The Daily - Another Momentous Term for the Supreme Court

Episode Date: October 4, 2022

The last Supreme Court term was a blockbuster. The justices made a number of landmark rulings, including in Dobbs v. Jackson Women’s Health Organization, which ended 50 years of the constitutional right to abortion in the United States.The new term could be just as testing, with a series of deeply divisive cases on the docket.Guest: Adam Liptak, a correspondent covering the United States Supreme Court for The New York Times.Background reading: The six-justice conservative supermajority seems poised to dominate the Supreme Court’s new term as it did the earlier one.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Sabrina Tavernisi, and this is The Daily. In its last term, the Supreme Court decided a series of monumental cases, from abortion to gun rights. They set the country on a more conservative course. Today, as the court begins its newest term, I spoke with my colleague Adam Liptak about why this next series of rulings may prove just as momentous. It's Tuesday, October 4th. so adam the last time we had you on the show was the end of the supreme court's term this past spring which was you know better than i do shall we say action-packed so just to remind people we had blockbuster after blockbuster on climate religion guns And then we had this leaked draft opinion of the Roe decision, which had never happened before in the history of the court.

And then the court overturned Roe. So it was kind of one big thing after another, and that was the last term. Yeah, the term ended with a series of bangs, and none of them bigger than doing away with an almost 50-year-old precedent that had guaranteed a constitutional right to abortion. Right. So it's the first day of the new term. How was it? And what was it like in the courtroom? Well, it was different because after almost two and a half years, the public was back in the courtroom. We in the press were back off to the side in these kind of church pews where they seat us, which seemed like normal.

And the justices were back on the bench, but they'd scrambled where they sit because whenever a new justice arrives, they all get new seats except for the chief justice in the middle. And they were welcoming their new colleague, Justice Katonji Brown-Jackson. And I got to say, notwithstanding what seemed like a wrenching and bitter end of the term, they seem to be in pretty good shape. They seem to be ready to get back to work. We will hear argument first this morning in case 21-454, Sackett versus EPA. They were hearing a fairly consequential case on the EPA's authority to regulate wetlands.

So why wouldn't a wetland separated by a berm, dune, levee, or dike be covered contrary to what? And they dug in and asked, you know, good questions. But can I just, I'm sorry. You suggest that the balancing, that the limitation is about the concerns with respect to the state's administration. And Justice Jackson was a full participant, comfortable and confident, which is not always the case on a justice's first day. Mr. Schiff, let me follow up on Justice Jackson's question. 1344G is the biggest problem for you, clearly. So it didn't have that sense we left the court with. We had the sense that maybe they'll try to rebuild some of their relationships. Got it. So the court seems back to something like normal, but it's going to be tested this term because the cases this term are almost as momentous as the cases in the last term.

And it's going to probably be another difficult, if not wrenching term for the court as it confronts a series of deeply divisive cases. Okay, so Adam, let's talk about those cases. What is on the docket in this term? What cases are coming? We have three or four cases that are potentially really important. And among those cases, the most important ones concern affirmative action. There are challenges to the race-conscious admissions programs at Harvard and the University of North Carolina. At both of those colleges, admissions officers use race

as one factor among many in determining whom they accept. And a group called Students for Fair Admissions is making the case that it's discriminatory and should be unlawful. In the case of Harvard, they have an additional claim that Harvard is specifically discriminating against Asians. And so this group is asking the court to overrule a precedent. And if the court does overrule that precedent, a 2003 decision called Grutter against Bollinger, it will be an earthquake in higher education because it will make it unlawful for universities to try to achieve educational diversity, as many of them do, by making sure there's a critical mass of minority students, notably black and Hispanic students. minority students, notably Black and Hispanic students. But remind us what the current law is in terms of using race. I mean, what is the situation now, and how did we get there?

Well, in 2003, in two cases involving the University of Michigan, the court drew a distinction. It struck down what it considered to be a quota system at the undergraduate college at the University of Michigan. They said, you can't have a quota, you can't have numerical proportional requirements. But they upheld the University of Michigan's law schools program, which was holistic. Okay, what does that mean? It means you throw a lot of stuff into the process, and race plays a role, a lot of other stuff plays a role, and using race is one factor of many in order to achieve educational diversity. That's okay. And the court said that kind of race-conscious admissions program is acceptable. Educational diversity, why is that good and what does it mean?

