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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. How are you?
J. Aughenbaugh: Good. Part of the reason why I'm good is, we get to talk about the end of the Supreme Court term.
N. Rodgers: We get to do the math.
J. Aughenbaugh: We get to do the math. We get to go ahead and think about funny stuff.
N. Rodgers: Opine.
J. Aughenbaugh: Yeah, opine and interesting observations. All those things that we academic types.
N. Rodgers: Enjoy doing.
J. Aughenbaugh: Yes, we do, yes.
N. Rodgers: Let's start with the basics.
J. Aughenbaugh: Yes.
N. Rodgers: How many cases?
J. Aughenbaugh: For the 2022, '23 Supreme Court term they had issued decisions in 58 cases.
N. Rodgers: Okay.
J. Aughenbaugh: Now to put this in.
N. Rodgers: Is that bunches and bunches?
J. Aughenbaugh: No, my goodness. No.
N. Rodgers: I see how I set you up.
J. Aughenbaugh: You sent me up so much and I couldn't even contain my laughter. Once again, this is the fewest number of decided cases coming from the Supreme Court in a term since the Civil War era.
N. Rodgers: Last year was the fewest. So this is the fewer fewest?
J. Aughenbaugh: Yes. Yeah.
N. Rodgers: I mean, they keep going this way and in ten years they won't be doing any cases at all.
J. Aughenbaugh: Which a number of judicial politics scholars have actually joked about.
N. Rodgers: What do we do when we get to zero?
J. Aughenbaugh: When is the point that the United States Congress says, while they're not deciding any cases. Why do they need a budget?
N. Rodgers: Does that include the shadow docket?
J. Aughenbaugh: No. For listeners if you don't know what the shadow docket is, Nia and I discussed this in a previous podcast episode. The shadow docket is the docket of cases where the Supreme Court decides a case, but without written briefs and oral arguments. It generated some controversy in the last roughly three to five years because the court was designing some rather impactful cases with the shadow docket. The cases that we're talking about is there's one whole category of shadow docket cases that are appeals of death sentences given to those who are convicted of crime who argue that their convictions or their trials violated the Constitution.
N. Rodgers: Right. Or that the death penalty itself violates the Constitution.
J. Aughenbaugh: But in those cases, those are usually heard not on the shadow docket.
N. Rodgers: Okay.
J. Aughenbaugh: The Shadow docket death penalty cases are usually those as portrayed in the movies. Those last-minute appeals.
N. Rodgers: I want to stay evidence execute. The phone to ring
J. Aughenbaugh: Yes. Etc. But the other ones are the appeals to lower federal court injunctions that had the effect of basically stopping either what the government has done throughout the entire country. Or a particular section of the country. The government is arguing, hey, we have the authority to do this. And some lower federal court says, no, you doubt. The government appeals. The Supreme Court well then," hear the case." But they don't hear it in the traditional process.
N. Rodgers: Okay.
J. Aughenbaugh: But even the shadow docket shrunk this year. Less than 30 shadow docket decisions. A decrease of over 50% compared to just last term. So even the shadow docket shrunk.
N. Rodgers: Wow. That's a lot less. I mean, a lot fewer cases. Wow. Because you're talking from 30-60 or from 60-30?
J. Aughenbaugh: Yeah.
N. Rodgers: That's quite a drop.
J. Aughenbaugh: Yeah. Quite a drop. Yes.
N. Rodgers: How were the decisions in terms of.
J. Aughenbaugh: All the votes? Oh, yes.
N. Rodgers: Well, I like to think of it the scores.
J. Aughenbaugh: God bless you. I mean and I got to omit the follower of sports at all levels. Just loves this because as a kid, I couldn't wait to get the afternoon newspaper to see the scores. Yes see the scores.
N. Rodgers: For the morning or the night games?
J. Aughenbaugh: Yeah. Yes.
N. Rodgers: That's the first thing you grab out of the papers though. Who won the baseball game between two teams or whatever. That was back before your phone would just tell you.
J. Aughenbaugh: The infamous West Coast Games.
N. Rodgers: Right. That you went to bed before they were done.
J. Aughenbaugh: First thing when you wake up and you're like.
N. Rodgers: Just like election results.
J. Aughenbaugh: Yes.
N. Rodgers: When I was a kid election results California never came in before I went to bed.
J. Aughenbaugh: Yeah. I never knew how or why you voted.
N. Rodgers: Why Alaska, California, history to me. Until you wake up the next morning and like who did what?
J. Aughenbaugh: Yeah. The scores, contrary to the popular narrative in the media and if I dare say, among politicians, nearly half of all the Supreme Court cases this term were decided nine to zero or eight to one.
N. Rodgers: With Thomas being the dissent.
J. Aughenbaugh: Or Alito.
N. Rodgers: Okay.
J. Aughenbaugh: Yeah. But usually Thomas, we will get to the most sense. Yes.
N. Rodgers: Crabbiest justices.
J. Aughenbaugh: Yeah.
N. Rodgers: Six threes. I think you said last time that there were five, but they're actually 11.
J. Aughenbaugh: Yeah, because not all 6-3 decisions by the court were on the ideological spectrum.
N. Rodgers: So the five were on the ideological spectrum, and the six were people just going haywire and.
J. Aughenbaugh: Yes, voting in way.
N. Rodgers: Getting into bed with random people that you would not get along .
J. Aughenbaugh: Where constitutional law scholars and.
N. Rodgers: Like really those two really?
J. Aughenbaugh: Like how did that happen?
N. Rodgers: Five we could point to and say that was clearly an ideological conservative versus liberal. But six of them were a mishmash.
