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Progressives' Supreme Court problem


Vox's judiciary reporter Ian Millhiser joins Matt to analyze the Supreme Court's new term and what the left gets wrong about the courts.


Ian Millhiser, (@imillhiser) Senior Correspondent, Vox


Matthew Yglesias (@mattyglesias), Senior correspondent, Vox

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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Ass Andrew and I use that experience to dig even deeper into latest tech for smartphones too? I max to electric cars, so have you got your lover or attack head or if you just want to figure out whether the latest gadget is worth your harder in cash. Give us a lesson: sacred fine formed the empty beefy pike ass on your favorite Pakistan. Every Friday, see over there Queen Cor to starting a new term this week and conveniently boxer com- has a new Supreme Court correspondent on staff in male Heizer he's a great guy. I worked with him years and years ago, I'm so glad to be working with them again was really excited sit down recorded upset with them, but this report determine and more broadly sort of how to think about judicial issues. Did you really like this one alone welcome to another set of weeds, only bucks media podcast network? I Matthew places I joined today, but you will Heizer here.
A new senor, correspondent, Heerd Box. I com own colleague of mine from thing progress long ago are IP are IP yes and ate a wise voice and questions related to the judiciary. And related matters. The supreme Court is gearing up for a new tab, and I really wanted in come on. Tell us like what's what's on the agenda, but what can we expect? Who boy? tat brain yes, so here's the thing I mean the new. That's going on in the background is every time you open up the paper. There's a new bombshell about Donald Trump and people. Ask them, Why were republicans willing to let this guy be president and This term is the answer. You know we have a case, that's pride and severely undercut abortion rights. We ve got the biggest employment discrimination case Thirdly, in the last thirty years, a big guns case that can massively exe and the second amendment we ve got
darker in another huge immigration case. That literally deals with whether a boy regard, can get away with shooting someone across the mexican border and so vague the mt of policy change were likely to see over the course of this term is to be extraordinary and so much It is on issues that are the core issues that republican constituencies Coquette care so much about right. So I mean abortion is obvious. Like an obvious one. This is famous. Where are you about this? All the time, Kennedy had been sympathetic to abortion rights plaintives. In many cases, I think the great fear, Slash hope was at replacing them with a more orthodox conservative. Will produce a flip on on that. But can you guess what what does the case say, because I think a big big dispute in the in the hot take so right has been like wolves imports say where we wade was wrongly design,
and there is no right to privacy or right privacy doesn't extend to abortion. Yes, this is touch on that real good quit I mean it possible that the Supreme Court will never actually write the words Roby Wade is overall, but that doesn't mean that there still gonna be all right to an abortion. So this case involves would allow Abortion advocates called trap laws which are just laws Dont really do anything except make it really really hard to operate an abortion clinic. This particular law requires abortion providers? Wheezy Anna tainted meeting privileges at a nearby hospital if they want to perform an abortion that may sound for failure to you the reason it might sound familiar to use because the Supreme Court struck down a Texas law that did the exact same thing. Just years ago? So, like the decision to replace Kennedy with Cavenaugh, has really is really gonna matter here. But the point of this is you don't have to act,
strike down Roby weighed in order to eliminate the right to an abortion. If states can enact these so called trap laws theoretically a stake, they ok, you can have all the abortion clinics you want, but they have to be built out of solid gold here, you know like you, you can put in place restrictions that make it so expensive to operate a clinic that they all, wind up shutting down? Why were so that, sir? one one possible outcome here. It seems like a like the one like this. This is these laws are designed to not explicitly raise that sort of core question right, right, although let me there is actually a really interesting debate amongst abortion opponents about what the right strategies to go hard after a row. Part of the reason they pass these trap laws is because, when Justice Kennedy was this, the key vote rather like Kennedy kind of surprise. Surprise me when he struck down the Tipp of the Texas LAW, because Kennedys pattern up to that point is
that he upheld virtually every antiabortion law that came before him. He just you, wouldn't Say Roby is overruled so like the theory behind these laws was well. Let's see how far Kennedys willing to go with this theory, and it turns out not that far so I'm gonna throw them old pregnant here, because I know most legal analysed disagree with me, but I think that conservatives thing that Roby Wade is really bad not just like wrongly decided by one of the great moral scandals of all time, and so I think that if they uphold these laws, You know that I think that either they'll be like a shocking some bright eyes and, like Cavanaugh, turns out to be pro choice or they will loud and proud, say we are reading the constitution of this dossier and I dont think we're gonna see some like clever John Roberts power. Thinking of this, that, like people
you know, people who could conservatives who have views about like the authority of the consumer Financial Protection Bureau right are like that's like lawyer, Lee yeah stuff, but like abortion, sudden emotional issue- and I expected emotion- will you gotta go against, nor think the internal dynamics within the republican majority of the court matter a here. So if you look at people like Thomas or Gore such like their opinions, If we say I want at all- and I want it now and by Roberts an elite, oh and during a short time on the bench, Cavanaugh have shown some ability to be more strategic and to think about. What's the next incremental VIC they want to get the danger. Is that abortion? is such a big deal for these folks that maybe Roberts wants to do something incremental and strategic and corset It's the now now now now opinion, and then you do it right
Its loses everyone else, and so now he's writing a soul opinion. Here is that you he may just mine, exactly what happened and Citizens United Robert actually wrote a narrow citizens United Opinion, and he lost his majority and said: ok, I guess I'll go along with the whole thing that right, so ok, so so what else do we have a visa? Is this a gun case yeah so this is a case out of New York on, and I should point out that the gun advocates worthy begun control advocates want this to be to go away so badly that New York City got rid of the regulation, that is at issue and New York state passed a law saying never ever do that again New York City, because they want the case to be declared moot then thrown out the ex lol at issue. Ah, it's really small potatoes. Actually, so there two different, types of gun licences you can get in New York City. If you get the less permissive, the easier to get licence
then you are only allowed to have a gun in your home and you're allowed to bring it to seven different, shooting ranges to practice shooting some of these planets want to bring it to different. Shooting ranges and that's it. One of them has to homes, and he wants to go to take his guns in between the two houses and that's it so really small potatoes stuff here by The reason why it matters so much is that Kennedy didn't like justice, Evans shortly before he died for I'm retired justice. Stevens disclosed that can the when the Supreme Court handed down its landmark. Second amendment decision, two thousand eight Heller Decision Kennedy had sort of prevail. Hold on because the other Republicans to be like hey can reward. This down a lid on Yo Yo, can we say that, like maybe like islands, the mental ill shouldn't have guns. You know, maybe were dangerous. Unusual weapons is the arm term and
He's not there anymore to ordered these things tat way, and so the fear is that if the Supreme Court takes up any second amendment like and use it as the vehicle to massively expand the SEC man, even if it sort of a small potatoes, regulated this should have been going like legally. This is like the opposite of where the abortion jurisprudence has been going right. We're like currently the Supreme Court says there is an individual right to own guns. In the second amendment, but no practical sense like jurisdictions, there really don't like. But having guns still have a lot of scope right to regulate that and what it means, unlike in practice- We believe and I live in DC. At least it's like you still can't really get a gun here. Right, like notwithstanding Heller up, there are no gun stores right, for example.
