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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.
FEMALE_1: Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American government and offer context around the effects of government agencies in your everyday life. Now your hosts, Nia Rogers, Public Affairs Librarian and Dr. John Aughenbaugh, political science professor.
N. Rodgers: Hey, Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm fine. Well, I guess we're still in the spring, technically, according to the calendar. But nevertheless.
N. Rodgers: It was 90 billion degrees yesterday, so I'm not sure that I believe in spring anymore. I think we go right from winter to summer with a little weak dip of "Oh, look at spring. You're going to enjoy it?" No, you're not. No, it's 8 billion degrees.
J. Aughenbaugh: Apparently, we no longer have this phenomenon known as spring showers. But nevertheless.
N. Rodgers: Yeah, no rain. But I have a question for you.
J. Aughenbaugh: Sure.
N. Rodgers: Can you explain the Batman precedent?
J. Aughenbaugh: The Batman precedent? I'm not familiar with the Batman precedent.
N. Rodgers: Isn't that the case that the Supreme's just had?
J. Aughenbaugh: The Batson precedent.
N. Rodgers: Batson. Batman, Batson.
J. Aughenbaugh: Yeah, I'm thinking that if we wanted to explore the Batman precedent and how it related to government documents in US politics, I imagine we could record a podcast episode on that particular topic. But alas, as it relates to the Supreme Court Nia, there is a well known precedent known as Batson, B-A-T-S-O-N. It concerns racial discrimination in jury selection. It's received-
N. Rodgers: Southern juries who don't have any black folks on them.
J. Aughenbaugh: Well, it's not just southern juries.
N. Rodgers: Indicating cases of black defendants.
J. Aughenbaugh: Not just in the South, but nevertheless, the reason why listeners, Nia, is making reference to Batson, is that in late May, the Supreme Court threw out a Mississippi man's conviction and death sentence, and they did so in the case of Pitchford versus Cain, on the grounds that the judge at Pitchford's trial did not properly analyze whether or not the prosecutor violated the United States Constitution's ban on racial discrimination in jury selection.
N. Rodgers: That's it? It doesn't say that in the Constitution. That's just been set by precedent earlier.
J. Aughenbaugh: Yes.
N. Rodgers: Earlier justices have said you can't take race into account when choosing a jury.
J. Aughenbaugh: Correct. For those listeners who want to take a look at this, the Batson case was decided in the 1980s and is rooted in the Equal Protection Clause of the 14th Amendment. What was interesting about this particular case is that once again, the conservatives on the court were divided. The vote in this case was five to four in the Pitchford case, and Chief Justice John Roberts and Associate Justice Brett Kavanaugh were joined by the three liberals. Once again, counter to accepted wisdom, the conservative six justices on the court are not always a block. They're not cohesive. Let's first delve into the Pitchford versus Cain case. Listeners, this is part of our summer of scaleness. As I just mentioned, the vote in the case was five to four. Chief Justice Roberts assigned the majority opinion to Brett Kavanaugh and his opinion was only nine pages.
N. Rodgers: That's pretty short. Is it for an opinion?
J. Aughenbaugh: Yeah, particularly dealing with a controversial topic. In fact, the lead dissent by Justice Gorsuch was one page longer, which is unusual.
N. Rodgers: Can I ask a question about that?
J. Aughenbaugh: Yes.
N. Rodgers: Do we think that Justice Roberts assigned that to Kavanaugh rather than one of the three liberal justices to draw a line under it and say.
J. Aughenbaugh: No, I think he probably did that to make sure that the majority opinion didn't go too far.
N. Rodgers: He's willing to sign on, but he's only willing to sign on at a certain point?
J. Aughenbaugh: Yes.
N. Rodgers: Up to a certain point. Then he's like, "Oh, this just got too lefty liberal for me".
J. Aughenbaugh: Let's first get to Pitchford versus Cain. Pitchford, who was 18 at the time, was charged for murder for his role in a 2004 shooting death of a shopkeeper. One of his accomplices, a 16-year-old by the name of Eric Bullins, fired the shots that actually killed the shopkeeper, a man by the name of Reuben Britt. Bullins pleaded guilty and was sentenced to 20 years in prison. Pitchford went to trial and was found guilty of first-degree murder, and the jury gave him the death sentence.
