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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.
Aughie: Good morning, Nia. How are you?
Nia: I'm good. How are you?
Aughie: I'm fine. In large part because, as you well know and some of our long-term listeners know, the episodes that we will be recording are like the Super Bowl, The World Series, the World Cup of supreme court watchers.
Nia: Because it's the wrap-up every year. We went off the trail last year and did a travel thing, and people were like, yeah, but where's the Supreme Court? Last year or the year before. Anyway, we did that one year, one summer. What we've realized and heard from our listeners is they prefer for the summer to be the wrap-up of the Supreme Court cases and the summary of what's happened.
Aughie: I got to admit. This blows my mind.
Nia: There's a popular demand for something. We were responding to your commentary and your suggestions, it shows that we read the emails and we do pay attention to the text messages and say, hey, when are you going to cover this or when are you going to do this? We are listening and we're responding.
Aughie: What's really fascinating, Nia, to me, at least the e-mails and text messages I received are like, can't wait to hear you and Nia talk about this case. Some of the emails get a little snarky about the reporting in discussions of these cases in other media sources. Now this is like, well, okay then.
Nia: We will say we try to be as fair as we can, although we are both opinionated about many of these cases.
Aughie: Sure.
Nia: You will hear us express that. We hope civilly because that's the behavior we're trying to model.
Aughie: But nevertheless, that's what's going be forthcoming.
Nia: In the next few episodes for this summer. We're not exactly sure how many. Could be three, could be five because we're not yet done.
Aughie: Yeah, we're not done yet.
Nia: It's where the court is taking us. Thanks court. I know that some people complain about we don't know what order they come in, neither do we. I'm pretty sure the Supremes don't know what order. I think they just wake up one Tuesday and say, what do you think? Should we just release this one and this one and blow people's minds? That's pretty much how that goes.
Aughie: The metaphor that always comes to my mind is being Chief Justice in regards to this decision days for the court must be like herding cats.
Nia: Who's ready?
Aughie: Yeah.
Nia: Trying to get everybody to get their shoes and their coats on and get out the door. You've got eight people that you're trying to get into the Ford Explorer to go to a concert and it's just going badly.
Aughie: Badly. I'm always reminded, these are nine really smart people. They've been told that they'd been smart most of their lives. They don't respond well to pushing pressure.
Nia: They don't want any of that. I'll give you my majority opinion when I'm good and well ready.
Aughie: Or the dissents.
Nia: Or the concurrences. Let's not leave anybody out. They all do they all do it.
Aughie: They all do it.
Nia: We are going to tell you when I'm done. They know that it's going to drive him crazy.
Aughie: Yeah, it's going to drive him crazy even though he is the father. Heck ones now in college. I can't believe he's getting that old. Roberts, he is the father of two children. But it just reminds me of how difficult it is to get really smart people to go ahead and do things on a particular timeline.
Nia: A thing we're going to touch on much later in one of the other episodes is the eight divergence of these people. It's not like you can get all the conservatives to agree to get into the car and then all the liberals to agree to get into the car. Because sometimes they'll be like, I don't want to get in car. I wanted to ride in the front seat, I want to ride in the back seat, I want to sit next to Thomas, I don't want to sit next to Tom. My gosh. Once again, we feel bad for you, J. Rob because you've got this tough job, man.
Aughie: Of recent memory, the only two justices that I'm aware who were hell bent on getting their opinions out quickly were Justices Byron White and Ruth Bader Ginsburg. Ruth Bader Ginsburg insisted on getting the first majority opinion out of every term. Byron White had a rule within his chambers. If I've been assigned a majority opinion, we get a draft circulated to all the other justices within ten days.
Nia: Which is great. We love, but that's not how it's working these days.
Aughie: The other justices, no.
Nia: Well, and they've also weathered an ethics scandal, which we're going to talk about much later in one of the observation discussions.
Aughie: Yes.
Nia: But right now, we're going to get into the cases.
J. Aughenbaugh: Listeners, this is the first of at least two, possibly three podcast episodes that wrap up the Supreme Court's 2022/23 term, which began the first Monday of October of 2022, and we are recording this in June, which as we previously discussed for Supreme Court, if you will, aficionados, June is like our Super Bowl. Because this is where the Supreme Court hands down all their big decisions.
N. Rodgers: Yeah. They do their mic drop and then they leave town.
J. Aughenbaugh: Yes.
N. Rodgers: What they're doing now is they're ones where there hasn't been a huge amount of crabbiness or a lot of public drama. You were saying to me earlier off recording the vast majority of the Supreme Court's decisions over all the years, not just this year, but over all the years are not close decisions. They're 908172. They're very clear where the court is going and what the court is doing. But that's not the ones people hear about in the news. They hear about the controversial ones that are 54 or 63 because those are the ones that are politically fraught, and so they will drive a stronger polarization of the court.
J. Aughenbaugh: The justices in many ways do reflect the kind of-
N. Rodgers: It turns out there are people.
J. Aughenbaugh: The divisiveness that you see in the larger society in among elected officials. But Nia, you mentioned something. Before we get to some of these specific cases, you mentioned something just a few moments ago. This particular Supreme Court term has been somewhat unusual because the court took a long time to issue any decision.
