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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.
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 living the summer of SCOTUS dream. How are you?
J. Aughenbaugh: I'm doing fine and listeners, this is our last of numerous episodes for our summer of SCOTUS 2024.
N. Rodgers: Don't feel tragic, we'll be back in the fall with more stuff, but it won't be all focused on SCOTUS. In fact, we have quite the layout for the fall semester. It's very exciting.
J. Aughenbaugh: Yes.
N. Rodgers: But I want to pose a possibility to you, and I want you to respond. I think that John Roberts in my beloved J. Rob, right?
J. Aughenbaugh: Yes.
N. Rodgers: I think that Chief Justice John Roberts would jump in front of a bus or a fast moving train to protect the institution that is the Supreme Court.
J. Aughenbaugh: I would concur with that.
N. Rodgers: I think that he puts the institution above pretty much anything else, because I think there's some level of worry on his concern that one, the court's going to go down on his watch. It's going to be like the whole Roosvelt thing where now we have 87 justices and there is no meaning to the Supreme Court, or alternatively, they're going to outlaw the Supreme Court and we just won't have one. But I think he worries at some level that's going to happen on his watch. But also, it used to be that Congress was only slightly more popular than mosquito bites. But the Supreme Court always held a rather high position of regard in the American public, everybody hated the president or they hated the Congress. They did not hate the Supreme Court. Boy, that is not true anymore, is it?
J. Aughenbaugh: The Supreme Court's approval ratings in the public opinion polls has declined. But listeners, let's also be very clear. Comparatively, the United States Supreme Court is significantly more popular or has a higher approval rating than the other two institutions of the federal government. I mean, even today, Congress struggles to get into the double digits.
N. Rodgers: I'm telling you, most people would rather have a mosquito bite than talk to a member of the Congress.
J. Aughenbaugh: Well, in particular, the institution. It's one of the great contradictions.
N. Rodgers: I'm just saying.
J. Aughenbaugh: One of the great paradoxes of the modern United States Congress. Many Americans love their particular member of the House of Representatives or their senators, but they can't stand the institution. Now, in regards to presidents, let's be very clear.
N. Rodgers: Mine is fine, but your sucks.
J. Aughenbaugh: I mean, our last two presidents. Let's face it. Many of us who study American politics, we're pretty shocked about how low Trump's approval ratings were during his four years in office. Then we got Joe Biden and Bins at the same level.
N. Rodgers: Approval Ratings pollster said, here, hold my beer. Let's see how low this can go. What's that? Anyway.
J. Aughenbaugh: The issue for John Roberts is, right now the liberals don't like the court because they perceive the court to be conservative, but there are even some conservatives who don't like specific rulings. So the difficulty for John Roberts is another polling question where an increasing percentage of Americans believe the court is "political". If you're John Roberts and you believe that the court institutionally needs to be protected, one of the elements of the court's institutional, if you will, reputation, historically in the United States, is that it was viewed as a political or at least nonpolitical, right?
N. Rodgers: Or that even if members were political, the rulings were not.
J. Aughenbaugh: That's right. Now, political scientists, for decades, have concluded that you can predict the Supreme Court's votes and individual members of the court's votes more accurately, ideologically, than you can members of Congress or even presidents of the United States. So political scientists have been arguing for decades, the court is "political". But it's the view that the Court's rulings are political among the public that probably keeps John Roberts up at night. Listeners, what we're going to explore in this episode and the nature, if you will, of Nia's comment, is this episode is going to be looking at end of the term Supreme Court statistics and other observations that we have. We're going to highlight a small number of cases that the Supreme Court has already accepted for its next term, which begins the first Monday of October.
N. Rodgers: Can I start?
J. Aughenbaugh: Go ahead.
N. Rodgers: Aughie, how many cases were there?
J. Aughenbaugh: The Supreme Court decided 62 cases and that number also reflects the fact that there were four cases that were combined into two cases, so they were merged.
N. Rodgers: How much of their potential workload was that?
J. Aughenbaugh: The Supreme Court received over or nearly 4,100 appeals, which means that the Supreme Court heard less than two percent of all the appeals it received.
N. Rodgers: So under those circumstances, you and I could say to Jason Arnold and Bettina Peacemaker, respectively, our bosses, we'd like to work two percent of the time if that's okay with you. Them say, sure, that's fine. We'll pay you exactly what we've been paying you to do less work. What are the chances that either one of them would go for that?
J. Aughenbaugh: In my case, I'm pretty sure Jason Arnold would say, Aughie, you have next to no value for the Political Science Department, we're getting rid of you.
N. Rodgers: Betina would say, I'm sorry, what? She would just look so confused and sad that I don't think she would even reply to it as a serious request. I think she would think that I was either drunk or I was stoned. I was saying something that she would be like, I'm going to ignore this. Why don't you get back to me when you're feeling better? But I do think it's impressive that they can get that much work and then just refuse to do it.
J. Aughenbaugh: Well, and this all stems from a law that the United States Congress passed in 1925, the Judiciary Act of that year, which basically gives the Supreme Court almost universal discretion on which appeals it will decide to hear. But let's be very clear, listeners, of all the federal government institutions, you would be hard-pressed to argue that the United States Supreme Court is the most overworked institution in our federal government.
N. Rodgers: What a crazy way to put that. Oh, they're so overworked. Now, that being said, 62 cases decided. In your notes, you have 46% of them were unanimous.
J. Aughenbaugh: Yeah. This is the second year in a row where well over 40% of all the Supreme Court decisions were unanimous. That means all nine justices voted the same way. But let's be honest.
N. Rodgers: That is a tiny, fascinating number there, in the sense of 46% of the time, they're not fighting about stuff. But they're doing all of that in the fall and the early spring.