And you know, but you could say no like we're gonna make this like up like a real right right. There's almost no restriction on what you can do, so the Supreme Court decided Heller in two thousand eight, which was the first first decision ever to say: there's an individual right under the second amendment tone a firearm and they basically, nothing else, since that I mean there's one casing that oh yeah Heller applies to the states to, but since two thousand eight they just haven't fleshed out at all. The lower courts, however, have like formed a pretty clear consensus and that clear consensus is if something is in the horror of the second amendment, which is like self defence in the home and, like you know, basic stuff like that then like we're Prague and strike down anything that it that's an incursion on that. But the further you you get away from core the more likely it is to be upheld and in practice, lots of things are getting a pal cavanaugh as a lower court.
Wrote a dissenting opinion where we disagreed with that whole framework, and so like that's a big reason why the stakes are so big here is because, basically, since Heller he's been this framework of lower courts have been applying. That's fairly. Permissive of control and danger is that the Yom V New majority is gonna, throw all of that out and put in place some that is much more favourable to the energy. So ok, so those are kind of like that. The hop button, bright cultural shoes. I think this is a lot of what people think about when they think about this. We inquired, but this also a lot of like economic policy, rough stuff, Laming lining up there you mentioned employment law, caveat up anything else, sir. She would go deeper on that. One so that means that I'd like to get really deep, whether with his employment discrimination cases, there's a ton of letters to it. So there's there's actually three cases to involve, Gay man who claim they were fired because their gay and why
involving a trans woman who is fired because he's trance, and the question is whether can fire someone because of their sexual orientation or their gender identity, but there so many layers to their speakers, so below that. There's an entire doctrine going back to the nineteen eighties saying: that you can engage in sex stereotyping. So, like a boss, can't say to a female play. You I think you're to manage, or you know you dress too much like a man. You act too much like a man and that's based on civil rights act. You're, so itself is not a constitutional claim, that's correct. So all of this goes back to title. Seven of the civil rights active of nineteen sixty four, which forbids disk the nation, these specific words or because of sex and those and Anna for sex in this context means gender and not sexual intercourse. So those are really expansive. Word like if you think
bout sex at all when you're trying to decide why your firing, someone not allow like sex played into EU decision making, that's because of sack, and so part of what makes these cases really interesting? Is that it's a real test of the conservative justice, those who claim that the wall begins and ends with the text. You don't look at anything else. I don't know that anyone thinks that in nineteen sixty four when Congress pass this law, they ain't that there they had in their heads was. This is great when a ban discrimination against gay people and Trans people show you, you know that the federal government ban hiring gay, employ young away, saying ok, away, we're talking, ok, that those yeah like abstract legal theory right, and so One view is something about intention out and like unlike original ism, and it's pretty clear right. If you look at what was happening when some rights ACT passed,
there was not a explicit intention to be advancing eligibility rights. Claim that exactly in the ride, like that's, that's, They were doing right outbidding, like a different view. Is that look like the text has meaning right. Ride like this is out. I was a flashing. Major adds semantic external was right, called right of words mean that if you say I'm banning discrimination on the basis of sex wow then discuss action on the basis of sexual orientation is a kind discrimination on the basis of sex, because you're saying well, if a what did that I wouldn't have a problem with it, but because the person do it is a matter that makes him a gay man right and now I'm not ok with right. So I think about like, if you I said to you that men are allowed to eat pizza in the office, but women aren't like that sex discrimination, as so, if your boss,
as men are allowed to be attracted to women, but women aren't also sex discrimination right so yeah as it rule matter, these cases are pretty clear cut and so part of what makes them so interesting is that you ve got all you justice. Tom is just a score such these really conservative, guys who said that everything has to begin and end in the tax and no we're gonna find out now whether they believe that when it hurts, but so didn't, we already find out a lot about this during the like same sex marriage, litigation right, I mean that that was not the obviously the plaintiffs right in that case ultimately prevailed, but that wasn't the legal fury right that they prevailed worsens so technically. I think these cases are very different so like because of sacks of this specific language at issue in title, seven is really expansive were so with the Fourteenth amendment four, The Mehmet says that no one shall be denied the equal protection of the laws.
