The Daily - The New Supreme Court Cases to Watch

Episode Date: October 10, 2023

Last week, the Supreme Court began its new term, picking up where it left off on the most contentious issues of the day, with cases connected to government power, gun rights and abortion.Adam Liptak, who covers the Supreme Court for The Times, explains why, while previous terms produced major victories for the conservative legal movement, this term may be different.Guest: Adam Liptak, who covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times.Background reading: In cases this term, the justices will explore the scope of the Second Amendment, the fate of the administrative state and limits on free speech on the internet.From Adam Liptak’s Sidebar column: Does the Supreme Court’s cherry-picking of which questions to answer inject politics into judging?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. Last week, the Supreme Court began its new term, picking up where it left off on the most contentious issues of the day. But while previous terms produced major victories for the conservative legal movement, my colleague Adam Liptak explains today why this term may be different. It's Tuesday, October 10th. Adam. Hi, Sabrina.

You're back, which means the Supreme Court is back. And we wanted to go to you, Adam, our trusted Supreme Court expert, to learn what big cases are coming up this term. And, you know, we've had, of course, two terms of blockbuster cases that brought these huge changes to American society, you know, tugging it to the right. What do you expect to see this term? I think this term will show us and bring into focus how far and how fast it wants to continue to move to the right. It has a lot of unfinished business from those earlier terms. to the right. It has a lot of unfinished business from those earlier terms. It's facing a series of kind of follow-up cases in the areas of administrative law, agency power, the Second Amendment, gun rights, and abortion, all of which are cases in which conservative litigants and conservative courts are pushing hard in anticipation of a positive reception from the Supreme Court.

So you're saying that conservative legal activists watch the 6-3 majority make major rulings on these three issues. And now they see an open door and they want to push it to see how much farther they can go. That's exactly right. So, Adam, let's dig into this. So let's start with the administrative state, which, of course, I know is kind of a thing out there. But what exactly is that? Start with the definition and then tell me about that case.

So for the longest time, the conservative legal movement has really despised the idea that unelected bureaucrats, experts who work in agencies like the Environmental Protection Agency or the Food and Drug Administration, that they would say are unaccountable to the American public, get to make major decisions about American life that they say belongs to Congress, or if not to Congress, to the courts, but not to what they would call these deep state experts. And in various ways, they've tried to withdraw power from the agencies. And this term comes on the heels of two blockbuster decisions in the last term and the one before, one of them making it hard for the EPA to address climate change, the other striking down President Biden's student loan forgiveness program, both of them saying that the executive branch had gone too far, had gone beyond what Congress had authorized. And those cases set the stage for the new cases this term. So what about this term? What about these new cases? Well, the biggest case asks the court to overrule really the foundational precedent in this area, a 40-year-old precedent called Chevron, and it gave rise to a concept people call Chevron deference. And this is going to sound technical,

but it's important. What that case says is if a law passed by Congress is ambiguous, then the agency gets to decide what the correct interpretation of that statute is. And so long as it's a reasonable interpretation, the courts defer to the agency. The short of it is that agencies which regulate all kinds of aspects of American life, the environment, and life, the environment, the workplace, the marketplace, at the margin, but it's a wide margin, get to make the key decisions about how to implement a congressional statute. Essentially, that if the law as written is confusing or has different interpretations, what this precedent says is that the federal agency, say the EPA, for example, should be able to decide how to interpret it. Like they don't need permission from Congress.