J. Aughenbaugh: Yes.
N. Rodgers: Then the gloves come off. Then they start saying stuff about each other's mamas. The other 54% gets a little more contentious, doesn't it?
J. Aughenbaugh: Oh, my goodness, yes. Again, this reflects the fact that we know historically, the toughest cases to decide, and the ones with the most opinions are the ones that are handed down late April, May, and into June or this term.
N. Rodgers: Into July.
J. Aughenbaugh: Into July, which is highly unusual.
N. Rodgers: Oh, did they have to work over a little bit? Oh. I'm feeling no sympathy whatsoever. Sorry. I'm like, please, if you're only going to do 2% of the work, you don't get to snivel about when you have to do it. Sorry. In fairness to them, they have not sniveled. They did not complain about having to do stuff in July, although I suspect those things were written, and they were just waiting for timing.
J. Aughenbaugh: Well, that's an interesting point Nia, because you brought that up at least in one other episode, and I've seen it written in a number of major media sources that the Supreme Court may have been holding certain case decisions until a certain point in time for non-legal or constitutional reasons. That may be a new trend, but historically what we know from the Supreme Court's own papers is that the court won't issue a decision until everybody gets done writing. With a lot of these difficult cases, you see multiple opinions. John Roberts may have wanted to go ahead and issue, for instance, Trump versus the United States, the immunity case weeks ago, but until all the justices got done writing, it's not like he could go ahead and say, well, sorry.
N. Rodgers: Your dissent doesn't matter. You're gone.
J. Aughenbaugh: Yeah. Your concurrence. While you're in the majority suck it up, we're just going to go ahead and hand down the decision.
N. Rodgers: But wouldn't it have been a lot better if they had well, anyway, that particular case, if it might have stopped some of the other cases against Donald Trump earlier, but I do think that it brings up an interesting point of Machiavellianess. I know that's not how you say Machiavelli. But anyway, so basically, what you're telling me is that if J. Rob wants all the writing, that justice themselves could slow walk that.
J. Aughenbaugh: Sure. Yeah.
N. Rodgers: By dragging out there. Oh, no, I haven't had time to get to that. I was doing other things, and I'm still contemplating how I'm going to write that and blah, blah, blah. Aughie, it's the worst aspect of group work ever. If any one person is late with their stuff, you don't get to turn in the paper to the professor, and you all lose a grade point.
J. Aughenbaugh: Oh, sure.
N. Rodgers: Except there's no grade points under J. Rob, but you know what I mean? That could be really frustrating, too. I wonder if that means that somebody will walk by somebody's office, who they're waiting on and say, are you done yet?
J. Aughenbaugh: I don't know if they do that. There were historical examples, for instance, of justices who were very slow in their writing, where other justices who were with them in a majority would stop by to offer words of encouragement. That happened quite often with Justice Harry Blackman, who was well known to struggle with writing opinions. Justices like William Brennan would stop by and offer him an encouraging word, just to buck them up psychologically. But Justice Scalia would never do that. Scalia would be like, okay, well, you gave us an opinion, I think it's crap, and now I'm going to go ahead and write a concurrence or a dissent that tells you all the reasons why you're wrong. Whether or not that hurts you psychologically, I really don't care.
N. Rodgers: Well, yeah. What is it to, I'll go get over it. How many cases were decided 54?
J. Aughenbaugh: Only five. There were 22 that were decided 63. Half of those 22 were not strictly on conservative versus liberal justice lines.
N. Rodgers: Yeah. Coney Barrett has walked her own path a little bit here lately.
J. Aughenbaugh: Yeah. We're going to explore that in just a few minutes. But in particular, the most likely conservatives to defect and join liberals were Coney Barrett and Chief Justice Roberts. I understand that the media tries to go ahead and give some major, if you will, talking points in regards to the Supreme Court term that just ended, but even with the 6-3 decisions, think about it. Nearly a third of them were decided 63. They weren't just on strictly conservative Supreme Court justices versus liberal. Yeah. Go ahead.
N. Rodgers: I was going to ask you what the longest argument was.
J. Aughenbaugh: Here's some other interesting statistical tidbits, and by the way, huge shout out for those of you who really like to get into the weeds about a recently completed Supreme Court term. I highly recommend you go to the empirical Scotus website. They do some really good work there. It's those fine folks who came up with one of my favorite statistics about the most recently completed Supreme Court term. The case with the longest oral argument at nearly four hours, Nia. This probably won't surprise our listeners, Trump versus the United States, regard.
N. Rodgers: Donald Trump wasn't even there.
J. Aughenbaugh: No.
N. Rodgers: I'm just saying if he had been there, that might have been even longer.
J. Aughenbaugh: Yeah. He wasn't even.
N. Rodgers: Four hours.
J. Aughenbaugh: Yeah. He wasn't even.
N. Rodgers: They usually give about an hour. They're usually like, okay.
J. Aughenbaugh: Yeah. Thirty minutes each side of the dispute.
N. Rodgers: But then again, when you consider the importance of this decision, then it makes sense to me that they would want to ask more questions and try to get as much of a who wrote the most? I love it when you tell us who wrote the most.
J. Aughenbaugh: Yeah. The two justices who wrote the most opinions, and that includes majority concurring and dissenting or Justices Clarence Thomas and Brown Jackson. They each wrote 21 opinions. Nia, both you and I think that this is noteworthy, the two African Americans.
N. Rodgers: That's a lot of writing.
J. Aughenbaugh: Two African Americans justices wrote the most opinions.
N. Rodgers: Yeah. I think that there's a powerful statement there to be made that the two highest African Americans justices in the land are speaking about the law. They are trying to get up there this knowledge and understanding of how they view the law, but also how the law should be viewed. I'm impressed by that. Who wrote the least?