N. Rodgers: Indeterminable.
J. Aughenbaugh: Yes.
N. Rodgers: You mentioned it in an episode in early spring of 2023, which was called Slow Scotus. Like they're never going to really, then, of course, the next week they're like, okay, here's three. But then they went quiet again.
J. Aughenbaugh: What's really remarkable about that is, again, for those of us who follow the court with some regularity, we are predicting that later on in the month of June, you're going to see some really divided Supreme Court decisions. Simply because that typically reflects the fact that so many of the justices want to write, and the court doesn't issue a decision until all of the justices have completed their various opinions.
N. Rodgers: You get your con-currencies, your dissents, they have to get all that together. Then they have to make sure everybody's done. Now is everybody done, has everybody did their spleen? Well, then we're going to release it all.
J. Aughenbaugh: Yes.
N. Rodgers: That's part of why there is lag, I think, but I have a theory about the other part of why they lag.
J. Aughenbaugh: What's that?
N. Rodgers: There's a writer strike. Right now, there's a writer strike, there's not a lot of television going on, there's not a lot of excitement going on. Like the supremes, right now, this could be their big, shiny moment in the sun. I'm just saying they'll get a lot of attention because there's nothing else to watch.
J. Aughenbaugh: I thought you were going in a different direction with that Nia. That the Supreme Court was taking so long to write because they were being sympathetic to the writer's strike out in Hollywood.
N. Rodgers: Oh, no. Well, one of the reasons I think June is always so big is rerun season. Remember television used to end in May and then it would start the reruns? I'm just saying I think there's a tie here somewhere. But then again, I have the Pink Panther theme song running through my head right now. Who knows what my thought process is which by the way, if anybody has never watched Pink Panther cartoon, you should go do that. They're pretty fun.
J. Aughenbaugh: Well, in the movies with the great Peter Sellers.
N. Rodgers: Then with the great Steve Martin.
J. Aughenbaugh: Yes.
N. Rodgers: Like two very different approaches, Inspector Clouseau.
J. Aughenbaugh: One of the few remix.
N. Rodgers: Great character. But can we start with something that I think is complex, but also interesting for art students at VCU?
J. Aughenbaugh: Oh, yeah. What Nia's referencing here is a case that was decided the middle of May. Oral arguments were had in October and this is the Andy Warhol Foundation versus Goldsmith. Nia, do you recall what the case was about?
N. Rodgers: Goldsmith is a photographer, took a bunch of pictures for Vanity Fair or Cosmopolitan.
J. Aughenbaugh: I think it was Vanity Fair.
N. Rodgers: Was paid for those pictures because that's photographers get paid.
J. Aughenbaugh: What was the subject?
N. Rodgers: Prince? Prince, the musician, Prince?
J. Aughenbaugh: Yes.
N. Rodgers: RIP.
J. Aughenbaugh: Yes. One of our favorites, by the way, on the podcast.
N. Rodgers: Who doesn't love Prince crazy people.
J. Aughenbaugh: Again, it's children of the 1980s.
N. Rodgers: He was one of our statement musicians.
J. Aughenbaugh: Yes. He was definitely part of the soundtracks of our youth.
N. Rodgers: So Goldsmith took pictures. She took pictures of him. They paid her for the picture. But then they wanted to do something later on about Prince. They wanted to do another spread or story about Prince. I don't know if it was his death or what. But anyway, they asked Andy Warhol to provide them with artwork for it and he used the Goldsmith picture but then he did stuff to it. Like he colored it in a different way. He, Andy Warholized it. Because Andy Warhol did that with a lot of things.
J. Aughenbaugh: Quite infamously with the Campbell Soup Can.
N. Rodgers: But no one paid Goldsmith during that second round of artwork. Andy Warhol did not pay her, and Vanity Fair did not pay her. Even though his work was based on her photograph. Is that more or less?
J. Aughenbaugh: Yeah. Because basically what it was, it was a copyright dispute. On previous podcast episodes with our colleague, Hillary Meyer, right?
N. Rodgers: Miller.
J. Aughenbaugh: Miller.
N. Rodgers: Hillary Miller.
J. Aughenbaugh: We talked about the fact that there is an exception in the United States copyright laws known as the fair use. But Goldsmith argued that they should be paid because it didn't satisfy the fair use exception of the copyright laws. The United States Supreme Court agreed in a seven to two decision with Goldsmith that the fair use defense to license a derivative version of the photograph did not satisfy the language in the law. So this is a statutory interpretation case.
N. Rodgers: Somebody should have paid Goldsmith, basically.
J. Aughenbaugh: Yes.
N. Rodgers: I can see where Hillary might be torn by that, because part of derivative uses is, should you be able to sample music? Should you be able to do all these things? Part of that is how we create new things. But by the same token, how do we give credit to the originator of the art? One of the things that people may or may not know about this podcast is that it is open-access. We welcome the reuse of this podcast for other purposes if people want to take it and use it, we just asked for attribution. We don't want your money. We want people to know who made the original work.
J. Aughenbaugh: Because as academics, and this was one of our guiding philosophies when we created the podcast, we wanted to bring people into our enthusiasm for or shall we say great love of, oftentimes cynical sarcastic take on.
