The NPR Politics Podcast - Supreme Court Will Consider Abortion, Guns, Religious Liberty Cases This Term

Episode Date: September 30, 2021

An empowered conservative majority on the Supreme Court will consider a number of social and cultural issues at the heart of American life, including abortion access, gun rights, and religious liberty. The Court has stacked its docket with fractious issues even as its justices publicly mourn the intuition's bygone reputation as above the political fray.This episode: White House correspondent Ayesha Rascoe, national justice correspondent Carrie Johnson, and legal affairs correspondent Nina Totenberg.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.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

Hey, this is Tamara Keith. I cover the White House. This is Miles Parks. I cover voting. And this is Elena Moore. I'm a producer on the podcast. And we just ran three miles in the Capitol Challenge race. It's a running race. There were members of Congress here. There were members of the judicial branch here. There were members of the media here. And most of them ran faster than me. And me. And me.

But we survived, and now we're going back to our day jobs, and this podcast was recorded at... It is 1.29 p.m. on Thursday, September 30th, 2021. Things may have changed

by the time you hear this. All right. Here's the show. Do-do-do-do-do-do-do-do. I recognize those voices. I'm impressed. Three miles is far. It is very far.

I don't run anywhere. Me neither. Except to get a story. Yes. And when I've done that, I end up very winded. So congrats to our colleagues. Hey there, it's the NPR Politics Podcast. I Ayesha Roscoe. I cover the White House. I'm Keri Johnson, National Justice Correspondent. And I'm Nina Totenberg. I cover the Supreme Court. The Supreme Court term begins next week. So let's talk about the makeup of the court right now and why we expect this term to be a big deal.

There is a 6-3 conservative majority, and it seems like at this point, that majority is ready to make their mark. Do you feel like that, Nina? Well, they've teed up a list, a menu, as it were, of big social issues, massive social issues, that are on the court's docket this term to be decided. And that includes abortion, guns, potentially affirmative action in higher education, some big religion cases, even a campaign finance case. I mean, this is, I think I wrote this for sometime later this week. This is a humdinger. A humdinger of a term. One thing about this court is there is a concern that has been talked about over and over again about the court being too political or being viewed through a partisan lens that it has become so political that it has in some ways diminished the court. That is something that justices are trying to fight against, right? Yes, and the chief justice, John Roberts, has clearly been worried about this over the last few years, as the court has gotten more and more and more conservative now with three Trump appointees added to three other conservative justices, of whom those last three, two of them are, I guess you'd call them hardcore. The chief is certainly a

conservative justice, but he occasionally disappoints the right. I've never covered a court like this before with this kind of a menu of cases. It's always been far more mixed. You couldn't just predict pretty easily how people were going to vote on major questions. And that is no longer the case. As Irv Gornstein, who's head of the Georgetown Supreme Court Law Institute, said that we may have reached a tipping point, and a tipping point where the public no longer believes these assurances, that these folks aren't partisan, when their philosophies so perfectly gel with partisan objectives. And it's been predestined that way, Nina. I mean, the very way that these judges are selected by White Houses and confirmed by the Senate

seems to factor in, if not explicitly how they would rule, some very strong hints about where they view religion and abortion and a lot of these other issues. That's true. And in fact, in the Trump White House, they virtually farmed out the choices for lower court and the Supreme Court. They farmed out the options to the Federalist Society, the very, very conservative Federalist Society. No White House has ever done that before. So we did a whole podcast about abortion in the court yesterday, and everybody should go and check that out. But, Nina, just briefly, like that is one of the major things that's on the to-do list for the court this term. Well, on December 1st, they'll hear arguments in a case testing whether Mississippi's ban on

abortions after 15 weeks is constitutional. That is in direct conflict with Roe versus Wade and all the decisions by the Supreme Court since then that have upheld the notion that women have a constitutional right to terminate a pregnancy as, and the Texas law is at six weeks. Is it possible that the court could hear something on that Texas law that is six weeks? It's possible. I think the court probably doesn't really want to. It refused to intervene to block the law from going into effect. That decision was not to intervene, five to four with the chief justice voting with the court's liberals. The five other conservatives said, no, this isn't our business at this moment. That said, it soon will be because now there has been an abortion after six weeks

that a doctor performed knowingly. He has now been sued under the terms of the law by individuals who want the bounty, the $10,000 that they can win for every violation of the law. And that could very quickly get to the Supreme Court. Whether it does it in time to be heard this term, it's unclear. Carrie, I know that you've been looking at, you know, some Second Amendment cases. There's supposed to be a case from New York that's going to the Supreme Court. What's the issue there? Yeah, this is a real big one, Aisha, because the court really hasn't addressed the Second Amendment and guns head on since about 2010, to the disdain really of Justice Clarence Thomas and Justice Neil Gorsuch, who basically have been calling on the court to take up a gun case. Well,

this is one of those instances where the departure of Justice Ruth Bader Ginsburg and the arrival of Judge Amy Coney Barrett has made a real difference. Barrett in the lower courts on the Seventh Circuit was very pro Second Amendment. She has a lot of writing about that dating back to her time as a law professor at Notre Dame. And this case in New York revolves around the state's licensing regime. This involves carrying concealed handguns in public. And New York makes it pretty hard to do that. People have to show they have a real need. And now that law is being challenged. And it's being challenged in a way that could lead this court to make some more important advances on the Second Amendment.

