The New Yorker Radio Hour - Major Decisions Ahead for the Supreme Court

Episode Date: October 7, 2022

In its last term, the Supreme Court dropped bombshell after bombshell—marking major conservative advances on gun rights, separation of church and state, environmental protection, and reproductive rights. “The Court is not behaving as an institution invested in social stability,” the contributor Jeannie Suk Gersen wrote in July. She joins David Remnick to preview the Court’s fall term. Plus, after covering the landslide victory for pro-choice forces in Kansas this summer, the contributor Peter Slevin has been following midterm races in Michigan, where voters this fall will decide not only on state and congressional races but also on a constitutional amendment that would guarantee the right to an abortion in the state. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

This is The New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. This is the New Yorker Radio Hour. I'm David Remnick. In its last term, the Supreme Court dropped one bombshell after another. The new 6 to 3 conservative majority left John Roberts' more or less incremental approach firmly behind the court. And the court now advanced major conservative positions on gun rights, the separation of church and state, environmental protection, and of course the decision in Dobbs, which overturned Roe v. Wade. The court is not behaving as an institution invested in social stability, our contributor Jeannie Suk-Gerson wrote in July,

and that was putting it politely. I wanted to talk with Jeannie now about the court's new term, which just began and what other bombshells may fall. Jeannie Suk-Gerson is a professor at Harvard Law School, and she was once a clerk herself on the Supreme Court working for Justice David Souter. Jeannie, of the many cases on the docket for the Supreme Court, what are you watching most closely? Well, I'm watching most closely the affirmative action cases that the court will hear at the end of this month.

And those are cases against Harvard and the University of North Carolina. I can't help but ask. You're at Harvard. Yes. You're at Harvard Law School. It's got to be the talk of the law school. What do people expect will happen with this quite conservative Supreme Court? I think everyone, whether at Harvard or elsewhere, who's been watching and listening to the court, expects that the court will overrule its precedent. And basically, it will say that affirmative action that uses race as a factor in admissions is unconstitutional and unlawful.

And I don't see any reason to hope that it would go the other way. That'll have tremendous consequences, won't it? I think yes and no. Will there be other measures that universities can take to try to, try to ensure diversity on their campuses. Of course they can, as long as it's what we would call a race-neutral method. And there are such methods that have been approved by the court. What's a race-neutral method? So, for example, in Texas, there was something called the Texas 10-percent plan that the court did approve as being lawful. Essentially, it takes automatic admission

from 10% of the top of each high school, and that's automatic. Given that we have residential segregation and school-based segregation in our country in a lot of places, this actually ensures that the student body of the University of Texas will be racially diverse. I think those are the kinds of things that schools are immediately going to be moving to, and probably they're already thinking about it now. In the redistricting case from North Carolina, Moore v. Harper, the state is basically asking the Supreme Court to enshrine the legislature's power over election law. No state court could challenge an election map. The consequences then

are what? This, I'm not exactly sure what the majority will rule. I have to say I'm uncertain about the result in this case. I mean, this involves the elections clause that says that the manner of federal elections shall be prescribed by each state by the legislature thereof. And so here, the state legislatures had a manner of deciding. how the election should be run, and then state judiciary had a different idea based on its interpretation of the Constitution. The result of the Republican legislature's view is that state legislatures can engage in any kind of gerrymandering or voter suppression without any judicial review by state courts. That would be hugely consequential because it essentially says state

legislatures do whatever you want, essentially without being bounded by law. And so I don't think there's a very strong basis to make a prediction in this case, to be honest with you. I don't mean to do violence to the pros of any of my colleagues, but I think it's fair to say that if you took a summary away from what A.B. Davidson Sorkin wrote in The New Yorker this week is that if you thought that the overturning of Roe v. Wade was a big deal, wait till the Supreme Court goes at it again this season. Do you envision overall consequences? is coming out of the Supreme Court this fall, anywhere near what it was like when Roe v. Wade was overturned? Well, Roe v. Wade had such a symbolic cultural importance. The cases this term are not going to have

that kind of salience culturally, but they really go to very fundamental principles of our country. What is the meaning of having a democracy and what is the meaning of having it be multiracial? what does it mean to actually be able to freely elect one's representatives? These are very, very basic ideas. And then, of course, it goes right back to the affirmative action case as well, because it's about the meaning of the equal protection of the laws and about whether we have to look at things in a colorblind manner or one that actually takes into account that what it takes for the government to ensure equal protection of the laws or multiracial democracy,

that the proper functioning of it, that that would mean. being conscious of the race of the population and how to make sure that all of the races get to freely elect the representatives. It's all tied up together. And finally, Jeannie, I'd be remiss if I didn't ask you about Donald Trump in the Mar-a-Lago documents. Trump has asked the Supreme Court to intervene in that case. What do you think the court will do there, if anything? That case is a huge mess. I mean, it's just a mess.