Anyone think that that should be taken literally a few. If you read that literally it would mean government can't discriminate at all, like you couldn't discriminate big between Qualified an unqualified quality couldn't write any kind of distinction, exact ray, and so the government We know it has to take a walk away. Murderers and not nonmember, for example, the government has to be discriminated some sense. So the question is what kind of risk nation is an allow and the way that the quarter sort of flesh that out if they ve said well, we know what the fuck. The man was really after was race discrimination, but we so, no that it uses this more expansive language and so discrimination. That is. Similar in character to race, discrimination ah is not allowed. Sexism is not allowed so for a lot of liberals, new liberal will look. Homophobia is sufficiently similar in character to racism
if the same kind of a rational discrimination- that's not rooted in someone's worth as a person. Ah, that the constitution should protect against, and conservative disagree with that. Thirdly, the overarching point is like the marriage of quantitative were actually hard cases about values, bout like whether you feel that discriminating gets on the basis of sexual orientation is as bad as the other things that are already prohibited. This cases about the tax. Now you ve the title. Seven cases are about whether when they wall says because of sex, it means because of sex unless you're, gay or tramp. So why would wear one other layers to have used is that there were So the other layer is that of going back to our conversation, because there's this tension between the way the law was originally understood and now what the text says: there's lots of doctrines that the court has created that work in the mind.
The people, one thousand nine hundred and sixty four. You know why I mentioned: there's the sex stereotyping doctrine, sexual harassment- I I mean like the concept of sexual harassment, a lot of scholars it to say that the term was pointed nineteen. Seventy three by a woman at MIT on what sort of populism through Mckinnon. Seventy nine book all. But the point is like Wasn't really I mean you can watch madman like this. This wasn't it This was in a concept that was really on people's minds and nineteen sixty four, and so, if the Supreme Court lines up, saying like hey we're, not follow the taxed when it leads to these outcomes. That wasn't Congress really had in mind that could go back and unravel a ton of existing civil rights law, including protections against sexual harassment, but then does Like a case, I mean that I'll take the opposite side when analysing what the portuguese
sounds like an area where I think what we know about Justice Robards is tendency toward caution right and several of the other conservative justices as well that it seems like you, they would probably want to rule against Elsie BT plaintiffs in a way that doesn't like, create a hue and cry about exists start fright. I think that's right away by the iron out. No, I think that's ray. I think it's very unlikely that I'm gonna get an opinion that says you can't see. Yes, you can fire for being gay, and you can fire people were being trans and also here, seven precedents that are over where I dont see that happening, but like one was an area of cross. Exactly like I mean if you you're going back to abortion like it's now ro- is lots of Rome already been dismantle right. There's plan parenthood, VIII, Casey. Ninety, ninety, two, that severe we can grow, there's been watts of cases ordering down row.
So when they eventually right the decision, if they write the decision overruling row. What they're going to say is this doctrine? Justice. Robust, any more look at how many incursions they ve been on it and so the same thing. Happen here where, when you start introducing new principles into all that, don't go here with old principles, it weakens the old principles and eventually those can be dismantled as well. I think we should take a break here and get get into that the rest of what we haven't store era, We live with a lot of noise between the pings, the dings, the emails labelled urgent. That aren't really that urgent, it's hard to cut through the static zero when on the things that really matter just like, we can train our body is to be better running faster and lifting heavier. We could train our minds to stay focused. Do all the noise we live with step. One download head space hits bases and have loaded with guide you meditations designed offer a daily doses.
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Slash weeds for free month with access to head spaces, full library meditations, for every situation. This is the best deal offered right now had to head space dot com such weeds. Today,. If you like, basically anyone listening to this right now, I'm willing to bet that you are you're dealing with stress. Maybe there's a ton of it like an overwhelming amount, or maybe it's more like a low but steady drumbeat background stress, no matter how you spirits stress it's likely affecting moods. You energy and so many other areas of your life. You feel like This is starting to take over strain your relationships and shorten your temper partly tend to unload and better help is perfect. For that Better help is customized online therapy that offers videophone and even live chat sessions. Whittier therapists, should hope to see anyone on camera? If you don't want you, it's much more affordable than in person therapy, and you could start communicating with a therapist none forty eight hours
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one of them hit a fifteen year old boy, arms, Sergio, her Nanda in the head and kill them and their families I'll suing the guard at the border patrol agent, I'm saying that they should be to collect money from him for killing their child from him, as opposed to from the government right arm, and so all of this comes goes back to a nineteen. Seventy one decision, Cobb Divans on and bidding basically implements the spider man, for federal officials with great power comes great responsibility. The theory behind biffins is that federal officials are given the sovereign power if the state that many of them are given guns and if you give someone that awesome power like there has to be a check on that like they have to know. There will be a consequence if you violate the car vision. If you use that power too horrible way, so it allows federal officials to be sued directly when they violate the constitution,
Billions has not fair and well since the nineteen seventy courts gotten lot. Conservative and what the lower court said in this Hernandez case I said no, no, no! You don't want to think about the spider man role. The issue here is that these border patrol guards are doing really important nationals. Curdy working keeping people the country that we don't want in the country and like that works hard and, like you have to make split second decisions, and if you hesitate like you, dont want someone to hesitate. They think they could be sued at so we want to protect these people doing important national security were by not making them subject to lawsuits. So easy is the legal fury here that this is different, because it's because the border patrol is doing national Security work. Does it mean? I know that's like that? Sometimes eight eight lay a its national security, so it's different is like young times a line of argument. Yes, if you get into the doctrine like what the courts have said
