While Sarah, Matt and Ezra are away Dara is joined by Dylan Matthews and Andrew Prokop to talk about the friction between how the Supreme Court says it makes its decisions, and the way everyone assumes it really works. Is it time for the Court to stop getting polite and start getting (legal) real(ist)?
References and further reading:
Andrew’s explainer on the gerrymandering decision
The “efficiency gap,” explained by one of its creators
Dylan on the public-sector union case Janus v. AFSCME
Dara’s piece on Trump v. Hawaii, the travel ban case
Sonia Sotomayor endorsed legal realism before joining the Court
KENNEDYWATCH, 2018 Edition
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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
I think that the next great fight after our reason, it's actually good, is our Twix, not candy.
Illinois, categorizes Twix and Snickers bars as food
and candy, respectively, Twix out flower, snickers, don't and taxes them
friendly low and welcomes the weeds on the box. India upon TAT Network is started when I am while that is out of town. Sarah is unattainable, even as there is still until next week on book leave. He will be back on Tuesday for weeds,
I am holding down the fort and well, you might be expected.
To talk about immigration. I'm not because there is this other branch of government.
I'll the judicial branch and the Supreme Court is nearing the end of its term. So I have with me to help me explain what the hell is going on with the Supreme Court Andrew Pro CUP
here in the disease, studio senior reporter box and senior corps,
spawned it. I guess technically Dylan Matthews, who is joining us from New York and,
going to, Inter Alia, explain to me what the hell, the chevron differences, I guess so
as you may know, if you ve been following things, the Supreme Court term ends traditionally at the end of June. Next week is the last week that they're probably going to be releasing opinions and because the Supreme Court is a bunch of petty bitches who love
Mama. They traditionally you're on your way to save their biggest cases until the end of the term. So we are still waiting. I and two of the biggest cases we
gotten some interesting cases that have come down so far, especially in the last couple of weeks, and in particular I was kind of hoping that Andrew broke up. You could explain to us
What on earth happened with the two gerrymandering cases the came down on Monday, because
Everyone was very frustrated and I could not tell I okay, so there
Two cases that came down, but really only one of the matters, the other one- was kind of dismissed for procedural reasons. By that the big one is Gill versus Whitford, so to explain was going on
there's a lot of Supreme Court precedent for what exactly states can and cannot do when it comes to redistricting. But the precedent really falls into a couple of topics: the courts have stepped into stopped states from racially gerrymandering their districts too much theyve also stepped in to ensure that states adhere to the one person one vote principle so that you know,
can't make one district twice more populist as the district next to it, and those are pretty well protected in various decision.
that have come down over the past few decades, but one area where the Supreme Court has never actually stepped in is when it comes to partisan gerrymandering. So that is, of course, when districts are drawn for the benefit of a certain party deliberately to try to prevent the other party
winning seats and that's become a bigger and bigger issue in recent years with, of course, Democrats have are more outraged about it than ever, because Republicans dominated the last mid term elections before the last redistricting and gerrymandered
like all over the place in a key congressional states in and state legislatures across country too, but the Supreme Court.
Has never actually decide
ed or ruled it proper to step in on partisan gerrymandering and
can sort of understand why? Because states have kind of freedom to draw their boundaries as they wish in and there's no kind of history of the courts, and actually you can do
this, because some, if a party wins too well and twisted district lines too much like that's unconstitutional, like this, would be a new thing for the court to decide and the current status quo. We ve been kind of in a holding pattern, since this case in two thousand, for this is the view versus Jubilee IRA case and the conservatives had a five for majority there and four of the five conservatives said. We don't think we should step in and black partisan gerrymandering, because we cannot think of any possible way that we could like set up a standard. That would do that and make sense like we cannot think of a way to say this amount of partisan gerrymandering is too much, and
is unconstitutional and the courts to stop it from happening. However, there was a fifth justice in that case in the majority Anthony Kennedy who, who loves drama more than the Mister
MR draw by he heat I'll drought, concurring opinion and his concurrence basically said
doesn't necessarily think that it's impossible for someone to think of a standard that the court's could then used to rein in partisan gerrymandering down the road he just hasn't heard
standard, yet so easily, basically openly begging for other plaintiffs like come up with things that Anthony Kennedy is gonna, be cool with, I think, is kind of, like
signalling that he's not
the rest of the cold hearted conservatives who are like you now? Tough luck! If your party gets gerrymandered out of contention, there's nothing in the car
solution that could start. That Kennedy
signalling that me
B. He can recognise that he can see how that could be a problem, but he's he just hasn't heard the practical solution for it. Yet so since then, people have been trying to come up with those solutions for him basically
