The NPR Politics Podcast - Meds, Money And High Drama At The Supreme Court

Episode Date: April 17, 2023

The Supreme Court will decide how to move forward after temporarily halting a lower court's order which would have restricted access to the abortion medication mifepristone, used in more than half of U.S. abortions.The issue arrives at the high court as it weathers yet another ethics controversy involving Justice Clarence Thomas. ProPublica reported that the justice has long failed to report lavish gifts from his friend Harlan Crow, a billionaire Republican mega-donor.This episode: political correspondent Susan Davis, national political correspondent Mara Liasson, and legal affairs correspondent Tamara Keith.The podcast is produced by Elena Moore and Casey Morell. It is edited by Eric McDaniel. Our executive producer is Muthoni Muturi. Research and fact-checking by Devin Speak.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

Support for NPR and the following message come from the Kauffman Foundation, providing access to opportunities that help people achieve financial stability, upward mobility, and economic prosperity, regardless of race, gender, or geography. Kauffman.org Hey, this is Dylan. I'm at the Mexico border, starting my 2,650-mile trek towards Canada along the Pacific Crest Trail. This podcast was recorded at 1.38 p.m. on Monday, April 17th.

Wow. Things may have changed by the time you heard this, but I'll still be walking to Canada. Have a great show. Good luck. Wow. That's pretty impressive. I am both impressed and horrified by that because that is not something I ever want to do. But amazing to those who can.

Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover politics. I'm Mara Liason, national political correspondent. And I'm Nina Totenberg, the legal affairs correspondent. And the legal battle over the abortion drug Mifepristone continues. I admit it's all been a bit confusing to me with conflicting court decisions. But Nina, as you predicted, it's now before the Supreme Court. This is a drug which is used for the majority of abortions in the U.S. and it is still currently available. So Nina, you predicted rightly. What happens now?

Well, that is sort of the question because the court does have options. It's nearing the end of the term. It's next week having and the following week having its last rounds of arguments. And it's only produced nine opinions so far in something like 70 cases overall for the term. So they're behind. They're way behind. And this is a very complicated question. And putting myself an emergency stay, blocking everything from happening, and send it back to the Fifth Circuit and say, you deal with it first, then send it to us, and we'll decide what to do ultimately. Well, Nina, we know that the justices,

the conservative justices, have said many, many times that they didn't think that abortion issues should be decided by unelected judges, that the people through their legislature should. But also in a couple cases that I've been reading about, Justice Alito actually criticized a district court judge for trying to overrule the FDA on a question of drug safety. Absolutely. That they are the officials, the experts with public health responsibilities. But that's exactly what that lower court judge did in this case. Justices have been known to contradict themselves before. We'll see what happens. This case actually, technically, it went to Alito because he's the judge in charge of the Fifth Circuit emergency applications.

And he was the justice who granted a temporary stay until midnight Wednesday, I think it is. And so by that time, I'm assuming the court will tell us what they're going to do next. It may not resolve anything. I suppose they could not grant the stay. I just think that's highly unlikely. Mara, politically speaking, and I try not to be hyperbolic, especially around an issue like abortion, which is so divisive, but it's hard to imagine something that has been more clearly unpopular than a position that would effectively ban mifepristone nationally. And what the court did in Dobbs when they overturned Roe, they said, we're going to return this to the states. All of a sudden, now they're considering a national ban on an abortion drug. And we've seen already what voters think about this when they go to the polls.

In Wisconsin, abortion was a big issue in that state Supreme Court race. The liberal justice won by 11 points. Kansas, a referendum maintained legal abortion. And also you see public opinion polls where two-thirds of Americans want to see these abortion pills accessible, even voters who are pro-life. One of the things that's been fascinating to me, Mara, politically about this is that Republicans won, right? Like they won the Supreme Court fight. They are currently in real time enjoying policy win after policy win. Florida, just the latest example of that, Governor Ron DeSantis, a Republican,

just signed a law further restricting abortion access. But on a political level, it's so quiet. Republicans just are not campaigning on the issue. They're not talking about the issue. And when they're asked about the issue, they deflect, deflect, deflect. Silence is deafening in this case. And it really tells you that they don't want to talk about this because this is such a bad issue for them. The problem is that the political incentives are misaligned or disaligned on abortion. The Republican base, the activist base, wants more and more restrictive abortion laws. But the majority, the vast majority of Americans were happy with a kind of middle ground.

Believe it or not, Roe was a middle ground. It allowed abortion up to a certain point. So it was legal abortion with some restrictions. And most Americans are comfortable with that. They're uncomfortable with these draconian bans or more sweeping bans on abortion. And Republicans are just on the wrong side of this because their base feels one way and it's not the same as majority public opinion. And if Ron DeSantis wants to run for president

after he gets through a Republican primary, it might be hard for him to justify why he signed a six-week abortion ban in Florida. Well, make no mistake about it. The pro-life movement wants a national ban on abortions, and they're already devising multiple ways to get that done. This is one of them that you see. And it is maybe for the younger generation, it's probably a more potent argument against Republicans than Social Security and Medicare are for the older generation. Wow. Well, that's saying a lot. Nina, what happened to let the states decide?

