--:-- [Sound of a podcast intro]
--:-- Sean Rameswaram: Welcome to Today Explained. I'm your host, Sean Rameswaram.
--:-- Ian Millhiser: Thanks for having me on the show.
--:-- Sean Rameswaram: Ian Millhiser is Vox's Supreme Court correspondent. He's here to talk about the new Supreme Court term. Ian, this session has the potential to be even more consequential than the last one. Really? Do you remember the last Supreme Court session?
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: And he was all, Yep. Yeah, exactly. That's coming up on Today Explained.
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--:-- Sean Rameswaram: You're listening to Today Explained. Is it Today Explain or Try Explains? Explain. Explain. Explain.
--:-- Ian Millhiser: 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.
--:-- Ian Millhiser: This is a truth. This is a truth. How on earth could that be, Ian? What are they going to undo now, like Bush v. Gore?
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: And without the right to vote, without the right to choose your own leaders, you don't have anything.
--:-- Ian Millhiser: You know, you can't keep the right not to face discrimination if you can't keep electing lawmakers who believe in anti-discrimination.
--:-- Sean Rameswaram: So this is potentially the ballgame. They are taking these massive democracy cases this term.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: OK, 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.
--:-- Ian Millhiser: Let's talk about it. Which cases could threaten American democracy?
--:-- Sean Rameswaram: So the case that keeps me up at night is a case called Moore v. Harper.
--:-- Ian Millhiser: When I originally wrote up this case, I described it as the biggest threat to U.S. democracy since the January 6th attack.
--:-- Sean Rameswaram: It deals with something called the independent state legislature doctrine, which is a terrible phrase that no one can remember.
--:-- Ian Millhiser: The independent state legislature doctrine. Yes, it just rolls off the tongue.
--:-- Sean Rameswaram: So the Constitution says that the rules for federal elections, for congressional elections, for presidential elections, shall be set by state legislatures.
--:-- Ian Millhiser: And the question is, what does the word legislature mean?
--:-- Sean Rameswaram: The Supreme Court's answered that question. They've answered that question many times over the course of the last more than 100 years.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: So in some states, you can make a law through a ballot initiative.
--:-- Ian Millhiser: And if the state wants to make an election law through a ballot initiative, that's fine.
--:-- Sean Rameswaram: In some states, the governor can veto laws.
--:-- Ian Millhiser: And if the governor vetoes an election law, that's fine.
--:-- Sean Rameswaram: That's how the rules have always worked.
--:-- Ian Millhiser: That is the status quo right now in America. That is the status quo.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Take a state like North Carolina. There's a big fight about gerrymandering going on in North Carolina.
--:-- Sean Rameswaram: You've got a Republican state legislature. You've got a Democratic Supreme Court.
--:-- Ian Millhiser: So right now, the Democratic Supreme Court can prevent that Republican state legislature from drawing egregiously gerrymandered maps.
--:-- Sean Rameswaram: What this case wants to say is, nope, the state Supreme Court isn't allowed to enforce the state constitution.
--:-- Ian Millhiser: Whatever that Republican legislature wants, that's fine.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And there would be absolutely nothing anyone could do about it.
--:-- Sean Rameswaram: And if you have those four states lined up in the Republican column, it's basically impossible for a Democrat to win the presidency.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: But you're saying because state legislatures are so gerrymandered at this point, it is anti-
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: You have the state house, the state senate, they pass a bill.
--:-- Ian Millhiser: The governor can veto the bill.
--:-- Sean Rameswaram: And then if the governor signs the bill, it can violate the constitution.
--:-- Ian Millhiser: So if the state constitution says it has a right to vote, the state constitution says it has 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.
--:-- Sean Rameswaram: The way things work now is that that state constitution wins.
--:-- Ian Millhiser: Like, you know, the legislature can't pass a bill that violates the state constitution.
--:-- Sean Rameswaram: This case potentially eliminates every single voting rights protection in every state constitution throughout the country.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: So 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.
--:-- Ian Millhiser: But you're saying because state legislatures are so gerrymandered at this point, it is anti-
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: You have the state house, the state senate, they pass a bill.
--:-- Sean Rameswaram: The governor can veto the bill.
--:-- Ian Millhiser: And then if the governor signs the bill, it can violate the constitution.
--:-- Sean Rameswaram: So if the state constitution says it has a right to vote, the state constitution says it has 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.
--:-- Ian Millhiser: The way things work now is that that state constitution wins.
--:-- Sean Rameswaram: This case potentially eliminates every single voting rights protection in every state constitution throughout the country.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: What's the story behind this case? Why is anyone lobbying for this to begin with?
--:-- Ian Millhiser: The weird story here is that this comes out of Bush v. Gore.
--:-- Sean Rameswaram: An important win for Vice President Al Gore.