N. Rodgers: The federal government and all of its stuff.
J. Aughenbaugh: Documents and phenomenon, etc.
N. Rodgers: Basically the federal government and its Attic.
J. Aughenbaugh: But nevertheless, if you are commercial photographer like Goldsmith.
N. Rodgers: That's how you make your living. This podcast is not how we make our living. This podcast is a joy that we do because we enjoy it. In fact, we make no money from this podcast. It actually costs the University money for us to make this podcast. But they are gracious and allow us to do that. So I can see where she would say, excuse me, hello, I have been left out of this. Now that Andy Warhol is dead, but his foundation is continuing to distribute and license his work, I can see where she's trying to protect her original photographs.
J. Aughenbaugh: Particularly because again, in the art world, Warhol prints.
N. Rodgers: Well, we just had a murder over that not too long ago.
J. Aughenbaugh: You're talking about significant amounts of money. But if the source, if you will, inspiration for the Warhol derivative of these photographs of Prince is generating a significant amount of money and that's the way you make your money as an artist, then you're going to want a cut. We see this for instance, in regards to music. At the time of this podcast recording, we're about a month beyond a trial where well-known singer-songwriter, Ed Sheeran, was sued by a songwriter who claimed that for one of Sheeran's more popular songs which made Sheeran a whole bunch of money was derivative of this other songwriter's effort. If you're a songwriter, somebody buying the license to your song, and if they use it could mean significant money for you. There are well-known stories of behind-the-scenes songwriters writing songs that were made popular by other singer-songwriters and they were able to go ahead and buy a home, or be able to.
N. Rodgers: Send their kid to college. All those kinds of things.
J. Aughenbaugh: That's how they make their living. We discussed this previously with Hillary because these are complicated issues. If you're trying to advance knowledge, the fair use exception of the copyright laws is essential. On the other hand, one of the purposes of the copyright laws is to encourage people financially to be creative.
N. Rodgers: Right. Because it protects their rights to that creative endeavor.
J. Aughenbaugh: That's right. That's one case that was already decided. Again, Nia, as you pointed out, the vote wasn't really even close. It was seven to two.
N. Rodgers: Oh, sorry.
J. Aughenbaugh: Well, where I was going next was there were a number of cases that you and I discussed while they were being submitted to the court or oral arguments had already been heard and we would be remiss not to follow up on cases concerning social media companies and their liability for how their platforms are used.
N. Rodgers: We're not going to go into a big long explanation of Gonzalez v. Google or Twitter v. Tamina because we did that in Season 12, Episode 16. So if you want a big background on those cases, basically, I would say in a nutshell, it can the platforms be held accountable for.
J. Aughenbaugh: How users use their platforms and cause harm potentially to other people.
N. Rodgers: Right. Are they responsible for third-party publishing?
J. Aughenbaugh: Yeah, third-party usage of their platforms. Basically, Nia, the Supreme Court said, most specifically in the Twitter case, writing for a unanimous court, Justice Thomas went ahead and said that the allegations are not sufficient to establish that Twitter aided and abetted Isis in carrying out a terrorist attack. Then the court decided after the Twitter decision, the court remanded the Gonzalez case back to the Ninth Circuit Court of Appeals to reconsider its previous ruling against Google. Basically,
both Twitter and Google and for that matter, the larger import is social media platforms, at least according to the Supreme Court, cannot be held legally liable.
N. Rodgers: They don't aid and abet.
J. Aughenbaugh: That's right.
N. Rodgers: They can probably be held legally liable for some things. Like if they allow child pornography for instance on their platform or something like that, they probably could be held accountable for that.
J. Aughenbaugh: But Thomas's opinion was so narrow that we never got to the issue of whether or not the Communications Decency Act Section 2-
N. Rodgers: Kicks in.
J. Aughenbaugh: Kicks in. Basically, the court issued such a narrow decision that we still have a number of unanswered questions like Nia what you just mentioned. In some ways, one of the ways that the court can get you a unanimous decision is if it's a really narrow decision.
N. Rodgers: If they hyperfocus.
J. Aughenbaugh: Yes.
N. Rodgers: In this instance they hyperfocused on Twitter's liability of aiding and abetting ISIS and said, no, that's not what they were doing. But there's still many questions to be answered about social media. You mentioned off-recording way back when we talked about that, that eventually TikTok will come up in this question as well. Can you ban TikTok? What are the issues surrounding that? Which for listeners, that'll come up eventually and we'll talk about it when it comes up.
J. Aughenbaugh: Speaking of another case that we previously discussed and this was decided the day we are recording. This actually was decided the day before, Jack Daniel's Property versus VIP Products
N. Rodgers: This goes back to a copyright case.
J. Aughenbaugh: Trademark case.
N. Rodgers: Trademark case.
J. Aughenbaugh: Again, for our faithful listeners, you might be like, hey, wait a minute here, that sounds familiar. Well, we did discuss again with our colleague Hillary. See season 12, episode 21. This is the infamous Bad Spaniels case.
