The Daily Signal - What You Need To Know About 4 Pivotal Supreme Court Cases This Term

Episode Date: May 14, 2020

The Supreme Court is hearing some major cases this term that could have longstanding implications. The cases span a variety of issues: President Donald Trump’s financial records, the Electoral College, and religious liberty. and more. Tom Jipping, deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation, joins the podcast to break these cases down. We also cover these stories: The Trump administration is calling out the Chinese for trying to “illicitly obtain” research related to COVID-19.  Paul Manafort, a former campaign chairman for Trump, was released Wednesday from prison.  Gov. Gretchen Whitmer, D-Mich., says the the protests in her state are “racist and misogynistic.” 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, May 14th. I'm Virginia Allen. And I'm Rachel Del Judas. Right now, the Supreme Court is hearing some exceptionally important cases, including cases on religious liberty, President Trump's financial records, the Electoral College, and more. Tom Jipping joins the Daily Signal podcast to break them down. Don't forget.

If you're enjoying this podcast, please be sure to leave a review or a five-star rating on Apple Podcasts and encourage others to subscribe. Now on to our top news. President Trump's administration is calling out the Chinese government for trying to illicitly obtain research related to COVID-19. Chinese actors have been observed attempting to identify and illicitly obtain valuable intellectual property and public health data related to vaccines, treatments, and testing from networks and personnel affiliated with COVID-19 research, according to a press release from the FBI.

The potential theft of this information jeopardizes the delivery of secure, effective, and efficient treatment options. On Wednesday, Trump tweeted, as I've said for a long time, dealing with China is a very expensive thing to do. We just made a trade deal. The ink was barely dry, and the world was hit by the plague from China. 100 trade deals wouldn't make up the difference, and all those innocent lives lost. There are new developments in the court case involving Mike. Michael Flynn, former National Security Advisor to President Trump. In February of 2017, Flynn resigned from his position as National Security Advisor after

lying to Vice President Mike Pence about the nature of a conversation with Survey Kislyak, Russia's then ambassador to the United States. In December of 2017, Flynn admitted to lying to the FBI about conversations with Kislyak. Now the Justice Department has asked the judge. judge handling the case, Emmett Sullivan, to dismiss it, but Sullivan says he will first consider arguments from those not involved in the case as to whether or not the case should be dismissed. Flynn's lawyers are arguing that the court rules do not allow for Sullivan to allow third-party input on the case. A criminal case is a dispute between the United States and a criminal

defendant. There is no place for third parties to meddle in the dispute, and certainly not not to usurp the role of the government's counsel, wrote Sidney Powell, one of Flynn's lawyers, in a court filing per Fox News. Paul Manafort, a former campaign chairman for President Trump, was released Wednesday from prison. Kevin Downing, Manafort's lawyer, told CBS News that Manafort's release was due to potential health risks from coronavirus. Last March, Manafort was sentenced to seven and a half years or 90 months in prison on two separate cases comprised of tax and bank fraud and related charges per CBS. Democratic Governor of Michigan, Gretchen Whitmer, said Wednesday that the protests in her state and specifically outside the state capital

are racist and misogynistic. Large groups have been protesting against Whitmer's lockdown orders, calling them too harsh and demanding that the state reopen. Whitmer was asked, about the opinion of the protesters on ABC's The View Wednesday morning. Take a listen. These have been really political rallies where people come with Confederate flags and Nazi symbolism and calling for violence. This is not appropriate in a global pandemic, but it's certainly not an exercise of democratic principles where we have free speech.

This is calls to violence. This is racist and misogynistic. I ask that everyone who has a platform uses it to call on people to observe the best practices promulgated by the CDC and to stop encouraging this behavior because it only makes it that much more precarious for us to try to reengage our economy, which is what everyone says they want us to be able to do. Now stay tuned for my conversation with Heritage Foundation's Tom Jipping, where he breaks down what you need to know about some pivotal Supreme Court cases currently being argued. It's our priority at the Daily Signal to keep you informed during the coronavirus pandemic. Here's an important message from the White House Coronavirus Task Force. Taking care of your mental health is critically important as we stay indoors more often. It's important that people get enough sleep because we know sleep promotes mental health.