J. Aughenbaugh: Yes. By the way, folks, or listeners, there were no five to four decisions this term.
N. Rodgers: Nothing close?
J. Aughenbaugh: None.
N. Rodgers: That's a little weird isn't it?
J. Aughenbaugh: It's extremely weird. Again, it challenges the accepted wisdom. Because you know, typically what the media focuses on are the five to four. If one vote changed.
N. Rodgers: But also going back to the six three's, the media would have you believe it all 11 of those were on ideological lines?
J. Aughenbaugh: Yes.
N. Rodgers: You are saying that less than half of them?
J. Aughenbaugh: Yes. Less than half.
N. Rodgers: For ideological lines?
J. Aughenbaugh: Yes.
N. Rodgers: That the justices are not caricatures of liberal justice.
J. Aughenbaugh: [inaudible] of Justice. Yes.
N. Rodgers: They are people with dimensions?
J. Aughenbaugh: Yes.
N. Rodgers: Isn't that what the kids always say I have to mention.
J. Aughenbaugh: Look at you listening to the younger folks. Well done.
N. Rodgers: But they are multi-dimensional people who will say there's a legitimate argument to be heard on a different viewpoint that I would necessarily to have.
J. Aughenbaugh: The method that they used to look at the law or the look at the Constitution may lead them to be in agreement with somebody else who comes from a different perspective. But they achieve the same outcome, right?
N. Rodgers: Right.
J. Aughenbaugh: To give you an example we talked previously that the two Justices on the current Supreme Court who are the most adamantly opposed to qualified immunity for government officials are Sonia Sotomayor, and Clarence Thomas. On this current court, as I will discuss in just a few moments those two once again, are on the ideological extremes. She's considered the most liberal and she
demonstrated at once again this term. He's considered the most conservative. He demonstrated it once again this term. But on that particular issue, those two are vehemently opposed to qualified immunity, but for different reasons.
N. Rodgers: Right.
J. Aughenbaugh: Okay.
N. Rodgers: Which means that you can connect with people who are on very different ideological spectrums to yourself. Can I ask a question?
J. Aughenbaugh: Sure. Of course.
N. Rodgers: You know how you were saying 6-3 in ideological lines and incentives. Something you mentioned to me and I can't remember whether you mentioned on recording or off recording because we talk a lot. Our friend Justice Gorsuch ruled in 11 cases since he's been on the Court involving Native American issues. Every single one of them, he has consistently ruled with the Native American side of the case, is that correct?
J. Aughenbaugh: That is correct.
N. Rodgers: But Justice Gorsuch himself is not Native American. Is that also correct?
J. Aughenbaugh: He is not Native American.
N. Rodgers: He's just highly sympathetic to the Native American arguments that have been in the courts.
J. Aughenbaugh: Scholars have been trying to figure out what is the reason for it. What is the foundation for his obvious, if you will, sympathy, understanding, and empathy of Native American issues.
N. Rodgers: He's the only one from the West that may have something to do with it.
J. Aughenbaugh: He may have something to do with it because before he got on the Supreme Court, he started going the federal appeals court for the Tenth Circuit, and that's in Colorado. That's where he heard cases was out in Colorado. Again, if you plot that on an ideological spectrum, as we political scientists do, usually support for Native Americans and Native American issues is coded as liberal.
N. Rodgers: But in some of those cases it wasn't.
J. Aughenbaugh: No.
N. Rodgers: Sorry. Thank you because it's exactly where I was going, which was his overriding concern is not his conservative nature.
J. Aughenbaugh: Yeah.
N. Rodgers: It is his empathy with the defendants or, excuse me, with the Native American side of whichever case.
J. Aughenbaugh: Yeah.
N. Rodgers: Which I think is also fascinating.
J. Aughenbaugh: In likewise, somebody like Clarence Thomas is such a big believer that the federal government only has limited enumerated powers, that he will rule against the federal government, whether it's led by Republican presidents or Democratic presidents. If it can benefit states.
N. Rodgers: But state's rights comes first.
J. Aughenbaugh: Comes first.
N. Rodgers: Whenever he can make the argument.
J. Aughenbaugh: Yeah, and I remind my students.
N. Rodgers: Side I suspect from questions of liberal versus conservative.
J. Aughenbaugh: Yes.
N. Rodgers: The question is, is this states right?
J. Aughenbaugh: Yeah.
N. Rodgers: And if it is, then the federal government should not be messing in it.
J. Aughenbaugh: So for instance, in the case of [inaudible]
N. Rodgers: So there are weird consistent in whatever their ideological thing is.
J. Aughenbaugh: Yes or what motivates them.
N. Rodgers: Thank you. That's a better way to put it?
J. Aughenbaugh: Because somebody like Elena Kagan. Elena Kagan in many ways has now assumed the position that recently retired Justice Stephen Breyer had, which was if there is one justice on the current Supreme Court who's willing to defer to executive branch expertise, it's Kagan.
N. Rodgers: She was a member of the executive branch.
J. Aughenbaugh: She was a member of the executive branch. Let's not forget at one point in time she was dean of Harvard Law School.
N. Rodgers: You are partly what your history makes you.
J. Aughenbaugh: She was the chief bureaucrat of the most prominent or one of the most prominent law schools, not only in the United States, but in the entire world.
N. Rodgers: Who is in the majority the most?
J. Aughenbaugh: The justices in the majority the most? Brett Kavanaugh, 96% of the time, followed closely by the Chief Justice John Roberts. Yes.
