The NPR Politics Podcast - What Will The Courts Look Like Under Joe Biden?

Episode Date: December 31, 2020

President Trump reshaped the federal judiciary and made three lifetime appointments to the Supreme Court. How will that legacy play out under a Joe Biden administration?In this episode: political correspondent Scott Detrow, 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 there, it's the NPR Politics Podcast. I'm Scott Detrow. I'm covering the Biden transition. I'm Carrie Johnson, National Justice Correspondent. And I'm Nina Totenberg, Legal Affairs Correspondent. And, you know, we've been having these conversations lately about what various policy areas could look like next year once Joe Biden's in the White House. And we're going to do that today with the courts, with the Supreme Court. Obviously, there's no instant shift the moment Biden becomes president in terms of what the Supreme Court is dealing with and looks like. But I think it's still a good conversation. And Nina, there's so much we don't know, but let's start with something we definitely do know.

What is on the court's docket over the next few months? And what is the court going to be focused on in the early days of the Biden administration? Well, we haven't gotten any major decisions, but we have had some of the cases argued. For example, a huge religion case that tests whether the city of Philadelphia's foster care program can exclude as a contractor, in this case, Catholic charities, because they discriminate against gay and lesbian parents who are wanting to foster children. And it's a really big deal, obviously, if this is discrimination against a religion, which I suspect five or six members of the court think it is, then what other kinds of limits can be put on contracts that state and local governments put into effect? There are a lot more cases coming up. Probably abortion may get to the court, but only in terms of the, of RU 486 and whether, what kinds of regulations can be opposed on that. But we don't, you know, we're just seeing the very beginning of a six to three court majority, conservative court majority that is likely to be more conservative than any court since the early 1930s.

You know, Nina, one of the things that's going to change pretty soon is that Joe Biden is going to be the president. And my understanding is that his officials at the Justice Department could take a look at the array of cases before the court and maybe change their minds about some things. Do you expect a lot of change there? Yes, I think they'll probably wash out a bunch of the Trump policies that are at issue in some of the cases before the court, and that are clearly within the purview of the Biden administration by policy and by executive order to abolish. And probably there are a lot of members of the court who will be pathetically grateful for that, that they don't have to make excursions into areas that they

wouldn't have otherwise. So I would expect some big cases to wash out that way. Now, one of the cases that had gotten a ton of attention because Biden talked so much about it in the run up to the election was that case on the Affordable Care Act. Any sense when we could get that ruling? It was argued, you know, quite early in the term. And the sense I got at the oral argument was that the lower court had just gone too far when it said that you could abolish the entire Affordable Care Act because the individual mandate, otherwise known as a tax penalty, is no longer there. You know. I don't know how this is going to turn out, but it will be huge if the court were to abolish the entire ACA. I mean, it would be gargantuan. I just saw that

in the last quarter, 8 million new people signed up for Obamacare because, of course, they've lost their jobs and their coverage, their insurance coverage, medical insurance coverage. So that's a huge case that will come down by the end of the term. And that's obviously something that would profoundly shift the legislative focus of the Biden administration if part of that law were thrown out and Biden had to go to Congress and say this needs to be fixed right away, because, of course, he would do that. The other question I have thinking about the election, you know, obviously we have this unprecedented situation of a high profile court changing confirmation in the final days of the presidential race. There was so much talk over how Barrett in the six to

three majority would shift the court for generations to come. Obviously, that's going to be an enormous storyline. But I wonder, a few months into her time on the court, do we have enough evidence yet? Have we seen trends where you can point and say, this is happening as expected, or this is happening a little differently than we might have anticipated? I would say that, you know, she really is a newbie, and she hadn't even been on the Court of Appeals all that long. So my sense, and this is just a sense, is that she's trying to be a team player. She doesn't go out on a limb. She doesn't write separate concurrences or dissents in cases that don't require it or emergency orders where there's an unsigned opinion for the

court and sometimes other justices say, well, I would have gone further or I don't like this. She hasn't done that, by and large. So she's, I think, so far been a team player, but it's really such early days. All we can tell is that she is pretty much the conservative she was advertised to be, and that she has participated in cases involving the election. She did not recuse herself, as some people, including a lot of Democrats, thought she should have done. All right, so a lot of things to look for being issued by the court. We're going to take a quick break. When we come back, we will talk about the ways that the Biden administration might or, you know,

maybe might not have a chance to shape both the Supreme Court and lower federal courts. This message comes from NPR sponsor, AT&T. There's a lot that's different about this school year, but one thing that hasn't changed is AT&T's commitment to education. They're focused on keeping students and teachers connected to learning.

