The NPR Politics Podcast - Roe Is Done — Here Are The Next Supreme Court Cases To Watch

Episode Date: October 7, 2022

The high court, which now includes Biden nominee Ketanji Brown Jackson, will hear cases that will determine the future of affirmative action, voting rights and election integrity.And the president announced that he will pardon people convicted of simple marijuana possession under federal law and D.C. statute. That will impact far fewer of people compared to the number convicted on state charges, but the White House says the administration hopes local leaders will follow Biden's example.This episode: White House correspondent Tamara Keith, senior political editor and correspondent Domenico Montanaro, national justice correspondent Carrie Johnson, legal affairs correspondent Nina Totenberg, and podcast producer Casey Morell.Learn more about upcoming live shows of The NPR Politics Podcast at nprpresents.org.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.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey Atlanta, it's Asma Khalid from the NPR Politics Podcast. We are going to be live on stage doing our show Thursday, October 20th at 8 p.m. at the Buckhead Theater. And we'd love for you to be there. Ticket info is at nprpresents.org. Thanks to our partners, Georgia Public Broadcasting, WABE, and WCLK Jazz. See you there. Hi, this is Mandy in Columbus, Ohio. I am waiting to meet Arnie, your former editor, for dinner at he and Kel's first stop on their epic road trip move to California. This podcast was recorded at... This is like trolling in the most tragic way. We are so sad that Arnie left us to go to KCRW. I love that she's getting to spend more time with Arnie

than we are. All right. This podcast was recorded at 1238 p.m. on Friday, the 7th of October. Things may have changed by the time you hear this, but I'll still be happy I got to see good friends. OK, enjoy the show. And they are the best people. Yes, truly. Hey there. It's the NPR Politics Podcast. I'm Tamara Keith. I cover the White House. I'm Domenico Montanaro, senior political editor and correspondent. And I'm Keri Johnson, national justice correspondent. President Biden announced this week that he plans to pardon individuals with past convictions for simple marijuana possession.

This would apply to anyone with a federal conviction. Too many lives have been upended because of our failed approach to marijuana. It's time that we right these wrongs. So, Carrie, we did emphasize that this is federal convictions. Can you tell us who would be affected? What does this mean? Is this a big deal? The White House says the immediate impact will be for about 6,500 people who were convicted in the federal system for simple possession, and several thousand more who were convicted in Washington, D.C., where this offense is prosecuted federally. No one is currently sitting in federal prison right now based on this charge, though. So it's not like somebody's inside prison who's going to get out

right away. And of course, President Biden said one of the reasons he took this step was because of racial disparities in the system that even though white people and people of color tend to use marijuana at the same rates, African Americans and Latino people tend to be prosecuted more harshly and more often for marijuana. And so this will have some kind of racial justice impact. And that is important. But I would like to say that overall, the vast majority, the vast majority of marijuana offenses are prosecuted by state and local officials, not by the federal government. Well, and President Biden did also call on state and local officials to take similar moves. But he's the president. He's not the king. And so they would have to choose to do that on their own. Domenico, one question I have for you is the president announced this in sort of a low key way. They put out a video on Twitter. He didn't give a big policy speech or anything. But this is a campaign promise. You know, I had a Democratic strategist text me immediately after this and said,

first student loans, now this. Because, you know, when you think about what Democrats need, who Democrats need to go out to the polls to do well in the midterms, you need young voters, you need black voters. And right now, you know, this announcement was made a day after our poll, the NPR Marist poll came out showing that black voters and young voters were the least likely to say they would poll last year, which is stunning and a huge turnaround from 2001, for example, when only 34% of Americans said so. And when you look- You know what? There are very few things that 68% of Americans agree on, like even maybe not the color of the sky. Right. And even 50% of Republicans said that they're in favor of marijuana legalization. Now, what's changed in the last 20 years is that 37 states have some form of marijuana that's legalized in their state. There's been a track record for this, for how it's played out.

And I think that a lot of people have just shifted their views on this. And when you look inside those numbers, when we talk about young voters in particular, more than three quarters of young voters say, then we're talking 18 to 34, say that marijuana should be legalized. Carrie, I want to have you address another aspect of the president's announcement, which is that right now marijuana is classified as a Schedule I drug under the federal drug classification system. It's in the same club as heroin and LSD. But Biden is now asking the Department of Justice and the Department of Health and Human Services to review this. Could that be a more significant ultimate outcome than,

you know, the 6,500 people and the number in D.C. that are getting this pardon? It absolutely could be, Tam, but it's not clear that it will be. Remember that for these things considered Schedule I substances, that means the government thinks there's no medical benefit to them and that they can possibly be very harmful. So right, heroin, LSD, and other drugs of that sort. Marijuana is currently in that category. And in order to get it out of that category, the Department of Health and Human Services needs to find there's a potential benefit to cannabis and that there's enough research to make that finding. And then this issue goes to the Drug Enforcement Administration for its review, and then it goes to the Attorney General.

