The Daily Signal - What to Expect in the 2019-2020 Supreme Court Term

Episode Date: October 8, 2019

Heritage Foundation legal expert Elizabeth Slattery discusses what will happen in the 2019-2020 Supreme Court term, which began Monday. How big an impact will all the Brett Kavanaugh controversy have? What’s up with Clarence Thomas being out sick? And what are the blockbuster cases? Slattery breaks it down. Plus, we’ll talk about the NBA’s decision to side with China over the Hong Kong protesters. We also cover these stories: President Trump’s decision to move U.S. troops out of the area of Syria bordering Turkey has angered several top Republicans. Trump says he will punish Turkey if the nation does anything "off limits." Acting Homeland Security Secretary Kevin McAleenan was shouted down from a speech he gave Monday. The Daily Signal podcast is available on Ricochet, iTunes, Pippa, Google Play, or Stitcher. All of our podcasts can be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You can also leave us a message at 202-608-6205 or write us at [e-mail]. 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 Tuesday, October 8th. I'm Rachel Del Judas. And I'm Kate Trinco. Today we're featuring Rachel's interview with Heritage Foundation legal expert, Elizabeth Slattery, about what will happen in the 2019-2020 Supreme Court term. It began Monday. How big of an impact will all the Kavanaugh controversy have? What's up with Clarence Thomas being out sick?

And what are the blockbuster cases? Elizabeth Slattery breaks it down. Plus, we'll talk about the NBA's decision to side with China over the Hong Kong protesters. And don't forget, if you're enjoying this podcast, please be sure to leave a review or a five-star rating on iTunes and encourage others to subscribe. Now on to our top news. President Trump's decision to move U.S. troops out of the area of Syria bordering Turkey has angered several top Republicans. Senator Lindsey Graham, Republican of South Carolina, spoke on the phone with a lot of. Fox and Friends Monday to share his thoughts about the move, which came after Trump spoke with

the Turkish president. And this is going to lead to ISIS reemergence. Nothing better for ISIS than to create a conflict between the turrets and to line with Assad, a big win for ISIS. I will do everything I can to sanction Turkey if they say. Graham tweeted later on Monday, no matter what President Trump is saying about his decision, it is exactly what President Obama did in Iraq with even more disastrous consequences for our national security. Unlike President Obama, I hope President Trump will reassess and take sound military advice.

Former U.N. Ambassador Nikki Haley was also critical, tweeting, We must always have the backs of our allies if we expect them to have our back. The Kurds were instrumental in our successful fight against ISIS in Syria. leaving them to die is a big mistake. Hashtag, Turkey is not our friend. However, Senator Rand Paul, Republican of Kentucky, tweeted his support for the president, saying, I stand with Donald Trump today as he once again fulfills his promises to stop our endless wars and have a true America-first foreign policy.

Following his decision to take U.S. troops out of Syria as Turkey plans to start military operations there, President Donald Trump says he will not mince words or actions with Turkey if it does anything he deems as inappropriate. Trump tweeted Monday, quote, as I have stated strongly before, and just to reiterate, if Turkey does anything that I migrate in unmatched wisdom consider to be off limits, I will totally destroy and obliterate the economy of Turkey, as I've done before, end quote. Trump also tweeted that, quote, Europe and others must watch over the captured ISIS fighters and family. the U.S. has done far more than anyone could have ever expected, including the capture of 100% of the ISIS caliphate. The Pentagon announced Monday that it is not endorsing the influx of Turkey's military into northern Syria. House Democrats are continuing their impeachment push. In separate letters to defend Secretary Mark Esper and Acting Office of Management and Budget Director Russ Vote,

a former Heritage Action colleague of ours, three Democrat chairman issued, subpoenas insisting they need documents to investigate President Trump's actions. In the letters, representatives Adam Schiff, Elliott Engel, and Elijah Cummings write, the enclosed subpoena demands documents that are necessary for the committees to examine the sequence of these events and the reasons behind the White House's decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression. The acting Homeland Security Secretary was shouted down from a speech he gave Monday at Georgetown Law School. Kevin McAleenan left the stage after the audience screamed opposition for President Donald

Trump's immigration policies. McElhenan was invited to speak at Georgetown Law for a yearly immigration law and policy conference hosted by Georgetown Law, the Migration Policy Institute, and the Catholic Legal Immigration Network. According to Fox News, before his remarks even began, the audience was shouting. Here's some audio from the event via C-SPAN. Next up, we'll feature Rachel's interview with Elizabeth Slattery about what cases the Supreme Court will hear this year that you'll care about.

