Today, Explained - The death penalty and the gopher frog

Episode Date: October 8, 2018

Brett Kavanaugh starts his new job tomorrow. The Washington Post’s Robert Barnes previews the Supreme Court’s new term and Vox’s Matthew Yglesias says his first day cements a shift 25 years in the making. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Robert Barnes, you cover the Supreme Court for The Washington Post. Brett Kavanaugh's first day on the court is tomorrow. What's the first thing he's going to get to decide? Is it going to be something big, abortion, gun control, the environment? What does he get? I'm afraid not. It is not going to be a big introduction to the term. There are some criminal cases,

some sort of small bore cases. You know, in a way, this is a good docket for a new justice and a court that probably wants to take down the temperature a little bit. After some recent terms in which there were some very big social issues that came before the court. As it stands right now, the court has a bit of a quiet docket, one that's sort of built more for lawyers than for the general public. Well, let's hear about some of those cases. What do we got? Well, you know, one thing that'll be interesting is we'll hear about the death penalty. This is something that Brett Kavanaugh's never really had to face as a judge before because the court he was on just doesn't really hear those kind of cases. There's a case about an inmate in Alabama who now has severe dementia. Now, Vernon Madison has been on death row in Alabama for more than three

decades. In 1985, he shot and killed Mobile Police Officer Julius Schulte in cold blood. It's been so long since his crime, he doesn't really remember committing it. And so is it okay to go forward with his execution? The court argued that case last week. Kavanaugh wouldn't have to be involved unless they split in some way. They have an upcoming case about the death penalty in which the inmate is in such poor shape that the method of execution might be sort of excruciating for him, causing like a brain hemorrhage. And so the question is, would that be cruel and unusual punishment that is prohibited by the Constitution? The court doesn't take on the death penalty sort of as the big issue anymore.

It has these kind of one-offs, a lot of them, but kind of very specialized cases on the death penalty. And that's something that Kavanaugh hasn't had to deal with before. And so he might get a lot of attention because people don't really know what his particular judicial philosophy is on the death penalty yet. Right. That's how it happens with these new justices a lot. We're trying to figure out where they come down and where they are on issues that they may not have had to face in the past. And is there anything else that preceded Kavanaugh joining them on the bench this week that happened last week that he might have to decide on? Peter Robinson Well, yeah, interestingly, there is the case of the dusky gopher frog.

Peter Robinson Mr. Needler? Mr. Chief Justice, excuse me, Mr. Chief Justice, and may it please the court, the dusky gopher frog is a critically endangered species. Aaron Ross Powell That right now is found only in Mississippi. The Endangered Species Act says that the government has to identify land that these endangered species could live on. And so the government has identified some land in Louisiana, 50 miles away, where no frogs currently live. The landowner is not pleased about this. And the court seemed quite split on it last week when it heard oral arguments. It might be that comes back before the court.

When there's a case that's been argued and then a new justice joins the court, they will have to have a rehearing if that new justice is going to decide it. I will have to say it might not be good news for the frog if they have to do that because in his time on the D.C. Circuit, Justice Kavanaugh has not been a big friend of the Endangered Species Act. How did this frog not come up at his confirmation hearing? Exactly. I think they had, you'll excuse me, bigger fish to fry. Now that Kavanaugh has been confirmed, is it possible that the justices could take on some cases that they didn't take on beforehand because

of the empty seat? Yeah, I think that's the real issue. And that's what we're going to all be watching. Because, you know, the court has a lot of discretion over its docket. I think you can see that the court has been putting aside some cases because they were uncertain about the future. At the end of the last term, they weren't sure whether Justice Kennedy was still going to be there or not. You know, he didn't tell them until the very last day of the term that he was going to retire. They didn't know who was going to replace him and they didn't know when that would be. And so the court has put aside a few issues that I think will return. One of those is the issue of partisan gerrymandering and whether when a state

divides up the electoral map, whether it can take politics into account when doing that. The court has never ruled that the partisan gerrymandering is so bad that they threw out a state's map. They punted on that issue last year twice, but it will come up again from North Carolina, and the court's going to have to make a decision about that. You know, the other issue that is out there, you remember Masterpiece Cake Shop last year, which was the case about whether a shop owner's religious beliefs sort of trumped the state's anti-discrimination law and whether he could refuse to make a cake for a same-sex couple. The court sort of kicked that issue back to the states. I think it will come back pretty soon. And so those are areas in which Kavanaugh could play a vital role. And if they do decide to take on some more cases, what's the process to take on those cases?