So this could take not just months, but potentially years. And the last time the administration reviewed this was in the Obama era, back in 2016. I wrote about it at the time. The head of the DEA at that point, Chuck Rosenberg, a longtime federal prosecutor, said that he was giving enormous weight to conclusions by the FDA that marijuana has no currently accepted medical use and treatment and can be highly vulnerable to abuse. So this is right at the end of the Obama administration six years ago that the administration considered rescheduling. It didn't get across the finish line then. The question is whether Biden wants to get it across the finish line now.

And it's also interesting that this is President Biden, who in a way has evolved on this issue. Yeah, I can't tell you the number of stories I did back in the Obama administration about then Vice President Biden and his role in passing legislation in the 1990s that increased penalties for drug crimes and took any number of other steps to incentivize more people in prison. So this is a step far back from that type of a Senator Joe Biden approach and one that advocates have been pushing him on for decades now. I want to turn to the reaction that this move is getting. Our colleague Eric Westervelt spoke with Eric Altieri about this. He's executive director of NORML, the National Organization for the Reform of Marijuana Laws. And here's what he

said. Today was a huge step in the right direction and really a historic move to see coming from a sitting president of the United States. Yeah, I mean, I guess it's notable that a president actually did this. I think Kerry throws the right amount of cold water on this. The fact that there aren't very many people who are charged federally, you know, on simple possession. But it is a way, again, with the bully pulpit that a president can push an issue. And in terms of Republicans, I found the response to be relatively muted. The only person who I can really point to is Senator Tom Cotton of Arkansas, who wrote in the middle of a crime wave and on the brink of a recession, Joe Biden is giving blanket pardons to potheads, many of whom pled down for more serious charges.

This is a desperate attempt to distract from failed leadership. You know, another voice that came out raising concerns about this policy is Asa Hutchinson, the governor of Arkansas, right? And the reason I was paying attention to him is because he used to run the DEA, and he seems to still have that hat on. He said yesterday that the president has waved the flag of surrender in the fight to save lives from drug use. And he basically said, maybe it's okay to consider clemency for drug offenders. He has. But Hutchinson thought this should have been done on an individual basis instead of President Biden granting this clemenization is on the ballot are in red states. I'm talking about Arkansas, by the way, home to Tom Cotton and Asa Hutchinson, as we said, as well as Missouri, North Dakota, South Dakota and Maryland, where it's likely to pass pretty easily. But, you know, culturally, for those things to be on the ballot today, not something you would have seen a long time ago. All right. Well, Domenico, you stay here. Carrie, we are going to let you go. Thank you. Have a great weekend, everybody. Yeah. Thanks, Carrie. And we're going to take a quick break when we get back.

The Supreme Court with Nina Totenberg. And we're back. And we're joined by legal affairs correspondent Nina Totenberg. Hey, Nina. Hey there, Tam. So I hope you had a good summer break because it's over. It is October. It is October and the Supreme Court is back in session. And, you know, as we all know, last year, last term was quite consequential with the new larger conservative majority issuing a lot of really huge decisions, including overturning Roe versus Wade.

Three months have now passed. They're in a new term. And there are a bunch of new cases that hit on really significant issues for the country that could prove to be just as monumental and just as divisive. So, Nina, what are you watching for this term? Well, in truth, I don't think anything is as divisive and monumental as abortion. If there could be a term that would match it, this is already one of those terms. They don't seem to have lost their appetite for hot button issues at all. So on the chopping block, this term is affirmative action in higher education, with the justices reconsidering four decades of decisions that until now have allowed

colleges and universities to use race as one of many factors in college admission decisions. Also on the docket is a major LGBTQ case, a huge election law case, and cases involving voting rights, clean water regulations, the future of Section 230 of the Communications Decency Act, which is the thing that gives all the social media platforms immunity from being sued. So it's a big deal. And lots of other things, too. So we will not be able to dig in on every single one of them, but we're going to tackle some of the biggest ones. Before we get there, though, let's talk about the fact that there is a new justice on the bench this week that Justice Kagan said was sort of the best example of American democracy. And she said during the argument, if we get rid of this last part, what's left?

