The NPR Politics Podcast - After Roe, The Supreme Court Seems Poised to Undo More Major Precedents

Episode Date: December 29, 2022

Affirmative action, indigenous rights and election integrity could all be radically reshaped by the far-right court this term, as Chief Justice John Roberts continues to insist the political battlefield is a non-partisan institution. Here are the cases you should be watching.This episode: political correspondent Susan Davis, senior political editor and correspondent Domenico Montanaro, and legal affairs correspondent Nina TotenbergThis episode was produced by Lexie Schapitl. It was edited by Krishnadev Calamur and Eric McDaniel. Our executive producer is Muthoni Muturi. Research and fact-checking by Katherine Swartz.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover politics. I'm Domenico Montanaro, senior political editor and correspondent. I'm Nina Totenberg. I cover the Supreme Court. And that Supreme Court is currently in the middle of a term that could reshape the law when it comes to big issues like affirmative action, gay rights, and voting rights. Conservatives have a 6-3 supermajority on the court, and they haven't been afraid to take up divisive social issues that past courts have often sidestepped. This all comes as Americans' confidence in the court is at record lows. Gallup

tracks this issue, and it shows just one quarter of Americans today say they have a great deal of confidence in the institution. So let's dig into some of these cases. Nina, two of the closely watched cases involve race. Can you talk us through them? Well, the first one is affirmative action. It's another one of these huge cases in which the court has for a half century upheld affirmative action programs in higher education. In this case, it's Harvard and the University of North Carolina, one private, one public. Their programs are typical of programs across the country, saying that race can be used as one of many factors

in college and university admission decisions. The precedent in this case dates back to the 70s, and the court subsequently reaffirmed that decision twice. And in one of those cases in the early 2000s, Justice O'Connor, who was then sort of the center of the court, suggested that there should be a sunset date. And she suggested it was about 25 years, and we're now about five years away from that. More important, though, is that this is a very different court. It's a six-to-three conservative court without any real center. And one of the justices who really hates racial preferences is the so-called moderate among the conservatives, Chief Justice John Roberts. So what is the core question that the court is going to try to resolve in this case? Whether race can be any consideration in college admissions. And it will in all likelihood undo affirmative action programs in most colleges and universities and make it in some places

much more difficult to have at all a racially diverse student body. Didn't conservatives lose the University of Texas case not too long ago? I mean, how are they able to sort of reconcile, you know, the overturning of that? I mean, obviously, we saw them overturn Roe so they could come up with a lot of things. You know, this is a court, they call it the YOLO court. I've not heard that. Does Alito go by that?

You only live once. And they are sort of doing a march on precedents that they as lower court judges and scholars hated and now want to overturn. And some people think that's great. Some people think that's awful. But it isn't usually the way the court has operated. It's been much more incremental in its approach. This is also a really interesting case because of the way it landed in front of the Supreme Court. Nina, can you tell us about a man named Edward Bloom? Edward Bloom is a conservative legal activist who's been at this in race cases of all kinds for over 30 years and most significantly probably engineered the case that led to the essential gutting of the landmark 1965 Voting Rights Act. But he's done it in other kinds of reapportionment cases, and he's been fighting affirmative action for at least 20 years. So he doesn't give up. He finds lawyers to represent him, and he finds clients to sue. And he has been very successful. I'd call him like a conservative matchmaker when it comes to these kinds of cases, right?

Because these aren't like the kinds of cases where somebody has a problem, they have an issue, and it sort of works its way through the courts. He, I saw in 2017, had read an op-ed written by a former mayor of a small town in California and then basically recruited him to be part of one of the race cases at the court. Yeah, the voting rights case, actually. The first bite, I think, at the voting rights case. It's kind of fascinating because I'm not sure that people understand as much how a lot of the cases they get before the court, maybe the Dobbs case put that under a microscope as well, but are often parts of like long running orchestrated legal campaigns among activist types that they're not, as Domenico said, these sort of organic individual cases that just happen to find their way up the legal chain. The one thing that's different about this is he's really a one man conductor and he finds the orchestra. Thurgood Marshall did this when he was at the NAACP. He had an orchestra. Thurgood Marshall did this when he was at the NAACP. He had an orchestra. The anti-abortion

folks had a huge orchestra. He is the conductor who hired the orchestra or found the orchestra. So what is the other major race case before the court? It's called ICWA, the Indian Child Welfare Act. And the Indian Child Welfare Act was enacted 40 years ago after a congressional investigation found that public and private agencies had removed, wait for it, one-third of all Native children from their homes and placed most of them in institutions or homes with no ties to American Indian tribes. And so Congress established minimum federal standards for removing Native children from their homes and required tribal preferences in foster placement and adoptions. And once again here, the question is, is this an unconstitutional racial preference?

And the tribes say, look, we're a separate nation. We're entitled to have these kinds of preferences. Under the Constitution, we're a separate nation. And, you know, this is one of those cases where one of the court's most conservative members, Justice Gorsuch, has been a big advocate for Native American rights. And I have to say, he knows more about it, one justice told me, than even the advocates know. I learn every time he writes. So Gorsuch could be the fourth vote. You know, in a lot of these cases, it's 6-3 with the conservatives on one side and the liberals on the other. But this is one of those cases where he could be the fourth vote to uphold the law.

