Today, Explained - SCOTUS raises the stakes

Episode Date: October 7, 2019

After a sleepy spring term, the Supreme Court of the United States is back and looking to weigh in on abortion, immigration, and LGBT rights. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Ian Millhiser, you cover the Supreme Court for Vox and the court begins a new term today. The last one, as I recall, was kind of sleepy. What's on deck this time? Oh, boy. This is going to be a huge term. They've got a big abortion case. They've got two big immigration cases, one of which literally deals with whether a border guard can get away with shooting someone across the Mexican border. There's a big Obamacare case looming that they might have to take. And they've got a huge LGBT discrimination case, which is probably the biggest employment discrimination case to reach the court in 30 years. Okay, let's start with this abortion case that the Supreme Court decided to hear just on Friday. What is this case that the court will be taking up? So this is a Louisiana case involving

a state law that requires doctors to have admitting privileges in a nearby hospital in order to perform an abortion. Now, why that is so difficult is that there's no law that compels the hospital to give an abortion provider admitting privileges. So what you end up happening is all of these abortion providers would love to get admitting privileges, but they can't get them because none of these hospitals will allow them to get the privileges. And the broader context here is there are these things abortion advocates often refer to them as trap laws. They look like regulations to make it easier for women to get into a hospital in case they have some kind of complication. But here's the thing, like, the complication rates for abortion are vanishingly small. It's less than 1% of women.

So it's not really something that does anything to help anyone's health care. It just makes it really hard for doctors to get a credential so that if fewer doctors are able to form abortions, that means there's fewer abortions in that state. So it's kind of a backdoor way to prevent abortions from happening. The court will consider whether the measure unduly burdens women. And this will be the first abortion related case heard by the Supreme Court since Justice Brett Kavanaugh was confirmed. And the Supreme Court certainly heard many challenges to Roe v. Wade. Is this one similar to one that's come before? Yeah, no. People might be having deja vu, and they should be because a law – I mean, like, parts of this law are literally word for word identical to a Texas law that the Supreme Court struck down three years ago.

And it was the same thing. Justice Breyer wrote a great majority opinion where he listed all the reasons why these laws don't actually protect anyone's health. And the change here isn't that key fifth vote in that decision was Justice Kennedy. Justice Kennedy is retired and his replacement, Brett Kavanaugh, is a much more conservative on these issues. And they think right now they have the majority. And the fact that they took this case suggests that the majority is ready to go and it's ready to, if not overrule Roe v. Wade entirely, at least to say that states have tremendous power to limit the right to an abortion. But I do remember Justice Kavanaugh in his confirmation hearings saying that he believed that Roe v. Wade was settled law. As a judge, it is an important precedent of the Supreme Court.

By it, I mean Roe v. Wade and Planned Parenthood versus Casey. Been reaffirmed many times. Casey is precedent on precedent, which itself is an important factor to remember. Yeah. I mean, judges say a lot of things at their confirmation hearings. There's kind of a script that they've learned to follow so that they don't express an opinion on Roe v. Wade. But shortly before he was nominated, he actually went to a conservative think tank, the American Enterprise Institute, and there he praised Justice Rehnquist's dissent in the Roe v. Wade opinion. So when he wasn't in

his confirmation hearing, he gave a very different impression about what he thinks about Roe. And that's odd. I mean, for most of my career, if someone thought that they were in the running for a Supreme Court nomination, they do everything they could to not get a record on abortion because they didn't want it to come up in their confirmation hearings. The fact that Kavanaugh did that, I think, tells you a great deal about how politicized the court has become. And now, at least on the Republican side, if you want to become a justice, you've got a signal with big neon lights. Hey, I'm your guy on the following list of issues. And so Kavanaugh must have thought that not having a record on abortion was a liability

and he needed to convince the people who pick Republican justices that they didn't have to worry about that being a liability. Roe versus Wade decided in 1973 he's a president of the United States Supreme Court. Has Gorsuch done anything like that? Do we know where he stands on abortion? It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the United States Supreme Court worthy as treatment of precedent like any other. Yeah, I'd be very surprised if Gorsuch doesn't vote to overrule Roe. Among other things, when he was a lower court judge, there was a case that came up involving an attempt to defund Planned Parenthood. Gorsuch pretty strongly backed the side that wanted to defund Planned Parenthood. So I don't have too many doubts about how he views abortion.

Okay. And in addition to divisive issues like abortion, the Supreme Court will also take up things we all agree on, like immigration. That's right. There are two big cases that I think touch on immigration. The first is a case asking whether the Trump administration can wind down the DACA program. I think it's very likely that they're going to say, yes, they can do that. The immigration policy allows protection of immigrants living in the U.S.

who were brought here illegally into the country as children. Doesn't that program originate from the White House anyway with Obama? So this is a program. It's called Deferred Action for Childhood Arrivals. About 700,000 undocumented immigrants are allowed to stay in this country. They're allowed to work while they're in this country and they get certain federal benefits. The Trump administration decided to wind this program down. And what's interesting about this case is there's a big mystery as to why the Supreme Court decided to take it in the first place. If you change a policy, typically the federal government has to explain why they did so.

