Subscribe
Share
Share
Embed
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.
John Aughenbaugh: Hey Aughie.
Nia Rodgers: Good morning, Nia. How are you?
John Aughenbaugh: I'm excited because we get to get into more cases and more stuffs.
Nia Rodgers: Yeah, so for listeners, this is our second episode of where we are wrapping up the Supreme Court term, and the previous episode, we looked at some of the more important cases that the Supreme Court had already issued decisions about. Now we're taking a second cut, and these are cases that have been handed down in early June.
John Aughenbaugh: These are not, by the way, in order of importance.
Nia Rodgers: No.
John Aughenbaugh: The way the court releases things is not by an order of importance as far as I can tell. As far as I can tell, it is throw a dart at a dartboard, and that is when we will release this particular case because we think there are some who are still waiting on for our third episode.
Nia Rodgers: That the oral arguments took place in October.
John Aughenbaugh: A billion years ago.
Nia Rodgers: In October, and November of 2022.
John Aughenbaugh: The dinosaurs roam the earth when they were doing these original arguments. Some of it they've sat on, and some of it they've had to pull apart because it's super complex. As noted in many episodes of this summer, if they were easy, they would have been decided by the lower courts, and the Supreme would not have taken them.
Nia Rodgers: Yes.
John Aughenbaugh: Every one of these cases is complicated.
Nia Rodgers: It's complicated, it touches upon.
John Aughenbaugh: It would be lovely if they can just say, oh, well this is easy peasy book, but that's not how, it is very little book from the Supreme Court.
Nia Rodgers: There's very little meh.
John Aughenbaugh: They don't roll like that.
Nia Rodgers: Again, listeners just to put this in context. The cases we're going to discuss in this episode and in the next episode. The Supreme Court only decided to hear an issue decisions in 58 cases, and they received over 9,000 appeals. These are the toughest of the toughest. These are the most important, of the most important.
John Aughenbaugh: Often these are the ones they want to send a message with.
Nia Rodgers: Oh my goodness, yeah.
John Aughenbaugh: This is their way of communicating in sometimes with the lower court, and sometimes with the legislative branch, sometimes with the executive branch, sometimes with the people, with us.
Nia Rodgers: Public. Yeah, we're going to that.
John Aughenbaugh: Sometimes I feel like it's personal. They're talking to me.
Nia Rodgers: There are those memes that I feel attacked. Well, you don't need to gang up on me like that.
John Aughenbaugh: I don't think he needed to put it into an opinion that's going to be published for the rest of this country's history. I'm sorry, I had that thought.
John Aughenbaugh: No kidding. All right, pushy. Shall we get into it?
Nia Rodgers: Let's do it. We’re going to start with the case though that I don't remember if we talked about I don t think we did.
J.Aughenburg: No, we did not.
N.Rodgers: I'm fascinated by this idea that sending messages through Facebook either by the amount or by the content could be considered threatening.
J.Aughenburg: Yeah.
N.Rodgers: Is that what the case is about? So this is Counterman v. Colorado.
J.Aughenburg: Yes, Colorado had a statute that allowed state prosecutors to bring charges against somebody who used social media to, if you will, engage in threatening speech.
N.Rodgers: Okay.
J.Aughenburg: Colorado, like a number of states, have passed what they call anti-bullying statutes. The idea behind these laws are to protect individuals in their use of social media. So if you use social media, the idea is you shouldn't be bullied, threatened, or stalked via social media.
N.Rodgers: Stalking meaning I'm sending you copious amounts of messages.
J.Aughenburg: Yes. Counterman argued that the Colorado statute violated the First Amendment. Nia, as you pointed out, the case, involved numerous messages sent via Facebook that were interpreted by a woman as threatening. What the Supreme Court was forced to address is on what standard should courts review the law and as it applied to counterman. Yeah, go ahead.
N.Rodgers: On one side, we have what the speaker's intent is.
J.Aughenburg: Yes.
N.Rodgers: I am not intending to communicate a threat, I'm just intending to be insistent on my opinion or however you want to put that, versus what a reasonable person might perceive as threatening or too much or whatever.
J.Aughenburg: Nia, yeah. You summarized it very well. In a previous podcast episode Nia, we've talked about tests. One of the tests we talked about is how the courts sometimes use what's known as the reasonable person test. How would a reasonable person interpret your actions or in this case, your speech? That's what Colorado argued should be the test. Counterman argued the test should be what was my intent. That would force a prosecutor to show that the speaker's intent was to.
N.Rodgers: Terrorize or scare or.
J.Aughenburg: Or threatened another person.
N.Rodgers: That's a harder standard.
J.Aughenburg: That's a much harder.
N.Rodgers: Than a reasonable person standard.
J.Aughenburg: Right. The Supreme Court, this kills me. The Supreme Court, in a vote of seven to two, held that neither Colorado or Counterman were correct.
N.Rodgers: Of course, they did.
J.Aughenburg: The court adopted a standard that was between what Counterman wanted and what the state wanted. What the court came up with was and they sent the case back down to the trial court to
decide this. The State of Colorado has to prove that the defendant had some subjective understanding that his statements were threatening based on a showing no more demanding than recklessness.
Nia: They have to meet a standard of recklessness as opposed to beyond a reasonable doubt. They didn't have to show that he knew necessarily that they were terrifyingly threatening so much that it was reckless to send a whole bunch of messages to somebody. It's a spectrum.
