Summer of SCOTUS 2 Wrap Up Overview

Announcer: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor. N. Rodgers: Hey, Aughie. J. Aughenbaugh: Good morning, Nia. How are you? N. Rodgers: I'm good. How are you? J. Aughenbaugh: I'm good. N. Rodgers: It's our favorite time of the year. J. Aughenbaugh: Yes. For those of you who don't know, we are recording three episodes at the end of the Supreme Court term. N. Rodgers: You'll hear them in about a month? J. Aughenbaugh: Yes. For Supreme Court watchers like myself, the end of June is like our Super Bowl, our World Cup, our World Series. It's like Christmas, birthday, and whatever else. N. Rodgers: In my world, it's the Davis Cup. J. Aughenbaugh: Yeah. Okay. N. Rodgers: Or the Stanley Cup. Where you just keep adding rings with teams. J. Aughenbaugh: Yes. N. Rodgers: It become so heavy, nobody can pick it up. J. Aughenbaugh: Well, the Stanley Cup was just awarded this week as we are recording to the Colorado Avalanche. We're now seeing photos of the various Colorado Avalanche players drinking various and sundry adult beverages from said cup. N. Rodgers: Yes, because each player on the team gets to take it for 24 hours. When the wings got it one year, I can't remember who somebody is. Grandma made a jell- O mold I was like that's awesome. But mostly it's to take it to wherever your hometown is and show it around and you get the picture taken with it and your grandparents picture taken with it and all that. J. Aughenbaugh: When your kids decided to go ahead and pour their sippy cups of apple juice in it in and drink in it and. N. Rodgers: Exactly. J. Aughenbaugh: Yeah. N. Rodgers: But so our Supreme Court first of all, we are also recording this and I apologize, it won't be out for a month or so because post-production stuff. But yesterday we got us a new justice. J. Aughenbaugh: Yes. N. Rodgers: We're recording July 1st. On June 29th. Justice Breyer retired. J. Aughenbaugh: June 30th,. N. Rodgers: June 30th. What did I say? J. Aughenbaugh: June 29th,. N. Rodgers: Sorry, June 30th, My bad. He retired and then he promptly administered the oath, the judicial aoth there's the constitutional oath and the judicial oath and they get the constitutional oath I guess is given by the Chief Justice and then the judicial oath is given by someone that you admire slash respect. J. Aughenbaugh: Yes. N. Rodgers: What else? Justice Brown Jackson worked for Justice Breyer. She clerked for him. J. Aughenbaugh: Yeah.. N. Rodgers: He administered. That must have been bittersweet on both sides. He's leaving after a number of years, She's joining a court that is in let us say gently disarray some disarray. J. Aughenbaugh: I mean I met him. It's in a transition. N. Rodgers: We wish her all the best. J. Aughenbaugh: Listeners if you get a chance. The ceremony was recorded. I've seen a bunch of these over my career teaching. They all basically follow the same script. I mean, she couldn't get a smile off her face. I mean,. N. Rodgers: It's when she's geared her whole career towards. J. Aughenbaugh: Nia. This is a person who by every measure has done the right thing, gone to the right schools, worked hard, demonstrated her judicial temperament and capacity. Now she gets to serve on the Supreme Court which as you pointed out, she had one point was a clerk to justice Breyer. Great thing. Our first African-American female Justice. N. Rodgers: Very exciting. J. Aughenbaugh: Yeah. Very exciting. N. Rodgers: She's likely to be in large part on the liberal end of things. That means she's going to be on the losing side of almost every decision from now until the end of time. J. Aughenbaugh: Here's your reward. N. Rodgers: Congratulations, your perennial in the three verses six category, you're in the three. J. Aughenbaugh: For listeners. For those of you who don't know what we're talking about, political scientists since the 1940s have basically argued that. You can assign ideological labels pretty much to every judge. Particularly after the judge's been on their bench for a number of years, then you can start cataloging their votes and their opinions, et cetera. On the current Supreme Court. As we've mentioned on this podcast a number of times. There are six conservatives, and they were all appointed by Republican presidents. And Justice Brown Jackson is replacing one of three liberals. Breyer, Kagan and Sotomayor. N. Rodgers: Although Aughenbaugh I would like to caution you that just because they fall into these categories of liberal versus conservative, doesn't