The Daily Signal - INTERVIEW | Legal Experts on Biggest Cases of New Supreme Court Term

Episode Date: October 6, 2022

The Supreme Court is back. The nine justices will be hearing several blockbuster cases this term and weighing in on everything from affirmative action to election districts, and even a case that involves Californian’s access to bacon.  “Last term was certainly a very big term with big cases,” Zack Smith, Heritage Foundation legal fellow, says, adding he suspects this “term will shape up to be an equally as important term in many ways.” Smith and GianCarlo Canaparo, Heritage Foundation senior legal fellow, join the show to discuss the big Supreme Court cases to watch this term.  Enjoy the show! Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

This is the Daily Signal podcast for Thursday, October 6th. I'm Virginia Allen. The Supreme Court's new session has begun. In this term, the nine justices will be hearing cases on everything from affirmative action to election districts and even a case that involves Californians' access to bacon. Heritage Foundation Legal Scholars and hosts of the SCOTUS 101 podcast, John Carlo Canaparo, and Zach Smith. Join me on the show today to give a preview of the Block. or Cases in this new term. Stay tuned for our conversation after this.

Want the inside scoop on what's happening here at the Heritage Foundation? Check out Herd at Heritage and all new show replacing the Heritage Events podcast. It'll feature cutting-edge analysis and thought from leading experts in and across the conservative movement and of course the Heritage Foundation's premier events and programming. Brought straight to you. Check it out at heritage.org slash podcasts. The Supreme Court is back in session and here with us to give a rundown of the big cases are Jean-Carlo Conaparo and Zach Smith. They are legal experts here at the Heritage

Foundation and hosts of the SCOTUS 101 podcast. John Carlo, Zach, welcome back. Thank you for having us. Likewise. Thanks. So first, can you give us the 30,000 foot view of this term? How many cases are the justices going to hear? How long does the term run? Sure. So we don't know quite how many cases they'll here yet because they're still accepting new cases for the second half of the term. But historically, this court takes a little more than 70, is that right, Sacks? Seventy cases a term? They're about, yeah. Yeah. And the term runs from the beginning of October, usually to the last week of June. Okay. And they'll take a little bit of a break in there over Christmas, right? Like a month or so. That's right. And, you know, the number of cases that this court grants is historically a little bit on the low side. But for what they've, what they

lack in numbers, they're certainly making up for in terms of the impact that many of their decisions are having. And I suspect, you know, last term was certainly a very big term with big cases, the Dobbs case, among others. And I suspect this term will shape up to be an equally as important term in many ways. Wow. Interesting. All right.

So, Jean-Carlo, you joined us on Monday for our top news edition at The Daily Signal, just to talk briefly about some of the big cases. I want to dive a little bit deeper into some of the big. ones that are on the docket. And starting with that affirmative action case that you mentioned, if you would, for those who didn't catch the show on Monday, give us a brief summary of what this case is and what's in store here. Sure. So the cases, there's two cases, and they raise the same issues, essentially against Harvard and UNC. And what we found out during Harvard's trial is that Harvard discriminates

against Asian and white applicants in order to create extra spots that they give to black and Hispanic applicants. And the way they do it is they will not only give boosts in the academic admissions process to people who are black or Hispanic, but they will mark Asian students down on a personality rubric. So they will say Asian applicants don't have good leadership skills or don't have good personal skills or sort of charisma or whatnot, very subjective. And they actually did the same thing many years ago against Jewish applicants, keep Jewish applicants down.

But they discriminate against Asians in order to create what they call racial equity across classes to give boosts to black and Hispanic students. And historically, obviously racial discrimination of any kind has not been tolerated in the law. But the Supreme Court many years ago said, look, colleges get a special dispensation because we believe that divestment. Diversity is a good. Racial diversity is a good. And so let the colleges do what they want. But they can't create quotas. They have to use it only as part of a holistic approach. But the court in that case said, but we anticipate that this kind of thing is going to end in 25 years. We're not quite a 25 years, but it looks like the court is seriously considering ending the use of race in admissions. Because, I mean, what we've seen from the Harvard cases, you can pretend that these sort of things are benign or good, but they're not. I mean, racial discrimination for one group's benefit is for another group's detriment. And on top of all of that, what we've seen is that these racial groups are completely arbitrary. For instance, when Harvard says black students, it draws no distinction between, say, wealthy Nigerian immigrants and the poor descendants of slaves.

