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 because for this entire podcast episode, I get to talk about Supreme Court rulings.
N. Rodgers: Yes, we're doing our annual wrap-up of the Supreme Court for the October 21 through June 22 season.
J. Aughenbaugh: Term.
N. Rodgers: Season's like it's a television show. I have to say, by the way, that somebody the other day said to me, "I'm watching the January 6th hearings. I'm up to Episode 4." I don't know how I feel about that.
J. Aughenbaugh: This really does reflect how Americans binge-watch stuff.
N. Rodgers: I'm up to Episode 4.
J. Aughenbaugh: Because you and I have talked about, for instance, I'm a huge fan of the TV series Bosch, which is based on a series of books written by Michael Connelly but I've tried to turn on as many friends as possible to Bosch. I'll go ahead and ask them, "What season are you on? What episode?" They're just like, "Not all of us binge," and I'm like, "But most Americans do binge-watch." I've had friends who are just like, "So Aughie have you watched all the episodes of the January 6th committee?" All episodes? I'm like, "They're hearings."
N. Rodgers: They're not episode. They're like, "Well, they're kind of like episodes." It's funny to me because I think of episodic television as the Great British Bake Off, not the Congress holding hearings, but do you. If you're watching the hearings, good for you, because sometimes that can be quite the slog.
J. Aughenbaugh: Yes.
N. Rodgers: To keep up with all that level of evidence and that thing, anybody who's ever watched any hearings, and by the way, for listeners who are younger, the one in my youth was Iran Contra and it was riveting, right?
J. Aughenbaugh: Yes.
N. Rodgers: The one in my older siblings youth were the Watergate.
J. Aughenbaugh: Hearings. Yes.
N. Rodgers: The Watergate hearings, and they were riveting. It is interesting to watch Congress in action and what they think is important than the questions they ask. Remember that a vast number of people who are in Congress are also trained as attorneys and all of the committees have attorneys, they all have counsel. Every committee has counsel because sometimes when a committee wants to put forth a bill, they need to bring in a lawyer and the lawyer says, "No, you can't do that," or "Sure, great. It's fine. It's not going to be a problem." Then they find out later is but anyway, we're going to talk about the high-profile cases. We're not going to talk about all 63 cases plus the 10.
J. Aughenbaugh: Shadow docket cases.
N. Rodgers: Shadow docket cases because we don't have that time and nobody has that interest. A few people do, you do, but the vast majority of people want a hit the highlights. The first case that you have listed here is US V Tsernaev.
J. Aughenbaugh: The Boston Bomber case.
N. Rodgers: That's the younger brother, the older brother died. This is the younger brother who survived the manhunt.
J. Aughenbaugh: The trial court, the jury, gave him the death sentence and that was appealed. The Appeals Court overturned the death sentence, so the United States government appealed the lower court ruling to the United States Supreme Court. The Supreme Court decided 6-3 on conservative to liberal justice lines. By the way, listeners, that's a particular theme in a lot of these cases.
N. Rodgers: I was going to say, get used to six versus three. When we say that, what we mean is six conservatives, three liberals.
J. Aughenbaugh: The Supreme Court overturned the federal appeals court decision.
N. Rodgers: Restored the death penalty.
J. Aughenbaugh: It restored the death sentence. That's right.
N. Rodgers: Okay.
J. Aughenbaugh: Yeah.
N. Rodgers: Is that in part because it was a terrorism case?
J. Aughenbaugh: The issue that the defendant's attorneys brought up was in regards to the jury instructions.
N. Rodgers: Just as a side note, for anybody who hasn't remember, let's quickly remind you that the Supreme Court is an Appeals court. It does not hear the facts of the original case. They're not interested in finding you not guilty of being the Boston bomber, not guilty of terrorism. That's not what they question.
J. Aughenbaugh: Was the trial conducted fairly? As far as the conservatives were concerned it was.
N. Rodgers: It was.
J. Aughenbaugh: This was a difficult case for the Biden administration because the Biden administration actually was arguing in front of the Supreme Court that the death sentence was a constitutional punishment for the defendant and for the Democratic Party. It's been a longstanding platform in their national convention that they are against the death penalty.
N. Rodgers: This was weird.
J. Aughenbaugh: This was very weird.
N. Rodgers: The Biden administration is probably thinking in terms of sending a message and this is the war on terror, and there's all these other layers into this.
J. Aughenbaugh: The prerogatives of the political branches to be able to have that as a particular punishment for various federal crimes.
N. Rodgers: For an attack on the state.
J. Aughenbaugh: State.
N. Rodgers: What's the next one?
J. Aughenbaugh: The next one, and this got overshadowed because of the Dobbs ruling but back in the fall, the US Supreme Court heard a case, Women's Whole Health versus Jackson, concerning Texas law, SB8, which bans abortions after fetal heartbeat was detected, and which would be enforced by non-government actors in civil suits. The Supreme Court by a 5-4 vote, largely upheld the law. The only conservative justice who voted against was Chief Justice John Roberts. If for listeners, this is the state law that has the rather controversial provision where no Texas government actors would enforce the law.
N. Rodgers: But civilians could sue, let's say a clinic. They could sue the medical professionals in that clinic if they performed an abortion after the fetal heartbeat.
