--:-- Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.
--:-- Ian Millhiser: Thanks for having me on the show.
--:-- Sean Rameswaram: Ian Millhiser covers the Supreme Court for Vox. The court begins a new term today. The last one, as I recall, was kind of sleepy. What's on deck this time?
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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?
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Now, why that is so difficult is that there's no law that compels the hospital to give an abortion provider admitting privileges.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: But here's the thing, like the complication rates for abortion are vanishingly small and it's less than one percent 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.
--:-- Sean Rameswaram: So it's kind of a backdoor way to prevent abortions from happening.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: And the Supreme Court certainly heard many challenges to Roe v. Wade. Is this one similar to one that's come before?
--:-- Ian Millhiser: Yeah, no, people might be having déjà 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And the change here isn't that this law is particularly different. The change here is that the 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: But I do remember Justice Kavanaugh in his confirmation hearings saying that he believed that Roe v. Wade was settled law.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: So when he wasn't in his confirmation hearing, he gave a very different impression about what he thinks about Roe.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Roe v. Wade decided in 1973 he's oppressed in the United States Supreme Court.
--:-- Ian Millhiser: Has Gorsuch done anything like that? Do we know where he stands on abortion?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Gorsuch pretty strongly backed the side that wanted to defund Planned Parenthood.
--:-- Ian Millhiser: So I don't have too many doubts about how he views abortion.
--:-- Sean Rameswaram: And in addition to divisive issues like abortion the Supreme Court will also take up things we all agree on like immigration.
--:-- Ian Millhiser: That right. There are two big cases that I think touch on immigration.
--:-- Sean Rameswaram: The first is a case asking whether the Trump administration can wind down the DACA program.
--:-- Ian Millhiser: I think it's very likely that they're going to say, yes, they can do that.
--:-- Sean Rameswaram: The immigration policy allows protection of immigrants living in the U.S. who were brought here illegally into the country as children.
--:-- Ian Millhiser: Doesn't that program originate from the White House anyway with Obama?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: They're allowed to work while they're in this country and they get certain federal benefits.
--:-- Sean Rameswaram: The Trump administration decided to wind this program down.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: If you change a policy, typically the federal government has to explain why they did so.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And the only thing that happened here is that the Trump administration gave a legal justification and not a policy justification.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Oh, wow. Yeah. Big deal. Yeah, very big deal.
--:-- Ian Millhiser: And there's another immigration case in addition to that one.
--:-- Sean Rameswaram: There is. This is only tangentially related to immigration, but it really goes to the values underlying our immigration system.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: The agent was in the U.S. The boy was 60 feet away in Mexico.
--:-- Ian Millhiser: Now the boy's family wants to sue, saying the agent violated their son's constitutional rights.
--:-- Sean Rameswaram: There's a bit of disagreement as to what happened in the events leading up to this.
--:-- Ian Millhiser: But the border guard took out his gun, fired two shots across the Mexican border, and killed a 15-year-old boy.
--:-- Sean Rameswaram: Cell phone video shows the boys running away from the fence in America as Agent Jesus Mesa arrives.
--:-- Ian Millhiser: Agent Mesa then takes one of the boys into custody. The rest run back into Mexico.
--:-- Sean Rameswaram: Video then appears to show Agent Mesa handcuffing the boy on the ground when rocks are thrown at him.
--:-- Ian Millhiser: That's when Mesa turned around and shot Hernandez.
--:-- Sean Rameswaram: And the question here is whether that boy's family can sue the guard and get money damages directly from that border agent.
--:-- Ian Millhiser: The lower court in this case said, you know, these border guards are doing really important national security work.
--:-- Sean Rameswaram: They're keeping people out of the country that we don't want in the country.
--:-- Ian Millhiser: And we don't want them to hesitate when they have to make a split second decision.
--:-- Sean Rameswaram: And if we impose this kind of liability on them, they might hesitate and that would be bad.
--:-- Ian Millhiser: So it's really just a case about like conflicting values.
--:-- Sean Rameswaram: Do we believe that federal agents need to be accountable and that with their power comes great responsibility?