Well, the cases are there. It only takes four of the justices to accept a case. You know, we now have four very conservative justices in Clarence Thomas, Samuel Alito, Neil Gorsuch, and now Brett Kavanaugh. We only need those four to take a case. Chief Justice Roberts is a little bit more to the middle of the four of them. And so one issue that we'll all be looking for is whether that four wants to sort of take some of these big ticket issues and sort of force the chief justice to make a decision, or whether they're willing to sort of let things cool off for a while first. And do you think if the court doesn't take on the sort of big ticket issues, Kavanaugh

will still have an opportunity to make his presence known on the Supreme Court? Not that it's lost upon anyone that he's now there. I'm sure he will. And remember, he's 53 and he's there for the rest of his life. So there is a lot of time for him to take these kind of cases and to weigh in. And as I say, you know, sometimes the court is forced into it. The reason that the court most often takes a case is because one of the lower appellate courts has interpreted a law one way, another court has interpreted another way. You can't have that in a national system like this. And so the court

may have to do it. You know, one of those could be the administration's revocation of the Deferred Action for Childhood Arrivals program, the so-called DACA case or the DREAMers case. Those are bubbling up, and it may be that they are decided in time that the Supreme Court really has to get involved this year, whether they want to or not. Whether or not Brett Kavanaugh starts dropping big opinions on the court now or in a few years, his appointment cements a conservative shift 25 years in the making. I'm Sean Ramos for him. That's next on Today Explained. Two of my favorite things are bread and ice cream.

And now there's a podcast from a bread person and an ice cream person. The bread person is Aaron Patinkin from Ovenly, which is an award-winning bakery in New York City. And the ice cream person is Natasha Case from Cool House. It's the national ice cream sandwich brand that you might know. The podcast is called Start to Sail and it's a show about what it takes

to build a company from launch to exit. And it's hosted by these two people who built a bread empire and an ice cream empire. Check it out. You can find it wherever you find your podcasts. Start to sail. Brett Kavanaugh was nominated by a president who lost the popular vote and confirmed by senators who represent less than half of the country. More than half of the country didn't want him on the Supreme Court.

That particular mix right there, that's a first. But Vox's Matthew Iglesias says it shouldn't surprise anyone. He says the court has been building up to this moment for a quarter century. It was about 25 years ago we got the case of the United States v. Lopez.

This was a case about the Gun-Free Schools Act. In March of 1992, Alfonso Lopez Jr., a 12th grader at Edison High School in San Antonio, Texas, was arrested for carrying a concealed firearm on the school grounds. He was in violation of the Gun-Free Zone Act passed by Congress. And the defendant was basically saying it was unconstitutional to charge him with a federal crime for having a gun near a school. OK. And the Supreme Court ruled in his favor. And it was interesting because it sounds a little bit like a Second Amendment case.

But what they actually made was a federalism ruling. And they said that the federal government simply did not have the authority to regulate this question of what kinds of guns can you carry around near a school. And that was the first time in decades that the Supreme Court had sort of challenged Congress's authority to regulate the national economy. And it became an important precedent. Was it controversial at the time? Did anyone notice? You know, it made a bit of a stir when it happened, particularly because Justice Thomas wrote a concurrence that was very sweeping. He said, you know, because the liberal justices had said, look, this is crazy, right? Congress has been regulating stuff for years. This is no different from all the rest.

Let them regulate. The majority said, no, no, no, this is extreme. We need to throw this out. Thomas said, no, the liberals are right. Congress has been regulating the economy for decades, and that's all bad. And so we now have in Neil Gorsuch, in Samuel Alito, and now potentially in Brett Kavanaugh, you know, we have a new group of more hardcore conservatives who may push this kind of restriction on Congress's regulatory authority even further. What else happened along the line of this 25-year shift that you talk about? So one of the big things that's come up is that courts have started to challenge what's known as Chevron deference. This is an old case from the Reagan administration. And the principle there is that executive agencies need to be given the authority to interpret the rules that govern them with

some level of deference from the courts, right? So Congress puts forward, you know, fairly broad mandates. It says like EPA, like you should identify air pollution that threatens human health and make rules that will address that problem, right? So the EPA, it's scientists, it's lawyers,, its economists, they need to decide what to do. And the Court, before Kavanaugh has joined it, struck down elements of the Obama administration's climate change plan. And this is a very different approach to the regulatory state. And I guess if we're talking about the Supreme Court shifting to the right

and taking on more power over the other branches of government, it's impossible to not mention the fact that they handed the presidency to George W. Bush in 2000. This effectively ends the election. It has ended the election. And Peter, literally one of the closest elections in American history. That's obviously a really big deal, right? I mean, it halted a recount that had been ordered by state-level judicial officials in Florida. If you talk about the legitimacy of the court,

when that ruling came down, there were a lot of takes like, boy, people are really not going to look at the Supreme Court the same way after this. And then what happened was relatively quickly, 9-11 came along. George W. Bush's approval rating soared. Americans wanted to believe in American institutions again. And the whole thing kind of became forgotten. So between Bush v. Gore and now, one conservative decision that comes to mind as maybe another sort of notch in this shift is Citizens United. How does that factor in? Today, the Supreme Court issued a major and long-awaited ruling on campaign finance. By a five to four vote, the court swept aside the century-old ban on corporate spending in elections. The decision potentially transforms the influence of big money in government.

There was actually an earlier case, McConnell versus FEC, which related to Mitch McConnell, the current Senate majority leader, and was throughout the bulk of John McCain's signature campaign finance legislation. And basically what you had in both of those cases is Congress will pass laws saying we need to regulate how campaign finance works. And this is after all Congress. They're professional elected officials. They are saying we feel that the way money is being used in politics is having a corrupting influence on the system. And then the justices are looking at it and they're tossing parts of these laws out and they're saying, no, you're wrong.