J. Aughenbaugh: The justice with the fewest opinions was Chief Justice John Roberts. He only wrote nine, though, interestingly enough, seven of the nine were majority opinions, and he handled some of the biggest ones. He wrote the Trump versus US majority opinion. He also wrote the two case opinions that overturned the infamous Chevron doctrine in administrative law, but because he was in the majority so much, he got to decide who would write the majority opinions when he did not.
N. Rodgers: How much was he in the majority?
J. Aughenbaugh: He was in the majority the most of any single justice, 96% of the time?
N. Rodgers: Is he leading or is he following the crowd? We will never know. It could be either one.
J. Aughenbaugh: It could be either one, but though interestingly enough, the three justices who were in the majority the most are the three most moderate conservative justices. Roberts at 96%, Brett Kavanagh, at 95, and Amy Coney Barrett at 92. Again, we're going to explore this as a potential, if you will, theme of the now Roberts Court. The other justice who wrote the fewest majority opinions was Samuel Alito, and a number of law school professors have noted that he probably lost a couple majority opinions after he circulated his majority opinion, and a bunch of the justices in the majority.
N. Rodgers: Were like no. That's not what we're going to have.
J. Aughenbaugh: We can't sign off on this. In particular, the two net choice cases that were merged into one that ended up being written by Elena Kagan. He's the only justice from that particular month who had no majority opinion.
N. Rodgers: When you said least opinions written by Roberts, what you meant was the fewest number of opinions, but Alito wrote the fewest majority opinion.
J. Aughenbaugh: Yeah, correct.
N. Rodgers: Who were the crabbiest, the dissenters? I mean that in the nicest possible way.
J. Aughenbaugh: The two justices who were in the majority the least were justices, Sotomayor and Kagan at 71% of the time. Yes.
N. Rodgers: Wait, but the ones who wrote the most dissenting opinions is different than the ones who were the least likely to be in the majority, right?
J. Aughenbaugh: The ones who wrote the most dissenting opinions were Sotomayor and Brown Jackson.
N. Rodgers: Sotomayor basically disagrees and is not in the majority opinion quite a bit of the time.
J. Aughenbaugh: Yeah, and on this court, it's probably not a big surprise, seen as six of the justices were appointed by Republican Presidents. Again, that is, Nia, you've heard me say this a number of times, presidential elections have consequences and one of the main ones is you get to pick who's going to be on the Supreme Court.
N. Rodgers: You said something to me this morning that made my socks fall off. Which is that there have only been five Democratic presidents. Only five justices.
J. Aughenbaugh: Appointed by Democratic.
N. Rodgers: Appointed by Democratic presidents since.
J. Aughenbaugh: Richard Nixon. That's right.
N. Rodgers: Since Nixon. Five.
J. Aughenbaugh: Yeah.
N. Rodgers: For anybody to be surprised that this court leans conservative, hello, all the other justices have been appointed by Republicans. Now, some of those Republicans would not be recognized by the Republican Party of today, Ronald Reagan and I'm looking at you, who would probably be considered a flaming liberal Rhino Homie, Pincode, whatever, because he's not conservative enough which would just appall him to no end. His feelings would be hurt. But when you consider only five justices being appointed by Democratic.
J. Aughenbaugh: Presidents in the last 50 years.
N. Rodgers: Presidents. Then you're looking at certain things where it's no wonder that the court has gone conservative. Hello.
J. Aughenbaugh: There are some of us who teach constitutional law in the courts who have long argued that it is somewhat surprising that the court did not turn this conservative earlier. It's only been because some of the justices appointed by Republican presidents in the past and I would even argue today, end up disappointing Republican Party, if you will, members.
N. Rodgers: Especially the arch Conservatives. They don't upset the moderate conservatives because they're like they're moderate conservative like I am, but they upset the arch conservatives. Can I ask a couple more just general Stats questions?
J. Aughenbaugh: Yeah. In the next one, by the way, listeners, is one of my favorites. Go ahead, Nia.
N. Rodgers: Are you talking about who spoke the most words?
J. Aughenbaugh: Yes.
N. Rodgers: Who spoke the most words at oral argument? This used to be Sotomayor.
J. Aughenbaugh: This used to be Sotomayor.
N. Rodgers: For a couple of years Sotomayor.
J. Aughenbaugh: Sotomayor.
N. Rodgers: In case you're wondering, it's never been Justice Thomas.
J. Aughenbaugh: Yeah Clarence.
N. Rodgers: The most words. Considering the number of words you're about to mention, that would be his use of words for the year in all aspects of his life.
J. Aughenbaugh: Since scholars have been actually recording this, and it's only been roughly in the last 20 years or so odd years. It used to be Scalia.
N. Rodgers: Yeah, that makes sense.
J. Aughenbaugh: Then it was Sotomayor, and she would be running neck and neck with Kavanaugh.
N. Rodgers: But now a new kid in town.
J. Aughenbaugh: Yes. Again, this completely overturns one of the theories in judicial politics. Historically, the newest justice, it would take them two or three years before they got comfortable in the institution, and they would feel comfortable enough to go ahead and talk a lot during oral arguments. This was known as the Freshman Effect. It's like when you're a freshman in high school.
N. Rodgers: Or a freshman in college, and you don't say anything in class because you don't want anybody to know you don't know anything.
J. Aughenbaugh: You think, that's right. But that's not the case on the modern Supreme Court, because justice Brown Jackson this year spoke over 27,000 words. She was by far, by well over 20% greater in terms of the number of words spoken than her next closest justice, which was Sotomayor. She also spoke the most minutes. Again, followed by Sotomayor.