that technically billions is still good law by it. There are special circumstances which can justify departing from the billions rule and a national security justification is one of their special circumstances, but really there's a lot special circumstance. I mean what is actually going on here is that there was a liberal majority when ribbons was desired and there is a concern. Majority for most of the history. Since then answer they ve just been fine ways to get around vivid flat. So I'm this essentially website, immunize border patrol from like misconduct, and brutality claims. I mean what what what are we talking about here? I knew it would potentially immunize them from constitutional claim so like if they violate. In this case it would be a fourth amendment. Claimer fifth amendment claim that so was denied life without due process. They were seized unreasonably. But I mean that that huge implications and has huge implications, not just for the border
let me think about what's going on with ice agents right now, You know you know if it ice agent. Brutalize is an immigrant in a way that- violates the constitution. This could, potentially you You see the same logic. Well, you know these are people who don't one in the country is important for national security. That people are in seeing our laws and you're so buildings should not apply, in that case either tougher unlike the reason I bring this up because they need this alarming. That is a huge dhaka cases, a lot of really like your taxi high profile cases this term. But this one just strikes me because it's just so clearly about what our values are. What the Supreme Court's values are like that there isn't that the text of the constitution is I went on my whether or not in these kites types of individual law suits or allow like the reason why given happened is because there's a liberal majority who thought that you know sovereign powers, something that lie. There are consequences if you violated and it's been weak,
because conservative judges don't agree with that. I mean this is a very trompe hasty in its way right him and I think, if you would say, ride like Water Donald Trump core value rice wide there like we don't question the men with badges and guy he's right, particularly when they're going after people with brown scan, roar or foreigners is like that's like Black Donald Trump. Is it stood in writing conservative politics. But if you like, I do think your your point at the top of the show that, like what is the conservative movement interested in writing Donald Trump Ride, like is this Supreme Court majority and ends someone is like the there's a case. I think that you wrote about that sort of like touches on the consumer financial Protection Barrier Wade. In any kind of weird way. But like this, this is the sort of thing you would we're in a million years here, Donald Trump. Do a speech saying
the problem in America, is that it's too hard for big banks to rip off, like average people with with their lead But we know, like Republicans like that, they really really really didn't want consumer financial protection they fuck. White hard about legislatively and others it there's a case with like with real implications rat. So like take a step back here like the conservative legal movement like when I talked to Federalist society, People like they have their own, like increasingly coherent ideology that often like co Lasses around issues that you're just like. While why do you care so much about us as one of the things that they sort of coalesced around? Is this idea of the Unitary executive, Ah, the unitary executive is simply the idea that all exam. He'd have power whatever that is vested. Is vested in the president and only the president, and so if you an agency like the sea, if p, b or
you eat. I e the f c c, the Effie Sea, or something like that where the president cannot fire the heads of the agency that violates the principle of the unitary executive. Those agencies are executive agencies and they have to ultimately be responsible to the poor. Yeah when we really clear about this, because I saw the movie vice, which I think it in a very misleading explanation for this, and I think probably more people have seen that movie then and so listen to legal affairs rod cast but right it's about this. It sounds so we're Brian. Pointless, but you go all the way back to the progressive way there was. This thought that, like is usually the foot of oranges like didn't, regulate the economy that much and then there was that will affect. Women should regulate right, got me so than theirs We should like why? How should we regulate the economy and the view was- and this is an american thing that distinguishes us from some other countries- was look come it is not going to ride out like
every day of the week like Some new little rules about they're gonna have to be agencies that are powered by Congress. To sort of monitor the situation. Right rules adjudicate right cases I dont know if that was the right cause or not, but like that is the direction right. They took right answer than when they, that's. The idea was we're. Ok, if I can just be congresses, sang whatever the fuck, the president's and rights that it's gonna happen why'd. They wanted a process that had objective rule and real enforce. It Letty. That was, you know not just like what side of the bed to the present wake up on, but that was flexible and adaptable, and so what they came up with an alarm.
Cases. Was these independent commissions ride so there's one that doesn't exist anymore? The interstate commerce, commissioner, but there's f, TC, F c c, I mean they say, see in them a lot and they they will have typically five, commissioner, spread their appointed by the president, but like their suppose, we by partisan and the ideas that this then becomes a free standing thing right right that, like it, governs its sphere of activity within the bounds of the law, but the ability to kind MAC around an end. The idea of the unitary executive is that article two says: the executive power of the United States shall be vested in a president right or something at which to me is sounds like throw clearing but they have this very specific view that that means you can't have an independent agency whose director camp fire by the prince. So I want to put opinion what
about agencies doing regulation? Iraq? Is that also super important and is also like a big deal at this Supreme Court, but the yet this unitary executive idea like what they object to the idea that their agencies that are under the control of the president and like there's like group, that don't like the the Sea B B, who are sort of throwing a hail Mary here saying that, because the sea, if b, B, has this director that can't be fired, except for caused by the president, we can get the director struck down and then try to convince What did the proper remedy is just throw out the entire see f B, I dont think that likely happened. The reason I don't think that's that's likely to happen is because Justice Cavanaugh heard a case like this when he was lower court judge and he said that that's not the proper remedy but said that, aside by that's? That's like the Lupi dreams scenario? Is your law says the commissioner can only be fired for cause? That's unconstitutional, therefore, the whole thing goes away.