It's important that you get exercise when you can while still engaging in proper social distancing. And most importantly, seek help if you need it. Telehealth services are available and call a friend if you just need someone to talk to. Now more than ever, we want you to pay attention to your mental health. I'm joined today on the Daily Signal podcast by Tom Jipping. He's deputy director of the Edwin Meese, the Third Center for Legal and Judicial Studies and Senior Legal Fellow at the Heritage Foundation. Tom, it's wonderful to have you on the Daily Signal podcast.

Thank you very much. Well, Tom, we're going to dive into now some of the most important Supreme Court cases this term, all of which have had oral arguments at the Supreme Court in recent days. And to start off, the Supreme Court heard oral arguments earlier this week on whether or not President Trump's financial records should be allowed to be kept private. Can you tell us, Tom, what this case is about? Well, there's actually a couple of related cases involving those financial records. One involves a subpoena issued by U.S. House of Representatives Legislative Committee.

and the other involving subpoenas issued by the Manhattan District Attorney in New York. The case involving the subpoena from the House, that's a separation of powers issue. In other words, the legislative branch has authority to issue subpoenas and investigate with regard to legislative issues. But it doesn't have power just to investigate whether the president has committed criminal acts or to investigate. investigate him any way they want. And that appears to be what the House has been trying to do. So the Supreme Court has to decide whether there's a line there that limiting what the legislative branch can do. And in the other case, it is a criminal investigation, but there too, it's a matter of whether that district attorney or the grand jury can investigate the president while he's in

office. So these are politically charged cases, but they involve very important. constitutional principles. Tom, do you have any predictions as to what you foresee happening in this case? And does the decision have any larger implications? Well, it definitely has larger implications. People will remember during the impeachment season that we went through. There, too, the question was whether, you know, whether the House had gone too far or not far enough in issuing subpoenas against the president and the other branch. So these cases do have a lot to do with that relationship between the legislative and executive branches. And that separation of powers is a very important part of our constitutional structure. So it'll have a lot of influence about

how the branches interact going forward. Well, the Little Sisters of the Port were back at the Supreme Court for oral arguments for the contraception mandate case that these nuns have been battling now for eight years. Can you give us, before we get into what happened, a quick refresher on this case? Sure. The Affordable Care Act requires that employers provide health coverage for what they call essential services, and that includes all forms of birth control that the Department of Health and Human Services has approved. And that includes both contraceptives and methods that effectively induce abortions. And The Little Sisters of the Poor, which is a wonderful organization.

I actually met their leader and some of the nuns when I worked for Senator Orrin Hatch on the Judiciary Committee in the Senate. And they care for the poor and the elderly. And they went to court to say that enforcing that mandate on religious organizations violates their right to exercise their religion under the First Amendment. So all along, it's been this clash between wanting to advance a policy goal of providing insurance coverage for birth control and the right of religious freedom on the other side. What's been unfortunate is that beginning with the Obama administration, they seem just

just intent on pushing that birth control health coverage agenda to the exclusion of everything else. They paid no attention to its impact on religious freedom or other values that are very, very important. But this is the second time that they've been, or the third time that this issue's been to the Supreme Court just in the last few years. And the little sisters of the poor are trying to defend the right to practice religion and not to be forced to violate those religious beliefs by the government. Well, given everything that they've been through and the fact that they're still fighting this case, what all is at stake here? And given some of what we've seen in the past, what do you foresee happening with the case that they're in now now that they're back

once again at the board? Well, and one of the important implications of this case is that it It involves a statute called the Religious Freedom Restoration Act. This is a very important federal statute that protects religious freedom across the board for all of us. And it sets a very high legal standard for the government to interfere with our practice of our faith. And so these cases really test whether that commitment is real or whether, you know, it actually doesn't mean much at all.

