Today, Explained - The Supreme Court is back and “even more consequential”

Episode Date: October 3, 2022

According to Vox’s Ian Millhiser (and no, he hasn’t forgotten they just overturned Roe). This episode was produced by Siona Peterous, edited by Amina Al-Sadi, fact-checked by Victoria Chamberlin and Laura Bullard with help from Miles Bryan, engineered by Paul Robert Mounsey and Efim Shapiro, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

The Supreme Court is back in session. And Vox's Supreme Court correspondent Ian Millhiser says this session has the potential to be even more consequential than the last one. But I'm all, really Ian? Do you remember the last Supreme Court session? Women are not free anywhere. Women are not free. This ruling was illegitimate. It must not be accepted. And people in this country need to stand up now. Unfortunately, it's out there. Unfortunately, it's out there. Unfortunately, it's out there.

The one where they overturned Roe v. Wade. The one where they severely restricted the EPA. The one where they said people can bring their guns almost anywhere. This session could be more consequential than that one? And he was all, yup, yeah, exactly. That's coming up

on Today Explained. The all-new FanDuel Sportsbook and Casino is bringing you more action than ever. Want more ways to follow your faves? Check out our new player prop tracking with real-time notifications. Or how about more ways to customize your casino page with our new favorite and recently played games tabs. And to top it all off, quick and secure withdrawals.

Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600. Visit connectsontario.ca. You're listening to Today Explains. Is it Today Explain or Today Explains? Explain-da. Explain-da. Ian Millhiser, true or false, you have a piece up on Vox.com right now arguing that the Supreme Court's new term could be even more consequential than its last. I do. This is a truth. This is a truth. How on earth could that be, Ian? Supreme Court's new term could be even more consequential than its last.

I do. This is the truth. This is the truth. How on earth could that be, Ian? What are they going to undo now, like Bush v. Gore? I mean, these guys are just getting started. You know, they've got lifetime appointments. I think that last term was when they were checking off a lot of the issues that they viewed as really high priority. This term, they could potentially go after democracy. And without the right to vote, without the right to

choose your own leaders, you don't have anything. You know, you can't keep the right not to face discrimination if you can't keep electing lawmakers who believe in anti-discrimination. So this is potentially the ballgame. They are taking these massive democracy cases this term. And at least in the worst case scenario for this term, I think you could wind up with a nation where it will be very, very hard for the public to choose their own leaders. Okay, you make a compelling argument. I'm not fully convinced yet, because unlike you, I don't know what's coming up this term on the docket. Let's talk about it. Which cases could threaten American democracy? So the case that keeps me up at night is a case called

Moore v. Harper. When I originally wrote up this case, I described it as the biggest threat to U.S. democracy since the January 6th attack. It deals with something called the independent state legislature doctrine, which is a terrible phrase that no one can remember. The independent state legislature doctrine. Yes, it just rolls off the tongue. Maybe not as tip of the tongue as abortion. Exactly. So the Constitution says that the rules for federal elections, for congressional elections, for presidential elections shall be set by state legislatures.

And the question is, what does the word legislature mean? The Supreme Court's answered that question. They've answered that question many times over the course of the last more than 100 years. And what they've said is that the legislature in this context means whoever has the legislative power, which is the power to make laws. So in some states, you can make a law through a ballot initiative. And if the state wants to make an election law through a ballot initiative, that's fine. In some states, the governor can veto laws. And if the governor vetoes an election law, that's fine.

That's how the rules have always worked. The state constitution might say that there's a right to vote protected by the state constitution or right to be free of gerrymandering protected by the state constitution. State Supreme Court can enforce that. That's fine. That is how things have always worked. That's the status quo right now in America. That is the status quo. What this case wants to do is it wants to essentially eliminate the separation of powers in every state and concentrate all the power over elections into the House and Senate in that state. Take a state like North Carolina. There's a big fight about gerrymandering going on in North Carolina. You've got a Republican state legislature. You've got a Democratic Supreme Court.

So right now, the Democratic Supreme Court can prevent that Republican state legislature from drawing egregiously gerrymandered maps. What this case wants to say is, nope, the state Supreme Court isn't allowed to enforce the state constitution, whatever that Republican legislature wants, that's fine. So if you accept the theory in this case, it would mean that, say, the Republican legislature in Wisconsin, in Pennsylvania, in Michigan, in Arizona could write a law saying this state's electoral votes shall go to Donald Trump. And there would be absolutely nothing anyone could do about it. And if you have those four states lined up in the Republican column, it's basically impossible for a Democrat to win the presidency. Now, we should point out that on its face,