I just am not sure where the fifth vote is. That's a fascinating case. And I would not pretend at all to know much about Indian law. But I recently did a story about how there's advocates for the Cherokee Nation trying to get a delegate seat in Congress, but how the US Constitution and the tribal nations sort of recognize each other as sovereign powers. They have their own laws, they have their own constitutions, and there is a real resistance among tribal communities for the U.S. federal government telling them how to live their lives. That's right, Sue. And a lot of tribal leaders see this case as a legal foot in the door

that could lead to other cases challenging Indian rights involving land, water, oil, mineral, and highly profitable gaming rights. Okay, let's take a quick break and we'll talk about some more cases when we get back. And we're back. And another case that the court is considering has to do with discrimination against LGBTQ Americans. This may sound familiar to people if they recall a very well-known case a couple years ago involving whether a baker had to bake a wedding cake for a same-sex couple.

Well, yes, the court in 2018 punted on that case, which it sometimes does when it just finds the questions too difficult for the moment and just puts it off. These cases involve public accommodations laws that ban discrimination against the LGBT community, much as these laws ban discrimination against people based on race, religion, and gender. Here, a woman named Lori Smith is challenging the public accommodations law because she says she does not want to design wedding websites for gay, lesbian, LGBTQ clients. So it's a clash of values. She says it's a violation of her free speech, her religious speech in this case, as it usually is in these kinds of cases. And the question is, how do you cabin that? Okay, if she doesn't want to design a web design, what about a tailor who makes wedding suits? What about a caterer? And those were the questions that the court faced.

And it's an extremely important and complicated case. right, to say that this is forcing her to express messages through her work that she wouldn't want to express. And I think one of the justices had talked about how, how is this your message? I think it was Sotomayor who said, how is this your message when it's really exploring the story of the couple that's going to be married? Is there a same-sex couple specifically involved in this case, or is it just the business owner saying, I want to be able to have these protections for my business? This is a very unusual, what I would call preemptive lawsuit, because nobody on the LGBTQ side has complained yet. And in fact, she hasn't. She just simply says, I can't design wedding websites, because if I did, and I turned somebody away, I would be fined,

and potentially even there's a jail sentence, although that would never happen. And the last case we're going to talk about, I think is hugely important, but very complicated. It involves something called the Independent State Legislature Doctrine. And this could fundamentally change the way elections are run and results are certified in this country. Nina, can we take a pause just to explain what the independent state legislature doctrine is, and then we'll get into the details of this case. The North Carolina state legislature says, we are the only people who can design congressional districts. We have all the power to do that, essentially. And the courts cannot supervise that. The state

courts cannot supervise that and do what they did in this case, which was finally order the redrawing of districts and say that what the legislature did violated the state constitution. Did that essentially mean that there would be no check on a state legislature if a state, like my home state of Pennsylvania, overly gerrymandered congressional districts, that no federal court under this theory could ever come in and say this is unconstitutional, that they would be the final sort of law of the land. Under the most extreme version of this, that's exactly what it would mean. And it could mean more. It could mean that the state legislature could pick different presidential electors to send to the electoral college than those who were voted for

by the people of the state. And here is Justice Elena Kagan, I think, summing it up. I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self-interest. They want to get reelected. Dominica, what do you make of that? And it seems pretty clear that Justice Kagan seems to see this as a threat to democracy. about being able to use slates of electors and all of that in various states. Now, this doesn't have to do with that. But the idea of independent state legislative theory was a pretty fringe

conservative theory that now has gone fairly mainstream in conservative legal theory. And I think that's been the big change at the Supreme Court overall. And within our politics, we've seen things that had been fringe ideas on the hard right now sort of at least try to sneak into the mainstream, if not be accepted by the mainstream. Here at the court, it doesn't look like it's necessarily a sure shot that they're going to win this case. But the fact that it's even there in the first place is far different than things had been 15 years ago or so. You know, do you see much suspense in these rulings? I mean, the 6-3 conservative majority court has been ruling essentially how you think a 6-3 supermajority conservative court would rule.

So in the sort of the hierarchy of these cases, you mentioned in the Indian rights case that that one was maybe more of a puzzler than the others. But what is the anticipation like around these cases? Which ones are you most closely watching? This one is really hard to read. At the argument, there seemed to be definitely three camps. So the three most conservative justices, Gorsuch, Thomas, and Alito, and potentially even Kavanaugh, seemed to embrace to some extent the independent state legislature theory. The three liberals definitely did not, including Justice Kagan. And in the center were the Chief Justice and Justice Barrett and potentially Justice Kavanaugh again, for some sense, middle ground. Now, writing a middle ground in this is hard, but not impossible. But there is

absolutely no way that I could see that they can write a middle ground and not invite a lot more cases like this. You know, I think it's interesting, this ideological sort of tug of war we're seeing with these three camps. I mean, the Gorsuch-Thomas-Alito camp seemed pretty firmly in the same camp, aside from maybe Indian rights, as we talked about. But then Kavanaugh, Amy Coney Barrett, and Justice Roberts. It's sort of like Roberts is trying to tug the two newbies back to some sort of conservative center-right middle, but not necessarily always being successful as he tries to sort of keep this court pasted together. All right, let's leave it there. I'm Susan Davis. I cover politics.

I'm Domenico Montanaro, senior political editor and correspondent. I'm Nina Totenberg. I cover the Supreme Court. And thanks for listening to the NPR Politics Podcast.