Exciting news for heritage members. Our 2019 Presidents Club is taking place October 21 through 23 in Washington, D.C. This is an exclusive event for heritage members to hear directly from our experts and other conservative leaders. This year, that includes vice president. President Mike Pence and Secretary of State Mike Pompeo. To learn more about how you can attend, please call 1-800-546-2843. That's 1-800-546-2843. We are joined today on the Daily Signal podcast by Elizabeth Slattery,

who is a legal fellow and appellate advocacy program manager for the Mease Center for Legal and Judicial Studies at the Heritage Foundation. Elizabeth, thank you so much for being with us today. Thanks for having me. So to get started off, Monday was the first day of the Supreme Court's 2019-2020 term. You were actually at the court on Monday morning. What was the atmosphere like? Well, it's always a little bit like going back to school, the first Monday of the Supreme Court's new term.

So there were some sort of clearinghouse things the Chief Justice went through. He mentioned, you know, that Justice Breyer is celebrating, I think, his 25th anniversary on the court. also gave a brief tribute to retired Justice Stevens who passed away over the summer and then mentioned that Justice Thomas was not going to be at the court that day because he is apparently sick. We hope he feels better. Yes, definitely. Very soon. So looking at cases that are coming up ahead during their term, during the Supreme Court's term,

we're going to go through each of them in more detail. But in your own mind, as you look ahead to this term, do you think there will be a single case that will define this Supreme Court term? Yes. So last week on Friday, the court announced that it's going to take up a case involving an abortion regulation out of Louisiana. And I think that's going to be the defining case of the term. This will be the first abortion case that the court has looked at since Justice Kavanaugh came on and sort of the majority of the court has kind of shifted a little bit. So I think that will be the one that most court watchers are most anxiously watching. So today the Supreme Court will be hearing a case about sexual orientation and gender identity and what counts as employer discrimination. What Elizabeth is at stake in this case and why does it matter? Well, why this case matters is because the federal law that gave rise to these lawsuits prohibits sex discrimination, discrimination on the basis of sex. And so this case is all about if changing the definition of sex, if that's the proper province of the judiciary, or if that's

that's something that should be left to legislators, either in state houses across the country or in Congress. And so the challengers argue that sex means gender identity and it also means sexual orientation. But the employers in these cases say that no, when Congress passed this law in 1964, the understanding of the term sex was male or female. And that's all that is included in sex discrimination. Interesting. And I've heard there have been a few feminists. that have talked about this case and also different so G legislation we're seeing in Congress

and they feel that it's essentially taking away rights that women have worked for it. So it's been interesting to see how this plays out in the days to come because they say this is defining for women's rights. Definitely. We'll have to see. So Elizabeth, in your latest report for heritage.org, you mentioned that some of the upcoming influential cases include an Obamacare bait-and-switch case as well as the Trump administration's decision to roll back DACA, which is the deferred action.

for childhood arrivals. Can you impact each of these cases for us? Okay, so starting with the DACA case. This is coming up in the November sitting. And this goes back to 2012 during the Obama administration. The administration decided to extend deferred deportation action as well as allow people to apply for work authorization. And this covered people who came to the United States as children illegally, who were under age 30 and met some other requirements. Now, related programs were challenged in court at the time, but the underlying 2012 DACA program had not been ruled on, at least in terms of its legality.

