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What the hell is up with SCOTUS?


Dara Lind is joined by Vox senior correspondent Ian Millhiser (@imillhiser) to discuss the major decisions handed down by the Supreme Court this term. They talk about the Court’s emphasis on historical narrative, its move away from settled legal doctrine, and the politicization of the Court. Plus, a white paper on originalism and stare decisis written by then-professor Amy Coney Barrett. 


The post-legal Supreme Court 

Originalism and Stare Decisis 


Dara Lind (@dlind), Weeds co-host, Vox


Sofi LaLonde, producer and engineer

Libby Nelson, editorial adviser

Amber Hall, deputy editorial director of talk podcasts

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This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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so? I think it's fair to say that the latest supreme court term was how do we put this unprecedented? holy fucking shit is the term of arc. I think for what just happened. This was, of course, the first term with the six very conservative majority consolidated over the course of the trump administration and that divide extremely evident in the decisions the court handed down, probably the most anticipated decision, one that I knew was coming, and one we've discussed on this podcast before was the overturning of roe v wade, but the court also major decisions. In other cases about guns, religion, power of federal agencies to climate change or simply yo carry out there. Go at origin does more broadly, and while congress has been in political gridlock, the court has been taking. What one might charitably call a fresh, I toward settled legal doctrines, making it almost impossible to ignore the increasing, let's say political involvement, if not
your fear, and so the current court. The court has a new power that we haven't seen before and with a conservative majority. It can and will continue to take on major cases. They will fundamentally reshape american life. So Well, he and I want to start by kind of reorient Obviously the decision in the dobbs case, overturning roe v wade, has gotten so much of the attention that people might already have forgotten or not necessarily been aware of the momentous. The rest The extremely remote dog it that the court handed down to the last couple weeks, so what kind of sticks out to you as we pull out? the most important decisions and themes? that have emerged over this new conservative court, so there's a number of big themes that emerge One is like in law, school you'll hear the phrase passive
choose a lot, there's a lot of legal doctrine and legal traditions wrapped up in the idea that judges should be reluctant to wield power when they can decide a case narrowly, they should decide a case narrowly and those passive virtues are gone on this score, I mean that was what divided chief justice roberts from the other five republicans in the dobbs case is roberts. His opinion basis said: look. We took this case to answer a particular question. Whether a fifteen weak ban is cons, to show or not. We should have resolved that question. Not should roe v wade be overruled, not can states ban abortion out right, we should decide cases narrowly passive virtues and so that whole sensibility is just not there any more. What I have in my notes as a second big feed, is just a question. Can we trust these
It's there were a number of cases where the court didn't just to hand down decisions that I disagree with, but they really seemed to be playing fast and loose with the law and, in some cases with the facts, so dobbs, I think, was the second most alarming of the in case that was handed down this term? The most alarming case was a case called whole woman's health v jackson. This was the sb eight case and Texas had come up with. I can go into more details later, but this very elaborate scheme that allowed them to before roe v wade was overruled ban abortions. After six weeks it was enforced solely through lawsuits. Brought by private bounty hunters and what the supreme court essentially said is so long as you use private bounty hunters you exclude of leader, your laws? You can ignore any country, all right. You want like it. If you, if you take the opinion in whole, women's health v jackson seriously, a state could say that private.
Many hunters can sue any black child who attends a majority white school. They can sue anyone who purchases a gun, they could sue. Anyone who criticizes the state governor. You pick whatever constitutional right you care most about this decision is potentially a threat to all of them. All of it. You know there were a few other cases like that? You know the the one that stands out to me. The most is a case called Kennedy, which was a case involving a coach who first of all, was like a Italy was going to the fifty yard line after gains use. A public school high school coach was holding these big eating all the players surrounding him, where he would give quote unquote motive. A speeches that involved prayers after the school district told him to knock that off. He did a big me.
