The Daily - The Most Important Supreme Court Term in Decades

Episode Date: October 5, 2021

The latest term of the U.S. Supreme Court will include blockbuster cases on two of the most contentious topics in American life: abortion and gun rights.The cases come at a time when the court has a majority of Republican appointees and as it battles accusations of politicization.Why is the public perception of the court so important? And how deeply could the coming rulings affect the fabric of American society?Guest: Adam Liptak, a reporter covering the United States Supreme Court for The New York Times. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: The Supreme Court’s highly charged docket will test the leadership of Chief Justice John G. Roberts Jr., who has said that he prefers to guide the court toward consensus and incrementalism.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 Ested Herndon, in for Michael Barbaro. This is The Daily. Today, the Supreme Court will soon take on some of the country's most controversial topics, including abortion access and gun rights. But the high-profile cases come at a time of growing concern over how politicized the court seems to Americans. My colleague, Adam Lipczak, on the historic upcoming term and why the court's public perception matters.

It's Tuesday, October 5th. Hey, Adam, how are you? Hello, I'm good. Nice to see you. It is nice to see you. Also, where are you right now? I'm back from the court. I'm in my home office. I've taken off my suit. I've put on shorts and it feels like a normal day again. So you're back from the court. So the Supreme Court is back in person. What was the court like?

Oh, yay. Oh, yay. Oh, yay. All persons having business before the honor. Well, it was really different because for starters, the public is excluded. Only the press is allowed in. And whereas we usually sit on a bench to the left side of the courtroom, they scattered us around the public section to have social distancing. They required us to wear N95 masks.

The justices themselves, though, with one exception, Sonia Sotomayor, were not masked, which might surprise some people, particularly in light of the fact that one justice, Brett Kavanaugh, was missing, having gotten a positive COVID test back on Thursday. Justice Kavanaugh will be participating today remotely. Did Justice Sotomayor say why she was wearing a mask? Is it just a personal decision? She didn't say why. I think it's well known that she has diabetes and that probably figures into it. We will hear argument first this morning in original case...

What cases did they kick off with today? Mr. Coghlan. Mr. Chief Justice, it may please the court. So they kicked off with cases that are characteristic of the court's docket. It's bread-and-butter cases. One involved sentencing, a kind of three strikes law. And the other was a water dispute between Mississippi and Tennessee. Mississippi is mad

that Tennessee is taking a lot of groundwater out of land in Tennessee. You know, so that gives you a sense of not the world's most exciting cases. Thank you, counsel. The case is submitted. But they're the bread and butter of the court's work, as I say, and they're leading up to, later in the term, to some real blockbusters. Let's dig into those blockbusters. Where should we start? Well, the biggest one is definitely abortion. The abortion case involves a Mississippi law. This is a case that is a direct challenge to Roe v. Wade, which said that before fetal viability, states can't ban abortion. Fetal viability these days

is about 23 weeks. The law in question in Mississippi makes abortions unlawful, most abortions, after 15 weeks of pregnancy. Now, red states pass laws like these all the time, saying we're going to outlaw abortion after six weeks or 10 weeks or 12 weeks or 15 weeks. And that's been going on for some time. And the lower courts routinely strike down these laws because they're in conflict with Supreme Court precedent. And the Supreme Court routinely denies review. And that was what a lot of people expected when Mississippi passed its 15-week law. The lower courts struck it down, saying it was a calculated attempt to go after Roe v. Wade. And then when the Supreme Court was asked to hear the case, it didn't act right away. It waited through 10 or a dozen private conferences among the justices. Amy Coney Barrett arrives, and lo and behold, the court finally says, we're going to hear the case.

And then on December 1st, we'll have arguments with this newly energized six to three conservative court looking at probably the most important and most controversial social issue in American law, the right to abortion. And if the court approves the Mississippi law at 15 weeks, it will dismantle Roe. And that case alone makes this term the most important in decades. It feels like my whole life, the prospect of a case that comes before the court and dismantles Roe v. Wade has been talked about as a possibility. You're saying that this might be the case. Absolutely. How is what we're going to see in that case different or related to what we saw the Supreme Court do in the Texas abortion law case that's been all over the news recently?

