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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 good. How are you?
J. Aughenbaugh: Well, I'm good. We are listeners, back to recording.
N. Rodgers: We took a little break.
J. Aughenbaugh: We took a little break. This is done primarily to, one, allow me to do end-of-the-semester grading and then have a couple weeks where I can at least rest up before summer class teaching begins, but this is, listeners, the beginning of our usual series. I guess we've now been doing this.
N. Rodgers: Summer of SCOTUS.
J. Aughenbaugh: Summer of SCOTUS. Now, this particular episode listeners.
N. Rodgers: In past Summer of SCOTI, I don't think that's the plural, but anyway. In the past Summer of SCOTUS summers, the Summer of SCOTUS of '25, by the way. In past summers, we have talked about the makeup of the court and the education of the court, and we've done stuff like that. We have given you a feel for who the court is, and then we get to the interesting cases that the court had this year, and this year, we decided to do something slightly different, which is, I said to Aughie, I think J. Rob is having a bad year. Aughie, he said because he's much more professional, a difficult position. I said he's between a rock and a hard place, but however you view J. Rob's current situation, it is not the easiest. He is certainly not having the easiest job of Chief Justice of the Supreme Court that has ever been had. Now, that being said, I don't know that it's worse than Warren because that was a pretty tumultuous.
J. Aughenbaugh: For our brand new listeners, if you don't know who J. Rob is, that would be Chief Justice, John Roberts, who probably in his entire professional life has never had somebody come up to him and say, J. Rob, baby, how's it going.
N. Rodgers: Which is what I would say if I met him.
J. Aughenbaugh: But we're speaking about chief justice .
N. Rodgers: I'm not even remotely secret in my adoration of J. Rob.
J. Aughenbaugh: Yes, we are speaking about Chief Justice, John Roberts. Again, for listeners who are not familiar with the United States Supreme Court, typically Supreme Court heroes are identified by their Chief Justice. Nia, just a few moments ago.
N. Rodgers: Nobody cares who the president is.
J. Aughenbaugh: Not in regards to talking about the Supreme Court. No. Listeners, Nia gave us a really good, if you will, comparison. Because the current Supreme Court is led by Chief Justice John Roberts who was appointed to the court by President Bush, President Number 43. The Warren Court was led by Chief Justice Earl Warren, he was Chief Justice from 1953 until 1969. It was, as Nia pointed out, a very tumultuous, controversial era of the Supreme Court because, in part, the court issued a whole bunch of rulings that fundamentally changed how we viewed civil rights, civil liberties in the United States, got rid of segregation, expanded the rights of those accused of crime, etc.
N. Rodgers: Do you think that modern courts are the only courts that have been threatened with death?
J. Aughenbaugh: No.
N. Rodgers: Let me introduce you to the Warren Court. People talk about now about the pressure on members of the current court and protests in front of people's houses and stuff like that. Also, the Warren Court had that, other courts have had that. If a court is regularly making decisions that are complicated as we said during a tumultuous period in history, they are going to receive that public angst.
J. Aughenbaugh: Nia, I don't know if you meant to do this, but your comparison of the Roberts Court to the Warren Court highlights something that we're going to get into in this episode, which is frequently the court is responding to what else is going on in American society and in American politics and government. You went ahead and said, John Roberts is probably not having a really good time, he's between a rock and a hard spot, etc, but in part, that's because of other things going on that are in many ways beyond the control of the court. It's something I always tell students. Remember, the federal courts react, they respond to something that a president does or a law passed by the Congress, or what the states are doing, or there's a pandemic or there's a war, or whatever. I don't imagine John Roberts last October said, put this in context. The Supreme Court term begins on the first Monday of October. That would have been a month before the 2024 presidential election. I don't imagine John Roberts was just, hey, I'm really looking forward to whatever occurs after the 2024 presidential election.