N. Rodgers: Even though he is not the one who fired the shots.
J. Aughenbaugh: That's right. But Mississippi, pretty much like every other state in this country, says you can be charged with a capital murder, even if you didn't actually commit the murder, because you were an accomplice who aided and abetted the actual commission of the murder.
N. Rodgers: I have feelings about that.
J. Aughenbaugh: But, think about it this way. Let's say Nia, you and I drive to a 7-Eleven. I'm the driver. You go in, you hold up the 7-Eleven. The person behind the counter is disagreeable, doesn't want to hand over the cash, and you commit murder. For instance, Virginia and pretty much almost every other state, not only could you be charged for first-degree murder because you committed murder while you were committing a felony, I, too, could be charged with murder, even though I didn't kill the person behind the counter. Why? Because I aided and abetted you committing murder while committing a felony.
N. Rodgers: Yeah, I don't feel good about that. But anyway, that's a matter of the law. I'm not a fan of charging people for things they didn't do. He's charged, and that goes to trial?
J. Aughenbaugh: At his trial, the local district attorney, a gentleman by the name of Doug Evans, used all of his peremptory challenges to excuse four potential jurors, all four of whom were black. Now, when attorneys are putting together a jury for a trial, they have two types of challenges to jurors they don't want to serve. One are known as for cause. For instance-
N. Rodgers: "You teach political science? Oh, thank you, no. You need to go now. You know too much about the law".
J. Aughenbaugh: That's actually happened to me.
N. Rodgers: My mom was not allowed to sit a malpractice case because she was a nurse.
J. Aughenbaugh: That's a nurse or you have previously participated in a malpractice case. Or if the crime was breaking and entering into a person's home and you previously had your home broken into. You were a victim of the said account. That's right.
N. Rodgers: Adjudication here.
J. Aughenbaugh: But peremptory, the attorney does not have to show any cause or reason. It can just say, "I'm removing this juror". Now, where this gets tricky is because of the 1986 decision in Batson. In that case, the Supreme Court held that the use of peremptory challenges, cannot be based on race. If you're an attorney and you remove all potential jurors and they're all black, the opposing attorney can go ahead and say, "Wait a minute here, you're violating the Constitution".
N. Rodgers: Well, and in your notes, in this particular instance, the county in which this was happening, the population is 40% Black. What they ended up with was one person on the jury who was black.
J. Aughenbaugh: That's right.
N. Rodgers: Which mathematically is not is not fair. In terms of representation.
J. Aughenbaugh: It's statistically anomalous. By the way, for our listeners, Pitchford is African American. In part, his claim was based on the Sixth Amendment, a jury of one's peers. You bring the Sixth and the 14th Amendment into this case. Now, his attorney raised this as an issue. The judge hearing the case rejected it, as did the Mississippi Supreme Court. Now, let's delve into Batson for just a minute. What the Supreme Court has said since issuing Batson is that if you are a criminal defendant and you're bringing a "Batson challenge", there are basically three parts or steps to this process. One, you have to make an initial showing that a juror was removed based on race.
N. Rodgers: If the prosecutor had removed four people, but two of them had been Black and two of them had been white, you're probably not going to be able to bring a Batson challenge because they didn't just remove black jurors. They also removed white jurors.
J. Aughenbaugh: That's right. The first step, the burden is on the defendant in a criminal case. Second step, Prosecutor must provide a reason for striking a juror, excuse me, that is not based on race.
N. Rodgers: Even if they do a preemptory strike, they have to say why?
J. Aughenbaugh: If somebody brings a Batson challenge. The prosecutor has an opportunity/obligation to explain why. They might go ahead and say, "Well, Judge, I was watching this prospective jurors reaction to questions about this type of case, and I didn't think that they would judge fairly". Third step, the defendant's lawyers have a chance to show that the prosecutor's race, neutral reason is, in fact, pretextual. In other words, it's fabricated to cover up the real reason, which is they don't want people of color to serve on the jury. In other words, Step 3 allows the defendant to say it's BS.
