The NPR Politics Podcast - Looming Default, SCOTUS Shadow Docket, And 1000 Daily Episodes

Episode Date: May 26, 2023

The fiscal parameters of a deal to avert self-inflicted financial catastrophe have been largely hammered out by House Republicans and the White House — but differences over social programs and energy permitting still need to be resolved.And, over the last decade, the Supreme Court has increasingly leveraged its emergency or "shadow" docket to issue orders that have sweeping implications — but the approach is much less transparent than the usual judicial process. Also, the podcast marks 1000 episodes since we launched the daily version of the show. Thank you for listening!This episode: White House correspondent Tamara Keith, economics correspondent David Gura, legal affairs correspondent Nina Totenberg, and congressional reporter Barbara Sprunt.The podcast is produced by Elena Moore and Casey Morell. Our editor is Eric McDaniel. Our executive producer is Muthoni Muturi. 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 Tam. And before we start the show, we wanted to take a second to say thank you. We have hit a milestone, our 1,000th daily episode of the NPR Politics Podcast. 1,000. And it has been such a special thing to experience all that has happened in the last three and a half years with you. We are very lucky to have this job and this platform, and we have you to thank. So if this is your 1,000th episode with us, or if you are just tuning in, we are very happy that you're here. If you'd like to go the extra mile to support this work, you can pitch in $3 a month at plus.npr.org slash politics. Here's to the next 1000 episodes. So now on with the show. Hi, this is Hilde Restad in Oslo, Norway, where I teach and research US foreign policy

and listen to the NPR Politics podcast every day on my walk home from work. This podcast was recorded at 12.07pm on Friday, May 26. Things may have changed by the time you hear it. Okay, here's the show. I imagine that from outside of the US, we may look even crazier than we do from here inside the US. Hey there, it's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Barbara Spren. I cover Congress. And NPR's David Gurra is here with us. He covers the financial markets. Hey, David. Hey. So we've got a congressional reporter and a business reporter, and they walk into a bar, and it must be time for another debt ceiling update. Ding, ding, ding. Yeah. So there's this long weekend ahead, which everyone could be enjoying, except that there is this big thing hanging over the United States and the full faith and credit of the United States.

The X date, that is the day where the U.S. is no longer able to pay its debts is getting closer. Barbara, you have moved into the booth up on Capitol Hill, or rather you've moved into the area outside of Kevin McCarthy's office on Capitol Hill. So what is the latest up there? Well, this week has been a lot of starts and stops. You know, that kind of feeling in a negotiation is not terribly unusual. I think what makes it more unusual is just how close lawmakers and the White House find themselves to that X date that you mentioned, which, as Treasury Secretary Janet Yellen has reminded us many times, the U.S. could run out of money to pay its bills as early as June 1st. Now, this has created a lot of urgency among the lawmakers and negotiators here on the Hill. I have spent a lot of time with Speaker Kevin McCarthy and his top negotiators on the Republican side of things, Garrett Graves of Louisiana and Patrick McHenry of North Carolina.

And McCarthy this morning told us that there was some progress being made. He spoke with Garrett Graves earlier in the morning. I think he said the two of them shared a bike ride, which bike ride aside, he told us that there's still some gulf between the White House and the House team when it comes to issues like permitting reform, which Republicans say, you know, would allow gas and oil projects, but also other green energy projects that Democrats are quite keen on from the Inflation Reduction Act to move forward, and work requirements, which has been a red line in the sand for Kevin McCarthy for a while now. And I will just add that from the White House side of things, that is also a red line. But it does look like the contours of a deal

are largely worked out. That includes agreements on what spending should be going forward, both domestic spending as well as defense spending. And significantly, they appear to have agreed, and the New York Times first reported this, but we've confirmed it, they appear to have agreed and the New York Times first reported this, but we've confirmed it. They appear to have agreed that the government's borrowing limit, the debt limit would be raised for two years, which is notable because that gets us past the next election, the next presidential election. So, David, I want to bring you in here because, you know, there's this long weekend. Everybody's like, you know, cool, cool. June 1st is very soon by my math. How real is June 1st as a deadline?