Educational diversity is the idea that students learn better if lots of viewpoints and backgrounds are represented. Notably, educational diversity is not about trying to remedy past discrimination, trying to atone for centuries of slavery and Jim Crow and other kinds of stains on American history. It looks to the classroom itself and the idea that every student, not only minority students, will learn better if lots of backgrounds and viewpoints are represented. Okay, so in that 2003 case, the Supreme Court said you can take race into consideration as one of many other factors in an effort to achieve this diversity in a classroom because the diversity in education is good for learning, not because it's somehow an effort to alleviate past wrongs with race in America. Right. And that distinction is not popular with everybody. Many people think that the other justification would be the better one. But this is what universities that want to have substantial representation

of minority students on their campuses are left with. And this is the battleground on which they have to fight. But the challengers say that race discrimination is subject to a very demanding judicial standard. And this vague, gauzy, fuzzy idea of educational diversity does not satisfy that demanding standard, which lawyers call strict scrutiny. So Adam, on the other side of this, though, UNC and Harvard, I mean, they're presumably arguing that, you know, it's still an unfair place in the world and it makes sense

in terms of our history and taking everything into account that they should put their fingers on the scale in terms of race. Right. So at bottom, they say two things. One is that this is one factor among many and they're entitled to do that and academic freedom and other values support diversity as an interest. But they also say, listen, the constitutional issue is about the 14th Amendment's Equal Protection Clause, which was a post-Civil War amendment meant to protect Black people. And that was at the root of the constitutional argument. And that's a way to re-inject into the discussion this question of remedy or reparations or whatever else. So they're basically saying both things. I mean, that they should be able to put their thumb on

the scale for the purpose of diversity in the classroom, but also that we still aren't done with the project of racial equality in America. And also that we still aren't done with the project of racial equality in America. And that's the other reason. Yes, fair enough. So Adam, are these cases that you've told us about essentially kind of a Dobbs, but for affirmative action? I mean, in the sense that, you know, they really could overturn precedent in a really big way. they really could overturn precedent in a really big way? Yeah, I think so. And I think the likely outcome is that. I think this is a court that is hostile to what it views as race discrimination. And while Chief Justice Roberts took a kind of middle ground position in Dobbs and didn't go along with the five justice majority in that case. On questions of race, he's always been very skeptical

of the government drawing any distinctions based on race. So the question really is not, are the universities going to lose? They're very likely to lose. But how badly are they going to lose? And what will the practical impact be on the way student bodies and elite institutions look after the court gets done with this case? So it could be that come June, colleges would no longer be able to use race directly when they consider whom to admit for next year's freshman class, which would be a pretty big change. That's right. It's a huge case. Like Dobbs, it would overturn longstanding precedent. Like Dobbs, it will do so because the court is newly constituted, has new members, three Trump-appointed justices. So this will give you the sense that the court,

which has been racing to the right, may well continue to do so. We'll be right back. Adam, we were just talking about affirmative action in universities. What's the next important case? Well, there's another race-related case, to be argued Tuesday, that asks how much you can take account of race in drawing congressional voting districts. The Voting Rights Act of 1965, one of the triumphs of the civil rights movement, tried to protect minority voting rights and tried to make sure that black voters in particular could elect candidates of their choice. And the question of how many voting districts in which they make up a majority are required

is before the court in a case from Alabama. Alabama has seven congressional districts. Alabama is about 27% black. Those numbers would suggest that you could have two districts in which black voters make up a majority and so can elect the candidates of their choices. But state lawmakers, after the most recent census, drew a map with only one black majority district. That was overturned by a trial court, one including two Trump appointees who said no, two were required. But the Supreme Court has blocked

that ruling, meaning the election this fall will take place with one Black majority district. And it also set down the larger question for argument of how many districts should Alabama have of that sort. And more importantly, how much can you, should you take account of race in redistricting? Okay, so Adam, just so I understand, given the racial makeup of Alabama, just by the numbers, they should have two districts that are majority black. But the way the maps were drawn, they packed people into one district instead. people into one district instead. And then the claim is that, of course, they gerrymandered like that in order to dilute the political power of Black people, you know, giving them just one majority district when they could have had two. That's the claim. The Voting Rights Act is not a model of clarity. And you can make arguments about whether two are required or permissible or too much.

