The NPR Politics Podcast - Gun Rights Are Likely To Be Expanded Even Further By The Supreme Court

Episode Date: June 1, 2022

The conservative majority so far appears unmoved by prevailing public opinion on the controversial social issues before them this term, though they have been notably slow to issue final opinions. That will make for a busy few weeks of rulings as the Supreme Court races to conclude its term by the middle of the summer.This episode: White House correspondent Tamara Keith, legal affairs correspondent Nina Totenberg, and national justice correspondent Carrie Johnson.Support the show and unlock sponsor-free listening with a subscription to The NPR Politics Podcast Plus. Learn more at plus.npr.org/politics Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This is Maureen and Francis and baby Kieran from Cuyahoga Falls, Ohio. Francis is a lifelong listener. Today, she completed her last day of preschool and we are headed to get ice cream to celebrate. This podcast was recorded at 1.14 p.m. Eastern Daylight Time on June 1st, 2022. We have made it to another month. Things may have changed by the time you listen, but I'll still be making my kids listen to the NPR Politics podcast. Let's all scream for ice cream.

I just want a day off. And I want ice cream every single day, like perhaps right after this podcast. I will go eat some ice cream. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Nina Totenberg. I cover the courts. And I'm Carrie Johnson, national justice correspondent.

Today's podcast is all about the Supreme Court and a number of decisions that we are expecting in the coming weeks, some of which could be huge. Now, we have talked on this podcast several times and at length about the expected decision on Roe v. Wade and the leaked draft opinion that could change abortion law in America as we know it. Go back and listen to those pods. This one is about other items, including guns and gun control. Nina, there are just a lot of outstanding decisions at this point. At this point, there are more outstanding cases to be decided than there are decided ones. Not even close. And it's an

indication of how, well, let's put it this way charitably, how difficult the dynamics are within the court. And we saw some evidence of that from the leaked draft. Nina, I mean, this is looking kind of gruesome. It feels like the court won't be done at least until July at this point, right? Could be. I mean, they can sometimes get their act together, but they didn't have any decisions this week at all. I think that's pretty close to unheard of for the last week in May and first week of June. It's nice for me because I'm trying to catch up on other things, but it's bad for them. June is the big month. That's when the rest of the cases get decided. And they're not getting them out, which means they're in a terrible kind of psychic gridlock and intellectual gridlock of production up there. Well, let's talk about what we are waiting for. And in particular, let's start with this case related to guns and gun control.

The court said in 2008 that the Constitution gives you a right to have a gun in your home for self-defense. The question in this term's case is whether you have a right to carry a gun outside your home. And at issue in the case is a New York law that restricts licenses to carry a gun outside the home to just a limited number of people, people who are engaged in sporting events, hunting, shooting ranges, things of that sort. And those who can demonstrate a special need for self-protection can get a special carry license, like a messenger carrying cash. Most states don't have those kinds of very strict laws, but some 80 million people do live in states like New York that limit concealed carry licenses. And at the oral arguments, it looked as though the

conservative majority very likely will strike down the New York law. Now, Carrie, this is potentially a big case. It's been a while since there has been a big case related to guns. Yeah, it's been over 10 years, in fact. And some conservative members of the court like Clarence Thomas and Neil Gorsuch have complained about that publicly and wondered why the Second Amendment wasn't an issue that the Supreme Court was taking up. At one point, they claimed it was being treated like a second-class right. Well, that day has passed. We now no longer have Justice Anthony Kennedy on the court, and now we have Amy Coney Barrett, who, as a federal appeals court judge in the Seventh

Circuit, wrote a lot about gun jurisprudence in one particular case she called one of the most important decisions she'd ever participated in. And she has a very different attitude toward gun rights in the Second Amendment. So I think conservatives are feeling very hopeful about the way the New York case is going to come out. And does the New York case potentially have implications beyond New York and beyond just concealed carry laws? Well, it does because there are all kinds of other gun regulations that are working their way up to the Supreme Court right now pending are a couple of cases involving state restrictions on the size of ammunition magazines. And, you know, we know that those are very horrific in the kinds of shootings we've seen in the last few weeks, few months, few years, and some states have tried to

regulate them so people can't buy these huge magazines of ammo. And gun rights groups are challenging those laws. And there are lots of other laws that you can expect challenges from. And President Trump did something of a judicial hat trick. He managed to name three members of the Supreme Court, all of whom have records that are hostile to gun regulation. And the result, it's hard to know what the result would be, but it's obviously tilted the court in a very different direction. So we're talking about a potential decision here related to guns in a week where the nation is still reeling from the latest mass shooting and the nation didn't have a chance to stop reeling from the mass shooting before that. This ruling is going to come out after Buffalo and Uvalde. And expanding gun rights is not exactly where public opinion is. Public opinion generally supports some restrictions on gun rights, supports expansion of background checks, for instance. Is there a problem for the court in being so out of sync with public opinion? I don't know. I'm curious to know what Carrie thinks. But