Detour about your where you talked about how god is compelling him to go to the fifty yard line, to give these prayers and then he went and gave another parent the fifty yard line. There are pictures of him surrounded by people players, members of the press, all sorts of people surrounding him. While he does this- and the court's opinion described this as a private and you- you know, personal prayer and they did this. I will note after sotomayor dropped several pictures in her opinion. In of like these very public prayers that this coach was giving so again like not only did the court hand down this decision where they sit up tenderly any constitutional right is in danger. They appear, apparently, are not move by photographic. Evidence of what the facts of particular cases are. I don't want to talk forever. What I'm worried about is just the court seems to want to reach certain results and it doesn't seem to care how it gets there. I said
that there were a few other female I'll, just tease out one more in the last beam is that I think they want to be in charge of everything, and we saw that this term primarily in cases involving the administrative state, there's a big case involving the epa and what its powers are to fight climate change. There were two big case: is involving vaccination mandates and when the government could have actually mandy when it cannot. The answer that question turns out to be a five justices like a particular vaccination bacon date. Then the government can have it and if they don't like it, then they get and it's really hard defined while much more principled rule in these cases that the justices essentially placed themselves at the head of the executive branch saying that they have a veto, power of the executive, branch's policy, making decisions so big term lots of power in the supreme court right now and not a lot of constraints on how the court is is wielding it. I think it's very easy to kind of jump to the conclusion, and like
wrong in the final analysis, to say that what we saw in the last month of the supreme court term was a commitment to reaching conservative policy results. You know over any particular commitment to jurisprudence, but it's not that there isn't a jurisprudence. That's emerging right, especially when we talk about the dobbs case. The religion case. Some the gun cases as well. There is an effort to reorient supreme court president towards this idea of you know, settled. Traditional rights at american life and kind of a more muscular form of original is perhaps, and it's worth talking about, the some because The role of precedent traditionally, is that you should be able to predict that the idea of the rule of law is, as is anything that part of it is that no one is above the law, but part of it is for what city society- you need to be able to predict whether something is going to be deemed legal or not. You know you can't find yourself in a situation where you don't
Oh, whether your door is going to get busted down because You know that the powers that be have decided that something that was legal is now not and that's been an important role. That precedent is served it's something that is explicitly considered in litigation. We are talking about reliance interests, it is essentially you know- is it important that people have been acting on the assumption This is the law like. Should we maybe not change the law, because that assumption was you know as as motivated so many people for so long, and so I was hoping you could kind of talk through what does this kind of neo original ism look like that were now seeing from this court. Where are they finding the important precedents texts? What are they relying on so that we can better understand how the supreme court is likely to continue to reshape things going forward? The conservative legal movement immunity if you'd attend federal society events and I try to cover their
conference every year you do they have their own sense of what the legal anti cannon is like you're, the cases that they view as illegitimate and want to strike down- and you know this term some of it was a box checking exercise no checking off cases that have been on the federalist society, antique and and for many years. Obviously, row is at the top of the list they over. Will that there's a case called lemon v kurtzman, which, like Scalia many years ago, compared to a horror, show goal that keeps waking up like re animating itself, even though the protagonist of the movie think that they have killed it over and over again, and so you know gore such wrote an opinion. This was that in any case I mentioned following the privilege the praying coach women we kurtzman was the case involving what happens in church. State separation case is an
gore such wrote, an opinion that at least attempts to kill this zombie once and for all. There are at least two other precedents that they nuked, which I was surprised to see them do because, like they are, they aren't major precedents that weren't on the federalist society docket, but they are significant ones dealing with what happens when you continuously received ineffective assistance of counsel in a criminal trial. These were specifically dealing with what happens if you received ineffective assistance of counsel Not just at your trial, but then at the subsequent proceedings, whose purpose is to figure out whether or not you received ineffective assistance, the first time around. So if you have to train have a lawyer twice in a what's supposed to happen and what the supreme court essentially said. This term is not much the federal courts can intervene and one consequence of that is you know this is the Barry jones case. Who is a
and who was convicted of a murder that he almost certainly did not commit and will now likely be executed. Despite the fact that he is almost certainly innocent of the crime he was convicted of. So you have that thing going on where there's just like a box checking like we don't like these presence, let's get rid of them, but there's, also a methodological yo thing that is emerging you solace in the borsch in case you saw us in the big guns case. You saw it in the kennedy case, one of the two big religion cases this term, where they're saying the way I see that you know in the way they put it in the abortion case was history and tradition you know and what they mean by history and tradition is: let's look at what happened the founding and let us look at treatises by sir matthew. Hay who is this anguish, jurists from like the seventeenth century you'll? Let's look at really old sources to try to figure out what the law should be what worries me about this development is, I think it's exposing the
at a you know. The idea that you can look to these historical sources to derive the wall is less a constraining. son judges and more just a rhetorical technique. So if you look at bruin the big guns case that expanded the scope of the second amendment that was handed down. Why, happened in that case is there's your justice thompson's majority opinion which is joined by all the republicans. and I just nauseating about times, like thirty or forty pages, reviewing all of these historical gun walls going back to the statue of north apt, in which I think is something like thirty Twenty four are not that long ago, you know around thirteen twenty four that that that law was passed and would he concludes that the second amendment should be construed, the way that the republican party would like the second a man to be construed and then just as prior rights? sent, and he goes through all of the same historical source. You spend about twenty pages on that. The democratic justices cage
injustice, justice opinion, and they conclude that the second amendment should be read in the way that the democratic party prefers. So, like they are making lawyers do more historical research and they are doing more historical research themselves, but it's not clear me that original ism is doing any work in the sense that it is like in forming the actual outcomes that they reach. We'll talk a little bit more about original ism and disputes with in that tradition, I later in the episode, but I wanted to get a sense of your rid of you know. Obviously we talk about a six three conservative majority. even though we haven't seen a whole lot of the you in this case is that the robbers court has really made its stock and true, stayed over the first. You know fifteen there's or so of of chief justice, John Roberts, his tenure, we didn't see a ton of pure,
six and serve it of justice is, in the majority, all signing under the same opinion and the thrill of rural justices in the inner like signing under the same descent, there were various can ring opinion. Sometimes there were defections by one or another of the conservative block. What do you think? The kind of nature of that six justice block is an is there any daylight between, say a clarence thomas and a brett kavanaugh when there is significant daylight there I mean a lot of things have changed. I mean one is just that when you had a five to four court, if each one of the five conservative justices had a ten percent chance of voting with the liberals in any given case, that's going to add up to a watt of decisions where, if the liberals stick together, you wind up with a five four liberal decision.
because, like that, just home, ass work right so like it and now the liberals have to pick off to justice so that that's good at a much less often roberts. You during the brief period where he was the centre vote in the court roberts, I think, is a true berkeley and conservative like he wants conservative policy outcomes. But you know like a friend of mine who used to work and scream port building described. Him is the most professional person he has ever in his life, like roberts, believes that there is a way that things are done and so like it goes back to what I was discussing with the dobbs case, where no like we granted to this case, to resolve this question. That is four way that the rules work. We should follow the rules I want to move. The all to the right, but it must be done in an orderly way and the other five republicans. I don't think care about that sort of procedural conservatism you they want to reach substantive policy results. They don't care as much about how they get there and they want to get there fast.
