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--:-- Sean Rameswaram: Support for this episode of Today Explained comes from HelloFresh. They got pre-measured ingredients and easy-to-follow recipe cards that come straight to your door. And you can get $80 off your first month right now by going to HelloFresh.com slash Explained80 and entering the promo code Explained80.
--:-- Sean Rameswaram: The Supreme Court of the United States belongs to the part of the government that isn't shut down right now. The reason you're not hearing much about it is because most of the cases it's hearing are super... boring.
--:-- Sean Rameswaram: When Congress uses employee in Darden, but in Reed, the court used employment. Boring. But just to pause for a second, that I think is probably the function of maritime law here. And that is even if you disagree.
--:-- Sean Rameswaram: The president is trying to change that. There's so many big, big ticket cases that we're waiting to hear if the court's going to grant, in part because the Trump Justice Department keeps trying to fast track cases.
--:-- Sean Rameswaram: So Dahlia Lithwick writes about the court for Slate. So there's a whole bunch of big, big things with the possibility that in the next, you know, days, weeks, months, they add a couple of really blockbuster cases.
--:-- Sean Rameswaram: I asked her about the known knowns and the known unknowns of the Supreme Court's new term. We know they're hearing a slice of the census case. Just the very brief recitation of the facts is that the Commerce Secretary, Wilbur Ross, adds the citizenship question to the census for 2020 over objections even within the government.
--:-- Sean Rameswaram: There hasn't been a citizenship question on the census since 1950. And I think there's very good data that those kinds of questions will depress the count. And that has all sorts of implications for funding and for districting. So it's a big, huge deal.
--:-- Sean Rameswaram: Well, this week, Judge Jesse Furman in New York ordered it stopped. His order wasn't about big constitutional claims. It was really just the way it got done. He said that the way this decision was made was a, quote, egregious violation of what's called the Administrative Procedures Act.
--:-- Sean Rameswaram: That's basically just a law that says this is how you do stuff. There's a law that says if you have a way to collect data through your own administrative records, you don't ask the citizens about it. And I should add, this is a tick-tock as well, because if it's not done by this summer, the question cannot go on.
--:-- Sean Rameswaram: Counting people is obviously important for elections. And we know the Supreme Court is going to cover another question with huge implications for elections. Gerrymandering. Again. Yeah, gerrymandering is coming back.
--:-- Sean Rameswaram: These are political gerrymanders. These are gerrymanders that are drawn for political advantage rather than racial. And the court has just decided for a very, very long time to stay out of the political gerrymandering business.
--:-- Sean Rameswaram: Anthony Kennedy, who is no longer on the court, had been saying for a very long time, much of his career, I think maybe we should dive in on this. I'm waiting for the right vehicle and the right constitutional doctrine to come along. And they whiffed. They refused again. They kicked it back.
--:-- Sean Rameswaram: And so we don't have doctrine. And the cases they kicked away, one from North Carolina, that was a political gerrymander that benefited Republicans, one from Maryland, a political gerrymander that benefited Democrats. The court kicked them away and they're back.
--:-- Sean Rameswaram: The court has agreed to hear them. But I think that without Anthony Kennedy at the court, the notion that Justice Brett Kavanaugh is going to side with the liberals on the court and become a big believer that political gerrymanders can be justiciable and that there's some standard, I think, is a long shot.
--:-- Sean Rameswaram: So Kennedy was really concerned about getting gerrymandering figured out before he retired from the court and didn't. And now it just might not get figured out.
--:-- Sean Rameswaram: Yeah, I even had some reporting, and I don't think it's entirely wrong, that one of the reasons Kennedy stayed on that extra year last term was because he wanted to put the cherry on top and end his career having waited and waited and waited for the right vehicle.
--:-- Sean Rameswaram: But I think at the end, he just couldn't pull the trigger. And it's a little bit worrisome to think about the possibility of free and fair elections being eroded was kind of the last great judicial act of Anthony Kennedy.
--:-- Sean Rameswaram: OK now Dahlia shifting to the known unknowns there are all these cases the Trump administration wants fast to the court Yeah lots and lots A lot of these cases are cases that have not been fully litigated in the courts below Some of them have not gone on to the appeals court.
--:-- Dahlia Lithwick: In many instances, we have the Trump Solicitor General saying, never mind the lower courts, let's get this done in the high court. We have five votes now. some of the cases that could be huge, monster, consequential cases may come to the court. And if the court decides to take them absent, having been fully litigated below, that would be a shocker, too.
--:-- Dahlia Lithwick: One of the things the court is looking at now is whether to hear the DACA case. 17 months ago, Trump said he was going to terminate DACA. The effort to do so was enjoined nationwide by a court in California. And this is one of the issues that I think the court has to decide, but so far has not made a decision.