My prediction is that the Supreme Court will not come out on the side of Donald Trump in this case. It will probably just let it roll in the 11th Circuit and in the district court. That's my guess right now. I would be surprised. I could be wrong. But that that would be my guess. Thanks so much, Jeannie. I know there'll be more to talk about the Supreme Court as the fall evolves. Thanks so much. Thank you. Jeannie Suk Gerson is a professor at Harvard Law School, and you can read her work for us at New Yorker.com. This is the New Yorker Radio Hour with more to come. The impact of the Supreme Court's Dobbs' decision is shaking the balance of power in the United States. This summer, when Kansas voters rallied behind reproductive choice in a referendum,

they sent a resounding signal of political defiance. Our writer Peter Slevin, after covering the Kansas president, referendum shifted his reporting to the state of Michigan where there's an initiative on the ballot that would put the right to abortion in the state constitution. And that's shaping this November's race for governor and control of the U.S. Congress. Here's Peter Slevin. As I was trying to decide where to go in Michigan to focus on the battle over reproductive rights, the third district in western Michigan centered in Grand Rapids really caught my eye. It's a district that has long been held by Republicans. This year, Hillary Sculton, a Democrat who lost a race for Congress two years ago to a

Republican, got back into the race. One thing has changed since Skulton lost two years ago. An independent election commission has redistricted. In recent years, voters have elected conservative Republicans. This year, Skulton is given a real shot. Hello, everyone. Thanks so much for coming out on this Thursday, after. On one warm September afternoon, Skullton's advance team set up shop outside of a brew pub in the backyard. She took the microphone and talked about what was at stake. I'm running because choice is on the ballot, regardless of what happens with this ballot initiative. It doesn't stop here, right?

The extremists in Congress have already shown that they want to take away access. to contraceptives. It was a weekday afternoon and several dozen people showed up both to listen and to move on out as her organizing force. For years, we have been held hostage by Republican gerrymandering, but the good people of Michigan have been fighting back. And thanks to our incredible efforts by voters, not politicians. We have a once-in-a-generation election this cycle and the opportunity of a lifetime to elect majorities up and down the ballot. And when it comes to Michigan's third congressional, to send the first Democratic woman in West Michigan history to Congress. I'm ready. Scolton is running against a man named John Gibbs, a Republican who moved into the district to compete in this race.

I reached out to the Gibbs campaign, hoping that he might talk with me. He declined, as did the Michigan Republican Party. He was strongly backed by former President Donald Trump, and this is what he tweeted on the morning of the Dobbs decision. God wins. I wanted to see how other candidates were talking about abortion, so I drove across the state the next day to see Gretchen Whitmer. appreciate making time. You know, it's such a precarious moment. She gathered a group of women around a table at a Cajun restaurant.

Whitmer herself started by telling her own story. Obviously, I'm here as the governor. I'm also here as a woman. I'm also here as a mother. I'm also here's a survivor. When I was in college, like one out of four women, I was raped. And in the days in the aftermath, you know, I was just, it was devastating. And it didn't hit me right away, but maybe hours or a day into it, I thought, oh, my God, what if I'm pregnant?

And I knew that if that were the case, that I would have the ability to make my own choice for what was right for me. One of Whitmer's guests, a physician's assistant named Nikki, says she sees a startling number of young women who are asking for birth control. They're terrified, and I have women who aren't sexually active asking to go on birth control. because of this, I've had so many patients that are choosing IUDs right now. So intrauterine devices that are long-term devices that can, you know, be there between three and ten years, and they're choosing that because they don't know where the future of this conversation is going. For 45 minutes, it was story after story of women who were worried about what it would mean

to lose access to abortion. There were military veterans. There were women who work in health care. There was one mother who was there with her daughter, and Whitmer was listening and talking about how essential it is. She called it a precarious moment for the country. It's such a precarious moment. After the roundtable, I was able to catch up with the governor for a few minutes. I think it would be a real mistake to assume everyone understands how dire and serious this moment is.

And that's why I think it's crucial that we are communicating and doing roundtables. and continuing to put the focus on this, because it's very real and it's very raw. And in Michigan, if we're not successful, you have to go international to get access to abortion care by going to Canada or get all the way to Illinois, which will mean a lot of women will not have access and lives will be lost.