having state legislatures control elections could sound Democratic to some because the people vote for the state legislature. But you're saying because state legislatures are so gerrymandered at this point, it is anti-democratic. Well, what I'm saying is that in most states, the way that the lawmaking process works is the same way it works at the federal level. You have the state house, the state senate, they pass a bill. The governor can veto the bill. And then if the they pass a bill, the governor can veto the bill. And then if the governor signs the bill, it can't violate the constitution. So if the state constitution says there's a right to vote, the state constitution says there's a right to be free of gerrymandering, or if the state constitution for that matter says there will be an election

to determine who wins the electoral votes. The way things work now is that that state constitution wins. Like, you know, the legislature can't pass a bill that violates the state constitution. This case potentially eliminates every single voting rights protection in every state constitution throughout the country. And like I said, in the worst case scenario, it could allow a world where, say, Michigan's Republican legislature says, well, we think our guy could lose, so we're just going to give him our electoral votes. What's the story behind this case? Why is anyone lobbying for this to begin with? The weird story here is that this comes out of Bush v. Gore.

Huh. An important win for Vice President Al Gore. NBC News projects that he wins the 25 electoral votes in the state of Florida. In Bush v. Gore, there was a recount of Florida's racism. The networks give us, the networks take it away. NBC News is now taking Florida out of Vice President Gore's column. Bush was on top. So Bush wanted the recount to stop because when you're on top, you don't want anything to happen to change it. Right. Gore wanted some counties to be recounted. There was a big fight over it. There was a state Supreme Court fight.

We still do not know the outcome of yesterday's vote. And I realize that this is an extraordinary moment for our democracy. The election was close, but tonight after a count, a recount, and yet another manual recount, Secretary Cheney and I are honored and humbled to have won the state of Florida. And one of the arguments that Bush's legal team made, a team I will note that included Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Wow. Dream team. Yeah, exactly. One of the arguments that they made was that the Florida Supreme Court isn't allowed to hand down decisions that benefit Al Gore because the Florida Supreme Court isn't the state legislature and only the state legislature is able to decide how elections are run. Justice Kennedy, the Constitution specifically vested the authority

to determine the manner of the appointment of the electors in state legislatures. First of all, that's incoherent because sometimes, you know, laws are ambiguous or isn't clear how to read a law or how it should apply to a particular party. And you need someone to tell you who it applies to. That body is the state Supreme Court. That's what state Supreme Courts are there for. But this was an argument that came out of Bush v. Gore. Several of the current justices were part of that team. And this terrible argument they came up for this individual moment in history now has a lot of support on the Supreme Court because it was something that the Republican Party cared a lot about in 2000.

Four members of the court have endorsed this theory. Oddly enough, Amy Coney Barrett, because she hasn't been on the court very long, hasn't yet endorsed it as a justice. So basically, the hopes for democracy hang on Amy Coney Barrett, this former member of George W. Bush's legal team. More with Fox's Supreme Court correspondent Ian Millhiser in a minute. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family. And Aura says it's never been easier thanks to their digital picture frames.

They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an Aura frame as a gift, you can personalize it. You can preload it with a thoughtful message, maybe your favorite photos. Our colleague Andrew tried an AuraFrame for himself. So setup was super simple. In my case, we were celebrating my grandmother's birthday and she's very fortunate. She's got 10 grandkids. And so we wanted to surprise her with the AuraFrame and because she's a little bit older, it was just easier for us to source all the images together and have them uploaded to the frame itself.

And because we're all connected over text message, it was just so easy to send a link to everybody. You can save on the perfect gift by visiting AuraFrames.com to get $35 off Aura's best-selling Carvermat frames with promo code EXPLAINED at checkout. That's A-U-R-A-Frames.com, promo code EXPLAINED at checkout. That's A-U-R-A frames dot com promo code EXPLAINED. This deal is exclusive to listeners and available just in time for the holidays. Terms and conditions do apply.

BetMGM, authorized gaming partner of the NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with a sportsbook born in Vegas. That's a feeling you can only get with BetMGM. And no matter your team, your favorite player, or your style, there's something every NBA fan will love about BetMGM. Download the app today and discover why BetMGM is your basketball home for the season. Raise your game to the next level this year with BetMGM, a sportsbook worth a slam dunk,

and authorized gaming partner of the NBA. BetMGM.com for terms and conditions. Must be 19 years of age or older to wager. Ontario only. Please play responsibly. If you have any questions or concerns about your gambling or someone close to you, please contact connex ontario at 1-866-531-2600 to speak to an advisor free of charge bet mgm operates pursuant to an

operating agreement with i gaming ontario oh yeah oh yeah oh yeah I am, I am. Take notice. That's a deep. Explained. Today, explained back with Ian Millhiser, who writes about the Supreme Court here at Vox. He admitted that an upcoming case called Moore v. Harper keeps him up at night. But that isn't the only one this term that could reshape American democracy.