N. Rodgers: "The prosecutor is railroading me", basically.
J. Aughenbaugh: "He's attempting to railroad me by creating a jury that will be least sympathetic to whatever case that I bring in my defense". After the Mississippi Supreme Court rejected his appeal based on Batson, Pitchford went to the federal court in Mississippi. Here, the District Court Judge, Mike Mills, agreed with Pitchford that the jury strikes violated Batson and ordered the state to either retry Pitchford or release him. The state, however, appealed to the US Court of Appeals for the Fifth Circuit. Now, as listeners may recall, as we've discussed in previous podcast episodes, currently, the Fifth Circuit Court of Appeals is very conservative. In fact, it is so conservative, it's being reversed by even the Supreme Court at a pretty high rate. Once again, the Fifth Circuit Court of Appeals reversed the District Court judge. Now, the Fifth Circuit Court of Appeals relied upon a federal law that perhaps many listeners are not aware of. The law is the Antiterrorism and effective Death Penalty Act. This was a law passed by the Congress, I believe in the 1990s, because members of Congress concluded and the Clinton administration agreed, President Clinton signed it into law, agreed that lower federal courts were sticking their nose too much into State Court criminal proceedings.
J. Aughenbaugh: Unless there was an obvious and egregious error committed by the Mississippi court system, the Court of Appeals should not overturn what the state courts do. That's what the Fifth Circuit Court of Appeals said. Fifth Circuit Court of Appeals said the Mississippi Courts gave Pitchford and his attorney adequate opportunity to present a Batson challenge, and the state courts were not persuaded. Per this federal law, we're not going to intervene on behalf of Pitchford. Right now, I'm looking at Nia's face, listeners, and Nia seems to be.
N. Rodgers: It's confusion. What's written on my face is confusion. Pitchford says, hey, this is a Batson issue. The State Supreme Court says, No, you didn't bring things up in the courtroom that would have indicated that there was a legitimate Batson challenge.
J. Aughenbaugh: That's right.
N. Rodgers: You did not do that.
J. Aughenbaugh: A district court judge, a federal district court judge said, no, I agree with Pitchford. The Mississippi courts did not give adequate consideration to his Batson challenge. They got a choice. They can either retry them with a different jury or they should release them. The Fifth Circuit Court of Appeals overturned the federal district court judge and they relied upon a federal law that explicitly cautions federal courts from not overturning state court decisions in criminal cases unless there's an obvious and egregious error in following the Constitution and Supreme Court precedent.
N. Rodgers: The Fifth court knocks down the district courts ruling and says, no, it was fine. It was fair. He stays in prison slash on death row.
J. Aughenbaugh: That's right.
N. Rodgers: Then it goes to the Supreme. Supreme say, basically to the Fifth, sit down, drink your coffee, and stop interfering.
J. Aughenbaugh: No, what the Supreme Court said was the Fifth Circuit telling the district court judge, you can't interfere in this case was wrong. The way you worded that makes it sound like the Supreme Court was telling the Fifth Circuit Court of Appeals, you can't interfere. No. What the Supreme Court said to the Fifth Circuit Court of Appeals was, the Federal District Court judge got it right. You got it wrong. Again, by the way, the Fifth Circuit Court of Appeals, the last roughly three years has not been doing well at the Supreme Court level, which is somewhat intriguing to Supreme Court scholars and constitutional law scholars, because you would think that a conservative Supreme Court would be more inclined to support the Fifth Circuit Court of Appeals. But what you're seeing is the Supreme Court's like, you guys are even too conservative for us.
N. Rodgers: Well, and you're nosy. Quit being so nosy.
J. Aughenbaugh: But again, you're getting this wrong, Nia. The Fifth Circuit Court of Appeals, in this case, was telling the lower federal court judge, you need to stop being so nosy. Remember, the Mississippi courts looked at Pitchford's Batson challenge and said, there isn't any here here. It's the federal district court judge who said, yeah, there is a Batson challenge here and the Fifth Circuit Court said, No, you need to follow a law passed by Congress that tells us to quit sticking our nose into state criminal court proceedings.