Well, the issue is that in Alabama, more than a quarter of the folks who live there are African American. And there are seven congressional districts, and they have one in which they're pretty much, most of them are packed into that one district, and the rest of them are quite deliberately, I claim the plaintiffs in this case, spread out across the rest of the state so that their voting power is diluted. That's the claim. So African Americans are underrepresented in the congressional districts because of the way they're drawn. That's the argument. That's the argument. And the state of Alabama maintains that drawing districts, as long as they're compact districts that make some sort of rational sense in terms

of counties, etc., you shouldn't even be considering color. And Ketanji Brown Jackson really went after that assertion, talking about the 14th Amendment guaranteed equal protection of the law and how and why it was put into place after the Civil War. And when I drilled down to that level of analysis, it became clear to me that the framers themselves adopted the Equal Protection Clause, the 14th Amendment, the 15th Amendment in a race-conscious way. I don't think that the historical record establishes that the founders believed that race neutrality or race blindness was required. But as we know, right, the Supreme Court has kind of walked this line between politics and race when it comes to the Voting Rights Act and when it's OK to redistrict, for example. And they've said politics is OK for a legislature to consider. Race is not. But those two things are pretty closely intertwined when you have 80 plus percent of black voters voting Democratic. That's true. But this is a case involving the Voting Rights Act and a provision of that law that the Supreme Court originally said you have to prove intent to discriminate. And Congress came back right after that and by

huge majority said, no, you don't. There are places in which there is such polarized voting. And when that occurs, you have to make an affirmative effort to make sure that minorities are adequately represented. And that is what's at issue in this case. And Domenico, what are the stakes then with this case in terms of elections? I think we've already seen it since the kind of gutting of Section 5 in the Voting Rights Act, where you used to have the Department of Justice being able to go into districts to look at voting, to examine it, kind of the way you would in another country where there are monitors and observers. That doesn't happen anymore. So I think that we've already kind of seen the political consequences and the voting consequences. And I think you have a lot of people who are talking about that, especially in the black community, about access to voting and about the appropriateness of voting. And you wonder, you know, what this is going to mean as far as restricting access even further.

And I guess I should say that Chief Justice John Roberts, who in the abortion case was sort of took a more restrained and one might say moderate view. He's not like that in voting rights cases. He hated the Voting Rights Act when he was in the Reagan administration, he tried to get President Reagan to veto it. Reagan signed it anyway. And he wrote the lead case that you referred to, Domenico, striking down a key element of the Voting Rights Act. Justice Alito wrote one last year, neutering, I guess one would say, another provision. This is the third in a trilogy. And, you know, it is the dismembering of the Voting Rights Act. Let's move on to another case that also deals with race-related issues,

in particular, affirmative action at Harvard University and the University of North Carolina. What's that one about? Well, it's really an attempt to reverse about 40 years of precedent in which the court, usually by a five to four vote, said to universities, public and private, you can take race into account as a factor, just as you would giving a preference maybe to a legacy student or somebody who was a really good musician. You can take race into account. You can't use quotas, but you can take it into account. And John Roberts and I think most of these other folks on the conservative side, including, I should say, Clarence Thomas, who's African-American, really hate that. And they're going to try to find a way to get rid of it right now.

Well, never mind politics. I wonder what it's going to mean for workplaces. I mean, if they do go forward with this kind of thing, you know, workplaces are trying to diversify their workplaces throughout the country. And if race is not allowed to be a factor, what kind of lawsuits does this open up other corporations to? Quickly, and I realize asking you to go quickly on this one may not be possible, but there's another case, this one out of North Carolina, related to something called the Independent State Legislature's theory. So I guess let's start with what is this theory? The theory in its most extreme form, and there are other versions of it, basically says the state legislature under the Constitution determines the time, place and manner of elections. And courts can, as the most extreme theory says, that means nobody else can play a role in this. Not local officials creating rules and definitely not courts.

They can't intervene in this. This case is trying to take courts out of elections, take out sort of the independent arbiter. Kind of gives more power to state legislatures, which is something that a lot of conservatives want and don't want courts to be able to intervene to say, actually, what you're doing is against the state constitution or the federal constitution to say that we need to change what was done. They want state legislature to have a final say. Which at a time, I mean, it's not that the judiciary is beloved and trusted widely by all Americans at this point, but partisan state legislatures are probably even less trusted as an independent decider of whether something is legal or not. Well, what state legislatures usually do is protect their own behinds.

And if the courts aren't there to sort of keep them on the straight and narrow, the argument goes, you've lost your check and your balance. Domenico, do you think that this could change the way elections are administered? I mean, certainly could. I mean, states run these elections. They run their elections aside from the fact that the federal government says when the election is going to be held. So it certainly could. All right, Nina, thank you so much for joining the pod. We always learn so much when you join. All right, we're going to take a quick break. And when we get back, it's time for Can't Let It Go.

And we're back. And it's time to end the show like we do every week with Can't Let It Go, the part of the pod where we talk about the things from the week that we just cannot stop talking about, politics or otherwise. And joining us is producer Casey Murrell. Hey, Casey. Is this your first time on this side of the glass for our pod? For the pod, yes. This is my first time in this environment seeing you both across without a pane of glass separating us.