N. Rodgers: So Kavanaugh runs with the herd?
J. Aughenbaugh: Yes.
N. Rodgers: Who runs least with the herd?
J. Aughenbaugh: Clarence Thomas, this probably should not shock you Nia because as you have noted, he is.
N. Rodgers: Is the curmudgeon.
J. Aughenbaugh: Yes, as he is. By the way, I wanted to note that liberal justices were in the dissent by themselves and only five cases. That is a significant shrinkage compared to the 14 in the previous Supreme Court term. Once again, that's evidence that the justices intermingle. Two the liberal justices might be in the dissent, one might not be okay.
N. Rodgers: I see.
J. Aughenbaugh: Now, let's talk about the justices who voted most similarly and least similarly. The ones who voted the same the most, Roberts and Kavanaugh, 95%, Sotomayor and Kagan, 95%, Sotomayor and Brown Jackson, nearly 95% of the time. You want to guess who were different the most?
N. Rodgers: Well, it's got to be Thomas and somebody.
J. Aughenbaugh: No.
N. Rodgers: No?
J. Aughenbaugh: It's Alito and Kagan, 60%.
N. Rodgers: That's funny.
J. Aughenbaugh: Alito and Sotomayor, 62%.
N. Rodgers: So he just [inaudible] Lee then Thomas.
J. Aughenbaugh: He just doesn't express it as much with his dissents.
N. Rodgers: I see.
J. Aughenbaugh: Yes. Most conservative, and I check this with a number of other scholars late last night. Clarence Thomas. Well over 90% of the time.
N. Rodgers: How many course?
J. Aughenbaugh: And most liberal, Sonia Sotomayor, well over 90%.
N. Rodgers: That makes sense.
J. Aughenbaugh: Yes. The median vote, and this again should give you a pretty good reflection of how the court has grown more conservative over the last, shall we say, 4-5 years. Median vote, John Roberts, followed closely by Kavanaugh.
N. Rodgers: What do you mean by median vote?
J. Aughenbaugh: So if you put them on a spectrum, and you went ahead and said, who was most liberal and who is most conservative, and which justice is in the middle.
N. Rodgers: It's mostly Roberts.
J. Aughenbaugh: Yeah. It's mostly Roberts.
N. Rodgers: No, super surprising as the chief.
J. Aughenbaugh: Yeah.
N. Rodgers: Part of that is political.
J. Aughenbaugh: Yes.
N. Rodgers: Is him trying to get everybody to get on board.
J. Aughenbaugh: Yes. Cobbled together majorities. Again, this is not surprising that those two are closely in the middle. They vote the same the most.
N. Rodgers: And they would be in the middle of the most.
J. Aughenbaugh: Yeah.
N. Rodgers: If Roberts is leading Kavanaugh to the middle.
J. Aughenbaugh: Yes.
N. Rodgers: Then Kavanaugh is going to stay in the middle or Kavanaugh may have been in the middle ist. We don't know.
J. Aughenbaugh: We don't know.
N. Rodgers: As a newish justice, I suspect that he also, and he had such a controversial.
J. Aughenbaugh: Yeah. Typically justices who've had controversial confirmation hearings respond one or two ways. They either become, they desire and they take steps to become so part of the collective that they don't generate any additional controversy.
N. Rodgers: I forgot that guy was on the court.
J. Aughenbaugh: Yeah.
N. Rodgers: That kind of thing.
J. Aughenbaugh: Or you do what Clarence Thomas has done.
N. Rodgers: Go all the way to the other end. Kavanaugh has done the nothingness see, move along. It's all fine. He's not making more controversies.
J. Aughenbaugh: I'm just a member of the majority, and remember, he was in the majority the most this past term.
N. Rodgers: Then you've got Justice Thomas who's like, I will stand out here and shout in my fields by myself and you guys just have to deal.
J. Aughenbaugh: And speaking of which the justice who wrote the most dissents this term, Clarence Thomas.
N. Rodgers: That's not surprising. How many?
J. Aughenbaugh: Nine out of 58.
N. Rodgers: Really. That's all?
J. Aughenbaugh: Yeah.
N. Rodgers: Sorry. It feels like every time I turn around justice Thomas's dissenting about something.
J. Aughenbaugh: Well, Nia, you could also be in the dissent, but join somebody else's descent.
N. Rodgers: That's true. You're talking about ones he wrote by himself.
J. Aughenbaugh: These are the opinions. The most dissenting opinions were written by Clarence Thomas. The most concurrencies, Justice Gorsuch.
N. Rodgers: I agree with our answer but not how we got there.
J. Aughenbaugh: Yes, because Gorsuch is a big fan. He's a textualist. So he will go ahead and hone in on how the words were interpreted. He's also a big fan of the role of Justice ability known as strict necessity. He really dislikes when the court answers constitutional questions when they could settle a case by answering legal or statutory questions. We saw this, for instance, in the affirmative action cases, UNC in Harvard. He voted with the majority, but then he wrote a separate concurrence to explain how both of those university's affirmative action programs could have been declared illegal, because they violated the 1964 Civil Rights Act.
N. Rodgers: And therefore not to have the discussion about whether they are constitutional.
J. Aughenbaugh: That's right. Yeah.
N. Rodgers: And side note for anybody who doesn't know the difference. Illegal violates the United States code.
J. Aughenbaugh: Yes.
N. Rodgers: Unconstitutional is found to not be in line with what the constitution says, so two different things.
J. Aughenbaugh: And the role of justice ability role of strict necessity is designed to focus on legal issues, because if the court has misinterpreted how a law should be read or understood, that gives the political branches an opportunity to do what to the law, Nia?
