SCOTUS Eras: Roberts Court, part 2

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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 excellent because we are going to talk about the landmark rulings of the Roberts Court. The Roberts Court was so involved that we needed two episodes. You brought up something which I think was important in the last episode, which is recency bias. We're all just living in John Roberts world at this point. I do think there is a little bit of that, but I also think, man, they have done a lot. They've turned over a lot of precedent. They have been standing around going, we're not really doing much of it. We've had court eras where not much happened. That is not true of this court era. Part of it is they've had Trump twice as president. If there is a person who is more litigious in the United States, than Donald Trump, I would like to know who it is because that man never met a lawsuit he didn't want to have against somebody.

J. Aughenbaugh: If we were giving out an award for the 21st century, most litigious American.

N. Rodgers: He would get it easily, I think.

J. Aughenbaugh: Donald Trump is definitely one of the finalists.

N. Rodgers: He just asked to go to court.

J. Aughenbaugh: Listeners, as is our wont, we will basically go in chronological order.

N. Rodgers: Seems the easiest. If we go into order of importance, we'll just set each other on fire before the end of the list. It's easiest to just go chronologically.

J. Aughenbaugh: John Roberts becomes Chief Justice in 2005. First term, generally, low key. Second term, yeah. First case we're going to mention is Massachusetts versus the EPA. This is the case where Massachusetts sued the EPA to force the agency to regulate carbon dioxide, under the Clean Air Act. The Bush 43 administration had, basically been dragging its feet, much like the Clinton administration and much like the Bush 41 administration. Well, Massachusetts went ahead and said, hey, we're getting tired of dealing with a lot of greenhouse gases generated in particular from states to our West and South, and we want the EPA to use its authority to, basically, clean up greenhouse gases. EPA said, we don't have to.

N. Rodgers: You can't make us. Massachusetts said actually, somebody hold my beer, I'm going to try to make them do this.

J. Aughenbaugh: What this comes down to is, can a state get standing to sue a federal agency to do its job? In a 5-4 decision, the Supreme Court said, yes. Now, for all of you who are wondering on what grounds states can sue the Trump administration, or in the previous presidential term, states sued the Biden administration. Well, you can think, Massachusetts versus EPA, because that's where the Supreme Court in a narrow majority said yes, states don't have to rely on the political process, i.e, the representation in either or both Houses of Congress, they can actually go to court and get standing to sue a bureaucratic agency.

N. Rodgers: Which I like, I hate to say.

J. Aughenbaugh: For federalism purposes, I like the fact that states can go ahead and push back against the federal government. I believe in federalism. I know I'm an anomaly in many circles, but I think federalism is one of the geniuses of the American Constitution. If that means states can go to federal court to go ahead and say to agencies, you explain why you're not doing the job.

N. Rodgers: You are supposed to be doing, and that you won't let us do. Yes because it's in your it'd be one thing if EPA said, knock yourselves out, y'all can go fight out amongst yourselves and figure it out, but that's not what they were doing. They were saying, no, no, no, no. It's a federal thing, but we're not going to do it. States are like, but then.

J. Aughenbaugh: 2008, there were three different cases, that were big ones. The first had international implications Medellin versus Texas. This is the case where Medellin gets arrested and convicted of capital murder in the state of Texas and receives the death sentence. Medellin complains that Texas did not allow him to consult with the Mexican consulate when he was first arrested. Texas says, well, we don't have to. Medellin complains to the Mexican government, who puts pressure on President Bush Mexico goes to the international criminal court and gets a ruling saying that Texas is violating the rules of the Geneva Convention. Heck, Mexico even got the Pope involved. The Pope went ahead and criticized the United States, for not allowing, a national from another country to speak with their consulate, when they were initially arrested. President Bush, who used to be the governor of Texas gets pressure, and he issues a memo instructing the state of Texas to give Medellin a new trial. Texas says, You have no authority.

N. Rodgers: Which he's not there's a reason there's executive and judicial, and they are separate branches with separate names.

J. Aughenbaugh: Well, and one's national government and one's state government. Texas is like, we're going forward with the execution. Median appeals the whole way to the United States Supreme Court. In a 5-4 decision, the US Supreme Court agreed with Texas, In particular, John Roberts majority opinion points out that, though the United States wrote the bylaws for the International Criminal Court. The United States during the Clinton administration, pulled out of the International Criminal Court, without a treaty that forces states to comply, The state of Texas doesn't have to comply with an international courts ruling, saying that they didn't honor Medellin's Geneva convention rights.

N. Rodgers: It's a complex. Should Texas have let him do that properly. Just because it's the right thing to do. It's a reasonable thing to do. It doesn't hurt Texas to do that.

J. Aughenbaugh: It also, let's be very clear. Do we want other countries toward Americans who traveling overseas?

N. Rodgers: Arrested for something. Don't we want them to be able to call the consulate and say, Oh, my gosh, help. Send help? That's what I was going to get to is the reciprocity of that. Be careful, Texas. Yes, 'cause you all cross the border all the time.

J. Aughenbaugh: Yes.

N. Rodgers: Anyway.

J. Aughenbaugh: Another 2008 case. This one just drives Nia bonkers DC versus Heller. Five, four decision, a majority of the court, in an opinion written by Scalia, says that the Second Amendment, does protect an individual right to possess a firearm, and you don't have to serve in a militia to enjoy the right. This is the first time where the Supreme Court clarified, that the Second Amendment protects an individual right. To possess a firearm, you don't have to be a part of a collective militia, paramilitary organization, that is recognized by the government,

N. Rodgers: The reason that this bothers me is because there are no guardrails in this case. Any mouth breather who has the money can acquire a firearm with no training, with no licensing, one of the things that militias even if it's a crazy militia, one of the things they tend to do is train people. They end there tends to be some level of, if you're going to own a gun, we should teach you how to carefully maneuver the gun so you don't kill your own family, or your dog, or yourself or strangers. This is basically saying it's a free for all, which I'm not a huge fan of.