N. Rodgers: Then the Supreme told the Fifth District, you are wrong.
J. Aughenbaugh: You are wrong but you keep on emphasizing, Nia, that the Fifth Circuit was being too nosy. No, the Fifth Circuit was telling the lower Federal Court judge, you need to be less nosy. You need to go ahead and follow federal law. Well, that's telling a lower federal court to stop sticking your nose into what state courts are doing. The Supreme Court said, when it comes to Batson challenges, perhaps federal courts need to continue to be nosy. Remember, Batson is and remains good precedent. Let's get to Kavanaugh's analysis. He says, after a prosecutor asserts in step two, race neutral reasons for using a peremptory strike of a potential juror, the defense counsel, and I'm quoting here, the defense counsel must at least have an opportunity to argue that the asserted race neutral reasons were not the actual reasons. That is the reasons were pretextual, then the trial court can determine whether those asserted reasons were the actual reasons or instead were pretextual. What Kavanaugh said was the original trial court judge did not allow Pitchford to explore what were the actual reasons used by the district attorney. He said, yes, involving the federal law that I just mentioned, the acronym is ADPA. Federal courts are normally deferential to state courts, but deference does not mean abdication.
N. Rodgers: I do like that line. That's a nicely written deference does not mean application.
J. Aughenbaugh: The Mississippi Supreme Court's conclusion that Pitchford waived his opportunity to rebut the prosecutor's proffered race neutral reasons were unreasonable. That's Kavanaugh writing for the majority. Now, in his dissent, Gorsuch emphasized that Supreme Court rulings after Batson, make it very clear that to get post conviction relief under this federal law, defendant has to show legal error, and a fair minded jurist could reach the state courts conclusion under the Supreme Court's precedent. In other words, what Gorsuch is saying is the majority should have forced Pitchford to more clearly demonstrate that the district attorney was using race. Merely making that claim does not mean that a district attorney is using race.
N. Rodgers: You can frame anything.
J. Aughenbaugh: Sure. If I was on trial for capital murder.
N. Rodgers: I'd be looking for every possible challenge because I like to live. I don't have the greatest life in the world, but I have a pretty decent life, and I'd like it to continue. I think Gorsuch is not right, though. Well, maybe that's because I also know of the other case that the guy did where he did the same thing. The 2019 case. This prosecutor does this. This is a habit of his and I find that pretty horrifying. That feels like old school Southern Mississippi White guys, to me is the idea of, well, we'll just get a jury in here that we like, and we'll tell them what to think of this fella, and they'll think it, and they'll send him off to death row. If there is any challenge to me in a case where the possible outcome is death, it should be allowed. You should be allowed to hear those challenges and work them out, work them through cause if they're not true, then that will come out but if you do what this guy did, it looks shady, even if it's not shady. You know what I mean?
J. Aughenbaugh: In a death penalty case, and listeners, I keep on using the expression a death penalty case, where the potential penalty if you're found guilty is being sentenced to death. I tend to err on the side of wanting the process to be followed as clearly as possible.
N. Rodgers: As thoroughly as possible.
J. Aughenbaugh: Kavanaugh's point here, I don't think should be lost on us in the regards that it appears as though the judge who heard the case didn't give Pitchford's attorneys adequate opportunity to engage in step three, where the defendant has an opportunity to show that the reasons offered by the district attorney were contextual. That it was a fabrication or basically wanting to remove any juror because of race who might be sympathetic to Pitchford. Now, listeners, let's be very clear about something. When the attorneys in a jury case are trying to put together, the jury for that case, they want to pick jurors who will be the most sympathetic to their argument.
N. Rodgers: Both sides sides do that.
J. Aughenbaugh: Yes, let's be very clear.
N. Rodgers: It's the smart thing to do for your client. You want your client to have the best, the most fertile possible ground in order for their story to flourish, their side of things to be taken as the truth. I actually think that if you aren't doing that, you're being a bad lawyer for your side. You're supposed to do that but by the same token.