the solution here is very simple, and that is, and this is what the Little Sisters of the Poor have sought. When you have a mandate of this kind that covers a very broad sweep, you make exceptions or exemptions in some individual cases where other rights are involved. All they seek, I mean, this is an order of nuns, and the federal government has been trying to make them cover birth control in their insurance plan. I mean, on the face of it, that just sounds ridiculous. So it's going to test whether this federal statute genuinely does protect religious freedom or whether that's becoming just kind of an illusion. Well, on Wednesday, the Supreme Court heard oral arguments on the issue of faithless electors that would allow the electoral college to discount a popular vote in

their states. Can you break down? down this case for us. Yeah, the electoral college is a kind of an unusual part of our political system. In the United States, and it is the United States of America, it's the states that elect the president, not the people. And so the popular vote in each state is supposed to determine how the electoral votes of that state are cast. Some states have actually have laws that require the electors representing that state to cast their votes consistent with how the popular vote turned out. And that's what these two cases, one out of Washington State and one out of Colorado

are about. Both of those states require their electors to vote the way the people of their states voted. And a faithless elector, which is the phrase that's associated with these cases, would be an elector who, who, who, wants to vote differently, who wants to vote their own way as opposed to how the people of the state voted. And in these two cases, that's what happened. So here, the issue is whether states have authority to require their electors to vote the way the people of their state did.

It's an unusual issue because it's an unusual system, but there are great advantages to our electoral college system. It's being challenged in a lot of ways these days and is probably misunderstood by a lot of Americans. So I hope the discussion maybe of cases like this can help educate people a little further about the value of that system. How do you foresee the justice is breaking down when it comes to this case? It's, you know, if you could tell the outcome of a case from the oral argument, I'd probably win the lottery. Sometimes it's as mysterious as trying to read, you know, your coffee grounds in the bottom of your cup. But the debate was quite mixed.

You have on, and again, the format of these arguments, it's a little bit different. There's much less interaction between the justices than if they were doing their oral argument in the courtroom the way they would normally do. So it's even harder to tell, you know, how the discussion and the debate and the questioning really goes. This one is especially hard to tell. I do think that the Supreme Court will want to respect the way states have decided to cast their electoral votes. The Constitution does put the states in charge of that. And so if this is how those two states have chosen to do it, you know, that that should be respected. And I suspect that they'll lean in that direction, but it was a pretty mixed oral argument.

The Supreme Court also heard oral arguments on Monday via teleconference, again, for a religious liberty case called Our Lady of Guadalupe School, the Morrissey Bureau, and the St. James School, VBL. Can you start off by just breaking down what this case is about? Sure. These are two cases in which Catholic parish schools in California, each of them let go a fifth grade teacher, and then the teacher sued for employment discrimination under federal statutes. And that the legal issue is whether when it comes to religious schools, there is an exception to those federal employment discrimination. etchings that allows religious schools to choose for themselves, you know, who their teachers or their ministers are going to be. The Supreme Court held it in 2012 that the First Amendment does create what they call a ministerial exception to those federal laws so that when you have a situation where the, you know, the right of the religious school or the church to practice their faith in the hiring of their personnel conflicts with federal employment statutes,

that it's the constitutional right that wins. And so this case tests those because it's a hard, you know, those are hard lines to draw. In this case, it involves, like I said, fifth grade teachers. During the oral argument, justices were asking a lot of hypotheticals trying to define where the line might be. You know, you have school employees maybe who are janitors or who fix the computers. Well, they don't have anything to do with religion. But then you might have teachers who maybe teach a math class, but open the class with prayer. Is that enough religion, you know, to put that teacher in that category?

And there's a whole range of different sorts of situations that this court is struggling with trying to define a single, set of rules or a single set of criteria for deciding issues like this. But, you know, people have heard of the separation of church and state. And ordinarily, when it comes to protecting the state from the church, the Supreme Court has really gone too far and has created a divide that the Constitution really doesn't contemplate. But here, it's the opposite. Here, it's protecting the church from the state. And that's more of what America's founders had in mind when they wrote the First Amendment. They didn't want the government interfering in these kinds of choices by religious schools, in this case, or churches as to, you know, who advances their religious mission?