But that would be crazy. That would yet that, unlike even like, maybe you get Gore such Thomas to say that I dont see like the crazy, come, is as strictly likely, but you could agree that it was unconstitutional to make the director independent, who exactly- and so I gather this specific issue is Can the president fought now right now the sea of feed directors tromp appointee? So like the practical implications, if the conservatives in this case is that President WAR, good fire that person on the first day and put it in her her own because the carryover Obama Pointy richer courtrai, he resigned right to run for governor of Ohio and why not right now, so this wound up not a rising in the sort of specific context where progressive would be mad about from firing C p b, director right right, yet so they did. This is let me like I said like there was a city folks care about this, so much as an independent issue that why they want this
he'll be independent director status struck down, even if it short term benefits. Liberals yet so like it really is an important issue to them, but like the stakes, you're much bigger, like really like that in the areas where this massive first of all the Federal Reserve. Functions, isn't as an independent agency, and so, if the bureau, now the present currently Fire Federal Reserve governors for cause and if this case goes, if the court, by the unitary executive theory, though I mean Trump, could say why, don't we the fact that interest rates are so high, some good a fire you all and bring in my hacks it would mean that he could say to the FCC. You know CNN ran this the segment that I dont like. I want you to find them, and if you do, find them. I met a fire you all and bring in my guys you know, you know you think of a lot of agencies where this could happen. So, like typically, the agency
independent agencies like it's not done for arbitrary reasons. It was done because, like Congress thought there was a good reason why we don't we want the president of the United States to build it tinkering around with the individual decisions of this agency and if the unit executive theory prevails, then it could. Led to a lot of very sensitive area, is that you ya, know what type of democracy we have. What type of information we have weather economy, can have cocaine injected into it in order to re, elect the President peculiar I think, is most sort of subtle but alarming about this right, which is that a person could try to over regulate with an agency that is under their right. They could say-
they are, I have to see where, like we're going after this company just cause, I don't like them, and that would be an annoyance to the company. Nobody wants to do lawsuits. But if you are the subject of regulation, you do get to have your day in court right regardless. But the agency said, and if it's like President Warren is just like saying: oh you have to have labour unions like she'll just lose right, but if you on the other side, right, if you just say pay buddy I don't really want to see you bringing any regulatory actions or I'm gonna fire right. Just tell everyone don't worry about it. This no good remedy, for right right leg, if you, if you curb independence in the direction of inaction, yeah there are some work around see, ratify, but it's not like. I, the person
got screwed over by both like the bank and also the lack of energy in the regulatory system. Right I can't be like oh. You should have been more proactive in looking for these things right like either the agency and you ve always have swear to me. There is inherently a partisan to and fro, but if you allow for it to just completely swaying you're right, there's a real aid. Symmetry in that it doesn't mean half the time regulation will get more aggressive than it is now and half the time. It'll get left right. It means half the time. It'll get lot, ones aggressive and have the Cambodian. Maybe a little bit more, and this is why I think there's the Federalist society takes care. So much about this is like having these allies books are really
smart way? Unlike you, they understand that inaction is on their side, not just in this context. I said I went to stick a pin in agency regulation so like one of Gore, such as big projects is like just a lot of laws which say instead of saying: ok, here's the rule for how you have to run your power plant. It says, like here's, a broad guide, find for like how we want power plants to be wrong, and it's up to the EPA. To fill in the hotels. So like you for ample the Obama's clean power plant, which was like the most aggressive, an attempt to fight climate change, where they can from is the Clean AIR Act said that plant test you use basically the best available technology that reasonably cost of active in order to like reduce emissions. The EPA has the power to determine what is the best available technology and, like you,
sue. If why give EPA comes up with a big ridiculous, but the EPA has a lot of discretion right at me c statute. It is right as something about like when companies are merging, like is it in the public interest right right like gives its abroad Thirdly, defined royal. Try me right so some these are more specific. Some of these are less specific and what Thomas has said. That agency should be able to do this at all Gore. Such has said that lie basically the lake, the broader the delegation, the more suspected is and it looks like Gore such as view is gonna prevail on this court. There is it a decided, opinion last term which suggest that he now has a majority for his viewpoint in if, in practice, what that means is that, given, and on a vague standard Gore suggested, is really vague and the Supreme Court is just going to give itself a veto power over regulation
likes the regulation, then it can, within this vague standard, come up with a reason to say yeah that can stick around and if it doesn't like it, then it could strike it down. With a republican majority that meets could strike down a lot of progressive regulation sky. Think this is telling people need to understand. I think that most I don't know about regular voters, but like consumers right hates understand at this point, that the legend it aspirations of a hypothetical right, twenty twenty one democratic presidency, to be limited to get right that even very optimistically, talking about Joe Mansion or Aquareine Cinema Senate, more plausibly aid, Susan Collins, right Senate There is now a lot of interest in an expansive executive acts rang, but this stuff comes back to the core in the same kind of way and edit does in such a political way. So like there's this case
Chevron Unshaven came, it was handed the Reagan administration and like School, LEO's, the biggest champion of Chevron for most of his career chevron, says that when agencies regulate court should apply an extraordinarily high level of deference to what the aid see direct in that context. Here was that, like, after a couple decades of, like mostly progressive wronger, says right suddenly much more conservative prejudice was elected and the conservative court was like well, we have to have a lot of effort I mean, like I've ever fiercely Justice Stevens Road chaperones, I dont know that Chevron was written like by, can you it was necessarily itself ACT of conserving activism, but, like Republicans, typically loved it, because Ronald Reagan, Cadet said that that matters were all wet, didn't twelve years of Reagan, Bush ran right was the dead hand, Watergate Congress was no longer going to bind yeah like a conservative operas.