It doesn't fall to a judge. It's the federal agency itself that governs the thing. That's right. So there's a logic to it. These are complicated statutes and complicated regulatory areas. And you might want the experts to decide precisely how it applies. That's one kind of argument. What the opponents of the Chevron doctrine say is that gives them too much power. Congress, if it wants to do something, should say

so. And if Congress doesn't say so, the courts will step in and tell us what the law is. And Adam, tell me about the case this term that the justices have taken up. It involves herring fishermen in Cape May, New Jersey, who a federal law says have to bring federal observers, federal monitors on their boats to make scientific assessments and to make sure that there's not overfishing. The fishermen say they have no problem with that, but the law doesn't say who pays for these monitors. And the Federal Maritime Agency says the fishermen should pay for the monitors. And the fishermen object to that, both as a practical matter, they don't want to pay for the monitors. And the fishermen object to that, both as a practical matter, they don't want to pay for it, but also as a kind of theoretical matter, saying Congress hasn't said so explicitly, and we shouldn't defer to the agency's interpretation of who has to pay.

That should get a fresh look from the courts. And what is your sense of how the justices might rule on this? The justices are hostile to Chevron, have not themselves invoked it in years, although lower courts continue to. And that gives you the feeling that this could be yet another precedent, like abortion, like affirmative action, a major precedent overturned by the Supreme Court, I think Chevron's days might be numbered. And that will be a very significant move if the court indeed does overrule it. It would essentially take power away from the government to regulate business. It would take power away from the executive branch, away from agencies, and it would nominally, and here's the key point, it would nominally empower Congress. It would say, Congress, you decide what the law is.

But because we have a wholly dysfunctional Congress, what it in effect does is transfer power to the judiciary and to the Supreme Court in particular. And what does the Biden administration think about this? The Biden administration, in a brief in the case, said that overruling Chevron would be a convulsive shock to the legal system. It says that this is a workable arrangement, a sensible arrangement, that people and agencies and business groups have organized their lives around for decades, and that there's no good reason to throw away this precedent. But, Sabrina, I don't expect every attack on the regular story state to succeed. We'll hear an argument this morning in case 22-448, Consumer Financial Protection Bureau versus the Community Financial

Services Association. Last week, the court heard arguments in a challenge to the Consumer Financial Protection Bureau, which is a consumer watchdog that protects consumers in banking, credit card, and all kinds of other transactions. Mr. Chief Justice, and may it please the court, this case is about checks and balances. One of Congress's most important checks on executive power is its power of the purse. And the question in the case is whether the way the CFPB is funded through a request to the Federal Reserve System for the amount of money it thinks it needs up to a fairly high cap is constitutional. The challenge to the CFPB is that that funding mechanism gives it too much

independence, too much power. And the outcome of the ruling could be to say that that mechanism is unconstitutional and therefore the agency is unconstitutional. But that attack on the CFPB got very little traction, even from the most conservative justices on the court. I get your point that this is different, that it's unique, that it's odd, that they've never gone this far. But not having gone this far is not a constitutional problem. Justice Clarence Thomas said, yeah, it's true, it's odd, it's curious, it's novel. It's an interesting way to fund an agency, but that doesn't make it unconstitutional. And if you don't have Justice Clarence Thomas and you're a conservative lawyer, you usually don't have a case.

So this attack on an agency that business groups, many of them kind of hate because they're a very aggressive regulator, seems destined to fail. And it's worth thinking about why that is, I don't think it's because the court fundamentally disagrees with the general critique of the administrative state. But the cases that are reaching it are too ambitious, too aggressive, too bold. Okay, so when it comes to limiting the power of regulatory agencies, there are a few cases before the Supreme Court, and you're predicting a kind of mixed bag. Some wins, some losses. Let's turn to the next issue in front of the court, guns. So last year, two terms ago, the court issued a major decision, and a major in two senses. It struck down New York gun control law, and it said for the first time that you have a Second Amendment right to carry guns in public for self-defense. So that's huge.