J. Aughenbaugh: We do have constitutional guarantees. Again, as I mentioned, listeners, the Sixth Amendment requires that you have a jury of your peers. Now, as I explained in my constitutional law classes, Nia, this doesn't mean that you get one to one representation. I like to joke about this. If I was being charged in a criminal case today, the Constitution does not guarantee that every juror who drink coffee.
N. Rodgers: White middle aged.
J. Aughenbaugh: White dudes who drink coffee.
N. Rodgers: A certain socioeconomic background. It doesn't give you that.
J. Aughenbaugh: No.
N. Rodgers: Man, would it take a long time to find a jury in some instances. Who would the jury be for Jeffrey Dahmer? I mean, really? You got to find 12 other cannibals to sit on your jury? There's a certain line at which you can you can't expect the jury of your peers be your exact peers because that would be very hard to come by, I would think.
J. Aughenbaugh: But let's not forget Gorsuch's point here and there's attention hardwired into criminal cases, which is that most criminal cases in the United States are conducted in state court systems. State courts develop expertise in doing criminal cases that federal courts don't do. On the other hand, state courts, like federal courts have to comply with the US Constitution. There have been examples of where federal court judges, don't necessarily believe that their state court counterparts are very good at maintaining constitutional norms. I said that diplomatically.
N. Rodgers: You did say that very diplomatically.
J. Aughenbaugh: If I was being undiplomatic, many federal court judges believe state court judges are backward hicks.
N. Rodgers: You couldn't make it in the real world of judicial.
N. Rodgers: It's the same way that the CEO of Walmart feels about a local business owner.
J. Aughenbaugh: Yes.
N. Rodgers: We're not even swimming in the same pond.
J. Aughenbaugh: Think about the difference between federal law enforcement and local law enforcement.
N. Rodgers: Even though local law enforcement often does a significantly better job because they know the people involved, you're right. The feds are always saying, We got this. We're better at this than you are. But are you?
J. Aughenbaugh: Yeah. This is because of federalism. Listeners, let's not discount this. Historically, federal courts have followed the basic rule that state court judges know how to apply state law. Again, Pitchford was being charged with violating a state law. The problem is, when in a criminal court case, there are certain constitutional rights that you enjoy, one of which is the creation of a jury of one's peers, that cannot violate either the 6th or the 14th Amendment. Not surprisingly, this case was decided 5-4. I would have been shocked if it was 9-0 or 8-1 or 7-2. I would have been shocked, simply because, you have this tension. Nia, as you pointed out, there have been a long line of cases, not just in the Deep South, but some of the most egregious examples were in the Deep South of prosecutors removing potential jurors simply because of their race. By the way, the Supreme Court has extended the Batson logic to excluding women. Because for decades, prosecutors concluded women would be less likely to impose the most severe punishment because they are women and they're nurturing and all those other stereotypes.
N. Rodgers: Showing that they never actually knew any women in their lives, but there we go. Really? Because women I'd much rather get in a fight with a man than a woman. Women are like, "Oh, I understand no holes barred means no holes barred."
J. Aughenbaugh: No holes barred.
N. Rodgers: Whereas guys are like, "I'm not going to keep kicking him because he's already on the floor," and women are like, "Stomp him into the ground. What are you doing?" It's a whole different thing. Ask any high school teacher whether he'd rather break up two boys fighting or two girls fighting. He'll tell you, I won't get between the girls. What I thought was interesting about Kavanaugh's writing is that he tries to be gentle with the lower court when he says, "Whether due to confusion, oversight, and overly hurried jury selection process or some other cause, things broke down." He's not trying to say, "Boy, you just don't know what you're doing. You're terrible at your job." He's saying things get rushed. In the anxiousness of dealing with a crime, sometimes things get overlooked. Let's slow down and just make sure that we're doing everything appropriately. I thought that was rather measured. That's very measured. I'm not entirely certain that one of the liberals would not have said, "If you were not incompetent at your job, this would not have been a problem," Or whatever. Flame throwing.