--:-- Ian Millhiser: 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?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And then there's Obamacare again.
--:-- Sean Rameswaram: Right. So the Affordable Care Act, as it was originally enacted, has an individual mandate.
--:-- Ian Millhiser: If you don't have health insurance, you have to pay higher taxes.
--:-- Sean Rameswaram: The tax law in 2017 reduced those taxes to zero.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: And the legal issue, I mean, it's hard for me to be hyperbolic in describing how ridiculous this case is.
--:-- Ian Millhiser: 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 Obamacare is unconstitutional.
--:-- Sean Rameswaram: And by reducing the tax to zero that made the zeroed out mandate unconstitutional.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: So all told, this term is going to be a doozy.
--:-- Ian Millhiser: Yeah. Don't forget the LGBT cases. And we haven't even gotten to the LGBT cases yet.
--:-- Sean Rameswaram: That's right. We'll do that after the break.
--:-- Sean Rameswaram: I've got great news for anyone out there who loves Court TV.
--:-- Ian Millhiser: And maybe you can even guess what this news is going to be.
--:-- Sean Rameswaram: Yes, Court TV has a podcast. And guess what? It's called the Court TV Podcast.
--:-- Ian Millhiser: If you love how Court TV takes you inside the courtroom for the most talked about trials in the country, then you're going to love the Court TV Podcast.
--:-- Sean Rameswaram: If you love Court TV anchors, Vinnie Palatan and Seema Iyer, then you're going to love the Court TV podcast because they're the hosts.
--:-- Ian Millhiser: They do deep dives into the real life deceptions and betrayals and yes, the murders that lead to justice in the courtroom.
--:-- Sean Rameswaram: You can find the Court TV podcast right now, wherever you find your other not Court TV podcasts.
--:-- Ian Millhiser: Check it out.
--:-- Sean Rameswaram: So Ian, what's going on with the Supreme Court and LGBT rights this term?
--:-- Ian Millhiser: The U.S. Supreme Court is set to consider transgender rights for the first time.
--:-- Sean Rameswaram: Yeah, this case is massive. There's so many layers to this case.
--:-- Ian Millhiser: This case and two others could affect thousands of workplaces.
--:-- Sean Rameswaram: With this case asking the question, is transgender status discrimination sex discrimination?
--:-- Ian Millhiser: So we've got three cases being argued tomorrow.
--:-- Sean Rameswaram: The first two involve gay plaintiffs who allege that they were fired because of their sexual orientation.
--:-- Ian Millhiser: And the issue in that case is whether you can be fired for being gay or for sexual orientation generally.
--:-- Sean Rameswaram: So the two cases are Altitude Express v. Zarda and Bostock v. Clayton County.
--:-- Ian Millhiser: What happened in each of these cases?
--:-- Sean Rameswaram: It's two gay men who claim that the reason that they lost their jobs is because they are gay.
--:-- Ian Millhiser: One guy was a government worker in Georgia.
--:-- Sean Rameswaram: The other was a skydiving instructor from New York.
--:-- Ian Millhiser: Wow. Yeah, and the facts of this case are a little weird.
--:-- Sean Rameswaram: The skydiving instructor?
--:-- Ian Millhiser: The skydiving instructor. Yeah.
--:-- Sean Rameswaram: He would do tandem jumps with people who weren't experienced skydivers.
--:-- Ian Millhiser: And apparently a thing that he liked to do when he was strapped to a woman is he would tell that woman that he is gay in a way of, I guess, reassuring her that, like, there wasn't a sexual interest there.
--:-- Sean Rameswaram: Yeah.
--:-- Ian Millhiser: And somehow that led to the employer, at least he alleges, finding out that he was gay and deciding that they did not want to have this person working for them.
--:-- Sean Rameswaram: You said there are three cases on this issue being sort of lumped together tomorrow.
--:-- Ian Millhiser: What's case three?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: The case involving Amy Stevens. She worked at a funeral home, came out as trans, started presenting as a woman.