Aughie: If you put this on a spectrum the more difficult of these tests would have been what Countermen was arguing. Because Countermen's argument was the state would have to go ahead and figure out what his intent was. The far easiest would be the reasonable person standard. Because just a reasonable person would go ahead and say, oh, you have sent me 5,000 messages on Facebook. This is gone.
Nia: This is too much. This is beyond.
Aughie: Yeah. This is beyond just annoying. Now you are threatening me, you are stalking me, etc. What the court came up with was something in the middle. By the way, the recklessness standard is actually used and it's typically used for things like manslaughter. In other, if you will by violate [inaudible].
Nia: Reckless endangerment, I set up a situation where there was a likelihood that someone could be injured.
Aughie: I should have known that would've been the case.
Nia: Because I'm either an expert in the thing or I'm theoretically knowledgeable in some way.
Aughie: Yes.
Nia: Theoretically, you should know that sending 5,000 messages to someone is off the chart. Especially not welcomed messages. Unwelcome two messages or unresponsive to messages, that would be quite large amount. I mean, we're not saying it was 5,000 by the way, we're just using that as a big number. Even if it's 100. More than say five is probably getting into the area of you need to stop sending people messages if they're not responding. It is somewhere in the middle. I don't have to prove this person had the intent of terrorizing the other individual. But you do have to show that they were reckless in some way.
Aughie: That they should have known that the recipient might have perceived or interpreted all these messages as threatening. What to me is fascinating is the majority opinion written by Justice Kagan basically is an opinion that upsets both parties in this case. Countermen man wanted a far more difficult standard to be used. Colorado didn't. By the way, probably the group that's most upset or those who have been advocating these anti bullying anti stalking game. They're really upset because basically the court has said that you have two competing interests here. You have freedom of speech versus trying to protect vulnerable members of the society that the government engages in with some regularity. I
mean, a lot of our criminal statutes are designed to protect people. You should be able to use social media without feeling threatened. On the other hand, you have freedom of speech.
Nia: Basically what Justice Kagan said was, this is complicated.
Aughie: Yes.
Nia: Spent large number of pages saying this is complicated and you have to find that balance and the courts will decide where that balance is. What they've done is say to the courts, you have to use the recklessness standard.
Aughie: Yes.
Nia: Who were the dissents? Just out of curiosity.
Aughie: Justice Thomas in Coney Barrett. Thomas in particular.
Nia: Justice Thomas does not like anything.
Aughie: He was definitely flying his free speech banner with his descent.
Nia: He came down on Kellerman sigh?
Aughie: Yep. I mean, so many Americans use social media.
Nia: It's a serious concern. How do you navigate this idea of when has the person's contacting you, gone past the point of contacting you and to the point of threatening you?
Aughie: That's right.
Nia: How do you get there?
Aughie: Because if we were doing this Nia in person. I engage in behavior that you perceived as threatening. You could go to the police and swear out a complaint arguing, intimidation, harassment, etc.
Nia: I get a restraining order.
Aughie: That's right.
Nia: Really hard to do that with social media because I assume what happened is the person got their account blocked and then they made up a new account and send stuff like that's what can happen is I can't create an infinite number of meas in person to harass you, but I can create an infinite number of accounts online to harass you.
Aughie: Yes.
Nia: I can see where that would be complicated. I'm fascinated by the next case. Graph v. Dejoy.
Aughie: Yes.
Nia: Mr. Dejoy is the Postmaster General.
Aughie: Of the United States.
Nia: Of the United States? Yes. I'm head of United States Postal Service. He's the one who's been making lots and lots of changes to try to make it financially more viable?
Aughie: Yes, he has.
Nia: Because as we have mentioned in previous episodes, it is the only agency of the federal government that must fund its retirement ahead.
Aughie: Yes.
Nia: It's almost a corporation, but not a corporation and it's always in the red and there's always drama. But this isn't about money.
Aughie: No.
Nia: This is about religion.
Aughie: Yes.
Nia: How does religion play into the Postal Service?
Aughie: Graph was a part time postal worker, I believe, in rural Pennsylvania. His job was to deliver the mail to various rural communities in Pennsylvania. He was asked to work on Sundays, in particular delivering Amazon packages Which the Postal Service does do.
Nia: They have contract with Amazon. They do the last-mile delivery for a lot of Amazon stuff?
Aughie: Yes, they do. That's particularly important, as we've discussed again in our previous podcast episodes of half the United States Postal Service, that's really important in rural America.
Nia: Exactly.
Aughie: But he claimed that being asked to work on Sundays violated his religious beliefs.
Nia: Which if you're a in many faith, working on the day of whatever the Sabbath is, Friday, Saturday or Sunday in most faith. One of those days is considered no go. Don't work on that day.
Aughie: That is the Lord's day. You are supposed to rest.
Nia: Religious activity.
Aughie: Contemplation.
Nia: Prayering.
Aughie: Yes.
Nia: Often communal ownership and eating?
Aughie: He claimed that this violated the Civil Rights Act of 1964, particularly Title 7, which Title 7 of that law deals with employers practices. For those of you who don't know. The 1964 Civil Rights Act is considered by many scholars, many civil rights advocates, as probably the most significant federal civil rights law in our country's history. Because it banned discrimination based on a number of characteristics, one of which is religion.
Nia: But this case overturned the case, didn't it?