between this abortion and some other issues, the court could find itself dramatically out of sync. And in my lifetime, I've not seen a court that didn't make adjustments for public opinion, that didn't somehow make some corrections. So when, for example, the Warren Court was criticized for being too friendly to defendants' rights, you saw the court move to the right over the following years to make adjustments and to walk that back a bit and cut back on some of those rulings. But these are really very young justices and that make up this majority. And there's no indication so far that they really care about public opinion. Right now, we are going to take a quick break. And when we get back, more cases we're watching for.

And we're back. And I want to start with a case that considers executive power and also deals with the environment. You know, conservative courts tend to take a pretty constrained view of executive power, especially under Democratic presidents. In this case, they are looking at whether or not the EPA can regulate carbon emissions under the Clean Air Act. That's right. There are huge regulatory cases before the court this year. And in the one you mentioned, the Biden administration actually abandoned the previous regulations put forth by the Obama administration and said, look, we understand that you don't like these, you think they're too far-reaching, and we're going to draw up some new ones, so please don't hear this case. And the court still reached out and took the case. So this has enormous potential implications, not just for regulating

coal-fired plants, utilities, which is what this is all about, but for much more than that in other areas of the law. And there appears to be, although it's not quite clear, a majority on the court that is subscribing to this new doctrine called the major questions doctrine, which would drastically limit what regulatory agencies can do, and to some extent, tell Congress, you can't even delegate the authority to do some of these things to regulatory agencies. That would be an enormous sea change going back 70, 100 years, right? That's a big deal. Right. So, Carrie, if executive power or regulatory power is limited with regards to the Clean Air Act, what else could be affected?

Are we talking about other environmental policy, immigration, public health? Like, where would this potentially go? Well, Tam, you know better than I do. You've now been spending parts of two different presidential administrations covering responses to the coronavirus pandemic. And remember, we had this federal district court judge appointed by former President Donald Trump in Florida who threw out the mask mandate for transportation. The Biden administration kind of belatedly is appealing that maybe it's a lost cause in this case, but they want to preserve their public health authorities for future crises. It's not at all clear what the Supreme Court is going to do about that if it gets all the way up

there. Nina knows too that with some of the temporary or emergency actions on the court's shadow docket, that it really favored religion over public health authorities in some cases. Yeah, one of the other prominent cases yet to be decided was brought by a high school football coach who claims he has the right to pray on the 50-yard line after games. So there are other religion cases. This is a court that is very deferential to the free exercise of religion, unlike previous courts in generations past, significantly less deferential to the idea of separation of church and state. So you're watching those religion cases, both that one at the 50-yard line, but others as well. Yes. So before we go, let's go back almost to where we started, which is that there was a leaked draft opinion in a case that would affect Roe v. Wade. And there was an investigation that was launched into how that draft leaked out.

And that has to be hanging over everything that's happening right now with the court. Yeah, and it sounds like all hell is breaking loose up there. I mean, there was a CNN story this week that said that the chief justice had ordered all the law clerks to surrender their cell phones for inspection. And, of course, they have no idea who leaked this draft. So they don't have anything specific they can say about individuals. That would make getting a subpoena rather difficult. It's not even clear that any, quote, law was broken. Certainly, there are centuries of tradition about confidentiality that were broken, but there's not any law and the Supreme Court itself doesn't even have an ethics code that it can tell you that when you start looking, sometimes you find things you wish you didn't know. And so this investigation could really come back and bite this court in the posterior in a way that would surprise them, I think. I second that. And I think that it is worth just nodding to the fact that this comes at a moment when the credibility of the court in the eyes of the

American public is at a low point where the American public has taken a dim view of this institution. And this institution hasn't done itself a lot of favors recently. It's at a low point and falling quickly. And it's always been ahead of the other two branches by a long shot, probably still is, ahead of the journalism profession by a long shot. But it's sinking so fast, it looks like the stock market. Yeah. And you know what? I think we got to revisit this conversation in probably early July, and then Nina needs a nice long vacation. And a drink. with an umbrella. Oh God, that sounds so good.

Well, with that refreshing idea, let's leave it there for today. I'm Tamara Keith. I cover the White House. I'm Nina Totenberg. I cover the courts. I'm Carrie Johnson. I cover the Justice Department.

And thank you for listening to the NPR Politics Podcast.