The Daily - The Supreme Court Rules From Home

Episode Date: April 21, 2020

This week, the Supreme Court began rolling out a series of major rulings on the jury system, immigration, abortion rights and presidential power. In normal times, this would be a blockbuster week for the court. But these are not normal times. Guest: Adam Liptak, who covers the Supreme Court for The Times. For more information on today’s episode, visit nytimes.com/thedaily. Background reading: In one of their first decisions this week, the Supreme Court ruled against Montana landowners in their fight against an oil company over the cleanup of contaminated land.Across the country, the coronavirus crisis is colliding with the culture wars. This is how issues like abortion, gun rights and religious freedom are being debated in public now.

From The New York Times, I'm Michael Bavaro. This is The Daily. Today, the Supreme Court begins rolling out a series of major rulings on the jury system, immigration, abortion rights, and presidential power. Adam Liptak on the high court in the middle of the pandemic. It's Tuesday, April 21st. Here we go. Adam. Hello, Michael. Is it you who has the birds chirping, Adam? Oh, maybe I can close the window.

I have a window that's cracked open a bit, and I bet I could de-chirperize it. Okay, here I go. Okay, thank you. Thank you for turning off your birds. Least I can do. Adam, we usually talk to you after you spend a morning over at the Supreme Court in the chamber watching the justices. And I have to imagine that the routines of the court have completely changed.

The Supreme Court has turned invisible to me. I cover the court now from, you know, my home office, whereas on days like this, when the court issues decisions, you typically have a packed press room and people listening to the justices announce the decisions from the bench. But they've postponed two sets of arguments and just recently have decided to hear 10 arguments by telephone,

which is a brand new experience for all concerned. And we'll let the public listen in on those arguments, which is also a brand new experience of live audio from the Supreme Court. So a lot is changing. So as different as everything is for the justices and for you covering them, there was a major ruling that was handed down on Monday. So tell us about this case. Well, so I'm sitting at my desk hitting the refresh button right before 10 o'clock and the case comes up. It's called Ramos versus Louisiana. It involves Evangelisto Ramos, who in 2016 was convicted of murder by a Louisiana jury, but only 10 of the 12 jurors agreed that he was guilty. And it presents a

really significant question. Can states let juries convict people when they're not unanimous? And just so I'm clear, the man at the center of this case, Ramos, was charged with murder in Louisiana, and he was convicted of that charge, even though only 10 of the 12 jurors believed that he was guilty. That's right. Two states, Louisiana and Oregon, allow non-unanimous juries. Louisiana has recently changed its constitution. So going forward, even Louisiana doesn't have this rule anymore. But that only applies going forward. So Mr. Ramos was still on the hook for this. And lots of other defendants and prisoners have been convicted in Louisiana by non-unanimous juries. So the case is quite consequential for perhaps thousands of people

in those two states. And on what grounds do his lawyers make a case that somehow gets up to the Supreme Court? Well, they have what would seem to be a pretty strong case. The Supreme Court has said that where federal juries are concerned, the Sixth Amendment, which guarantees your right to a fair trial, requires that juries be unanimous. And in general, the Bill of Rights applies to the states just as it does to the federal government. So you would think that if you have this right in federal court, you ought to have it in state court too. And that's the basic point Ramos's lawyers

pressed. And so how does this case unfold before the justices? Well, one fascinating aspect of the case, Michael, is that the history of these non-unanimous jury laws were deeply tainted by racism. Louisiana used to require unanimous juries, but after the Civil War and after a Supreme Court decision that said that Louisiana and other states couldn't exclude blacks from juries, they held a constitutional convention, the stated purpose of which was to ensure white supremacy. And one upshot of it was to say, okay, maybe we can have a couple Blacks serve on juries, but we want to make sure that they will be powerless

to alter the conclusion. And how does a non-unanimous jury verdict disempower Black jurors? Well, let's assume you're a Black defendant. And let's assume you're in the Deep South where an all-white jury might be predisposed against you. But if you have a black juror or two on that jury who might be more willing to hear your story and might be more willing to give you the benefit of a reasonable doubt, that could end

up in a hung jury and it would prevent what would otherwise be an all-white jury, from railroading you. That would be the theory of it. We'll hear argument next in case 1859-24, Ramos v. Louisiana. Mr. Fisher. And how does this racial history come up in the oral arguments? Mr. Chief Justice, I may please the court. Well, Ramos' lawyer makes clear that the presence of all sorts of minority voices on a jury deserve to be considered and heard and shouldn't be shut out. If you have one or two members of a minority on a jury, it could be a racial minority, it could be a political minority,

it could be a religious minority, are we really prepared to say that those one or two votes can be utterly canceled out? The idea of the American jury system is that everyone gets a vote and the community, as a community, is meant to reach consensus, not for 10 people to outvote two people. And how do the justices approach this question of race? Well, nobody seriously disputes that the roots of these laws were ugly.