Aughie: Yes. In 1977 in the Hardison case, the Supreme Court said that there was an important clause in the law. It said that employers could not discriminate based on a number of characteristics unless they could show that the accommodation that they would have to provide one of their employees created an undue burden.
Nia: The '77 case found that they didn't have to do that and then this case was no that was wrongly decided.
Aughie: Not so much that in '70 in the Hardison case the court said employers didn't have to do it, but that employers only had to show the minimal hardship. What was fascinating in the 1970s seven decision, which was considered to be pro business, was that probably the strongest dissent in that case was penned by liberal Supreme Court Justice Thurgood Marshall, who was afraid that it would be used by employers. In regards to racial discrimination and race is one of the characteristics that you employers cannot discriminate based on. But the other characteristics in addition to race were gender, age, religion, ethnicity and country of national origin. What's really fascinating in this case, the court's ruling was unanimous. Supreme Court came out and said, the Hardison decision was wrong.
John Aughenbaugh: I want to get the exact phrase. The court said that employers have to show a significant burden.
Nia Rodgers: Okay.
John Aughenbaugh: Yeah, that would result in substantially increased cost in relationship to the conduct of its particular business.
Nia Rodgers: They can't deny you a religious accommodation based on a minimum standard of, it would inconvenience us. It has to be we will lose money. We will potentially lose the business, we need to have you working.
John Aughenbaugh: We're in the case of the United States Postal Service, or they have to show that it will significantly or have a substantial impact on their business operation.
Nia Rodgers: It would cost us a lot more to pay someone to work on.
John Aughenbaugh: Because what was an issue for the United States Postal Service was that if Graff refused to work, it would force the United States Postal Service to either change other people's schedules. Graff's, if you will, religious exemption would have burned other workers, or it would have forced United States Postal Service to hire more workers. The case is being sent back to the trial court and the United States Postal Service has a decision to make. Do we go forward with this case? Or do we just go ahead and say, fine, you can have your religious exemption and we'll hire somebody who will agree to work on Sundays.
Nia Rodgers: Now, that brings up an interesting question for me, if it's okay if I ask you the extrapolatory question. I know I just made up a word. It's the first time I've ever done that. If they hired you to work on Sundays and Sunday was the day of your religious conviction, your sabbath was on a Sunday, then you by taking the job that has been posted as working on Sunday, you would have no refuge in this law?
John Aughenbaugh: That is correct.
Nia Rodgers: That's correct?
John Aughenbaugh: Yeah.
Nia Rodgers: Only because they changed his schedule.
John Aughenbaugh: Schedule, that's right.
Nia Rodgers: He was like, no, I don't work on Sundays because I go to church on Sundays, of if it had been Muslim, Friday, whichever the Sabbath day is, that you keep holy, then that's different. They hire you under that assumption. You don't get to then say, no, I don't work on Sundays.
John Aughenbaugh: That's correct.
Nia Rodgers: It was only because of the change of his schedule.
John Aughenbaugh: That's right. In this case, the United States Postal Service conceded Graff's point that when he was initially hired, there was no reference that he would work on Sundays.
Nia Rodgers: Because they didn't use to do that.
John Aughenbaugh: That is right.
Nia Rodgers: That has been a change they have made in policy in the last few years, but just in the last couple of years, because it always freaks me out when I see Postal Service people working on Sunday. It's like, wait, what are they doing? But that's been a thing that Detroit has added to try to change their financial situation.
John Aughenbaugh: Yeah, [inaudible] but you make a good point.
Nia Rodgers: Question is that now they have to decide whether they're willing to fight about it. My guess is that they've spent an awful lot of money fighting about it already, they probably are going to just hire somebody else to work on Sundays.
John Aughenbaugh: What was fascinating, Nia, during the oral arguments, the Solicitor General for the federal government conceded that the Hardison decision was probably wrong, but what the federal government argued was, they didn't want the Supreme Court to go as far as the court eventually did, because now the burden's on the employer. By the way, listeners, it's not just the government as an employer, it's also private.
Nia Rodgers: It's any employer.
John Aughenbaugh: It's any employer.
Nia Rodgers: If they change your schedule, not as you're hired. If you're hired at Starbucks and they say your schedule is whatever we tell you your schedule is, you don't get to say I have religious exceptions.
John Aughenbaugh: Nope, you don't.
Nia Rodgers: But if you've been working at Starbucks for 20 years, and your schedule has always been like you agreed on a schedule when you started working there that it's these days, and they're like we're going to put you on this other day, you're like, no, you're not, then you might have a leg to stand on. That's considered a plus for the religious community and a minus for the business community. That's interesting considering how conservative this court is seen, and how conservative it's seen in terms of corporate power You really have to show to the person that there's an actual need to make this person work on a day when they feel it is inappropriate to work.
John Aughenbaugh: Yeah. It's one of those things that can be confusing about a court, because the Roberts Court, led by Chief Justice John Roberts, has been criticized as being pro-business by labor, by progressives, et cetera, but in this particular case. By the way, this not only applies to religion.
Nia Rodgers: It applies to all of those.
John Aughenbaugh: All of those categories. That's right. If you're a civil rights advocate. You might be thinking, now the courts made it very clear. in the Graff case that the standard, and again, per the language of the Civil Rights Act of 1964, the burden is on the employer.
Nia Rodgers: That it will harm their business. I like that.