J. Aughenbaugh: Yes.

N. Rodgers: Because I'm okay about gun ownership, but I think there needs to be a responsible. Licensing procedure, so that I know that you, my next door neighbor who owns a Glock, knows how to use it properly.

J. Aughenbaugh: Listeners to Nia's point, a little bit later on in this episode, we're going to get to a follow up case, where the Supreme Court looks at government laws that regulate gun ownership, in what the Supreme Court had to say. By the way, the DC versus Heller decision was extended to state and local governments two years later. When, again, a narrow majority of the Supreme Court said that the Second Amendment does apply to state and local governments. Via the 14th Amendments due process clause.

N. Rodgers: You don't have federal ownership of a gun. You have ownership of a gun, regardless of locality?

J. Aughenbaugh: Yeah, the Second Amendment applies to both the federal government and the state government. Both levels of government have to honor that amendment's civil liberty. Also in 2008, Kennedy versus Louisiana.

N. Rodgers: Justice Kennedy, although he wrote the opinion.

J. Aughenbaugh: You say he wrote the majority opinion.

N. Rodgers: But it is not him that the case is about.

J. Aughenbaugh: It was not his behavior at issue in the case, but Kennedy versus Louisiana, the court in a narrow decision 5-4, the court ruled that the Eighth Amendment prohibits capital punishment for crimes that do not involve homicide or treason.

N. Rodgers: You cannot be put to death for jaywalking. You cannot be put to death for grand theft auto. There are levels at which you can't.

J. Aughenbaugh: What was at issue in this case, was Louisiana law allowed for a person convicted of raping a child to be put to death?

N. Rodgers: Which I mean, from a personal level, I'm okay with? Because, the crime pretty freaking heinous.

J. Aughenbaugh: Yes.

N. Rodgers: But I also understand why they're saying that is not a proper use of the biblical eye for an eye.

J. Aughenbaugh: What was particularly controversial about Kennedy's majority opinion, is he drew upon as a source, international law, and international legal norms, which the conservatives were like, but we're not applying international law. We're applying the US Constitution. At the time the eighth Amendment was written and ratified by the states, majority of the states allow for capital punishment for non homicide crimes. According to the dissenters, the answer is yes. Again, this quickly becomes the Kennedy court, because in closely divided cases, it's usually Anthony Kennedy, who is casting the tie breaking vote. Speaking of which transition alert. The next year, in the case of Ashcroft versus Igbal, in a 5-4 decision written by Wait for it, Justice Kennedy, the court, reversed the Second Circuit Court of Appeals decision to not dismiss a lawsuit against former Attorney General John Ashcroft, and others who claim that the FBI engaged in discriminatory activities following the 911 attacks.

J. Aughenbaugh: Basically, a narrow majority of the court went ahead and said, sorry, you have to dismiss the lawsuit against John Ashcroft and FBI agents because they were engaged in official duties that were reasonable for their positions in response to the 9/11 attacks. Yes.

N. Rodgers: It's a complicated case. Is it okay to discriminate in the climate immediately following 9/11. What they're talking about is Muslims being stopped on the street. People who are obviously Muslim being stopped on the street. Meaning people who are wearing religious clothing, people who are wearing religious iconography, that kind of thing, and being questioned. There's all these things. It falls in line in my mind with a similar argument made for Korematsu which is if you are under attack, is it racially acceptable to have and the court at that time also said, yes, it is acceptable when you are in an attack situation, when you're in a war situation, to draw those racial lines in a way that you would not draw them when you were not under those circumstances.

J. Aughenbaugh: In a time of peace, yes. When I teach, for instance, either this case or the Korematsu case, I ask my students, imagine you're in the United States and another country attacks property of the United States for the first time basically since the War of 1812. I mean, because the Civil War was Americans fighting Americans. But I said, basically, since the War of 1812, can you understand why the Supreme Court might say, the federal government should not have to take the time to go ahead and offer due process?

N. Rodgers: Not that we agree with the outcome.

J. Aughenbaugh: No.

N. Rodgers: But understanding that actions happen within their time frame. During the Depression, theft of food was pretty common.

J. Aughenbaugh: Yes.

N. Rodgers: Because people were hungry and they were starving, but more importantly, their children were starving. You'd steal from Mark.

J. Aughenbaugh: My goodness, yes.

N. Rodgers: That's a different circumstance than if you're not under those circumstances. Like today with you with your Professor Saleem if you just went to a store and started stealing food, it would be a different circumstance?

J. Aughenbaugh: Yeah.

N. Rodgers: Then during the Depression when you have no money and you have no food and you have no way to take care of your kids, these are circumstantial, I think.

J. Aughenbaugh: It's a difficult case.

N. Rodgers: It is a difficult case because the other part of that is, but that just adds to the heightening of the fear for people who are perfectly law abiding, not doing anything, and now they're being blamed for something they had nothing nothing to do with. What is the psychological damage of that?

J. Aughenbaugh: Isn't the purpose of enshrining civil liberties in the Constitution.

N. Rodgers: To keep that crap from happening.

J. Aughenbaugh: Yes. Basically go ahead and say that there are certain circumstances, where these liberties cannot be infringed upon.