That said at the end of the last term, there a lot of I think over blown pieces written talking about a three three three court. Where you had miss alito and gore such work, who like or the most conservative, just as they want it all, and they want it now now now now now now you ve got the three liberal justices and then you had ah birds, Cavanaugh, bear it who were kind of in the middle, and I think it is true that like in the narrow sense that, like roberts on barrett, typically stake, are somewhere in between those two blocs, but like first while they tend to stake positions that are very much closer to the thomas block than to the liberal block, and when I think they'd do part ways from the most conservative justices it's often because either the republican party doesn't want the outcome that, like the most conservative justice, are calling for the big example of this last year.
was the big obamacare case that was before the court and like this came up it justice bear its hearing and, like you had republican saddlers be like no. We think this is ridiculous, but are you do in the wall street journal was publishing editors. They gaddi at this. Is this law suit his guard? The national review, was ripping this law suit apart so like, as it turns out when you have all these republican elite. Saying don't do this thing in that case, what it being seventy two you gotta lido and gore such saying that the affordable care or act should be struck down, but the other justices were going to stay out of it. To the right of where the republican party is there's. Also cases where just the thing that conservative litigants are asking for is completely unworkable, unlike just, I think departs from say, Brett cavanaugh sense of how the government is supposed to work. There is a case. This turn was called navy seals, because many of the plaintiffs were named. Dave
seals old, wear a lower court judge to lower court. Judges actually actually seized command of the: u s, military. What what what they did was they were the service members who refused to be vaccinated. They claim they had a religious justification for that. These two trial judges said like not only do they have a right not to be vaccinated, but the military can't impose any consequences on them. What that meant is that you there were an navy seals and like navy seals like they often work contains of four worth. One person gets sick. The mission is screwed at so it's like the military to set a rule that could it be deployed if you work
accelerated because you can lose entire missions if someone gets covert night to eat or you could have to evacuate them from like a hostile country which could endanger dozens of other service members. So the military then do we we leave it's not safe. To deploy this person at the judge said you have to deploy them any way. The supreme court stepped in and said: do the military gets to decide who gets deployed, not a judge, and that that was a six to three decision. So, in those extreme cases you do see, roberts cabinet bear at tending to say yeah, that's a little too far, but like donald trump did not campaign on putting judges in charge of the. U s
metairie like it's not like that, has been a big. You know, item of of dispute between the two major political parties and on the things that are major items of dispute between the the two major political parties. Your cabinet will tend to vote with the lido much more often than he won't let's take a break, and then I want to get back to something that you mentioned in passing and use that to talk about what we can expect from this court going forward. Today's episode is sponsored by checkout dot com online. Immense have changed a lot in the last few years when check dot com launched in twenty twelve. The internet looked a lot different and the changes came quick from the e commerce to the rise of crypto, although shifts, can create blockers to success, but check out, wants to help you make through check out dot com, is a leading digital global payment solutions, provider for brands like shine, patriarch and stony electronics. If your business
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you said in passing, in that chief justice, John Roberts is an extremely professional person. You, obviously we ve gotten that sense from his power sixty and his stewardship of the court over the last? You know, fifteen years that he cares a great deal about maintaining the dignity and gravity if the court and I think, he's a little more vocal about it, but he's representing what has been kind of the unstated assumption by supreme court justices for a very long time that it's extremely important that the justices be collegial with each other, that it's extremely important that they find unanimity on cases when they can that there is. You know that they hold themselves above politics, because it's important for the public to see that they're being ruled by something other than political considerations. Right- and you know,
it's something that I think I've said on the podcast before that. I definitely you know say when joking around with other with folks, who, like understand legal, hello Sophie is that legal realism, which is the philosophy of that judges, are in fact, florida glass prison, are just making the decisions that they want to see. Policy wise in the world and kind of using anything else, as a justification for that that legal realism is probably true, but that it's still an important constraint, and judges do not believe that liberalism is true right to not see themselves as just a super legislature. It seems that that is, the mask has come off. The noble lie has has kind of been debunked whatever metaphor, you want to use that, the understanding that it's important for the court to distance itself from politics whenever possible has been eclipsed somewhat I'm wondering what that means for the court as a workplace as an institution you mention the religion case, where just a certain way or in writing. The descent was moved to literally include photo,
they think you do not usually see in spring court opinions. You know it. There was a lot of sent instead of I respectfully to send. It does appear that there is, you know, last need when you have a six sixty majority, there's probably less need to care at all about what the minority says, and you know how important do we think this given that they have a six three majority. Do we think that this is going to actually have a meaningful effect on jurisprudence going forward or is all we're seeing the reputational decline of the court? So I think it's important to bear in mind that, like the noble lie, is a very self serving lie for the judiciary. This isn't a new observation, like Alexander Hamilton, wrote about how the judiciary has neither force nor will but judgment. It depends on the executive branch to enforce its decisions. You Judiciary is simultaneously the most powerful and the least powerful and you know what I mean by. That is part of the reason, the supreme
It's been able to amass so much power is because our congress is completely dysfunctional that can't pass any laws. It is super majority requirements that prevents it from passing any law, any laws through the senate, all that the supreme court needs is five votes and it could do whatever the heck. Want. So it is tremendously dynamic in that regard, but then, once it hands down a decision court, annually rely voluntary compliance. You know the mechanism if you are ordered to do something by a federal court. You do not do it is at the? U S, marshals are set few to enforce that decision. And u s: marshals are part of the executive branch of government there. They are under the command and control of Joe Biden, not of chief justice roberts And, or you know, are already one in the judiciary. In theory, I mean that we saw this in the civil rights era. If someone really resists the decision, the press could send the military to enforce the decision, but again the military to jail.