N. Rodgers: Fix it.
J. Aughenbaugh: Fix it. But if you want to fix the constitution, what do you got to do?
N. Rodgers: You got to amend it.
J. Aughenbaugh: You got to amend it.
N. Rodgers: That's a whole more dramatic process.
J. Aughenbaugh: Yeah.
N. Rodgers: What's the one that just, it was sunsetted.
J. Aughenbaugh: Oh, WOTUS.
N. Rodgers: No, it was sunsetted with-
J. Aughenbaugh: Oh, the ERA amendment.
N. Rodgers: ERA. Thank you. Yeah, Virginia finally signed, and it would have been fine except it was sunsetted 30 years ago or whatever it is.
J. Aughenbaugh: Yeah, according to many constitutional law scholars, now if we want an equal rights amendment, we're going to have to go through that process.
N. Rodgers: Start all over.
J. Aughenbaugh: The majority opinions were pretty evenly divided.
N. Rodgers: And that's J. Rob, right? His team, his people.
J. Aughenbaugh: Yes. Because remember, he was in the majority.
N. Rodgers: Technically, he punishes people, one could argue.
J. Aughenbaugh: Okay. But he was in the majority 95% of the time. Which means, and this is one of the few perks that comes with being chief justice. If you're in the majority as the chief justice, you get to assign the majority opinion, which meant that 95% of the time, he got to assign the majority opinion, and J. Rob spreads the love. Because the most majority opinions, seven each were written by Roberts, Kavanaugh, and Gorsuch. The least number of majority opinions was Alito at five. So think about it. Pretty much every justice wrote either seven, six, or five majority opinions. Nobody at their conference table can go ahead and say, you're playing favorites. No.
N. Rodgers: So let me ask you a question about something you just said?
J. Aughenbaugh: Yeah.
N. Rodgers: If J. Rob is not in the majority.
J. Aughenbaugh: Yes.
N. Rodgers: Well, let's say that he is in the minority. Does he get to decide who writes the majority opinion, or do they fight it out amongst themselves?
J. Aughenbaugh: No. The way the Supreme Court's internal rules operate, if the Chief Justice is not in the majority, then the senior most associate justice in the majority gets to assign the majority opinion.
N. Rodgers: I did not understand that. I thought he assigned to all of them.
J. Aughenbaugh: No, no, no.
N. Rodgers: Okay.
J. Aughenbaugh: So on the current Supreme Court, and when I say senior, I'm not talking about age, I'm talking about seniority on the court. The current order would be Roberts first.
N. Rodgers: Because he's the Chief Justice.
J. Aughenbaugh: Then Thomas. Okay?
N. Rodgers: Okay.
J. Aughenbaugh: Because, remember, he was appointed by Bush 41. Then it goes to Alito. Bush 43. Then Sotomayor and Kagan, appointed by Obama. Then it would be Gorsuch, Kavanaugh, Coney Barrett, and then Brown Jackson. So let's face it, neither Brown Jackson or Coney Barrett should expect to be assigning a majority opinion.
N. Rodgers: Not for a long time.
J. Aughenbaugh: Yeah. Let's face it. After Sotomayor and Kagan, I mean, Gorsuch, Kavanaugh, Coney, Barrett, and Brown Jackson, you all ain't assigning majority opinions anytime soon in your tenure on the court. I hate to say it, but that ain't happening.
N. Rodgers: Who asks the most questions?
J. Aughenbaugh: Okay, so during oral arguments-
N. Rodgers: Wait.
J. Aughenbaugh: Okay.
N. Rodgers: Can we side note here that until two years ago, Justice Thomas had never asked a question ever on the entire?
J. Aughenbaugh: No, not ever. But he had gone-
N. Rodgers: But there were very few.
J. Aughenbaugh: Very few.
N. Rodgers: Right. He's very circumspect about asking questions or [inaudible].
J. Aughenbaugh: He went over 10 years. He had a 10-year period where he never asked a question during oral arguments. In fact, it only got broken, the first oral argument after Scalia died. You actually asked a question after Scalia died. But even then, he hardly ever asked questions. Where it changed was when the pandemic hit, Nia. Because when the pandemic hit, the court went to remote teleconferencing oral arguments, and he really liked that. Really liked it.
N. Rodgers: Well. It seems to me he doesn't have to compete. They took turns.
J. Aughenbaugh: They took turns, and they've continued that process since they've returned in person.
N. Rodgers: Okay.
J. Aughenbaugh: They've continued that process to where they go in order.
N. Rodgers: Didn't they use to just talk over each other?
J. Aughenbaugh: They talked over each other all the time.
N. Rodgers: And so part of it was that he just doesn't like to talk over.
J. Aughenbaugh: No, he is very self-conscious about his dialect. If you read his memoir, he mentions the fact that he has always been very self-conscious about his rural, I think, Southern Georgia dialect.
N. Rodgers: Well, and also the optics of a black man having to yell over other people.
J. Aughenbaugh: People. Yeah.
N. Rodgers: He doesn't want to engage in that either. I can see that angry black man yelling narrative coming out of crack people who would want to make it out of something. Because it used to be Sotomayor. She would ask 10,000 questions. You would stand up, and say, good afternoon, justices, and she would go, "Really is it afternoon." You're like, whoa, all right.
J. Aughenbaugh: One of the pleasures of following the court, like I have for most of my career, is that, there was a period of time when the Supreme Court had Scalia, Kagan, and Sotomayor.
N. Rodgers: Who just fought to ask questions.
J. Aughenbaugh: Those three were all the time talking. They were cutting off attorneys. They were cutting off colleagues. And again, from somebody who was born and raised in a northeast ethnic family, where we talked that way at family meals. We talk amongst each other that way. I was just like, Oh, this is so comfortable. This takes me back to my youth. But interestingly enough, on the current court, in terms of the number of questions asked, but also the length of time during oral arguments occupied by their questions, and it wasn't even close, Nia. There's like a 30% gap between this justice, and the next most talkative justice. Now you've seen my research notes. Truth be told, were you surprised who it was?