and the current case, Gill versus Whitford. That was decided earlier this week. This is about the Wisconsin State Legislature, and that is one of the most gerrymander state legislatures in the country. The redistricting happened in twenty eleven and Republicans completely drew the lines to make sure that they could, when so many seats in and Democrats would just have a very tough time, even in the case of a big wave, if that were to materialise, still very hard to see how they could take back the state legislature, so
a lot of activists in and damn reformers had been trying to come up with a way for many years to sell Justice Kennedy on how to rein in parts and gerrymandering so
Dylan. What? Why does she tells a bit about the m, the efficiency gap,
love. The efficiency of this is this is one of of many,
many solutions that were proposed as ways to serve measure when gerrymandering went too far in when it didn't so this
when they came from a lot professor at you should named Nicholas Duff, nautilus and political scientist named Eric Magee, both of whom
by the way, are fox dot com contributors. They came up with us
Relatively simple measure are based on
idea of of wasted votes. So
idea is that serve a wasted vote is, is a vote above the level that you need to win. If you need when, like fifty one percent of the vote, you get it
percent, then about twenty nine percent of the voters is wasted because those people voted for you when they do
we need to end and also, if your votes or for the losing candidate there also wasted exactly because it's like
in a single member districts. Technically to win you only need. Fifty
percent of the votes that way gerrymandering works is through this technique called packing and cracking like. You can pack a lot of one parties: voters, let's call them that
credit party voters into a small number of district so that they win those districts overwhelmingly like ninety two, ten or ninety five to five. So
happens there is that so many democratic voters are in those districts and they're, not in other districts, so even in an
evenly divided state if you pack, the democratic support into a small number of districts
and then the remaining democratic voters. You crack them to make sure that their not close to
a majority in most of the other districts, then that's, basically how you gerrymander so vote can be wasted both in those ninety five
five districts and also in districts where Republicans have fifty five percent and Democrats have forty five percent, because that forty five is just too low like the sweet spot,
for a partisan gerrymander is to get the party to comfortable
but not overwhelmingly, have the advantage in as many districts as possible.
and TAT Andrews point. His is important because, like,
Recent votes are not a bad thing like it is good that we do not have like Saddam.
say. Narrow election system were also results or a hundred percent. If you have
elections that are actually contested. You will have wasted votes, but the
the idea behind the efficiency gap is that you should have roughly similar numbers between the parties and so
It is, as a number is just one: parties total wasted votes, minus the other parties, total waste or votes divided by all the votes cast
and the ideas that that should be roughly, even if the districts are drawn fairly, but
it isn't. Even that's a pretty good sign that some pretty hard core gerrymandering, mishap
and the efficiency gap in Wisconsin is kind of nuts
thirteen percent and twenty twelve, and I think that the proposed
threshold that stuff Nationalism Magee put out. There is more lax,
ten percent at thirty members
like you would need a huge democratic landslides to overcome the basic bias the map in order to get a majority in the legislature so
That was the mathematical option that got worked out as the most promising and simple contender, and I think because it's really.
If we easy to explain in a court of lights, these two like numbers in elections divided by another number plates
like the kind of thing that could meet Kennedys request for further about intuitive standard that the court could adopt said the three?
in that this seemed to be such a big deal in and that a lot of reformers and activists were excited about it because there are. This is the metric. This
The way we measure gerrymandering. This is the way we can say if this
birth to high there's too much gerrymandering, and there is a lot of optimism that for liberal justices, as well as justice, Kennedy could conceivably be convinced,
like to adopt this as the new nation wide standard for how to rein in partisan gerrymandering in America, and yet
But that's not what it tell us what happened? How does it happen? Well, ok, so,
most people are describing what happened as a punts and it's a little complicated would actually went down before a court can actually rule on the merits of a case. The plaintiff in the lawsuit first has to establish
It's called standing. They need to demonstrate both that they have been injured by what their suing over and that the courts can provide a remedy for this injury that they ve.
Third with their decision. In a lot of these highly charged political cases, there there's kind of a trick going on where
if you want to bring a lawsuit and get the Supreme Court to rule on this highly charged political topic a certain way. First, you have to find the right plaintiffs and you have to find the right standing argument to get the courts to even agree to take it up in the first place. So a lot of times, there's like this kind of plaintiff hunting, where these ideological or interest groups are, are looking for the perfect plaintiffs, basically that that the courts will agree to end the perfect
standing theory so that the courts will agree to actually take up the case and listen to it. And that is not what happened here. The just
This unanimously agreed that the plaintiffs in this case, who were twelve Wisconsin voters in various districts, did not have the proper standing.