J. Aughenbaugh: This is controversial because as John Roberts pointed out in his dissent, this is basically the government outsourcing enforcement of laws.
N. Rodgers: I'm was going to say ceding enforcement to random people who want to win lawsuits.
J. Aughenbaugh: This is problematic, Nia, for both liberals and conservatives because liberals have long held that various, if you will, types of laws might be enforced by non-governmental actors. For instance, see the 1964 Civil Rights Act or various provisions of environmental laws, where you as an individual don't have to wait for the government to bring a lawsuit to stop somebody from endangering a particular species. For conservatives, as was pointed out in a number of commentaries, conservatives might have liked this in regards to abortion but what about the enforcement of gun control laws? By the way, California was considering such a law, could the state of California basically allow victims of gun violence to bring lawsuits against the manufacturers of guns or those who actually use the gun. Where does it stop?
N. Rodgers: We'll probably see another version of this come before the court. It would not surprise me if, in a couple of years, this has worked its way through the system as let's revisit this question. Then there's New York State Rifle and Pistol Association versus Bruen. I can't remember. Is that the case where they only wanted you to be able to carry a gun to a range? That's a different case, isn't it?
J. Aughenbaugh: That was a different case that eventually got mooted because the city of New York scrapped that ordinance. We talked about that in our previous episode Guns of New York.
N. Rodgers: Right.
J. Aughenbaugh: But this is a particular case. New York had a concealed carry, a firearm law, which was challenged for violating the 2nd Amendment. Because basically, New York told gun owners they had to show why they should receive a permit to carry a firearm outside their home. In most jurisdictions in the state of New York, the decision to grant the permit was hardly ever given. In effect, most New Yorkers never received a permit to carry a firearm outside their home.
N. Rodgers: Give me a reason as a subjective standard.
J. Aughenbaugh: Yeah.
N. Rodgers: If the other person on the other side of the table doesn't like your reason.
J. Aughenbaugh: It gets challenged.
N. Rodgers: It's unevenly enforced.
J. Aughenbaugh: It's unevenly enforced.
N. Rodgers: Which brings a lawsuit.
J. Aughenbaugh: A majority of the Supreme Court, the vote was 6-3, and the majority opinion was written by Justice Thomas. The Supreme Court held that states can regulate the possession of firearms outside the home but those regulations must be consistent with historical practices of when the civil liberty was created in the Second Amendment. Basically, the burden is on the government, not the individual. The burden is on the government.
N. Rodgers: The individual doesn't have to tell you why they need a gun. You have to tell them why they don't need a gun.
J. Aughenbaugh: Why they can't have a gun outside the home.
N. Rodgers: Okay.
J. Aughenbaugh: A good distinction here is in 43 of the 50 states in this country. States have what is known as shell issue carry permit schemes. Basically, the states have objective standards or criteria. If a person meets them, they can get the permit.
N. Rodgers: You have to take a class, you have to be certain age, you have to pass a background check. There you go. Check, you're done.
J. Aughenbaugh: Yes. The burden is on the government to explain why your permit was denied.
N. Rodgers: We've looked in your background check and it turns out you're ex-murderer would let you still have a gun.
J. Aughenbaugh: But if you've got a history of violent crime, that could be a reason not to grant you the permit but New York and five other states, the person had to show why they have a good reason for a carry permit to have a gun outside the home. According to Thomas, his majority opinion, there's no other constitutional rights where a person has to demonstrate to the government why they want to exercise the right. Basically, what this is going to force is New York, California, and I think for other states to change their permitting laws.
N. Rodgers: To be clearer.
J. Aughenbaugh: Yes.
N. Rodgers: It will be up to the government to say you can't have one and here's why. You rejected and here's why.
J. Aughenbaugh: Yeah.
N. Rodgers: All right. That one's complicated.
N. Rodgers: It's complicated but what I've told a lot of people, is we're not going to be seeing gun regulations or gun control laws like removed.
J. Aughenbaugh: The burden is going to be on the government in regards to the issue in a permit but as Thomas's majority opinion made very clear, and as did also Justice Kavanaugh is concurrence. The Supreme Court has said, the individual right in the 2nd Amendment may be regulated for a number of reasons.
N. Rodgers: It just has to be evenly enforced, evenly regulated, and not subjectively regulated.
J. Aughenbaugh: That's right.
N. Rodgers: Has to be objectively regulated but you can say, a state can easily say, no guns on campus.
J. Aughenbaugh: Sure.
N. Rodgers: We can declare that a government owned physical place is you cannot carry a weapon on that and that's the end of the story. You can sue and say, I want to carry a gun to school like you're never going to be found. They're never going to find for you, because they're going to always find that the state has the power to regulate.
J. Aughenbaugh: As long as the state can articulate a good reason for the regulation. You mentioned, prohibiting guns in government buildings. Bars.
N. Rodgers: Places where drinking is taking place might not be a good place to have guns. Maybe. I'm just saying.
J. Aughenbaugh: No guns in public schools.
N. Rodgers: Right, or public parks.
J. Aughenbaugh: Or whatever the case may be. The burden is going to be on the government but if the government can articulate a good police power reason. Judges are still going to go ahead and say the regulation is fine. What was really unusual about this case was it was so difficult in New York to ever get a carry permit to have your gun outside your home. That in effect, there wasn't really a carry permit program. It was so discretionary.