But also huge was the standard the court announced, that Justice Clarence Thomas announced, about how you decide whether other gun control measures are constitutional or not. And remind me what that standard was, Adam. So the standard, quite novel, draws on originalism, which is the idea that you want to figure out what the Constitution meant when it was adopted. And what Justice Thomas said is that you have to go back in history and figure out whether there was analogous regulation, which is to say, you have to find some regulation back in the day that was

more or less similar. It doesn't have to be, he says, a historical twin, but it has to map on to the modern law pretty well. And unless you can find an analogous regulation, it's unconstitutional. So that's hardcore originalism, and it has really caused lower courts a lot of distress because they're not historians. And we now have a case that's going to test whether the court is really serious about this methodology. It involves a guy named Zaki Rahimi. And he was the subject of a domestic violence restraining order. And rightly so, because he was, how to put this? He did a lot of bad things with guns, including by threatening women,

including by shooting them in public in road rage incidents, or once when a friend of his didn't get the fast food order that he wanted. My God. But how is this case testing originalism and historical analogies? So he's convicted under this federal law that says if you're subject to such an order, you can't have a gun. He's found with a gun. He's convicted. And the Fifth Circuit says, well, wait a second. In the founding era, there were no such things as domestic violence restraining orders.

And therefore, the law is unconstitutional. Wow. So that's the Fifth Circuit saying, hey, the new standard is history. Here you go, history. Right. And I mean, this is telling, right? Because it's kind of unsurprising that this form of judicial order didn't exist at a time when in most places women had very few rights. So you can tell there's a kind of disconnect between the standard announced by Justice Thomas and trying to implement it. And I have to think that the gun rights folks are quite unhappy that this is the follow-on case. Why, Adam? Because it's factually unattractive. It's sort of theoretically unattractive. So this is probably a case where there's some overreach from the Fifth Circuit, where the Supreme Court may well decide that this federal law that disarms people subject to domestic violence restraining

orders, even under the history standard, is constitutional. But it's going to have to do some work to get there. So those are a few of the big cases already on the court's docket. But the court is very likely to hear another case and return to the area in which it has caused the most upheaval in recent years, abortion. We'll be right back. Okay, so there's a case that you're expecting that will be taken up by the court, not on the docket yet, but probably will be, and that is abortion. What is this case about? Remind us, Adam. So this case follows, of course, the 2022 Dobbs decision, which did away with the constitutional right to abortion, but it allowed states that wanted to have abortion to continue to do so. And anti-abortion groups saw another line of attack. More than half of

all pregnancy terminations these days involve an abortion pill called mifepristone. And they make the argument that 20 years ago, the FDA was wrong to approve this pill, that it was unsafe, this pill, that it was unsafe, and they obtained a sweeping injunction from a trial judge. It goes to the Fifth Circuit, and the Fifth Circuit says, well, we're not going to go that far, but we are going to cut back in significant ways, in ways that are particularly significant in light of Dobbs. We're going to say that you can't get the pill by telemedicine, and you can't have it mailed to you, which makes it much, much harder for women and particularly women in red states where abortion is banned or severely restricted from having access to this pill. So it's a very significant case. It has

already reached the Supreme Court once and the Supreme Court has paused the injunction. So today, the pill remains as available as ever. But it's less clear what will happen when, and I think the correct way to put this is when, when the court agrees to hear the case and probably by June renders a judgment. And this is important not only for abortion, but to return to the question of administrative law. This would be the first time ever that a court would tell the FDA, an expert agency, that it had gotten the science wrong and that judges, not medical experts, would make the call on whether and how this abortion pill should be available. Right. And this case was a big deal. We covered it on the show because the implications, of course, would be huge. It would reach across all states, blue and red, and restrict this pill

that's been so widely used, you know, increasingly over the years and particularly since Dobbs. And it's another case, Sabrina, where you could make the argument that it has shaky foundations. The plaintiffs in the case may well not have legal standing, meaning they might not have suffered the sort of injury that gives them the right to sue. They are doctors, but they're doctors who don't perform abortions, including medication abortions. So it's a little hard to see what their connection is to the case. And this FDA approval is decades old. It was approved in 2000, if I remember correctly. Right. And the statute of limitations for bringing these suits is six years. So you do the math and the lawsuit would seem to have been filed too late. So there are problems with the case. And there's a larger, more conceptual problem for the Supreme Court, because when they issued the Dobbs decision, their rationale was we're getting out of the abortion business. the Dobbs decision, their rationale was, we're getting out of the abortion business.