Sue with arguments they made over the entire statewide map
So what happened is that they sued these voters in individual districts and they said my vote,
are being too diluted according to this efficiency, Gatt Metric and I'm being deprived my rights, and so therefore,
The remedy I want is that the court should strike down thee, Wisconsin State Legislature, map as a whole, and the justices
sickly concluded in their majority opinion that you can't sue over an entire state map. If you are just a voter living in one particular districts and not making the case that it's your district, that's the problem, so the
you mentioned the case basically focused on criticising the map. Using this efficiency get metric to say, the whole map is twisted and dumb the justices.
Hold that what the voters should have done was
explain more about their own particular districts and how their districts, where gerrymandered
we see the justices for the record we're talking about. You know this is a unanimous holding by the court that they fail to demonstrate standing
but then the decision gets a little more complicated from their because first off what the court did is they sent it back to the district court?
to be re, argued so not even like sending it back to the certain quite like they. Normally they kicked it all the way back to the beginning. What will usually what they would have done in the lack of standing is to dismiss it entirely until they could file it again, but it was chief justice robber to actually wrote that this was not a usual case, so they're going to sort of give plaintiffs adieu,
moreover, in district court now that they have better kind of instructions over how to demonstrate standing and make their arguments.
That's little so punted
yeah, but they called for do over, and there are lots of ways the turkish Supreme Court can point. This is kind of a pint backwards with lake. I dont know why there are used in football practices to like help. Hunters aim the punts
herb. That's basically, none of us knows football well enough to make this analogy, work so Clarence, Thomas and a new course. It actually disagreed with the decision to give this to do over. They said it should have been dismissed entirely, but but they agreed generally that there should be set
but the real action that has intrigue alot of people is in what
Justice Kagan and the other three liberals on the court did they wrote a concurrence where
they basically made it unmistakably clear that they think the courts should step in to rein in partisan Jerry entering
and they laid out various potential arguments that they could make that they said.
agreed. These voters did not properly demonstrate standing, so the court couldn't consider the merits in this case, but
Maybe they should make this argument next time around so so Kagan is encouraging them to make a first amendment claim to say that their rights for Freedom of Association have been hurt by gerrymander.
apps and Kagan is also saying basically that if the voters more clearly made the case that their own districts were really gerrymandered, then
they could still sue to throw out the state why map as a whole, if they think
didn't properly make that argument down there. So this is what the liberal justice system
But Kennedy did not sign onto to this. So this is like, though, J Simpson book. If I did it, but if I had standing and if we had a court,
Finally, this is kind of my question about this, like we ve seen a lot of five. Four cases on this court, where the four liberal justices have been united and Dissent Lake
four justices if they're the wrong for justice is on the court, doesn't necessarily mean anything for what the court's going to do in the future right.
No one knows what Kennedy once again
Clearly ever knows what Kennedy he clearly was not ready to use this, or you know the court as a whole, just didn't by the standing argument in this case that was presented. So so they didn't do the sweeping
You know they didn't rejects partisan gerrymandering as a thing that
it should be reining in or or they didn endorsed that as a thing that the court should be restricting they just did not get to the merits.
all and so there's a lot of theorizing on just what k again and the liberals are up to here I mean: are they just kind of hoping that
given the arguments they presented. If it gets back up to the Supreme Court that
Kennedy well now be willing to be the fifth vote. Do they have reason to think that that Kennedy will agree with this, and and maybe Kennedy furs on personal reasons has not technically sign onto their concurrence, but they are there still hoping that if he still on the court next year and if gerrymandering manages to make it back up again that he does want to make this big sweeping legacy decision on creating a new standard
to rein in partisan gerrymandering nationwide, nobody knows that this doesn't necessarily kill the idea. The efficiency gap is like a principle in future ray it's just a
no not at all, because they didn't they didn't rule on the merits at all and
the way I think about it is that they, just this,
Why don't you guys see if you can
try slightly different arguments down at the district court level,
and then maybe we'll forlornness on this gotcha. So in the future-
so we find ourselves actually Agus in the weird position where the at the things the court has ruled on are more open in the future. They at least one of the major cases. The court
hasn't ruled on because Dylan you appear pretty, can
since the in one of the two major remaining cases, the Janice Verses acts, may case vit. You know you ve you,
at the stars, and it is entirely clear what the opinions gonna be. He's gonna, write it so yeah I mean if I'm wrong about this, you should feel Fredo. I click this on Twitter and don't come near whatever, but I am pretty confident that Janis, the Polisario Union case is going to come down against the union's,
pretty confident that Alito is gonna, write a five for opinion against the union's ruling, basically, that you can't charge public employees fees for collective bargaining,
if they don't want to be part of the union so as to when you say against the union's that they like in theory, this is against the Particular Lake Municipal Union. Ass me right.
The experts that was made, like glib, cynical political, take on this to back up for a second, since I think,
the Indians are rare enough in America. Now that a lot of people don't serve, hear a lot about how this distinction works.