N. Rodgers: But then they got them.
J. Aughenbaugh: Yeah. There were certain parts of New York, for instance where you are business owners who are carrying huge amounts of cash, who wanted to have a gun for protection purposes, but they were being denied.
J. Aughenbaugh: Once again, we come back to the fact that the way the press reported the court's decision in this case, and again, on the heels of what happened in Uvalde Texas, and all of the other shootings. The timing of this decision was horrific.
N. Rodgers: Was terrible.
J. Aughenbaugh: Yeah, it was horrific. While at the same time, I read Roberts's majority opinion. It's going to make it a little bit more difficult for states to regulate it but if they can articulate a good reason, they're going to be able to go ahead and justify this.
N. Rodgers: Right.
J. Aughenbaugh: I mean, for all of our listeners who are huge Second Amendment advocates.
N. Rodgers: They're not coming for your guns.
J. Aughenbaugh: They're not coming for your gun. But at the same point, you're still going to have to go through government regulations.
N. Rodgers: Right. You're going to have to accept the compromise.
J. Aughenbaugh: I mean, that's always been part and parcel of the Supreme Court's DC versus Heller and McDonald versus Chicago rulings. The question is what regulations are constitutionally permissible.
N. Rodgers: Right.
J. Aughenbaugh: Next case. Okay.
N. Rodgers: Okay. We should caveat by saying.
J. Aughenbaugh: Yes.
N. Rodgers: Again, we're not going to articulate our opinions.
J. Aughenbaugh: No.
N. Rodgers: On the subject matter of the case.
J. Aughenbaugh: No.
N. Rodgers: That is Dobbs v. Jackson, which is I think commonly known as the case that overturned Roe v. Wade.
J. Aughenbaugh: Yes. The question that the court initially decided to address when they took the case was, does the Mississippi law banning abortions after the 15th week of a woman's pregnancy violate a woman's right to privacy? But that's not how the case turned out. Because ultimately the vote, in this case, was 5,1,3. Five of the justices held that the Mississippi law was constitutional and they overturned Roe v. Wade in Planned Parenthood versus Casey precedence, so five of the justices decided that. Basically, now going forward, state laws that regulate, ban abortions, as long as they satisfy rational basis review, they satisfy the federal constitution. Now, does that mean state laws regulating or banning abortions satisfy state constitutional provisions? That is a completely different issue.
N. Rodgers: Is currently being fought out in many state courts around this good nation.
J. Aughenbaugh: Yes.
N. Rodgers: While people try to figure out what state constitution say about this right, about the right to privacy but the one in this case is J. Rob.
J. Aughenbaugh: Chief Justice John Roberts actually would have upheld the Mississippi law, but he would not have overturned Roe v. Wade or Planned Parenthood. You said the court could have addressed the question. It told the parties to brief and he would have upheld the Mississippi law. Then there were three justices and the dissent, Breyer, Sotomayor, and Kagan. They did the rather unusual. They penned a joint dissent where none of them claimed authorship. They would have deemed the Mississippi law unconstitutional because they believe the Mississippi law violated both Roe and Planned Parenthood precedent.
N. Rodgers: But this question is far from settled.
J. Aughenbaugh: Oh, my goodness.
N. Rodgers: We should just assume that what this has done is move the arguments from the federal court system to the state court system.
J. Aughenbaugh: Yes.
N. Rodgers: There are states that have trigger laws that if Roe v. was ever overturned, it would automatically trigger into law various abortion prohibitions.
J. Aughenbaugh: Yes.
N. Rodgers: Almost all of those have been frozen by state courts. While arguments are being made, in terms of what state constitutions because basically, what the justices did was kicked it back to the states. They said that it's an individual state. It's up to individual states to make these decisions so now that's where the arguments are being made. If you want to follow that in your state, you should find your state Supreme Court because no doubt if it's not very will end up there quickly. Then the discussions will be had in that way.
J. Aughenbaugh: Yes.
N. Rodgers: Our next case, Shinn v. Ramirez.
J. Aughenbaugh: Yes.
N. Rodgers: It gets into this question of habeas.
J. Aughenbaugh: Habeas corpus.
N. Rodgers: Habeas corpus is the right of the body or the holding of the body.
J. Aughenbaugh: Yes. This case, you had a defendant who claimed he should have habeas corpus review in federal court, because he believed he received ineffective legal counsel in a state criminal case. Think about this. So Nia, in the Constitution, you have a civil right to where you're supposed to receive legal counsel. That's one of their constitutional rights in a criminal case. Now let's say you go to trial and you lose. One of the reasons why you think you lose is because you received poor representation by your legal counsel. Now, you want the federal courts to review this because you're not entirely confident that the state court system will be all that open to you getting a new trial because you received ineffective legal counsel.
N. Rodgers: Because that's a really hard thing to prove.
J. Aughenbaugh: It's a really hard thing to prove and moreover-.
N. Rodgers: Maybe your lawyer was just bad at lawyering.
J. Aughenbaugh: Yes.
N. Rodgers: But it wasn't personal.
J. Aughenbaugh: Or maybe they were inexperienced, or maybe they just got outperformed by an experienced state prosecutor.