John Aughenbaugh: The way these cases usually go is first, you as the individual claiming an exemption, have to go ahead and show that it's an exemption recognized within the law, race, gender, religion, et cetera, but once you establish that, then the burden falls on to the employer.
Nia Rodgers: That's a cool. What's interesting to me is it's unanimous.
John Aughenbaugh: It was unanimous.
Nia Rodgers: You talked about this case before. We've talked about this one a while back.
John Aughenbaugh: Yeah, we talked about it a while back.
Nia Rodgers: This is my people. This is North Carolina, it's not my people in North Carolina, but there's my people in general in North Carolina. trying to, as far as I can tell, make up a new theory of government. I think it was North Carolina saying, democracy has had its run, but we're done with democracy now, and we're moving on to something different. Is that more or less what North Carolina said? And the supremes then said, no, you're not, what are you doing? Sit down before you bump your head on something.
John Aughenbaugh: Well, I'm going to give the brief history this case, because the history of this case is pretty fascinating.
Nia Rodgers: Wait, so it's Moore V. Harper.
John Aughenbaugh: Yeah, the name of the case is Moore versus Harper. After the 2020 Census, the state legislature in North Carolina did its redistricting of congressional districts. Now, for those of you who are not aware of politics in North Carolina, North Carolina is considered a purple state. It's pretty evenly balanced between the two political parties. However, the state legislature was controlled by the Republicans, and in the finest tradition of gerrymandering. We've discussed gerrymandering at length on this podcast. Their Republicans in the state legislature redrew the congressional districts which would have benefited the Republican Party, I think to the tune of like 2-1 or two-and-a-half to one.
Nia Rodgers: Really big.
John Aughenbaugh: Yeah, it was like 10-4.
Nia Rodgers: However many representatives they send to Congress, the vast majority of them would have been Republican. The way they managed to draw that in North Carolina is that like many states, the cities are largely Democratic and the rural areas are largely Republican. If you make the cities their own districts and you put two or three cities together, for instance, if you put the triangle together, you would get Raleigh, Durham-Chapel Hill all in one representative.
John Aughenbaugh: Yes.
Nia Rodgers: Then then that person who won would never be a Republican ever. Also, then you leave the outer area.
John Aughenbaugh: You've packed all the Democrats.
Nia Rodgers: Into one spot. Then you put another one down in Charlotte, and you've pretty much got the major population centers, one out Nashville, and that's your three Democrats, and then everybody else is Republican.
John Aughenbaugh: But at that time.
Nia Rodgers: That's, and I'm just going to put out there that if the Democrats had been in charge, they would have tried to do the same thing, because gerrymandering is a sport practiced by both parties.
John Aughenbaugh: Yeah, crosses partisan lines.
Nia Rodgers: Whoever's in charge is like, "Hey, it's our turn to draw the maps." That's why you get Congressional maps that look like shapes that are not found in nature because they're just made up.
John Aughenbaugh: Thus the name gerrymandering. It's a combination of Massachusetts governor, Elbridge Gerry, and a salamander.
N. Rodgers: They vetoed.
J. Aughenbaugh: Yeah. Right. Okay.
N. Rodgers: Anyway, so the legislature makes up these maps?
J. Aughenbaugh: You've got a bunch of orders and a couple of insurance groups who challenge the maps saying that they violate the North Carolina Constitution. They didn't argue it violated US Constitution because, in 2019, the United States Supreme Court basically said that these gerrymandering redistricting
cases are political questions that are best decided by the states. The North Carolina State Supreme Court takes a look and, unfortunately, for the Republican State Legislature, okay?
N. Rodgers: They go, "Wow, those maps are way gerrymandered."
J. Aughenbaugh: Yeah. Because four of the seven justices on the North Carolina Supreme Court had been appointed by Democratic governors. So by a vote of four to three, the State Supreme Court said, "This map, these districts violate the state constitution and we're changing them." They did and they basically made it equal-equal.
N. Rodgers: Well, no, it actually works out right the way it would have worked out if you were trying to do, I don't know, if civil discourse.
J. Aughenbaugh: Yes, right?
N. Rodgers: Instead of trying to balance it one way or another.
J. Aughenbaugh: So the republican legislature is like,"Hey, this is BS." They latched onto a theory that we previously discussed and Nia absolutely hates his theory. It's called The Independent State Legislature Theory, okay?
N. Rodgers: Yeah. It's like a sovereign citizen theory. It should just be thrown away but, apparently, nobody will.
J. Aughenbaugh: Nobody will. But nevertheless, because in the US Constitution, it says the manner of holding elections in the senators' representatives prescribed by the legislature thereof. It goes to the Supreme Court. Now, by the time the case gets to the Supreme Court, the Supreme Court gets written briefs and oral arguments. Guess what happens, Nia, to the State Supreme Court?
N. Rodgers: Changes over.
J. Aughenbaugh: The membership changes and, in particular, it's now got a majority of state Supreme Court justices appointed by Republican governors. It decides to do something that has hardly ever happened in the history of the State of North Carolina. They reheard one of their cases and they went ahead and said, "No, the original redistricting map was fine." So those of us who follow the Supreme Court are like, "Now the case is moot." Because the Republican state legislature ultimately won. Because in 2024, the next time there are House of Representatives elections in North Carolina, they're going to be following the Republican State Legislature drawn map. But here's the shock, the Supreme Court decides to issue a ruling anyways. Nia, you will be pleased to know.