The court, for instance, has never actually said we have a right to carry a handgun outside the home for protection. The court could decide to go that far or go less far. But given the makeup of the court and the way the justices have spoken and written about the Second Amendment in the past, this is going to be a real big case, I think. All right. Well, let's take a quick break. And when we get back, we'll talk about some of the maybe less high profile cases that the court has taken up. And we're back. Carrie, Nina, what are some of the other less talked about cases you're watching this term? Let's start with you, Carrie. You know, one of the things I've been watching is what the court's going to do with respect to

the coronavirus pandemic. They had a number of orders during the pandemic about respect for religious liberties and religious practice, in some cases, overturning some localities in some states, limits on the number of people gathering in person. Well, now we have this vaccine mandate from President Biden. Ayesha, I know you've covered that a lot. And one of the things that's already kind of getting teed up is that the Occupational Safety and Health Administration, OSHA, says it's writing a rule that would apply to private employers with 100 or more employees. Already two dozen Republican state attorneys general have written to the Biden administration

threatening to sue as soon as that rule comes out. I have a feeling that's going to get to the Supreme Court, although it's not clear to me whether it's going to be tested weekly in order to get in, those of us who will be covering the court, and so will the lawyers. And otherwise, it's closed to the public except for court staff and the lawyers and reporters. Nina, that's so interesting. So I wonder where they're going to go. I mean, they have their own rules for themselves, and I wonder where they're going to, I mean, they have their own rules for themselves. And I wonder where they're going to come down on the rules for everybody

else. That's fascinating. Well, with the age of a lot of these justices, I'm sure they would be probably particularly concerned about catching the coronavirus. You know, just throwing that out there. But Nina, what are some other cases that you're looking for? Well, this is the Politics Podcast, so I guess I should say that the court this week accepted a case, a campaign finance case brought by Senator Ted Cruz. Wow. He has challenged the Federal Election Commission rule that there's a limit on how much candidates can be reimbursed for personal loans to their campaigns. So far, that's been thrown out by the lower court as a violation of Senator Cruz's First Amendment right of free speech. And we'll see what the

Supreme Court does with it. Nina, I got to ask you, do you think Ted Cruz might try to argue this case himself? That's exactly what I was going to say, because he has a history of this, right? Yeah, he was the Solicitor General at one point, I think, of Texas. But certainly he's argued cases in front of the Supreme Court. Something that, you know, people have been looking about or talking about, obviously, is Justin Stephen Breyer and whether he will be stepping down. I know that you have talked to him, Nina, and he hasn't made that clear. He's still making his decisions. But there is still a lot of talk about if he does step down, who would replace him and what would happen. Is there any thought of that happening anytime soon? Well, we know that President Biden pledged during the campaign to name an African-American woman to the court if there's a vacancy.

And I would say that the two leading contenders are a judge now on the D.C. Court of Appeals promoted to that position by President Biden from a district court judgeship, Katonji Brown Jackson. And then the other leading contender is probably Leandra Kruger, who served for many years in the Solicitor General's office arguing cases in front of the Supreme Court and has for some time now been on the California Supreme Court. And I know that Democrats are hoping that if Breyer is going to step down, that it will happen before the midterms, because with the Senate being in such a narrow majority or the narrowest of majorities for the Democrats, they don't know what's going to happen after the midterms. And so they want to to be in control of this, right? Oh, that's definitely true. But this is not something that Stephen Breyer doesn't know. He's made very clear in the interview that I did with him earlier in September, that he has not made up his mind about retirement. But I would not be surprised if he announced that he's going

to retire at the end of this term and that he makes that announcement or sends a letter to the president anyway, even though if he doesn't tell us, sometime early next year, early 2022. And meanwhile, the White House keeps nominating federal judges. Today, we got word that the Biden administration is nominating Dale Ho, who's a really nationally, if not internationally renowned voting rights expert at the ACLU to a federal district court judgeship in New York. So he was one of, I think, 10 or so federal judges nominated today by the Biden administration. All right, well, let's leave it there for now. I'm Aisha Roscoe. I cover the

White House. I'm Carrie Johnson, national justice correspondent. And I'm Nina Totenberg. I cover the Supreme Court. And thank you for listening to the NPR Politics Podcast.