N. Rodgers: I'm sure that he said to his loving wife, I need you to buy a box load of anti-acids.
J. Aughenbaugh: Yes.
N. Rodgers: Because I'm going to be chewing tums like they are candy.
J. Aughenbaugh: I want you to go to Costco and get me a gross of Pepto-Bismal.
N. Rodgers: Exactly. I'm just going to drink it every day preemptively to try to help myself out. I think that there's that difficulty for him. The Roberts court deals with a thing that no court has dealt with before it, and that is the intense social media presence of regular humans. It used to be, I know, I'm going to sound like that guy that says, you kids get off my lawn, but it used to be that news came on at 6:00 PM, and Walter Cronkite told you a thing. He, generally speaking, he had interviewed an expert on the Supreme Court who told you what the meaning of that thing was, and you listened to him, and you said, oh, now I understand what the meaning of the whatever decision was made. Now, decisions aren't even dry before everyone and their chat is weighing in on what has just happened, what it means, what it's going to mean in the future. In some ways, that's good because people are talking about these things a lot more than they used to, but in some ways, that's bad because people who probably shouldn't be offering their learned opinions because their opinions are not all that learned are being treated equally to people like you who have studied the court for 30 years. I'm not trying to be ugly here, but a person who has studied the court for 10 minutes does not have the same knowledge as a person who has studied the court for 30 years. Aughie can pull up cases from his brain to talk to you about what the current thing changes from previous cases and what that means because he has studied the court. We're entering an era where everyone's opinion is treated as equal. While that is marvelously democratic, it is, in fact, in some cases, a terrible idea. You should not listen to my opinion about the stock market because it is not going to be from a place of knowledge or intelligence, or it's going to be from an overreactive person who doesn't really know what the stock market does and doesn't really understand how the stock market works. That's why nobody should take stock advice from me. They just shouldn't.
J. Aughenbaugh: There's one other thing I would add, Nia, to your remarks in this regard, and that is this, the immediacy of the commentary, I think is also somewhat problematic and troublesome.
N. Rodgers: Yeah.
J. Aughenbaugh: We're not getting the reflection. Again, listeners, particularly our younger listeners, if Nia and I are coming across as that old person who's just, well, back in our day, please forgive us. But think about this, and Nia knows this, when the Supreme Court announces that it's going to hand down decisions, Nia knows that I am going to be on the SCOTUSblog website for the real-time announcements, and those usually come down on decision days at 10:00 AM. There are instances where I'm seeing commentary, Nia, on the Internet within minutes.
N. Rodgers: If I ask Aughie at 10:05 what he thinks about a ruling, he'll say, I'm reading it, I will get back to you tomorrow or a couple of days from now after I've digested it, and I've looked at the references they've made, and I've decided whether those are reasonable or not.
J. Aughenbaugh: It's the lack of reflection. Again, this is very reflective of the social media real-time world that we live in today.
N. Rodgers: He's living with that moment to moment, J. Rob.
J. Aughenbaugh: Yeah.
N. Rodgers: He's living in the world of people, they're dropping those and by the bye. People who are giving their commentary at five minutes after, they didn't get it early.
J. Aughenbaugh: No.
N. Rodgers: The SCOT is incredibly good at keeping secrets for the most part. That one that got released early.
J. Aughenbaugh: The Dobbs majority opinion.
N. Rodgers: And wiped everybody out. But that's not a thing that generally happens because generally, if you're a person who's dropping stuff early, they will find you and hurt you until you stop doing that because that's not how they work. They don't want to give anybody the jump ahead. That's not what they're trying to do. They're just trying to release it into the wild and say, there it is. But the other part of that is, at least to me, being first isn't always being bright.
J. Aughenbaugh: Yeah.
N. Rodgers: You have to be careful about that. You have to be careful about because you can alarm people for no reason. You can say, and this changes everything. I hate to break this to folks, but 99.95% of anything that comes out of the Supreme Court is not going to change everything immediately. That's not how they work as a group.
J. Aughenbaugh: No.
N. Rodgers: You know?
J. Aughenbaugh: Yeah. Listeners, this particular episode it gives the context of the current Supreme Court in the future episodes of Summer of SCOTUS, 2025, we will delve into the important decisions that were handed down, etc.
N. Rodgers: Then we'll also do the last episode of statistical wrap up because Aughie loves to do that. How many were 9-0? How many were 6-3? How many were 5-4? Who voted the most, who voted the least, who wrote the most, who wrote the least? I love all that because it's fascinating to me who's skating by and who's writing their guts out.
J. Aughenbaugh: Then we get into the observations of what the term might have meant, and then we give a little bit of a preview of what cases the Supreme Court has already accepted for its next term because they're already beginning to fill out its docket for next term.
N. Rodgers: Although I have to say, but it doesn't matter what they accept because Donald Trump loves an emergency order. For him, everything is an emergency. He's got his foot to the floor of the car all the time. He's just pushing the accelerator as hard as he can go.
J. Aughenbaugh: Yeah, if I was an author.
N. Rodgers: I have to wonder, at some point, does he know something we don't know about, like an alien invasion that's imminent, we need to know.
J. Aughenbaugh: To go with your metaphor, if I was the mechanic for his vehicles.
N. Rodgers: You need to get paid more, whatever this is. Sir, you can't drive it like this.
J. Aughenbaugh: Okay. Engines are not designed.
N. Rodgers: To go 0-900 every day.
J. Aughenbaugh: The Federal Government not designed for this, and this is one of the sub-themes of this particular episode. The Roberts Court responses to the second Trump administration.