N. Rodgers: Or maybe you were guilty and they couldn't get you off.
J. Aughenbaugh: Or maybe you didn't really help your attorney.
N. Rodgers: I'm not going to take the stand. Well, that's going to be harder for us to tell the story then.
J. Aughenbaugh: What the Supreme Court held 6-3, conservatives versus liberal justices. The defendant, in this case, did not have the right to habeas corpus review in federal court. The reason why I and other constitutional law scholars really honed in on this case, this term is that this is at least the fourth Supreme Court ruling in the last decade where the conservatives on the Supreme Court have told lower federal courts, that federal courts should not be a Roe v. Review Commission of what goes on in state courts.
N. Rodgers: Well, will just let the Supreme Court settle it. No, you should settle it. This doesn't need to come to us.
J. Aughenbaugh: This is a really good example of what you and I have discussed previously, judicial federalism. This is the recognition of the United States Supreme Court that, let's face it, most litigation in his country does not occur in federal courts. Most of it anywhere from 90-95 percent of all cases in this country are handled by state courts. Do we want the federal courts to always be second-guessing what state judges do?
N. Rodgers: No.
J. Aughenbaugh: On the other hand, do we have state court systems where attorneys representing defendants, particularly poor persons of color, get adequate legal counsel?
N. Rodgers: No. Oh my, I see the contradiction.
J. Aughenbaugh: Here we go. Here's the conflict. Here's the conflict. That's why this case, for many criminal defense attorneys and many constitutional law professors was, we focused on it because it didn't get very much attention from the press, but this is a huge issue in criminal trials. But nevertheless, you can tell the conservatives on the Supreme Court are tired of lower federal courts jumping in and second-guessing what goes on in state court systems. If they don't do that, how do we make sure.
N. Rodgers: That there's adequate representation?
J. Aughenbaugh: Yes. Because this is a well-accepted fact in criminal cases and criminal law. If you don't have a good lawyer, he could have a huge impact on whether or not you win or lose the case and how much time you spend in prison.
N. Rodgers: Absolutely.
J. Aughenbaugh: Yeah.
N. Rodgers: Absolutely. Enormous effect.
J. Aughenbaugh: Not enormous. There's a couple more cases I wanted to go ahead and discuss before we wrap up this episode. One is the Carson versus making case. We're going to switch gears to a different part of the US Constitution. Listeners, Carson versus making was the case where the state of Maine was alleged to have violated the equal or the religion clauses of the US Constitution. What may you ask? Did the state of Maine do?
N. Rodgers: Is this the school scholarship basically you could get?
J. Aughenbaugh: Yes.
N. Rodgers: You got money to go to various schools. Some of them religious.
J. Aughenbaugh: Maine is a very rural state. Very small, doesn't have a lot of population.
N. Rodgers: It's not small physically, but it's small population.
J. Aughenbaugh: Trends in population.
N. Rodgers: Folks are spread out.
J. Aughenbaugh: Yeah, they are spread out. One of the reasons why you live in Maine is.
N. Rodgers: To be spread out from other people.
J. Aughenbaugh: Yeah.
N. Rodgers: If you don't want your neighbors within a couple of miles, move to Maine. The Montana.
J. Aughenbaugh: It's one of the great things about the United States.
N. Rodgers: Elbow room.
J. Aughenbaugh: If you don't want to live really close to a lot of people.
N. Rodgers: We can help you out.
J. Aughenbaugh: We can help you out. We have a state-like Maine but this provides a public education problem there because there are school districts where there aren't enough kids to make it financially, smart or wise to have a public high school. The state of Maine came up with a program to where if your school district did not have a high school, the state would give you money so that you can enroll your child or children into a private high school.
N. Rodgers: Many of which are religious.
J. Aughenbaugh: But there was one big exception. You couldn't use the money for private religious high schools. This is what led to the challenge. Because the claim was by denying the use of the money for private religious high schools, the state of Maine was burning the free exercise of religion rights of certain parents and school children. The United States Supreme Court agreed with that argument in a 6-3 vote, conservative versus liberal.
N. Rodgers: But the solution to this question, because one of the reasons that people object to state money going to religious organizations is that they can discriminate based on their faith. They can say, if there are Catholic school, they could say we're not going to take any non-Catholics we're not going to take any gay Catholics or we're not going to take any whatever Catholics. What the Supreme Court has told states to do basically is to say, you don't put the burden on the parents with the scholarship, you put the burden on the school for taking federal or state moneys.
J. Aughenbaugh: Well, not necessarily. The US Supreme Court with this decision, he had basically told the state of Maine you got a choice. Either you provide public high schools, or if you create a scholarship program so that Maine residents can send their kids to private. You can't discriminate based on religion. You have a choice. You have a choice.
N. Rodgers: But didn't they follow that up with telling religious schools that they couldn't discriminate?
J. Aughenbaugh: The way Maine is getting around it is by saying, if you're going to go ahead and accept the money, you have to follow the state nondiscrimination laws.
N. Rodgers: That actually would hold up before the Supreme Court.
J. Aughenbaugh: Maybe.
N. Rodgers: Well, we'll see because I'm sure there'll be a lawsuit in a couple of years.
J. Aughenbaugh: Well, the reason why I say maybe is in our next podcast episode when we look at cases that the Supreme Court has already agreed to take, in its next term. Such a state law.