Similarly, what happened to this has been divisive and we need to get it out of the courts, which is what Alito said in his majority opinion in the Dobbs case. Neither of those things is happening. But Nina those things is happening. But Nina, this is one thing I've thought about in this current MIFA-Pristone case. And this is my attempt at a legal question and tell me if I'm framing it wrong. But as we've said many times, it's a conservative majority Supreme Court. And in the argument in Dobbs is that abortion is a matter for the states. So if that is the legal argument, it seems like the Supreme Court would not uphold a national ban on mifepristone if they've already ruled in Dobbs that each state should get

to decide their own abortion laws. Well, mifepristone is a federally regulated substance. The FDA regulates it for all the states. And so there are lots of questions about mifepristone that don't involve the states individually necessary that the court might have to resolve. And there are other questions like, can you travel outside a state and get an abortion? There are states now that are trying to prevent that. Or can you mail mifepristone? Can you have a telemedicine appointment from outside the state to inside the state? These are all actually, in some ways, constitutional or at least statutory questions. And just think of this. The basis for the lower court's opinions in these cases about limiting mifepristone or banning it entirely is something called the Comstock Act, which was aimed at mailing pornography across state lines. But even if you agree that the Comstock Act could apply, it's about the U.S. mail. It was passed in the early 1900s. What about FedEx?

What about FedEx? You know, what's so interesting to me is the splits inside the Republican Party on this. I mean, the pro-life movement was, as Nina said, incredibly successful. It took them 50 years, but they had a good legal strategy, get a conservative majority, a pro-life majority on the court. They did that, but they didn't win the battle for public opinion, the political battle. And now you've got Republicans who say, whoa, can we please find a middle ground here? If we go too far, we're going to keep on losing elections. But the anti-abortion activists who brought this particular case

really jumped the gun. They went all the way to a national ban. All right. We need to take a quick break, but we'll be back in a second. And we're back. And Nina, the Supreme Court is in the news for another matter, one involving Justice Clarence Thomas. This has been in the news a lot, but a bit of background. The news outlet ProPublica did some investigative reporting into Thomas's relationship with a man named Harlan Crowe. Thomas has taken luxury vacations with him, flown on his private jet, used his private yacht, and he did not disclose these gifts. So, Nina, first, what are the rules that even govern what justices can or cannot do with their billionaire donor friends? My colleague Dahlia Lithwick, I think,

has the best line of the week. She said, the rules for Supreme Court justices on disclosing gifts and disclosing real estate transactions are the same as they are for lower court judges. And you have to disclose them. Are there limits? Like, is it OK to go on a billionaire's yacht as long as you just say you did it? Well, it's unseemly, but Justice Thomas maintains that he and Crow are close friends and they vacation together and they have a relationship as friends and that he was advised early on that this is permissible because it's part of your personal hospitality. Longstanding personal relationship. And that's true to some extent. However, it's the size of these, the number of the lavish jet trips and vacations. And, you know, Congress actually has rules about this,

and people have been basically forced out or prosecuted over exactly these kinds of things. For Congressman Price, I think it was jet trips. For others, it's been real estate deals. And Thomas has one of those, too. And that's the latest. And the thing about the latest one, which is that Harlan Crowe bought a house owned by Thomas and his relatives. He says, he, Crowe says, because he wants someday to make it into a museum. And he bought it. We don't know whether it was the market price. He says it was the market price, but we have no way at the moment of checking. So there was an exchange of money here that went directly to Thomas, and it was not disclosed. Now, that is a serious thing. And there are reports today on CNN that Thomas is going to amend his disclosure

and, you know, give all these details and put it, amend his disclosure forms. But that won't change the fact that this is a recurring pattern with him. He at one time didn't disclose his wife's fairly substantial salary from the Heritage Foundation and from other conservative organizations. And Crowe legitimately says, look, I don't have cases in front of the court, but he is a Republican mega donor and he has supported efforts to move the court to the right. But Nina, you say this is a serious thing. What is the enforcement or the ability to police this? The court is a self-policing body. It is somewhat of a self-policing body. The actual statute says that the Judicial Conference of the United States, which is the conference of all of the federal judges, can refer questions like this to the Attorney General if they think that the individual has gone over the line. Now, I think that's more than highly unlikely. I just can't imagine that happening. But this puts me in mind of the case of Justice Abe Fortas,

back in the 1960s, who was nominated to be chief justice, didn't make it, so stayed on as a Supreme Court justice, which is what he was. And then a reporter from Life magazine found out that he had accepted a retainer from a friend of his and former client who was a stock manipulator. Now, Fortas never actually kept the retainer. He returned it when an intern said to him, this really doesn't smell right. So he returned it. He never actually got any money. But the Nixon administration had just come into power. And they let it be known to Chief Justice Warren that this was not going to go uninvestigated. And Warren, feeling that the reputation of the court, the status of the court, the legitimacy of the court was at stake, went to Fortas and told him he really had to resign, had to step down. And Fortas did that. I just don't think, however, that Chief Justice Roberts has that kind of internal acceptance anymore. And Mara, I mean, beyond how the justices see each other, the country sees the court very differently today than it did in the Fortas era.

Yeah, it doesn't see the court as merely ideologically moving to the right. It sees the court as yet another partisan, hyper- right. It sees the court as yet another partisan, hyper-partisan institution like everything else in American politics right now. I don't think anything will happen to Clarence Thomas, and most people will just shrug their shoulders and say, yep, we knew it. It's all crooked. Is both of your takeaway from this that ultimately there's nothing really to be done here. I mean, there's no accountability body over the court. The chief justice doesn't have the same kind of stature standing with his colleagues. You know, Congress can only do so much when it comes to a separate branch of government.

I mean, you know, Clarence Thomas is going to update his financial disclosure reports, but does it just end there? You know, I never say never about these things. Stories like this can have a snowballing effect to the point where something has to be done. At the moment, we're not there yet. But there's been an awful lot lately. And this kind of a story, if there's more out there, you know, it may not stay hidden. And that's the only thing that would, I think, would change it. All right. I think that's it for us today. I'm Susan Davis. I cover

politics. I'm Mara Liason, national political correspondent. And I'm Nina Totenberg. I cover the Supreme Court. And thanks for listening to the NPR Politics Podcast.