It draws no distinction between a multiracial person who grew up in Harlem and a multiracial person who grew up in the Hamptons. It's arbitrary in the extreme, but that is such a cultural push right now to use race this way. But it does not comport with the 14th Amendment, which guarantees equality on the basis of race for everyone. And that's the heart of the issue. And one of the interesting things about this case is, you know, these cases were originally consolidated. They were combined for argument. But when Justice Jackson, Kintanji Brown Jackson, joined the court, they were actually separated out again.

They're going to be argued separately. And the reason for that is Justice Jackson, she was on the board of overseers for Harvard University. So she has recused herself from hearing the Harvard case. And I suspect they were separated out so that she could still participate in the UNC case. Oh, that is interesting. Any predictions on what's going to happen? My sense is that the court will probably say in some way that at least the way that Harvard and UNC are using race is not. lawful. You could take a narrow view and say, look, what you're doing is essentially creating

quotas, which we said was unlawful, and you could preserve the old precedence, or you could say, you could go a step further and strike down the use of race. Now, a number of justices have made their positions clear in the past. Clarence Thomas is not okay with the use of race this way. The chief justice isn't either. I think we can safely say Justice Alito from past decisions also is not on board. kind of from the 40,000 foot perspective, I highly doubt the justices would have taken these cases onto their calendar unless they were seriously interested in either substantially revisiting those prior precedents or potentially overturning them altogether. And so unless you

disagree, G.C., I would think, you know, at the end of this term, the use of affirmative action in higher education will look substantially different than it does today. Right. But the point to make, though, is that whatever the court does, it is not going to be the end of this because the universities like Harvard are going to try to find a way around it. The court will draw a line, probably a new line, probably a line that people who care about so the colorblind application of law like, but the universities will constantly push that line. And so it'll be only the beginning of a new sort of fight over the use of race. Okay. Wow. So we're going to see this probably in the courts again.

Oh, for sure. All right, well, I do want to ask you all about a couple of different cases that are involving elections, more or less. So there's a case Moore versus Harper and Merrill versus Milligan. In fact, the justices heard arguments on Tuesday for the case Merrill versus Milligan. And these cases have to do with redistricting. What exactly are the justices deciding in these cases? How does it involve elections? Yeah, so these are very interesting cases.

You mentioned the Merrill v. Milligan case. that involves a challenge to the congressional districts that Alabama drew after the 2020 election. Essentially what the plaintiffs in that case are arguing is that Alabama violated Section 2 of the Voting Rights Act. Now, Section 2 of the Voting Rights Act, it essentially prohibits a state from introducing a rule, practice, or procedure that would discriminate against someone based on their race. It makes sense. It's been applied in the redistricting context in many, many instances in the past. But there have been problems. The test that lower federal courts are supposed to use and deciding whether a Section 2 violation has occurred is very unclear. It's led to confusion.

It's led to subjective applications, some argue. And so essentially in this case, Alabama has seven congressional seats. They have seven representatives in the House. And when they drew their districts, they created one majority minority district. There was one district that had a majority of black voters in it. And so plaintiffs sued the state and said, well, you should actually have two majority minority districts, not just one, and that your failure to create the second district actually violates the Voting Rights Act. A lower federal court agreed

with the plaintiffs ordered Alabama to draw that second majority minority district, but Alabama appealed to the Supreme Court essentially saying that as the voting rights act was interpreted by this lower federal court, it would actually require them to violate the equal protection clause of the 14th Amendment because it required them to focus on race as the predominant consideration in redistricting to the exclusion of almost every other traditional redistricting factory, you know, keeping communities together, making sure that districts are compact. And so I think we saw a lot of this play out at the oral arguments where a lot of the justices focused on what the appropriate test should be, whether Alabama should in fact

be compelled to draw this second majority minority district if it would require them to focus on race to the exclusion of these other factors. And so again, this will be a very important decision going forward. And hopefully the court will really provide guidance to legislators who are having to draw these districts because right now, you know, I think there's a lot of confusion on the ground. Legislators feel like they're stuck between a rock and a hard place that no matter what they do, they'll be sued and accused of discrimination. And so I suspect coming out of this case, we will hopefully get a little more clarity in that area. Now, the second case you mentioned Virginia was Morvey Harper. This is an interesting case out of North Carolina. It involves the so-called

independent state legislature theory. And basically what happened in North Carolina is the state Supreme Court there declared some of the legislative maps the legislature drew as unconstitutional under the state constitution as being an illegal partisan gerrymander. And so the question here is the U.S. Constitution, the federal constitution, places predominant authority in state legislatures to make election rules and procedures. And so the courts essentially being asked to resolve what role these other state branches of government can and should play, whether courts, state courts, can overturn the decisions of the state legislature, whether governors, other executive branches.