N. Rodgers: Is being challenged?
J. Aughenbaugh: Is being challenged.
N. Rodgers: Okay. We'll see what they do.
J. Aughenbaugh: Yes. Just a couple more cases. One in this one came from the infamous shadow docket. Listeners may recall last year, the Biden administration issued through the federal agency known as OSHA, the Occupational Safety and hazards administration, regulations that would have required businesses with over 100 employees to implement a mandatory COVID-19 vaccination program for their employees. The court voted 6-3. Wait for it. One conservative versus liberal lines. That the executive branch of the federal government in creating major new policy regulations. The executive branch had to have clear explicitly stated Authority from the United States Congress.
N. Rodgers: Meaning when they formed the Department of Labor and they gave it its mission. There needs to be explicitly stated what its powers.
J. Aughenbaugh: Its powers are and if conditions have changed.
N. Rodgers: They need to update that.
J. Aughenbaugh: The United States Congress needs to update it.
N. Rodgers: The executive branch can't just say.
J. Aughenbaugh: Yes.
N. Rodgers: Well, we feel like we now have this law or this power that we didn't have before. That power comes from Congress and it has to be updated by Congress.
J. Aughenbaugh: Congress.
N. Rodgers: That's basically what the court was saying. The court was saying, no, you can't just assume powers not granted. That's not how that works.
J. Aughenbaugh: For listeners, if you're wondering on what constitutional grounds the Supreme Court's relying upon as the per curium opinion, in this case, pointed out, we are a nation where the federal government is based on separation of powers and checks and balances.
N. Rodgers: Yeah.
J. Aughenbaugh: Some of you are like, oh really, Aughie? I'm like, yes guys. There's a really good reason why you hear about separation of powers and checks and balances in high school civics or your intro to US government as an undergrad, or one constitutional law class focuses on separation of powers and checks and balances. Because the Supreme Court every once in a while goes ahead and reminds us. It's important.
N. Rodgers: This is the foundation of democracy. If you want to have democracy.
J. Aughenbaugh: Yes.
N. Rodgers: This is how you get it.
J. Aughenbaugh: Yes. I only have a couple more. Nia, are you ready?
N. Rodgers: Okay.
J. Aughenbaugh: All right. It's been a long time since we mentioned, even as an example, Senator Ted Cruz from Texas.
N. Rodgers: Okay. I have many feelings about Ted Cruz.
J. Aughenbaugh: I know you do. It's been a long time since we chatted about Senator Cruz but the Supreme Court this term, actually handed down a decision where he was one of the named parties in the case.
N. Rodgers: Was it The Muppets versus Ted Cruz?
J. Aughenbaugh: No.
N. Rodgers: Because he hates the Muppets.
J. Aughenbaugh: But his kids like Dr. Seuss. We know this because in a Senate filibuster a few years ago, he actually read from various Dr. Seuss books.
N. Rodgers: That's right. He read Green Eggs and Ham on the floor of the Senate, anyway.
J. Aughenbaugh: Now the name of the case was the Federal Election Commission, FEC, versus Ted Cruz. The FEC had a rule that limited the amount of money that candidates who lend money to their campaign. Let's say, Nia, you're running for the United States Senate and your fundraising operation doesn't raise enough money for you to run an effective campaign, but you're independently wealthy. You decide to loan your campaign money.
N. Rodgers: Let's say $1 million because that's a nice round number.
J. Aughenbaugh: Yes but the FEC had a rule that limited how much your campaign could repay to you individually.
N. Rodgers: They could repay me 500,000. The other 500,000 is a gift.
J. Aughenbaugh: It's a gift. Ted Cruz went ahead and said, that violates the First Amendment freedom of speech, because if I have enough personal wealth, I should be able to loan as much money as I want to to my campaign. Then if I win in my campaign, generate a whole bunch of fundraising money, my campaigns should be able to repay me the full amount. The United States Supreme Court agreed with Ted Cruz. Listeners, it's really too bad we don't have the visual of this recording because Nia is shaking her head. Her hand is covering up her face.
N. Rodgers: Well, here's my problem with that. My problem with that is in part, that's an interest-free loan to your side. You get into some really weird money things and tax things with that. Because you could hide money one year and get it back the next year. There's all kinds of shenanigans that feels like that. This has to do with Citizens United; doesn't it?
J. Aughenbaugh: Yes, it does.
N. Rodgers: Everything about Citizens United makes me want to put my fist through the screen. Now I want to find Ted Cruz and I don't want to punch him in the face, but I want to yell at him. I actually technically do want to punch him in the face, but I won't because that doesn't solve anything, and violence doesn't solve anything. But I would love to yell at him because that seems slimy. That seems like a slimy thing. I don't know. It's like venture capital into yourself. It's really weird.
J. Aughenbaugh: The problem here is both liberal and conservative, Democratic and Republican candidates do this thing.
N. Rodgers: It's correct. It's slimy on both sides, don't you think?
J. Aughenbaugh: Yeah, increasingly, we have the United States Congress populated by some really rich people. Our presidential candidates fall into this category.