N. Rodgers: At which by the way, we are going to call Trump 2.0.
J. Aughenbaugh: This is Trump 2.0.
N. Rodgers: In the parlance of the current times.
J. Aughenbaugh: Okay. We've discussed this in a couple of previous podcast episodes. Some of the, shall we say, groundbreaking, accelerator to the floor behavior of Trump 2.0. Not surprisingly, as we have also already discussed, this has led to a number of challenges in federal courts. The Trump administration has, shall we say, pushed the envelope. I'm being diplomatic here on a wide swath of established legal and constitutional norms. To date, the Roberts Court has basically upset both liberals and conservatives, Democrats and Republicans because the Roberts Court has tried to walk a very fine line between upholding the rule of law, while also giving the Trump administration some victories. I prefer to view it as trying to thread a really small needle. Those needles that got those really small openings that you use to go ahead and repair rips and tears on pieces of clothing.
N. Rodgers: You can barely see the eye of the needle and he's trying to get a thread through it.
J. Aughenbaugh: Yeah.
N. Rodgers: Not only is he trying to get a thread through it, he's trying to get a big fat thread through it. It's not like he's got tiny threads that he's trying to. He's trying to push yarn through a tiny eyed needle, and you're like, I don't think that's going to.
J. Aughenbaugh: I'm going to give a couple of examples of this, walking a fine line. On one hand, the Supreme Court seemingly overturned a well established precedent from 1935, Humphrey's Executor. When the court said the Trump administration in two different cases could remove members of both the National Labor Relations Board and the Merit Systems Protection Board without following the conditions Congress placed in the laws. That was a victory for the Trump administration.
N. Rodgers: By the bye, I disagreed with that, yes.
J. Aughenbaugh: Now, a whole bunch of advocates for independent regulatory commissions, liberals, they decried this ruling. Nia did watch the sum.
N. Rodgers: I'm not a huge fan because Congress had made a way that you get rid of people. If Congress had said nothing about how you get rid of people, then I think the court would have been right to say, President can do whatever he wants. But if Congress said, and in order to get rid of the people on this board, you have to do the following things, and he didn't do it, it seems to me that is thwarting the will of Congress, which is closest house to the people. Congress is.
J. Aughenbaugh: Fair enough.
N. Rodgers: That's my argument.
J. Aughenbaugh: On the other hand, constitutional law scholars thought that the Humphrey's Executor precedent from 1935, was on its last legs for decades, simply because of a rather influential dissent written in a subsequent case, the Mistretta case in 1989, authored by Justice Scalia. I say influential simply because there's a whole bunch of both liberal and conservative judges who have basically said publicly Scalia's dissent was probably better argued than the majority opinion in the Mistretta case. Whether you like it or not, that was a victory for the Trump administration. On the other hand, supporters of Trump 2.0 are really disgruntled with the Roberts Court because the Roberts Court has basically allowed nearly two dozen lower federal court rulings which have temporarily suspended or permanently suspended a wide array of Trump administration executive orders, regulations, etc.
N. Rodgers: All right. You can't actually fire these people. You have to take them back.
J. Aughenbaugh: Okay.
N. Rodgers: You can't send somebody to El Salvador who's an American citizen. You got to get them back.
J. Aughenbaugh: Okay.
J. Aughenbaugh: Again, the Roberts Court here is walking a really fine line. Because if they rule against the Trump administration in every instance, they're practically begging the Trump administration to do what, Nia.
N. Rodgers: I would assume claim them as illegitimate.
J. Aughenbaugh: Not enforce them, not comply with them, is that so?
N. Rodgers: Or attempt to impeach them. If you wanted to go to the extreme.
J. Aughenbaugh: On the other hand, if the Roberts Court just basically says, Trump, do whatever you want. Now you're looking at a checks and balance system.
N. Rodgers: Forty nine percent of the country will go bonkers.
J. Aughenbaugh: Bonkers and you're laying waste to the checks and balance system in the US constitution. What I think, what we're seeing here is the Roberts Court again, in a very difficult position in large part because you have Trump just pushing the envelope. Because many presidents pick and choose. Trump is basically saying, hey, it's like whack a mole. Oh, hey, there's something else.
N. Rodgers: If I throw everything at this, something will stick.
J. Aughenbaugh: Will stick.
N. Rodgers: If I grab an entire pot of spaghetti and I fling it at the wall, some of those strands will stick. Even as other strands fall to the floor?
J. Aughenbaugh: Yes.
N. Rodgers: Anybody who thinks that is not the strategy of the Trump administration right now is bonkers. That is their strategy. Their strategy is to swirl the water so hard that the mud comes up from the bottom of the stream and nobody can see anything. That's not a bug, it's a feature.