So like when I was in law school lay. I mean I graduate in two thousand six that wasn't that long ago, when I was in law school like what I was taught is that conservatives too to really like deference to agencies. Read this gully opinion about how great differences and liberal I tend to be like one, a little less deference because, like they want to be like sue the EPA that the EPA has to regulate greenhouse gases have like that, but like that was the equilibrium Obama got into office and all of a sudden, I like started covering federal society events and, having spent my school years. Hearing them talk about judicial were strangely, the stranger different restrain over and over again when George W Bush was in power. Suddenly all they would talk about, during the Obama years was limiting agency power over
ruling chevron reinvigoration than called the non delegation doctrine which says that is constitutionally forbidden for Congress to delegate powers agencies in these ways, unlike Gore, such Cavanaugh both have really aggressive, ah, like a drew, really aggressive opinions restricting agency power. So why You know it's it's hard to look at and not just think its politics all the way down because, like you know, when YO again when Reagan was in power, deference was what was the new hardness fur for further conservatives and then all of a sudden, realize now that democratic and after depend federal agencies you, even though their curly
republican administration. These guys are smart. They know that mal apportioning meat meal apportionment means that Republicans are probably going to control the Senate, as if you take away executive, the executive branches power that means Democrats are potentially left with nothing take a break, took my nothing It feels like you, don't ever of hours in the day to get everything done, might because you're missing out on three. Where does we're screwed up how we fell into a deep dark abyss that opens up when we switch between working at three hours to all the productive time we miss out on thanks to at home distractions, disorganization fatigue? It's no wonder the days future work should work with clear up, it does look up, is a flexible productivity platform. The wings or you work at one that's all you ve, chats, apps docks and ass. One centralize place like Michigan from companies like, burn. Google use click up to make the days more productive, managed projects, people and goals more effectively
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Twenty one, plus and present in Pennsylvania, first online, real money, wager only refund you'd as non withdrawal, side, credit that expires in fourteen days, restrictions apply, see terms at sports. Booked out, fan dual dotcom gambling problem call one: hundred gambler. Obviously like progresses, the problem here is that there is always conservatives unscrew import, and you know they were. They would like to do something about that right, but you, I theme of your book that that I think is important. Is that there's a there's, an institutional, a cemetery here, and that you know with anything like in american politics, the pendulum swings you eat. You hope for the best I wouldn't want. When you go but that there is a real difference in in the court. Yet right that, like a conservative, core can knock out a bunch of sort of popular populist measure rice make it really hard to get them done again and be very efficacious
in that way, whereas progressive courts, I don't know I mean I think, people here a lot of stories about the Civil Rights ACT and about the civil rights movement, and then what wade and they know about game marriage, and so they say, while you know if we, if we just get some good justices in like a work Morgan want this July, were you too so like what the scholarly literature says is like the port can basically saying no to things so, like I mean, if you think, back to like the earliest twenties early twentieth century, a period called the walk nor era. The supreme Court is basically struck, struck on a tunnel progressive labour regulation the restrict on the minimum wage they strike down. Walls protect the right to union eyes. They struck down, mom, our laws, which is a huge deal because in that area, are typically paid by the weak and so like. If you couldn't the number of hours, then you ve, just constantly be working, unlike those things stood for thirty say, I mean those thirty or forty year period, where you just couldn't have very many people
the labour regulations, because the Supreme Court kept saying no on the other thing that the Supreme Court can do is that when it has public support behind it, it can sometimes accelerate progressive change so marriage equality example of this, like the reason why the marriage equality decision is probably go to stand is because, like country was already moving in that direction and it continues to move in that direction. Proposed Ober fell, but if there is resistance- The court's I mean so that the parroting bad example of this is actually brown, be bored of education back so from nineteen. Fifty four, until when Brown was handed down until ten years later, one thousand nine hundred and sixty four, you had basically no progress on public school desegregation in the Deep south and there's lots of reason for this. One is the fact that, like the nature of the court that you have to have a plane,
up, and if someone tried to be a plain, if then, the clan bite Lynch that person so like terror. Some was really get effective method, but like the fact that there was a court decision, just didn't do that much to desegregate schools and states that were determined not to beady, segregated Wendy. Segregation actually started taking root was after the Civil Rights ACT of nineteen. Sixty four Congress stepped in Congress it would not allow, and then the president In writing it was. It was like I Alvin Chang. For me, at first sight, has some good chart son as we can see that the? U know there were a few states. They did decent. Yet, as it were like a narrow, are they were like a couple border states, and this is where it goes right word like. Similarly, with with with the operator fell and marriage right, is that, like it's hard to get state legit,
just do thing right. America, even when public opinion is on your side, and so if the court Knox down a same sex, marriage but yeah, and since it and it's not popular yeah, then Ok, you win an and that's what happened in Maryland. That's what happened right, a district of Columbia, but in the deep south there was no integration right until you had until Congress pass laws that empowered the federal government to like me schools. Ye say are the civil rights activist who supported two important things. One is that allowed the federal government to sue in the name of the United States, so you didn't have to fly, I like a black child, was willing to risk their life in order to sue, but then the the thing was that it said that the federal government could cut off federal education funds to schools. If they remain segregated- and it was those two things not brown
that that that caused a spike in in public school integration, which, unfortunately, since waned, because the Supreme Court has weakened protections. So again I mean you see the same cycle there. Where the Supreme Court said we want to integrate the schools and it did very little then Congress step dead and you saw any spike in integration and then in a later series of cases, militant Bradley, YO and the Doubt Board of Oklahoma be Dal. The Supreme Court said we actually want to roll back on these irrigation and be seen decline in integration rather enemy. Anything you saw writing. There was a famous case when drudgery Bush was present, Massachusetts and some other more progressive states sue the EPA right? Is it you have to regulate right greenhouse gases and they won Neck Ryan, that's good, but it didn't
generate regulation of greenhouse gases. Why is there? This is because this is part of the structural problem I like. If Congress had passed a law saying greenhouse gases are now regulating, the Supreme Court could have tossed it out right and it would have been gone but when there wasn't a law just trying to make a politically hostile administration do greenhouse gas regulation it didn't it didn't accomplish nothing. There was like oh hilarious thing where that, though it was like, the White House came up with the idea that, if they did Open the email that, like said this rolling, had happened that more maybe they didn't know abbreviated, to create a regulatory scheme. It takes work right right, like you would, like. Actual people in offices have to go, go, do it and they ve been forced and enforce it here the court couldn't make the right what they did was they had a precedent that the Obama team hat in hand.