So when the Trump administration came in, the Department of Homeland Security took a look at the program and decided that it may be illegal and unconstitutional. And so it decided to roll that program back. And so that rollback decision, the rescission of DACA is what is the subject of the case that's at the Supreme Court now, whether the administration is allowed under our laws to roll back that program. So then the Obamacare case, it seems we're talking a lot about Obama. He's not in office anymore. The Obamacare case, this deals with sort of a risk-sharing program, part that was set up in Obamacare,

to encourage insurance companies to offer coverage to people who might have pre-existing conditions and people who didn't previously have insurance. So it was a bit of a risky bet for them in terms of trying to figure out how to price what the insurance would cost. So in the law, there was a provision that would allow for some cost sharing. But then Congress decided it ended up not actually funding the program that would pay the insurance companies back. So they started, you know, setting up these insurance policies, allowing coverage for people with preexisting conditions. It ended up being astronomically more money than they thought it was going to be. and then the government never paid them back.

So that's what's at stake with the, I think it's been called a $12 billion bait and switch from Obamacare. Wow. And I think we were talking earlier. Do you say this is, I think, the fifth time the case is hurt or the court has heard an Obamacare case? This is the fifth, yes, the fifth Obamacare challenge just at the Supreme Court. And there's a sixth one that I think has a good shot of coming up to the Supreme Court later this term. We're waiting on the appeals court ruling. but it's a constitutional challenge involving the individual mandate.

Interesting. Well, we'll definitely be watching those. So in addition to the Obamacare case and the DACA case, we just talked about, the Supreme Court will also be hearing a case on restricting gun rights. What's at stake here in this case? So this comes out of New York City. The city had these pretty onerous gun restrictions. You had to apply for this license.

And then if you got a license to have a handgun, you could basically only have it in your home or you could take it to one of seven gun ranges within city limits. They wouldn't allow you to take it outside of the city. So if you wanted to go across the bridge to New Jersey to a different gun range, that wasn't allowed. If you wanted to take it to, if you were fortunate enough to have a second home somewhere else in the state, you couldn't take it there. You know, if you moved, I guess you'd have to leave your gun behind because you couldn't take it anywhere else. So that is the regulation that is at stake in the New York case. Now, after the court granted cert in this case last January, they didn't schedule it for argument until, you know, the term we've just started.

The city decided to change its regulations. And so now it says, well, there isn't a live case or controversy before the court. But the challengers say, you know, the city defended this as constitutional for six years. and then when it gets to the Supreme Court, they're worried that the court is going to rule against them. And so they change their behavior to take the case away. I don't think the justices really like it when parties do that. So we'll see what happens. But that's scheduled for argument in December.

Just before the new Supreme Court terms started, there were in renewed calls for Supreme Court Justice Brett Kavanaugh to resign or for him to be removed due to a new allegation of sexual misconduct that has since been debunked. Do you think all of the talk of impeaching Kavanaugh will affect the court this term? And if so, how? I don't think that the discussions of impeachment will affect the Supreme Court this term. You know, Justice Kavanaugh was at court asking questions on the first day of argument. He's there to do the job. And I think he's just going to keep his head down. And hopefully the rest of the justices will do the same.

So going back for a minute to the cases the court is expected to hear, what is your take on the case regarding whether or not the government can withhold federal funds some sanctuary cities that refuse to cooperate with immigration enforcement? So this is a really interesting area because right now there are a number of appeals courts that have heard some cases along these lines. And the Ninth Circuit, which we always hear about as the sort of far, far left-wing circuit court actually sided with the Trump administration. and all the other appeals courts so far have sided with the, whether it's a sanctuary city or a county, whatever sort of jurisdiction. So, you know, that sort of circuit split is a good indication that if one of these cases goes up to the Supreme Court, they may end up taking one of these cases. Do you expect Elizabeth, most decisions will be five to four? And do you think there's any cases where we might see a lot of unity or people stray from their usual positions?