J. Aughenbaugh: I keep on reminding, because I have a lot of friends who are just like, what's the Trump administration thinking? I'm like, hey, guys, remember. Trump ran for office in 2024. He doubled down on what he said when he first ran for office, which is he's going to challenge, restructure, break structures that many of his voters don't think work for them. That's Trump. Now, part of the issue here, I would argue is congressional inaction. Let's just say you are one of the millions of Americans who disagree with Roberts Court's rulings, either for or against the Trump administration. May I remind you all, that a number of these cases have arisen because of congressional inaction. I'm going to give you a couple of examples, Nia. One, the Trump administration has impounded billions of dollars that were appropriated by Congress. Members of Congress should be okay, in an uproar.
N. Rodgers: Livid.
J. Aughenbaugh: Livid.
N. Rodgers: They should be livid. They said that that money was going to a certain place. They voted on that. They gave their whatever, stamp of approval.
J. Aughenbaugh: It shouldn't be just the Democrats. The reason why I say it shouldn't be just the Democrats is because constitutionally, the authority to appropriate money to spend taxpayer dollars belongs to Congress, not the president.
N. Rodgers: Was it Hamilton that said the power of the purse and the power of the sword?
J. Aughenbaugh: That's right.
N. Rodgers: Congress has the power of the purse, and the president has the power of the sword.
J. Aughenbaugh: But we have congressional inaction here. Why? Well, first, the Democrats are in such disarray that I'm not entirely sure that they could go ahead and mount a coherent protest, against, the sun setting at night
N. Rodgers: You're right. They're struggling to get elect a dog catcher, let alone.
J. Aughenbaugh: Republicans, they've drank the Kool-Aid. Because most of them understand that if they vote against a bill or an action that the president has wanted or does want, they're going to get primary the next time they run for reelection.
N. Rodgers: Because this president is petty.
J. Aughenbaugh: Well, he is petty.
N. Rodgers: And like many elephants, he has a long memory.
J. Aughenbaugh: Yes.
N. Rodgers: Like he remembers slights from years ago.
J. Aughenbaugh: Decades ago. Moreover, congressional Democrats have a really difficult problem saying they're principled, in challenging the Trump administration's impoundment of funds, when they basically went ahead and let their president, Biden, go ahead and completely bypass them with the infamous student loan forgiveness program. If you're really concerned about, maintaining your authority about spending money, you don't allow he being your president to go ahead and commit the federal government to spend hundreds of billions of dollars on forgiving student loans.
N. Rodgers: Similarly, if you are really upset with immigration policy, immigration policy has been not just under Donald Trump. Immigration policy has bled back for president after president after president.
J. Aughenbaugh: That's World War 2, Congress has passed laws that have basically delegated its immigration authority to the president. If you think about this, Congress in action is basically leaving which branch to check the current president, Nia.
N. Rodgers: The justices by themselves.
J. Aughenbaugh: Even think about, for instance, Nia Trump's tariff policy.
N. Rodgers: Do we have to think about that?
J. Aughenbaugh: Well, I'm just going to use this as an example, just for a moment.
N. Rodgers: I will suffer through.
J. Aughenbaugh: The Trump administration has argued in federal court that the legal basis that the president has, to issue, what was it? Liberation Day tariffs. I love the titles. The Liberation Day tariffs was based on a law passed in the 1970s by Congress. The law is IEEPA the International Emergency Economic Powers Act. Now, it was a law that was initially designed to limit presidents using emergency economic powers after Nixon. But most presidents have used it to expand the office of President's Powers. For instance, Jimmy Carter used the law to negotiate the infamous return of the American hostages held in Iran.
J. Aughenbaugh: Presidents Reagan and Clinton used IEEPA as the basis for their international war on drugs. Various presidents have used this law in probably ways that Congress did not intend. If Congress had not liked how presidents were using the law, they should have done what to the law, Nia.
N. Rodgers: Changed it.
J. Aughenbaugh: Changed it?
N. Rodgers: Revised it.
J. Aughenbaugh: But didn't? Did Congress do that? No.
N. Rodgers: Congress has sat on a lot of things and not done stuff that they could have done that would have codified.
J. Aughenbaugh: We got decades, if not, over a century of Congress basically delegating its authority to the executive branch and saying to the executive branch, you fix this.
N. Rodgers: Part of that is because presidents get reelected once.
J. Aughenbaugh: Yes.
N. Rodgers: And members of Congress get reelected 474,000 times.
J. Aughenbaugh: Yes.
N. Rodgers: They don't want to have to answer for ugly votes.
J. Aughenbaugh: Yes.
N. Rodgers: For votes where they said, No, we got to fix that. That's crappy. We can't do that. They don't want to answer for that. They like the president to have to answer for it cause presidents come and go.