There there, a bunch of different ways than a shop can be organised, and so one of
his ways, is where everyone in the shop is subject to a bargaining agreement that gets worked out between the union and the employer.
And then you have a choice of whether or not you personally join the union.
if you personally join the union. You,
you have to pay dues and an accelerator, it used to be
through where everyone to like formerly joined the union that changed in late forties by it
if you dont want to join the union, for whatever reason Europe discredit the politics, you don't like unions, whatever you're here yeah, whatever your reason
You still have to pay money because you're still getting something out of them, and so you pay of an amount is totally lower than you would pay in full union dues called an agency, and so that's
payment that says, look
one day member, but you
Union, are doing something for me or providing a service. Your negotiate with my player, so I'm gonna like kick in a little bit
So this is totally standard practice in a lot of places in the United States. There.
Since there are known as right to worked states which have laws banning agency fees. So you cannot
in your workplace. Have a union arrangement like that? Not, coincidentally, those places have seen declines in union membership because it creates this free rider problem.
If the only people joining the union are like people who are willing to,
for no real reason and knowing that they could get the same benefits.
if they don't pay any money, then tons of people to stop paying the money, and so
the union's perspective. This is like a really terrible position.
that their put in where people are pressured out of of contributing to to their collective bargaining.
Effort. I often see this described as like the case that could kill public Sector Union Steve. Is that hyperbole? Is that basically,
right, so I dont think you
cure operators. I don't think you'll kill public sector union agitation, just a backup like briefly about like what the merits of the case are from the perspective of of serve concept
no laws and see you after frame these things in a certain way stability. So they could. We look at it very little that later don't you worry, but yes,
like this causes no problems in the private sector, but like something like five percent
The private sector is unionized now verse, like forty percent of the public sector, about as many people are in
public sector unions as our in private sector unions, despite nowhere near as many people working in the public.
sector is working in the private sector, and so
I think there is essential in the movement that, like this is our last hold out. This is like the last part of the american economy, where we have anything like a foothold,
but it creates a constitutional issue or at least according to judicial conservatives, are clear,
constitutional issue, because, when your camp,
bullying government employees to pay agency fees. That looks a lot like the government like wish.
The employer and the situation forcing their employees to give money to a political organization.
and there have been cases where the sprinklers said like this clearly goes too far on those will pluck he's called or not.
The sea are you back in twenty twelve, where, as yet, you had organised a bunch of government workers,
I had some sort of like Anti Union measure that there too,
the fight, and so they organise something. They called the essay. I, u like political fight back fund and then like made everyone kick
Like. No, you can't do that, unlike Peter. That is like compelled speech you're like foreseen people, whether they want to or not till I give you money for political activities. Fight back is not conscription right, but
I think there is. There is a part of the concern with legal movement, which this case four percent and which has been were building for a long time, which was to go further than that and to say that, like this idea at all, is is compelled speech and that you just cannot have agency fees or any kind of required payments of public employees to unions without running.
Followed the first amendment and to say that would be going against a forty year old precedent. This case called a boot where the courtroom toad of pretty careful line insane
like yeah. You can't be required to make payments to a union that could be used for political purposes, but like its legitimate. If it's going to something else
and for a while. They were observe observant that precedent,
we have all people seem sort of supportive of that idea.
And then there was Knox there's a case called heresy, Quinn which didn't involve government workers. But Sir private workers contracted by the guy
meant both of those were decisions written by SAM Alito. In both
elite ope all but came out and said he wants to overrule booed and and wants to like just completely annihilate this precedent and and say that you can have agencies
I think the expectation was there was a case called off Fredericks against the California Teachers Association, where the expectation was that that was can be vetoes chanced overrule the spy
and thence clear died. It was a four for court by four four margin. Things got kicked back down
then I think the expectation was with course search on the court. There is now a five for majority for a really like that
That's too, where my my money is, I think, there's an intriguing argument for why that wouldn't be the case which we can get into later by out. That's that's the basic argument there making in terms of what this means for, though the public's republics are labour movement
I think one thing we ve seen this year is employees like
Virginia ends on Oklahoma. Please is that they have a right to her claws and
have either emaciated, are never strong to begin with labour movements. Stool
like labour agitation by teachers and other public employees.
which you may recall. We had a weeds episode about a few months ago, elects Fernandez Campbell that we all have an even show notes if you're
yes, exactly so elects. Is the person to read on this just written a bunch of great stories for us, but the bigger political contacts. Trade is that there's public sector unions across the country are a major financial and organizing base generally for the Democratic Party in state
and die Republicans through various me
means have been trying to hurt them right,
in their power, you know just just kind of fight back like things like
walkers collective bargaining lie and all
specifically targeting public employees. Yet, as I recall- and
other similar laws across the country and a lot of people think that this law suit is kind of just a party. That overall strategy like this is about hurting groups that support the Democratic party. That is why this this has become
such a cornerstone of what what the Federalist society wants, what other conservative legal groups want and so on.