And so we can't stop educating. So what are the anti-abortion forces saying about all of us? of this. I checked in with Michigan Right to Life, which is based, as it happens, in Grand Rapids, in Skolton's district, and asked Chris Gass, who's the education coordinator, how they see November and what the Dobbs case has meant to their efforts. The message for candidates is, look, you know, most of the American public is kind of in the middle on abortion, very confused, they're not sure what they believe. You need to say that you have a consistent position on the value of unborn life. And we need to ask them, now that we have Roe v. Way gone, the status quo has been

abortion through all nine months of pregnancy for any reason, which is what your opponent in most cases would be supportive of, you know, everything from partial birth abortion, tax-funded abortions, no parental consent for abortions. So by all means, have a frank conversation about what are people's opinion on abortions. We've certainly read stories. There's one example in Michigan. but there are others elsewhere where Republican candidates who are broadly opposed to abortion are downplaying it because they don't want to get into the debate about whether it should be a full ban or not. It's common that sometimes in elections, and it's always been the case that you have to try to get pro-life candidates to really talk about the issue. So that's kind of nothing new.

I don't think we've seen a real mass movement. away from that. But I think certainly they need to think harder about how they need to talk about it now that it's going to be an issue that people are going to be directly voting on and they're going to be voting on it in a very meaningful way. Later that afternoon, I went out door knocking with Hillary Sculton to see what reception she's been getting from voters. She's the Democrat running for Congress in the district anchored in Grand Rapids. On one busy street, she came across a man sitting on his front porch. He introduced himself as John. And right off the bat, he's that he had seen Sculton's ad, but he frankly wasn't sure which way he was going to vote.

Yeah. Oh, okay. You have? Yeah. All right. Are you planning to vote in November? I don't know. Yeah. Yeah. What are some of the issues that matter to you? Like, some things that that really... Uh, abortion thinks he's wrong. Yeah? And lo and behold, the first thing he mentioned was abortion. What is it about abortion that you feel, feel strong? That should be a woman's freedom to do that themselves. Yeah, make, yeah, make them. Make that choice themselves.

Yeah, yep. That's what I believe, too. You know, I'm a Christian. I am a mom myself. And I think that it's up to every woman's God-given ability to make that decision for themselves. They had a lengthy back and forth as cars were going by on this busy street. And at the end, Skolton said, can I count on your vote?

Can I count on your vote in November? Oh, absolutely. Thank you. Thank you. much. Yeah. All right. Thank you sure again.

The other day you were nice enough to let me tag along as you knocked on doors. It was an upscale neighborhood. It was a neighborhood where Gerald Ford, the former president, had once lived. And I was struck by this couple who answered the door when you knocked, who said, well, we actually used to be Republicans. We are no longer Republicans. Did that stand out to you? I mean, honestly, not really, because I hear it all the time. It is, you know, I would say it's one of the dominant narratives that we hear here.

And, you know, people have, you know, either they used to be Republicans five years ago, 10 years ago. We're talking to people who used to be Republicans two weeks ago. And, you know, they say the choice on the other side is just not for us. And we want to support you because, you know, you're the right candidate for our district. What was striking to me was how often Skulton spoke of a board. abortion in terms of her own religion. This is an issue that Republicans, especially and particularly evangelical Christians on the right, have made their own. How does your faith connect with your views on reproductive rights and abortion? Yeah. Well, you know, I feel called to love my neighbor as myself.

That includes loving and caring for women and trusting them to make their own reproductive choices for themselves. That is not a role for the government. And, you know, I also deeply believe that my particular views on this and what I would choose for myself are not, it's not appropriate to make laws that reflect one particular view on abortion. If Skullton wins, and she is leading in the polls, it's going to be pretty darn meaningful. It means that the political equation surrounding reproductive rights, and specifically abortion has changed and changed dramatically since June when the Supreme Court issued its Dobbs decision. It will mean that voters who believe in abortion rights are turning out and are making their voices felt

in a way that we simply haven't seen in many, many years. Peter Slevin is based in Chicago. John Gibbs, the Republican running against Hillary Sculton in Michigan, declined to be interviewed, but in a statement he called Skulton's position on abortion, extremist. I'm David Remnick, and that's The New Yorker Radio Hour for today. Thanks so much for listening. See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker.

Our theme music was composed and performed by Merrill Garbus of Tuneiards, with additional music by Louis Mitchell. This episode was produced by Emily Boutin, Breda Green, Calalia, David Krasnow, Louis Mitchell, and Gophane and Putabwele. Along with Jeffrey Masters, Will Coley, Jenny Lawton, and Michael May.

And we had assistance from Harrison Keithline and James Napoli. The New Yorker Radio Hour is supported in part by the Trurina Endowment Fund.