J. Aughenbaugh: Yes.
N. Rodgers: Really, members of Congress should come and go, too, but that is a separate issue which we will discuss in another podcast episode.
J. Aughenbaugh: But so Congress through its inaction. We got Trump and all of his multitude of actions that has placed the Roberts Court in a crappy position. Then we got Congress with its in action that's basically said to the federal judiciary, you guys go ahead and stop that runaway bus because we're going to sit on the sidelines and hope that it doesn't go ahead and damage too many cars or too many people when it runs out of gas. Man, we're just chock full of metaphors today. But we have another, if you will, data point here, that is, if I'm on the Supreme Court right now, I'm pretty much thinking that nobody loves me. Because the partisan tacks on the Roberts Court are coming from both the liberals and the Conservatives. Now, the liberals haven't liked the Roberts Court for years. Whether it's because of Dobbs V Jackson and a woman's right to choose, the Brewing decision and guns in the Second Amendment, or a whole host of Roberts Court decisions that basically invalidated Biden administration policies. Liberals have had a problem.
N. Rodgers: Even before Biden?
J. Aughenbaugh: Yes.
N. Rodgers: This has been a long standing. They didn't care for how President Obama was treated by the Roberts Court.
J. Aughenbaugh: With the liberals, some of the dislike is because of the outcomes of cases. But for many liberals, they just don't like the Roberts Court because a majority of them are strict constructionists, okay, fine. They don't like the outcome and they don't like the method. What I find fascinating Nia is the growing number of Republicans who are disenchanted with the Roberts Court. Because many supporters of the current president are like, Hey, wait a minute. Trump nominated a whole bunch of federal judges in his first term. What's up with these federal judges issuing temporary and permanent injunctions against our president's executive orders, regulations, etc.? How can they Because so unfaithful.
N. Rodgers: That shows a lack of understanding of how the court system works, how civics work, how humans work. If I give you a job that is a forever job. You are no longer beholden to me. The idea that somehow you will retain some level of loyalty I think it is it's weird to me because it's a leftover from the old system of, Boss Daily and the whole idea of.
J. Aughenbaugh: Oh, patronage. Yes.
N. Rodgers: I got you here. You will be loyal to me. Now I'm like, I'm here and you can't do anything about it. See you wouldn't want to be you. There's a whole different view and part of that has to do with, I think, people's presumptions about judges versus judges playing the long game and saying, once I'm in a place, it's up to me to build my legacy. It is not up to me to build your legacy. I'm not here to judge, if Aughenbaugh puts me in as a judge. He's president, he puts me in on the pick a circuit where you think I would fit.
J. Aughenbaugh: Well, I mean, hey, we were in Richmond, so it would be on the fourth circuit.
N. Rodgers: He puts me on the fourth circuit as a judge. I know two things about President John Aughenbaugh. I know that one in four to eight years, he's piecing out. He can't be president anymore. I know that, two, his party won't always be president of the White House.
J. Aughenbaugh: That's right.
N. Rodgers: Because in the history of the United States, no one party has dominated forever, as you can tell by going back and forth, back and forth. I know that I'm going to have to work with President Rogers who comes after him, who's a complete opposite nut job from him, and I don't want to make my career end at that point.
J. Aughenbaugh: There's this assumption, Nia. Again, my discipline, my peeps have developed this idea. Political scientists for decades have said that members of the federal judiciary can be easily plotted on an ideological spectrum as either liberal or conservative and that they are more easily identified as liberal or conservative than either members of Congress or presidents. That would suggest that federal judges are, partisan or policy actors. The media frequently reports federal court decisions as either liberal or conservative. Now you have a presidential administration and their supporters who are just like, while Trump nominated all these federal judges, why aren't they supporting his policy initiatives? The problem is, as you point out Nia, is many federal judges play the long game. Many of them actually evolve and change when they're on the court. If you look at somebody like Harry Blackman, Harry Blackman was appointed to the Supreme Court by President Richard Nixon. The assumption was Blackman would be a solid conservative justice. He ends up being the justice who writes the majority opinion in Roe V. Wade.
N. Rodgers: Because you can never tell what the influence of the other judges are going to be on.
J. Aughenbaugh: Yes.
N. Rodgers: Making a judge. But you also right, they just grow as humans. They're like, wait a minute. My thinking on this has changed and don't forget, folks. This is super important. These people read all the time. They are constantly reading philosophical texts, ethical texts, moralistic texts where they're like, huh, how does that play out if we put it into this situation? Like, if they're not doing that, that's a failure, they should be should be.
