The NPR Politics Podcast - Supreme Court Will Consider Guns And Abortion Before 2022 Election

Episode Date: May 19, 2021

The court, a 6-to-3 conservative majority, has increasingly filled the legislative role abdicated by a dysfunctional Congress. And as Republican leadership balks at a commission to investigate the January 6th insurrection, it is worth considering what role an official record of the event would play in civic life. This episode: White House correspondent Scott Detrow, congressional correspondent Susan Davis, legal affairs correspondent Nina Totenberg, and national political correspondent Mara Liasson.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

Hi. It's 8 a.m. here in Paris, France. After the second shutdown of movie theaters, today, cinemas opened back up. I'm heading into the 8.30 a.m. showing of a feature-length film this podcast was recorded at. It is 1.50 Eastern on Wednesday, May 19th. Things may have changed by the time you hear this, but I'll still be having popcorn for breakfast.

Enjoy the show. I love that. Hey there, it's the NPR Politics Podcast. I'm Scott Detrow. I cover the White House. I'm Susan Davis. I cover Congress. And I'm Nina Totenberg.

I cover the courts and all things legal. Have either of you gone to a movie again yet? No. And honestly, kind of low on my priority list. But I'm planning to go to the symphony, the ballet, and the opera in the next month. All of them. I've got booked. Wow. Yeah. It's

nice to get all these updates everywhere of people getting back to it. Nina's here, so obviously we're talking about the Supreme Court a little bit today. Nina, we're in the final weeks of this year's term. But today we are talking about next year because after a year of, for the most part, avoiding controversial topics, it looks like this court is ready to take its new 6-3 majority out for a spin next year. There are some high-profile cases the court is taking up. You betcha. Next year is going to be a hold on to your seats. Whoa, let's see where they go term of the Supreme Court. So first, a couple of weeks ago, they granted a big guns case. And it

was the first time that they had accepted a challenge to a, in this case, it's a law that says you have to have a license in order to carry a gun concealed from New York. But they hadn't taken any of these gun cases for over a decade. And the reason was they, I think the conservatives who wanted to really push gun rights, weren't quite certain if they had five votes, and the liberals weren't quite certain if they had five votes to hold the line on what the courts have held so far. And then, this week, they took a humongous abortion case. And the same thing is true here, except that what you're seeing is the results of the 2016 election and the nomination of three Trump appointees to the court. Because the last one came after Justice Ruth Bader Ginsburg. That was Amy Coney Barrett.

And in a first term, everything is very uncertain. But now they don't need six votes. They only need five. That means they have one to spare. And this comes, we've talked before about it in the podcast, and another law was just signed today in Texas. You have seen a lot of states controlled by Republicans passing laws, you know, severely restricting abortion access and being pretty clear about the fact that they're doing so,

hoping to get this back up to the Supreme Court. This abortion case, from what we know about what's happened in federal courts so far, how broad or narrow would the question be that the court would be considering next year? as they want it to be. So for since 1973, and Roe versus Wade, and even the subsequent decisions that narrowed Roe a bit, the line was at basically two trimesters, women have the right to determine their reproductive destiny. After that, fetal rights come much more into play, and the states are much freer to regulate. Well, now the Supreme Court is saying, we'll reconsider that framework in its entirety. And the question is whether you can regulate on the basis of fetal development from the moment of conception, when does the woman still have a right to an abortion? And when does the state have the right to regulate? And can those regulations sort of regulate abortion rights out of existence in some states? Sue, how is this affecting things across the street in the Capitol? There was a lot of talk

during the Democratic presidential primary of getting to the point where Congress should pass laws kind of codifying some of these protections due to Democratic concerns that the courts could erode them. Has the court taking up this case changed that conversation at all or maybe gotten this onto the priority list for the House? Well, I think it's going to be one more of those issues that's going to keep igniting this filibuster debate, right? Depending on what the court rules, we don't know that. So I don't think Congress is going to do anything preemptive ahead of this court decision. But I think, you know, we don't know when they'll rule, but based on past precedent, the court tends to make these controversial

decisions late in their term. So it could be next summer before we have an answer to this question. And if this is something that would radically change the way that abortion is regulated in the country now, I think there would be huge pressure on Democrats in Congress to do something to codify the law, to change the law, to, you know, sort of establish those protections. The thing that I think is really interesting about this politically, and I always think it's worth remembering this in the context of abortion politics, is that where the base of the Republican Party is on the issue of abortion is not reflective of where the country is writ large. You know, the most people in this country believe that women should have access to abortion rights, at least in the early stages of pregnancy.

That is not a radical position. That's a pretty mainstream view. So there are Democrats who would argue that if the court were to rule in a conservative majority in a way that would radically restrict abortion rights for women, it would put the as something that could really ignite women in this country on fire ahead of an election and how they may vote. Probably, especially in those suburban districts that won the Democrats back the House and will likely be key in deciding whether or not Republicans retake it next year. Yeah. So Nina, let's talk about this other big case. You mentioned it a little bit at the beginning that it focuses on guns. Can you go into a bit more detail on what specifically, what aspect of gun law this case is going to take a gun covertly, a concealed weapon, is constitutional.

The Supreme Court ruled over a decade ago that individuals have the right to have a gun in the home for self-defense. That's very different than this. So how far can states go to regulate guns outside the home is really what this is all about. And this will be a first step or one of many steps. And it does seem to me very clear that there is a majority for very aggressive gun rights on the court now. That may or may not include the Chief Justice, but they don't need his vote. I think both of these cases, and guns in particular, are a reminder of the broader trend that we've seen, is that Congress has proven really incapable of legislating these tough culture issues. Abortion, guns, immigration is another great example of that.