N. Rodgers: Right.
J. Aughenbaugh: VIP Products decided to go ahead and make a parody of the infamous Jack Daniel's bottle, right?
N. Rodgers: Right.
J. Aughenbaugh: They made a series of chew toys about-
N. Rodgers: Called Bad Spaniels.
J. Aughenbaugh: Bad Spaniels.
N. Rodgers: It actually has something about No. 2 on the carpet. Like it's a.
J. Aughenbaugh: Yes.
N. Rodgers: It's a full-on parody.
J. Aughenbaugh: Yeah, because Jack Daniel's is old number and VIP Products was just like Old No. 2 Bad Spaniels. There were a couple of issues in this case and the previous podcast episode really delved into them. But basically, the court was asked to look at the Ninth Circuit Court of Appeals ruling that in effect, VIP Products were legally and constitutionally protected because they were making a parody of the Jack Daniel's trademark. If that was upheld by the Supreme Court, then Jack Daniel's lawsuit against VIP Products would basically mean that Jack Daniel's would lose. Well, the Supreme Court in a unanimous vote ruled in favor of Jack Daniel's. Right now, free speech advocates are upset with the Supreme Court because basically, the court is saying that the Ninth Circuit Court of Appeals used the wrong standard that the law in question which allows if you will, companies, individuals to get trademarks for their goods, their services, heck, and even some cases, expressions. The law in question should be read very narrowly in terms of allowing parodies. The case is going to go back to the trial court. The substantive issues have not yet been addressed. This was all about what is the appropriate standard to use in these types of cases.
N. Rodgers: Remember, we've done an episode on tests.
J. Aughenbaugh: Yeah.
N. Rodgers: Of the Supreme Court. That was one of our summer SCOTUS episodes.
J. Aughenbaugh: Yes.
N. Rodgers: Actually, it was two. It's a two-parter of different tests that they use. They are saying to the lower court, you use the wrong test.
J. Aughenbaugh: That's right. Yes.
N. Rodgers: Once again, they have reached out and smacked the back of the head of the Ninth Circuit Court.
J. Aughenbaugh: Yes.
N. Rodgers: [inaudible].
J. Aughenbaugh: For our listeners who don't have a lot of knowledge about the federal appeals courts, there are certain federal appeals courts because they are so populated with judges that like to push the envelope, issue rulings that frequently get reviewed and overturned by the Supreme Court. One of which is the Ninth Circuit Court of Appeals which covers federal cases that originate in California, Washington, Oregon, Hawaii, Alaska.
N. Rodgers: It's considered the most liberal, isn't it? Of the district courts.
J. Aughenbaugh: For the longest time, it was. Some scholars now believe interestingly enough, the Circuit Court where we reside Nia, the Fourth Circuit has become the most liberal.
N. Rodgers: Really?
J. Aughenbaugh: But again, this is all predicated on the judges are appointed by a certain precedence. Right?
N. Rodgers: Right.
J. Aughenbaugh: For years, the Ninth Circuit Court of Appeals was dominated by judges appointed by Democratic presidents, not surprisingly. Many of their rulings were liberal. As the Supreme Court became more conservative, the court seemingly was enjoying taking appeals of Ninth Circuit Court rulings and overturning them. The Trump administration appointed a fair number of judges so the balance is, I wouldn't say equal, because it's not equal. But it's less obvious the liberal leaning of the Ninth Circuit. But this is very customary. Again, the vote here in this case Nia was nine to zero. The majority opinion was written by Justice Kagan. By no stretches, she a conservative. I mean she's considered part of the liberal side of the Supreme Court. There was one other case that dealt with an issue you and I previously discussed on this podcast. I have a feeling you and I are probably going to be exhibiting the civil part of our civil discourse. The case I'm talking about is Sackett versus the Environmental Protection Agency.
N. Rodgers: First of all, hi Tim. This case is for you.
J. Aughenbaugh: Yes.
N. Rodgers: Tim asked us if we were going to mention the WOTUS; The Waters of the United States. That's what WOTUS stands for.
J. Aughenbaugh: Yes.
J. Aughenbaugh: In this case.
N. Rodgers: You might also recall we did the Colorado River. We talked about the Colorado River and water rights in terms of that as well as we've mentioned other water rights in other episodes.
J. Aughenbaugh: We had an entire podcast episode listeners about WOTUS.
N. Rodgers: What constitutes a lake and whether it's connected to something?
J. Aughenbaugh: Yes.
N. Rodgers: All the drama with the Waters of the United States.
J. Aughenbaugh: In this case, the court was considering the proper test for determining if Wetlands are, "Waters of the United States under the Clean Water Act."
N. Rodgers: Thus the EPA's ability to regulate.
J. Aughenbaugh: That's right.
N. Rodgers: Said Wetlands, because EPA can't regulate things that are on private. Remember, we discussed if a river doesn't touch another body of water. If you have a stream on your property that is contained on your property, then the EPA can't do anything.
J. Aughenbaugh: Unless the EPA can go ahead and show a court that it fits the definition of Waters of the United States.
N. Rodgers: Right.
J. Aughenbaugh: That became the issue in the Sackett case. The Sacketts wanted to build their dream home. They started to backfill a section of their property to build their dream home. The EPA said, well, you can't because it was a wetland that is part of the Waters of the United States. Now this is the second time this case has come to the United States Supreme Court. The first time was nearly a decade ago because the EPA said the Sacketts couldn't sue them in federal court because the EPA's ruling was not final. While the Sacketts were like, you say it's not final but.
N. Rodgers: We can't build our dream home.
J. Aughenbaugh: We can't build her dream home.
N. Rodgers: That feels pretty final.
J. Aughenbaugh: It is final to us. The Supreme Court agreed with the Sacketts and sent the case back down to the lower courts to settle the substantive legal issue. Well, this is the case about the substantive legal issue.