N. Rodgers: Well, that would be unless she was a speed talker that would follow. But I do think that's interesting that she is not holding back.
J. Aughenbaugh: No.
N. Rodgers: In arguments, what she's doing is asking questions, mostly. She's questioning a huge number of aspects of the cases as they come up. Good for her. I say, go at it. That's wonderful. although, she's still got to answer the door when whoever knocks to bring the tea.
J. Aughenbaugh: During the conference.
N. Rodgers: She still got to get the door during the conference.
J. Aughenbaugh: The last statistic I'm going to go ahead and mention because this gets brought up with some regularity in the modern press is which lower federal court gets overturned the most? Now, the Federal Circuit Court of Appeals that had the most decisions appealed to the Supreme Court this term is the Ninth Circuit. Again, this is not unusual. This is a very consistent statistic.
N. Rodgers: Is that Texas?
J. Aughenbaugh: No, the Ninth Circuit had the most cases appealed.
N. Rodgers: I'm trying to figure out where the Ninth Circuit is.
J. Aughenbaugh: Well, the Ninth Circuit covers the Far West Coast.
N. Rodgers: That's California, Hawaii.
J. Aughenbaugh: Oregon, Washington, Arizona.
N. Rodgers: They say the left coast and the West coast, which are the liberal coasts.
J. Aughenbaugh: This is not surprising listeners because the Ninth Circuit Court of Appeals is the largest lower federal court jurisdiction.
N. Rodgers: Just by sheer number.
J. Aughenbaugh: Number. It hears the largest number of cases. It has the most federal Appeals Court justice judges out of any of the jurisdictions.
N. Rodgers: Okay.
J. Aughenbaugh: The Federal Circuit Court with the largest percentage of decisions overturned was the Second Circuit, and the second circuit covers New York, Pennsylvania.
J. Aughenbaugh: Eighty-five percent of its case decisions that were appealed were overturned by the US Supreme Court. The Federal Circuit Court with the largest number of decisions overturned was the fifth. Nia, that's the one that you just mentioned.
N. Rodgers: Texas.
J. Aughenbaugh: That one covers Texas, Louisiana, and Mississippi. Six out of the nine case decisions appealed from the Fifth Circuit were overturned.
N. Rodgers: Basically, that's nice because they're overturning the liberal coast, they're overturning Texas, and they're overturning a mixed area. Well, New York is liberal, but parts of Pennsylvania are not.
J. Aughenbaugh: But in regards to the judge's nominated and confirmed to sit on the Second Circuit, the overwhelming majority of them have been appointed by Democratic presidents. There is a unifying theme among those federal court case decisions being appealed and overturned. I think the underlying theme here is, you see some of the most creative decisions of the law made by those court, and this is an observation. This is our segue listeners for this particular episode. There is a particular observation that we need to recognize with the Roberts Court, particularly among Chief Justice John Roberts and Justice Coney Barrett, which is they're not big fans of lower court judges, attorneys, federal agencies getting creative with the law, and I have this particular bullet point in the notes I wrote up for this episode. This is a court which increasingly sends messages to other government institutions and those who are members of those institutions who do work in those institutions. For instance, Congress. If you want the executive branch to exercise some power and authority, you must clearly say that in law. The example that comes to my mind is the bump stock case, the Cargill versus Garland case where the Supreme Court went ahead and said, "Sorry, President Trump and President Bin, you may want to go ahead and say bump stocks are machine guns, but that's not how Congress wrote it in the law. Congress, you got rewrite the law."
N. Rodgers: Take it up with Congress.
J. Aughenbaugh: That's right. The executive branch, we're not going to defer to you simply because you are the experts on cleaning the air, cleaning the water, immigration, taxes, etc. Interpreting the law is a judicial function. If you can't persuade us, you may be crap out of luck. You saw this when the Supreme Court overturned Chevron, when they put a hold on the EPA's good neighbor air pollution plan, they went ahead and said to the Securities and Exchange Commission, "Yeah. You all might like internal hearings, but that's unconstitutional." Lower federal courts. If you're going to entertain creative legal interpretations, then you have to do so in ways that we recognize and approve. You see this with a number of decisions overturning the Fifth Circuit Court of Appeals. There's a special category of message-sending, federal prosecutors. Don't get creative in how you use existing old criminal statutes to target behavior that Congress more than likely did not contemplate when they passed the law. See the Fisher in Snyder rulings.
N. Rodgers: I was going to say, that's the gratuities ruling.
J. Aughenbaugh: Yes. Snyder is the gratuity ruling, Fisher is the obstruction of a legal proceeding ruling which was based on a law passed post-Enron. This is a Supreme Court, particularly Coney Barrett, and I would say, Chief Justice John Roberts, who are like, don't get creative. If you're going to get creative, you have to be really persuasive.
N. Rodgers: Right.
J. Aughenbaugh: Yes.
N. Rodgers: Your creativeness needs to be backed up with fact.
J. Aughenbaugh: Yeah.
N. Rodgers: But you can't just be backed up with because it feels right. It's got to be backed up with. But here's an interpretation that, while creative is based in the reality of the law. I think the other message this Court is sending is that 333 is the new 54.
J. Aughenbaugh: Amen, sister. Yes.
N. Rodgers: I think that there used to be one schism. There was conservatives and the liberals. Now, there's some conservatives and some other conservatives and some liberals. The liberals are pretty united.
J. Aughenbaugh: Yes.
N. Rodgers: They're standing on a little box by themselves saying, "We're liberal," softly. Then you've got the conservatives, the six. But sometimes it's not the same six. You mentioned that before, and it's in part because there's the, I know you're not going to say this, so I'm going to say it for us, and you can just have plausible deniability. There's the crazy three, the medium three, and the liberal three. The crazy 3, they're not crazy, but they're very intensely conservative.