That ought to be left up to them. So it is a very, this is a very important issue for religious freedom generally and for the, you know, the ability of the government to sort of meddle in how churches and religious schools pursue their religious mission. Well, in a piece you wrote for the daily signal, you said that by protecting the free exercise of religion and prohibiting government its down on religion, the first amendment requires that churches or religious schools have a different relationship with the government than secular employees. And as you just mentioned a few moments ago, there's a challenge just to where to draw this line. So where do you think this line should be drawn? Well, as I mentioned, thankfully in 2012, the Supreme Court unanimously did decide that there is that difference,

that because the First Amendment protects religious freedom, when you have churches or religious schools, they are not to be treated the same as, let's say, a labor union or a social club. The Obama administration, that's what they had argued, that there's no more protection for religious schools than for, you know, a labor union or a bar. And the Trump administration has taken the opposite position, that they've sided with the religious schools in this case, that they are in a separate category. And they have additional fundamental rights involved that mean that the equation might be. be different and might come out differently. So the Supreme Court is already on record as holding that. I hope that they give a little bit more clarity with these cases as to what the rules for implementing that principle are going forward, because that's what they struggled with in 2012.

Everybody agreed on the result that the religious school would win, but they disagreed or kind of split up as to how to handle these cases in the future. And these, two cases will give them the opportunity maybe to clear that up, and I hope they do. Well, in your piece, you also wrote that in both cases, the school said it's teachers play an important religious function and therefore the government should not second-guess such personal decisions. Do you think the Supreme Court will maintain this perspective as well? I do, and the reason they call it a ministerial exception, I mean, that's a little bit of a clunky term. But because these are, this category of ministers is a very broad one. And one of the

reasons that the court struggled a little bit with how to kind of flesh that out is that, you know, certain religious traditions are very formally organized. They use terms like minister or pastor, but other religious traditions and other religions aren't organized that way. They don't use that kind of vocabulary. So maybe the focus should be on more descriptions. The phrase, important religious function, you know, came up a lot in the oral argument. Justice Thomas was one who was a skeptical of that because he said, you know, if you're still leaving a secular court with the authority to say, what's important, what's religion, what's a function, and that's too much discretion for courts to still meddle in the affairs of churches and religious schools.

I think he and Justice Gorsuch, who was appointed by President Trump, would take a very deferential approach. They would really kind of take a hands-off approach that churches and religious schools can make these decisions for themselves. And I hope that's the direction that the court continues on, because the temptation always is for government to keep its hands in the pie, to speak, and to dictate what happens. But when it comes to, as I said, religious freedom, religious schools, churches, there is a separation of church and state in that respect in the right way. And these cases really do stand for that. So I think the court will continue in this direction and hopefully will be a little bit more unified. There's a couple more justices since the court ruled in 2012, and maybe there can be a little bit more unity in terms of

what the standard should be and how it applies. Well, you also pointed out in your piece that during Monday's oral arguments, Justice Brett Kavanaugh probed about different distinctions, such as teaching doctrine as opposed to values or whether teaching the faith is the main part of an employee's job. And would you say that teaching the faith is the main part of an educator, in a religious institution. That's the educational institution. Well, that's, you know, I went to Christian schools growing up, and at least the tradition that those schools are a part of,

takes a very comprehensive view of that. That, you know, all teachers are part of imparting the Christian faith, no matter what subject they teach, they don't separate them into these formal, narrow categories. And Justice Kavanaugh was probing that a little bit to make, again, to raise some of these distinctions. There maybe is a difference between teaching more specifically religious doctrine versus broad values. But the court needs to come up with one set of rules, one set of criteria, one way of applying this important constitutional principle. But they have to come up with a set of rules that apply to a very diverse country. This is a very religiously diverse country.

And you wouldn't want to have religions that are, let's say, a little bit out of the mainstream or less dominant and who take a particular approach to organizing their religious life, be effectively discriminated against because you're using a set of standards that's modeled for the majority and for the well-recognized faiths. So those are very tough judgments to make. And hopefully the Supreme Court will be guided by the priority that the Constitution places on the free exercise of religion, that they won't lean too far in the direction of government control because religious freedom historically has been so important for our country.

unfortunately, is being diminished and kind of misunderstood today. So I hope the court maintains that priority. Well, broadly speaking, what kind of religious freedom implications would this case have down the road for educators or even just parents, other people of faith? Well, I think it would make a statement that religious freedom and the exercise of religion is distinctly important. It is separate and fundamental all by itself. In other words, a religious school does have a different relationship with the government when it comes to things like employment decisions than a secular employer does. That is a separate category.