mean that you won't get some really interesting votes out of them based on those ideals, based on their ideals that they take to whatever level. I think we've had some interesting votes. We thought, why is Gorsuch voting that way? When you think about his view of the Constitution in terms of his conservativeness. He logically would vote certain ways on certain things. I think people were rather shocked that he was like, 40 percent of Colorado really should be Native American land. Everybody went, I'm sorry, What? He was like, yeah, no, it makes sense. J. Aughenbaugh: You're talking about the McGurk case. N. Rodgers: Where I think people thought he would come down on the side of the state names like no. J. Aughenbaugh: The state of Oklahoma, which interestingly enough, Nia, there was a follow-up case, this term, where to your point, Gorsuch voted with the three liberals. They were in the dissent where. N. Rodgers: We'll get to that in next episode. J. Aughenbaugh: Next episode. Yes. N. Rodgers: Because our first episode and generally what we talk about are the summary statistics, the broad overview of the term and the term dates are. J. Aughenbaugh: The first Monday of October. Until all of the excepted cases decisions are handed down. N. Rodgers: That is October of 21 this time? J. Aughenbaugh: Yes. N. Rodgers: To June of 22? J. Aughenbaugh: Two yes. Because usually the Supreme Court tries to wrap up its business by the end of June. N. Rodgers: Yeah. It can go to the Mediterranean and sit on the beach it's not really what they do. What they end up doing is giving lots of speeches and teaching summer classes and making money writing books. If you're Clarence and Ginny Thomas, you get into your RV and go see the nation. There's all stuff that. J. Aughenbaugh: Some of them have of summer vacation homes where they take their family. We usually end up finding out what their summer travel plans were after the fact. N. Rodgers: I'm just going to state for the record, by the way, Aughie and I both think that any attempt on a Justice's life is wildly unacceptable. We do not live in a country where that is okay. First of all, murder's not okay. In any circumstance, you don't get to kill anybody. That's not cool. But also just the idea of threatening the Supreme Court for doing their jobs. That's wrong. We can disagree with them on any number of occasions. We can disagree with their logic. We can disagree with your opinions. J. Aughenbaugh: We do by the way. N. Rodgers: Then we frequently do, but we don't harm other people because we disagree with them. That is the exact opposite of civil discourse, and something that we will not. J. Aughenbaugh: I don't even think it's appropriate to go ahead and publish their home address. N. Rodgers: Exactly. You don't docs them. You don't nothing. It's not okay. J. Aughenbaugh: They have a tough job. They have judicial independence that's written into the Constitution. We want them to be independent so they can make the tough choices. Sometimes we think they get it wrong. N. Rodgers: But we don't harm justices. Think about it in terms too of the justices you like versus the ones you don't like. If you were perfectly fine with somebody threatening Brett Kavanaugh because you don't like Brett Kavanaugh. How would you feel about somebody threatening Sonia Sotomayor or Orlando Kagan or the beloved RBG, J. Aughenbaugh: I mean, it cuts both ways N. Rodgers: Exactly. If you're going to allow one person to be threatened, you're going to allow all of them to be threatened and that is unacceptable. Just getting that out of the way because this term that's actually been a thing. As far as I know, it's the first term where we've had real threat against like people gathering outside their homes and giving their addresses and chasing down their families and stuff like that. Unacceptable, stop doing that. That's not how civilized people act. How many cases do they have?. J. Aughenbaugh: This was one of the first noteworthy statistics Nia the Supreme Court this term talk and decided only 63 cases. N. Rodgers: That's kind of low, isn't it? J. Aughenbaugh: Yes. N. Rodgers: I mean, they don't do thousands, they usually do at least 75-100. J. Aughenbaugh: To put some historical context on this, near as recently as the 1980s, the Supreme Court was taking and issuing decisions between 135 and 150 cases. N. Rodgers: That's a lot. J. Aughenbaugh: The court starting in the 1990s and into this millennium, gradually shrunk to between 70 and 80. N. Rodgers: So 63 is not that