ranch officials can step in and play some role too. And so again, this will have very important, very lasting consequences in the lead up, not only to the, probably not for the midterms coming up, but certainly in the lead up to 2024 and subsequent elections. Yeah, we're certainly going to keep our eyes on those cases. That's going to be fascinating to see how those play out. Now, John Carlo, I know you had mentioned a very significant case revolving sort of environmental issues in a way. Shackett versus Environmental Protection Agency. Explain a little bit about what is being decided and how this case will not only impact this one family, but the American people. Yeah, sure.

So I'll start. The Sackets have an interesting story. They have been in this litigation for about 10 years, a little more than 10 years. Actually, I think it's closer to 16 or 17 years, G.C. Actually, you're right. You're right. It has been going on for a long time. It's hard to believe.

this saga actually started all the way back around 2007. Wow. I say. What the Sacketts wanted to do, they bought a piece of property by Priest Lake in Idaho, and they wanted to build a house on it. And the federal government came along and said, no, sorry, you can't because your piece of property affects navigable waterways, and so is governed by the Clean Water Act. And the Sackets looked around at their property and said, well, our property is dry.

It's not on the lake. It's not next to the lake. There's no water on us. There's not so much as a creek. What do you mean? Navigable waterways. And the federal government said, well, look, from your property, if you cross the road, there's a little ditch. And that ditch connects down a little ways to a wetland.

And that wetland connects to a creek. And that creek connects to Priest Lake. So you have what Justice Anthony Kennedy and Justice Anthony Kennedy alone once called a significant nexus to a navigable waterway, and so the federal government can regulate you even to the point of not letting you build. Now, this all comes from a case called Rapanos. The Supreme Court was trying to figure out what the heck do the waters of the United States mean in the Clean Water Act, and the justices split all different ways.

But for very technical reasons, Justice Kennedy's solo opinion became the controlling opinion, and he said it just means any land can be governed by the Clean Water Act, provided it has a significant nexus to a navigable waterway. That has spawned, as you can imagine, all sorts of just chaos. Nobody knows what on earth that means. The government naturally has taken a maximalist approach and said, shocking. Shocking, right?

You are deaf, your land, if you buy a piece of, I don't know, desert in the middle of Death Valley, it is a navigable waterway, we will regulate it. And people have said, look, this is just not, this is not workable. The Supreme Court heard oral arguments earlier this week and said, seem to agree this is not workable. But where they end up drawing the line is going to be, it's really going to be hard to tell. But this is another case in a sort of long line of cases where the federal government has taken extraordinary maximalist positions on its power. And the Supreme Court has in several cases this last term, the term before, said, look, no, you can't do that.

And I think we're going to get some kind of decision like that. I'm still waiting for the federal government to learn its lesson. I don't think it's going to learn that lesson anytime soon. But as long as the Supreme Court is there to remind them to behave themselves, at least things are moving in the right direction. Well, in this case was brought by our friends over at the Pacific Legal Foundation. Damien Schiff argued it for PLF, did a phenomenal job. And they've really been involved on this fight pushing back against this government overreach

for a long, long time. So kudos to the folks over at PLF for taking on this case. This is one of those cases where you're really not sure whether to laugh or cry. I mean, it's so bizarre. It's been going on for so long at the same time to see that kind of government overreach to be able to tell a family, you can't build a house on the land that you bought with your hard-arm money. Right. Wow.

All right. So what are one or two other cases that we should be paying attention to this term? So I think one of the other big cases is the 303 creative case. This is the follow-up to the masterpiece cake shop case. It's basically a website designer in Colorado is challenging that state's supposed non-discrimination laws, which would require her to essentially make a website for a same-sex wedding, even though she holds deeply held religious objections to same-sex marriage. Now, one of the interesting things about this case, even though it has religious liberty implications,

religious liberty undertones, it's actually being brought as a free speech case. And that's interesting because, you know, I'm curious to hear your take, G.C. But in the masterpiece cake shop case, you know, I think there was some hesitation, some confusion. Does cake decorating? Does that qualify a speech? Is it an act? You know, what is this? I think in this case, because it is a website being designed, it's much more clearly and unambiguously a free speech issue.