N. Rodgers: Wait, just as a side note, the independent state legislature theory, the reason I hate it, and I want to put this out there on the record again, is because it basically says there is no check or balance to the state legislature, meaning the governor cannot veto, courts cannot review.
J. Aughenbaugh: The governor could have vetoed, but if the state legislature has a large enough the majority, they can overturn the veto.
N. Rodgers: They can override the veto.
J. Aughenbaugh: What the state legislature theory basically just goes ahead and says is neither the governor nor the courts in a state can check what the legislature does.
N. Rodgers: Right.
J. Aughenbaugh: Now, that is all inspiring in regards to a power grab because if you are big believer in checks and balances.
N. Rodgers: Which I am.
J. Aughenbaugh: By the way, we understand that there's arguments against it, particularly if you like faster public policy decisions. That withstanding, Nia and I are in complete agreement on this. We like ourselves some checks and balances. We like accountability. We like to know that what one branch is doing can be checked by the other two. It doesn't matter which of the branches is initiating the behavior. We like those checks. We're all about that particular part of democratic theory in the United States.
N. Rodgers: That little d democracy part of the governing of the United States. Anyway.
J. Aughenbaugh: Supreme Court actually goes forward and hears the case and hands down a decision. The vote was 6-3. The six in the majority, where Chief Justice John Roberts, Justices Kavanaugh, Coney Barrett, Sotomayor, Kagan, and Brown Jackson. It was three of the conservatives and three of the liberals. In the majority opinion, they went ahead and said that the federal election clause does not vest exclusive and independent authority in state legislatures to state the rules regarding federal elections and, therefore, the North Carolina Supreme Court was not barred from reviewing what the legislature did with the Congressional redistricting plans.
N. Rodgers: Basically what they said, if I'm interpreting it correctly, was independent state legislature theory is stupid, go away.
J. Aughenbaugh: Yeah, basically pretty much.
N. Rodgers: The Judicial review exists.
J. Aughenbaugh: Yes.
N. Rodgers: It exists at the state level as well as at the federal level and we're not going to let you say that it doesn't?
J. Aughenbaugh: Now, the three in the dissent, Thomas wrote for him, Alito, and Gorsuch. They would have declared the case as moot because once the North Carolina State Supreme Court overturned its previous decision, there was nothing for the Republican legislature to complain about. They won. So by definition, the case had become moot. But Nia, even though Roberts' majority opinion give us, those of us who like checks and balances, it also sends a very clear message to state supreme courts. Roberts went ahead and said state courts should resist going too far. In particular, he cited the US Supreme Court's ruling in Bush versus Gore, where, as you may recall, those in the majority in that case said the only reason why they got involved is because the Florida State Supreme Court was re-writing Florida State Law in regards to counting votes. Roberts said a very clear message, one that I think both you and I really like, which is the Independent State Legislature Theory is not the correct way to read the elections clause of the US Federal Constitution. Roberts does this. He slides in these little nuggets into his majority opinion where he basically goes ahead and says, "But state supreme courts, don't think that you get a blank check here".
N. Rodgers: Right.
Nia Rodgers: You don't get to balance in your favor.
John Aughenbaugh: Yes.
Nia Rodgers: You still have to act like a code. You still have to only do review and only reasonable review.
John Aughenbaugh: That's right.
Nia Rodgers: Not rewriting review.
John Aughenbaugh: You can't rewrite statutes to fit your policy preferences. You're reviewing state legislative behavior to comply with state constitution language.
Nia Rodgers: What's interesting about this and what people who hate Justice Thomas are having to choke down about this, is that Justice Thomas said that the rewrite of the gerrymander districts the first time was within the court's jurisdiction to do and he would have upheld it if they hadn't been then rewritten by the next court, so they would have gotten what they wanted from Justice Thomas. You see, that's another one of those things where when people say, they always act in a certain way, I'm like, yeah. But Justice Thomas is saying, this is a state power. When they redid the maps after the gerrymandering the first time, he would have upheld those maps because he would have said, it was a state power. People who wanted those maps that way, meaning Democrats and Progressives in North Carolina, would have had to get in bed with Justice Thomas who they can't stand. That's why I think reading the court dissents is always fascinating, because you'll find that sometimes even a person who you disagree with 98% of the time, 2% of the time they say something that you're like, oh, they're actually on my side about this particular point.
John Aughenbaugh: You have to read the concurrences and the dissent. Because when they're not writing to keep a majority, you really see the justices expose what they really think about a law, or a practice, or a behavior.
Nia Rodgers: The process. You get a whole lot more. That's how you get to know the justices. That's how you really get to know. Justice Thomas, when given the choice, is always going to go with state power.
John Aughenbaugh: Yes.
Nia Rodgers: He's going to defer to the state for everything, including those maps.
John Aughenbaugh: Because he's such an originalist that Article I of the US Constitution says, "all legislative Power herein granted." He views that as not only a statement that Congress has power, but it's only those powers. It's only those powers.
Nia Rodgers: Because he's one of the original anti-federalists.
John Aughenbaugh: Yes.
Nia Rodgers: He had been in the crowd writing in the Anti-Federalist Papers saying, the federal government needs to not be so powerful because it's like having a king. It's like having a monarchy. We don't want that in this country. We want people at the local level. Justice Thomas fundamentally believes that the more local your decisions are, the better they are for the people in your state.