N. Rodgers: Which is what defines.
J. Aughenbaugh: Waters of the United States.
N. Rodgers: Right.
J. Aughenbaugh: Because if you have a broad definition, then the EPA and by extension, the Army Corps of Engineers has much more latitude to regulate private property behavior, right?
N. Rodgers: Right.
J. Aughenbaugh: If it's a narrow definition then the EPA and the Army Corps of Engineers has less of an opportunity to protect wetlands. Nia, the Supreme Court ruled in favor of what definition? Broad or narrow?
N. Rodgers: They ruled that the EPA lacked the ability to regulate the petitioner's property.
J. Aughenbaugh: Property, that's right.
N. Rodgers: This is where Aughie is talking about us being civil.
J. Aughenbaugh: Yes.
N. Rodgers: Because Aughie believes in the private property and how you shouldn't be able to regulate because he has that problem at his house. With the county making him mowers chunk of his yard that they actually won't let him build anything on.
J. Aughenbaugh: I can't build on it.
N. Rodgers: It's a whole thing and I'm like protect the wetlands, protect the owls, protect the frogs and Aughie is like property rights and ownership and why would I buy this if I didn't think it was going to be mine. I get that we are having a civil discussion. We're not calling each other names. I understand Aughie's point of view. I understand the point of view of it's my property, I should be able to do what I want on it. I also understand the EPA's view of, this is the only place this frog lives and if you backfill it, it's going to destroy this species or whatever. There's this weird tension there. I get it. I come down on the EPA's side Aughie comes down more on the private property owner side, and so we have agreed to be civil about it. Is that how you have discourse in this world?
J. Aughenbaugh: That's right. What's also fascinating is, Nia, you used the adjective just a few moments ago, awkward. The vote in this case was nine to zero. All nine of the justices believed that the EPA lacked the ability to regulate the Sackett's property, but they disagreed.
N. Rodgers: On why?
J. Aughenbaugh: On why?
N. Rodgers: Because that's how sometimes they work. I talk to students about this all the time. You have to read the concurring opinions. Concurring opinions always say we got to the right answer, but we got there in the wrong way.
J. Aughenbaugh: Wrong way and then was funny because the majority opinion in this case was written by Alito. Alito just comes out and says, the Supreme Court in the Rapanos case, which was a previous case about the definition of Lotus. Justice Scalia's opinion was correct. Unfortunately, only three other justices agreed with Scalia in the Rapanos case. The fifth vote was Justice Kennedy and Kennedy had a much broader definition of Waters of the United States, which a lot of lower federal courts had been using. In the concurrence written by Justice Kavanaugh, Kavanaugh was just like, we don't need to address which definition of Waters of the United States is correct. We can just agree that the EPA mistreated the Sacketts and just move on.
N. Rodgers: The concurrence is an attempt to say this is a larger discussion that needs to happen not in the court.
J. Aughenbaugh: But more than likely in the United States Congress.
N. Rodgers: They need to come up with a better definition of what they mean by Waters of the United States.
J. Aughenbaugh: That's right.
N. Rodgers: Kavanaugh has done that on more than one occasion. On more than one communication he has said this isn't our job, this is the congress's job.
J. Aughenbaugh: You can really tell the influence of his former boss, Justice Kennedy, and Kennedy was infamous for writing concurring opinions which would minimize the scope of the majority opinion. Kennedy was infamous for this and it just drives the other justices up a wall, whether they're conservative or liberal because Kennedy's offering Nino these, well, on a more appropriate way to look at this is blah, blah, blah, and of course, Alito's is like no. If the United States Congress has a problem with how we are defining Waters of the United States, well, they can rewrite the law. Here's the rule, and Kennedy was just like, no, can't we just agree that the EPA went too far? Can't we just do that? It's really odd, Alito is offering a broad majority opinion with a narrow definition of waters. Whereas Kennedy is offering.
N. Rodgers: Kavanaugh not Kennedy.
J. Aughenbaugh: Kavanaugh is saying, let's have a narrow decision and leave the definition to somebody else. Again, it's a really interesting way to look at how these justices offer this juxtaposition. It really does capture listeners a fundamental debate in American society even today, which is, how do we protect the environment while also protecting property rights? When you come up with environmental legislation, groups on both sides typically talk over and around one another because they're unwilling to go ahead and acknowledge as Nia and I have. I understand where Nia is coming from.
N. Rodgers: I understand where you're coming from. When they say the pursuit of happiness in the founding documents, what they meant was property rights.
J. Aughenbaugh: John Locke was pretty clear. His definition of happiness was private property.
N. Rodgers: That's a fundamental building block of the United States by the same token. One person's water is not [inaudible].
J. Aughenbaugh: Well, and I'm also well aware of the importance of wetlands, to protecting the environment. It's not just for endangered species. Right?
N. Rodgers: Right.
J. Aughenbaugh: We're talking about safe water. A fundamental element that all of us, whether human beings or animals, we can't live without. Fascinating case. I think we have a couple of other cases we wanted to go ahead and get to here in this particular podcast episode and I think we should leave the big one until the very end. There is one case that is near and dear to me simply because I used to do construction work and there is a long line of construction workers in my family.