And that's what the argument on Tuesday is going to concern. But this is only the second biggest voting case of the term. What's the first, Adam? The first, which could be quite consequential, comes out of North Carolina. That one also involves redistricting, but it's much broader than that. The basic facts of the case are that after the most recent census, the North Carolina legislature redistricted its congressional districts. And although North Carolina is a basically evenly divided purple

state, it turns out that it looks like 10 of 14 districts will go to Republicans. The state Supreme Court took a look at that and said, no, thank you. That's a partisan gerrymander. That's unacceptable under the state constitution. And what the state legislature does, it goes to federal court and it says, hey, wait a second. We have the sole authority in the state government to make this decision. We're not subject to rulings of the state Supreme Court based on

the state constitution. The U.S. Constitution says the legislature gets to make these decisions, and therefore the state's own Supreme Court is powerless to stop us, the state legislature says. But is that true, though? Well, I guess it's possible to read a couple of provisions of the Constitution quite literally to get you to that place. One of them, the Elections Clause of the Constitution, says, the times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. So the Constitution does say the legislature, and you can think that means

the legislature unbounded by state law, unbounded by judicial review of its own state Supreme Court. Or you might think that the clause contemplates the ordinary lawmaking process in the state, including judicial review. I mean, it kind of sounds like the North Carolina legislature is basically making the argument that it reigns supreme. Like the checks and balances that we think of applying to these different branches of government don't apply, which seems pretty radical. That's what they're saying. They acknowledge that Congress can step in,

but among the organs of state government, they say they do reign supreme. And they say that's because Congress delegated this function of setting the rules for federal elections to them in the U.S. Constitution. Wow. And how unusual is this interpretation? Well, I wouldn't call it a fringe theory. Four justices on this current Supreme Court have indicated that they're intrigued by this theory. And the fact that the court chose to take the case and decide it also means that it's got some decent prospect of success.

On the other hand, and amazingly, the chief justices of all 50 states have submitted a brief saying this is a fundamental intrusion into a core part of our nation's federalism. You can't tell every Supreme Court in the nation that they have nothing to say about what their own state constitutions have to say about whether state legislative action is constitutional or not. And the North Carolina Supreme Court, in this very case, said that accepting this theory would be, quote, repugnant to the sovereignty of states, the authority of state constitutions, and the independence of state courts and would produce absurd and dangerous consequences. So anyway, when this case is argued and it hasn't been scheduled for argument yet, it's going to get a lot of attention. So just kind of playing this

out here and trying to fully understand it, if the Supreme Court accepted the North Carolina legislature's argument and ruled against the opinions of these 50 state Supreme Court accepted the North Carolina legislature's argument and ruled against the opinions of these 50 state Supreme Court justices who filed a brief, it would basically mean that any state legislature, Republican or Democratic, would be able to draw their maps and run their elections without any oversight at all from other players in state government. That's right. And, you know, state legislatures set countless rules, and state legislatures these days are deeply partisan. And as you point out, this is not only about red states. California and New York are capable

of drawing maps and making rules that go the other way. And the notion of cutting out state Supreme Courts from this process would be quite a step. And Adam, what do you think will happen? What will the justices decide? Sabrina, I think this case is different from cases about the Voting Rights Act, a federal statute. In earlier cases, the court has radically cut back on the Voting Rights Act in a case called Shelby County, a case called Brnovich, and is likely to do so again in the case from Alabama. But that's a federal statute. We're in different territory now where the court's being asked to interpret, really for the first time, the meaning of two constitutional provisions that mention state legislatures, and I don't think the result

is nearly as clear. In the voting rights case, it's very likely a 6-3. Here, there are so many cross-currents that it's not at all for sure that the court accepts the so-called independent state legislature theory. Adam, what's the last case you think is really going to be important this term? The other big case involves, I guess you'd call it a clash between claims of religious freedom or claims of conscience against LGBTQ rights. And it may remind you, Sabrina, of an earlier case where a Colorado baker declined to create a custom cake for a same-sex couple for their marriage. I remember that, the baker case. You interviewed the baker, in fact. Yes, I visited with Jack Phillips in Colorado. I don't think I got any cake.

But that case ended in a fizzle. We didn't get an answer to the question of which prevails, a state law saying you can't discriminate based on sexual orientation or the baker's free speech and free exercise of religion rights. The case is now back with a different plaintiff and maybe in some ways to the right side of the court, a more appealing plaintiff, not a baker whose cake making is not obviously speech, but a web designer who says she doesn't want to create websites celebrating same-sex marriages. And that does sound more like speech. And so the question for the court is, can the government require an expressive business open to the public to take all comers?

Or can you have claims of religious conviction or conscience overcome a state law prohibiting discrimination? So in a way, it's a do-over of the cake case. Oh, it's very much that. Everyone understands it to be that. It's a do-over, though, with different personnel on the court and therefore likely a different outcome. And just remind us real quick, Adam, what happened in the cake case? And what does it mean that the Supreme Court is kind of doing this case again? Supreme Court is kind of doing this case again? The cake case sort of went off the rails. The court didn't decide which side wins really, but it said that a human rights commission in the early stages of the case, that a commissioner made comments hostile to religion

and therefore the baker never got a fair shake and therefore he at least provisionally won but on that narrow ground that somebody spoke out of turn so we didn't get an answer to the broad constitutional questions of free speech and free exercise both of which figured in the baker case in the web designer case it's been presented purely as a free speech case. The actual question the justices agreed to decide was whether applying a public accommodation law, which is to say an anti-discrimination law, to compel an artist to speak or stay silent violates the free speech clause of the First Amendment. So the case is about whether you can compel someone to speak against their beliefs.