N. Rodgers: Yeah, this idea that you and I have that Mac could grow up to be president.
J. Aughenbaugh: Oh, my goodness. No.
N. Rodgers: It's totally unrealistic. Mac is smart and she's going to be amazing. She's going to do all kinds of amazing things but the reality is, politics at that level is probably not open to her.
J. Aughenbaugh: Oh, yeah. Just simply because of money. I'm sorry.
N. Rodgers: Yes. We've had presidents who've come out of poverty, Nixon came out of poverty. Obama, came out of, if not poverty, lower middle-class. Clinton came out of poverty, but it's like being a Hollywood movie star. Many millions of people move to Hollywood. Our waitstaff and all things and all places hoping to be discovered, and they never are. They are perfectly talented people who, because of luck and timing and everything else don't end up. I have so many feelings. Why do you do this to me? Okay.
J. Aughenbaugh: The last two cases I want to discuss were actually handed down yesterday.
N. Rodgers: Okay.
J. Aughenbaugh: These are the last two decisions. Biden versus Texas concern the Biden administrations revoking the Trump administration's remain in Mexico policy. Nia, this was known as the Mexican migrant protocols, protection protocols, and the MPP.
N. Rodgers: No matter where you came from, you went to Mexico and you waited there in order to be processed into the United States.
J. Aughenbaugh: That's right.
N. Rodgers: Either as an asylum seeker or as a migrant, whatever processing you're coming in through. Those camps, by the way, are horrific.
J. Aughenbaugh: Yes. The court by a 5-4 vote. This is where Chief Justice John Roberts and Justice Kavanaugh, joined by the liberals, went ahead and said that the Biden administration could revoke the Trump administration's remain in Mexico policy. Roberts's majority opinion, based it on the fact that the lower courts could not hamstring what a presidential administration does in the realm of foreign policy. In foreign policy. Once again, a majority of the Supreme Court basically sets up the executive branch as being the dominant actor in US foreign policy. This is just yet another example. As I told a television reporter, you might like what the Biden administration is doing, but if you're concerned about presidential power in foreign affairs, we have yet another example where the US Supreme Court has said, it's the domain of presidents.
N. Rodgers: I don't like that. It should be the domain of Congress.
J. Aughenbaugh: Or at least.
N. Rodgers: Or in conjunction.
J. Aughenbaugh: You don't want to talk about separate but shared powers? Article 1 Section 8 of the US constitution says congress has significant immigration policy authority. I would actually like to see some of the authority and obligation be directed to Congress.
J. Aughenbaugh: Right.
J. Aughenbaugh: Because what's going on down at the border? I don't care where you fall on. This immigration debate is just horrific.
N. Rodgers: Right. These camps are horrible.
J. Aughenbaugh: The camps are horrible. The demand of non-US citizens to enter the United States is not a [inaudible]. It's not ending.
N. Rodgers: We need to have a better system than this system. It infuriates me. This has been a problem for 100 years and Congress has to fix it. There has to be a better system. What's so infuriating to me about many folks in Congress, is they talked about how fantastic the United States is. The best country in the world. Like all these things. I'm not arguing that but if you're going to tell people in the rest of the world that that's the case, then you need to give them a way to enter the United States legally and join in that celebratory fabulousness that is the United States or you need to say, we're closing our borders. Nobody is coming in. Period. End of story. This thing where people end up in the back of a semi-truck and die because they're trying to get to the greatest country in the world.
J. Aughenbaugh: Unconscionable, and again, we are recording the week of where outside of San Antonio.
N. Rodgers: Fifty-one souls.
J. Aughenbaugh: Fifty-one died.
N. Rodgers: Locked in the back of a truck.
J. Aughenbaugh: Okay. Again, the finger pointing.
N. Rodgers: Its mules, its people who bring them across, those people are terrible.
J. Aughenbaugh: It's the state of Texas problem. At this point, I don't care.
N. Rodgers: Right.
J. Aughenbaugh: You know what I care about is the fact that we have people who are risking their lives. We have no policy to go ahead and deal with their demand. They want to come here.
N. Rodgers: Well, and if we want to fix that, we can help fix our neighbors.
J. Aughenbaugh: Yes.
N. Rodgers: So that the demand to come here is less. That's part of what we can do.
J. Aughenbaugh: If we we don't want to do that, then we need to have some sensible policy. Because right now, the policy changing with every presidential administration is not the way to address the policy problem.
N. Rodgers: Right.
J. Aughenbaugh: But anyways, the last one and this one is a kicker.
N. Rodgers: This one hurts my heart. If it's the one I think you're going to talk, are you going to talk about the EPA?
J. Aughenbaugh: Yeah. The climate change rolling.
N. Rodgers: This one hurts my heart.
J. Aughenbaugh: The name of the case is West Virginia versus EPA. What was at issue was whether or not a provision of the Clean Air Act, which Nia and I have discussed in a previous block episode.
N. Rodgers: We did. In fact, we talked about the EPA. EPA go clean the United States and we talked about getting giant filters and putting them at the edges at California and Washington and Oregon. Making all the air that comes from the west go through this filter and we're just going to clean the air until the world's clean air.
J. Aughenbaugh: Yeah. Whether or not Congress actually authorizes the EPA to issue significant roles. In particular, those capable of reshaping the nation's electricity grids.