N. Rodgers: Regardless of what's going on in the world.

J. Aughenbaugh: Now the next case.

N. Rodgers: The next case makes me make that noise.

J. Aughenbaugh: Citizens United versus the Federal Election Commission decided in 2010 in a 5-4 decision.

N. Rodgers: It was big shock a 5-4 decision with Kennedy writing.

J. Aughenbaugh: The majority opinion. Yes.

N. Rodgers: He was the guy, wasn't he?

J. Aughenbaugh: The court held that the provisions of the Bipartisan Campaign Reform Act, otherwise known as McCain-Feingold, named for the Republican and Democratic senators who co-authored the bill. The Supreme Court held that the provisions of this law, which regulated independent expenditures in political campaigns by corporations, unions and non profits violated the First Amendment freedom of speech. Nia, would you care to combat?

N. Rodgers: Well, here's the thing. Aughie over the years has water on a stone softened some of my views of this. My problem is not as much now with Citizens United because obviously unions also are you using money as sprayed switch. My problem with all of it is that what they should have said was, no money in elections, dang it. You're all ruining the idea of democracy by bringing in the amounts of money that you're bringing in. Instead, the court said, one group's the same as another. Which I'm like, well, that doesn't help. But Aughie is right that it isn't just that corporations are people and can give money at whatever level they want, but so can unions. If it's wrong for one group, it's wrong for all of them. I think it's for all of them. But I do appreciate what Aughie has over the years tried to get me to understand, which is that it applies to all of the groups. It applies to all of them, meaning it doesn't choose one side of the political spectrum to put the thumb on the scale up. If it had been corporations, it would have hurt Republicans more than Democrats. But because it's unions, it also hurt Democrats at the time. But you know what I mean?

J. Aughenbaugh: Well, I mean, again, this is one of the dangers of allowing the government to go ahead and pick and choose because in 2010, restricting corporations from spending unregulated amounts of money would have hurt Republican candidates. Today, it would hurt the Democratic Party more than the Republican Party.

N. Rodgers: Really Democrats should be glad about this. In retrospect, everybody should be glad that the Supreme Court was like, spend away. My problem is the Supreme Court should have said no money at all. All you people are bad news for politics.

J. Aughenbaugh: This and listeners gets to Nia's core complaint. Kennedy's majority opinion says a number of times, money is speech. Again, that's where I think the Supreme Court in the majority of the court in this case, in its desire to go ahead and protect speech, really didn't take into account, how the guardrails were being removed.

N. Rodgers: It doesn't take into account class, because now what you've done is empower wealth.

J. Aughenbaugh: But again, class, if the government goes ahead and says, well, we can go ahead and decide based on wealth or class, who can go ahead and spend money and who can't, again, that's the government putting their thumb on the scale. The larger issue here is when money is equated with speech, you've now provided an incentive for more money to enter the campaign realm.

N. Rodgers: Well said. That is exactly the problem.

J. Aughenbaugh: I mean, think, listeners, about the amount of money Donald Trump.

N. Rodgers: Squashes around in any campaign. Oh, my great googly moogly.

J. Aughenbaugh: Kamala Harris just spent and that's not the money this case was about. This was the money spent by other groups, not the campaigns themselves, not even the parties themselves. This is the unregulated soft money to go ahead and run ads and do other campaign stuff that's supposed to be not coordinated with a particular campaign.

N. Rodgers: But this is super PAC money.

J. Aughenbaugh: But who is to regulate that? The Federal Election Commission. The Federal Election Commission historically is underfunded, understaffed. We don't know how much of this soft money is actually being used in a coordinated way, and that's the thing. When you take off the guardrails, now you provided an incentive for all groups, to just throw more money into this.

N. Rodgers: The FEC can only regulate it or can only know that it's happened after it happens.

J. Aughenbaugh: That's right.

N. Rodgers: If we took money all the way out of it, then there wouldn't be an issue of how the money is spent. But the FEC can only know after the money is spent when they get the quarterly report by then, the folks in the henhouse, the election it's over, the spending is done, there's nothing. They can say, don't do that again and people can go, our bad. But that's it.

J. Aughenbaugh: The fines that they can impose are prescribed by Congress in the FEC.

N. Rodgers: The cost of doing business. It's the same thing that corporations do when Pinto said, we'll just pay off the few people who get killed when our cars explode because it's easier than changing our production line to make cars not explode, like it's cheaper. That's just the cost of doing business for a corporation. We have some fines. When you fine Google, you've got a three million dollar fine. Google's like, we made that in the last four seconds, no problem.

J. Aughenbaugh: It's like the IRS going ahead and fining a union or a corporation, a corporation will just go ahead and charge more for its products. The union will just go ahead and impose higher dues on its members.

N. Rodgers: Or take sketchy money from people they shouldn't be taking sketchy money from, but either way. The love of money is the root of all evil. Hello, anyway, what's our next case?

J. Aughenbaugh: Hey, 2012 was a big year for the court. It would have been a big year just because of one case NFIB versus Sebelius. The National Federation of Independent Business versus Kathleen Sebelius, who was the director of Health and Human Services. This was the case where the Affordable Care Act, otherwise known as Obamacare, this was the case where there were two challenges, two provisions of the Affordable Care Act. One, the law required that every American have health insurance. This was known as the individual mandate. Two, the provision in the law that required states to expand their Medicaid program so that more Americans who are poor could actually obtain health insurance. In a 5-4 decision written by Chief Justice John Roberts, the court upheld the individual mandate to buy health insurance. John Roberts, writing for the four liberals upheld it on the grounds that this was a tax, and can Congress use its taxing authority to encourage people to engage in behavior that they might not otherwise want to engage in? John Roberts said, they do it all the time, and we've said it's perfectly acceptable.