bad. J. Aughenbaugh: But historically it is the smallest number since the Civil War in the nation. Not to put too final point on this, but the nation's changed quite a bit since the Civil War. N. Rodgers: Just a smidge. That's interesting. Is that in part because the court is trying to make other branches step up and do the proper work? Part of what that would be is since the Civil War, we have become significantly more litigious than we were before as a nation. J. Aughenbaugh: Well, I don't know. Alexis de Tocqueville, writing in the 1830s, said one of the most dominant characteristics of the American form of democracy was how willing Americans were to go to court. N. Rodgers: That's a fair point. J. Aughenbaugh: One of the things that we've exported to the rest of the world. N. Rodgers: Is suing. J. Aughenbaugh: Is our willingness to use court to settle any and all dispute. There are a lot of different explanations that scholars have come up with. You mentioned one, which is increasingly the justices are tired of cleaning up the messes of the political branches. N. Rodgers: And taking the hit for that. J. Aughenbaugh: Yeah. N. Rodgers: That's the other part of it is, their popularity is dropping. They used to be much more popular than they are now. J. Aughenbaugh: If you think about it and we're going to get into this in one of the future podcast episodes, but the Supreme Court this week that we are recording went ahead and said that the EPA did not have the authority to change the nation's electrical grid to respond to climate change. Now, the court ends up gaining just absolutely lambaste it, for not giving the EPA the authority or allowing the EPA to use the authority to address climate change. But if you look at the Clean Air Act, who didn't give the EPA the authority to address climate change? N. Rodgers: I'm assuming it's Congress when they actually created the EPA. They need to go back and revisit. J. Aughenbaugh: Has it addressed climate change? N. Rodgers: No. J. Aughenbaugh: The Supreme Court weighs in on immigration, as Justice Kavanaugh pointed out in his concurrence concerning the Biden administration wanting to roll back the Trump administration's returned to Mexico policy, as Kavanaugh pointed out in his concurrence. The United States Congress has the authority to address immigration, but it refuses to do so. There are any number of reasons. We talked about this a couple of summers ago when we did our Summer of SCOTUS. Taking cases is strategic on behalf of the justices. N. Rodgers: Right. J. Aughenbaugh: If you don't know, there are five votes and your justice to watch or to hear a particular case, you might be less willing to vote to hear the case. There are any number of reasons. But because there are so few, doesn't necessarily mean they're not taking really important cases. N. Rodgers: Can I say that of the 63, 20 came out in this month? J. Aughenbaugh: Almost 30. N. Rodgers: We're talking close to half. J. Aughenbaugh: Close to half were undecided. N. Rodgers: Until June. I don't know if they were undecided, but they were undisclosed. J. Aughenbaugh: They had not been handed down, but nevertheless, again historically. N. Rodgers: This is like those students who turn it in at 11:58, when it's due at 11:59. J. Aughenbaugh: Yes. N. Rodgers: How many cases were in the shadow docket, my favorite, and by that I sarcastically mean not favorite thing. J. Aughenbaugh: The Supreme Court, this term decided over 10 cases on its shadow docket. Again, for listeners with the shadow docket, a party appeals to the Supreme Court to overturn a lower court decision, but the Supreme Court does not have or does not use its full process. It doesn't take full written briefs, it doesn't have oral arguments and this has been a controversial subject. We discussed it in a previous podcast episode. N. Rodgers: They don't give full opinions. J. Aughenbaugh: They don't necessarily give full opinions. Again, that's the largest number of shadow docket decisions in the history of the court. N. Rodgers: I'm fascinated by the vote decisions and the reason I'm fascinated by that is because in traditional years, in years past 9-0 and 8-1 and 7-2 were the most common. J. Aughenbaugh: Yes, and they still are. N. Rodgers: Are they? J. Aughenbaugh: They still are. Just to give you a sentence, Nia, 17 out of the 63 cases were decided 9-0. That's over a quarter of them where there were no dissenting votes. For all of the media discussion of the Supreme Court. N. Rodgers: As a crumbling bunch