That the rule in question here is rooted in racism. Justice Kavanaugh went on about the ugly history of Louisiana's requirements. It rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s. in the late 1890s. So there was no real dispute that, obviously, racially warped jury systems are bad. But at least some of the justices thought that what was true in the 1890s is not a reason in 2020 necessarily to strike down these laws. And which justices made that argument? Well, the leading and, to my mind, most surprising proponent of the argument was Justice Elena Kagan, an Obama appointee, a liberal.

But she said that, listen, some states do it one way, some states do it another way. We've been doing it this way for a long time, and there's no reason to reverse course at this point. And what did you make of that? I think that if Justice Kagan were writing on a blank slate, she would surely be on the other side. But she's the court's leading proponent of respect for precedent. And there's a precedent in play in this case. In 1972, the court, in a fractured decision,

allowed these kinds of laws. This is an outlier in our incorporation doctrine. There's no question that it is, but it's been an outlier for 50 years. It's been completely administrable. It's been completely clear. States have had every right to rely on this for 50 years. It doesn't matter whether it was wrong because overruling something requires more than just that a decision be wrong.

It's been there. States have relied on it. There's no reason to change it. The end. And for Justice Kagan, it's more important to stick to that precedent than to drive herself to the results she might otherwise want. She's playing a long game, and that long game includes the day when a challenge to Roe v. Wade, the 1973 decision establishing a constitutional right to abortion reaches the court. And she wants to have as much firepower as possible to insist that the court respect precedent in that setting. And she's willing to make the argument in every setting because she thinks the stakes are high

enough. So she's making a larger point about the need for the court to remain faithful to precedent. That's right. I think she's nervous that this new conservative majority on the Supreme Court is poised to undo all sorts of precedents. And in particular, she's nervous about abortion rights. And she's nervous that the court will take up a challenge to Roe v. Wade. And so she is trying to marshal as much evidence and as many arguments for adherence to precedent and its importance to the rule of law and stability and respect for the court as she can. Okay, so with that in mind, how did the justices, including Justice Kagan, end up ruling on Monday in this Louisiana case? So the vote is six to three to strike down the Louisiana law.

And it's a really scrambled lineup. It's a very unusual lineup. Justice Gorsuch wrote the majority opinion. And he was joined by all of Justice Kagan's usual liberal allies. Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, and also in large part by Justice Brett Kavanaugh. Justice Thomas wrote his opinion all for himself, but agreed on the bottom line that the laws were no good. And on the other side, you have two conservative justices, Chief Justice Roberts and Justice Samuel Alito, joined by Justice Kagan, the liberal.

And their dissent is completely focused on respect for precedent. I have no reason to think they think this Louisiana law is a good idea. But they also say that lowering the bar for overruling our precedents is a bad idea. for overruling our precedents is a bad idea. And I think the audience Justice Kagan was speaking to was not her liberal colleagues, but her conservative ones saying, I'll come along with you, Chief Justice Roberts and Justice Alito on this one.

And I'm hopeful that when the day comes that we confront the same issue in a setting where your policy instincts might go in a different direction, you too will respect precedent. In other words, she's saying, I'll come with you on this case, and I hope you'll come with me when Roe v. Wade is challenged

or when there's a major abortion case. That's right, yeah. And of course, that day may be coming up quite soon. We may have, in an abortion case, the court will almost certainly decide by June, a very quick answer to the question of whether Justice Kagan got anything for her vote in this jury case. We'll be right back. Adam, we have talked with you about this case on the show before, but remind us of this abortion case that Justice Kagan seems to be eyeing so closely. in seems to be eyeing so closely? Well, it's one of several big cases in what's shaping up to be a blockbuster term, but it's the one that most pointedly gets at this question of respect for

precedent. It involves a Louisiana law that requires doctors performing abortions to have admitting privileges at nearby hospitals. And it probably will drive the number of clinics in Louisiana down to one, and the number of doctors able to perform abortions at that clinic also to one. So it drastically reduced the availability of abortions in Louisiana. I say that this picks up on precedent because just a few years ago in 2016, the court struck down as unconstitutional an essentially identical Texas law. So just a few years later, it's coming back to decide the same basic legal question in a different state, and it's going to give us a very strong sense of where the court stands on the power of precedent. Right. It almost feels like an ideal test of whether Justice Kagan can say to her conservative colleagues,

I will do you a solid on precedent. Now it's time for you to do one for me, and this would be the perfect case. That's right. Okay, so what's the next major decision that will be coming in the next few months? We're also waiting to hear a set of cases argued very early in the term, which present the very consequential question of whether a landmark federal civil rights law protects gay and transgender people from job discrimination.