But the furrows society is a disinterested group of scholars, just trying to figure out what the constitution is Andrew so
So I actually, I really really wanted to sleep entirely skip the travel ban case.
Though we can actually like dig into your ear, sarcasm their dull- and I will say this and then we should probably break and talk about the lake, weird
constitutional to step that we have to play whenever we talk about the Supreme Court, but the thing I will say
the travel ban case, which is actually much more
boring than either of these cases in terms of what's being argued, it's basically like should the travel ban version. The travel ban currently in effect remain in effect or
the one they I will say, is that this is really become a question of whether the Supreme Court cares
more about the presidency in the abstract, which is given a lot of powers about, you, know nothing
security and immigration and where, like Justices Kennedy in Roberts in particular, appear to be very concerned that if they restrict those powers at all,
like something terrible will happen, and the president must be able to use his like authoritative powers and
there is substantial circumstantial evidence is not
necessarily the person whose thinking the hardest about you know,
sober national security choices, as opposed to he promised a muslim ban and doubt he's gonna get a muslim ban so, depending on how this case goes, and I think the outcome is much less assured that isn't Janis, even though the court has been, I think, more open to the top administrations arguments on this than lower courts
It really is going to come down to is Donald Trump enough of
in an anomaly that it is worth it to make a ruling. That is thing about Donald Trump in the presidency, rather than about the presidency itself, which also, I think
eyes into the idea of whether we are talking about
our policy, which is what this half hour his implicitly been about, and I
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nl. I am K, I s teeth, dot, com, slash reasons to start your free trial or get three months after a yearly plague. Link is dot com. Slash me so both of you have said things during a kind of explaining these cases that have got into something that we don't
talk about explicitly when we're covering the Supreme Court, but there's like always in the back of everyone's heads, which is that these are policy fights their fate.
their political fights, their fates that are about you know literally be political make up of our legislators about
one of the most powerful force
In democratic politics over the last several decades, you know about whether this present
is a threat to democracy or not took HIV hyperbolic about it. But when we
talk about what the court is deciding. We don't talk about them as political fight. You know, Andrea, that there is a lot of these charge political basis,
is a trick going on with when you choose plaintives, inst
What standing you go to delay
You can kind of you know snarking
the idea that the Federalist society is a disinterested legal body like
We have to go through this. You know arguments
cursing of these theoretically non partisan,
Ninety illogical legal arguments and
Those are also the arguments that the justices themselves, or using Right Lake
Samuel leader has not come out next week and say we're ruling for Janis, because public sector unions are bad and the Democratic Party is bad. He's going to come out and talk about compelled speech, and you know that
Freedom of Association that someone has do not have to give their money to a political organisation. So like this,
in the legal theory contacts it's like known as the
between legal idealism and legal realism right our judges, political actors who are due,
things, because they want to achieve particular outcomes in the government system or
are they the
buyers, who are calling balls and strikes? Are they operating or like even
operating based on their own soil?
of jurisprudence. But you know what kind of deliberately turning a blind eye to the
world consequences and not trying to gain their decisions to meet certain things. So I think they're kind of two questions here right, one is
is legal realism, true. Is that an accurate way of describing the political system?
the second one which might even be more interesting is, does the Supreme Court
think legal realism is his like do. The justice is actually understand themselves as political actors and like what
Would it mean if they did? I mean as something that's important to keep in mind these conversations
The vast majority of Supreme Court actual like decisions, are not about lily highly charged controversial political issue rest most of them I mean there's there are topics
overlap with politics, of course, but there is a case this term about, like the railroad pensions act.
And, like I'm sure, people in the railroad sector have very fraught feelings about that, but like it, it did not seem to him like have high stakes, political consequences.
There's not reading an old bell.
There are cases that do have political consequences, but where the court manages to find a way to be narrow about it, like that, in a last year's edition of the travel ban, fight where they see
released in unsigned, procuring M opinion where, like in the court, holds, and it wasn't clear what
everybody signed on nor but Nino nobody bothered to air descent. Selective network
This is where they turn this.
Into a kind of
unanimous issue of jurisprudence rather than breaking down along partisan lines. I think they like to do.