--:-- Dahlia Lithwick: The trans ban in the military is another one where Donald Trump, as you may recall, just announced it via tweet in June of 2017. A couple months later, there was an actual concrete proposal. Four different courts have enjoined that policy. Just this month, the D.C. Circuit Court of Appeal actually reversed one of those injunctions and said that trans ban could go into effect. That's pending at the Supreme Court.
--:-- Dahlia Lithwick: It's another one of those cases that the solicitor general had sort of leapfrogged to the Supreme Court last fall. And then I think the biggie that everyone's watching just because politically it's such a bombshell is the repeal of Obamacare. Right, which is what currently like most of the attorney generals in the country are fighting over this in the lower courts.
--:-- Dahlia Lithwick: Yeah, this was a kind of a cuckoo bananas. It was so partisan that even partisans who had been for the other Obamacare cases who hated Obamacare have come out saying this is the worst decision ever made. One district court judge in Texas essentially said when Congress zeroed out funding for Obamacare, it was effectively a repeal of the sort of tax. And since it's not a tax, the entire statute falls.
--:-- Dahlia Lithwick: Congress deliberately said we're not pulling down the rest of the statute. We're just zeroing it out. So for a court to say, oh, no, what Congress meant to do is the exact opposite of what they in fact did. Therefore, all of Obamacare falls is so bananas that even lawyers who wrote in support of the last Obamacare challenges have said this is nuts.
--:-- Dahlia Lithwick: I think this is actually a case that the Supreme Court just desperately doesn't want to hear. And there's a decent chance that even the very, very conservative Fifth Circuit Court of Appeal just ends this, puts it out of its misery before the Supreme Court has to be embarrassed by it.
--:-- Dahlia Lithwick: And I'm sure one of the reasons the Supreme Court doesn't want to deal with this again is because the last time it had to, it was pretty divisive and tough. And Roberts had to swing to the left a little bit to break a tie, right? I mean, Roberts has now voted with the, quote, liberals on the court twice in these Obamacare cases.
--:-- Dahlia Lithwick: It's the cardinal sin for which the conservative legal establishment and certainly Donald Trump are never going to forgive him. And if you look carefully at King versus Burwell, which is the last iteration of the Obamacare challenges at the court, Chief Justice Roberts wasn't even reluctant when he when he said go away. He more or less said in his majority opinion, don't bring your cockamamie theories to me and ask me to carry water for you.
--:-- Dahlia Lithwick: You know, dude, I'm a movement conservative with the rest of you, but I'm not nuts. Nothing, by the way, that I just said is verbatim from the opinion. I should be super. Nobody should be looking for the footnote cockamamie. But I think that the gist of his opinion in that case was like, I get it. I get it. You hate Obamacare. I hate Obamacare. But don't bring me nutty doctrine.
--:-- Sean Rameswaram: Now that Anthony Kennedy has stepped down and Brett Kavanaugh has replaced him, there's a sense that John Roberts is the new Anthony Kennedy. He is the new swing vote. Is that a fair sense, a fair depiction?
--:-- Dahlia Lithwick: Yes and no. I think empirically it is clear that he's the new swing vote. Last year, his voting pattern was actually almost indistinguishable from Anthony Kennedy's as the right wing of the court has moved to the right.
--:-- Dahlia Lithwick: So Clarence Thomas and Samuel Alito and Neil Gorsuch and I think probably Brett Kavanaugh will continue to tack to the right. Partly, I think, in response to that, we were seeing John Roberts tacking to the center. The reason I hesitate to emphatically agree is that he's still one of the most conservative jurists we've seen in our lifetimes.
--:-- Dahlia Lithwick: And I think it's really dangerous to say, oh, this is, you know, a centrist moderate in the model of Sandra Day O'Connor or Anthony Kennedy. He's been a reliable conservative vote all down the line. You know, no matter what the case is, Shelby County eviscerating the Voting Rights Act, Heller, the Second Amendment gun rights case.
--:-- Dahlia Lithwick: This is not so much about whether he is very, very conservative. There's no doubt that he is. I think it's a larger question about whether he is an institutionalist, a pragmatist, somebody who is thinking about his legacy as the chief. Those are the wheels that are in motion when you look at John Roberts.
--:-- Dahlia Lithwick: Not that doctrinally he's a centrist who sometimes swings left. I don't think that's what he is. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.
--:-- Dahlia Lithwick: When Roberts was confirmed, he made it clear that his goal was to be, you know, totally impartial. Trump doesn't see the justice system or judges that way. They file it in what's called the Ninth Circuit. This was an Obama judge. And I'll tell you what, it's not going to happen like this anymore.
--:-- Dahlia Lithwick: And Roberts called Trump out. Quoting the Chief Justice John Roberts here, We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.
--:-- Dahlia Lithwick: Swinging to the left might be one thing, but this is Roberts literally, you know, fighting the president in public over the legitimacy of the judiciary, right? It is, and I think it's really important to see John Roberts as really a direct descendant of Chief Justice William Rehnquist, who came before him.