John Aughenbaugh: Yes.
Nia Rodgers: There's times when I agree with that and then there's times when I wish he would get in his RV and go to a national park.
John Aughenbaugh: Wait. Let's do two more cases in this particular podcast episode.
Nia Rodgers: Can we do Texas?
John Aughenbaugh: Yes, US versus Texas.
Nia Rodgers: Isn't that the name of every case out of Texas?
John Aughenbaugh: Well, let's face it.
Nia Rodgers: US versus Texas, which one?
John Aughenbaugh: Let's just put it this way. When there's a Democratic president, Texas is going to be a party in a case with some regularity.
Nia Rodgers: Every day.
John Aughenbaugh: When it's a Republican president, then it's the state.
Nia Rodgers: California.
John Aughenbaugh: California and/or New York, right?
Nia Rodgers: Yeah. It's just how it works.
John Aughenbaugh: It's just how it works.
Nia Rodgers: Texas also, for better or worse, and it is what it is, Texas is a highly independent minded state. It doesn't really wants to go along with the other states on pretty much anything. It has its own power grid. I think it really does perceive itself in some ways as very separate, and it chafes.
John Aughenbaugh: Well, in this particular case, the issue is immigration.
Nia Rodgers: Which is super complex for Texas.
John Aughenbaugh: In Texas and many Texans, whether they work in state government or not in that state, will go ahead and tell you, this is a big issue. This case arose because Texas claimed the Biden administration was not enforcing federal law. In particular, the Department of Homeland Security issued guidelines for the enforcement of the federal immigration law and basically went ahead and said, because of scarce resources, including money and personnel, that there would be, if you will, points of emphasis. I think the guidelines mentioned three or four categories of people entering the United States without citizenship who would be targeted for enforcement, but everybody else would not be targeted for enforcement.
Nia Rodgers: Those targeted are criminals.
John Aughenbaugh: Those who'd already been previously deported so they should have known that they were not welcomed in United States.
Nia Rodgers: There's like two or three, 3,4 category where we're going to really focus our resources on those people.
John Aughenbaugh: Yes. Texas and Louisiana both claimed that the Biden administration was violating Article II of the constitution, particularly the, take care to faithfully execute the law. They were not faithfully executing the law according to the states. The federal government claimed, Texas did not have standing to sue, and the United States Supreme Court agreed with the federal government.
Nia Rodgers: Can I just argue, that's tough for me. Because there's a part of me that's like, Texas is trying to get the federal government to do what it says it's going to do, which is enforce the law and that lack
of resources are not their problem, and that they believe the border is overrun. I don't know if I'm sure that I believe the border is overrun, but I can see their point. But by the same token, if you allowed each state to sue the federal government for not fully pursuing enforcement of the US code, it would be a constant tug of war between states and the federal government about how they spend their money. It would really complicate.
John Aughenbaugh: Well, and also, this case, first, you just mentioned something that I think a lot of listeners might want to pay some attention to because it's received some scholarly treatment. There are so many federal laws that have been passed by United States Congress that pretty much anytime a new presidential administration takes office, they can't enforce all of that.
Nia Rodgers: The code is huge.
John Aughenbaugh: They have to pick and choose. This points to a particular problem. We've passed so many laws that it gives the executive branch the kind of discretion that Texas and Louisiana were complaining about in this case. I recall during the Trump administration, you had liberal states, states controlled by Democratic governors, who were suing the Trump administration for not enforcing other federal laws that they would prefer to be the focus of that particular presidential administration. You're right, Nia. If we allow these lawsuits to take place, the federal government would spend an awful lot of time defending itself and its enforcement decisions in court. The other problem this case generates, and this goes back to a case that was decided in the first decade of this millennium, Massachusetts versus EPA and you and I've discussed this case on a previous podcast episode. This is the case where Massachusetts sued the Bush 43 administration for not enforcing the Clean Air Act in regards to greenhouse gases. The Bush administration said, we have a discretionary choice on how we enforce the Clean Air Act, and Massachusetts and other states argued, no, you don't. One of the issues the Bush 43 administration raised in the case was, Massachusetts and these other states don't have standing to sue, that if they didn't like how the Bush 43 administration was implementing the law, those states should go to Congress and force Congress to rewrite the law, forcing the administration to implement new regulations about greenhouse gases.
J. Aughenbaugh: This is where scholars really thought Texas and Louisiana might win, was because if the Supreme Court was going to allow Massachusetts to have standing to sue the Bush 43 administration, then why shouldn't Texas and Louisiana be able to sue the Biden administration on implementing immigration enforcement? What was somewhat surprising about the ruling was that the court ruled against and it wasn't even really close. I think the vote was eight to one.
Nia Rodgers: Wow.
J. Aughenbaugh: The only justice who would have allowed the lawsuit to continue was Justice Alito. The majority opinion was written by Brett Kavanaugh and he was joined by the chief justice and the three liberals. Gorsuch said that Texas and Louisiana could not show injury. They couldn't show how they've been injured.-
Nia Rodgers: That's part of standing, is that you have to show that your stake has been injured. By the way, 53 titles in the US code. Fifty three titles, meaning there are approximately 70 volumes that hold the US code and suing on it not being enforced would be a constant every day. With standing, you've discussed this with us before, you have to show that you've been injured.
J. Aughenbaugh: Yeah, you have to be injured. You have to show injury in fact. Two, you have to show the connection between your injury and what the government did. Then third, you have to show that the court can redress your injury.