Bite and is the commander in chief of the military, not john roberts, and so there is a danger that if the public feels that the court has just become a completely partisan institution, that, like is in exercising judgment, is just wielding power that you know not just the public but like a state governor, for example, could choose not to fall away supreme court decision and then the question whether will be in force depends on whether the presidency is willing to enforce it. It depends upon MIKE whether the president has the resources is only but so many, u S, marshals out there at lots of people define court decisions, they vague. They can't get everyone.
so this has been you of this noble lie that the courts are engaged in your something other than pure politics, isn't just something that preserves the public sense that, like everything, is hunky dory. It preserves the judiciary, ability to actually do its job, and I dont know what's gonna happen because, like it is stepping down into the public that this court is doing them. You know Gallop had a pole, showing only twenty five percent of the country is content to the supreme court pole after pole, after pole, has shown by the courts approval rating at his story, clothes I think fox news just had a poll showing forty seven percent of the country supports court packing, which essentially involves nuking the legitimacy of the judiciary in order to prevent it destroying the village to save it. Like you know, just getting rid of the judiciary's ability to be taken.
ITALY, so they no longer can screw around with a thick there's going around with right now, forty seven percent of the country once that dab- and so I dont know how this I saw- I don't know if we start to see massive resistance camp. And on the scale of what you saw with southern resistance to the brown v board of education decision. I think that your Biden thus far has resisted the pressure but like he could find himself under considerably more pressure not to enforce decisions me that that wouldn't be an option for, The abortion decision, because you know there is an age we do not enforce what the court said in Dobbs that judiciary will no longer protect abortion, but like if the court had say struck down obamacare in the case that I mentioned before, Biden would have tremendous power to sit, so he could order the the department of health and human services you're going to continue to pay out those subsidies, no matter what the supreme court says and the supreme court couldn't do anything about that.
So I don't know what's going to happen, but I do think that you know if I were the justices- and I was looking at these phone numbers. If I had read my alexander hamilton would be very worried that you know there could be a breaking point. I do think that, when we're talking about this kind of thing, it's important to kind of assess like how likely do you think the kind of open defiant scenario is to emerge in the next few years. I mean it depends on who we are, talking about being defiant so like, I think that the the situation where Joe Biden just like, openly and torreon he refuses to enforce. A supreme court decision is fairly low I could see like sort of malingering compliance by state governments becoming a norm. I
could see lower court judges the way that the process works. If you want to enforce a right that the supreme court has said that you had isn't that you just go to the supreme court. Say: hey give me my right, you go to, he of the like six hundred and something district judges in the country and filed a new lawsuit asks them to enforce it, and you could see you know democratic appointed district judges, saying you know what I'm not going to be complicit in this. You know if you, if you, if you want that supreme court decision, force you're going to have to appeal to them, and you know, lawyers cost money. Litigation takes a lot of time, it's not very efficient and you know, and then that could diminish or want a vicious array. The court's decision, but will make it very very hard to enforce it. The blue.
print for this kind of thing, and you know I hate to draw this comparison, because obviously the political hats were being warned by different heads in this circumstance, but is the massive resistance campaign which was very successful. You know in the ten years after brown and nineteen sixty four before the civil rights act, nineteen sixty four passed and you know help to cure this problem. Only one in eighty five black children in the south attended a desegregated school, so ten years after brown. That decision had done virtually nothing resistance to the judiciary when it is concentrated and when it is, you determine, is. Very, very effective, and don't want to counsel Joe Biden to follow the example of george wallace, but I do think that you know these political tactics are the sorts of political tactics that can be used by any
local faction. You know they they, they are morally neutral tactics and if they are deployed against this court, the court only has so many cards that can play. I want to keep talking about the lower courts, because I I want to Also about the kind of centralizing role the supreme court is usually served and kind of reining in some of the more or ideologically boundary, pushing lower court judges right and one of the cases that hasn't gotten a lot of attention from the end of the supreme court term was actually you know, a win on its face for the Biden administration was, the texas vs Biden case on immigration, in which the court in essentially, overturned a lower court ruling that had prevented the binder. Creation from ending the remained in mexico programme, which we ve talked about on the weeds a bunch of times but which you know under The trump administration and now and at various points under the violence, this region forced migrants seeking asylum to wait.