J. Aughenbaugh: Because language is the medium of their job. Words are the medium of their job. The other thing to take into account, listeners, is that a judge might not change. A court does. I'll give you two examples. John Paul Stevens was appointed to the Supreme Court by Republican President Gerald Ford. For probably roughly the first eight to ten years he was on the court, he was a solid, swing, moderate, conservative judge. By the time he retired, during the Obama administration, he was one of the most liberal judges. According to Stevens, he didn't change. The rest of the court did. The court had become more conservative. I'll give you a different example. The subject of my dissertation, Byron White was appointed by Democratic President John Kennedy. The assumption was Kennedy's a Democrat. Byron White is going to join the Warren Court and easily fall in line with the other liberal justices of the Warren Court. Now, Byron White was a moderate liberal. He was a new deal believer. He didn't believe in a lot of this. Let's find new rights under the Constitution because as a new deal justice, the court shouldn't be taking that lead. The political institutions should.
J. Aughenbaugh: Again, the court can change, and a justice doesn't. Either way, what I find fascinating is now you have Trump supporters who are saying that Trump should pick federal judges much like Franklin Delano Roosevelt did. FDR was infamous for picking judges, particularly Supreme Court justices, not because of their ideology, but whether or not they were faithful to the New Deal and to his administration. He rewarded supporters.
N. Rodgers: Yeah, it's a terrible idea.
J. Aughenbaugh: Much like patronage that you mentioned, Nia, just a few moments ago.
N. Rodgers: It's a terrible idea. Just like it's a terrible idea that any one group, Federal society, I'm looking at you. Any one group can decide who should and shouldn't be on the Supreme Court because they have the right pedigree or they have the right. That's where we've gotten. We've done this in past. We've talked in past Summers of SCOTUS. We've talked about the fact that these people all come out of the same system. They all go to the same elite schools. They all work at the same elite firms, and then they end up on the Supreme Court together. In some ways, that's been detrimental to the court because it's led us to this place of a person who, forgive me, our beloved Molly, goes to the University of Richmond. She's going to have to fight tooth and nail to get on the Supreme Court. Now, I believe she will because President Rogers will put her there.
J. Aughenbaugh: Or President [inaudible].
N. Rodgers: Or President [inaudible] because we both believe she's brilliant. But she didn't go to an Ivy. You know what I mean?
J. Aughenbaugh: Yeah.
N. Rodgers: I think there's some of that, as well, that we need to clear the hatches on how people are chosen for the Supreme Court.
J. Aughenbaugh: But if you don't use elite credentials, which by the way, both the Federalist Society and on the liberal side, the American Constitution Society, both argue elite credentials with the same work and life experiences will lead to better judges. If we get rid of that, what do we replace it with, Nia?
N. Rodgers: I don't know. But I've said that the elite doesn't necessarily mean Ivy.
J. Aughenbaugh: But the alternative is patronage, because with patronage, well, think about FDR's picks. His first pick for the Supreme Court was Hugo Black, who was not Ivy. He didn't even finish law school. He was a US senator, but he was a US senator who was the first Southern Democrat to support the New Deal. Roosevelt rewarded him. Or think about, for instance, some of the other FDR appointees, very well known, Felix Frankfurter, William Douglas, Robert Jackson. They were all, if you will, supportive of FDR, his administration, and became very prominent Supreme Court justices in the middle part of the 20th century. Is patronage inherently bad?
N. Rodgers: Now, it's frustrating because I believe Molly is brilliant, and I think she will make a great attorney and eventually, a great jurist. I think she'll be a great judge someday. I think that her talent should be recognized, regardless of the fact that she didn't go to Harvard. I don't know. There's got to be some in-between place where your pedigree counts somewhat, but also your ability counts.
J. Aughenbaugh: I'd also like to see a diversity of work and life experience. Let's just say, for instance, Molly goes to work as a Commonwealth's attorney in the Commonwealth of Virginia. Then, after doing that for 6, 8, 10 years, then she goes to work in a law firm that focuses on just general legal practice. Trusts, wills, family law, etc. But she demonstrates expertise and judgment and temperament and all those.
N. Rodgers: An adept understanding of the law and applying it.
J. Aughenbaugh: That person has something valuable to bring to a court, just like somebody who might have spent 20 years as a judge might bring something worthwhile, somebody who might have been a state attorney general, or a governor might also bring something worthwhile. Think about Earl Warren. One of the most prominent chief justices in the history of the United States Supreme Court was not a judge before he was appointed chief justice. He was governor of California, and before he was governor, he was the Attorney General. Being a judge at a lower court where after you clerked for a Supreme Court justice and went to an Ivy League law school, does not necessarily mean your skill set is the only one that might be valuable to the court. Two of my favorite Supreme Court justices, Byron White and Robert Jackson, neither one of them had been judges before they were nominated to the Supreme Court.