N. Rodgers: Yes.
J. Aughenbaugh: Okay. And who was it?
N. Rodgers: It is Justice Brown Jackson.
J. Aughenbaugh: Yes.
N. Rodgers: And I was surprised by that, because, usually, the freshman Justice sits quietly, and watches the goings-on. Because they're trying to figure out the politics, they're trying to figure out the social.
J. Aughenbaugh: Yeah, the behavioral norms.
N. Rodgers: And the bar in front of the Supreme Court is different than any other bar. And she just jumped in. She has lots and lots of questions.
J. Aughenbaugh: Oh my goodness, yes.
N. Rodgers: I think that's awesome. Maybe she will set a different tone. Because I'm sure she was thinking, I have so many questions about how this works, and why you people are doing it this way. I don't know. Good for her.
J. Aughenbaugh: And again, as somebody who teaches college classes, I love it when I have students who ask questions.
N. Rodgers: It's why you do the job.
J. Aughenbaugh: Yeah. For me, the best part is where I have to go ahead, and tell the collective I'm sorry, guys. I'm going to have to cut off questions. We have to get to some material.
N. Rodgers: Those spark the most interesting conversations.
J. Aughenbaugh: Yeah, right?
N. Rodgers: Hey, so I asked you if you would tell me the ages of the justices.
J. Aughenbaugh: Yes.
N. Rodgers: And you ever so kindly accommodated me on that.
J. Aughenbaugh: Yeah, going into this current term, the again, 2022, '23 Supreme Court term. And I might be slightly off by half a year because these were the ages of when the term began.
N. Rodgers: Right. So people may have had birthdays?
J. Aughenbaugh: Yeah, they may have had birthdays, but when this term-
N. Rodgers: They didn't get younger. They didn't get younger, but they may be a year older.
J. Aughenbaugh: Yeah. But going in order of oldest to youngest, the oldest Supreme Court Justice is Clarence Thomas. He was 74 when the term began. Followed closely by Justice Sam Alito, 72. Then we have a couple of justices who are 68. Sonia Sotomayor, and Chief Justice John Roberts. Then there's a six-year gap. Justice Elena Kagan is 62 or was 62 when the term began. Then there's another five-year gap. Justice Kavanaugh is 57, Gorsuch, 55, Brown Jackson, 52. And our youngest justice is Justice Coney Barrett at 51.
N. Rodgers: So am I correct that five of these people are retirement age or older, meaning 62 or older?
J. Aughenbaugh: In terms of Social Security, yes.
N. Rodgers: I'm just putting out there that there needs to be a limit on service, the Supreme Court. I don't know exactly, but I've been thinking a lot about this in terms of how long people stay on the court, how long they served. I loved Ruth Bader Ginsburg. She stayed too long on the court. There needs to be a thanks, you're 70, you're 75, and we appreciate your service, but it's time for you to retire. I say that because there's no test we can give that would legitimately figure out whose mental acuity has slipped and who hasn't and all that other stuff. The way you can with driver's license. When olds go in and I can speak as an old. When we go in to be tested, they test your eyes, they test your reflexes. They will actually do those things. We don't want to make it like that, but maybe if we just said the cutoff age, you can't be younger than 35 to serve on the court and you can't be older than 75. And by the way, I feel that way about the presidency as well.
J. Aughenbaugh: I mean, in regards to federal judges, I always thought there was merit to term limits.
N. Rodgers: Or that, I would take term limits.
J. Aughenbaugh: Particularly because this is the unelected branch of government. I never understood term limits in regards to elected positions.
N. Rodgers: No. Because that's called voting.
J. Aughenbaugh: Yeah, That's called voting. But we don't get to vote on the federal judges. But I'm just going to use Clarence Thomas. I'm not picking on him. But let's face it, Clarence Thomas was appointed by Bush 41.
N. Rodgers: How has the world changed since then?
J. Aughenbaugh: So I believe that was what? 1989, 90. Let's just say it was 1990. I mean, I could look it up, but for our purposes, 1990. He's been on the court already 33 years theoretically. Because unless he got impeached, there's no other effective way to get a federal judge off the bench unless they retire or die. He could stay on for, let's say 10 more years.
N. Rodgers: It was '91 by the way.
J. Aughenbaugh: Oh, okay. It was '91. So he's been on the court 32 years. He serves another 10 years. Again, with medical science, he theoretically easily could. I mean, he is a member of the Federal Government. He gets some of the best health care in the world.
N. Rodgers: And he appears to be in relatively decent shape. He goes on vacation to outdoor activities.
J. Aughenbaugh: Again, you want them old enough so that they can actually bring a wealth of experience and knowledge to the job. On the other hand, at some point in time, you got to go ahead and say, you've done your service. We thank you for your service. And I'm not saying that we have to be, as in delicate as here's your gold watch now leave. You know the old stereotype of how corporate America used to treat longstanding employees. But at the same time, just as Bader Ginsburg, she had four bouts of cancer and I hired her ability to recover from cancer. But at the same time, you had done your service, you had been a federal judge on the DC Circuit Court of Appeals, a long career on the United States Supreme Court. I'm not saying that you couldn't do her job, but I mean, all accounts even her last term, she was very inquisitive during oral arguments, was writing opinions et cetera. But the age issue is something that needs to be taken into consideration and I'm even willing to go ahead and consider term limits, particularly if we set up a schedule to where we stagger them. So theoretically no one president.
N. Rodgers: Presidential party.
J. Aughenbaugh: Presidential party would get all the appointments. I mean, increase the likelihood that we're going to get some diversity in regards to nominations. But also which party might be in control of the Senate. Because as you and I have discussed in previous podcast episodes, that goes in cycles. So you can't control for all the variables.