So on average, the court only decides about 20 to 25 percent of its cases. is 5-4. And if you look at last term, there were a little bit higher. I think it was like 29%. But the majority of the 5-4 decisions weren't actually the conservative block. It was more often the four liberals and then one of the other conservative justices. So, you know, it's kind of interesting. You know, we hear about the 5-4 conservative majority of the Supreme Court and it doesn't always shake out that way in practice. You know, there are going to be some cases. that are most likely going to turn out five, four, and they're the types of high-profile cases that we expect, the ones involving guns and abortion and other really hotly contested social issues.

But there's one case involving whether a state can deny parents the ability to use publicly funded scholarship funds at religious schools. This is out of Montana. And, you know, there was a similar, a case involving a similar sort of issue a couple of terms ago. and Justice Breyer and Justice Kagan joined with the majority in that one. And they're not exactly heralded as, you know, right-wing conservative judges. So that may be one where we see some crossover. But certainly the majority of cases coming out at the end of this term will not be five-four.

And we'll see a lot of unanimity. So final question. Do you think the Supreme Court will see any retirements this term? And how, if so, do you think that will affect what the court is able to accomplish? I'm not going to hazard a guess about whether anyone is going to retire. I mean, if I knew, man, I should go to Vegas. But obviously, if there was a vacancy on the Supreme Court heading into a presidential election year, that that would have a big impact on the election. And it could, if that justice wasn't on the court, it could affect how some of the cases are decided.

You know, the term when Justice Scalia passed away, the justices with their. eight justice court were able to decide most cases. There were only a handful of cases where they ended up tying, which means that the lower court judgment stays in place. And so who knows if one of them is going to retire. But if that did happen, it would certainly have a big impact on the election. Well, you have a podcast of your own, Skodas 101. How can listeners who follow the daily signal but might not know Skos 101, how can they get plugged in? Well, you can go, we're on iTunes, Spotify, basically any platform where you listen to podcasts. And I talk about the news of the week at the Supreme Court. I interview people who argue cases at the Supreme Court, people who

have clerked for the justices. And we also play Supreme Trivia. So you can learn some obscure facts about the justices and the court. You don't want to miss out on that. And as we as the Supreme Court starts a new term, you want to stay up to date with all things Supreme Court. So be sure to check out SCOTUS 101. Elizabeth, thank you so much for being with us today. Thanks for having What the heck is trickle-down economics? Does the military really need a space force? What is the meaning of American exceptionalism? I'm Michelle Cordero.

I'm Tim Desher. And every week on the Heritage Explains podcast, we break down a hot-button policy issue in the news at a 101 level. Through an entertaining mix of personal stories, media clips, music, and interviews, we help you actually understand the issues. So do this. Subscribe to Heritage Explains on iTunes,

Google Play, or wherever you get your podcasts today. On Friday, the general manager of the Houston Rockets, which I've been told is a basketball team, tweeted, Fight for Freedom, Stand with Hong Kong, and cue the uproar. The NBA apparently makes big money in China and has a lot of Chinese fans. And the Rockets are a particular favorite team in China. The General Manager of the Rockets, Daryl Morey, soon deleted his tweet. and on Sunday the NBA issued an apologetic statement saying, quote, we recognize that the views expressed by Houston Rockets general manager Darrell

Mori have deeply offended many of our friends and fans in China, which is regrettable. While Darrell has made it clear that his tweet does not represent the Rockets or the NBA, the values of the league support individuals' education themselves and sharing their views on matters important to them. We have great respect for the history and culture of China and hope that sports and the NBA can be used as a unifying force to bridge cultural divides and bring people together. End statement.

So, for once there is bipartisanship, both Democrat and Republican politicians are now mad at the NBA. Senator Chuck Schumer, Democrat of New York, tweeted, no one should implement a gag rule on American speech. speaking out for freedom. I stand with the people of Hong Kong in their pursuit of democratic rights. I stand with Americans who want to voice their support for the people of Hong Kong. Senator Ted Cruz tweeted,

As a lifelong Houston Rockets fan, I was proud to see Daryl Morey call out the Chinese Communist Party's repressive treatment of protesters in Hong Kong. Now, in pursuit of big dollars, the NBA is shamefully retreating. So Rachel, I know you're not a basketball fan and neither am I. I don't pay attention to it. So we're sorry to the fans out there and the listeners who actually understand basketball. But what did you think about essentially this big company letting China walk all over it? I think it's wrong. And I think Ted Cruz has something to say about their mourn support and they're wanting to have their funds being paid to them rather than actually supporting human rights and freedom.