That there is
There is a speech that portage gave about search his traditional philosophy about a year before it was nominated to the court
really interesting. We should put in China since, like I think, it's worth reading to understand him where he like
up as his favorite case in recent years
to do with sentencing
but where it turned into a fight about a vacant antecedents and how to end
put it in and so excited my wrote one opinion. It was like a firm that
the Andersson. It did refer to observe the subject of the sentence and Kagan wrote
the other opinion, I forget it, who is in the Senate, who has a majority but like
like no known ever since other thing. The sentence- and it was this
very high stakes, fights about grammar. I think, like that's what,
such says. His dream of of the law is it's just,
a bunch of smart people arguing about the grammars in the bills.
like it's really interesting to identify a soda, my oars one of the parties in that, because one of the things that's been very interesting about so to my or in her in several years
the court now is that she's not the best prose stylist on the quarter, even in the liberal Wang. It's pretty well agree that that's Lena Kagan but
She has shown an interest in putting kind of the reality of the poor
sees under discussion into her rulings in a way that other justices often don't. This is often especially true in shock about criminal justice or racial issues. You know she will pack in a bunch of empirics and kind of rhetorical acknowledgement that these are not just issues being decided in a vacuum.
things that have been shaped by real world systems and perceptions yeah. I think, there's something about legal culture that that's pushing back against took to using them,
from the genus case, one of the interesting things there was that there is a couple libertarian scholars. Eugene fallout can billboard who wrote something
behalf of the union's making this clever argument that well,
and can choose to to fun things that people don't like all the time. So I can't that include unions and
and they don't like unions at all, but, like I think they like a lot of people in the law of you. It is like a high stakes, debate club
we're here, just trying to pull calls that in each other's arguments. Fur I'd know for what, for
Fine, then, through high figure out like what the constitution really means as other
People view themselves is like that, but
any system that sufficiently
sincere, is liable to capture by people who can observe its roots,
rules and that exploit the up up up up up up.
That that seems fair, but it also kind of if
have now a Supreme Court justice who is kind of explicitly pushing back against that lake. It does kind of raise the question of house in Syria: are the other Supreme Court Justices Lake? You know we often in cases of the assumption is going to be
that John Roberts is going to get to a narrow majority if he at all can, because
he's extremely concerned about you know the court's legacy like not not narrow in terms of a five for majority, but narrow terms, the holding of the case that you know he's going to cobble together the most votes for them.
I was holding. You know there
This concern that justice
unity has is thinking about
legacy, and therefore is you know going to be particularly susceptible.
Arguments about the arc of history, which you know what I think we saw in the work of Hell case a few years ago it like.
Is it true that these justices don't really understand themselves the shaping the system? I don't think the question is really about sincerity. I feel pretty confident that they tend to believe in their own arguments, and you know when Kennedy is, is thinking about his same sex
marriage decision. Maybe he is not thinking about the law legal precedent, but through his reading of, is this a role for the courts to step in and protect, recognise changes in society protects the rights of a traditionally disadvantaged group is: is this something we should be doing? He pretty clearly in that case, sincerely things. Yes, he should- and I think, like you know when we think about what's the difference between conservative justices or judges and and liberal justices judges and like I tend to think of it as
sort of what what sort of groups plaintiffs rights do they feel a little more sympathy towards? Are they a little more open towards like you now? Are you more likely to generally side with business or labour in an edge case? Are you more likely to try to cut costs? These are alike sort of difficult legal questions that go up to this level? It's not like stuff, where there is necessarily clear answers in the past. So on these edge cases like? Is it a question of religious liberty for christian sets up? Is it a question for the rights of racial or sexual minorities? That's coming up in and then what kind of a person the justice is in and whether their conservative liberal is often sort of working backwards from
Its groups do they tend to have more sympathy with in this process, but I worry that that's almost more dangerous, though right, because if you're like, if you, in fact on say business versus labour issues which are gonna cut across a bunch of
is of law right. We're talking about lake Labour is a first amendment thing, verses, interpreting, actual labour law versus the Interstate commerce cause on. You know what that the federal government can regulate, etc.
if your consistently coming down on the side of one party in those, rather have a consistent jurisprudential standard, you know for the time.
Of issues at hand, but you don't think
but you're doing, or rather
you. Don't think that that's what's motivating you, you think you're motivated by jurisprudential considerations that seem
like a worse mindset for someone
is being given a great deal of power? I, like I'm, almost more worried if these herb a bunch of people who act
we are always gonna, jerk, right or left, but are
helping themselves that they are all seeing straight. I mean it might be concerning, but it's also like how we know most humans reason about policy that, if, if it's just the case that the spring court is like, everyone else liable to motivated reason, reasoning to like red evidence to support their priors and not otherwise, to like selectively, disregard and and emphasise different pieces of evidence like this. Just like how all of us think about politics and there's like lots of psychological researched back
and I think sometimes we have this fantasy- that, like elites in the past,
realm are immune to that, but they're not and in like just because
you went to your law does not mean you're not like prone to those kinds of lapses. In reasoning
a further effort. None of us in this conversation Wendy a law that is the hope of or any law school it's gonna we had. This is great if we
had gone to law school, you wouldn't have gone into journalism, which is more fun anyway. I guess-
question then is how long can sustain itself, because I M kind of seeing evidence that in some regards the Supreme Court is more
open to talking about how the world actually works than it would have been several years late. We just saw
today, in the carpenter case on the use of cell towers for law enforcement records for for investigation,
You know, Judge Roberts, in his majority opinion being very clear about this.