of angry people yelling at each other, 27 percent of the time they were like, sounds good to me. J. Aughenbaugh: Yes. N. Rodgers: Think of that as 27 percent of the time they all agreed on the restaurant in the first pass? J. Aughenbaugh: Yes. N. Rodgers: Are we going to go to dinner? We're all going to go for pizza. I say that because if you and your friends could get 27 percent agreement, the first time you ask the question, where are we going to eat dinner, that would be nothing short of a miracle in most friend groups. J. Aughenbaugh: Yes. N. Rodgers: Man, that's a question that goes around and around and around, but anyway. The 5, 4 decisions were the close ones. J. Aughenbaugh: Yeah, those are the close ones. Slightly under 20 percent. N. Rodgers: A quarter of the time in pretty much total agreement and a quarter of the time, pretty much divided. J. Aughenbaugh: Yeah. Twenty percent of the time, let's face it. If you compare this to more recent statistics, this is pretty much the normal. Again, listeners, you have to be a little cautious here when all the newspaper articles and stuff you see on the Internet is like, we have this divided quote. Well, maybe on the controversial stuff, yes. N. Rodgers: Now, that's an interesting way to put it because I know in your notes the 6, 3, which is basically the conservatives versus the liberals, that's about 20 percent of the time. J. Aughenbaugh: Yes. N. Rodgers: It's not as divided as we'd like to think it is. Actually, and I've got the math a little wrong because it's like a fifth of the time, they get along and I know a fifth of the time, they are divided and a fifth of the time, it's 6, 3, which means that what the media is perceiving as disarray isn't disarray. It's the media seeing that the liberals are on the losing side and they're saying that that's disarray, but there's no disarray on the six side. J. Aughenbaugh: No. N. Rodgers: They're not in disarray. The conservatives on the court are not nearly in as much disarray as perhaps, but anyway. J. Aughenbaugh: There are other statistical, if you will, patterns. N. Rodgers: I love this. Every year, you report which ones are in the majority of the most. J. Aughenbaugh: Yes. Can you guess which two justices were in the majority the most? N. Rodgers: Well, the thing about this is consistently, at least it seems to me consistently, the chief justice tends to be in the majority. I would say J Rob has got to be one of those. J. Aughenbaugh: The two justices that were in the majority were Chief Justice John Roberts and Justice Brett Kavanaugh. In fact, they voted the same a remarkable 95 percent of the time. N. Rodgers: Now, I have a question for you about that. Do you think that's because Kavanaugh really lines up with Robert that much or do you think that it's because Kavanaugh is not interested in making waves his first two years on the court while he figures out who he is and what he wants his jurisprudence to be known for and that sort of thing? Will we see that with Amy Coney Barrett when her numbers are polled eventually? J. Aughenbaugh: I think Kavanaugh ideologically is closer to John Roberts than he is to Clarence Thomas or Sam Alito on the conservative side of the court. N. Rodgers: Roberts is a moderate conservative. J. Aughenbaugh: He's only moderate because of the other four conservatives. Let's be very clear about something here. John Roberts is not a liberal. He's not a moderate. He is more willing to vote with the liberals, but he doesn't do that all that often. I think Kavanaugh also felt really burned by his confirmation process, and when you see a justice go through the confirmation process like Brett Kavanaugh did, they can respond one of two ways. They can try to gratiate themselves, fit in with the court. N. Rodgers: Go along, get along. J. Aughenbaugh: Or they can do what Clarence Thomas did. Clarence Thomas also went through a difficult confirmation process, but he adopted, if you will, a very conservative position on the court and he hasn't deviated. He has not deviated. You and I talked about this before. N. Rodgers: Like him or dislike him, he is consistent. J. Aughenbaugh: Even Scalia said, when Justice Scalia was on the court with Thomas, that Clarence Thomas doesn't care about president. He cares about it getting it right, about the court getting it right. Clarence Thomas is willing to go ahead and overturn 200 plus years of precedents if he thought the precedent for 200 plus years was wrong. N. Rodgers: Was wrong. J. Aughenbaugh: Whereas Scalia