--:-- Ian Millhiser: NBC News projects that he wins the 25 electoral votes in the state of Florida.
--:-- Sean Rameswaram: In Bush v. Gore, there was a recount of Florida's races.
--:-- Ian Millhiser: The networks give us, the networks take it away.
--:-- Sean Rameswaram: NBC News is now taking Florida out of Vice President Gore's column.
--:-- Ian Millhiser: Bush was on top.
--:-- Sean Rameswaram: So Bush wanted the recount to stop because when you're on top, you don't want anything to happen to change it.
--:-- Ian Millhiser: Right. Gore wanted some counties to be recounted.
--:-- Sean Rameswaram: There was a big fight over it.
--:-- Ian Millhiser: There was a state Supreme Court fight.
--:-- Sean Rameswaram: We still do not know the outcome of yesterday's vote.
--:-- Ian Millhiser: And I realize that this is an extraordinary moment for our democracy.
--:-- Sean Rameswaram: The election was close.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Wow. Dream team.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And you need someone to tell you who it applies to.
--:-- Sean Rameswaram: That body is the state Supreme Court.
--:-- Ian Millhiser: That's what state Supreme Courts are there for.
--:-- Sean Rameswaram: But this was an argument that came out of Bush v. Gore.
--:-- Ian Millhiser: Several of the current justices were part of that team.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: Four members of the court have endorsed this theory.
--:-- Sean Rameswaram: Oddly enough, Amy Coney Barrett, because she hasn't been on the court very long, hasn't yet endorsed it as a justice.
--:-- Ian Millhiser: So basically, the hopes for democracy hang on Amy Coney Barrett, this former member of George W. Bush's legal team.
--:-- Sean Rameswaram: More with Fox's Supreme Court correspondent Ian Millhiser in a minute.
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--:-- Ian Millhiser: Oye! Oye! Oye! Oye! Oye!
--:-- Sean Rameswaram: Hey, notice! That's a game!
--:-- Ian Millhiser: Explained. Today, Explained, back with Ian Millhiser, who writes about the Supreme Court here at Vox.
--:-- Sean Rameswaram: He admitted that an upcoming case called Moore v. Harper keeps him up at night.
--:-- Ian Millhiser: But that isn't the only one this term that could reshape American democracy.
--:-- Sean Rameswaram: So the other it's called Merrill v. Milligan.
--:-- Ian Millhiser: This is a case about Alabama's congressional map in Alabama.
--:-- Sean Rameswaram: About 27 percent of state is African-American, according to the most recent census numbers.
--:-- Ian Millhiser: But the state drew a map where blacks will only be represented by 14 percent of the congressional delegation.
--:-- Sean Rameswaram: So black Alabamans will have about half as much representation as you would expect.
--:-- Ian Millhiser: Sounds like some some classic gerrymandering.
--:-- Sean Rameswaram: It looks pretty hinky.
--:-- Ian Millhiser: And a panel that included two Trump judges said, yeah, this is a racial gerrymandering.
--:-- Sean Rameswaram: You can't do this.
--:-- Ian Millhiser: Now, Alabama does have some factual arguments dealing with how close the black residents of Alabama live together.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: But in their brief like that not the thrust of their argument.
--:-- Sean Rameswaram: Their thrust of the argument is no we should destroy the provisions of the Voting Rights Act which prevent racial gerrymanders.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: If they'll also do nothing about racial gerrymanders, then that means that there's just no safeguards against gerrymandering.
--:-- Sean Rameswaram: And the Voting Rights Act has already been somewhat neutered.
--:-- Ian Millhiser: Yeah, there's been three big decisions, Shelby County, Abbott v. Perez, and Brnovich v. DNC, all of which have taken extraordinarily deep cuts.
--:-- Sean Rameswaram: Shelby County deactivated what's called the preclearance regime.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: That is pretty much gone after Shelby County.
--:-- Ian Millhiser: Any racial discrimination in voting is too much.
--:-- Sean Rameswaram: But our country has changed in the past 50 years, and therefore we have no choice but define that it violates the Constitution.
--:-- Ian Millhiser: The court has weakened the safeguards against voting laws that are enacted with racist intent.
--:-- Sean Rameswaram: In the Abbott case, in the Brnovich case, they eliminated many of the protections against laws which have racist effects.
--:-- Ian Millhiser: I think the key conceptual point here to understand is that Arizona has not denied anyone any voting opportunity of any kind.
--:-- Sean Rameswaram: When an eligible voter casts a ballot and that ballot is discarded rather than counted, that voter has been denied the right to vote.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: So it's a really big deal.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: I think we've maybe spoken about some of these on the show before.
--:-- Ian Millhiser: Yeah, so this is Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC.