So the other it's called Merrill v. Milligan. This is a case about Alabama's congressional map in Alabama, about 27 percent of state is African-American, according to the most recent census numbers. But the state drew a map where blacks will only be represented by 14 percent of the congressional delegation. So black Alabamans will have about half as much representation as you would expect. Sounds like some some classic gerrymandering. It looks pretty hinky. And a panel that included two Trump judges said, yeah, this is a racial gerrymander. You can't do this. Now, Alabama does have some factual arguments dealing with how close the black residents of Alabama live together. Like they do have some plausible arguments they could make in this case that they could say, well, under existing law, this this doesn't qualify as a

racial gerrymander. But in their brief, like, that's not the thrust of their argument. Their thrust of the argument is, no, we should destroy the provisions of the Voting Rights Act, which prevent racial gerrymanders. And bear in mind as well that the Supreme Court has already said in a case called Rucho that the federal courts may do nothing about partisan gerrymandering. For these reasons and others set forth in our opinion, we conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. If they'll also do nothing about racial gerrymanders, then that means that there's just no safeguards against gerrymandering. And the Voting Rights Act has already been somewhat neutered.

Yeah, there's been three big decisions, Shelby County, Abbott v. Perez, and Brnovich v. DNC, all of which have taken extraordinarily deep cuts. Shelby County deactivated what's called the preclearance regime. This is the regime where states with a history of racism had to get their voting rules basically spot checked by officials in Washington, D.C. to make sure they didn't engage in any kind of race discrimination. That is pretty much gone after Shelby County. Any racial discrimination in voting is too much. But our country has changed in the past 50 years, and therefore we have no choice but to find that it violates the Constitution. The court has weakened the safeguards against voting laws that are enacted with racist intent. In the Abbott case, in the Brnovich case, they eliminated many of the protections

against laws which have racist effects. I think the key conceptual point here to understand is that Arizona has not denied anyone any voting opportunity of any kind. When an eligible voter casts a ballot and that ballot is discarded rather than counted, that voter has been denied the right to vote. This lawsuit seeks to go after the interpretation of the Voting Rights Act, that it prevents racial gerrymanders. And at some point, we don't really have any safeguards against racism in our elections at all. Ian, we've talked about the cases that could fundamentally alter our democracy, there's also some big cases on the docket that you write about in your piece that will affect policy. In my piece, I wrote about

nine cases. And so we probably don't have time to go into all nine of them. But like, that gives you a sense of how ambitious the court is thinking this term. So let's do a quick lightning round. Today, the Supreme Court heard oral arguments in a case called Sackett v. EPA. This is a case about essentially whether the federal law prohibiting water pollution applies to certain wetlands, creeks, streams, drainage ditches, things that run into major bodies of water, but aren't necessarily themselves major bodies of water. And obviously, if I dump a bunch of poison into a stream that runs into a river that supplies a city's water supply, I don't think I need to explain to folks why that's bad. There's a case called Holland v. Brackett. This is a big, big case dealing with indigenous culture and whether or not federal government is allowed to take certain steps to rectify the cultural genocide that's been directed towards native cultures in the United States in the past.

There is the latest volume in this seemingly ongoing saga about whether or not religious conservatives are exempt from walls prohibiting discrimination against LGBT people. This case involves a website designer. It's technically a free speech case. They are claiming that they have a right to produce wedding websites only for straight couples and not for same sex couples. You don't need that gay crap. There is a case called United States v. Texas. This is about whether or not the Biden administration has effective command and control over ICE, the Immigration Enforcement Agency. And then there's this case that really keeps me up at night.

Every civil rights lawyer I know is freaking out about it, called Health and Hospital Corporation of Marion County via Tlebsky. So there's all sorts of federal welfare programs, the most important of which is Medicaid, that essentially say, like, states, if you want to run a health care program for poor people, the federal government will give you a ton of money to do it with. But if they take the money, there are certain rules. You know, certain people have to be covered. There has to be a certain quality of care in facilities that take Medicaid. This lawsuit could potentially render the law saying that nursing homes aren't allowed to drug your mother or father, along with huge swaths of other laws, unenforceable. So it's a really big deal. Two cases, actually, I think a lot of people are paying close attention to are a case out of Harvard and a case out of the University of North Carolina that seek to eliminate affirmative action in college admissions.