--:-- Dahlia Lithwick: Rehnquist, too, became a very different institutional actor once he was elevated to Chief Justice. I think that Roberts takes very seriously the idea that the chief justice is not just a ninth justice who gets to assign opinions, not just the guy who's in charge of turning off the lights when you walk out of the court building.
--:-- Dahlia Lithwick: I think he really sees himself as the steward. I like to go sometimes on a quiet night to the conference rooms because the portraits on the walls, eight in one room and eight in the other, are all my predecessors as chief justice. And he sees that as being in his hands.
--:-- Dahlia Lithwick: He really takes that very seriously. And I think he feels that at the most basic level, right, the court has neither the power of the purse nor the sword. Its only authority is public legitimacy and public respect for what it does.
--:-- Dahlia Lithwick: You look up at Marshall and appreciate the importance for him of having the court function as a court, moving the court from a situation where each justice wrote his own opinion and instead saying, no, we're going to have an opinion of the court, which was vital in establishing the court in its present form.
--:-- Dahlia Lithwick: Congress could defund the courts tomorrow. We could turn the lights off and shut the water. It could be out of business. John Roberts, I think, lies awake at night worrying about that.
--:-- Dahlia Lithwick: And so when the court suffers a massive black eye the way it did over you know the Merrick Garland controversy definitely the way it did this fall over Brett Kavanaugh It John Roberts who takes a hit He really struggles to get people to be mollified into believing, no, no, no, no, this is not a political partisan institution.
--:-- Dahlia Lithwick: And so he'd never responded to Donald Trump delegitimizing the court for years, including, you know, times when Donald Trump went after individual judges by name. He responded this time, I think, in part because he really does feel like he needs to keep telling this story to the American public that, you know, justices are neutral umpires, they're oracles.
--:-- Dahlia Lithwick: The better question is whether he tells himself that story at night. I think, you know, does he really believe it? You know, all the data suggests that judges are political. But I think it's incredibly important for him to keep putting forth that story of there's no Obama judges, there's no Trump judges. We all just put the law first because the only way to get the public back online is to keep telling that story.
--:-- Dahlia Lithwick: Is the balls and strikes and umpires, that ideal, is that only true for the person who sits in the middle, for the one justice at any given time? You know, it's such an interesting problem.
--:-- Dahlia Lithwick: I always paraphrase a book by Keith Bybee. I think it's something like all judges are political except for when they aren't. The tension you're describing is the tension that, you know, we all have to hold in our heads, which is social scientists are definitive about the fact that, you know, conservative judges are conservative and liberal judges are liberal.
--:-- Dahlia Lithwick: They are creatures of the political environments in which they are raised more and more. You know, whether they're raised in the hothouse of the Federalist Society sort of family or the American Constitution Society, they are political actors. And when they get on the court, they act politically.
--:-- Dahlia Lithwick: And it's, I think, more and more the case that judges are on a team, whether they choose to admit it or not. And more and more the case that there is no center, there is no real swing at the court the way there was for most of history.
--:-- Sean Rameswaram: As we look forward to immigration and gerrymandering and the citizenship question and Obamacare and the transgender military ban, these hugely divisive issues that are heading to the court in the next few months, what does it mean that this conservative chief justice who historically has voted conservatively but has shown occasionally the capacity to swing to the left a little bit?
--:-- Dahlia Lithwick: I think that we have seen in the last few months and even years that he has the capacity when needed to steer the court to a more moderate, less dramatic path. He has the wherewithal and he's deployed it on numerous occasions now to say we're not going to go big. We're going to do this small. We're going to do this in a narrow way. we're going to kick this case back for somebody to take another look.
--:-- Dahlia Lithwick: But I think that it would be a mistake to say this is a person who has become a centrist or a moderate because I don't believe that's the case. I think this is a person who's deeply passionately concerned that the court not be a political football. And so if he has to do one or two big things this term and leave two big things to next term, I could see that happening.
--:-- Dahlia Lithwick: I think the more interesting question, and I think it's early days, I don't yet know, if in reaction to Donald Trump and Trumpism and Trump's kind of utter contempt for the rule of law and the Constitution and checks and balances and the notion of co-equal branches of government, if that could change who John Roberts is.
--:-- Dahlia Lithwick: And in some of the cases you're describing, be it DACA or the trans ban or the census case, in some sense when Trumpism itself is on the line, it'll be interesting to see how the John Roberts who kind of clapped back at Trump this winter, if he's going to become a different person in response to that.
--:-- Sean Rameswaram: Dahlia Lithwick hosts the Amicus podcast for Slate. It's about the Supreme Court of the United States. I'm Sean Rameswaram from This is Today Explained.
--:-- Sean Rameswaram: Thanks to HelloFresh for supporting the show today. They got pre-measured ingredients and easy recipes that come straight to your door. And you can get $80 off your first month by going to HelloFresh.com slash Explained80 and entering the promo code Explained80.