And so it much more clearly tease up that issue. And I suspect we may get kind of even more clarity surrounding the. interplay between free speech and these non-discrimination laws than we did with the masterpiece cake shop case. So this is a very important case, and I'm certainly watching it very closely. Yeah, one that I will add is what I like to call the Bacon case, the National Port Producers versus Ross. Now, if you live anywhere in the country outside of California, you know that California is trying to regulate the way you live, even though you don't live there. They keep passing all sorts of laws. Shocking, I know. They keep passing all sorts of laws that have.

have nationwide effects, largely because California's economy is so huge that when California puts restrictions on what can and cannot be sold or how in its state, a lot of companies are sort of forced to comply because they can't create separate markets for different states in the country. So California passed a law that said no pork can be sold in this state unless it complies unless the pigs are raised in sort of the utopian animal rights conditions. They want the pigs to be living in very cushy conditions. Right, right, right.

They have the best life possible for their slaughter. That is noble and whatnot. Sure, absolutely. Right, but also it's not how pork is produced anywhere in the country. So pork producers, the way the market works is they sell their pork to sort of distributors. and the distributors sell their pork all of the country. The distributors, so the pork producers obviously can't create market-specific pork. They have to sell to the distributors.

The distributors are not going to create separate markets. So the pork producers are in a bind. So they essentially have to conform to California's rules, which burdens pork producers all over the country. So they have sued and said, look, there's something in the Constitution called the Commerce Clause. And the Commerce Clause says that Congress gets to regulate interstate commerce and a doctrine called the dormant commerce clause or the inverse of that, which means only Congress gets to regulate interstate commerce. The states don't get to. What California is doing is regulating interstate commerce, so you can't do that. We shall see.

It's an interesting case because the Dormant Commerce Clause is not really a favorite doctrine of conservative justices who look at the Constitution and say, what's not really there. We sort of need to interpret this very narrowly. At the same time, there are really interesting implications for, say, the abortion context, because let's say Texas says, you know, you may not sell abortifacients into Texas, or you cannot perform, sell abortifacients into Texas unless they have met certain testing requirements or whatnot. So you've got an interesting issue here that sort of cuts across both ways, both political aisles. So there you have it. It's a fascinating case.

We'll see what happens. Yeah. obviously involves a lot more than just bacon. Fascinating. Now, the last term was a blockbuster term. It was wild to see so many big cases, of course, most notably, the overturning of Roeby Wade with the Dobbs case. Is this term going to in any way be quite as big, do you think, as the last one?

Well, my sense, and Zach, feel free to disagree, is that, I mean, there's nothing bigger than the overruling of Roe versus Wade. The end of affirmative action programs, racial discrimination in education or elsewhere, would be fantastic. But, again, Roe v. Wade was Roe v. Wade, and Dobbs was the end of it, and that was enormous. Yeah. Well, I think that was. I certainly agree with that, G.C., that Dobbs is an enormous case. It was a huge win for the Constitution, really, in a lot of ways. But look, I think a lot of the cases this term may have a more subtle but equally as important impact on the day-to-day lives of many Americans, particularly the election cases, Morvey Harper, Merrill v. Milligan, you know, the Dormant Commerce Clause case, the baking case, as you called it, G.C. can have wide-ranging implications on the powers of states. You know, you mentioned it could also impact, you know, the abortion debate and what states can do in that area. But it can impact many, many other areas.

as well. And so I suspect, you know, last term was a huge, huge term, but in many ways, I think this term will also be very, very important as well. Right. And you all are going to be breaking down so many of these cases continually on your podcast, SCOTUS 101. Tell us when it comes out, how we can find it, how we can follow you guys. Well, it comes out pretty much every Friday that the court is in session, and you can find it anywhere you listen to podcasts. And please leave us a five-star rating. Excellent. John Carlo, Zach, thank you guys so much for joining.

Really appreciate your time today. Our pleasure. Of course. And that'll do it for today's episode. Thanks so much for listening to the Daily Signal podcast. If you have not had the chance already, be sure to check out our evening show right here in your podcast feed where we bring you the top news of the day.

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