J. Aughenbaugh: I could see Sotomayor or Ketanji Brown Jackson not only saying, "Yeah, it was rushed." There was some confusion. But you guys are also a bunch of racist backward hicks.
N. Rodgers: You're incompetent jerks. That's part of why you let things get to this point. But I also think that it does. The other overturn in Mr. Evans' case does speak to the fact that Mr. Evans' prosecutor uses this as a habit. The court is also saying to him, "We are now watching you and you should stop doing that habitually." Stop making a habit out of removing jurors for what appear to be racial reasons. Whether it is actually racial reasons or not, you have given the appearance of that, and that is enough to warrant a second look.
J. Aughenbaugh: Listeners, what Nia is referring to is in a previous case, this particular local prosecutor had a conviction overturned, again, based on a Batson challenge. He's got a habit of doing this.
N. Rodgers: At that point, I don't know if I wouldn't retire because every lawyer on the opposite side is going to bring that up. That's going to be a thing for the rest of your career unless you learn to not do it.
J. Aughenbaugh: The two larger ancillary issues to this case that I really like, I've already mentioned. One, once again, the Fifth Circuit Court of Appeals got overturned by the Supreme's.
N. Rodgers: You like that, don't you?
J. Aughenbaugh: I like the fact that it runs counter to the accepted wisdom.
N. Rodgers: That they're going to let every conservative thing go.
J. Aughenbaugh: Go.
N. Rodgers: They're being way more conservative than they have been in the past and blah. The Fifth Circuit's like, "I'm not feeling that. I'm not feeling that way more conservative."
J. Aughenbaugh: Because Nia, you, and I talked about this in last year's Summer of SCOTUS series. Which of the lower courts got overturned last Supreme Court term, the most were at the highest percentage. The highest percentage of being overturned was the Fourth Circuit Court of Appeals. I think they lost every single time. But the most was the Fifth Circuit, simply because the Supreme Court heard more Fifth Circuit Court of Appeals cases. The Fourth Circuit now is known as a very liberal federal appeals court. The Fifth Circuit is known as very conservative. I find it very entertaining that the Supremes are just like, "We don't like either one of you two."
N. Rodgers: We could do well enough without both of you.
J. Aughenbaugh: But then the other ancillary issue, and I briefly touched upon this at the beginning of the podcast, is once again, listeners, you have to be skeptical when you hear the media or read the media, say, "The United States Supreme Court is this monolithic 6-3."
N. Rodgers: The poor liberals are standing out there in the wilderness all by themselves calling for help.
J. Aughenbaugh: This must be such a frustrating, disappointing experience.
N. Rodgers: You're destroying sad, my goodness. Woopy, weepy thing.
J. Aughenbaugh: Because, again, it's really a 3-3333 court. You got the three on the very far right, typically Thomas, Alito and Gorsuch. Then you have the three more moderate conservatives, Coney Barrett, Kavanaugh, John Roberts, and then you have the three liberals. The three most consistent justices on the current Supreme Court are the three liberals. They vote almost in lockstep in every single case. They may have slightly different reasons, if I was betting my mortgage on who's going to be voting together in a Supreme Court case, those three are.
N. Rodgers: Thinking most reluctantly.
J. Aughenbaugh: Yes. But if the Liberals can pick off two of Coney Barrett, Kavanaugh, or John Roberts and even occasionally Gorsuch, Gorsuch will get a wild hair, and he'll be like, "No." If we read the text the way it's supposed to be read then the result is this, and I don't care if it's liberal or conservative because that's who he is. But you see it in this case, John Roberts, I think, made a very strategic choice in picking Brett Kavanaugh because Brett Kavanaugh likes to occupy a middle ground.
N. Rodgers: He sees himself as more neutral.
J. Aughenbaugh: Parole. Yes.
N. Rodgers: Not sure that's true, but I think he sees himself that way.
J. Aughenbaugh: As you pointed out, Nia, even in his majority opinion, when he could have taken a broadside against the judge in this case, he didn't. He said. "It could have been any of these number of reasons; no matter, we're sending this case back down. If Mississippi wants to retry him they're going to have to go ahead and honor our precedent in the Batson case."