particular. Technology is getting a lot and better and more specific, and therefore we should be especially careful with telling law enforcement that it can. You
you know we talked about so to my oars tendency to use empirics some of the cases that
have been decided in the when we talk about the masterpiece cake shop case a few weeks ago. One of the things that really came up there was that
the attitudes that government actors had as government actors played. In
The decision of whether their actions had been lawful or not, and suchlike like
kind of wonder if the Supreme Court is paying more attention to real world context cannot survive without
understanding that it too is part of that context, but I mean how it how's this different from like reversing schools, segregation nor other sorts of intervention.
Like the Obama CARE was like a real law and the court decided to leave it in play say,
you sure enough. They did Nick
where they they modified it to, but
but I do now I feel, like the court is always grappling with fat.
On the ground and then they sort of look at like the carpenter decision today,
the question was: did new technology over cellphone location, tracking that
can see radically tell the government everywhere you ve gone with your phone. What does the fourth amendment mean for that? And it is a question that they had a really decided on before, but you know it's it's. It seem sort of similar to me, for you know what what does the constitution say? All of a sudden about
segregation in schools it at the time of brown, rainwater, education and stuff? Like that, so the other question: can a Supreme Court survive knotted between labored amateur?
The issue here is like I learned, let it yeah. Let's talk about Anthony candidates
point, maturity kind of looks like he's not going to retire but leg its varied
going to talk about the Supreme Court and not talk about the fact that its swing.
It is widely considered to be the next dude up for a tyrant under Hoboken President, who has shown a willingness to you know of
Extremely conservative justices Dillon,
you mentioned and not like blow up your spot or anything,
but you mentioned a while back, but you would actually changed your mind about the importance of Kennedy to the court and I,
you really want to know why. That is so yeah, so I had this whole heartache prepared about why it and really matter the Kennedy was, was retiring because I think he's a lot more conservative than people give him credit for that that his lips.
The tend to be very amplified. Two people, I think that was pretty-
Just like our reasoning. Failure in that, if he retired
is replaced with a doctrinaire conservative. Like that. The points of difference will,
only beyond those issues where he's like more left, leaning like abortion, gay rights, certain criminal cases, and so
I think, I'd, but I had to serve been sloppy and not thinking through that. That's sort of aspect of it.
I think the other thing is just how likely it is that broke, gets overturned and anything third decent cases to be made in each direction there. That, I think,
case that it stays is John Robber,
is very aware that the court is: is this tiny building in DC that has no enforcement power and that hopefully rocks about too much like he could permanently damaged the court's reputation and an ability to do its job? And so maybe he doesn't want to overturn a forty year old precedent. That's at the core of a
central political debate, an american life I'd also like related to, that is to say whether he gets a case that can take years for things to filter up. It might be that the Anti Abortion movement decides that they don't want of like pass off of all our Ban and South Dakota or something and then work it all the way up to the Supreme Court that they want to chip away piece by piece like pass a twenty week ban, say, and then you wouldn't get in all likely
full reversal of Rome. I think the other thing is so as
but no, my my partner used to working in river rights and nothing I say Here- reflects her views at all in it on a blood payments, but I get the sense that there is. There is a belief in some quarters that the FAO,
Aid has been so many restrictions have been allowed to be placed on access to abortion in so many parts of the country and
this is so geographically dependent now in a way that it wasn't in the immediate aftermath of row and that has been enabled by the court giving leeway to state governments to regulate abortions more more strenuously
that the all out states can do whatever they want. I'll come over role. Reversal might not be is different from from this task today, as as we think it is ass, not to say that, like it's, not important to abortion rescript to keep rolling. Obviously it is an end like it's. It's blue
president that they have. That is valuable, but that we might under rate how how bad things are. Refer the airports, rights movement right now, even without that so
Thing that I was really expecting you to say, and that, like hasn't
in writing- I worry for me, but I think that is like. Actually, maybe the argument for why Kennedy matters and another argument for I can really matters- is Donald Trump Right Lake, a lot
the chatter about whether Kennedy is going to retire or not has been centred around. The question of you know
usually under republican President conservative Supreme Court justices feel comfortable retiring in or vice versa, under it
president, because they know that whoever is gonna get appointed in their stead is going to be like
more or less in line with their views. But when it
you Donald Trump, who why
he has a good track record on. Appointing judges doesn't appear to particularly respect conservative jurisprudence or often the judicial branch. It all the question of whether
Anthony Kennedy, is going to be super cool with letting this man pick. His successor is a very live one. Maybe not video
logical reasons, but for eco, egotistical ones that he does
I believe the Trump respects him or his institution and
I kind of wonder
is that's that's. Why
Kennedy, might be theoretically a swing vote on the travel ban case, for example, there are definitely
or cases you know, especially as we get into enough into that,
administration that these aren't lake
and stages of cases that were initially brought under Obama's presidency. You can see a world where more and more the case coming up to the Supreme Court are about,
in some way decisions that the Trump Administration has made.