J. Aughenbaugh: These are hardcore strict constructionist justices.
N. Rodgers: They ain't playing.
J. Aughenbaugh: These are Thomas, Alito, and Gorsuch, usually. Usually, Gorsuch.
N. Rodgers: They're not kidding. They're just all the way out there on the right. They're so far on the right, in fact, that it almost to come full circle to the left. They're that far on the right, and you got the moderates.
J. Aughenbaugh: In the process, because Thomas, Alito, and Gorsuch are so hardcore, they sometimes lose the votes, and you definitely see a difference in their explanations for how they vote of more moderate conservatives like Roberts.
N. Rodgers: They're so strident that they drive the moderate three away because Robert is not a strident person. Can you imagine J. Rob yelling at anybody? Kavanaugh is not a strident jurist. He may be a strident human, but he is not a strident jurist. Coney Barrett is not a strident jurist. They're very moderate. They're conservative. Don't get me wrong. They're not moderate in the sense that they're in the middle. They're so conservative, but they are not, and what I think of as the far right. They're in the near-right lane, as opposed to the far-right lane.
J. Aughenbaugh: Again, listeners, be aware of this. The court overall is more conservative. When we say that Roberts, Kavanaugh, and Coney Barrett are moderate surely.
N. Rodgers: Or moderate within the conservative term.
J. Aughenbaugh: They are moderate compared to their three more conservative justices. Now, the three liberals, I mean, let's face it. I think it's noteworthy. The two justices who voted the most similar during the term were Roberts and Kavanaugh. No. Excuse me. Sotomayor and Kagan agreed the most 97% of the time. That was followed by Roberts and Kavanaugh in 95%, and then the percentages break down. Again, I think when you read something in mainstream media that say there is this conservative block on the court. Listeners, I would encourage some skepticism because there are some significant differences between Thomas, Alito, and Gorsuch, compared to Roberts, Kavanaugh, and Coney Barrett. Where you're not going to see very much difference is Sotomayor, Kagan, and Brown Jackson. In fact, and I would argue that that has been consistent among the liberal justices for decades.
N. Rodgers: They tend to block up pretty hardcore. Kagan occasionally goes out on a wild hair, and you're like, "Oh, look at you, Elena." But part of that's because she was I suspect an attorney general.
J. Aughenbaugh: She was also a Dean of Harvard Law School. She's got some experience working with people from the other side of the ideological spectrum.
N. Rodgers: But I'm fascinated by this idea that they're now, so what could here I am talking to future lawyers in our student population, as well as anybody else who's listening. The way that you should consider presenting cases before the court is to shoot at that moderate block.
J. Aughenbaugh: Without losing which extreme end of the ideological spectrum you need to keep.
N. Rodgers: Exactly.
J. Aughenbaugh: If you're the Biden administration and you want the Current Supreme Court to uphold one of your policies or regulations, you basically know you're going to get Sotomayor, Kagan, and Brown Jackson.
N. Rodgers: You need to court Coney Barrett, Kavanaugh, and Roberts.
J. Aughenbaugh: Robert.
N. Rodgers: You need to just not even try with the other three.
J. Aughenbaugh: Because if you try to be everything to all three blocks on the court.
N. Rodgers: You will fail.
J. Aughenbaugh: You're going to probably upset one or two of the liberals and a couple of the conservatives who are going to see through your argument anyways. No.
N. Rodgers: It's much like the task, Nia, that attorneys had on the Renquist Court, when you had O'Connor and Kennedy. If you were making a conservative argument, you needed to go ahead and modify it just enough to keep O'Connor and Kennedy on your side. If you were presenting a liberal argument, again, you needed to water it down enough, make it palatable enough to pick off O'Connor and Kennedy. If you could, you could basically ignore Renquist, Thomas, and Scalia. You basically ignore them, because again, your job as the attorney is to win the case.
J. Aughenbaugh: It's not to be their friend or to have them respect you. You just need to be there to win.
N. Rodgers: Yeah.
J. Aughenbaugh: Before we move on to what's coming up in the future, can I ask about a couple of things?
N. Rodgers: Yeah, sure.
J. Aughenbaugh: So is it just me or has Amy Coney Barrett turned out to be a little sassy?
N. Rodgers: One of the more fascinating things that we saw this Supreme Court term. It's fascinating to me as somebody who studies constitutional law and the Supreme Court. Amy Coney Barrett is beginning to find her voice, and she's increasingly willing to distinguish herself from Thomas Alito and Gorsuch. She in particular, struggles with Thomas' emphasis on the original meaning of a legal text, because for her, legal meanings evolve and change over time. Anytime they start using tradition or it's been traditionally interpreted this way, Coney Barrett is skeptical.
J. Aughenbaugh: She's out.
N. Rodgers: You saw this in a number of cases this year, and she really pushes back against that. Now let's be very clear, listeners. If you placed Amy Coney Barrett on an ideological spectrum, does she vote conservative, the overwhelming majority of the time? Yes. But she's more willing to write concurring opinions, and she's more willing to go ahead and write dissenting opinions, where she distinguishes herself from Thomas Alito and Gorsuch?
J. Aughenbaugh: I say good for her.
N. Rodgers: Yeah.
J. Aughenbaugh: Because the others are all men.
N. Rodgers: Yeah.
J. Aughenbaugh: The other conservatives are all men and her saying, listen, a woman does not have to stand in the liberal block to not be in complete agreeance with the way the male conservatives on the court are looking at a particular case. I find that fascinating. It's a way of paving the road a little bit for conservative women to see themselves in the court in a different way than previously.