So to hear the majority on the court tell it, the two cases are very, very different. Texas enacted a law saying no abortions after six weeks in most cases. And the innovation of the law was the state wasn't going to enforce it. It was going to be enforced through private people or given incentives to enforce it in private lawsuits. And the Supreme Court, in a 5-4 decision on September 1st, let that law go into effect, but the majority said this was a procedural ruling only, that it wasn't ruling on the constitutionality

of that Texas six-week law. The Mississippi 15-week law is a direct constitutional challenge. The court is asked to address, is the law constitutional? Does the law violate Roe v. Wade? So for legal reasons, there's a distinction between the case because one was decided on, as the majority said, procedural reasons why the Mississippi case would be a direct challenge to the substance of Roe v. Wade. But how likely is it that the court does overturn Roe v. Wade with that Mississippi

case? I'd say there are three basic choices. The first one is that the court could strike down the Mississippi law. That's not a particularly likely scenario because the lower courts had already struck down the law, and it's not clear why the Supreme Court would take the case just to reaffirm what courts have been doing for a long time in all these cases. The second option is for the court to sustain the Mississippi law, to uphold it, but to say it's not fundamentally overruling Roe v. Wade. It's doing something different. Now, Roe v. Wade, at its core, says states can't ban abortions before viability, which, as I've said, is about 23 weeks. So it's very hard to reconcile Roe with a law that says 15 weeks.

But the court could draw on earlier cases and say, we're not overruling Roe, we're just revising it, we're tinkering with it. And it could use some language from earlier cases like undue burden and substantial obstacle and say, listen, 15 weeks, most women can still get abortions. 15 weeks doesn't impose an undue burden, doesn't present a substantial obstacle. And we're not overruling Roe, but we're going to sustain the Mississippi law. And then the third option and an option that will be, you know, attractive to the most conservative members of the court is the one that gives rise to the headline. Supreme Court overturns Roe v. Wade, which would be a big news day.

The third option is just a direct reversal of the precedent. Exactly. So what do these outcomes potentially mean for abortion access in the U.S. more broadly? When you talk about the difference between a partial reversal and a full reversal, what does that mean in terms of people's access or ability to get abortions? So 15 weeks would impose a hardship on some women, but most women get abortions before 15 weeks.

So I don't mean to minimize this at all, but the only clinic in Mississippi offering abortions only does it to 16 weeks. So 15 weeks would be a relatively modest cutback. But if the court were to overrule Roe entirely, the red states are ready to go. About 10 of them have so-called trigger laws, which would make abortion unlawful immediately if Roe is overturned. And our reporting suggests that in short order, about 22 states would make abortion unlawful, which would be a sea change in American life. I didn't know that. So 10 states already have laws ready if Roe is overturned to immediately outlaw abortion access. Right. So these are enacted laws that are just waiting for this predicate.

You know, once the court overrules Roe, we're going to make abortion unlawful. So we have a potentially quite radical abortion case on the docket this term. But that's not all. The court is going to take a fresh look at the Second Amendment. And what's that Second Amendment case? Well, the court, after issuing a pair of decisions in 2008 and 2010, establishing for the first time an individual right to own guns, has gone silent on the question. And really all the court has told us so far is you have a Second Amendment right if you're a law-abiding citizen to have a gun in your home for self-defense. So that's a big deal, but it doesn't tell you about how the Second Amendment works outside the home. And in a case from New York, the court is going to confront that very important question.