N. Rodgers: We did not discuss this one earlier. This a new case for us. This is Glacier Northwest versus the International Brotherhood of Teamsters.
J. Aughenbaugh: Yes.
N. Rodgers: It was argued in January of 23.
J. Aughenbaugh: Yes, and it was decided just a couple of weeks ago in June.
N. Rodgers: What was the issue?
J. Aughenbaugh: The Union decided to go on strike. But the day they went on strike they decided to do so after a construction company had mixed in place cement into trucks, which caused significant property damage. For those of you who don't have a lot of experience working with cement. When a construction company is about ready to send a cement truck to a job site. They have a limited amount of time to mix the cement. The reason why if you get behind a cement truck.
N. Rodgers: That it's spinning.
J. Aughenbaugh: It's spinning.
N. Rodgers: It's continuing to mix.
J. Aughenbaugh: To keep it fluid.
N. Rodgers: Because if it doesn't guess what it hardens into, cement.
J. Aughenbaugh: Cement, which makes them basically the cement is stuck in the truck.
N. Rodgers: I assume it involves jackhammers.
J. Aughenbaugh: You damage the truck but then you also because of environmental laws, you then have to properly dispose of the cement. This becomes rather costly.
N. Rodgers: One could argue that they were doing that in order to force the hand of the company.
J. Aughenbaugh: Yeah, Glacier Northwest. The company tried to sue in state court for damages from the union. But the Washington state court system said the lawsuit was precluded by one of the best-known New Deal laws, the National Labor Relations Act. The National Labor Relations Act basically holds that unions can't be sued if their strike causes economic damage because that can be an effective tool to do what you just described, Nia, which is to force companies to negotiate in good faith with the union.
J. Aughenbaugh: This was somewhat divided. No women. It was eight to one. The vote, in this case, was eight to one, Nia. The court held that.
N. Rodgers: This is the holdout I'm going to look and see. Go ahead.
J. Aughenbaugh: Justice Brown Jackson. Her dissenting opinion was twice as long as the majority opinion in this case. I kid you not. I think our descent was nearly 37 pages and the majority opinion was 16.
N. Rodgers: Justice Coney Barrett wrote the opinion. This is one of our early opinions from her. We haven't seen a huge number from her so far.
J. Aughenbaugh: Basically, the court held that the National Labor Relations Act did not preempt the company's state lawsuit because the union failed to take reasonable precautions to avoid foreseeable and imminent damage to the property. Because one of the important case facts, in this case, was that the union was told by the company, we've already mixed and we have placed cement in the trucks.
N. Rodgers: Then they walked out.
J. Aughenbaugh: Then they walked out.
N. Rodgers: What they should have done was there's work that day and then said, We are going on strike tomorrow, don't mix anymore cement.
J. Aughenbaugh: Yes. Because that still would have caused economic hardship.
N. Rodgers: It still would have brought glacier northwest to the table but would have damaged the trucks. It wouldn't have damaged.
J. Aughenbaugh: The cement, etc.
N. Rodgers: Wouldn't have wasted all that stuff I see.
J. Aughenbaugh: Yes.
N. Rodgers: That's limiting the union, isn't it?
J. Aughenbaugh: Yes, it is. This is like the third or fourth decision of the Roberts Court in the last roughly 15-18 years, where the court has limited, if you will, unions.
N. Rodgers: I'm having mixed feelings about this one Aughie because part of me is like, no, the union shouldn't have done that. That's not cool. To do that to your employer, especially if you want to have any relationship afterwards to destroy their trucks. I would fire every single one of those people just because of the irritation of you got to be kidding me. You caused me thousands or millions depending on how many trucks they were. I don't know. But there's another part of me that's like, yeah, but if unions can't walk out in order to force those kinds of behaviors, then how do we make them come to the table?
J. Aughenbaugh: This is part of the struggle for me because one of the key phrases in the National Labor Relations Act is negotiate in good faith. I understand the value of walking out by unions because that's the only way you're going to go ahead and get them to the table. On the other hand, you can't accuse a company of negotiating a bad faith when you turn around.
N. Rodgers: Destroy off their cement.
J. Aughenbaugh: That doesn't strike me as a part of the definition of negotiating in good faith. I think what you suggested would have been more appropriate which is we're going to work today but announce as the workday ends.
N. Rodgers: We're not working tomorrow.
J. Aughenbaugh: We're not working tomorrow if we don't have a substantive negotiations session tonight.
N. Rodgers: Don't mix up any cement because if you do, it's not our problem.
J. Aughenbaugh: It's not our problem. Yes.
N. Rodgers: Because we will have told you we're not doing that.
J. Aughenbaugh: We have given you a warning which by the way, part of the National Labor Relations Board Regulations, in regards to negotiating in good faith is that the union has the right to walk out as long as they do what to their employer. Let them know in advance they're going to walk out.
N. Rodgers: Well, and it comes back to endangering either property or lives or whatever. Like if doctors are going to walk out of the hospital? You want to know that 24 hours in advance so you can figure out what you're going to do with your worst-off patients or whatever. Actually, I hate to say it, but I agree with the court.
J. Aughenbaugh: I struggled with that one.
N. Rodgers: There should be a lawsuit because they should be able to be a discussion about whether you can actually do that and whether it's moral or ethical. So what's our last case, Manfrotto?