N. Rodgers: Certainly, the other part of that is that justices, because they're not given an end point, some of them feel like they have to serve until they drop dead. They really feel that pressure whereas if you were hired under a 20-year appointment, then you would say, I've done my 20 and I'm going to retire with dignity and it gives me permission to retire. It gives me permission to not feel like I have to stay here until the bitter end.
J. Aughenbaugh: Let's say, for instance, you're a newly appointed justice of the Supreme Court. It may take you a couple of years to get used to the weightiness of the cases, the workload. How to manage four clerks, how to get along with the other scorpions in the bottle, the infamous metaphor, right? But that's still gives you plenty of time to master your job and have some sort of impact on the law. I mean, you can go ahead and make a difference in 20 years, then you probably weren't all that good as a justice anyway. I mean, I'm sorry, but I'm thinking about my own career as a college professor. The first couple of years on the job, I was learning how to be a college professor. But after the first couple of years, I figured out how to do the job, what I wanted to accomplish with the job. So you make a good point here. The other thing to take note of here is to me I'm fascinated by the generational.
N. Rodgers: How much Gen X is on there? Then you got a bunch of a bunch of boomers.
J. Aughenbaugh: Yeah, you got a bunch of boomers. I mean, you got easily for boomers on here. Thomas, Alito, Sotomayor, and Roberts. And then that six-year gap between Sotomayor and Roberts and Kagan really jumps out at you. I mean, because Kagan straddles the line between the Boomers. But then you got Gen X. I mean, and you got a contrary of Gen X.
N. Rodgers: And poor J. Rob trying to manage.
J. Aughenbaugh: Oh, yeah.
N. Rodgers: Both of those generations on the court at the same time.
J. Aughenbaugh: The other thing that's pretty fascinating to me, Nia, is that almost all of these justices, with the exception of Sotomayor, all have children. And this really demonstrates how Americans are having children much later in life. I mean, even Thomas adopted a grandnephew. Relatively late in his life. Alito's kids, I believe, are now in college. But he's got college kids aged 72. Roberts, I think has two children and I think they're now in college. Kagan also like Sotomayor, has no children. But Kavanaugh, Gorsuch, Brown Jackson, Coney Barrett all have children. And a couple of them have young children.
N. Rodgers: Coney Barrett has young children, that what you're saying?
J. Aughenbaugh: Coney Barrett has young children. Kavanaugh's kids, I believe, are in middle school.
N. Rodgers: They waited later to start their families?
J. Aughenbaugh: To have children. Again these damaged streets just demographically.
N. Rodgers: That works in the US. The question there is another question of talking about a high pressure job. If Coney Barrett's health holds, she's going to be in that job for 45 years.
J. Aughenbaugh: Yeah.
N. Rodgers: At that pressure level. That also seems like a not wise thing to do.
J. Aughenbaugh: Yeah.
N. Rodgers: When I'm president, I'm going to fix that. I haven't said that in awhile.
J. Aughenbaugh: No, you haven't.
N. Rodgers: Just saying.
J. Aughenbaugh: Yeah.
N. Rodgers: Don't be thinking, listeners, that my dictatorship needs have gone away. I've just been supplementing them into other things.
J. Aughenbaugh: Me, in my designated role in this podcast, I will be the member of Congress that says, that's a lovely idea but Congress may have some things to say about that.
N. Rodgers: I'll bribe you.
J. Aughenbaugh: Yeah. Some other observations. Nia, you and I off recording.
N. Rodgers: Today had been slower.
J. Aughenbaugh: Even on recording, I have noted, and other commentators have noted this. The Supreme Court, not only are they taking fewer cases, but good Lord, are they taking forever to decide them.
N. Rodgers: They were other worldly slow.
J. Aughenbaugh: Low this term.
N. Rodgers: When you see stars moving across the sky, they were going faster by a magnitude than what this court was doing. Well, we just got nothing from them for months.
J. Aughenbaugh: Usually what happens, most Supreme Court terms, they hear a bunch of cases in October and November, and then they crank out like four or five decisions in early December before
they go on vacation for Christmas. We didn't get our first one until nearly the end of January. We were like what was going on? Then they came out in dribbles.
N. Rodgers: Right. We complained and they released three, so thank you for listening into these.
J. Aughenbaugh: It's like turning on that faucet alongside your house that you're not entirely sure still operates.
N. Rodgers: You're going to bath first.
J. Aughenbaugh: A little bit of water comes out and you're like, is that it?
N. Rodgers: Then three months later on June, all of a sudden it comes on.
J. Aughenbaugh: Full board and you're just like, what the heck is going on? They got to work on that.
N. Rodgers: They're not pacing J. Rob, they're not pacing.
J. Aughenbaugh: J. Rob is going to have to go ahead, and in September when they have their big long conference, he's going to have to go in and say, guys, last term was unacceptable. We need to go ahead and crank out some decisions in December and January because I'm not entirely sure any of us, let alone the public, can handle us waiting to release nearly half of our decisions in the month of June. Really slow pace. Another observation, and you and I again have talked about this off recording. This is a really fascinating court because in some ways it runs counter to the observation, particularly in the media, that this is a court that's divided, Conservatives vs liberals. I would argue that, yes, we saw that with some of the late term decisions, like the affirmative action cases, the loan forgiveness case.