It comes in the context of a New York gun control law that requires you to have a good reason to get a license to carry a gun in public. And whatever the court tells us in this area will be a major statement on the scope of the Second Amendment. And it's entirely possible that the court makes it hard for blue states to impose licensing requirements on public carry. Is that the most likely outcome? Do we know in the same way we were talking about with the abortion case, what the options are for the judges when it comes to the Second Amendment case? Yeah, I'd say you could use the same kind of three-part standard. The court could say the New York law is fine, very unlikely. The court could say, you know, the New York law is too strict. You can have some

licensing requirements, but these licensing requirements are too harsh. People shouldn't have to come up with really good reasons. They should just have to show that they're not criminals. That's the kind of middle ground. And then the third possibility is that the court says, we told you that there's a right for law-abiding citizens to have guns in the home for self-defense. We say the same thing in public. So it's entirely possible that we get a major statement from the Supreme Court after more than a decade on the meaning of the Second Amendment. So we can say, just fairly flatly, that the court will soon make a decision in two of the most controversial political topics in the country. That's absolutely right. And these huge cases come at an awkward time for the court.

It has lately suffered in public approval ratings. It's been under criticism for some of the things it's done that to some people look political. And yet it's going to decide these very consequential questions against the backdrop of concerns about its own legitimacy. We'll be right back. Adam, you said that these hugely important rulings come at a time when the justices are concerned about the critics of the court, that there's even questions about the court's own legitimacy. How so? summertime rulings, unusual rulings. It's so-called shadow docket, where they have issued on very thin briefs and without oral argument and late at night and with little reasoning in major politically charged cases on asylum, on evictions, and notably on the Texas abortion case. And probably as a consequence of that, the court's public approval rating

has dropped significantly. A recent Gallup poll showed that only 40% of Americans approve of its work, which is the lowest number since Gallup started asking that question in 2000. And in response, justices on both sides of the ideological aisle have fanned out in public to defend the court against charges of partisanship. And what have the justices been saying? the McConnell Center in Kentucky, introduced by Senator Mitch McConnell, the Senate minority leader. And she used the occasion to say that her goal was to convince her audience that the court is not made up of partisan hacks. Of course, what's worrying me is that people will think we're junior league politicians. Justice Stephen Breyer, one of the court's liberal members, is on a book tour. And his book is actually on this topic. It's called

The Authority of the Court in the Peril of Politics. A judge is there for all Americans. He's not there just for Democrats. He's not there just for Republicans. He's there for everybody. for Democrats. He's not there just for Republicans. He's there for everybody. And it's an extended argument that the court is not made up of, as he puts it, junior varsity politicians, but people acting in good faith to apply the law in the best way they know how. I think the media makes it sound as though you are just always going right to your personal preference. Justice Clarence Thomas appeared at Notre Dame and criticized people, presumably the media, for saying that the justices are ruling in accord with their personal preferences and not the law. They think you're for this or for that. They think you've become like a politician.

for this or for that, they think you've become like a politician. And I think that's a problem. I think you're going to jeopardize any faith in the legal institutions. Justice Samuel Alito last week went a lot further and gave a very combative speech also at Notre Dame. The catchy and sinister term shadow docket has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways. And this portrayal feeds unprecedented efforts to intimidate the court or damage it as an independent institution. or damage it as an independent institution.

All of these justices with a kind of unified message, how unique is this? And what do you think they're trying to say? Why is this happening in this moment? So the sentiment is not unique. All justices say that. All justices have a common mission to enhance the authority of the Supreme Court. But to have them in a matter of weeks fan out to try to make this point

makes you think that something else is going on. What do we think that is? I think they're quite sensitive to the commentary and the polling that suggests that people are losing their faith in the Supreme Court. And that's very problematic for all of them because the authority of the Supreme Court is kind of, it's a little hard to know where it comes from. Sure, it's in the Constitution, but they don't have an army. They don't have the power of the purse. It's not entirely clear why we do what the Supreme Court tells us to do. Justice Breyer will often tell this story, that in Bush v. Gore in 2000, when the Supreme Court handed the presidency to George W. Bush, Justice Breyer was in dissent and he didn't like that. But what did he like? He liked the fact that a 5-4 decision is issued