N. Rodgers: Well, and Sandra Day had served in the General Assembly in Texas.
J. Aughenbaugh: Arizona.
N. Rodgers: Arizona, which is a huge plus. She knew the other side of how laws get made, how compromises get made.
J. Aughenbaugh: That experience.
N. Rodgers: There are a lot of ways that we could build a court that would be probably better than the what? Although I have to say, I feel sorry for J. Rob because I think that all the sides hate him. I think I'm his only friend in the world.
J. Aughenbaugh: Well, there are others, guess.
N. Rodgers: His wife.
J. Aughenbaugh: Maybe his kids.
N. Rodgers: His kids. When I heard he fell down, I felt bad for him. I was like, Oh, no, is he okay? But the problem is that people on both sides dislike what the Court's doing. They're all crabby about it. They're all like, He's not conservative enough. The liberals are like, He's ignoring liberal values. I'm like, Okay. That poor man is just trying to survive.
J. Aughenbaugh: Well, Nelly, the Roberts court disliked by liberals and conservatives. It's an increasingly fractious court.
N. Rodgers: You've talked about this, the 3-3-3.
J. Aughenbaugh: Listeners, in our previous summer of SCOTUS, I talked at the end of that term about how the media frequently mischaracterizes the Roberts court. They go ahead and say, Well, there are six justices appointed by Republican presidents, three appointed by Democratic presidents.
N. Rodgers: It's a 6-3.
J. Aughenbaugh: It's a 6-3 conservative liberal split. I think increasingly, you have to acknowledge that in cases that are not unanimous, that are not decided in a unanimous vote, you are going to see some mixture of a 3-3-3. You got three liberals, Kagan, Sotomayor, and Brown Jackson.
N. Rodgers: They're pretty much established liberals.
J. Aughenbaugh: Occasionally, Kagan will slide over and cobble together a majority with Roberts, Kavanaugh, Coney Barrett, and maybe Gorsuch. The three hardcore conservatives with some consistency, Thomas, Alito, and Gorsuch. But then you got the three other Republican appointed justices, J. Rob, Kavanaugh, and Coney Barrett. Those three, one or two of them, will go ahead and vote with the liberals, and this really frustrates Conservatives and Republicans.
N. Rodgers: Can I mention something to you about that, or can I ask you about something about that?
J. Aughenbaugh: Yeah, go ahead.
N. Rodgers: It seems to me that of those three, Roberts, Kavanaugh, and Coney Barrett, Coney Barrett gets more ire than the others. Do you think that's because she's a woman, and they expect her to fall in line, or do you think that that's because she has a lot of children and they expect her to be more conservative because she has a large family? Or am I even perceiving that as incorrect? Do you think she gets more ire?
J. Aughenbaugh: I think she gets more ire simply because her proponents when Trump was deciding who to replace Ginsburg because she did replace Ginsburg, I think her proponents went ahead and said she is safely in the mode of Scalia simply because she clerked for Justice Scalia, and she's not a Scalia clone.
N. Rodgers: She's got her own thoughts.
J. Aughenbaugh: She's got her own thoughts.
N. Rodgers: I regularly disagree with her.
J. Aughenbaugh: She focuses a lot on procedure. This is where the Trump administration is going to run afoul with her.
N. Rodgers: Because they have never met a procedure that they didn't want to screw with in some.
J. Aughenbaugh: This idea that you should go ahead and follow the Administrative Procedures Act, notice and comment or pass this. What do you mean I have to go ahead and give a previous regulation review before I go ahead and scrap it in its entirety?
N. Rodgers: I'm making a tariff tomorrow. Wait. What?
J. Aughenbaugh: What? Yes.
N. Rodgers: You need to give people warning.
J. Aughenbaugh: I'm going to ignore Supreme Court precedent from the late 1800s. What? Wait. For Coney Barrett procedure, it's important because it provides reliability and consistency in the law, which is [inaudible] .
N. Rodgers: It's due process.
J. Aughenbaugh: It's a conservative position.
N. Rodgers: It's a classic conservative position.
J. Aughenbaugh: If Coney Barrett was on the Warren Court, I imagine she would have been writing in dissent all the time, simply because the Warren Court was laying waste to precedents that, in some cases existed for 140 years. This is where she's going to run afoul, but the problem is when she was nominated, many of her advocates said, "Don't worry about her. She's one of us. All you got to look at is the fact that she was a clerk for Scalia." But that assumes that all of Scalia's clerks were as strict constructionists in the same way as Justice Scalia was. Scalia was noted for always picking at least one clerk that he knew was liberal simply because he valued, if you will, the give-and-take argument. He knew he would write better opinions.
N. Rodgers: [inaudible] best friend was Ginsburg so that he could have that back and forth of, "I want my opinion to be written really well to answer all the questions that will be brought up."