That's not a legitimate anti-corruption interest. And, you know, this is troubling. I mean, I think if you talk to normal people about why – they're not geared up about the Supreme Court. But people are geared up about the integrity of the overall political system. And money in politics has a lot to do with people sort of plummeting faith in the system. But the reason for that

is that the Supreme Court has thrown out Congress's best efforts to address people's concerns. So why haven't liberals been more openly upset about this stuff? Is it because all the focus goes towards Roe v. Wade and abortion? Well, so Sandra Day O'Connor had a quite liberal jurisprudence on the question of abortion. Anthony Kennedy's abortion jurisprudence is actually a good deal more conservative than hers is. But he has still upheld the core ruling that states cannot

ban first trimester abortions. So that's important to a lot of people on both sides of the issue. Are you saying it's more important to everyone than everything else? I would say it gets more attention than the rest. The other thing is that Kennedy authored a very important opinion about same-sex marriage equality, right, in which he sided with the liberals. And that was a very big deal for a lot of people's lives. And a lot of attention was paid to those two specific issues. Abortion remains obviously a very important issue, one in which Kavanaugh will probably swing the court to the right and, you know, more progressives will take a loss. But I think people should understand that most federal cases are not about those two topics.

And on this whole sweep of economic regulatory matters, the courts have been in conservative hands for a long time and progressives are going to need to find a rhetoric and a politics that challenges the court's ability to strike down democratically enacted laws. Would conservatives agree that the Roe v. Wade decision in 1973 came out of a court that was sort of activist in the same way but progressive? Yeah, I mean I think that there's been a history of the court where a progressive majority came into being in the 50s and in the 50s and 60s really did push the envelope, right, and struck down a lot of things, advanced liberal causes. We then had for the 80s, most of the 70s, most of the 90s, a kind of equilibrium in which the reigning conservative doctrine was to push back on those Warren Court-era decisions, right?

So police officers were given a lot more law and order authority kind of back. Abortion rights was narrowed. But more recently, we've seen a real, in the 21st century, conservative ascendancy, right? In which on the balance of issues, conservatives have held the majority and they've been acting aggressively to take down the federal government's economic policymaking abilities. How does that affect the legitimacy of the Supreme Court? I mean, Kavanaugh in his initial appearance before the Senate Judiciary Committee said, you know, the Supreme Court must never, never be viewed as a partisan institution.

A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy. We're going to have to see what he does on the Supreme Court. But I think you saw in his rulings on the D.C. Circuit Court of Appeals, he always seemed to find a reason why regulators who were trying to curb business in some way or another couldn't do what they wanted. Now, Justice Kavanaugh is going to make America a more comfortable place for big business and a less comfortable place for activists and regulators who want to rein business in.

And that's something that, you know, people should have front of mind as they think about what the court is and why it matters. So is this like theoretical idea that the Supreme Court can, you know, be apolitical and remain outside the fray of partisan politics? Is that just dead now? I mean, that's the question, right? I mean, ever since the original Lopez ruling, I feel like there's been a dialogue between Justice Thomas, who is saying, hey, guys, we should go whole hog on this doctrine, right?

Go back to gilded era jurisprudence that said the federal government can do very little to regulate the economy. And then more cautious voices who seem to be saying, look, we can chip away at federal regulatory authority, but we need to be chill about it, right? And the question has always been, as we've piled new justices on, new conservative justices who've been raised in a new generation, new way of thinking, is are they going to really push the envelope? In the Affordable Care Act case, four Republican justices lined up behind the idea that they would throw out a major welfare state expansion, right? And people would have really noticed, right? It would have been a really big deal.

And it seemed like Chief Justice Roberts blinked, that he said to himself, no, that's going to be too much. At the same time, in that same case, they did strike down the Medicaid expansion. So they're getting much more aggressive, right? And it just sort of remains to be seen. Are those voices of caution going to still be present among younger judges? Now that Kennedy's gone, because we know Thomas wants to do it. We know Samuel Alito, Brett Kavanaugh.

These are guys who came up in the modern American conservative legal movement, right? Like this is what they're there to do is to like put big points on the board for conservatives. And do you think Kavanaugh's appointment might get progressives to pay a little bit more attention to what the Supreme Court's doing? Yeah. I mean, I think that this should put to rest the idea that the Supreme Court as an institution is a friend of progressive politics in America. It historically hasn't been.

If you want to tell a historic, a heroic story about the Supreme Court, you think, of course, of the civil rights era. Brown v. Board of Education. Absolutely. But in the 1870s, Congress passed a Civil Rights Act that was actually quite expansive. And the reason that went away

was the Supreme Court struck it down in the 1880s, right? So it was this Gilded Age jurisprudence that is the whole reason we sort of needed the Supreme Court to ride you know, the Supreme Court has mostly been an elite institution and it has reflected a strong class bias and been an impediment to sort of democratic self-rule and control of the economy. And I think with Brett Kavanaugh on the court, people should at least be able to see that more clearly. Thank you. you