That's how the web designer and her allies frame it, yeah. The other side of the case would say, can you, if you're a business open to the public, choose whom you're going to serve? And since it's a free speech case, there doesn't need to be a religious element to it. It can be based on any conviction. But let's say, and this was not so unusual 50 years ago,

someone claims that their religion compels them to oppose interracial marriage. Could a photographer, a web designer, a portrait painter, a ghostwriter say, I'm not going to take the business of an interracial couple in connection with something that celebrates or describes their interracial marriage? Or what about a white supremacist who says they just don't want to do business with black people? It's not clear that the logic of the web designer's argument has a natural stopping point. But Adam, how is refusing service just because of someone's race or gender or sexual orientation, in this case, not just clear discrimination against a protected class? Like, how is this

not the same thing as having a sign in your window that says, no Jews, no women, no black people? Well, it is discrimination. Nobody disputes that. The question is whether the constitutional value on the other side overcomes it. And the argument on the other side is that where expression is concerned, the government can't force people to say things they don't believe. But it seems like, you know, quote-unquote expressive businesses could be defined pretty broadly, right? Right. When the Baker case was argued, there were a whole bunch of questions about, well, what about hairdressers? What about florists?

You know, it's not hard to spin out the hypotheticals. It's not easy to draw lines. But I guess I'd say that the web designer is near one end of the spectrum. And I think a majority of the justices are going to view those free speech rights in the context of discrimination against gay people as worthy of protection. So Adam, if you expect this case to go in favor of the web designer, what does that mean for gay rights in America, but also in terms of where the court sees this issue? So I don't think the court is going to think this is primarily about gay rights. The court is very supportive of claims of religious freedom. And although framed as a free speech case, this is really a case about a clash between religious values and gay rights. And given a choice between those two things,

the court is going to be hostile to gay rights in favor of religion. Will it be hostile to gay rights in other settings? That's less clear, but I think the decision in the case will give us some good information about where the court might be headed in those cases. So Adam, you're describing a Supreme Court term that would again kind of fundamentally change the very established norms in our culture, kind of like the last term did? Yeah. I've covered the court for something like 15 years now, and the pattern used to be they'd

have a big term, and then they'd take a breather and decide some more modest cases before they started to go big again. Here we have two big terms in a row, and it might be testament to a loss of power by the chief justice, who generally takes an incremental approach. He's conservative, to be sure, but he's not eager to race to the right or to jolt the legal system. Now, there are cases, as in the cases involving race that we talked about, where he's fully on board for the conservative project. But in other cases, if he was in control and he's not, he might want to go a little bit slower and a little bit smaller. So more broadly, it seems like with this super majority of six conservative justices, it's like Alito and Thomas got the keys to the car and they're driving as fast as they can. They are. They have a lot of support. And you've got a sixth justice conservative supermajority

that seems not to want to waste any time in moving the law to the right. Adam, thank you. Thanks, Sabrina. Adam, thank you. Thanks, Sabrina. Oh, Adam, wait, we forgot to ask one thing. The leak. Did they find who did it?

We know almost nothing about the leak. I'm reasonably confident they have not found who leaked. Why? Because that would have leaked. There was some talk from Justice Gorsuch that the justices expect a report on what's been found so far. There's been no indication of what's in the report. There's been no indication that the report will be made public. But I'm reasonably confident that this will remain a mystery for some time. We'll be right back.

Here's what else you should know today. We came here in person to show that we're with you. All of America's with you as you receive and recover and rebuild. President Biden visited the island of Puerto Rico on Monday, two weeks after Hurricane Fiona left tens of thousands of people without power. And you deserve every bit of help your country can give you. That's what I'm determined to do and that's what I've promised. Biden promised $60 million in hurricane relief funds.

On Wednesday, Biden will travel to Florida, where last week Hurricane Ian left more than 80 people dead. And British Prime Minister Liz Truss reversed course and scrapped her plan to cut taxes on high-income earners. The proposal had upended financial markets last week and had drawn sharp criticism from lawmakers in her own party. Truss's sudden reversal leaves the new prime minister facing a crisis of leadership just weeks into her tenure. Today's episode was produced by Diana Nguyen and Aas Chaturvedi, with help from Rob Zipko. It was edited by Paige Cowett, contains original music by Marian Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi.

We'll see you tomorrow.