was willing to acknowledge that there were certain precedents that the American people had grown to rely upon. That even if he thought they were poorly decided, the court should follow. N. Rodgers: The justice in the majority, the least. J. Aughenbaugh: Sonia Sotomayor, less than 60 percent of the time was she in the majority. N. Rodgers: But it's 59 percent. It's pretty close to 60. Even the person who's not in the majority the most is still in the majority more than half of the time. J. Aughenbaugh: Yes. N. Rodgers: This thing that we're getting this divide and conquer view of the Supreme Court, it just does not bear out numerically. J. Aughenbaugh: You have to be cautious, when you see press reports that this is a badly divided court, they're not getting along. All I keep on coming back to is but even the justice who's in the majority the least is in the majority 59 percent of the time. N. Rodgers: That's a lot. We know that Roberts and Kavanaugh are remarkably similar in their votes. J. Aughenbaugh: Yes. N. Rodgers: Who are the most different? J. Aughenbaugh: Nia, you could actually guess this. N. Rodgers: Well, I'm going to guess Justice Thomas on the conservative side. J. Aughenbaugh: He's his own animal. N. Rodgers: He is his own entity of moral compass. He's got his own way. N. Rodgers: Well, it's got to be one of the liberals. J. Aughenbaugh: Yes. N. Rodgers: I'm guessing it's probably Sonia Sotomayor because she's in the majority of the list. J. Aughenbaugh: Yes. Sonia Sotomayor and Clarence Thomas. N. Rodgers: The Polar Opposite. J. Aughenbaugh: Ideological spectrum. N. Rodgers: Right. J. Aughenbaugh: This makes sense, right? N. Rodgers: Right. That they would meet in the middle of the list. J. Aughenbaugh: List. N. Rodgers: The only reason I didn't get [inaudible]. J. Aughenbaugh: She's willing to go ahead and follow president, then Sonia Sotomayor. N. Rodgers: Sonia Sotomayor feels about president the same way Justice Thomas feels about president. If it's not right, and I don't care if we've done it that way for a 100,000 years. We're not doing that way starting tomorrow. They are in fact, very much twins in that sense of, president is not as important as what is right. J. Aughenbaugh: Yes. N. Rodgers: It's just that they have the worldview of what is right is very different, but their view of how to get there is I think, almost the same. J. Aughenbaugh: It's pretty noteworthy Nia about a month ago, Justice Sotomayor gave a talk to, I believe the American Constitution Society, which is tends to be a liberal interests group. She was asked during the Q&A by the audience what she thought of some of her colleagues. Unscripted, she just went ahead and said that she loves Clarence Thomas, that she thinks he's a really good person, that he feels strongly about the court as she does. But she acknowledged that their view of many Americans is different, whereas Clarence Thomas believes that the oppress, the downtrodden, should individually pull themselves up by their bootstraps. Her perspective is sometimes those people need the help from the government. But she said we both believe strongly in the work that the court does. As she pointed out, she frequently disagrees with Clarence Thomas' jurisprudence. But there's not a person that the Supreme Court who doesn't like Clarence Thomas. Again, I caution my students, particularly when I teach courts and politics, that just because Sotomayor and Clarence Thomas are on the polar opposite [inaudible]. N. Rodgers: She's culture liberal, he's ultra conservative. J. Aughenbaugh: They can still work together. N. Rodgers: They have enormous respect for each other. My impression of Justice Thomas is that he respects his colleagues, except I don't think he respects John Roberts leadership. I think he questions John Roberts leadership and I think that other people are doing that too after this term. That there has been some real controversy in terms of Justice Robert's ability to cohere the group. J. Aughenbaugh: I think Clarence Thomas doesn't respect John Roberts as much because John Roberts is willing to pull his punches on cases in votes. I think a Clarence Thomas is more likely to go ahead and respect to Sonia Sotomayor, even though they disagree with one another so much, because Sonia Sotomayor is willing to stand up for her principles. N. Rodgers: [inaudible] Rob is trying to protect the institution. J. Aughenbaugh: Yes. N. Rodgers: I suspect that's the thing, yes. But he wrote to [inaudible]. J. Aughenbaugh: Clarence