I think we've maybe spoken about some of these on the show before. Yeah, so this is students for fair admission v. Harvard and students for fair admission v. Harvard and Students for Fair Admission v. UNC. And first of all, this group, Students for Fair Admission, is mostly a front group for a rich white guy named Ed Bloom. Like, you know, he's the big force behind these organizations. He would tell you, my goal was through the courts to restore the original vision of the civil rights movement. And that vision, as I grew up with it, was that your race and your ethnicity should not be a factor that is used to help you in some way or to harm you in some way. But there's a pattern. He has funded two lawsuits going after the Voting Rights Act. This is the second lawsuit that he's funded going after affirmative action in universities. predominantly Latino immigrant communities in Texas and to increase the power of white communities in the Congress and the state legislature. So like the pattern when you look at the sorts of cases that he backs is pretty clear. And if I remember correctly, he's using Asian American

students here to make the case that they're being discriminated against by affirmative action? That's right. It's especially true in the Harvard case. Based on my understanding, I think the fact that I'm Asian American plays a pretty big factor into why I was rejected. If you are the most spectacular high school student on the planet, you have a chance of getting into Harvard. They receive so many applications that they have to sort people somehow. And what the Supreme Court said in the Grutter case, this is a case from 2003, is the educational benefits that flow from student body diversity are substantiated by numerous expert studies and reports showing that such diversity promotes learning and better prepares

students for an increasingly heterogeneous workforce, for responsible citizenship, and for the legal profession. And so at Harvard, like, no one's getting into Harvard who isn't qualified. No one's getting in who doesn't have spectacular qualifications. But if they've got one seat left and it comes down between a white applicant and a black applicant or often comes down between an Asian applicant and a Latino applicant, if, you know, white people are more represented in the in the admitted students than black people are, or if Asian people are more represented than Latinos are, Harvard will sometimes say, well, let's give it to the students who will add more racial diversity to this incoming class. That's something they're allowed to do under Grutter. What these cases, the Harvard and UNC case, ask the Supreme Court to do is essentially overrule Grutter. So if the Supreme Court undoes affirmative action in college admissions, does that have some standing on like affirmative action writ large in the United States?

I mean, the answer is probably, you know, this case doesn't ask the question, you know, can an employer decide that they want to take steps for a more diverse workplace? But the Republican Party's position, you know, the position of conservative judges for as far back as I can remember on issues of affirmative action has has been like the so-called colorblind theory. You know, you know, the notion that a law that gives an advantage to a minority is just as bad as a law that gives an advantage to a white person. And they all must be struck down. So I think it's very unlikely that the Supreme Court's going to stop at university admission. Okay, so a range of issues coming up on this docket. Water pollution, freedom of religion, Native Americans, Medicaid, a lot of stuff.

But what occurs to me, Ian, is with the Dobbs decision, what made it so hard to swallow for most of the country was the fact that the Supreme Court is now wildly out of step with most of the country. Where does most of the country land on Medicaid or affirmative action, for example? I mean, I wonder if these issues even have as much polling as we certainly do on abortion. So the short answer is it depends a lot on, you know, on the particular issues. I think on most of these issues, left-leaning people have an advantage in popularity. On some of them, particularly affirmative action, I think that right people have an advantage.

But the Supreme Court has fairly consistently shown, I mean, we saw this in the Dobbs, with the Dobbs decision last term, they were very explicit about this, that they don't care about public opinion. They, you know, and if they behave the way that they did in the last term, they will hand down consistently conservative decision after conservative decision, regardless of whether those decisions are very unpopular. I guess this is what makes it kind of hard to determine whether this term will be more consequential than the last, because in the last term, you had this blatant disregard of public opinion on gun control, on abortion, of course. And here,

it almost feels like you could have this more insidious creep on democracy and this host of policies that you just told us about. And I don't know, to me, it feels like people might not notice as much because these aren't the big ticket items. This isn't abortion and this isn't the Second Amendment. Yeah, no, I think that's a good point. I mean, when Roe v. Wade was struck down, like almost the next day, people were being impacted by it in very dramatic ways. I mean, you did have clinics the same day, which suddenly had to stop performing abortions. If the Supreme Court abolishes democracy, like the next day, Joe Biden is still going to be president. He's still going to get to fill out his term.

You know, no matter what happens in Morvey Harper, there will still be something that looks like an election in 2024. The question is whether that election follows the sorts of rules where it is possible for either party to win, whether it is a fair election or whether you have a system that, you know, is increasingly more and more rigged so that only one party can prevail. The court has called the right to vote preservative of all rights. You know, if you can't choose the people who make the laws, then it doesn't matter what constitutional rights that you have. It doesn't matter what statutory rights you have because you're going to be governed by people who don't have your best interests in mind. The takeaway I want to leave folks with is that the potential is here

to fundamentally alter the relationship between every American and their own government. Ian Millhiser, you can read much more from him about the court at Vox.com. Our program today was produced by Siona Petros, edited by Amina Alsadi, engineered by Afim Shapiro and Paul Robert Mounsey, and fact-checked by Victoria Chamberlain and Laura Bullard. I'm Sean Ramos-Virham. This is Today Explained.