N. Rodgers: Because John Roberts looked at the reverse, which is syntax.

J. Aughenbaugh: Yes.

N. Rodgers: If I want to curb your behavior, if I want to curb Aughie from drinking coffee. I make coffee beans cost $80 a pound. Maybe he will either go bankrupt buying coffee or he will learn to curb his coffee drinking habits down to a cup a day or whatever.

J. Aughenbaugh: That's right.

N. Rodgers: We do it in the reverse all the time, so his argument was pretty sound that well, we use taxes all the time to encourage or discourage behavior.

J. Aughenbaugh: Think about the federal government's tax code. If you buy a house, you get to deduct the interest you pay on your loan to buy the house from your taxes. Why?

N. Rodgers: If you have a kid?

J. Aughenbaugh: You get to go ahead and claim them as a deduction on your income tax.

N. Rodgers: Encouragement of behaviors we want you to engage. We want you to own a house, we want you to have children, we want you to do these things.

J. Aughenbaugh: We want a business to relocate to an economically distressed area. We give them a tax break.

N. Rodgers: We will give you tax breaks.

J. Aughenbaugh: John Roberts said, but the problem for the dissenters was that the Affordable Care Act did not say you got taxed. It said you would have to pay a fine if you didn't get health insurance. This was done to go ahead and protect some Democratic senators in conservative states because they didn't want to go ahead and have that hung on them that the Democratic Party was imposing a new tax.

N. Rodgers: The mason.

J. Aughenbaugh: Ben Nelson from Nebraska. For those listeners who don't know, Nebraska is a pretty red state and Ben Nelson was, I think the last Democrat chosen to represent Nebraska in the United States Senate. But nevertheless. The other provision, John Roberts then threw a bone to conservatives. He said that stripping the federal government's Medicaid funding from states who did not expand their Medicaid program, violated Congress' Commerce Clause authority or spending authority because that was too coercive. He gave a little bit to each classic John Roberts.

N. Rodgers: Nobody was happy.

J. Aughenbaugh: Nobody was happy. Then the next case, by the way, after the NFIB versus Sebelius, it's not like litigation concerning the Affordable Care Act ended As Nia's heard me say in a number of different fora, the Affordable Care Act was the litigation gift that just kept on giving.

N. Rodgers: It's kept a lot of Brooks Brothers suits.

J. Aughenbaugh: Ternty fifteen, King versus Burwell. The court upheld another provision, California versus Texas. The court held that states and individuals did not have standing to sue. Over and over again. Regulations in regards to covering contraception.

N. Rodgers: In 2017, the court reduced the fine to zero. They've been it's just come back and ack. Because the Republicans hate the Affordable Care Act, and they've been trying to kill it for a lot of years in a lot of ways.

J. Aughenbaugh: Also, in 2012, Arizona versus United States in a 5-3 decision, wait for it. Written by Justice Kennedy. The court held that an Arizona law regarding immigration unconstitutionally usurped the federal government's authority to regulate immigration laws and enforcement. I use this case to remind my students of a doctrine known as federal preemption. States and local governments are preempted from enacting their own laws when Congress has the authority in the US Constitution to do something. Immigration is the perfect example. Do states and local governments complain all the time that the federal government is not doing enough to address immigration? I used air quotes, broadly conceived. The answer is yes.

N. Rodgers: All states with borders complain about it.

J. Aughenbaugh: But because Congress has the authority in the Constitution and has passed immigration laws in the past, guess who is preempted from acting States and local governments.

N. Rodgers: They can't come up with something more strict than what the federal standard is.

J. Aughenbaugh: For those of you who are fans of the Voting Rights Act, our next case will probably upset you to no end. Shelby County versus Holder, decided in 2013, in a 5-4 decision delivered by Chief Justice John Roberts, the court held that Section five of the Voting Rights Act which listed the number of states who had to get pre clearance before they could make any voter changes was unconstitutional. The reason why Congress had not updated and made no attempt to update which states still needed to get pre clearance per the Voting Rights Act according to John Act.

N. Rodgers: For anybody wondering what those states were at the original, they were the southern states that had laws that were basically Jim Crow laws preventing African Americans from voting. I think Mississippi, Missouri, Alabama, Georgia, all of those states couldn't make changes without a couple either by the federal government.

J. Aughenbaugh: There were about 15 states, as many pointed out, pretty much all of the Deep South so from Virginia southward South.

N. Rodgers: Then you west to the Mississippi.

J. Aughenbaugh: Then you had a couple of border states like Oklahoma. But nevertheless, you're talking about 15 out of 50 states.

N. Rodgers: What Roberts was saying was if Congress had revisited this issue and said, no, those 15 are still the 15 that we need to keep an eye on then it would be one thing, but they had not had that discussion objection.

J. Aughenbaugh: That's right. Because all they did was the states were saying, Hey, we're not doing that stuff stuff anymore and why do we have to get pre clearance, and every other state doesn't?

N. Rodgers: It's unequal treatment. It's not great, by the way, but it's.

J. Aughenbaugh: By the way, three years earlier, in a different case, the Roberts Court basically in an opinion written by John Roberts, basically went ahead and told Congress

N. Rodgers: You should do this.

J. Aughenbaugh: You need to address this because it may not be at issue in this particular case. But it's going to be. He gave them a warning and they never responded.

N. Rodgers: Congress has a tendency to put their fingers in their ears and go when they don't want to hear something. You're who's going to come back because he's an incrementalist, as we discussed in the last episode. He is looking forward and saying, you are going to force us to do this if you don't do the things you need to do on your end.