From day one. So the vacancy, everyone. Ok right like let's get to work, so you wasn't nothing but like it's another oil symmetrical do when the Supreme Court tosses out nuclear power plant is guns, so supporters Sherwood Courts do so what courts do is someone with a particular grievance comes to accord and says, like this? Other person has violate the law in this way and the courts job is to apply the law an individual case So what that means is that, like, if there's no lol. The court's can't make it out of whole off this new Ray late, and they can't make it out of whole cloth like it. If you come to them and say like, I want you to enforce this greenhouse gas regulation that doesn't exist, the court you say well, it doesn't exist, but if the court's dont want dont like the law, they can say well yeah. You want us to enforce it, but tough tidies yea. I, like you, know what we're we're just knocked and so late. There's an inherent conservative bias in the court's, because, like
They have a tremendous ability to say no regulations but like they don't actually have that much power yesterday when anything. Another thing they you really saw with this is that you know the that the Supreme Court of the bar in Court really made. I think a substantial effort to make the criminal justice system more fair. You don't yes, you do a lot of famous rulings in this regard. The summit swirling warrior rollback later, but even despite their you I'd, like basic inequities in the criminal justice system like Rich riper, have good defence fires and low income people have these very overwork public offenders and that some states, you know, Some states like they don't give a damn a little bare right about public offenders and in other states
don't write any just like you could. Never you can never fix or, like maybe jurors, will be racist right. Maybe cops have biases like me. You can't do this Thing they could do is act, enemy, yeah, you and end the things the criminal justice action by the ears were courts, have the most power rack has every criminal case has to come through the court rested, and even there I mean it's like I will say it has it larry like I mean like it is now: longer a frequent prosper process that, like CUP, being a prisoner, an unjust torture, the person until they can fast, and I thank you for Supreme Supreme Court for the fact that doesn't happen all the time, but by their the even in criminal justice, which is the area where they The courts are dominant, where late lay will you literally cannot do anything in the criminal justice space without at some point going through the Judy Even then, you're exaggerating right that, like they ve had their powers limit,
What really matters is like politics: ride like windows in the Eightys and Ninetys, like mass opinion, was like fairy tale on crime and even liberal state swear, you know, one thing Democrats would say in the Eightys and Ninetys is as the political party more willing to raise taxes, but we will build more prisons than thereby gets well wait. And public opinion in an elite. Opinion too has shifted on these topics, so we'd like became a thing where one of the few? possible areas of bipartisan cooperation in many states, was Republicans wanted to reduce prison spanning made as these axiom structure and run flecked but like when when crime was lower, when people are less worried about it, like big just what happened and I mean I don't know like that's that's life like it. It takes politics to make make big changes. So I can. I just make tax right thing happened. The sub text of a lot of this is like, so I think that a war
there's a lot of nostalgia for the war in court. Amongst Democrats there's a lot of Democrats who think that what we are about to live through for such an cabinet the anomaly and that, like we gotta, protect the port, and we don't want to do things like yet whether its court packing or whatever, The real Supreme Court is what our war and dead when and if you will the longer the arc of the Supreme Court's history, its dread scarred it's the lock nor era, its core Ahmad Sue. You eat the warrant, was the anomaly and so, like I mean I've written my views on port acting in their more nuanced. Then just do it. I bought like if the court's go wrong like? I mean it. If the Supreme Court just becomes a wholly owned subsidiary of the Republican Party, there are reasons why Europe first order tactic shouldn't be court. Packing but none of those reasons are well because courts are good for liberal Free
way I mean visual, read what I would say that in some cases you in some situations, you need to push back on specific things that happen, but you don't want to undermine like the inst to shit right because you just hoping for change, but I think the correct view of like strong judicial review is that it has not been a positive institution that, like in the famous topic of civil rights Right Congress in eighteen, seventy is passed. Some right legislation and the Supreme Court threw it out right. And now this event, cords big claimed Abraham, was that they like brought him back right of course, of course, the history of reconstruction, wife alpine. What is much more complicated than some some legal documents, but like again, like there was not a if it's a fraudulent history of civil rights in the United States to make it out to be
that lie right. The guardians of the constitution rescued us from from the disaster of segregation, and one thing that's weird is to a certain extent both parties don't really understand this. Yet because, like so one debate, that's going online Bill BAR is very angry about now should wide injunctions a nation I'd injunction, is when, like a federal trial, judge, says: hey, there's this p, see- and I think it's illegal, so no, it can't be enforced anywhere, unlike for in the short term like this is bad for Republicans, because this is one liberal court, San Francisco. That, like why you know a lot of people going to their getting orders striking down tromp policies, and so in the short term, like you get these opinions that suspense you're, really conservative immigration policy for a few months before the Supreme Court reinstate. But in the long term I mean
at the end of the Obama administration, where, like DARPA, the you know the the programme for the four undercut parents of citizen, I ve had some court in Texas, because they are San Francisco. We are that yeah. There's this guy in taxes and there's another guy in Texas who's, the guy throughout the entire affordable care act. Who is basically a rubber stamp for Republicans, is a former Republican Senate's everything's reed, O Connor and like they could just go to it would be like hey there's a thing we don't like enjoying it. He's like. Ok, MA am actually it and join all Obama Cabaret struck at Butler you, he he will give them the ruins that they want, and so aids weird me that Bill BAR, who was a smart guy, hasn't thought, like you know like I can take the head on a few nationwide injunctions right now, because we're really gonna want all these republican judges were putting in place to have that power when the other guys are in charge, but also its Are to me that Democrat that it means cheerfully like I mean if, if like democratic members of