The tendency today is to kind of blur those lines, lump everybody together. Religious freedom is no more important than some other political priority. But that's not been the way it's been in America since before the founding of our country. So I think it can make clear that distinction. Then it can say to religious schools and churches clearly what they may and may not do. And they would then have more freedom to simply focus on their religious mission to make the decisions that will further that religious mission without having to worry too much about how they might be second-guessed by the federal government or whether a lawsuit might resolve,

they can just focus on what they're there to do, which is to further their religious mission. Well, Tommy also pointed out in your piece that some faiths, for example, are formally organized and used to find titles and categories, but others do not. And religious schools have some employees such as janitors or information technology specialists, something that you mentioned earlier. So where is the room for flexibility while also protecting the freedom? of those who do teach religion? Well, that's probably the toughest aspect of cases like these for the Supreme Court.

You know, you think of the breadth of different faiths, different churches, even different denominations. The 2012 case that the Supreme Court had involved a Lutheran school, and they have quite a formal way of organizing their church and religious employees and titles and things. But if you just focused on the titles, what about all of those faiths and churches and religious traditions that don't use those titles at all? They have the same right to exercise their religion. They have the same right to be protected from government meddling. But if you're going to come up with one rule, it's got to be one that is applicable to all of these. And that is a tremendously difficult decision. You can't just, you know, kind of wash your hands of it and say, well, everyone can do what they want to do, and you can't go to the other extreme and say everybody's got a knuckle under to whatever the federal government tells them.

So that's a very important issue. Justice Gorsuch emphasized it as well, saying that, you know, some religions could very well be on the outs, depending on how the court would come up with the rules that apply in an area like this. So that's why it's important to start with the fundamental right to exercise religion. You start there. That's the default position. And then you consider other competing kinds of priorities. But you have to start with that fundamental right. And the court has to be guided by that as it's approaching deciding cases like this. Well, Vox had a piece in their coverage of this case.

and their headline was, the Supreme Court seems likely to give religious employers a broad ability to discriminate. Do you think that's the case here? Well, that's the liberal spin on this issue. You know, on the one hand, one side of the coin is the fundamental right to decide who will further your religious mission, a church's ability to hire its own minister. The other side of that coin is, well, that's their right to exclude or to refuse to pick others to be their minister. So, you know, it's a six and one and a half a dozen of the other glass half full, glass

half empty kind of thing. But that's the negative spin. They want to turn the right to exercise religion into the right to discriminate. That's not what it is at all. Never has been. That just shows the anti-religious bent of a lot of the media today. I do think that, you know, we can maximize everyone's rights. That's the tradition here in America.

We can respect both the right to practice religion and the right not to be discriminated against. We can balance those. We can work it out so that it's not all of one. and nothing of the other. It's just that the priority there has already been established. It's been established for hundreds of years that the right to freely exercise religion is fundamental, and it's protected by the Constitution. And some people don't like that. Some people wish it wasn't there. It is. It's very important and it ought to be respected. Well, as we wrap up, Tom, given all the cases we discussed in our conversation,

Were there any notable comments from any of the justices that you hadn't yet mentioned? And do you think that it's most likely that most of these will be a five-four decision or not? You know, I don't necessarily think so. In recent years, I think the way the media has covered the Supreme Court, it's led people to believe that these are all, you know, very closely divided, and it's always these five versus those four. the fact is a majority of Supreme Court decisions are unanimous. And it's not, the Supreme Court has a lot of options in cases like these as to the breadth of a

decision that they make. They could decide a case very narrowly where they could get everybody to agree or they could decide a case more broadly where the justices split up into different factions. So the cases that are heard and decided toward the end of the Supreme Court's term like these tend to be pretty high profile, divisive, complicated kind of cases. So it's hard to predict. But I think with some of these issues, it is very important that the Supreme Court unify around fundamental constitutional principles like the separation of powers, like the free exercise of religion. and uphold the vitality of statutes like the Religious Freedom Restoration Act. So I hope it's not simply closely divided on every one of these questions.

Some of them will be, but I don't think all of them. Well, Tom, thank you so much for joining us today on the Daily Signal podcast and breaking down these cases for us. We really appreciate it. You're very welcome. And that'll do it for today's episode. Thank you for listening to the Daily Signal podcast. We do appreciate your patience as we record remotely during these weeks.

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