Mexico, while asylum proceedings were happening in the. U s the argument that the lower court made siding with texas and several other states. general was every single president, since bill Clinton had been in violation of federal law until Donald trump created there and made in mexico program, and that's why it would be illegal for in the end actually to correct that. Under his reasoning, Donald trump was also in violation, but there were exceptions to trump solve, remain in mexico policy that that is true. That is true. That donald trump had been had been the least completely negligent, president exact, and that fighting was returning to that tradition of negligence, and you know that argument was not something that the conservative majority or that the entire conservative majority could get behind. But what was interesting to me and kind of seeing how
shut out. Is that not only does this not resolve the kind of on going litigation question over that particular programme, which has itself been kind of eclipsed by the continued expulsions at our table. Forty two, which don't give people who are subject to them any right to an asylum hearing at all, but there are other cases going rule this same fifth circuit, usually texas, judges on immigration that have kind of hamstrung by them inspiration? Even even more, you know, we just got a ruling recently that said that any efforts from the top to prioritize interior enforcement by telling ice, who they should and shouldn't be going after was you know, was a dereliction of duty. That's where we're looking see the decision on docker coming in a case that's been pending for ages and ages and ages in the near future. So I'm wondering you know, are we seeing this kind of feeling it the conservative majority do we think that they are going to continue to
Are we going to see more rulings like the remain in mexico ruling where they said? Look, you know, you're, usually on our side. But we gotta say this is a little absurd, dudes or Are we going to see them kind of pass? if we allow in either through ino expire italy, siding with the conservative, lower court judges or just not taking up the cases allowing the fifth circuit to kind of run itself I think there will always be some case where the supreme court draws the line like no matter how bad the supreme court gatz. Like you know. There was a case I think, like a year a year and a half ago called collins v Yellin, where the plaintiffs were asking for a remedy that would have cancer one hundred and twenty four billion dollars worth of transactions and potentially triggered a global depression unlike just as a leader, wrote the updated saying. No, we're not gonna do that. You, too only gore such descended by so there.
Always going to be a again who asks for too much and unfortunately, because we have a few crazy, logical judges on the lower courts. There's always going. The judge is willing to sign off the so they're always be something if you eat out now like where wine is, is going to move board more to the right. The more republicans are appointed to the supreme court, but there's always to be something that's over the line. I think the name of the case you just disguising Biden v. Taxes is significant because, like every full term now, and sometimes there are multiple cases like this. I cover a case that is either called Biden, v, taxes or united states. We v texas, like so there's a cover two or three cases that are called united states v, Texas and the reason why is first of all the texas solicitor general's office has basically become the solicitor general of the republican party like when republicans don't like a bidet
policy the texas lister general files, the case. The reason why is like you said there are all these judges emmi? Will there aren't all of these judges and tax if there maybe three or four judges and tax, as I can name them, you read: o connor drew Tipton Matthew Katzmarek, who are extra right wing it illogical, outliers. You know out of step even with the supreme court, that we have right now and their decisions appeal to the fifth circuit, which is also extremely conservative. There are some procedural quirks about how federal litigation works in texas, where, like texas, is divided into four federal districts and those disks or then chopped up into divisions and in texas. There are certain rules governing where, if you finally case any particular division, it will be heard by a judge who is from that division
and like there are actual orders saying like so in matthew, Kitts america division. If you file a court in Matthew, Katz america division, ninety five percent of the cases will be heard by matthew, cats, merrick and Matthew. Cats. Merrick is a crank, so Texas knows they can just go to Matthew, Katz Barrick. They have a ninety five percent and like similar thing, is, are true about you tipped in the court room. So if you want to tip Tipton, you have a you, have a very high chance of getting him, and so they are getting these wild orders from these extreme outlier. Judges and in some cases even the binary taxes case. As you said, the supreme court eventually stepped in, but I think the most important thing to understand about this case. Isn't that Biden eventually want a sort of victory
that you bite and went to the supreme court. Almost a year ago, last august after cats merrick handed down his decision in that case and was like hey, you need to stay this thing like last time I checked bath, you, kids back is not secretary of homeland security and the supreme court said nope, and then they let cats merricks order stay in effect for almost an entire year of about ten months and then when they finally said the cats. Merrick was wrong at the end of june. They said oh yeah, we're going to say he was wrong about these things like yeah every president, since bill Clinton hasn't been violating federal immigration law, but there's a bunch of other lingering legal issues in this case and wood send them back down to kits merrick to resolve them, So I mean I can't predict the future. But if I were a betting man, what I think is going to happen is texas is going to file a motion raising all these issues that the supreme court has said are still lingering and matthew cats merrick being Matthew.
Merrick will rule in texas his favour an order Biden to reinstate the remain in mexico programme, and then it could be another year before the supreme court gets around two smacking him down again so? You know, even when the supreme court is saying, hey they're still rules discharges can't do whatever they want. They aren't exactly seating with alacrity here. So I wanted to talk a little bit about one kind of other procedural feature of the supreme court, which is the shadow dhaka yet which was something that was a lot of buzz during the part of this term before all the decisions came down and which does as you know, seem like another tool that is being increasingly you in the service of this increasingly one might say activist court. How do we think in a world where the shadow doc it might not be necessary because you have such a firm conservative majority, that's willing and able to push things as far as they want. Do you think that,
we're going to continue to see by just these kind of nominally see. Droll rulings that kind of stand in for having the binding precedent, because the supreme court is so much more willing than it has been in recent years to stay opinions that disagrees with to refuse to stay opinions, even if it will ultimately side against them, as we saw with the remain in mexico case. What role do we think the shadow doc is going to play going forward? So real quick, like the way that the supreme court normally handles cases the way they're supposed to handle? The overwhelming majority of cases is your through a process that takes months like first, the lower courts have to fully consider the case, and then, after at least one court of appeals or state supreme court has ruled on the case. The supreme court will look at it. They will give the parties. You know a lot of time to produce the best possible briefs. They will lead.