J. Aughenbaugh: Burwell versus Hobby Lobby, which was a follow up Affordable Care Act case in a 5-4 decision delivered by Justice Alito, the court exempted closely held corporations from the Affordable Care Act contraception mandate on the basis of a law passed by the United States Congress during the Clinton administration, the Religious Freedom Restoration Act. The owners of Hobby Lobby, the Crafts store.

N. Rodgers: Highly Christian individuals. They're closed on Sundays. Hobby Lobby is closed on Sundays. It's like Chile. There's a corporate culture of Christian foundation.

J. Aughenbaugh: Their owners objected to Health and Human Services, issuing a regulation that required them to provide contraception coverage as part of their health insurance plan for their workers. Health and Human Services denied an exemption. Hobby Lobby said, this violates federal law. Not the free exercise clause of the First Amendment, but a federal law that puts the burden on the government to explain why a burden on a religious practice is acceptable and a narrow majority of the Supreme Court said, we agree with Hobby lobby.

N. Rodgers: My answer to that is for workers who are affected by that, you may have to find a different job. I feel a certain level of sympathy that everybody should be able to have their health insurance cover their medications. But there's also a part of me that says, I wouldn't expect to work at a Catholic school and have it covered, because I would know going in that I was going to be held even if I'm not Catholic, I was going to be held to Catholic doctrine. That's a complicated point for me. I have lots of feelings about that.

J. Aughenbaugh: By the way, listeners, the example that Nia just gave actually comes from a case of a society of nuns in Eastern Pennsylvania who have had to go to court multiple times, to get approval from federal appeals courts to not provide health insurance coverage to cover abortions, contraception, etc and their argument.

N. Rodgers: Which if you know Catholic doctrine, all of that is a Noga.

J. Aughenbaugh: They're we're not saying that other employers can't be forced to pay for this. We're just saying that the reason we exist is to go some religious working relation. The next one, for those of you who are rather beholden to your cell phones, Riley versus California, 2014, In a unanimous decision, the Supreme Court held that warrantless search and seizure of digital contents of cell phones during an arrest is unconstitutional.

N. Rodgers: I completely agree with that.

J. Aughenbaugh: Oh, so do I, particularly since pretty much every arrantless cause it's not hard a warrant.

N. Rodgers: It's not hard. You go to a judge and you say, we think that they have the phone a picture of the ate murderer in their cell phone. We need to look at the cell phone, and then the judge says and signs off on it, and then you have a warrant. Quit searching stuff when you don't have warrant so murder. My issues go way back.

J. Aughenbaugh: Listeners Mia is taking us back to the Warren court. To me, what's what's really bizarre about this, again, to your point, say you're the police and you arrest somebody who you claim is a drug dealer. You know how easy it is to go to a judge and get a search wart their phone.

N. Rodgers: I think they made phone calls in the process of selling drugs. I would like to look at the phone numbers. No problem. Here's my signature on a warrant. Come on. It's not that hard. It's like grand jury indictments. They will indict a ham sandwich. Just go through the process. Quit being lazy, 'cause what you're going to do is they're going to go to court and they're going to say they didn't have a warrant to search, and all that evidence is going to be thrown.

J. Aughenbaugh: Twenty fifteen a big one Obergefell versus Hodges. In a 54 decision delivered by once again, Justice Kennedy, the court held that the due process clause and the Equal Protection Clause of the 14th Amendment guarantee the right of same sex couples to marry. Invalidated, I think, at the time, 36 state laws or state constitutions that said that only opposite sex couples could get married.

N. Rodgers: I say because I believe that same sex couples have the right to have a bitter divorce, just like heterosexual couples have the right to have a bitter divorce. You know what I mean? Half those marriages are going to end in failure, just half of the het marriages are going to end in failure and why deny the people the right to go to court and yell at each other and their nuts of themselves?

J. Aughenbaugh: I've always been a fervent supporter of Dolly Parton's the country singers view.

J. Aughenbaugh: She was once asked, Miss Parton, do you think that gays and lesbians should have the right to marry? She goes, why should heterosexual couples be the only one to experience the pain, the pain of being married?

N. Rodgers: Art and I are being silly. What we both, I think, believe, is that it shouldn't matter who you marry. As long as there's two consenting adults involved in this. Yes. Knock yourselves out. If there is love, more love in the world, how can that possibly hurt us?

J. Aughenbaugh: Yes. If you don't want to get married, that's also fine.

N. Rodgers: That's fine, too. Yes. Nobody should make you feel bad either way. As long as you're both consulting adults, do your thing and be happy doing it.

J. Aughenbaugh: If you're not hurting anybody else, again, go with God.

N. Rodgers: One person's marriage does not invalidate another person marriage.

J. Aughenbaugh: I'm sorry.

N. Rodgers: The only way that you can invalidate somebody's marriage is if you also marry one of the parties involved. That's the only way you can invalidate somebody's marriage to be a bigamist in some way. Let it go, man. There's so much bigger things to worry about in the world than who loves who? Yes. Let people be people.

J. Aughenbaugh: Now, as a constitutional law scholar, I think Justice Kennedy's majority opinion in this case is an unmitigated mess.

N. Rodgers: He couldn't decide he couldn't pick an argument. He had both of them. Because he has two arguments, they're both weaker than if he had picked one and gone with it.

J. Aughenbaugh: My preference has always been the Equal Protection Clause, Why? Because if you're going to go ahead and confer a particular opportunity or benefit for one set of people, who are doing it in a consensual manner, then why not let others do it, too.

N. Rodgers: Exactly. That's what I would say, too. Equal protection is where I would go.

J. Aughenbaugh: Why try to parse the meaning of liberty, I'm sorry. That leads you down a rabbit hole that, nobody can get out.