J. Aughenbaugh: This one was the big one. Again, we still have a whole bunch of cases to be handed down by the court. But so far, this has been the shocker of the Supreme Court term.
N. Rodgers: Can I just say?
J. Aughenbaugh: Yes.
N. Rodgers: This one also, people thought it was going to go one way like they were convinced.
J. Aughenbaugh: Yes.
N. Rodgers: Beyond a shadow of a doubt. They had already written editorials and had them ready to go and all of that got trashed?
J. Aughenbaugh: Yes.
N. Rodgers: Not how it went.
J. Aughenbaugh: Yes. The case we're talking about is Allen versus Milligan.
N. Rodgers: We've not talked about it before.
J. Aughenbaugh: No, we haven't. This case concerns what well-known federal law.
N. Rodgers: Voting Rights Act. The question is whether the state of Alabama's 2021 redistricting plan for seven seats in the United States House of Representatives violated Section 2 of the Voting Rights Act. I will tell you now that everybody in the world thought that the Supremes were going to find for Alabama and they were going to say there's nothing wrong with the map. That's not what happened, is it?
J. Aughenbaugh: No, it's not What happened. The vote was five to four and the Supreme Court held that those challenging the redistricting plan had a reasonable likelihood of success, that Alabama's redistricting plan violated Section 2 of the Voting Rights Act. What Alabama did with the redistricting plan was they basically carved out only one seat of their seven House of Representatives seats to be a majority of the voters in that district. Minority.
N. Rodgers: Even though the population of Alabama.
J. Aughenbaugh: Is slightly over 20%. If you do the math, at least two of the seats, possibly, you could argue three, but at least two of the seats should have been majority-minority voters.
N. Rodgers: The way they do that is by grouping. They group parts that they know are more minority voters into chunks so that it cuts their vote. In other areas, it cuts down their ability to bring up candidates and encourage candidates of minority status.
J. Aughenbaugh: Basically, the Republican Party in Alabama went ahead and argued.
N. Rodgers: We don't need six white people on the House of Representatives, and we'll let one African-American serve.
J. Aughenbaugh: What the Republican Party argued in Alabama was, we didn't use race. We just went ahead and employed a redistricting or a map-making computer software where we didn't use race. We went ahead and used other variables. Because the GOP in Alabama said, our reading of Section 2 of the Voting Rights Act is that race cannot be used to discriminate. Well, we didn't use race at all. The challengers went ahead and said, but that doesn't make any sense when we know historically, the Supreme Court has said that the Voting Rights Act means this. That there should be a rough, if you will, proportionality of majority-minority voters in the districts. Basically, this is where Roberts and Kavanaugh end up joining the liberals. Because for Roberts, a Supreme Court precedent about how to interpret the Voting Rights Act needed to be maintained. This was a statutory precedent that the court had upheld. By the way, the precedent goes back to the 1980s. You had Roberts writing for the majority, joined by Kavanaugh the three liberals, and then the other four conservatives. There were a number of opinions from them, Clarence Thomas, Gorsuch, and Alito.
N. Rodgers: I'm assuming that Thomas's argument would be, this is a state's rights issue. The Voting Rights Act itself is problematic.
J. Aughenbaugh: Well, for Thomas, the issue is the supreme court's precedent that Roberts relied upon has an interpretation of the Voting Rights Act that would place the Voting Rights Act in conflict with the Equal Protection Clause of the 14th Amendment. For Thomas, it's not so much about state's rights as it is. If we're going to interpret Section 2 of the Voting Rights Act this way, then it's in conflict with the Equal Protection Clause. Then, therefore, Section 2 of the Voting Rights Act is unconstitutional.
N. Rodgers: Got you.
J. Aughenbaugh: That's where many of the commentators, that's where they thought it would go because the Roberts Court had already gutted another section of the Voting Rights Act, Section 5 of the Voting Rights Act in the infamous Shelby versus Holder case from about a decade ago. That's why they were all very, very fearful about this case, was the Roberts court already went ahead and said one section of the Voting Rights Act was unconstitutional.
J. Aughenbaugh: Is this case going to give them an opportunity to say that about Section 2? Roberts was like, "No, we already got a controlling precedent here and the Republican Party of Alabama did not convince us that we should change our mind. The redistricting is more than likely in violation of the Voting Rights Act." But that was the shocker and again, this is one of those times where Roberts, the institutionalist, kicks in and he's just like, "We don't have to reinvent the wheel here. We've already pruned the Voting Rights Act. We're going to do any more pruning. We're not going to need a better argument than what the Republican Party of Alabama gave us."
N. Rodgers: Here we are.
J. Aughenbaugh: Here we are.
N. Rodgers: What you saw on the headlines were shocking decision. First of all, can we wrap up this episode was saying, you should never be shocked by what the Supreme Court does.
J. Aughenbaugh: Yes.
N. Rodgers: The Supreme Court almost always telegraphs what they're going to do. In this particular instance, it was a little gray. I admit that it was a little gray. But for the most part, if you listened to the questions that they ask during arguments.
J. Aughenbaugh: Oral arguments.
N. Rodgers: You will have an idea of where they're going to go. Elena Kagan was all about that bad spaniels. She had many feelings and boy, were they known.