and I'm wondering what you guys think about whether that's going to change the attitude that the court takes it all, especially with Kennedy kind of you know having one eye on history. Well, I've I've heard the fury floated that Kennedy may choose to stay on because he would want to be. You know the indispensable man, the fifth vote. Hoo hoo saves them
I could not like, but based on some big trump era case. That goes out to him, but I don't know it's like
his mind is difficult. What one thing
that somehow the most important thing that any Supreme Court what you could do a year, but I mean to set set the political background up a little
there has been shatter in conservative legal circles in DC for months now that
there is a strong chance that Kennedy would retire at the end of this term
senators have been talking about it openly Mitch Mcconnell was heard talking to his wife about it on the site.
D. One day saying, I'd really
I live Kennedy see transportation Secretarial in child jump up, and
like reportedly was telling clerks. He was interviewing that he might not be where you are
of course, how much of that is Anthony Kennedy being the biggest drama queen on the Supreme Court, though, but Emily
there's just so much there and part of it baby wishful thinking from
conservatives who would like,
really really like to replace this squishy conservative with a solid conservative, but
has been enough there, that you kind of have to think that its at least a possibility- and you can read his his recent actions in several different ways.
Like the gerrymander case that we started with, as I say,
He said back in two thousand, for that
there was a standard on partisan gerrymandering that that one day he would agree to end,
He did not yet agree to it in this case, which, which was kind of a pint. So the question is: is that something he does because he's headed at the door and he doesn't?
to sign. On till I got a big sweeping opinion that that, with the four liberals that might be reversed by his successor the very next year or is it that he's gonna be around next year, so he is calling for a do over because he hope he does want to make the sweeping opinion and- and he wants to do it next year- you can argue it,
sickly, both ways. But what what the conservative chatter seems to be? As that
even though he is squishy conservative. The impression they have is that he would rather be replaced by a republican president than a democratic one, and
you know who knows what's going to happen in the twenty eighteen may terms when it comes to the Senate Republic
seem to have the advantage to hold on to it. But if it's a wave election, you never know where things could happen. So if he really does want Donald Trump to fill his seat and get his successor confirmed by a republican control Senate, now is the time to do it, and if he's going to,
Step down were either going to hear about it like it would happen next week. He he's not going to do it in the middle of the summer. He's not gonna. Do it like, in
for it? If he doesn't analyses retiring next week, then most people think that he's he's around for the entire next.
So ok, so here's the fun speculation if he doesn't announces retiring next week done
Trump is not a man who is known for his patience, he's
adding names to his Supreme Court Watch List lake in kind of
Creasy leak, Throat, Cleary sort of way?
There is an area in which Trump drops
too many hints or outright ask someone to pressure Anthony Kennedy to retire and what happens then? I honestly don't think Trump husband to focus
yeah mother, and I learned this and an Michael cow, and then you know the border war
While we are speculating about this, like eighty something's career decisions which like affect the fate of the republic, because we ve chosen this insane systems, a governess like people die
sometimes like it's.
Polite heartily famously aimlessly died while serving the Supreme Court
with their Ginsberg, is super old and has had cancer multiple times Stephen Briars and his early eighties. Anthony Kennedy is in his early eighties. These are ages in which, like well educated, Americans, typically die lake.
We can speculate all day about my. When can you will choose to retire, but just like
You were really
someone is gonna, go and, unlike
We will have another shot at the Supreme Court and I think we need to emotionally prepare for the head is, though I literally went right from, I suppose it's unfair to its greedy or unreasonable to think of
new ways in which there might be drama in this administration. That Dylan, you have successfully reminded us that more drama on more fronts is always inevitable under Trump with that, thanks
two Dylan and Andor for being on. Thank you, too, are produced.
Pritchett Armstrong into our engineers, Giovanni Carter and Griffin, Tanner, thanks to you,
our social team Julie broken in this week, weren't hats for operating the Spaceboat group. Please join them
thing else. It will give you a chance to dump on Dylan Janis goes the other way. Thank you very much
be back on Tuesday with Math and Ezra. So those of you who have been wishing that as well would extend, is book leave extra long and not come back. I am sorry to disappoint you, but we will hear from you choose.
Transcript generated on 2021-09-12.