grisly Alina Kagan, if you're listening, you should really put this in the federal rules of civil procedure. While you can, like Democrats should be gone to build Barbie like you're right. We need to stop these days, invited junctions because, if like, if they don't five minutes. After all, President war in signs anything like there's gonna, be nation wine injunction against it now, I know- and you know part of what I think is sort of scary about this division. Read that you you're a see coming with with Trump a style of politics were Trump doesn't really talk about. Thing like in a concrete way interview like the bulk of what the government does right he's this symbolic figure right right and so he will like trawl liberals about hamburgers or you no national anthem staff and in whatever any, would be
easy for a sort of casual consumer of political new. To think that the Gulf it does not have a lot to do with how my day today my life as a humdrum middle class American, doesn't like happened to have passionate feelings about like left wing culture, war, concepts right it and that's not true right, but part of why it's not true is a trumpet star. King, the judiciary, with people who have strong views about the plumbing of the regulatory state yeah and if we they do is take those topics off the table. Yeah right then, critics becomes more and more like from the Bali politics. We like we can vanquish yeah the symbol of Trump Ryan, like DR stay away and say. This is not who we are ass a nation, and then president better is like he's hugging asylum see
is the right of throwing them into a snake, pat and like that's nice, but like a it's kind of a losing politics for progressive like trompe. So again, Just that that he's unpopular right, you don't want to make everything in politics be about just like, like could call to our staff, but also it's not it's. Just like it's not true like the most of what the government does is actually not out like who we are as a people rod. Unquote it's about like like what legal rights we have six hundred and two thoughts. Let me one is like gas, I think, like a special, because Congress is so dysfunctional and like the senators so Malapportioned that it's likely just a dysfunctional like the Supreme Court, is becoming the locus of policy making, like all that stuff was talked about before about how the Supreme Court is going to strictly the executive branch's power to regulate that's just aggrandize in power within the Supreme Court, so that more
and more policy decisions will be made by the one branch of government. That is not elected empathy. The thing that, like really worries me in this space, is lake, I think the common sense it is now, an irrational sense amongst most Democrats is that Donald Trump trumpets cut a stupid. Ministration is kind of a competent and like so like yeah, it's bad, but like there are limits to what, going to build a do down a road because, like they just don't know how this works and I mean. Samuel Alito is an evil genius. I mean, like you Leonard LEO, that had it other than in other, had the fellow cyber like the guy who's like involved in helping tromp picked, his judges super smart. Like the The legal side of the Republican Party is some of the most brilliant thinker that you will ever in town in your life they knew where all,
leverage points are the reason they were willing to lash their started. Donald Trump is cause. They knew that if they gain this control over the court, they know exactly what to do with that. Unlike and its frightening be like you, I've been out your folks. Like you know, they're there have been a handful. Tromp trumped judicial nominees who have gone down as they weren't competent at some time. So here, like you, do we will act of its like they want their talking point to be: oh yeah These guys are just not qualified there's. No, that is the worst thing that you can convey to. People like the the average Trump judge is smarter than the average from any other president, they know exactly what they're doing they have of coherence to their ideology, in a way that no other president set of judge set of judges are, and, like you do in two years, if, like Trump loses a landslide, unlike is sitting in a prison cell somewhere
These guys are going to be still beasts sticking around with just as much power and they are as smart as Trump is gone and the and the lesson of the the new deal era to leave people with something. That is. I think, though, that like like it. Nobody will ever say this, but like mass politics and mass opinion matter was to judges, I'd like after you didn't actually do anything at the end of the day to like turn around the court's other than when elections and appoint some justices who he agreed with, but he did like make this a top.
Right, he wasn't just like welfare enough. No new deal right, yeah! No, I think that's why, although I think this is the second lesson from the new deal, which is that what Sdr was pushing was basically courts and get out of that. Unlike the doctrine that emerge was is finished, is a case? Could Caroline products, which said that on in almost all cases, court should assume the laws constitutional, do nothing about it and then there's a hand. Instead, you know discriminates on the basis of race if it like defies and an explicit provision of the constitution if in masses with the electoral process itself, like this a handful of instances where court should stay in but like the liberal position, that a move that emerged out of the rose about administration was. We want the court to do as little as possible, and that was rate if you're, if you're a progressive like there's the best its ever been that consensus held from the right avowed administration entailed in
all the Obama administration in the federal society was preaching the stuff when I was a mall school squalid, two and fix and like if we could go back to that judicial were strained. It would be so much better for people on the left then like ie. If you want to give more power to the court's, ok, fine, but look who's gonna be wielding the power right now aren't. While what that add? Thank you very much, and this is really great thanks, as always to our sponsors, into our producers. Count. And the weeds look back onto accessible, affordable broadband hubs, communities we toward their american dream for students, lecturers and Chavez means rising above the poverty line and becoming valedictorian of international High School Langley Park and thanks to action from HIV can help these. In turn into reality. That's my eighteen to you,
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Transcript generated on 2021-09-10.