--:-- Sean Rameswaram: And first of all, this group, Students for Fair Admission, is mostly a front group for a rich white guy named Ed Bloom.
--:-- Ian Millhiser: Like, you know, he's the big force behind these organizations.
--:-- Sean Rameswaram: He would tell you, My goal was through the courts to restore the original vision of the civil rights movement.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: But there's a pattern.
--:-- Ian Millhiser: He has funded two lawsuits going after the Voting Rights Act.
--:-- Sean Rameswaram: This is the second lawsuit that he's funded going after affirmative action in universities.
--:-- Ian Millhiser: He was the driving force behind a lawsuit that sought to reduce the power of predominantly Latino immigrant communities in Texas and to increase the power of white communities in the Congress and the state legislature.
--:-- Sean Rameswaram: So like the pattern when you look at the sorts of cases that he backs is pretty clear.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Especially true in the Harvard case.
--:-- Ian Millhiser: Based on my understanding, I think the fact that I'm Asian American plays a pretty big factor into why I was rejected.
--:-- Sean Rameswaram: If you are the most spectacular high school student on the planet, you have a chance of getting into Harvard.
--:-- Ian Millhiser: Like, you know, they receive so many applications that they have to sort people somehow.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: And so at Harvard, like no one's getting into Harvard who isn't qualified.
--:-- Sean Rameswaram: No one's getting in who doesn't have spectacular qualifications.
--:-- Ian Millhiser: But if they've got one seat left and it comes down between a white applicant and a black applicant, or often it comes down between an Asian applicant and a Latino applicant.
--:-- Sean Rameswaram: If, you know, white people are more represented 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.
--:-- Ian Millhiser: That's something they're allowed to do under Grutter.
--:-- Sean Rameswaram: What these cases, the Harvard and UNC case, asked the Supreme Court to do is essentially overrule Grutter.
--:-- Ian Millhiser: 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?
--:-- Sean Rameswaram: 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?
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: So I think it's very unlikely that the Supreme Court is going to stop at university admission.
--:-- Sean Rameswaram: OK, so a range of issues coming up on this docket, water pollution, freedom of religion, Native Americans, Medicaid, a lot of stuff.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: Where does most of the country land on Medicaid or affirmative action, for example?
--:-- Ian Millhiser: I mean, I wonder if these issues even have as much polling as we certainly do on abortion.
--:-- Sean Rameswaram: So the short answer is it depends a lot on, you know, on the particular issues.
--:-- Ian Millhiser: I think on most of these issues, left leading people have an advantage in popularity on some of them, particularly affirmative action.
--:-- Sean Rameswaram: I think that right people have an advantage.
--:-- Ian Millhiser: But the Supreme Court has fairly consistently shown.
--:-- Sean Rameswaram: We saw this in the Dobbs with the Dobbs decision last term.
--:-- Ian Millhiser: They were very explicit about this, that they don't care about public opinion.
--:-- Sean Rameswaram: 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.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: And I don't know, to me, it feels like people might not notice as much because these aren't the big ticket items.
--:-- Ian Millhiser: This isn't abortion and this isn't the Second Amendment.
--:-- Sean Rameswaram: Yeah, no, I think that's a good point.
--:-- Ian Millhiser: I mean, when Roe v. Wade was struck down, like almost the next day, people were being impacted by it in very dramatic ways.
--:-- Sean Rameswaram: You did have clinics the same day, which suddenly had to stop performing abortions.
--:-- Ian Millhiser: If the Supreme Court abolishes democracy, like the next day, Joe Biden is still going to be president.
--:-- Sean Rameswaram: He's still going to get to fill out his term.
--:-- Ian Millhiser: You know, no matter what happens in Moore v. Harper, there will still be something that looks like an election in 2024.
--:-- Sean Rameswaram: 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.
--:-- Ian Millhiser: The court has called the right to vote preservative of all rights.
--:-- Sean Rameswaram: You know, if you can't choose the people who make the laws, then it doesn't matter what constitutional rights that you have.
--:-- Ian Millhiser: 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.
--:-- Sean Rameswaram: 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: Ian Millhiser, you can read much more from him about the court at Vox.com.
--:-- Sean Rameswaram: Our program today was produced by Siona Petros.
--:-- Ian Millhiser: Edited by Amina Alsadi.
--:-- Sean Rameswaram: Engineered by Afim Shapiro and Paul Robert Mounsey.
--:-- Ian Millhiser: And fact-checked by Victoria Chamberlain and Laura Bullard.
--:-- Sean Rameswaram: I'm Sean Rameswaram.
--:-- Ian Millhiser: This is Today Explained.
--:-- Sean Rameswaram: Support for this show comes from Macy's.
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--:-- Sean Rameswaram: Shop in-store or online at macy's.com.