N. Rodgers: Also, I would argue that you can see the influence of the justice she clerked for on the Supreme Court. She clerked for Scalia. Scalia, had no problems breaking with conservatives if he thought the text should be interpreted a particular way. To me, that's fascinating. The other observation I want to make before we get to some cases listeners may want to pay attention to in the next Supreme Court term. I know listeners, you've heard me say this. You've heard Nia say it a couple of times, but the media coverage of the Supreme Court needs some significant improvement. With the reporting on some of the cases of this past term, it would be comical if it wasn't so over the top, dangerous, because many Americans only hear about the Supreme Court at the end of a term with the big cases. I understand why the media does it because the more exaggerated and the more controversial and contested, a Supreme Court decision or term is more readers and listeners will tune in. But their coverage of Trump versus the United States, "The sky's not falling," there was more meat to the Roberts majority opinion Bone than the media presented. Their coverage of the abortion related cases were in some instances, just wrong. Because the Supreme Court didn't reach the merits of either of the two abortion cases this term.
J. Aughenbaugh: Then they didn't cover something like Snyder, which is seriously. That's bribery after the fact. Like, come on.
N. Rodgers: You're right.
J. Aughenbaugh: That's one you should be upset about. Nobody talked about. Really?
N. Rodgers: Yeah.
J. Aughenbaugh: How can that not matter? For people who study corruption,
N. Rodgers: Yeah.
J. Aughenbaugh: That is huge.
N. Rodgers: Particularly because the overwhelming majority of elected officials in this country are at the state and local level in the Supreme Court. Supreme Court basically said, "It's up to State and local governments and courts to deal with bribery after the fact." I was just like, wow.
J. Aughenbaugh: Maybe burdening the lower court system enormously.
N. Rodgers: It's almost impossible for State and local governments to pass those laws, because it's going to be affecting State and local officials.
J. Aughenbaugh: They don't want it.
N. Rodgers: Yeah.
J. Aughenbaugh: What do you mean I would be accused of bribery. I should not.
N. Rodgers: You should not.
J. Aughenbaugh: But they didn't mention that one at all. You no press coverage of that. But you can get breathless press coverage of Donald Trump's immunity.
N. Rodgers: Or the relentless case in Loper Bright, those two merge cases about overt Chevron.
J. Aughenbaugh: The only way.
N. Rodgers: They've been chopping at Chevron.
J. Aughenbaugh: For years.
N. Rodgers: For years.
J. Aughenbaugh: The only way you can go ahead and say that this was a surprising, stunning decision is if you've not been paying attention to what the Supreme Court had been doing to Chevron. I mean, students who've taken administrative law with me, a number of them e-mailed me after the Supreme Court's decision saying, Wait a minute. Didn't we discuss how Chevron was basically toothless anyways? I was just like, Thank you.
N. Rodgers: Thank you for remembering.
J. Aughenbaugh: Yes.
N. Rodgers: Thank you for knowing a thing.
J. Aughenbaugh: Yes.
N. Rodgers: Yeah, we'd like to see better media coverage. We'd also like to see. But then again, we would like to see better media coverage of a great number of things that go on in the federal government.
J. Aughenbaugh: Yeah.
N. Rodgers: Because the federal government is a punching bag in some ways for the media. Yes. But it also is vastly misunderstood. Part of me wants to say, you can't report in the media on the government until you have taken a modern civics class.
J. Aughenbaugh: Yeah, or.
N. Rodgers: If you clearly don't understand the power of the people and the lack of power. They're like, this breathless thing will happen. I'm like, no, because there's these other 85 laws that prevent that from happening. Like quit acting like each one of these cases, first of all, quit acting like any case lives by itself.
J. Aughenbaugh: Yes.
N. Rodgers: Separate from all of the rest of the law because it does not.
J. Aughenbaugh: Yeah.
N. Rodgers: I'm sorry.
J. Aughenbaugh: Sometimes I think Nia, that we would all, but, in particular, members of the press, would benefit from mandatory government service. So we actually understand how the government works day to day.
N. Rodgers: There's a lot of reasons to have mandatory public service. That is an episode for another day.
J. Aughenbaugh: For another day. But-
N. Rodgers: Tell me briefly about what cases are coming up.
J. Aughenbaugh: The Supreme Court has already accepted about 30 cases for its next term.
N. Rodgers: Oh, I don't know, Aughie, that's half their workload. What are they going to do?
J. Aughenbaugh: Now, for listeners, if you've not listened to previous summer of Scotus episodes, Nia and I have actually talked about the fact that the remaining roughly 30 to 35 cases that the Supreme Court will hear in its next term will come from appeals that will be filed with the court this summer and then into the fall and winter months. But this is about normal for the Supreme Court in terms of the number of cases being accepted for the shall we say Fall/Winter portion of its term.
N. Rodgers: This is to give them something to get started on.
J. Aughenbaugh: Yes. Yeah.
N. Rodgers: While they get ready to vote on the others.
J. Aughenbaugh: Yeah. There are three of these 30 cases that I want to highlight that listeners you may want to pay attention to. The first one is the US versus Scarmeti case, which concerns the constitutionality of Texas Senate Bill Number 1, which the governor.
N. Rodgers: Texas?
J. Aughenbaugh: Tennessee. Sorry. We'll get to the state of Texas in just a moment.
N. Rodgers: I was going to say, all those T states.
J. Aughenbaugh: Yeah, but we'll get to Texas because there's a Texas case you all might want to give some consideration to. But Tennessee Senate Bill Number 1, that states governor signed into law. This bill prohibits all medical treatments that are intended to allow a "minor to identify with or live as a purported identity inconsistent with the minor sex or to treat purported discomfort or distress from a discordance between the minor sex and asserted identity."