N. Rodgers: Why are you doing that? I'm with you on that.

J. Aughenbaugh: The next case, I'm just going to briefly touch upon because eventually it just goes ahead and gets overturned by the court's ruling a few years later in Dobbs v. Jackson. But before Dobbs, which was decided in 2022, in 2016, Whole Women's Health versus Hellersted, the Supreme Court in a 5-3 decision written by Justice Breyer struck down restrictions the State of Texas had placed on abortion clinics as undue birds. What Texas and a number of states had been doing, Nia, was to make the availability of abortion more difficult. Trying to restrict a woman's right to choose. They just made the supply more difficult for those who might have had the demand. Does that make sense?

N. Rodgers: Yeah.

J. Aughenbaugh: Trump v. Hawaii, 5-4 decision written by Chief Justice John Roberts, 2018. The court overturned a lower federal court injunction against the Trump administration's travel ban. Basically, the travel ban was allowed to go into effect. What was interesting to note about Trump v. Hawaii was both the majority opinion and the dissenting opinion explicitly said that Korematsu v. United States should be overturned. This was the first time the Supreme Court, since Korematsu went ahead and said Korematsu was bad president.

N. Rodgers: They let say, should Hawaii go into effect.

J. Aughenbaugh: The reason why, according to Roberts was the United States Congress had given who what office, broad authority to decide who could enter the United States.

N. Rodgers: Which falls under this immigration ish type area, but they say Korematsu that was a bad choice on our part. You think?

J. Aughenbaugh: Yes.

N. Rodgers: Anyway.

J. Aughenbaugh: Carpenter versus United States, 2018, 54 decision. I hope you guys are picking up a theme here. Almost all of these cases are decided either by Kennedy or John Roberts. The court held in a 5-4 decision in Carpenter, that government acquisition of cell site records is a Fourth Amendment search and generally requires record a search warrant. Basically, what we're talking about here is the cops think that Nia, is a drug dealer.

N. Rodgers: They'll see where my phone pings. They call up AT&T and they say, AT&T Nia's phone bin?

J. Aughenbaugh: Yes.

N. Rodgers: They have to have a warrant. They can't just call up AT&T and say that AT&T hand over the location on my data, they have to say, well, when we have a warrant, we'll give you that.

J. Aughenbaugh: That's Because cops would use where her cell phone has been to go ahead and track where she more than likely was selling her drugs? Yes.

N. Rodgers: It protected the companies that are like, if you make us give you data without a warrant, nobody's going to want to hire us to be their cell phone carrier.

J. Aughenbaugh: Yes.

N. Rodgers: Because even people who aren't out here drug dealing, that would be me, that'd be Aggie. You don't want our data exposed to any other police questioning without us being aware that something's going on or without there being due process, anyway.

J. Aughenbaugh: I know these are a lot of cases. We're trying to go ahead and wrap it up.

N. Rodgers: Can we mention Tims B Indiana?

J. Aughenbaugh: Yes. This is a case where Nia and I are both very supportive of the Supreme Court's ruling. It was decided in 2019.

N. Rodgers: There was 9-0. Although technically, with me and Aughe it was 11-0

J. Aughenbaugh: 11-0. Yes, because, of course, the Supreme Court consulted us before they voted. We are joking listeners.

N. Rodgers: No kidding. The Supreme Court they don't know our names.

J. Aughenbaugh: The Supreme Court, one, I don't want them to know our names and two, they should never consult with Nia and I.

N. Rodgers: Consult us. Because they can consult Aughe, but I'm way too emotional.

J. Aughenbaugh: In a 9-0 decision, the Supreme Court held that the excessive fines clause of the eighth amendment does apply to state and local governments and therefore, the lower courts should use that clause to judge state and local governments imposition of civil forfeitures,

N. Rodgers: This they take your F1 50 because they think it might have been used in a crime, or it's used in some minor crime.

J. Aughenbaugh: Yes.

N. Rodgers: They take your $50,000 truck. Is that an excessive fine? For we know that you stole two bags of dirt from Lowe's and put them in the back of your truck. We're going to fine you by selling cars. Yes. Their trucks. What? That's way too much.

J. Aughenbaugh: Rucho v. Common Cause, 2019 in a five to four decision, wait for it, written by John Roberts, the court held that partisan gerrymandering claims are political questions and can only be addressed by what level of government, Nia? States. Effectively, this decision overturned Baker v. Carr from 1962, which we previously talked about with the Warren Court. If you got a problem with gerrymandering, the Supreme Court has basically said, don't come to the federal courts. You got to address it at your state level. Is there a big surprise that well, we got a whole bunch of redistricting and gerrymandering going on across the United States? Thank you, US Supreme Court. Bostock v. Clayton County, 2020. In a 6-3 decision written by Gorsuch, the court ruled that Title seven employment protections of the 1964 Civil Rights Act do extend to cover gender identity and sexual orientation. Yes.

N. Rodgers: They can't fire you from being a funeral director because you like to dress as a woman.

J. Aughenbaugh: If you're biologically a man.

N. Rodgers: Because you are choosing your gender identity.

J. Aughenbaugh: Yes.

N. Rodgers: They cannot fire you. That is the case, by the way.

J. Aughenbaugh: In the big shocker was Gorsuch wrote the majority opinion and John Roberts joined with Gorsuch and the Liberals. Conservatives were just driven.

N. Rodgers: Insane I did.

J. Aughenbaugh: My God, yes.

N. Rodgers: But then they got back in 2020 Espinoza.

J. Aughenbaugh: The next series of rulings, conservatives. They openly rejoice. Espinoza versus Montana Department of Revenue. In a 5-4 decision written by John Roberts, the court held that state based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against private religious schools. Why? This would violate the free exercise clause of the US Constitution.