And when they explain why they do so, if they give a policy explanation, we say this is a bad idea for these reasons, then courts don't review that. They typically are not allowed to review that. If they give a legal reason, if they say they think that the program is illegal, courts are allowed to review that determination. And the only thing that happened here is that the Trump administration gave a legal justification and not a policy justification. So what's puzzling about this case is that the Trump administration has the power to wind it down if they want to. If they just put out a new memo that states a policy explanation for doing so. I don't know why they haven't done that.

I mean maybe it's incompetence. Maybe it is that they want the courts to actually consider the legal question and they want the Supreme Court to hold that DACA is itself illegal because if the Supreme Court were to say that, that would mean that we could never have DACA ever again. Oh, wow. Yeah. Big deal. Yeah, very big deal. And there's another immigration case in addition to that one. There is. This is only tangentially related to immigration, but it really goes to the values underlying our immigration system.

This is it's called Hernandez v. Mesa. Back in 2010, a U.S. Border Patrol agent shot and killed a Mexican teenager. Next to the Paso del Norte International Bridge in El Paso. The agent was in the U.S. The boy was 60 feet away in Mexico. Now the boy's family wants to sue, saying the agent violated their son's constitutional rights. There's a bit of disagreement as to what happened in the events leading up to this, but the border guard took out his gun, fired two shots across the Mexican border,

and killed a 15-year-old boy. Cell phone video shows the boys running away from the fence in America as Agent Jesus Mesa arrives. Agent Mesa then takes one of the boys into custody. The rest run back into Mexico. Video then appears to show Agent Mesa handcuffing the boy on the ground when rocks are thrown at him. That's when Mesa turned around and shot Hernandez. And the question here is whether that boy's family can sue the guard and get money damages directly from that border agent. The lower court in this case said, you know, these border guards are doing really important national security work. They're keeping people out of the country that we don't want in the country. And we don't want them to hesitate when they have to make a split second decision. And if we impose this kind of liability on them they might hesitate and that would be bad

so it's really just a case about like conflicting values you know do we believe that federal agents need to be accountable and that with their power comes great responsibility or do we believe that they're doing such important work that they should have broad immunities that protect them from consequences when they do something wrong. When this case is decided, it could make a big difference to others who may follow in various situations, whether it's a shot across the border or whether it's somebody in Nevada who's operating a drone that goes off and kills someone in some other country. And then there's Obamacare again. Right. So the Affordable Care Act, as it was originally enacted, has an individual mandate.

If you don't have health insurance, you have to pay higher taxes. Yeah. The tax law in 2017 reduced those taxes to zero. There's a lower court decision. If upheld, the ruling by U.S. District Judge Reed O'Connor of Texas would eliminate all of Obamacare's provisions, including Medicaid expansion, protections for people with preexisting conditions and the ability of children to stay on their parents insurance until age 26. And the legal issue. I mean, it's hard for me to be hyperbolic in describing how ridiculous this case is. Right. We've covered this on the show. All these Republican attorneys general are saying that now that there's no individual mandate, all of Ob zeroed out mandate unconstitutional. And because the law now contains this zeroed out mandate, which is unconstitutional, the proper remedy is to strike down the entirety

of the Affordable Care Act root and branch. So all told, this term is going to be a doozy. Yeah. Don't forget the LGBT cases. And we haven't even gotten to the LGBT cases yet. That's right. We'll do that after the break. I've got great news for anyone out there who loves Court TV. And maybe you can even guess what this news is going to be. Yes, Court TV has a podcast.

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They do deep dives into the real life deceptions and betrayals and yes, the murders that lead to justice in the courtroom. You can find the Court TV podcast right now wherever you find your other not Court TV podcasts. Check it out. This case is massive. There's so many layers to this case. This case and two others could affect thousands of workplaces. With this case asking the question, is transgender status discrimination sex discrimination? So we've got three cases being argued tomorrow. The first two involve gay plaintiffs who allege that they were fired because of their sexual orientation. And the issue in that case is whether you can be fired for being gay or for sexual orientation generally. So the two cases are Altitude Express v. Zarda and Bostock v. Clayton County.

What happened in each of these cases? It's two gay men who claim that the reason that they lost their jobs is because they are gay. One guy was a government worker in Georgia. The other was a skydiving instructor from New York. Wow. Yeah. And the facts of this case are a little weird. The skydiving instructor? The skydiving instructor. Yeah. He would do tandem jumps with people who weren't experienced skydivers. And apparently a thing that he liked to do when he was strapped to a woman is hees, finding out that he was gay and deciding that they did not want to have this person working for them.