N. Rodgers: Yeah. This, by the way, sorry, as a side note for folks. Senate Bill Number 1. Tennessee thought this was the most important thing that they should do. In their legislative section.
J. Aughenbaugh: Section yes.
N. Rodgers: Because they're numbered in order of the way they're brought up before the lower number bills tend to be things that they perceive to be very important in a state.
J. Aughenbaugh: Yeah.
N. Rodgers: That's generally true of all of the state assemblies. So they thought this was extraordinarily important, and this is what's being colloquially called the transgender bill.
J. Aughenbaugh: Yeah. The question for the Court is whether or not the Tennessee Bill/ law violates the equal protection clause of the 14th Amendment. You going to want to pay attention to that because by the way, Tennessee is not the only state that has passed such legislation. In my research, over a dozen states have either passed legislation or considered such legislation in their most recently completed state legislative session.
N. Rodgers: If the Supremes find that it does not violate the 14th Amendment, it will stand.
J. Aughenbaugh: That's right. And states will have the-
N. Rodgers: If it does violate it, then other states will probably have to get rid of their laws as well.
J. Aughenbaugh: - that is correct. Yeah.
N. Rodgers: That's going to be big.
J. Aughenbaugh: Yeah. Then we have another case coming from a T state, the state of Texas. Texas passed a law that required all who wish to access online pornography sites certify that they are 18 years old.
N. Rodgers: You know Aughie people never lie about that. No teenage boy would ever consider lying about his age. That has just never happened.
J. Aughenbaugh: Well, according to the most recent study that I read, an increasing number of underage females watch porn online. I mean, but nevertheless.
N. Rodgers: You're right. I should not have singled out boys. I should have said young people in general would never lie about their age to get into a bar or to.
J. Aughenbaugh: Yes.
N. Rodgers: Get online with porn to get a Facebook page, which apparently, you're supposed to be 13, but somebody should tell it to the 10-year-olds. Anyway, I'm feeling all sarcastic. I'm sorry.
J. Aughenbaugh: Yeah. Use a fake ID to go ahead and buy cigarettes at a convenience store.
N. Rodgers: That would never happen.
J. Aughenbaugh: And listeners we're obviously being sarcastic here. So before you e-mail us, we're just being sarcastic. Anyways, the court took the case not to determine whether or not the law is constitutional, but whether or not the lower court used the wrong, if you will, type of review.
N. Rodgers: Oh, strict scrutiny versus.
J. Aughenbaugh: Rational basis review. The lower Court of Appeals said because Texas has police power to regulate for public health and safety, that the type of judicial review should be rational basis. Now, that's a far easier standard of review, and that's the type of review that governments generally prefer their laws and regulations be reviewed by a court. But Individuals who think that this burdens adults who might want access to online porn sites argue that the type of review should be strict scrutiny because it deals with freedom of speech. This puts rather squarely in front of the Supreme Court should freedom of speech get the same kind of review by courts as does historically loss targeting race.
N. Rodgers: That's interesting. I personally think they should send this back as, you can't enforce this. Don't make laws that just are unenforceable. That's like saying I will line up all the molecules in the air, so it makes it easier to breathe them. Like, you can wish that were true. But dude, come on. But anyway. That's a separate issues is me saying to Texas, why don't you just make laws lots of other laws that can't be enforced too like everybody has to be 18 feet tall.
J. Aughenbaugh: Well, the interesting thing about the Texas law is that it has a provision that if you're a parent and you find out that your underage child was able to access an online porn site, you can sue the site for not verifying that your underage child was actually of age. Yikes. Yes.
N. Rodgers: Well, also, do you have to rat out your kid to the cops? I thought that's what you were going to say. Is that there's a provision where you have to where you have to rat out your kid to the cops?
J. Aughenbaugh: No.
N. Rodgers: That's the other thing here is that is though well, but I have to say there's a tangled mess here in the South because we have this tendency to look the other way for behaviors that we don't want to discuss other people doing.
J. Aughenbaugh: Yes.
N. Rodgers: We cover it by saying, bless their hearts, right? And we just don't talk about it. But if you wanted to sue that company, you would have to tell them that your 13-year-old kid was looking at porn. Most parents aren't going to want to do that. You know what I mean, there's some really Interesting.
N. Rodgers: Anyway, that case is going to be fun. By fun, I mean, needles in your eyes fun.
J. Aughenbaugh: Well, I mean, for me, part of the fun is going to be actually reading the oral argument transcript and listening to a bunch of Supreme Court justices discuss.
N. Rodgers: Try to discuss.
J. Aughenbaugh: Online porn without actually discussing online porn.
N. Rodgers: Then underlying question is, do you have a freedom of speech right to the Internet?
J. Aughenbaugh: Well, yeah.
N. Rodgers: Which is the greater argument that the adults are making is, I have the right to the Internet. Do you? Anyway, what's our other case? Is it easier?
J. Aughenbaugh: Well, it's not necessarily easier, but for our younger listeners or those who vape and use e-cigarette products. Electronic cigarette products. For a number of years, the Food and Drug Administration. Please forgive me. I said a number of years, but particularly during the Biden administration. The Biden's food and drug administration has been denying various companies' applications to authorize new e-cigarette products. Some of these companies are challenging the FDA doing so. Two different Courts of Appeals, including the Fifth Circuit, actually held that the Food and Drug Administration, denying these applications to market new e-cigarette products were arbitrary and capricious.