And what it has done is ceded immense power to the courts to decide these questions when Congress can't do it. And that is to the great frustration of Democrats and Republicans alike. But because of the way the legislative system has worked out, because of hyperpolarization, we might not see Congress play any role in these fights. I think Congress has acknowledged that the courts are sort of the leading legislator in some ways, right? Like they impact the laws of the land more than Congress is right now when it comes to these really difficult issues. I remember there was a tweet a couple of years ago

that made me laugh that was like the new schoolhouse rock for how a bill becomes a law. It's like Congress passes a bill and then John Roberts decides what the laws of the country are. You know, there's some truth to that, that as long as Congress continues to cede its power on these tough questions, somebody's going to fill it. And in these tough questions, the court is filling that power vacuum.

All right. Well, Nina, thank you for hanging out with us on the podcast. Given the time of year that it is, I'm pretty sure you're going to be back on the podcast a lot over the next few weeks. Me too. But probably more in June. Just getting our Supreme Court stretching in place before June when it's just the entire podcast every single day. We're going to take a quick break. When we come back, we are going to talk about the fact that both Republican leaders in Congress now oppose a bill creating a bipartisan commission to look at the January 6th attacks. And we're going to talk about why the political landscape around the storming of the Capitol has changed so much. I'm Yoé Shaw.

I'm Kia Myakonitis. We're the hosts of the NPR podcast, Invisibilia. You can think of Invisibilia kind of like a sonic blacklight. When you switch us on, you will hear surprising and intimate stories. Stories that help you notice things in your world that maybe you didn't see before. When you switch us on, you will hear surprising and intimate stories. Stories that help you notice things in your world that maybe you didn't see before. Listen to the Invisibilia podcast from NPR. We're back and now we've got Mara Eliason.

Mara, I just unearthed a delightful picture of you and me covering the 2019 Biden-Harris infamous debate. We look so happy. We look really happy. That's because we were like out in the world in person with each other. We look so happy. We look really happy. That's because we were like out in the world in person with each other. We can return to that soon. Looking forward to it. So, Sue, you're still with us. And we are going to talk about a pretty interesting development today. Senate Minority Leader Mitch McConnell went out onto the Senate floor and said he opposes

a bill that would create a bipartisan commission to look at what happened on January 6th. Kevin McCarthy, the House minority leader, says he opposes this bill as well. Sue, this is a bipartisan commission, same number of Republicans and Democrats. The bill was put together by Republicans, you know, cutting a deal with Democrats. What is going on here? Why do McCarthy and McConnell suddenly oppose it? Well, Kevin McCarthy dispatched John Katko, who's the top Republican on the Homeland Security Committee, to cut a deal with Benny Thompson, who's the top Democrat. And they did what the leader asked them to do. They cut a deal. And

then Katko came back to leadership and Kevin McCarthy said, nah, I can't support this anyway. There is clearly a ton of politics going on here because of the sensitive nature of the January 6th attack on the Capitol, President Trump's involvement or role in it. He was impeached for it. Seven Republicans voted to indict him in the Senate over it. And over the sway he still has over the same congressional Republicans, especially in the House. I don't think that Republicans have any real vested political interest in an outside commission that could further illuminate or point blame at the former president for his role in this. And they think it's enough that Congress, certainly a Senate committee, is looking into the attack. And there's ongoing criminal prosecutions. And they say simply that that should be enough.

So, Mara, obviously, obviously, there are political dynamics here. You know, the president, the former president played a key role in these attacks and Republicans in trying to protect their flank, as Sue said. But on the other hand, like, it doesn't get more clear cut than a mob of people storming a building, breaking in. There were deaths. There was violence. The Capitol was under siege. What does it say about this political moment that there cannot be agreement that, yeah, maybe we should take a closer look at what happened that day? Republicans are determined to keep the spotlight off of January 6th, as determined as Democrats are to keep January 6th front and center. I can guarantee you that the footage of those attacks and the pictures of law enforcement officials, police officers being beaten are going to appear in dozens of campaign ads in 2022.

And the Republicans, many of them are closely associated with the events of that day, with people who were arrested on that day, don't want any more attention to it than they can help. solve or accomplish that the impeachment trial, which was, you know, in a way kind of a commission on what happened on January 6th, and just everybody who watched on TV didn't already tell us about what happened? I think it would establish sort of a common record, a common set of facts, and a common belief about what happened that day. And we don't have that right now. And I think that there are members in both parties, even certainly Senate Republicans who might not be loving this commission, they see a value in that. And the 9-11 Commission serves as sort of a historical book of record for something that was a very cataclysmic event in this country. I think many lawmakers see January

6th the same. This isn't about something that's going to lead to criminal prosecutions. It could potentially lead to legislative changes because it would give it the mandate, you know, they could make recommendations to Congress for what to do to prevent it again. But I think there's an argument to be made that like having a agreed upon narrative and a history of what happened that day and why it happened and how it happened, there is a common good invested there. And I think that's why we are going to see some Republicans support this. And even though this commission won't happen because Republicans won't let it happen,

I do think the fact that more than just a tiny handful of Republicans in the House are going to go vote for it means that the Republican Party is still going through an identity crisis and has really deep divisions. And we don't know how those divisions are going to play out. All right. Well, the next key data point on what happens next on this and everything else is how many Republicans still vote for this commission in the House in this upcoming vote. And we will see what that means for the Senate. I'm Scott Detrow. I cover the White House. I'm Susan Davis. I cover Congress.

And I'm Mara Liason, national political correspondent. Thank you for listening to the NPR Politics Podcast.