The law says you can't discriminate based on sex. And the question of what those words mean, whether sex applies to sexual orientation discrimination and transgender status discrimination, will matter to millions of Americans who are, in most of the country, not protected from job discrimination. Right. And Adam, we spoke to you about this case and about the plaintiff who worked for a funeral home and says she was fired after telling her boss that she was transitioning from male to female. Right. And her experience is emblematic of what is a very important case because Justice Anthony Kennedy,

who wrote all four of the court's major gay rights decisions, has left the court, replaced by the more conservative Justice Brett Kavanaugh. So this will give us a real insight into this court's commitment to gay rights and transgender rights. We're also going to get a major constitutional showdown on presidential power. It involves subpoenas from Congress and from prosecutors seeking President Trump's tax records. So that case, which has echoes of the Nixon tapes case in which President Nixon was made to turn over evidence in the Watergate scandal, to Clinton against Jones in which President Clinton was made to give a deposition in a sexual harassment case, give a deposition in a sexual harassment case. All of that involves a real confrontation between executive power and the rule of law and the ability of prosecutors in Congress to get access to evidence. And it's really going to put the court to a test, given that those earlier decisions

were both of them unanimous, and both of them involved appointees of the president in question. It'll be very interesting to see how Trump's appointees, Justices Gorsuch and Kavanaugh, rule in a case involving him. Right. And correct me if I'm wrong, Adam, those two previous cases involving both Nixon and Clinton ended with the Supreme Court saying, Mr. President, you must turn these documents, these tapes over. Yeah, and in both of them, the president had to submit evidence. That's right. And unanimously and including justices that he had appointed to the court. So that's an instance also, we've been talking about precedent,

where precedent will probably have some gravitational pull over what the court does. They're not precisely identical issues, but they're certainly very similar. So in the next few weeks, the court is going to be ruling on the future of abortion, on whether a civil rights law protects gay and transgender Americans in the workplace, and whether the president can keep something as important as his tax records from congressional investigators. That's a pretty good session. Oh, there's more. We're also waiting to hear on a case that will affect some 700,000 young immigrants known as Dreamers brought to the United States as children,

and whether the Trump administration can roll back a program meant to protect them from deportation and allow them to work. And where does that case stand? allowed some of these dreamers, lawyers for some of these dreamers, to submit an additional brief making the point that the coronavirus pandemic should figure in the case. And that's not immediately obvious, but once you think about it, it is obvious. Some 27,000 of these dreamers work in the healthcare industry. Some are doctors, some are nurses, some are emergency medical technicians, some work in other parts of hospitals and so on. And if the court were to decide the Trump administration can shut down this program

in the midst of the pandemic, it could do real damage to society's ability to respond to the pandemic because they would be forbidden from being able to work. Hmm. I wonder, Adam, if you think an argument like that could possibly sway the justices, given that it is such a practical rationale

for ruling one way rather than a kind of legal one. It seems to have to do almost exclusively with the on-the-ground consequences rather than a kind of larger legal theory. So two points. The justices don't always admit it, but of course they take account of what the real-world consequences of their decisions are going to be. In the transgender case we talked about a second ago, everyone went on and on, you know, what would happen to our bathrooms if we rule in favor of transgender people?

That's not a question about what the law requires. That's a question about consequences on the ground. But the other is that there is a way to make this a legal argument. The question in the case was whether the administration had given adequate consideration to the costs and benefits of its move. And this might be one place where they didn't give adequate consideration to the consequences of their move. And the crisis is now revealing those consequences. That's right.

It sounds like you're saying that although justices may not explicitly say it, this pandemic could very well influence how they rule in a case like DACA. Oh, I feel certain that on some level they take account of it. And it reminds me of a famous statement by Justice Felix Frankfurter, who said, there comes a point where this court should not be ignorant as judges of what we know as men. Hmm. In other words, the real world intrudes. Yeah, and the real world has to intrude, and it would be foolish to think otherwise. We were talking about precedent earlier, Michael, and of course, respect for precedent is important. It's an aspect of the rule of law,

but the court has to balance all kinds of things, practical considerations, the societal consequences of its decisions, the public's respect for the authority of the court. And getting that mix right is what makes that job to be a Supreme Court justice so very hard. Adam, thank you very much. Thank you, Michael. We'll be right back. Here's what else you need to know today. On Monday, several states in the American South announced plans to begin reopening their economies, despite evidence that the coronavirus is still spreading across the country. For the good of our state, social distancing must continue,

but our economic shutdown cannot. South Carolina is allowing shops ranging from department stores to flea markets to resume operations immediately. Georgia said that residents could return to gyms and salons as of Friday and dine at restaurants starting Monday. And in Tennessee, Governor Bill Lee said that most businesses will be allowed to reopen on May 1st. While we continue to emphasize social distancing for Tennesseans,

I will not extend the safer at-home order past April 30th. All three states said they would still require social distancing measures at the reopened businesses, but it's unclear how they would be enforced. And for the first time in history, the price of a barrel of oil dipped below zero on Monday, as investors deemed its value as essentially worthless. The anomaly occurred because the pandemic is destroying demand for energy, meaning that there is now far more oil than can be used or stored. or stored. The negative price for barrels to be delivered in May revealed that sellers are now willing to pay for excess oil to be taken off their hands. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.