N. Rodgers: Our favorite phrase of this podcast.
J. Aughenbaugh: Per the Administrative Procedures Act.
N. Rodgers: Well, if you allow some and don't allow others.
J. Aughenbaugh: That's right.
N. Rodgers: That is the very definition of arbitrary and capricious. When you look it up in Webster's.
J. Aughenbaugh: We discussed this Nia, when we went through the FDA approval process for new drugs. The FDA for years has received from federal courts in general, deference to their decisions about approving either new products or the marketing of new products. Because federal courts have basically held that these are the experts.
N. Rodgers: They theoretically know what they're doing.
J. Aughenbaugh: But as you just pointed out, if the FDA has approved other e-cigarette products or the marketing of them, but not others. If they don't offer a satisfactory explanation, is that not the definition of arbitrary and capricious per the Administrative Procedures Act?
N. Rodgers: Really, what this comes down to is, I think, is that the Surgeon General, who, by the way, in my brain is always called the Sturgeon General. Just because I just like to think of am in a fish suit. But the Surgeon General has really come out hard against vape. In part, because it is addictive for some people, it is dangerous for some people. I get where they're coming from, and so they're trying to stomp out the market, but they can't remove the ones that are already on the market, because what they're doing is arbitrary and capricious. What they're saying is, we are going to determine for you whether you should have access to this material or not, and so I'm actually coming down. I was glancing through the overalls of this case. I think I'm coming down on the side of the folks who are saying, hey, how is it that some of these are okay and others are not? Either, you need to pull everything from the market and make a good reason for doing that, which you can't do, as far as I can tell, or you have to live with everybody being in the market and the market decides who wins and who loses.
J. Aughenbaugh: That's the other difficulty for the FDA, Nia. If the FDA, ultimately wants to get rid of all e-cigarette products, they would have to go ahead and issue a brand-new regulation.
N. Rodgers: Withdraw all of that from the market. They would have to give a reason other than because we think it's bad and addictive.
J. Aughenbaugh: That's right.
N. Rodgers: Because we have all things in the market that are bad and addictive. Basically, what you're doing is trying to prevent people from sin, as it were, when Aggie talks about sin tax and that kind of thing, he's talking about the government discouraging that from going forward.
J. Aughenbaugh: We're beginning to see this right now with those states that have legalized marijuana. We are now beginning to see research that shows in some of the research, nearly 30% of marijuana users get addicted to marijuana.
N. Rodgers: Though it's completely harmless for some people.
J. Aughenbaugh: Some people, yes. It's beneficial for others with certain medical conditions.
N. Rodgers: But it's more complicated than that.
J. Aughenbaugh: Once you wade into that area, then there are rules and procedures that have to be followed if you're the government and you're attempting to go ahead and regulate that particular product in that particular market.
N. Rodgers: Some people can buy one lottery ticket.
J. Aughenbaugh: And be fine.
N. Rodgers: And never buy another one. Some people will take their rent money and buy all scratchers hoping to hit the big whatever and lose all their money.
J. Aughenbaugh: I know some people that will only go ahead and place bets on some of the biggest sporting events. The Super Bowl. The world series.
N. Rodgers: The Indy.
J. Aughenbaugh: The World Cup. Indianapolis 500. But there are others, because now gambling is legalized in over 2/3 of the states, they're spending mortgage money. They're taking money out of food. College funds, food budgets because they can't stop.
N. Rodgers: Where is the state's responsibility in that? This is complicated and nuanced. Does the state prevent you from gambling? Well, tell it to the Virginia lottery, which pays for education in that way.
J. Aughenbaugh: As we've discussed in a previous podcast episode, legalized gambling produces significant revenues for all states.
N. Rodgers: In fact, most of them are sold as funding education. Like when you buy the tickets, they say at the bottom, for North Carolina education, for Virginia education. Really? That might not be the best way to fund an educational system.
J. Aughenbaugh: Or listeners. Nia and I work at Virginia Commonwealth University. The state agency that has made the biggest profit for the state. A large number of consecutive years are the Virginia Alcohol Control Board. ABC.
N. Rodgers: ABC. I'm sure that's true in other states as well.
J. Aughenbaugh: That's all predicated on Virginians, buying a whole bunch of booze. Which doctors will tell you.
N. Rodgers: In moderation is fine and in excess is terrible.
J. Aughenbaugh: On a number of levels. This is going to be a difficult case.
N. Rodgers: That's going to be interesting because it will have effects, I think on what we think of as sins. But I'm looking forward to it. Aughie, I'm looking forward to this coming year with the Supremes. I'm looking forward to see what they do. I'm looking forward to see the vacations they take and the money they spend, and all that kind of stuff.
J. Aughenbaugh: Hopefully, Nia, they can get some improvement in the Supreme Court press office because the Supreme Court accidentally, posted a decision before the court was actually ready to issue the decision.
N. Rodgers: That'll be fun too. What we'd like to say before we wrap up is to any clerks who might actually be listening to this. First of all, what the heck are you doing? You should be listening to a completely different podcast from this one. One that plays gentle sitar music so that you can calm down. But we would like to say to you who are about to go through the 4,000 applications that are going to come in this summer. Our prayers and thoughts are with you because you are going to be the ones doing the first pass on whether you think your justices will want to read or not, and so bless you clerks.
J. Aughenbaugh: Welcome to the Supreme Court clerks, enjoy your experience reading 4,000 plus cert writs. Our thoughts and prayers are with you.
N. Rodgers: Windowing them down to 60, or 30 more actually.
J. Aughenbaugh: Listeners, once again, as Nia and I wrap things up for a few weeks where we take our usual summer furlough. Thank you for your continued listening. We appreciate all of you who do, and we will be back in a few weeks and have a good summer. Thanks, Nia.
N. Rodgers: Thank you.
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