J. Aughenbaugh: Ginsburg or whomever. Again, there is a fundamental, if you will, misperception of how these justices will behave. It's like assuming that Brown Jackson will rule the same way as her former boss, Justice Breyer would have ruled. No. Again, these are human beings here. Might have they been influenced by the justice that they clerked for? Yes. Might they have been influenced by the law professors that they had at Harvard or Yale? Yes. But they're also human beings that have other life experiences. They've read other stuff. Coney Barrett, I don't know if she gets the ire because she's a woman. Just like for instance, I don't think that Kavanaugh will ever be accepted by liberals even when he votes with liberals. Why? Because that guy was accused of sexual assault when he was in high school. It's easy to go ahead and put these justices into nice little neat categories. Yes.
N. Rodgers: This person is in this box. I think people are always surprised when Kagan comes out with a conservative. I'm like, "She was the president of Harvard." Harvard Law or Harvard?
J. Aughenbaugh: Harvard Law.
N. Rodgers: Harvard Law.
J. Aughenbaugh: She was the dean of the law school.
N. Rodgers: Dean of Harvard Law. She's going to be, by her nature, somewhat conservative because deans are conservative people, generally speaking. Deans have to think about all kinds of issues. They can't just go with their gut. That's not how deandom in the university system works.
J. Aughenbaugh: Why students want X? That's nice, but what does that mean for the college?
N. Rodgers: What does that mean for our finances? What does that mean for our outreach? What does that mean for 1,000 things?
J. Aughenbaugh: You buy the alumni. My faculty want to go ahead and only teach one class a semester. I can't make that work financially. You guys are going to have to teach two a semester. Again, in some ways, you got to look at these people as complete individuals. I can easily explain why Justice Thomas is conservative as he is as a Black man. With some of the life experiences he's had, I can easily see why he is as conservative as he is, but if you only see him as a Black man.
N. Rodgers: Then you're angry that he's not more in court style liberal.
J. Aughenbaugh: That's right. Again, I get why people do this. We all do this, Nia.
N. Rodgers: Right. Because you want to figure out in tribe and out tribe because that is an evolutionary tactic.
J. Aughenbaugh: Yes.
N. Rodgers: That is just an evolutionary tactic. That's what humans do. We say, you are either with me or you're against me, and it will promote my survival if I can make that decision quickly, but it also turns out that humans are pretty darn complex.
J. Aughenbaugh: In understanding the Roberts Court, and listeners, I know many of you are like, "It's really hard to be sympathetic about a bunch of government employees who are making well over a quarter of a million dollars a year." Hey, I get that. On the other hand, right now. I'm not entirely sure you could pay me a million dollars a year, and I'm not entirely sure that I would say, "I want to be a Supreme Court justice." Just to put a bow on this particular episode, listeners, I'm really thinking that if you're J. Rob and you're an institutionalist and you're concerned about the court's legitimacy and reputation, you're just hoping to maintain some semblance of legitimacy until you can get to 2029. Why? Because in 2028, there's going to be a new presidential election. There will have been two congressional elections, and you can hope.
N. Rodgers: Hopefully, the target will come off of the court.
J. Aughenbaugh: Court. That's right. Because otherwise, right now, the only federal government institution that seemingly can check the president of the United States are the federal courts. That's not how our system of government was constructed. It wasn't. The courts should be the last resort. Those who occupy positions in the legislative and the executive branch should be duking it out.
N. Rodgers: The court is the parent that comes in after the fight is almost over and separates the two of you and sends you to your rooms, but they shouldn't be the one who has to do that all the time because it's not a healthy way. What is it, Benjamin Franklin said? You've got a republic if you can keep it?
J. Aughenbaugh: Yes. Right now, we're relying on one branch of the government to maintain the Republic. I find it rather odd that we're relying upon the unelected branch to maintain the Republic.
N. Rodgers: Reserving democracy through not voting. Excellent. Well done. Only in America.
J. Aughenbaugh: James Madison is rolling over in his grave saying, "I spent a lot of time putting this shit together, and you all's reaction is to go ahead and rely upon the unelected branch. Where did I go wrong?"
N. Rodgers: Exactly. What did I do? This is giving us a good grounding in what we will be seeing coming up in the cases, because we know this court is somewhat under fire. See how politely I said that?
J. Aughenbaugh: Somewhat.
N. Rodgers: That this court is still trying to do its job. Preview, folks, we are seeing now some nine O's. We're seeing some agreement in the court, but Aughie has warned me that that's going to cease pretty soon, and then we're going to see some interesting disagreement. Everybody, drink your coffee now it's going to get bumpy.
J. Aughenbaugh: Yes. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
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