Is the air different in here? Rarified. Sure, sure. All right, well- It's a lot of hot air if you ask me. Oh. Yeah. Indeed. As part of our hazing ritual. Casey, you go first.

OK, well, what I cannot let go of this week, I want to take you both back for a moment. We're going to step back in time. The halcyon days of January 2001. Do you remember a television show called The Mole. Yes, of course. Anderson Cooper was the host. Yes. Anderson Cooper hosted a reality television show on ABC called The Mole before he went back into journalism. And my can't let it go this week is that The Mole is back. Oh. The Mole, which was, if you're not familiar, it's a show where there's a group of people. They're working together as a team to solve different kinds of brain puzzles, teasers,

that kind of thing. Every puzzle that they solve correctly, they earn money for a pot of money that somebody gets at the end. But one person is the mole, and they're trying to sabotage the group as they go and make sure that nobody wins anything. And as a kid, this was a show I was obsessed with. I thought it was the greatest thing ever. I'm probably one of like seven people who has it on DVD. Whoa, you have it on DVD. I was very into it, but I did not put money into my devotion. Well, it is now back. It's on Netflix. Netflix has revived it as a new standalone series that debuts today with another journalist at the helm, Alex Wagner of MSNBC fame. She's like very busy these days.

She's doing everything. And apparently also now hosting the revival of The Mole, which as soon as we are done here, I'm going straight home and mainlining all of those episodes. Domenico, why can't you let go of? I can't let go of, you know, it's October and it's the baseball playoffs. Yeah. For some teams. know, it's October and it's the baseball playoffs. And frankly, I was going to say as a Mets fan, I can't often say that my nerves are shot because of October baseball. Normally we're sitting at

home watching the Yankees and being razzed by our family members who are Yankees fans, but that's not the case this year. And we are in the playoffs and the difficulty here though, what I really can't let go of is the number of people this week who have tried to say that the Mets had a, quote unquote, collapse, including Republican Congressman Jim Jordan of Ohio, as well as an MSNBC host whom I will not name. And this is because the Mets were in first place all season and then in the last week got swept by the Braves and wound up in second place, quote unquote, even though we have the same exact record because we lost the tiebreaker against the Braves. First of all, it's disappointing end to the season, unquestionably.

It makes our path to the World Series much more difficult. However, it is not a collapse. We won 101 games. It's the second best in Mets history behind the 1986 team that everyone's written and talked about. So, you know, I have made my peace with this, but it's not a collapse. Give me a break. Yeah, I will accept your premise that it's not a collapse. Yeah, what are you going to do?

Sometimes you win some, you lose some, right? I mean, there were 10 and a half games ahead of the division. Correct. But that was in like May when the Braves were playing terribly. And then suddenly the Braves, you know, in fairness to the Braves, they went on an amazing run and like played better than any team in baseball. So, you know, good for them. They did it by winning. The Mets did not collapse.

They were still like multiple, multiple games over 500 in that same stretch. I think we've established that you can't let go of the Mets. I really can't. I've watched every pitch this year and I'm very nervous that they're just going to blow it in the first round against the Padres. Tam, what can't you let go of this week? Mine is also baseball related. So, Aaron Judge. Heard of him?

Yeah. Nice young man from the New York Yankees. Can't talk about the Mets without talking about the Yankees. I'm so sorry. So this nice young man from the New York Yankees broke a record. He made history. He hit his 62nd home run this season. But what I really can't let go of is that he broke an American League record and they keep saying, and he broke the American League record for home runs

because they just don't want to talk about the fact that there are other people who were in the National League who used a lot of steroids. Allegedly. Not so allegedly anymore. Yeah, they definitely used steroids. They used performance enhancing substances. And they hit a lot of home runs. And it was like a really exciting time to watch baseball. All I know is this with Aaron Judge.

Good for him. Two things. My dad is a big Yankees fan. Very concerned that a California kid who's got the contract year of all contract years is going to go sign with like the Giants next season. That would hurt. And number two, the Yankees were 99 and 63 this year. Seven games in first place, which is great. You know, the Mets won 101 games, I'm just going to say.

Just can't let it go, can you? Can't let it go. I don't get to talk trash. You have legs to stand on to talk trash. Often, this is one year. All right, we're going to leave it there for today. Our executive producer is Mathani Mathuri. Our editor is Eric McDaniel.

Our producers are Casey Murrell and Elena Moore. Our intern is Catherine Swartz. Thanks to Krishnadev Kalamar, Brandon Carter, and Lexi Schipittel. I'm Tamara Keith. I cover the White House. I'm Casey Murrell. I cover politics. And I'm Domenico Montanaro, senior political editor and correspondent.

And thank you for listening to the NPR Politics Podcast.