Thomas, nearly 30 of them. N. Rodgers: I have 63 cases. That's a lot. J. Aughenbaugh: In the last five years per Supreme Court term, he writes more than every other justice. In fact, the only one who's closest to him, Sonia Sotomayor. N. Rodgers: They got a lot to say. J. Aughenbaugh: They write majority opinions, they write concurring opinions, they write dissents, they write dissents from when the court denies an appeal. Just to give you a sense, Sonia Sotomayor, again, we're recording on Friday, July 1st, the court finished its term the previous day. The Supreme Court announced the last set of cases it is agreed to hear in the Fall. Sonia Sotomayor wrote six dissents on cases the Supreme Court decided not to hear. N. Rodgers: We should have heard this one, for the following reasons. J. Aughenbaugh: It is true. N. Rodgers: Well, you know what? She's younger and she may be perceiving the court as not doing enough. Maybe she longs for the days when the court did 120-130 cases. J. Aughenbaugh: Well, she could be. The subject of my dissertation, Byron White used to complain every year that the Supreme Court needed to take more cases. Mind you, he was on the court when the court was hearing 130, 135, 140, he wanted to hear more. N. Rodgers: Isn't he the guy that had his opinions out within week? J. Aughenbaugh: Oh, yeah. He told his clerks we've got a week. Here's the other thing, should Justices relish being in the dissent? They love being, if you will, the loyal opposition. It wouldn't surprise me one Iota if Justice Sotomayor falls into that category. Thomas never minded. let's face it, for most of Thomas's tenure on the court, he's not been a consistent member of the majority. N. Rodgers: The conservatives have not been the majority. J. Aughenbaugh: Even when he votes with the rest of the Conservatives, he usually does so on grounds that are so different. N. Rodgers: He writes concurrent dissolve in time. We got to the right answer, but boy, did we get to the wrong reasoning? And here's why, he has a very [inaudible]. J. Aughenbaugh: I agree with the judgment. But you guys got there though the wrong way. Let me tell you how you got through the wrong way. N. Rodgers: We are opinionated people. J. Aughenbaugh: By the way, the median vote on the current Supreme Court, the last two terms, John Roberts. He's the meeting. N. Rodgers: That makes sense. J. Aughenbaugh: The problem is, he's now got five justices who are more conservative than him. As we will see, as we discuss some of the cases in our next podcast episode, he no longer can go ahead and bring a couple of the conservatives to his middle ground incremental approach. This is where you're starting to see the media say, John Roberts no longer has control over his court. But we've always known this. And I'm not saying this about John Roberts specifically, but I've always said this about the chief justice, because yes, we label courts by who the chief justice is. But they only have one vote. N. Rodgers: Right. One out of nine. They might, through personal charm bring people over, but they might not. J. Aughenbaugh: They might know. N. Rodgers: Is we will note in the next podcast with the docket this year, it was controversial. Being able to bring anybody over from one side or the other was going to be dang near impossible. But we'll get to that next episode. Thank you so much for our statistical overview of this year. I'm glad it's over. Then I think about next year's docket and I think, oh no, now I need to get a new cold compress to put on my forehead. Because if you thought this was controversial, there is just more to come. J. Aughenbaugh: Nia you and I both love movie quotes. Watch the old movie called Bed Davis, what does it buckle up? It's going to be a bumpy ride. N. Rodgers: It's going to be a bumpy night or a bumpy ride, something like that. It's going to be interesting next term. But we got to get through this term first. I'm back next episode. We won't be able to talk about all 63, which I'm sure I just her size of relief all over from listeners. Oh, thank goodness. You're not going to try to cover 63 cases. We're just going to talk about the really big ones. J. Aughenbaugh: Yes. N. Rodgers: We will link to the Supreme Court rulings page where you can go and look at everything else. J. Aughenbaugh: They're nice neat PDFs. N. Rodgers: They really do. Thank You. Supreme Court. Thank you, Aughie. I'll talk to you again soon. J. Aughenbaugh: Thanks, Nia. Anouncer: You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.