Anyone who wants to submit an ama kiss brief submit the brief they will spend a few months reading. Through these brief, they will hold an oral argument and then they may spend two three four months. Writing an opinion and the, and why they do it in this. Very careful judicious way is because they have the last word, so if they screw something up like that, there's no one to check that like. That is the reason why the court you're supposed to spend a lot of time. Thinking about these issues, because once the court speaks yeah, you're stuck with it, there's a is normal there's. Nothin that can be done. The shadow docket being gan as a process specifically for death penalty appeal. So you had cases where someone is going to be killed on thursday and if the supreme court spends you know months deciding whether or not it's legal to execute them, the case will be moot because the person will be dead.
and so the er. There was an understanding that there needed to be some sort of emergency process where the court could stay these executions in order to prevent the court's own jurisdiction from being frustrated because the cases were being mooted and that what it was he usually used for other purposes, but only in emergencies. Steve Vladeck, a professor down at the university of texas, has done a tremendous amount of work on the shadow docket I think one thing that he found is like during the bush administration during the obama and his administration, I believe he may have gone back to the Clinton administration. He found that, like the solicitor I would only ask the supreme court to decide a shadow docket case, maybe like you're, less than one The term leg was considered an extraordinary act even make the request and like pardon reason why it's cuz, there's just a norm that the justice don't like these things and you don't want to piss them off and under trump,
the solicitor or general started filing like two three four cases: a term seeking relief. You why The reason why the court slow walking the Biden v texas case stands out to be so, is many of the shadow docket cases that were decided during the trump administration. Were The mirror image of I'd inv tax, as it was a democratic appointed judge who it's too had blocked a trump era. Immigration policy and the court treated this as an emergency that needed to be blocked. Right, I mean like just as a leader even gave a speech at notre dame recently where he said Well, the reason why we had to step in is because, if we did it, it would be trump's would be almost over by the time we got around to resolving the policy that bothered them under trump doesn't seem to bother them that much under Biden, and then the third thing that we've seen happened is that on lot of issues that were very high priorities for the conservative legal movement. They started handing actual substantive precedent, you'll opinions on the shadow doc.
so they completely rewrote the law governing the free exercise clause. Is your religion in a bunch of pandemic cases involving like you do can of public health. Can prevent h, yo, put an occupancy limit on a church things like that? The law? I been no and they, They basically rewrote bunch of laws governing when a religious objector prevails. In this case they know the rule. Now is yes, the church can do what it wants it in the face of such a public health order, and so what this means Moving forward, I suspect, will pricing last presidential setting opinions on the shadow docket moving forward, just because, like as this court, six three budget, He sits for longer and longer they will hand down more presidential opinions and they will, already. Change will also be less need for them to change the law in a shadow docket case, but, like
now that this, nor that they're gonna hear shadow docket cases all the time has been changed. I think warriors Smart they're, going to start asking the court for emergency relief all the time and one of the biggest victims of that decision is going to be the justice. Themselves. Red Cavanaugh might have theatre tickets that died at does it want to deal with the fair act that you know some lawyer for some whatever corporation thinks that its now normal to file for emergency stays at. So we didn't like this opinion that the seventh irc at handed down- let's, emergency stay, and so will a dozen other lawyers. That night, like you know, a big The reason they discourage lawyers from filing these cases was for their own sanity and that's no longer going to be true, but all Similarly, what I think this speaks to us. It speaks to the court's impatience. You know it is willing to not just change the rules.
But change the rules in ways that inconvenience the justices themselves in order to make sure that they get to the outcomes they want as quickly as they can. Let's take another break because I think that the white paper that we have for this week really speaks to this question of of pace and impeach. Us if you've, been looking to stay, engaged to follow local politics or even just remember who your representatives are keep up with moxie moxie is an easy way to get news updates on important legislation and voting info all in one sleek and easy to use platform, they pull news from hunter about. Let's, like pr c span and voice of america stories are collected, diverse set of sources you can follow along by topic or just hop on to see the most recent headlines. American residents can easily access important election info track legislation as it winds. Its way from voting to enactment get personalized ballot.
