my have a nice day story, but who knows? All right, everybody, that is it for today's podcast. As always, if you want more, please go to ReadTangle.com and subscribe to our newsletter. Also, while you're listening, if you want to take 20 seconds and go to the episode description, there is a link to support this podcast. It would mean a ton. If you click that link and became a monthly pledge supporter, it's easy to do and the rates are pretty cheap and it keeps us up and running. Thank you guys so much and we'll see you tomorrow. Our newsletter is written by Isaac Saul,

edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle's social media manager, Magdalena Bokova, who also helped create our logo. The podcast is edited by Trevor Eichhorn and music for the podcast was produced by Diet 75. For more from Tangle, subscribe to our newsletter or check out our content archives at www.readtangle.com.