Nia Rodgers: It's not just, I want my leg back. We can't give you your leg back. We can't redress the injury because it's psychological or it's emotional or whatever. But in this case, they're saying that Texas and Louisiana did not have standing.
J. Aughenbaugh: Because they couldn't show injury.
Nia Rodgers: Right. I think there is probably an argument for showing some injury financially.-
J. Aughenbaugh: That was Alito's point in his dissent. He would have granted standing simply because he was convinced or persuaded that Texas and Louisiana and other border states incur significant budgetary costs.
Nia Rodgers: Trying to house and feed and process.
J. Aughenbaugh: Now, Gorsuch wrote a concurrence which was joined by Thomas and Coney Barrett. Gorsuch emphasized that he didn't think the courts could redress the harm done. Because according to Gorsuch, how do the courts force the executive branch to enforce laws when in many instances, the laws can't be enforced because Congress hasn't done what, Nia?
Nia Rodgers: I'm assuming funded the enforce.
J. Aughenbaugh: Yes.-
Nia Rodgers: How do we make the legislature give them enough money?-
J. Aughenbaugh: To your point that you started this conversation with about this case, you want to talk about the federal government defending itself with much more regularity in federal court if states could sue all the time. Think about the amount of business that would generate for the federal court system. To Gorsuch's point, all the federal courts would end up doing is basically acting as a review tribunal for enforcement or lack of enforcement decisions made by the executive branch.
Nia Rodgers: Which is not the court's business.
J. Aughenbaugh: No.
Nia Rodgers: Should do a legislature.
J. Aughenbaugh: Yeah. Go ahead.
Nia Rodgers: Hit me with the other case, [inaudible] This one has a lot of vowels. It's Haaland versus Brackeen, lots of as, lots of es.
J. Aughenbaugh: I got to admit, Nia, this case really divided me.
Nia Rodgers: I make like at the beginning here, because this is a hard case.
J. Aughenbaugh: This is a hard case.
Nia Rodgers: This is a complicated case.
J. Aughenbaugh: There were two issues with this case. Whether the Indian Child Welfare Act violated the anti-commandeering doctrine of the 10th Amendment. Well, actually, there are three issues. Second, whether the individual plaintiffs had Article 3 standing, once again, to sue challenging, I'm just going to say, the law's placement preferences for other Indian families or for Indian foster homes. Then three, whether or not those two provisions violated the equal protection clause of the 14th Amendment.-
Nia Rodgers: This is child custody case?
J. Aughenbaugh: Yeah.
Nia Rodgers: What was the question where if families were non-Indian, could they adopt or foster Indian children, Native American children? When we say Indian child, we mean Native American. Because that's the 1978 term for the law in India. Whether Native American children could go to these families, or if preference should be automatically given to Native American families regardless of the situation of the child, meaning if the child had been living with a non-native American family, they could be moved out of that situation and into a Native American family under this provision. But that was what was it question. I think it was brought by foster families. Wasn't who were like, no, this is our kid. We've had this kid all along, they're our kid, and the tribes were saying, no, they need to be with Native American families.
J. Aughenbaugh: That's right. Nia, you accurately summarized the fact that this case touched upon three constitutional, if you will, clauses. One, did Congress have the authority in the Constitution to pass such a law? Two, did this law violate the 10th Amendment, in particular, states rights? Did it impose upon states a requirement that they place Native American children,who are unwanted, for whatever reason, by their birth parents in Native American foster homes or Native American tribes? Then the third issue was, did the law violate the Equal Protection Clause? Because it was discriminating against potentially Native American children. Because it is assuming that other Native American families or Native American tribes are the best homes for these children.
Nia Rodgers: Which in many cases we would argue is true, but in some cases we could argue it's not. If the child has been with a non-native family, but they've been with them for years, that's their family.
J. Aughenbaugh: And they're doing well.-
Nia Rodgers: Part of it is a reaction to separating children out of Native American tribes, which we did back in the day, us and Canada and Australia with the Aboriginal children, we took them away from their families and we put them into white schools, so we can teach them to be white people.
J. Aughenbaugh: Yes.-
Nia Rodgers: Which is wrong, part of our history, and part of this act in 1978 was to help fix this idea that what you do is take a native child out of a native home and put it into a non-native home with the hope that it will lose its connection to the native tribe. I see why the idea of the act was good. The purpose of that was to try to keep people with their tribe as much as you could. But man, it didn't allow for nuance in some ways.
J. Aughenbaugh: Well, because the law is rather specific, the first two preferences are either a Native American foster home or a Native American tribe.-
Nia Rodgers: This was taken to account love or connection or relationships.
J. Aughenbaugh: Or as written into the code in I think nearly all 50 states, what's the best interest of the child. This is where I get torn, because, Nia, you are correct. The genesis of this law was finally the United States Congress in 1978 said, we got to stop this horrific practice of yanking Native American children out of their homes, away from their tribes, and putting them into typically Caucasian family homes, and we're going to enforce a simulation. We did that for decades. For well over a century, we did that. A century and a half in fact. What the court held was that Congress did have the authority in Article 1 of the Constitution and rejected.
J. Aughenbaugh: Those challenging the law in regards to the 10th Amendment in the Equal Protection Clause,.
N. Rodgers: What was the vote?
J. Aughenbaugh: The vote was 7-2. The majority opinion was written by Justice Coney Barrett. She was very clear that per Supreme Court precedent, Congress has wide authority to regulate and provide for Native American tribes in this country.