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These white paper is called originalism in instaurators decisis, the author of this paper. Maybe you're too many listeners, the paper was written by Amy coney barrett. It I want as a lot professor at notre dame before being appointed to the supreme court in you? jested this paper and, of course I jumped on it, because if we can finish it so about the conservative majority on the supreme court with one? Can certain members is that conservative majority laying out attention that we ve been discussing as is very live right now, which is the tension between adhering to precedent and restoring what you see as the original public meaning of the constitution. We should absolutely have that So can you kind of talk us through the problem that bear as I dunno firing and how she tries to resolving this paper. One thing that I really like about this paper is that it provides a very
size definition of how conservative academics who agenda five as originally have defined the word original ism and I'll just quote from bear it here. So this is her definition A regional maintains both at the constitutional text means but it did at the time it was ratified and that the original public, meaning is authoritative, so there's a lot of things going on here but, like, I think, the one of the most important things that comes out of that definition as the idea that the constitution's meaning is fixed, you're, no matter what happens unless there is an amendment, cannot change and as bear it points out. This creates a real tension for original, judges, because there are a lot of precedents out there, that may not comport with what amy he bear at, or you know whatever originally set on the supreme court. Think the original public meaning of the constitution is, and if the constitution's meaning is
fixed and cannot change under any circumstances other than a constitutional amendment. Then, would you do those precedents. You know if you allow them to stand, you're changing the meaning of the constitution without a constitutional amendment gives a few examples of the sort of precedents that, like would potentially be threatened by a strictly original judge and they are paid breaths round see board of education is on the less you. The press, allowing paper money, meaning like money not backed by the gold standard or something like those she adaptive as like the sorts of opinions could be vulnerable to regional ist attack the opinion holding social security, is on the or of but annually vulnerable diseases like everyone, loses their old age pension and to be clear every time she mentions one of these opinions. She goes out of her way to say I'm not so, and it was necessarily mean a raw right. I'm not say The new regional originalist would say it was wrong saying that this would be the
kind of like these would be the fights we'd be having I like that she's thing. There are strong original list arguments that brown was wrongly decide that social security is unconscious. The paper money is, I got to dick nazis going all the way there and saying that they are unconstitutional, and so question, then, is what is an original? This judge supposed to do if a litigant shows and says hey like what play the dollar unconstitutional and the primary solution up with me. In some cases she says that, like a judge can maybe like uphold the statute that was held in the old decision, but not apply the legal rule and, like me, be that's a solution, but I dont know how they gets tablets of the problem of paper money the main solution. She she suggests is basically that the supreme court should avoid the question of the way that she puts in the papers the courts to russian airy jurisdiction generally permit
to choose what questions at once to answer and if so, if someone shows up with the lawsuit saying, I think you should declare social sector pretty unconstitutional. What the supreme court should do is just not hear the case. It's just very clear that she was right this is a law professor and not as a justice who is actually had to deal with this problem before because, like we were just talking about the problem of the fifth circuit, we're just talk about the problem of like drew, it didn't matter kits barrack like she is assuming that the rules work. The way that the rules are supposed to work is that the supreme court declared social security, constitutional and then every judge in the country has to row bay. That decision but like they aren't always obeyed it'll, that you, you have more judges, pushing the limits. Now than there were in the past, but this isn't.
new phenomenon? I mean the the seminal second amendment opinion from justice scalia in two thousand and eight is d c v heller, which was the first opinion in two thousand and eight that the supreme court had ever handed down there's an individual right to own, a firearm protected by the second amendment. Before that the court had said that this no, this is just about how and how that case came about. Is that heard was heard by an unusually conservative panel of the dc circuit and reply we'll get appointed judges on the dc circuit said, let's fuck around and find out, and they decided to just act like the court. Hadn't said that the individual right The theory was wrong and they wrote the opinion that they wanted. Not the opinion in that the court's precedence of cigarette. supreme court, rewarded them by going yeah we're going to change the log, so you, my point is that if only mechanism to defend against a court declaring paper money unconstitutional. Is you trust that,
No lower court is going to go there. Well, they are going there, they they are going there on all on a lot of issues and ultimately bear it is either are going to have to come up with another way to defend against litigants who want brown v board of education overruled or she you know, she's going to have to take here it is the arguments calling for brown. We board of education to be overruled. The other thing about you know, bear its argument that essentially be the tissue of practice. Got a supreme court, prevents it from from wreaking utter havoc. Of course, you know, as as we've been discussing that that tissue is jean it isn't always being respected by the current conservative majority, I was absolutely struck by argument that not only does the supreme court have discretion in which cases it takes, but it's bound, conversely, by the questions being presented in the king and it doesn't get to just say: oh let's over
turn this precedent, because we don't like it and we can. They have to wait for something. Roby way would like having worked with about actually exactly like. We literally were just discussing earlier in this episode. They could have followed professor various suggestions, but just spirit. Barrett and her colleagues chose not to write the other thing about. This is this kind of making a no reasonable person would which is, of course, late. It's it's turning on its head, very familiar concept. Common, no reasonable person would put drew Tipton on a core revival. Yes, no reasonable person would would try to reintegrate the social security act. No reasonable person would try to really get people money and the reason that I find that really striking is are seeing now as this as the dust settles on this term in
willingness to challenge, in particular the supreme court's dissident, an overt or fell right. You have senator TED crews coming out and saying he thinks it was wrongly decided there wasn't a huge hue and cry about. Ober fell when it dropped view. some in fact was that it was going to be a settled question and that conservative we're going to abandon what it was assumed they felt had been. It had become an embarrassing political fight for them and if, if you continue to move port further right, if that then calls into question a bunch of other settled. Presidents like oh well, if they're willing to say roe v wade was unconstitutional. Maybe I shouldn't assume that oberg of settled law write this. I also if this immigration context, because I think a lot of people forget when dhaka was first announced ten years ago. There wasn't a legal challenge really at all rose the aid, nominal legal challenge that pretty quickly thrown out, and it wasn't until the Obama