N. Rodgers: That one's complicated for me. I have lots of feelings about that. But I see where the court's coming from. If say to people, you can send your kid to any school and they say, well, we're religious and we want to send our kid to Catholic school. Well, you can't do that.

J. Aughenbaugh: Or Nia, let's face it, Montana. There's not a lot of private school choice. The only private schools in certain parts of Montana may be religious. If you're going to create a program to create greater, if you will parent and student choice. But the only private schools are religious. Well, now you got a problem.

N. Rodgers: You're denying those people the ability to do that.

J. Aughenbaugh: Which was the purpose of creating the program. Again, it basically puts states in a Hobson's choice. Either you offer for all schools or none?

N. Rodgers: None.

J. Aughenbaugh: Brewin decided in 2022, New York State Rifle and Pistol Association versus Brewin in a 6-3 decision delivered by Justice Thomas, the court struck down a New York law requiring applicants for a concealed carry license to show proper cause. Ruling the regulation prevented law abiding citizens with ordinary self defense needs from exercising their Second Amendment rights. This is the case that came up with a new standard. Federal courts when judging state and for that matter, federal gun control laws need to go ahead and show that at the time the Second Amendment was written, what they're trying to regulate was an acceptable practice at that time, or historical analogies to the practice. Yes. New standard.

N. Rodgers: Again, mixed feelings. I have mixed feelings on that case. I have way mixed feelings about the next case.

J. Aughenbaugh: Dobbs v. Jackson, 2022. The court in a 6-3 decision held that a Mississippi state law that bans most abortions after the first 15 weeks of pregnancy was upheld. More narrowly, in a 5-4 decision, the court in the majority opinion written by Justice Alito, explicitly overturned Roe v. Wade in Planned Parenthood versus Casey, holding that the Federal Constitution does not confer a right to an abortion.

N. Rodgers: Well, no, he's correct that the Constitution does not confer a right to abortion, and Congress could have fixed that in the 50 years post Roe by saying, here's a law. Here's a law that governs all the states. But instead, what they did was do nothing, and where the court ended up with was, this is a state issue. The state has the right to because the state has the right for public health.

J. Aughenbaugh: Public health and safety safety.

N. Rodgers: That's states milieu. Some states were like, we will enshrine the right, some states were like, we will enshrine no right. You have no right. There's all these and then some states are trying to do travel bans and all crazy stuff, and all that stuff is working its way through the courts. This is not the end of this either.

J. Aughenbaugh: No.

N. Rodgers: There will be more cases that involve this, but I think by making it a state problem, all they did was kick this can down the road.

J. Aughenbaugh: Oh, sure, no doubt about it.

N. Rodgers: Because they're going to have to visit it again. They're going to have to visit travel bans. They're going to have to visit Telehealth. They're going to have to visit all stuff like that, because it doesn't work that you live in a state and your only healthcare is in that state, it just doesn't. People travel. Things get sent in the mail.

J. Aughenbaugh: Well, that requires states to honor contracts and obligations in other states. You're going to have battle between those states who ban abortion versus those states who allow abortion. We got a few more cases, and I know this episode's gotten really long, and we apologize, but again, whether John Roberts wants the court to be this active in American life, sorry it ain't happening, dude. Also 2022, Kennedy versus Bremerton School District, 6-3 decision delivered by Justice Gorsuch. The Court ruled that the government, while attempting to uphold the establishment clause, may not suppress an individual, in this case, a public high school football coach from engaging in personal religious observance because to do so would violate the free speech and the free exercise clauses of the First Amendment. In effect, the Supreme Court overruled its ruling in Lemon versus Kurtzman, which was a 51-year-old precedent known as the Lemon test. The Court finally did away with the Lemon test.

N. Rodgers: That question here was, was his position forcing students on the football team to feel like they had to also kneel in prayer because he knelt in prayer both before the game and after the game. That did they feel like they had no choice? The answer that they said was, it doesn't, that's not what's at question here. What's at question here is his right to do it, which is yes, he has the right to kneel in prayers so long as he doesn't attempt to force the students on the team to do it, as well.

J. Aughenbaugh: The school district really was in a bind because they had no evidence he ever forced any of the players to do it. I understood what the school district was attempting to do. They were trying to comply with the establishment clause. This is where the establishment clause and the free exercise clause come in conflict. Moore versus Harper, in a decision that I know Nia really likes, in a 6-3 decision, in an opinion written by Roberts, the Court held that the elections clause of the US Constitution does not give state legislatures sole power over elections. This is the case that rejected the independent state legislature theory, which basically would allow state legislatures to exclude state courts from ruling on voting and election matters in their states. This all arose in Nia's home state of North Carolina, where the North Carolina legislature was getting upset with North Carolina courts that kept on overturning changes they were making to voting in elections in the state of North Carolina. The North Carolina legislature was just like, no, the courts can't tell us what to do, because according to the election clause of the US Constitution, we have sole authority. John Roberts writing for the majority said, no, you don't because state constitutions mandate checks and balances.

N. Rodgers: What I fear will come out of this will be a case where the feds will say we can control the elections and states because this door has been opened. We'll see if that happens. Then the students for fair admissions. That was a series of cases, not just one case, but several cases that talked about whether it violates the Equal Protection Clause.

J. Aughenbaugh: There was two cases in 2023 brought by an interest group, students for Fair Admissions. One was against Harvard, and the other one was against the University of North Carolina. In both, the Court ruled against the universities, holding that the university's affirmative action programs violated the Equal Protection Clause of the 14th Amendment. This, in effect, overturned a 20 year precedent.