N. Rodgers: That means that the court also upheld the idea that you must first look for a native family or a native tribe then you may place a child regardless of what the relationship is. That's a little hard for me, I have to admit.
J. Aughenbaugh: Again, I struggled with this. This case really, when I saw it was on the docket. I was just like, wow. When I read the written briefs, Nia, read the transcript of the oral arguments, I struggled with this.
N. Rodgers: Yeah, because it should be what's best for the kids. That shouldn't be prescribed by law but by the same token, for a long time they thought what was best for the kids was to be pulled out of. It takes that question out of it. I'm talking my way around to understanding where the.
J. Aughenbaugh: Where the genesis of the law was.
N. Rodgers: You had obnoxious white people thinking, oh, well, I know what's best for these children, it's best for them to be raised white and away from their tribe. Then you're right, that is not a thing you want to leave up to. I'm going to just bet of the two, Thomas was a dissenter because he's a dissenter for everything. He lives for the dissent.
J. Aughenbaugh: Who was the second one who dissented?
N. Rodgers: Well, it wouldn't be Gorsuch because he is very pro native American rights.
J. Aughenbaugh: I'm going to discuss this in our next podcast episode. But Justice Gorsuch, as on the time he's been on the Supreme Court, the court has taken 11 cases concerning or dealing with Native American tribes. In all 11, he's voted with the Native American tribes. No, the second one in the dissent was Alito. Thomas wrote for those two and in his dissent, he emphasized how the court has historically deferred to state authority over family law matters because in his estimation, the Congress's authority in Article 1 does not extend to family law.
N. Rodgers: He's saying the whole thing is crap because it should be decided by the state.
J. Aughenbaugh: Yeah. Now we've gone on for a period of time and mind you this is a little bit of foreshadowing for the next episode. We haven't even discussed the two affirmative action cases heard by the court, the two Biden administration student loan forgiveness programs, and another case concerning a state law in regards to non-discrimination against LGBTQ+ individuals.
N. Rodgers: We got a lot to discuss for the next time.
J. Aughenbaugh: Yes.
N. Rodgers: Thank you, Aughie. These are Byzantine cases and I really appreciate you explaining them at the granular level so that I can really understand what I agree with and what I don't agree with rather than just saying the Supreme Court sucks, because they don't. Need time to thread a lot of needles here that are very nuanced about some really complicated issues. Every year when you do this, it reminds me that the easy ones don't go to the Supreme Court.
J. Aughenbaugh: Yes.
N. Rodgers: They don't get the easy cases. They don't get them once where we all go, dah. They get the ones where we all go, issues. There's bigger things to consider here. It just reminds me that I don't want to be on the court every time we do this.
J. Aughenbaugh: In the last case we discussed, the cracking case.
N. Rodgers: Talk about complicated.
J. Aughenbaugh: Is one of the reasons why when students in particular say, Aughie, don't you wish you were on the Supreme Court? I was, no because I would have a really hard time removing myself emotionally.
N. Rodgers: Wrestling with these issues and wanting to do right by everybody. Because the answer here is that nobody is bad. Everybody's trying to figure out what the best way it is to handle Native American children or to handle the question of immigration. None of the parties here are trying to be evil. They're all just trying to figure out. Even that question about stalking, where does your right to message people and their right to be threatened start? That's a complicated thing for a world in which everyone constantly communicates through social media.
J. Aughenbaugh: Social media.
N. Rodgers: Our previous where we talked about Google being responsible for, are they responsible for what people post on their platforms or not? North Carolina, I mean, North Carolina is complicated anyway.
J. Aughenbaugh: But again, because I'm a political scientist and I teach and have studied gerrymandering, on one hand, I despise the practice where parties and candidates choose their voters instead of the converse. On the other hand, it's not explicitly prohibited in the US Constitution. Both parties, as you've pointed out, have used it for years. It's one of those artifacts of the American system.
N. Rodgers: You and I would be sitting next to each other and they would say that that's judge wish and just wash, they are wishy washy.
J. Aughenbaugh: You and I came to agreement even in the North Carolina redistricting case where we thought the independent state legislative theory was BS. On the other hand, I also happen to like how Chief Justice Roberts went ahead and sent a note to subtle reminder to state supreme courts.
N. Rodgers: To slow your roll.
J. Aughenbaugh: Don't go overboard here, guys. We guaranteed you a role in the process but don't make us regret it.
N. Rodgers: Exactly. Let me come over there. I'm letting you stay up half an hour past bedtime. Don't make me tell you again.
J. Aughenbaugh: I'm letting you stay up an extra half-hour here. But when that half-hour is up, don't try to negotiate an extra half-hour because I'm going to then get really upset and then I won't extend. I'm not going to do that in the future. But anyways. Thanks, Nia.
N. Rodgers: Thank you, Aughie.
J. Aughenbaugh: Bye.
N. Rodgers: Bye.
You've been listening to civil discourse brought to you by VCU Libraries. Opinions expressed are solely the speaker's own and do not reflect the views or opinions of VCU or VCU Libraries. Special thanks to the Workshop for technical assistance. Music by Isaak Hopson. Find more information at guides.library.vcu.edu/discourse. As always, no documents were harmed in the making of this podcast.