It's why AT&T has connected over 200 million students with tools and technology for distance learning. Learn more at att.com slash remote learning. At Planet Money, we are also grappling with what's going on in the world. We just don't know, and you're still going to have to decide. So we call up economists like Emily Oster. It's like we're fighting the pandemic by having a bake sale or something. I mean, all due respect to bake sales. Listen and subscribe to Planet Money from NPR. And we are back. And before we talk about how a Biden administration would try to change the scope and the look of federal courts,

just worth stressing one last time just how profoundly the Trump administration and the Republican Senate have really massively left their mark on the federal courts over the last four years. Boy, Scott, you got that right. I mean, three Supreme Court justices, but beyond that, even over 200 lower court judges, 54 on the Court of Appeals and almost 175 on the district court level. These are all lifetime tenure jobs in some instances and a lot of instances. In fact, Trump elevated people who are in their early to mid 30s to these jobs. So they are going to be around by the time your kid is old enough to drive and go to college for sure. And there is a massive question that we cannot answer right now. So we'll just note it and then keep talking around it. If if Republicans win these Georgia runoffs and they maintain control of the Senate. There is an open question of whether Majority Leader Mitch McConnell would bring up a vote for a Supreme Court justice or

even lower federal court openings that Biden nominates. We don't know the answer to that because we don't know who's going to control the Senate. But how many opportunities would Biden even have to fill federal judgeships right now? Like, did Trump and McConnell just fill everything possible? Are there even openings at the moment? Obviously, people would retire, but what are we looking at right now? I think they were confirming judges last week still. Yeah, they were. And they may try to do it again in January, depending on what happens with the Georgia

races. I looked and there seemed to be about 40, 45 vacancies. Almost all the federal appeals court judgeships are filled, but one or two. And then some lower court judgeships. The question is how many judges currently on the bench will decide to retire or take senior status next year? And will Biden succeed in really ramping up the judge machinery and getting through to Mitch McConnell and getting those judges confirmed? Well, Carrie, we know what

McConnell did in the past. I mean, even the seat that now Justice Barrett filled was kept open for, I think, at least for a year or something like that, so that the Republicans could fill it instead of letting the Obama nominee go through. And I don't, I don't know what your sources are telling you about what McConnell might do. You know, he's been a pretty much take no prisoners guy when it comes to federal judgeships. He basically said that a lot of the things the Trump administration accomplished will go away overnight or nearly overnight, but the judges are an accomplishment

that will last most of the rest of his lifetime, surely, and be Mitch McConnell's legacy, too. You know he plays hardball, and I don't know that he's going to stop doing that. Setting that aside, Biden repeatedly refused to issue a list ball. And I don't know that he's going to stop doing that. Setting that aside, you know, Biden repeatedly refused to issue a list of potential Supreme Court nominees. You know, one of the many memorable moments in that debate where Trump yelled at Biden the entire time and interrupted

him, Trump was saying, where's your list? Where's your list? What has Biden said about the type of person he would nominate for the Supreme Court if there is an opening during his term? He pledged to name an African American woman. What he didn't want to do was put out a bunch of names that the right could then go after and take down ahead of him even winning and maybe make him not win in addition to that. There are basically two leading contenders who are talked about the most if there were to be a vacancy, and obviously the person most likely to retire at some point, and he won't necessarily do it in 2021, or at least in this term. And that's Justice Stephen

Breyer, who's 82 years old and appears to be in excellent health. So the leading contenders are California Supreme Court Justice Leandra Kruger and Federal District Court Judge Katonji Brown Jackson. Both have gold-plated credentials, Harvard or Yale or both, served as editors of their law reviews, clerked on the Supreme Court. Both are young. Kruger is 44. Jackson Brown is 50. She was actually interviewed by Obama when the Scalia seat came open. As a lawyer, she was a public defender and worked for a respected law firm. She's got lots of other big credentials and has issued some important decisions as a federal district court judge. Kruger, before becoming a judge, served for six years in the Solicitor General's office,

rising to the number two position of Principal Deputy Solicitor General, and that was even before she was 40. I watched her argue several cases before the court when she was in her 30s, and she was a real star. But by the time she was arguably old enough to be named to the federal bench in the Obama administration, Mitch McConnell was the Senate majority leader and almost certainly would have blocked her appointment on the grounds that she was clearly headed for the Supreme Court. He just wouldn't have let it happen. So then Governor Jerry Brown in California came

calling and named her to the California Supreme Court, where she has earned a reputation, again, as a star and a moderate liberal over the last six years. Yeah, I was covering California at the time, and it was clear that Jerry Brown was approaching the California Supreme Court as a place to elevate people who could be, you know, future legal superstars on the national level. And it seems like, you know, if there is an opening that that could play out. Speaking of elevating future superstars, I've got to tell you what I've been hearing from advocates on the left, progressives in the legal community, groups like that nonprofit group Demand Justice, the NAACP Legal Defense

Fund, is that they don't just want to see diversity in terms of ethnicity and gender. Remember, President Trump nominated zero, no, black federal appeals court judges in his entire four years in office. These groups also want to see diversity in terms of professional background. And that means, Scott and Nina, people who don't just come from the ranks of big law firms or marching through the government and government service. They want to see public defenders. They want to see people who have worked in advocacy jobs. They want to see people like Ruth Bader Ginsburg, who made her mark at the ACLU Women's Rights Project. They want to see those kinds of candidates elevated to lifetime federal judgeships.

That would be that would be kind of a remarkable addition to the bench. All right, Nina, Carrie, thanks as always for coming on the pod. I always love having both of you in the conversation. And I love being here. Happy to do it. I'm Scott Detrow. I cover the Biden transition. I'm Carrie Johnson, national justice correspondent.

I'm Nina Totenberg, Legal Affairs Correspondent. Thank you for listening to the NPR Politics Podcast.