and there are not riots in the streets, that people do what the Supreme Court ruled. And he suggested it would be a problem if that were not the case. And that goes to this point that it's not entirely clear where the authority of the Supreme Court comes from, except from public confidence. And if public confidence is dropping, that's a problem for the court. On one hand, I was thinking, why would the Supreme Court justices even care about public opinion? They have lifetime appointments. They

don't have to run for re-election. Why are they sensitive to that public sentiment? But you're saying that they have a shared interest in maintaining the legitimacy of the court. And for that, they do look to these things like public opinion. Right. And they may have another concern. I don't know that it's a particularly serious threat. But there's a presidential commission looking at overhauls, so-called reforms of the court, including expanding its size. So they may be sensitive to not giving rise to a reaction that would alter the fundamental nature of the court. I noticed you didn't mention Chief Justice John Roberts, who's been so central to so many of the key decisions over his term. Where is he in all this? Well, he probably cares more

deeply than anyone. And he has famously said a couple of years ago in response to some criticism from then President Trump, that there are no Obama judges, no Trump judges, no Clinton judges, no Bush judges. And he is the justice who, it might be said, puts his money where his mouth is because he has in cases involving the Texas abortion case, cases involving COVID restrictions on religious practices, occasionally joined what is now the court's three-member liberal wing. I'm sure he thought it was the correct legal ruling, but it also sent the message that the court is not always a predictable 6-3 court. Well, given these recent public statements, do we have any sense that these

concerns from the justices, their kind of unified message about the court's independence, do we have any sense that that will change how they look at the Mississippi case or the gun case from New York that's coming this term? Because I have to say, some of these speeches kind of sound like pre-spin, that they are warning us for political decisions to come. You know, we talk about the court as one entity, but the court is nine different people. And I think some of it may well be pre-spin. Some of it may be an authentic troubled reaction, a surprised reaction. And the real question is, what does the middle of the court do? What does Chief Justice Roberts and perhaps Justice Brett Kavanaugh, who are thought

to be institutionalists who care about the authority, legitimacy, credibility of the court, do they take account of these kinds of calculations? And that's probably what the story of this term will be. And we don't know that answer. We'll know it in June. Thank you, Adam. I appreciate your time. Thank you. We'll be right back.

Here's what else you need to know today. Cabinet met today to discuss the current alert level restrictions in Auckland and to confirm our plan for transitioning the city out of the current restrictions safely and carefully over the coming weeks. On Monday, the Prime Minister of New Zealand, Jacinda Ardern, announced that COVID restrictions would be eased in Auckland, the country's largest city, after a seven-week lockdown failed to halt an outbreak of the Delta variant. Right at the beginning, we said Delta was a game changer and it has proven to be so. The move signals a larger shift in strategy for a

nation that had successfully taken a strict approach for more than a year, seeking to eliminate the coronavirus completely before easing lockdown rules. Elimination was important because we didn't have vaccines. Now we do, so we can begin to change the way we do things. Ardern said that to further ease restrictions, New Zealand would have to reach widespread vaccination. And makers of the Johnson & Johnson coronavirus vaccine are planning to ask U.S. regulators to authorize a booster shot, the latest in an ongoing federal effort to shore up protections from all vaccine makers. Last month, regulators authorized a booster shot for many recipients of the Pfizer vaccine and are currently weighing to do the same for recipients of the Moderna vaccine.

With the move from Johnson & Johnson, all three federally approved COVID vaccines are likely to be approved for booster shots in the near future. Today's episode was produced by Luke Vander Ploeg, Daniel Guimet, and Chelsea Daniel. It was edited by Dave Shaw and Larissa Anderson and engineered by Chris Wood. Our theme music is by Jim Brumberg and Ben Landsberg of Wonderly.

That's it for The Daily. I'm Estev Herndon. See you tomorrow.