And are we like driving full speed toward a cliff? Like, I'm just trying to gauge where things are. It's been odd to watch the markets throughout all of this because I expected going into it, there would be more dips and dives than there have been. And certainly the House Speaker has given Wall Street ample opportunities to react to what he's saying or signs of progress. He's talked an awful lot. And even still, there haven't been a lot of moves as a result of that. So we haven't had that kind of market reaction. And I've spoken to a lot of investment strategists and portfolio managers. And there is this sense with some geographic remove from Washington that they've seen this before. They know how this ends. There's no political incentive thatth. That is when these interest payments are due on U.S. debt. So I think that they're looking at June 1st as an indication that negotiations are proceeding and members are well on their way to working with the White House and getting to a deal. They'd like to see a deal by then. But the point at which this becomes potentially devastating

is if we get to June 15th and nothing has happened, because then we will have what all of these ratings agencies would consider to be a default. The U.S. would owe money and be unable to pay, unable to make those payments. That would be what would be really devastating for markets. So I anticipate as we get closer to that date, with those two dates, 1st June, 1st June, but definitely as we get closer to June 15th, we're going to see Wall Street freak out a little bit more if we get to that point. Do you think that the lack of Wall Street, and this is for both of you, but do you think that the lack of Wall Street freaking out has taken the pressure off of Congress and the White House? Has it taken away some of the urgency? I think so. And I've heard that there, you know,

is this, I'm not going to call it a hope, but I think that if you had that, it would be somewhat of a forcing mechanism. If you saw some real dips in the stock market, say, and we have seen sort of yields or the interest that investors demand on the shorter end, meaning like debt that expires sooner go up because of this nervousness, but you haven't seen the stock market. You haven't had that as a forcing mechanism. And I think that that is something that could light a fire underneath policymakers as all of this proceeds. So absent that, there is this kind of like status quo feel to Wall Street right now. And again, that is sort of a weird thing. It's different than what we've seen in these kind of last few debt ceiling crises that we've been through. And I'll say, Tam, on the Congress side of things, you know, I agree. As we get closer, you know, most of the folks coming out of these meetings are saying we got, you know, I agree the, as we get closer, you know, most of the folks coming out of these meetings are saying we got, you know, six days left, you know, as we've ticked down, you know, during the week, that anxiety is definitely there, the acknowledgement that, you know, the U.S. is getting closer to this X date. I will say Congressman McHenry the other day

was asked about this because there also has been, you know, some folks that have, you know, raised some skepticism about this particular X date. How real is it? And he said they, the GOP negotiators, are operating with that June 1st X date in mind. And he said that they don't believe they have any wiggle room. Well, it's a good thing we recorded a timestamp at the top of this pod, because things really could change with this any moment. All right, we're going to take a quick break. NPR's David Gurra, thank you so much as always for coming on the pod. Thank you. Great to be here. And Barbara, stick around when we come back. Some reporting on the Supreme Court.

More in a second. And we're back and we're here with NPR's Nina Totenberg. Hey, Nina. Hey there, Tam. So you've been reporting on something called the shadow docket, which the court has been using a lot more in recent years. And we have been hearing a lot more about the shadow docket. But I'll be honest, I don't fully understand what it means. It sounds mysterious. What is it? Well, the court has something formally known as the emergency docket, which has always been there

to deal with genuine emergencies. Think, for example, a last-minute appeal to stop an execution or the decision this year by a lower court to stop the FDA's approval for the availability of the abortion pill. There have to be ways to deal with such questions quickly to preserve the status quo if necessary. Got it. court would intervene. Then, about six years ago, these emergency appeals began to multiply like rabbits. So, for instance, in the 16, 16 years of the Bush and Obama administrations, there were eight emergency appeals total, and only half succeeded. And then, in the Trump administration's meager four years, there were 41 such cases with the Trump people getting some or all of what they wanted in, I think, 28 of the cases. That's a jump. Yeah, that's huge. Without any explanation from the court and no accounting for how the justices voted, no briefing, no oral argument. So folks in academia started referring

to the emergency docket some years ago as the shadow docket because sometimes as much or more was happening on that docket, the emergency docket, than the docket that we all focus on. And you say that you don't know how the justices voted. Like, does it come out in a different format? Well, every once in a while, some of them will dissent, but we don't know what the vote was in conference. And they just issue an order that says, we're going to block the lower court order, and that's it, until further notice, essentially. Wow. So this is definitely very different from the way cases usually make their way to the court and through the court. You know, they're typically, and you know, and all the stories that you do on the radio about Supreme Court cases, you hear about, well, there was an

appeal here, and there was an appeal here, and it moved up. And then there was a conflict between two circuits, and then it went to the Supreme Court. But this is different. This is very different. University of Texas law professor Stephen Vladek, who's written a book called, not incidentally, The Shadow Docket, says that the thing is, when the court issues these orders, the idea is that these cases will come back later for a formal decision by the court with full briefing and oral argument. But the dirty little secret is in the Trump administration, there was no later. Most of the Trump policies remained in place without ever reaching the Supreme Court. And when the Biden administration came in, they got rid of those policies. So, Nina, I'm curious, does that mean is the Biden administration doing the same thing?