You said there are three cases on this issue being sort of lumped together tomorrow. What's case three? So this case comes out of Michigan and involves a funeral home and a woman who was fired from that funeral home because her boss has religious objections to the fact that she is transgender. The case involving Amy Stevens. She worked at a funeral home, came out as trans, started presenting as a woman. And the boss said that men have to wear male suits and women have to wear female suits. And he decided that she is a man, so she must wear the male suit and tie. And if she did not present as a man, then she could not work

for his funeral home. The Department of Justice filed a brief in the Supreme Court saying transgender discrimination is not prohibited by Title VII. The group representing the funeral home arguing that Congress didn't include trans people when the Civil Rights Act of 1964 was passed. Which says it is illegal to fire someone because of sex. This Civil Rights Act is a challenge to all of us to go to work in our communities and our states, in our homes and in our hearts, to eliminate the last vestiges of injustice in our beloved country.

And so basically these cases are a tension between whether the text of the law controls the case or whether what people were actually thinking in 1964 controls the case. Because it was about women. The federal government banned hiring of gay people entirely until 1975. So I don't think anyone thinks that in 1964, Congress passed this law intending to prevent gay or trans discrimination. Yeah. That said, the words of the law are really expansive. No discrimination because of sex. And I should clarify that sex here means gender, not sexual intercourse. And if sex is in any way part of the calculus, it's illegal.

Sounds like you're talking about what the Supreme Court types like to call textualism. Right. Textual call textualism. Right. Textualism or originalism. What exactly is that? Originalism is sort of a subspecies of textualism. Textualism means you're governed by the text. That's the only thing that is relevant to your decision. Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.

And that's part of what makes this case so interesting is you have a number of very conservative members of the Supreme Court, Clarence Thomas, Neil Gorsuch. People who live and die by the letter of the law. Exactly. They say it doesn't matter what Congress thought it was doing in 1964. The only thing that matters is the text. And so this is a case of whether we can really trust these guys. When Neil Gorsuch says that the only thing that matters is the text, is he going to stick to that principle when the text points in a liberal result? Or is he going to say, oh, well, I'm going to make up some other reason to get the result that I want in this case? You're saying this will be a test of whether or not they will allow their sort of legal theory to serve a progressive end.

That's exactly right. You know, the question, I mean, ultimately, what makes these cases so important is that they will tell us whether the Supreme Court is engaged in law or whether it's just engaged in politics. Because if this is a case about law, the Supreme Court said in the 1980s that when you're applying the Civil Rights Act of 1964, you have to look at the text. It doesn't matter what Congress thought it was doing in 1964. That's what the precedents say. You have at least two conservative justices who have said over and over again the only thing that matters is textualism. And so we're going to find out whether they mean it. We're going to find out whether they're about politics when this term, it sounds like the Supreme Court, is going to have to weigh in on the most divisive issues in our politics. Abortion, immigration, Obamacare, LGBT rights. How much do you think that's weighing on Chief Justice John Roberts and his fellow justices? That is the single most important question in Supreme Court land right now.

I mean there is a reason why Merrick Garland is not on the Supreme Court. There is a reason why despite all of the allegations that came out with Christine Blasey Ford against Brett Kavanaugh that Republicans thought it was so important to get their guy there. And the reason why is because it matters who sits on the court. We get very different policy and political outcomes depending on who sits on the court. And if the court is engaged in law, then I think it's OK for them to have a fair amount of power because the law is written down and often only has one clear meaning. But if all it really is is politics all the way down, it calls the question of why we have the Supreme Court because they're not elected. Why should they have this power if at the end of the day all that they're doing is engaging in politics. And it also just makes me wonder, I mean, a lot of these decisions come towards the end of the term, which will be June of 2020, which will be mere months

before the presidential election. Can the politics of the Supreme Court end up influencing this next election? We know there's a lot of people who think that the reason why Donald Trump got elected is because Republicans cared so much about making sure that when Justice Scalia died, he would be replaced by a Republican and not by a Democrat, that they were willing to hold their nose and vote for Donald Trump. The Supreme Court is probably going to hand down a lot of decisions in June that are going to remind Republican voters why they cared so much about the Supreme Court and why they might want to vote for Donald Trump again. Could a decision on abortion or Obamacare or LGBT rights just as easily energize Democrats?

Yeah, I mean, the one thing that I think this term is going to make clear is how high the stakes are when it comes to the Supreme Court. Historically, courts have been something that have really charged up Republicans and that Democrats just haven't paid that much attention to. And I mean, I've been in this business for 12 years now, and I've yet to find the magic key that causes Democrats to realize that the courts are very, very important. But if anything can do it, it's going to be this extraordinarily contentious term that we've got coming up. Ian Millhiser reports on the Supreme Court for Vox. In his piece that published today about the Supreme Court's new term,

he writes about a few cases that we didn't get to include in today's episode. Find it over at Vox.com. I'm Sean Ramos for him. This is Today Explained. Thank you.