N. Rodgers: The ones they really held.
J. Aughenbaugh: The ones that reflect the division within American society.
N. Rodgers: Right.
J. Aughenbaugh: But in a lot of these cases, the division isn't among Conservatives and liberals. It's still within what is labeled conservative. I'm just throwing out an hypothesis here, and I'll be interested to see if in future terms evidence supports the hypothesis or not, Nia. But my hypothesis is, we have a division between, shall we say more moderate or institutionalists Conservatives? I would place into that group, Roberts, Kavanaugh, into a certain extent, Coney Barrett. They are definitely conservative. Let's be very clear. If you place their rots on ideological spectrum, they are definitely more conservative than say, for instance, the majority of the justices of the Warren Court of the 1950s and '60s. But, and you liked this word, they're incrementalist in how they want to change the world. They're incrementalist.
N. Rodgers: I think that is the true division, is between people who are willing to ward up the entire constitution and throw it over their shoulder and be like, we're starting over. And people who are like,
no, we're going to change four words at a time. We're going to make these tiny changes. Is that where you were going with this?
J. Aughenbaugh: No. You're exact, yeah.
N. Rodgers: I think you're right. I think that's exactly, there's those peoples who were like, oop. Then there are people who were like wow, like they want to go Thomas wants to go all the way back to states rights only. We don't even need a federal government. I don't know what we're doing here with the Federal Constitution.
J. Aughenbaugh: You made a comment to me the other day, and again this was off recording listeners. But Nia said that if the constitution was being proposed today, Clarence Thomas would have been a firm, energetic member of the Anti-Federalists.
N. Rodgers: Yep. He would have.
J. Aughenbaugh: He's extremely skeptical of federal government power. If there is a question as to which level of government can do it in Clarence Thomas' mind, it's always States. That's where they would defeat you.
N. Rodgers: Same with Alito, same with Gorsuch.
J. Aughenbaugh: Gorsuch.
N. Rodgers: Those six, the three liberals tend to be more or less.
J. Aughenbaugh: They're in unison.
N. Rodgers: Yes, more or less. Occasionally there's a little bit of an extreme one way or another.
J. Aughenbaugh: Yeah.
N. Rodgers: But for the most part they roll together. Then you've got the six which are divided into three and three. So really technically the court is three, three, three.
J. Aughenbaugh: Yes.
N. Rodgers: I agree with you. I think your hypothesis is going to turn out to be one that scholars support as we go forward.
J. Aughenbaugh: Again, this is not a brand new argument, Nia. As far back as the Rehnquist Court of the 1980s and '90s, you had scholars like Mark Tushnet, in his book, A Court Divided, where he said that the Rehnquist Court was populated by a majority of justices appointed by Republican presidents. But they were divided between more traditional Republicans, like O'Connor and Kennedy and David Souter,
versus what he labeled movement Conservatives. The ones where you just described as they don't mind just grabbing the constitution or a law and saying, that's BS, I'm throwing it out with the trash. Let's go back to first principles. On the Rehnquist Court, that was Chief Justice Rehnquist and Associate Justices Scalia and Thomas.
N. Rodgers: I would argue that this court is more divided or maybe more publicly divided.
J. Aughenbaugh: Divided, yeah.
N. Rodgers: In that way. But what it does have the effect of doing, is watering down that six person majority.
J. Aughenbaugh: Yes.
N. Rodgers: Because when you have elections where you have a bunch of candidates running for an office, nobody gets the majority of the vote because, you have a bunch of candidates running for office. That's why you hold primaries to get it down to a number that there can actually be a person who comes out with enough to be elected. That's had an interesting effect on the court.
J. Aughenbaugh: You see it in some of the opinions, particularly when the majority is comprised of, let's say for instance Roberts, Kavanaugh, and the three liberals. Because to maintain the majority, the opinions have to be written in such a way as to not offend anybody on the majority. But the result is, and Nia has heard me bemoan this, and I've had students in my various classes who've heard me say this, these opinions in some cases are so muddled and almost impossible to decipher.
N. Rodgers: Listeners, the word that he used for Kagan's most recent opinion was impenetrable.
J. Aughenbaugh: Yes.
N. Rodgers: The arguments are just so tortured that you're like, I don't even know where we are now, the season.
J. Aughenbaugh: In Texas versus the United States, which we discussed in a previous podcast episode. This was a challenge to how the Biden administration was enforcing immigration law. Kavanaugh wrote the majority opinion. It was so narrow that many of us who are constitutional law scholars were just like, so does it only apply to this case?
N. Rodgers: Right.
J. Aughenbaugh: Okay.
N. Rodgers: Right. What's the actual answer here? It's been really complicated for you guys, for constitutional scholars to figure out where the application, how far it goes?
J. Aughenbaugh: Think about the difficulty for lower courts or government agencies who are trying to implement this. Even the case for your home state of North Carolina, Moore versus Harper, the infamous independent state legislative theory case. While the court majority said that the theory is not supported by the US Constitution. Thanks for sharing. But then Robert slips in a little, a few paragraphs at the end it says," but state supreme courts don't go overboard and how you review. ".
N. Rodgers: Well then what do you mean?
J. Aughenbaugh: What do you mean by that?
N. Rodgers: It's like your parents saying be back on time, and you're like what is on time me.
J. Aughenbaugh: Yes, what my daughter said to me Nia, because I will tell her, sure, you can do that. But just be careful and she goes, well, what does be careful mean? Well, don't get hurt. She goes, "well, I'm not in control of everything. I don't see". That was pretty stupid.
N. Rodgers: It was like when you do the broad be good.
J. Aughenbaugh: Yes.
N. Rodgers: Well, you're leaving that wide open for interpretation, which by the way, may I say in our last five-minutes we cannot observe. The court has had a few ethical questions this year. Then whole be good may not be enough of a admonition for the court.
J. Aughenbaugh: That's a really good segue. Because this is the last thing that I think you and I both make. The supreme court going forward needs to address.