It does a little bit, but not nearly as much as the Trump administration for the simple reason that they lose much more often. The court is not friendly to the Biden administration. Professor Vladek says when you look at the whole body of the last, let's say, 10, 11 years, what you realize, according to him, the measure of success is who's asking, a Republican administration or a Democratic administration. And if the public perceives that, that's definitely not a good thing. Right. And we have been talking a lot about declining trust among the public in the Supreme Court. We've also been talking about concern from lawmakers on Capitol Hill about ethics issues with the court. Is there a possibility that Congress might try to weigh in? I mean, I guess there's probably balance of power issues.

Congress has long made legislative decisions about how the courts are structured, and they could certainly weigh in about the shadow docket and require, let's say, in some sense, a written opinion to justify this. But what Professor Vladeck says is that not only is the court seemingly far less interested in being checked by Congress, Congress seems to be uninterested in checking the court in procedural, unglamorous ways, as opposed to some of the furor that Democrats have raised about ethics questions. Nina, I'm just curious. Do you think this is an evolution in the court or is the shadow docket something that you think is going to be here to stay? Well, it's always been there because, as I said, you need the emergency docket. So we're not going to get rid of an emergency docket. The question is, how often does the court intervene and for what reasons? And what are considered good reasons? I mean, what abortion rights supporters, for example, thought was a good reason intervening in the abortion pill case, I'm sure that abortion opponents did not think was a good reason. The problem is that the court doesn't seem to have a really good rationale for this at the moment, as it is increasingly using this mechanism.

Nina, while we have you here, I just want to ask you about these ethics questions. There's a lot of controversy swirling around the court. And Chief Justice John Roberts weighed in on it this week. In a sort of empty way, I think, you know, he said for the umpteenth time that we're looking at it, we're trying to tweak our own code of, you know, what we do. But that doesn't really get you very far. And his problem, I'm quite sure that he would like to write some sort of a code of ethics for the court. And he may even have a majority. But if you have two or three or even one justice out of nine who says, well, I just think that we shouldn't be doing this and I'm not going to subscribe to it, you're out of luck. Yeah. Then what? Yeah. It feels like parenting. Okay, Nina, thank you so much.

Thanks for having me, Tam. We're going to take another quick break. And when we get back, a very special edition of Can't Let It Go. And we're back. So is Barbara. Hey, Barbara. Hey. And to close out the show today and mark 1,000 daily episodes, we're doing something a little different. We're going to look back at some of our favorite moments from the podcast over the past three and a half years since it went daily. So here is what we can't let go of from the past three years. And we're back. And we're back. And we're back. And it is time to end the show like we do every week with Can't Let It Go.

The part of the show where we talk about the things from the week that we just cannot stop thinking about. Politics or otherwise. Asma, you first. The other week, the White House announced that those rapid at-home COVID tests are now going to be reimbursable through insurance. If you buy one from CVS Walgreens, you can fill out your low insurance form, submit it back, get the money back. And so Mara Liason, our dear colleague, asked the press secretary at the White House the other week,

well, you know, that's kind of complicated. Why not just make these tests free and easily accessible to everyone? Why not just make them free and give them out and have them available everywhere? Should we just send one to every American? Maybe. So anyhow, long story short, Mara went viral. And I am like amazed because it isn't ending. Like there are still tweets about her. Oh, I know. But basically, don't ask Mara a question that you don't want to get an answer to. Well, exactly. Mara is one of the most unshakable human beings I have ever met. And she is already thinking about whatever potential answer might be coming. So she is not the person you want to like get into an exchange like that with. So shout out to Mara, living legend.