And I think it was completely out of step for the NBA to come alongside Darry and basically, I'm sure he was probably contacted and they're like, please delete this tweet. This isn't appropriate. We don't want to upset our fans. When it is, I mean, he, Darrell, you know, he lives in the United States. I presume he is part of this country. He can have opinions that differ. And for his employer to be like, hey, sir, please delete this tweet, I mean, it's just an appropriate.

Right. And as you say, we're not exactly sure what happened if the NBA pressured him or he decided. But it seems a safe speculation that something like that occurred. And yeah, I mean, I think, you know, obviously people have to be quiet about certain issues because of who their employers are. And I'm not saying that's in all cases inappropriate. But why does the NBA, I mean, the NBA, so from what I was reading, the NBA has exhibition games in China. Apparently they, on some Chinese social media, network. They have a huge number of followers. I think it was the New York Times that was reporting that. So this is, I mean, there are, I guess, real financial consequences potentially to this. But I mean, at the same time, I mean, China is a country that where we have forced abortions. There are, I believe, over a million Uyghurs in these forced camps right now. I mean, this is a country with an atrocious human rights record with no freedom. And yeah, I think we should be with Hong Kong. And I think it's interesting that, you know,

recently, the star of the upcoming Disney Live Action movie, whose name I can't recall, is Chinese. And I believe she tweeted support of China over Hong Kong. And as far as I'm aware, she never received any pressure. I think there was some public pressure, but Disney never forced her to change what she had to say, which I think shows you that companies are maybe taking advantage of the U.S. is not being a power-hungry dictatorship that demands companies do everything and they're cow towing to China. Yeah. I mean, as you mentioned, you know, Daryl, his tweet was very obviously supportive of Hong Kong and the protesters and freedom rights push there. It's not though that he was saying we hate China. You know, we we despise the people

there. It's not like he specifically called them out, almost like the NBA was inferring. He was just saying stand with Hong Kong. He wasn't necessarily dissing the Chinese people either. Right. And who's to say? I mean, China is a dictatorship. essentially. We don't know what the Chinese people actually think. For all we know, many of them secretly support the people of Hong Kong but can't speak out because, of course, there would be very real consequences for them. And the other thing that struck me was South Park, which would not be a family-friendly show, but it's one I sometimes watch. They apparently recently had an episode that made fun of China. And I believe they're either now banned in China or their

mentions of their show were deleted off Chinese social networks, which of course the government has a lot of access and control of. And Matt Stone and Trey Parker, the guys behind South Park, reacted with a very strong statement with the NBA. They said, quote, like the NBA, we welcome the Chinese censors into our homes and into our hearts. We too love money more than freedom and democracy. And I just love that because, I mean, again, I think there's plenty of things I would disagree with these guys on. But good for them for standing up to China. I mean, this is ridiculous.

if the NBA loses millions of dollars or whatever. This, how can you not stand up for the protesters of Hong Kong? Exactly. And for just repressive human rights violations. I mean, we would think, at least I would hope that supporting human rights and human freedom is more important than money. But for some people, it's apparently not. Well, on that note, that'll do it for today's episode.

Thanks for listening to the Daily Signal podcast brought to you from the Robert H. Bruce Radio Studio at the Heritage Foundation. Please be sure to subscribe on iTunes, Google Play, or PIPA, and please leave us a review or a rating on iTunes to give us any feedback. So, as Rachel says, don't pick money over your values, and we'll see you again tomorrow. The Daily Signal podcast is executive produced by Kate Trinko and Daniel Davis. Sound design by Lauren Evans and Thalia Ramprasad. For more information, visitdailySignal.com.