N. Rodgers: Right. Turning off coal fired plants and rebuilding structure in different ways.
J. Aughenbaugh: Okay.
N. Rodgers: Which we need by the way, the grid is 100 years old and falling apart. Ask anybody in California who worries about wildfires? It's a thing.
J. Aughenbaugh: Even if we didn't address how we fueled the electrical grid. The electrical grid needs attention because it's old, it's obsolete. We have 130 million more Americans than when major segments of the Redwoods are needed, right?
N. Rodgers: Exactly.
J. Aughenbaugh: But anyways, the Supreme Court by 6-3 vote. Again, six conservatives, three liberals, held that the Clean Air Act, as currently written, doesn't give the EPA the authority to issue what was the Obama administration's clean power program. The reason why the Supreme Court concluded this was much like with the OSHA case and the COVID-19 vaccination, the court said that this is known as the major questions doctrine. For an agency to issue any regulation that has a major or significant policy and economic effect the congress must clearly give the agency the authority to do so. Basically Nia, much you described a few minutes ago, the United States Supreme Court is saying to Congress, if climate change is a problem, guess which branch of the federal government needs to address it?
N. Rodgers: Right.
J. Aughenbaugh: Congress.
N. Rodgers: Yeah, need to get off your **** and do something. Even if what that means is saying to the EPA, we give you the power to go fix the climate.
J. Aughenbaugh: That's right.
N. Rodgers: Go do whatever you need to go do.
J. Aughenbaugh: But the law, as currently written.
N. Rodgers: Doesn't give them the power to do that?
J. Aughenbaugh: That's right.
N. Rodgers: What hurts my heart about this is that Congress has had, since 1972 when the EPA was founded. They have had opportunities to update its powers and responsibilities but Congress does things like, we've created the EPA. Then they walk away and don't upkeep. There was the whole dispute and it's not part of this, but I'm just going to bring it up briefly. There was the whole disputed whether the CDC could actually require vaccinations. It's because they didn't have that power written into.
J. Aughenbaugh: The authorizing legislation, right?
N. Rodgers: Right. You know how you fix that? You bring it up in committee. You bring it up in the Congress, you find a compromise. Everybody agrees, everybody signs off. Then CDC can or can't do certain things because you've empowered it to do them. I don't know if anyone, Republican or Democrat, who wants the electrical grid to fail.
J. Aughenbaugh: No.
N. Rodgers: Maybe our friend, Mr. Cruz, but everybody else is interested in having the electrical role. I mean, I only say that because Texas is electrical grid went to [inaudible]. Not good timing, Ted.
J. Aughenbaugh: But reliable of electric grid is necessary. I don't care.
N. Rodgers: It's not controversial.
J. Aughenbaugh: I don't care where you fall on the ideological spectrum.
N. Rodgers: Right.
J. Aughenbaugh: You need reliable electrical grid for businesses. She needed for schools, she needed for hospitals, right?
N. Rodgers: Right.
J. Aughenbaugh: You need it for, traffic lights.
N. Rodgers: It is 100 percent non-controversial. Do you like electricity? Nobody answers that question, "No." Well, I mean, I guess maybe the Amish, the Mennonites but generally speaking, with the vast majority of Americans are like, Oh, I like when I flip this switch and the lights come on. That's really handy. Why? I just say Congress. The answer is because Congress doesn't like to do things. The Congress has become a group of people who are protecting their ability to stay in Congress rather than getting stuff done. What they want to do is get reelected.
J. Aughenbaugh: Well, in regards to addressing climate change, some of the solutions that may get tried out might not work but are we going to go ahead and be governed by our fear of a solution possibly not working? Are we going to be governed by, we think this is a problem, let's try various solutions?
N. Rodgers: It's exhausting.
J. Aughenbaugh: Yeah.
N. Rodgers: What you can take away from this court; this term, I know I always want to call it season and you're like, "It's not a season, Nia." This term is that the controversial things got a 6-3 vote. Most of the time they got a 6-3. Occasionally, they got 5-4, but mostly they got 6-3. Those are what make the news, which is what gives people the impression that we have had a wildly divisive court. Now, in 20 percent of the cases, we didn't have a divisive court at all. We had 9-0s and no one put it in the news. No one cares. We should remind our listeners that if you're only getting your news about the Supreme Court from modern media, that you need to find another source. You need to go to SCOTUSblog, you need to go to the ABA blog, you need to go to the Supreme Court's website and just read stuff. You need to realize that they are not as divisive, that what makes the news is what bleeds. That's how newspapers make their bread and butter, especially now that newspapers are dying. You see a lot more of that explosive, "Oh, we're going to talk about all these controversial things," and they almost never bring up the things that were decided unanimously because that's not salacious. It's not exciting and it's not going to get most people to be angry.
J. Aughenbaugh: Get out of your Twitter feeds.
N. Rodgers: Get off of TikTok for a minute.
J. Aughenbaugh: By the way, you don't even have to read the full opinions. Read the abstracts at the beginning.
N. Rodgers: Or find a nice neutral blog that you can read where they just tell you what was decided, not tell you how to feel about it.