N. Rodgers: How admissions have been done.

J. Aughenbaugh: Admissions have been done. 2024 Trump versus Anderson, in a unanimous 9-0 ruling, the Court held that states could not determine the eligibility for federal office, including the presidency under Section 3 of the 14th Amendment. For our listeners, this was the case where Colorado and a number of states tried to use Section 3 of the 14th Amendment to keep Donald Trump off of the presidential ballot in their states because they claimed his remarks prior to or in early January 2021, were akin to an insurrection.

N. Rodgers: Whether that's true or not, states don't have the right to keep somebody off the ballot. If they've met state requirements for being on the ballot and every state has requirements. You have to have a certain number of signatures, you have to perform a certain wellness in the primaries or whatever. There's all these things and states have set up, but once you meet that bar, even if you're the giantest chucklehead that ever lived, you get to be on the ballot, and the people get to decide whether you're a super giant chucklehead they don't want to vote for or whether you're like every other chucklehead, and they just pick you out of a crowd. I actually am uncomfortable that I agreed, but I agree. There's a park meet that's like, I'd like you to keep chuckleheads off the ballot. Then I'm like, no, if they make the ballot, then they make the ballot, and it's up to the people to decide. That's the whole point of democracy.

J. Aughenbaugh: We get two more cases. Note, Nia and I made a conscious decision to end in 2024. The reason why is all of the Supreme Court rulings in 2025 last year, in the early part of this year, we have either been covering in the news, or with our Summer of SCOTUS.

N. Rodgers: We will cover with Summer of SCOTUS this year because it's the current term.

J. Aughenbaugh: Current term.

N. Rodgers: We're not talking about the current term. We're ending up the last term.

J. Aughenbaugh: We already covered the '24/'25 term we're going to finish with 2024, and we have two more cases, Loper Bright, which I referenced in the last episode. This was the 6-3 decision, Conservatives versus Liberals. John Roberts wrote the majority opinion, where the Court overturned the Chevron case. This is the administrative law case where for 40 years, the Supreme Court said, federal courts should defer to agency interpretations of vague and ambiguous laws passed by Congress.

N. Rodgers: That when Congress screws up, let the agencies decide.

J. Aughenbaugh: Yes.

N. Rodgers: This decision said no.

J. Aughenbaugh: No. This was years in the making.

N. Rodgers: Years of warnings from the Court, not just John Roberts previous Courts saying Congress needs to get better at writing laws.

J. Aughenbaugh: Laws, yes.

N. Rodgers: We being sedang vague when you write stuff down.

J. Aughenbaugh: Particularly when you're going to give an agency significant authority. Come on now.

N. Rodgers: If you're going to give them a bunch of power, you should make clear exactly what you're giving them.

J. Aughenbaugh: Then the last case, again, a lot of these are just huge, Trump versus the United States 2024. In a 6-3 decision, the Supreme Court held that the president has absolute immunity for official actions taking under his core constitutional powers. Presumptive immunity for other official acts and no immunity for unofficial acts.

N. Rodgers: Donald Trump's infamous, I could step out here on seventh Street and shoot somebody and I would still get elected, you might get elected, but you won't have immunity.

J. Aughenbaugh: Yes.

N. Rodgers: Because murder is still murder. There is no constitutional right for the president to murder people. That's not in there, but what he can do is the stuff that's like pardons. You can hate his pardons, and believe me, there are some that I have hated with the power of 1,000 burning suns, but it is specifically given to him in the Constitution.

J. Aughenbaugh: For listeners who don't remember, this case arose because of the special prosecutor appointed by Merrick Garland, Jack Smith. Jack Smith brought charges in two different jurisdictions against former President Trump, because these cases arose during the Biden administration. Trump argued, you can't sue me. I have immunity for actions that I took when I was president. What the Supreme Court ended up saying was, there are, in effect, three levels of presidential immunity. One, if a president is doing something explicitly covered in the US Constitution, particularly Article 2, he's got absolute immunity. He's got presumptive immunity for other official actions. For instance, if he's speaking as both president but also the head of the Republican Party or the Democratic Party, he would have presumptive immunity. What you don't have immunity for is unofficial actions. Basically that just gutted Jack Smith's prosecution of Trump, particularly for the charges related to Trump's comments in January of 2021, when he was trying to convince the United States Congress to not recognize the electoral college votes of key swing states from the 2020 presidential election. Wow, that was a mouthful.

N. Rodgers: Complicated. We will see as you will hear in the SCOTUS wrap up, Donald Trump, he is the legal litigious person who keeps on giving. He just keeps lots of lawyers in business like Rudy Giuliani, which is fascinating. Hey, I'm just saying he's been cut loose.

J. Aughenbaugh: Through some serious shade.

N. Rodgers: I am as the universe has made me.

J. Aughenbaugh: Well, thank you, Nia. Listeners, we sincerely hope you enjoyed this series that broke down the Supreme Court via eras. It's been, for me, not a big surprise, a huge joy to be able to record these episodes. We hope that you've enjoyed them. You've learned a little bit, and you get some appreciation for the evolution of the Supreme Court as an institution.

N. Rodgers: The talents and lack thereof of the various chiefs. Some of them have been extraordinarily mediocre. Some of them have been truly brilliant. It's like most legal minds, it's a nice mix. Thank you, Aughie. This has been really good for me to learn about the different ways that they managed the court. It's fascinating for me to see the changes from one to another.

J. Aughenbaugh: This has been a pleasure for me, and I hope listeners, you really enjoyed it. Thanks.

N. Rodgers: Thanks for sticking with us here at the end with a long episode, but it was worth it.

J. Aughenbaugh: Take care, Nia.

N. Rodgers: Thank you, Aughie.

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