J. Aughenbaugh: I will give you another example, the Warhol versus Goldsmith case. What was fascinating, and you could see this in the oral arguments, was that Justice Sonia Sotomayor wrote the majority opinion, but the lead dissent was Kagan. You could have predicted that if you had listened to
the oral arguments or read the oral argument transcript because their questions reflected two different conceptions of the copyright.
N. Rodgers: Derivative work and copyright.
J. Aughenbaugh: They were like, are they even on the same planet? By the way, and listeners, if you want to see justices taking jabs at one another verbally in their opinions, read Justice Sotomayor's majority opinion in the Warhol case, and then read Kagan's dissent. I know that the way the media frequently describes the cord is-
N. Rodgers: Liberal versus conservative.
J. Aughenbaugh: In that particular case, and I'm not the only one who saw this. There have been a number of constitutional law scholars who were like, "Boy, Sotomayor and Kagan were going toe to toe verbally. They were just swinging at one another." You got to read the footnotes because that's where they really slide in their dicks. That's how the justices really dig one another. They throw some stuff into the footnotes.
N. Rodgers: Not quite Mama, but pretty close.
J. Aughenbaugh: Exactly. That's about as close as the justices get to play ground, talking smack.
N. Rodgers: As we wrap up, we do need to note there were a lot of 9, 0, and 8 ones. There were a lot of things where they came together as a court. This idea that somehow they're super hybrid divided, I don t think is accurate. I think that that's people looking for a problem where there may not be one. Well, I'm not saying there are not strong feelings at the Supreme Court and I'm not saying there are not some personal animus between some of the justices. But I'm saying that generally speaking, these came down, in large part, as agreement among the court because our closest one was our last one.
J. Aughenbaugh: We've discussed this, Nia. A lot of what the government does, whether we're talking about the Supreme Court, the Executive Branch, congress is not uncontroversial. There are thousands, if not millions, of decisions made every day in the federal bureaucracy that never find-
N. Rodgers: See the light of day. There are not a big deal to anybody.
J. Aughenbaugh: No.
N. Rodgers: The courts are no different with that in the sense of middle management.
J. Aughenbaugh: I'm not being critical of the media because to a certain extent, they give us what we want to read and listen to. They focus on the controversy, they focus on the dirt, they focus on the conflict. Because in part, conflicts sells, media corporations are corporations.
N. Rodgers: Would you buy a newspaper every day where it said that the main headline, everybody gone wrong and everything was fine?
J. Aughenbaugh: No, I wouldn't. I don't read those articles.
N. Rodgers: Nobody goes to the movies and watch these movies where nothing happened. Well, the French do, but the rest of us want conflict. We want conflict and then conflict resolution. That's part of the human condition. Sometimes we want to look for conflict where there really isn't an end. There are other personal and ethical conflicts that we have on the court that are going on that are being worked out as people figure out how they feel about those things.
J. Aughenbaugh: That happens in every workplace. How do I go ahead and manage this situation or this colleague? I can do a good job.
N. Rodgers: They can do a good job.
J. Aughenbaugh: I don't get in their and they don't get in my way, etc. One last note as we conclude, that said, the next episode might have an entirely different discussion because again, as we've discussed in previous summer of SCOTUS, If You Will, episodes.
N. Rodgers: Now we're doing fall of SCOTUS.
J. Aughenbaugh: Yes, the fall of SCOTUS.
N. Rodgers: That sounds weird, the autumn of SCOTUS.
J. Aughenbaugh: The Supreme Court issues a lot of decisions middle end of June. The reason why, in part, they take so long is that as we discussed earlier in this episode, the justices are finalizing and working out the various opinions. You're going to get more opinions in those closely decided cases.
N. Rodgers: More concurrences and more dissents.
J. Aughenbaugh: More dissents.
N. Rodgers: They have a lot more to say about those cases. It takes longer to say it. We'll get to more gore stuff as we go. The easier ones are easier for them to release. Those tend to be the ones that come out earlier and the gory ones tend to come out later because gore is harder to manage. They have to get everybody's contributions. They have to get all that stuff, and then they bail. They do a smart thing where they do the old West Wing, Take Out the Trash thing day. If they could get away with Friday afternoon at five o'clock, that's when they would release stuff. But their release schedule tends to be Monday, Tuesday, and Thursday. What we'll see over the next couple of weeks is they'll release more stuff that's medium controversial and then they'll release crazy controversial stuff, and then they'll leave town.
J. Aughenbaugh: Yes, they do. That is their norm.
N. Rodgers: Which is, I don't know if it's the best way to handle it, but you're certainly right. There are normalized way of handling it.
J. Aughenbaugh: But thank you.
N. Rodgers: I look forward to talking more with you about that, Aughie, especially for the grrr cases because they're always a little more interesting and controversial and fun.
J. Aughenbaugh: Because we're talking about some hot-button, if you will, political and legal issues.
N. Rodgers: I can't wait to find out about the admissions stuff. I'm really curious about that because of higher ed.
J. Aughenbaugh: Affirmative action in higher ed. We're talking about religious exemptions covered by the 1964 Civil Rights Act.
N. Rodgers: We've got the immigration case coming. We've got another same-sex couple website, so it's the cake revisited. We got some stuff.
J. Aughenbaugh: We got stalking on Facebook. Again, these are all things in the news. Thank you, Nia.
N. Rodgers: Thank you, Aughie.
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