J. Aughenbaugh: Nia, I love your recommendation of SCOTUSblog. Because generally, they have really good summaries of what the Supreme Court decided.
N. Rodgers: Yeah. They'll often give you links to cases that are either affected by the case or affected the case. That's nice if you want to do something in depth, but if you don't, you don't have to but try to be informed by people who are not interested in inflaming you in some way. Because the thing is, the reason that they do that is so that you'll stay on their website. The longer you stay clicked into their website, the more money they make because they're selling your eyeballs to advertisers. Just not engaging with that is I think a helpful way to think about it. I know that we're going to do another episode on the things that are coming up. Don't they sometimes not decide cases and hold those cases over?
J. Aughenbaugh: Do you have a specific example?
N. Rodgers: No. I was just wondering if that happened this time.
J. Aughenbaugh: No.
N. Rodgers: So it doesn't happen in every term?
J. Aughenbaugh: No.
N. Rodgers: Occasionally it happens where they're like, "Yeah, we're going to come back to this." It turns out this is more, we're buying off more than we thought we were.
J. Aughenbaugh: Listeners, what Nia is referencing is the fact that a small number of very prominent Supreme Court rulings the court heard oral arguments and then decided to hold the case over and rehear the case. We saw this for instance with Brown versus Board, where the Supreme Court held that segregation was unconstitutional. The Supreme Court first heard the case in 1953, but then they decided to hold it over and hear re-arguments in 1954 and that's when they decided to case. That also, by the way, happened with Roe v. Wade. Roe v. Wade was heard in the 1972 term. The vote on the court was close, and the justices decided to rehear the case. Okay?
N. Rodgers: Okay, but that's not a common.
J. Aughenbaugh: No. It's not a common occurrence.
N. Rodgers: Last thing, is it just me or is this the most unpopular court in the history of unpopular courtness? I mean, people are downright grumpy.
J. Aughenbaugh: This is a court that according to public opinion polls, public approval of the court is at an all-time low.
N. Rodgers: Yeah, usually the court comes out better than Congress and the President.
J. Aughenbaugh: It still is but compared to public approval of the court generally speaking, this is the lowest. The courts public approval has been. Even lower than the Warren Court.
N. Rodgers: The Civil Rights Court?
J. Aughenbaugh: Yes. When you think about the Warren Court Nia, in addition to Brown versus Board, the Warren Court also issued a number of rulings that protected the rights of those accused of crime, so Miranda versus Arizona, Mapp versus Ohio. The Warren Court was also the court that went ahead and said voting rights disputes could be heard by federal courts. It's even lower now. To me what's really fascinating is the juxtaposition of how liberals versus conservatives view the court's plummeting public approval. You don't see very many conservative, republican elected officials lamenting the court's low public approval, which is different than what you saw in the 1950s and '60s because conservatives were beating up on the court.
N. Rodgers: But now they're loving the court because it's going more their way. It's just proof that people, when they're on the winning side, they like it and when they're not on the winning side, they don't.
J. Aughenbaugh: Yeah. I mean, and you have liberals on the court, democratic politicians. My news feed was just chock full of elected democratic officials who were bemoaning the court's lack of legitimacy.
N. Rodgers: This is now the time when we should consider adding more justices, all kinds of stuff.
J. Aughenbaugh: But in the 1950s and '60s.
N. Rodgers: Other side.
J. Aughenbaugh: The liberals were just like, "Go court go."
N. Rodgers: Exactly.
J. Aughenbaugh: I'm like, wow. Without hypocrisy, would there be a standard?
N. Rodgers: Exactly. This is a pendulum.
J. Aughenbaugh: Yeah, this is. Would it shock me if by the end of this decade or the early part of the '20, '30s the Supreme Court's public approval ratings were once again high? No, it wouldn't shock me because that's what has happened in the past.
N. Rodgers: Also, the swing from conservative will swing back towards.
J. Aughenbaugh: Yeah. You get enough Democratic presidents where the Senate controlled by the Democratic Party. A few of the conservative justices retire or die.
N. Rodgers: You shift the court.
J. Aughenbaugh: You shift the court.
N. Rodgers: Because right now, the conservative demographic is skewing to retirement whereas the liberal demographic is not.
J. Aughenbaugh: Because the two oldest Justices on the current Supreme Court now.
N. Rodgers: Are on the Conservative side.
J. Aughenbaugh: Yeah, are Thomas and Alito.
N. Rodgers: Can't live forever. Although, they can try. We wish them all the best in their attempts to do so because we don't want to see anybody.
J. Aughenbaugh: No. This is not a podcast that wishes anybody's death or retirement.
N. Rodgers: I wish some people would retire. I wish President Putin would retire. I don't wish anybody's death, but I do wish some people's retirements. But you're right. The Supreme Court, we don't wish that because that's not our place.
J. Aughenbaugh: Nia, your view is the old bartender adage at closing time? You don't have to go home, you just got to get out of here?
N. Rodgers: Exactly. You don't have to go home, but you can't stay here. That's how I feel about some people. We get together for one more and that will be our future look towards what's going to happen in the next term and that kind of thing.
J. Aughenbaugh: Yes.
N. Rodgers: We'll talk then.
J. Aughenbaugh: Thanks, Nia.
N. Rodgers: Thank you.
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