We're going to let the people's representatives decide it. This is not for judges. We're done with abortion. And it would be a hell of a move for them then just a couple of years later to say, but you know what? We got a lot more to say about abortion. So once again, the conservatives are kind of rushing through an open door, but with a case that's not exactly a slam dunk. be receptive to all cases brought by conservatives because there are places, at least, in which the right is moving too quickly, even for the tastes of this court. So, Adam, I want to talk about the broader context here because, you know, when I think forward, of course, these cases are going to be decided in the middle of an election. At the same time, the justices themselves have been under a lot of scrutiny about whether they're too cozy with political operatives.

You know, I'm thinking Justice Thomas failing to disclose gifts from a wealthy Republican donor. I'm wondering if you think both of those pieces of context will have an effect on the way this term plays out. So it's hard to say definitively because there are a lot of cross currents and a lot of unknowns and the court's not particularly transparent. But I think you're right, Sabrina, that these twin shadows of politics and ethics scandals will affect the court. The justices over the summer were many of them out in public talking about their eagerness to have an ethics code. And they say they're at work on that. And that means they're at least sensitive to the public perception. Justice Thomas did the other day recuse himself from a case involving his former

law clerk and former Trump lawyer, John Eastman, involving Eastman's efforts to subvert the election. And that's a step. So we have a court that's under all kinds of pressure. And you might think that they don't want this to be the biggest term or the third term in a row where it's just blockbuster after blockbuster. So, Adam, we obviously don't know the answer yet because, you know, these cases have yet to be argued. But just to summarize here for a minute, there might be at least one big win for conservatives if the court overturns the Chevron precedent, the thing you described to me. But otherwise, this term

may end up disappointing conservatives. Like they got greedy and this term told them no. I think that's right. But it's early days. There are other cases on the horizon that we don't even know about. There may be cases arising out of the election. There are efforts around the country to knock Donald Trump off the ballot. Those could reach the Supreme Court. So it's October. It's a long way till June. The term could take many different directions. But on the evidence of these early cases, this may be a term in which a conservative court pushes back against the right. And I wonder, you know, if that will tell us something bigger about the movement, like this decades-long, very intentional effort to push the country to the right through the courts. So the court continues to have a six-just, conservative supermajority, all appointed by Republicans, and it will continue to move the law to the right.

The question, though, is how fast? So it's a question, Sabrina, not of direction, but of velocity. Adam, thank you. Thank you, Sabrina. We'll be right back. Here's what else you need to know today. The conflict in the Middle East deepened on Monday, with Israel's defense minister ordering what he called a complete siege of the long-blockaded Gaza Strip. Israel also hit the area with retaliatory

airstrikes that destroyed buildings, including a mosque and a marketplace. Israel said the strikes were aimed at Hamas, the militant group that controls Gaza, and that launched the deadly attack on Israel over the weekend. Later in the day, Hamas threatened to execute one Israeli civilian hostage every time Israel hit Gazans in their homes without warnings with an airstrike. At least 150 Israelis were taken hostage by Palestinian assailants in the weekend's attack. Israel's military said it had regained control over the Israeli border communities where the incursion had happened, but acknowledged that the fighting was still ongoing. 800 Israelis and 687 Palestinians have been killed in the violence so far.

Palestinians have been killed in the violence so far. And the Nobel Prize in Economic Sciences was awarded to Professor Claudia Golden for her work studying women in the labor market. Her research into subjects like the causes of the gender pay gap have had a profound impact on the field of labor economics. She is the third woman to win the prize and the first to be honored solo. Today's episode was produced by Rob Zipko, Luke Vander Ploeg, Jessica Chung, and Olivia Natt. It was edited by Patricia Willans and Liz O'Balin, contains original music by Dan Powell,

and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly. That's it for The Daily. I'm Sabrina Tavernisi. See you tomorrow.