N. Rodgers: To fix it.
J. Aughenbaugh: Listeners, what we're referencing here is that the media over the last few months has reported, particularly focusing on Justice's Clarence Thomas and Sam Alito, of various ethics issues that they've had. Receiving gifts from wealthy individuals, not reporting those gifts. The Supreme Court and in a couple of instances, Justice Alito, actually speaking to the press and saying, my interpretation was, I was not required to report these things. Well, whatever the case may or may not have been, whatever those ethics rules were or how you interpreted them. That doesn't work.
N. Rodgers: The court has looked particularly bad and out of touch on this issue.
J. Aughenbaugh: Yes.
N. Rodgers: They have looked like they were trying to be sketchy even when they weren't trying to be sketching. I honestly do not believe that either Justice Thomas or Justice Alito was trying to be sketchy. I think that there really is a question about what the rules are for Supremes, and what their ethical conduct should be?
J. Aughenbaugh: What they should report.
N. Rodgers: When you leave that open to interpretation, your enemies will find fault with you.
J. Aughenbaugh: You're going to look bad.
N. Rodgers: No matter what.
J. Aughenbaugh: Listeners to put this in a larger historical context. This has been an issue for the United States Supreme Court since the 1960s.
N. Rodgers: They need to fix it.
J. Aughenbaugh: Justice Abe Fortas lost his chance to be the Chief Justice and then ended up resigning. Justice Douglas, the House of Representatives, we're considering articles of impeachment against him. For income that was not reported and how it was reported, and who gave it and who didn't. We've had justices upon their retirement, have received large financial gifts. We've had justices participate in cases when their spouses or family members have been members of law firms.
N. Rodgers: Or be involved in the case in some way. Just it's the all bad channel.
J. Aughenbaugh: This needs to get cleaned up. Because the alternative is, Congress passes laws that also apply to federal judges. At that point, Nia, we have a potential constitutional crisis. They pass a rule that affects the behavior of federal judges, because the federal courts have been very consistent, and not ruling on, not even weighing in on rules, particularly ethics rules.
N. Rodgers: It's the other branch.
J. Aughenbaugh: It is the other branches.
N. Rodgers: This means it would never dream and telling the president he couldn't accept a gift from the Prince of Saudi Arabia.
J. Aughenbaugh: As long as Congress says that that is perfectly acceptable behavior.
N. Rodgers: They stay out of it.
J. Aughenbaugh: The Supreme Court blesses it and says, you know, go with ever. But this is where I think the court has an opportunity to show some leadership.
N. Rodgers: Well, and they've got to get out ahead of it because people are upset.
J. Aughenbaugh: Yes.
N. Rodgers: Your average everyday person who is saying, wait a minute, how can you possibly be neutral?
J. Aughenbaugh: Right now, Liberals are enjoying this because most of the press reports have been about Thomas and Alito. But I caution liberals.
N. Rodgers: There is other side to that coin.
J. Aughenbaugh: The pendulum swings both ways, and if we know anything about the backgrounds of these justices, is that they belong and have belonged to elite institutions, and have operated, and interacted with other elites for most of their professional life. There is a good chance that it's not only Thomas and Alito, but other, perhaps even beloved former justices.
N. Rodgers: Exactly.
J. Aughenbaugh: Whose legacies and reputations will get stained once media for the other side of the ideological spectrum starts sticking.
N. Rodgers: It would be best for J. Rob to get out ahead of it by making some ethic standard.
J. Aughenbaugh: Come up with an ethic standard, clarify what needs to be reported because this is one of the big issues. Because it looks like Thomas and Alito were trying to cover up the fact that they were hobnob with some wealthy folks. Well, if you go hand publicly disclose it.
N. Rodgers: We still might be accused of cover up.
J. Aughenbaugh: We still might not like it.
N. Rodgers: It's always to cover up.
J. Aughenbaugh: Yes.
N. Rodgers: It's never the thing. It's always the cover but we learned nothing. Break into any place you want to break into, but don't lie about doing it.
J. Aughenbaugh: That's the thing.
N. Rodgers: Don't try to cover up, and even if there is a perception of a cover-up, even if there isn't one, but there's a perception of one, you recommend people, do not let that go.
J. Aughenbaugh: Listeners just a little bit of foreshadowing, we're going to be doing a series of "favorites", and one of the episodes concerns Nia and my favorite political scandals. There's a theme among many of those scandals, which is the cover-up is almost always gets the participants.
N. Rodgers: Even if it's not a cover up, the appearance of cover up. Just don't
J. Aughenbaugh: Yes. Sometimes I think that these really smart.
N. Rodgers: It's like to have a blind spot for how the public perceives these, and the Supreme Court used to be used to enjoy enormously high public approval ratings and now not so much. I mean, they're not as low as Congress.
J. Aughenbaugh: They're below 50%. They're not obviously as low as Congress.
N. Rodgers: But that's should be concerning for them.
J. Aughenbaugh: They're higher than the last two presidents because last face the last two presidents have public approval ratings. But nevertheless, the fact that they're below 50% should concern them. Because a whole bunch of the Court's power rests on its legitimacy. They can't run for another election and say, Hey, look, the public re-elected me, so all of our opponents suck it. I can't say it, so they got to be seen as above the fray, and right now, they're not.
N. Rodgers: They're not on the high road.
J. Aughenbaugh: Yes. Anyway, thank you, Nia.
N. Rodgers: Thank you. Aughie this has been awesome. We're doing one more which is our what's coming next.
J. Aughenbaugh: Yes.
N. Rodgers: You will see you for that episode.
J. Aughenbaugh: Yes. A little preview.
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