Every time I use one of those free home tests, I called it a Mara. Gotta check, check my COVID status with a Mara. Tam, what can't you let go this week? So my can't let it go is an update on an earlier Can't Let It Go. A few months ago, I told you all about how Chuck E. Cheese pizza was putting itself up on, you know, like Grubhub and whatnot as Pasquale's fine local neighborhood pizza joint. And people were like kind of distressed or thought it was funny when they discovered that they were actually just getting Chuck E. Cheese pizza. Well, since then, my children have been haranguing me about wanting Chuck E. Cheese pizza. So about, I don't know, what was it? About a month ago, we finally ordered.

The best Chuck E. Cheese pizza in the world. Yes, the best pizza in the world, it turns out. So ordered it through Uber Eats or something. Saw that there was an option for a birthday party kit. Although it was no one's birthday, we got the birthday party kit, as one does. So we got two pizzas, chocolate cake, and a bunch of really, you know, mediocre prizes and toys. And now today, what's happening, Davis? Get Chuck E. Cheese pizza. Can you tell them about Chuck E. Cheese pizza? Why you like it? Cheesy crust. Cheesy crust? It does have cheesy crust. That's good. Inside of it. Cheesy crust is a must.

And the cheese is super good and all the toppings are super good and it's super yummy. Super yummy. Literally, I was talking about Can't Let It Go the other day and he was like, hey, what about some Chuck E. Cheese pizza? This kid still wants the Chuck E. Cheese pizza and is living the glory of his can't let it go. Alright, Sue, you're up. I have the receipts

to prove this, but this morning when our producer Elena Moore messaged me and said, hey, do you know what you can't let go of this week for the podcast? My response to her, and I will read this verbatim, was, can my can't let it go be how much Domenico hates the turkey pardon? And this is before I knew that his can't let it go was going to be the turkey pardon. As soon as known to me through all of these years.

I think I've read all of your turkey pardon stories, and maybe I'll do something for online that's like my ranking, my power rankings of your turkey pardon stories and maybe I'll do something for online that's like my ranking, my power rankings of your turkey pardon stories. Love it. Scott Detrow, let's start with you. What can't you let go of? I want to talk about the triumphant rise and inevitable fall of the debate dogs hashtag if that's okay with you yes absolutely one of as a lot of listeners know one of my side passion projects over the years is to get people to tweet pictures of their dogs watching presidential debates with the hashtag debate dogs i did this for every single one of these 16 000 democratic

debates i did it for these debates and i really wanted to go out with a bang last night. So I started pushing it early in the night. I got a lot of people to help me. And there was a beautiful two-hour window where debate dogs became trending. And thousands of people were sending pictures of their dogs on the hashtag. And I have on TweetDeck just a column up for it. And I just saw all these dogs flashing by. And it made me so happy.

But then, as always happens happens the internet very quickly ruined it because it started to get trending people started including it with a lot of bot type accounts as well in their their broader debate hashtags and it was just suddenly people in'd be like something something negative negative debate so it's like it almost it's not quite milkshake ducking but it's something adjacent to milkshake ducking it's close which of course would happen of course it's twitter yeah and it's 2020 so nothing you can't have nice things we can. I still consider it a success and a validation, and I'm excited to start debate dogs hashtags again in 2023, unless we're not on Twitter anymore by then.

Yeah. And I'll leave you with that. Let's not talk about 2023. Oh, my gosh. It is 2023, and we're only sort of on Twitter anymore, huh? I don't believe Scott is. So that was a bit of a prescient comment. Yeah. Well, first turkey pardons, we have always been able to look back on the week that was with a smile. And we hope that we've also been able to give that to you as you've listened. So thank you for helping to make this podcast what it is.

Without you, we would just be a bunch of people talking about politics in an empty room. And nobody wants that. We'd still probably be fine with it, but we appreciate that it's not that way. As a child, I could be put in a corner and I would still talk to no one but the corner. So like, yeah. But thank you for listening to me talk. Our executive producer is Mathani Mathuri. Our editor is Eric McDaniel. Our producers are Elena Moore and Casey Morrell. Thanks to Lexi Schipittel and Krishnadev Kalamer.

I'm Tamara Keith. I cover the White House. I'm Barbara Sprint. I cover Congress. And thank you for listening to the NPR Politics Podcast. A little fun little anecdote that you guys can choose to use or not. But I got this message as we were taping. Our producer Lexi Schapittle is here with us on the Hill today. And she texted me as we're taping this podcast. And she said a tour guide, because remember, there's still tons of children and students walking through the hallways, just walk through and was like, over here, you'll see a lot of reporters outside the House Speaker's office as the country is on the brink of financial collapse. Welcome, welcome all.

Thank you.