administration attempted to expand it and create a much larger sister program that litigation started. That would eventually bend back and challenge the existence of dhaka itself, but they needed that original rule. You know that the voting that kind of that ruling in the further case first before they could get to the issue that was closer to a political consensus so as barrett and now is going to continue to serve on the court for a certain amount of time. Like the thing that it strikes me, she would encounter Is that the things she sees now is being beyond the pale are going to get called into more We're question because of rulings that she and her colleagues are perpetuating right, they're going to get closer and clear sir, to a world where you know the supreme court precedents, out liars or at least like to the left of other supreme court jurisprudence and there's going to be focus on them. So do you see any being in this argument. That indicates like what,
This is to do in that situation, where they are on the right, early in their term. Saying that things are, you know like not being willing to address questions and then those questions and harder to ignore the years go on. I mean one thing that I think is notable about this paper. I mean first of all, she's writing it, based on her experience as someone who clerked for justice scalia for a single year. Like I mean it, it's just one thing that sort of comes out paper she's, not so much like coming up with, like eight grand comprehensive after, like interviewing seventeen people have served on the supreme court and get it like she is just I being how justice school we dealt with these issues and like first full Scully, compared to like gore such or tom is a moderate original list so like he just wanted to push less are than other than they wanted to play? but also like you know, it is more a description of how justice scalia handle the issues that came before him, then it
The description of like how a justices who sit on this court, which is you arguably to the right of justice, scalia, should deal with a lot of these issues and, like the other problem, is that so when the court hands down a decision, it doesn't just say like the social security act as constitutional on constitutional, it often articulate the method that judges should use. When interpreting the constitution, and we ve seen this term a lot of these sort of metal decisions that don't just say like hey, we think that lemon viii, kurtzman was wrongly decided. This was one of the religion cave the were talking before the kennedy. Is that didn't just say it it over old women. It gave a very vague description of why I thought lemon was wrongly decide, but what it said is that when judges are interpreted passage to the constitution, they should look to historical practices and understandings, you know- and you know, the courts had similar things in the guns case in the abortion case and
oh, if I am a lower court judge who is acting in good faith, let you who is who is not a crank who just trying to bay. The commands that have been handed down to me to my judicial superiors, what I see the supreme court doing handing down a lot of these met a decision or cases that aren't saying like hey this individual precedent that reached this result in nineteen. Seventy three that result was wrong. They were saying the entire methodology that we have historically used to decide. Constitutional questions is wrong and there should be a grand shift to this different methodology In fact, the grand shift is a shift a boar, originally methodology, the very methodology that bear it and then, if I send your paper as potentially endangering things like social security or maybe in, and so you know, again like if I a lower court judge. Reading this white paper by Amy coney bear it. What I
he's a supreme court justice telling me, as the court is moving in a more regional jurisdiction that social security be sauce It's like you, you don't have to be acting in bad faith. To think that maybe- court, is telling you to reconsider the constitution. How that gives the ritual security wait, or I mean, or at the very least you know that you might as well fuck around and find out exactly yeah, but I I definitely I think that it would be I think a little bit foolish to assume that we're not going to continue to see more of this kind of you know the absence of kind of the center of gravity role that It has provided in any more and more lower court decisions that may conflict with each other that make inflict with settled precedent, and it's just it's going to be returning to the eye, you have the reliance interest like what this means for how government officials act on a day to day basis
is really really relevant here, because it strongly suggests that there is going to be rapid, turns. whether or not a particular policy is legal or should be pursued forgot which is used to moving very, very slowly, not to mention you know, lay like the judiciary is not the only branch of government government used to proceeding proceeding the glacial pace. It's going to be very interesting to see what this does as for governing fast and slow. If you well and I'll say one other thing which they think it's as it is making the rest of the government move slow, think that the court's current approach, original ism, is allowing the court to move very quickly. If you go back in Red Scully is great assets and speeches from the nineteen eightys by explaining why he's original list and wire regional investment is good. He described it as a way constraining judges. He describes it as way of saying look like
there's one meaning it is fixed? This is the method to determine it and the reason why it is good to read the constitution. This way is because we don't want judges setting policy in a democracy, but you know we want them to reach the one determined out coming and that's it one critique of originalism is that doesn't work that like them, there isn't in fact one determined the constitution, but even if you can feed that point like what bear it is saying in her ass, a is essentially, there will be some This is where we use original ism and there's some cases where we use story. Decisiveness, And it is essentially a judgement call like what why does bear not want to strike down social security? She thinks it would be bad. Why does she one overrules brown v board of education, because she thinks it would be bad, and if because I think it would be bad like the whole point Album that scalia was trying to solve with originalism. Is that judges?
shouldn't, be making a decision because they think the other outcome is bad, though that they should be. Something more than engaging in policy discretion and what I think that barrett is inadvertently conceding in her paper that original religion doesn't do the work that we were told it was supposed to do. It doesn't in fact constrain judges it just. changes the rhetoric that they use, when they are making these sorts of policy judgments. the. So with that. I think that and lay this supreme court term to rest, at least until it until the next term begins in october, a good round to start with these. Thank you too, in Wilhite or for joining us today, producer is so, if you want it to be known, as our editorial adviser amber hall is the deputy toil director for talk podcast and I'm your host darlint, we'll be back in your feeds,
We, we are running up the weeds time, machine again, so get excited for another trip to on a century. The weeds as part of the VOX media podcast network, the. The insurance is one of those things you know you should probably have, but knowing it's important just make it more stressful and intimidating. a longer and longer and longer, but did you know life insurance tends to get more expensive, as you age
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Transcript generated on 2022-07-22.