--:-- Sean Rameswaram: And the boss said that men have to wear male suits and women have to wear female suits.
--:-- Ian Millhiser: And he decided that she is a man, so she must wear the male suit and tie.
--:-- Sean Rameswaram: And if she did not present as a man, then she could not work for his funeral home.
--:-- Ian Millhiser: The Department of Justice filed a brief in the Supreme Court saying transgender discrimination is not prohibited by Title VII.
--:-- Sean Rameswaram: The group representing the funeral home arguing that Congress didn't include trans people when the Civil Rights Act of 1964 was passed.
--:-- Ian Millhiser: Which says it is illegal to fire someone because of sex.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Because it was about women.
--:-- Ian Millhiser: The federal government banned hiring of gay people entirely until 1975.
--:-- Sean Rameswaram: So I don't think anyone thinks that in 1964, Congress passed this law intending to prevent gay or trans discrimination.
--:-- Ian Millhiser: Yeah. That said, the words of the law are really expansive. No discrimination because of sex.
--:-- Sean Rameswaram: And I should clarify that sex here means gender, not sexual intercourse.
--:-- Ian Millhiser: And if sex is in any way part of the calculus, it's illegal.
--:-- Sean Rameswaram: Sounds like you're talking about what the Supreme Court types like to call textualism.
--:-- Ian Millhiser: Right. Textualism or originalism
--:-- Sean Rameswaram: What exactly is that?
--:-- Ian Millhiser: Originalism is sort of a subspecies of textualism
--:-- Sean Rameswaram: Textualism means you governed by the text
--:-- Ian Millhiser: That the only thing that is relevant to your decision
--:-- Sean Rameswaram: Originalism says that when you consult the text, you give it the meaning it had when it was adopted, not some later modern meaning.
--:-- Ian Millhiser: And that's part of what makes this case so interesting, is you have a number of very conservative members of the Supreme Court.
--:-- Sean Rameswaram: Clarence Thomas, Neil Gorsuch. People who live and die by the letter of the law.
--:-- Ian Millhiser: Exactly. They say it doesn't matter what Congress thought it was doing in 1964.
--:-- Sean Rameswaram: The only thing that matters is the text.
--:-- Ian Millhiser: So this is a case of whether we can really trust these guys.
--:-- Sean Rameswaram: 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?
--:-- Ian Millhiser: 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?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: That's exactly right.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: It doesn't matter what Congress thought it was doing in 1964.
--:-- Ian Millhiser: That's what the precedents say.
--:-- Sean Rameswaram: You have at least two conservative justices who have said over and over again, the only thing that matters is textualism.
--:-- Ian Millhiser: And so we're going to find out whether they mean it.
--:-- Sean Rameswaram: We're going to find out whether they're willing to apply their principles when it hurts.
--:-- Ian Millhiser: It's funny that you present this sort of dichotomy between whether this is about the law or whether this is 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.
--:-- Sean Rameswaram: Abortion, immigration, Obamacare, LGBT rights.
--:-- Ian Millhiser: How much do you think that's weighing on Chief Justice John Roberts and his fellow justices?
--:-- Sean Rameswaram: That is the single most important question in Supreme Court land right now.
--:-- Ian Millhiser: I mean there is a reason why Merrick Garland is not on the Supreme Court.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And the reason why is because it matters who sits on the court.
--:-- Sean Rameswaram: We get very different policy and political outcomes depending on who sits on the court.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Why should they have this power if at the end of the day all that they're doing is engaging in politics?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Can the politics of the Supreme Court end up influencing this next election?
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Could a decision on abortion or Obamacare or LGBT rights just as easily energize Democrats?
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Historically, courts have been something that have really charged up Republicans and that Democrats just haven't paid that much attention to.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: But if anything can do it, it's going to be this extraordinarily contentious term that we've got coming up.
--:-- Ian Millhiser: Ian Millhiser reports on the Supreme Court for Vox.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Find it over at Vox.com.
--:-- Sean Rameswaram: I'm Sean Rameswaram from this is Today Explained. Thank you.