N. Rodgers: I keep coming back to that line. Deference does not mean abdication.
J. Aughenbaugh: Abdication.
N. Rodgers: That's going to play out in some other way.
J. Aughenbaugh: Yes.
N. Rodgers: As we go. He may regret writing those words. It is interesting how neutral his writing is, how middle ground his writing is here. Not willing to go way over to where Sotomayor is standing. But also not willing to go over to where Alito is standing. This is more in the middle. Maybe we'll see more interesting things from Kavanaugh as this year's opinions come out. Aggie will do a wrap-up for us at the end of the summer of how many people wrote and what did they write? I'm a little surprised that Thomas didn't have a dissent. Because Justice Thomas does like a dissent.
J. Aughenbaugh: Particularly in cases concerning race.
N. Rodgers: When things go against him, he always wants to write about why everybody else is wrong.
J. Aughenbaugh: Particularly if the case is about race. But nevertheless, and by the way, listeners, Nia is basically foreshadowing. The day we are recording this episode, the Supreme Court still has a little over 23, 24 cases to hand down in its current term. These are the big cases. This is birthright citizenship. This is the removal of Federal Reserve Board members, and these are the big ones.
N. Rodgers: Great. These are all the ones that we've been holding our breath waiting to see just how much Donald Trump will be able to get away with as president. The court is, I think, threading that needle over and over again.
J. Aughenbaugh: Over and over again. Yes. But anyways, thank you, Nia.
N. Rodgers: Then there are things like we haven't mentioned, but we will probably at some point mention what I think of as the smaller but more important things like, get your name off the Kennedy Center. You can't do that without Congress. Congress could do that.
J. Aughenbaugh: Sure.
N. Rodgers: If he retains Congress after the midterms then, and I would think that would be nothing short of a miracle. But if he does retain Congress after the midterms, they could do that. They could say. We're passing a lot. The thing about all of these cases and all of these, especially the presidential docket. I think it is the presidential docket because it's like he's got his own separate docket. But all of them come back to if you would just do it in the right way.
J. Aughenbaugh: Way, yes.
N. Rodgers: You could get away with it. If you want to make a $250 bill with your face on it, one, nobody's ever going to carry that, so I don't know why you'd bother. But two, there are ways to do that. You have to slow down and do it legislatively. He wants immediate gratification.
J. Aughenbaugh: Yes.
N. Rodgers: The courts often say to him, "There's a way to do this. You just start doing it that way."
J. Aughenbaugh: Keep on going back to his tariffs. Instead of trying to shoehorn massive tariffs into existing legislation, if you go to Congress, and I know Congress is slow and there's no guarantee. But if you had gone to Congress and got legislation from Congress, then constitutionally, he could have imposed those tariffs. He could have.
N. Rodgers: If you want a war with Iran, get Congress, and you get a war with Iran.
J. Aughenbaugh: Get a declaration of war.
N. Rodgers: He would have given you one. I don't know if they would have or not. But anyway, for me, and it comes back with this case to Doug Evans. Part of me wants to say to Doug Evans. There are ways to get the jury that you want without having to violate the rights of the individual that you are prosecuting. There are ways you could have done this that would have been legitimate. Instead, you chose to do it this way, and the courts have gone, "No, we're not feeling that." That's not a thing. What you need, I'm going to tell Donald Trump, because he's not listening. What you need is John Aughenbaugh. You need a guy who understands the process. Who can say, "Sure, sir, I can get us the moon, literally. I can get us ownership of the moon, but we're going to have to do it in this way." In this hurricane way, it's going to take nine months, but at the end, we will own the moon. He's like, "No, I want the moon tomorrow." I'm like, "But that's not going to happen." I'm advocating for every president hiring you to get them their way.
J. Aughenbaugh: Thank you, Nia. I didn't know my job.
N. Rodgers: But I'm not happy, no.
J. Aughenbaugh: My job prospects just expanded greatly. Anyway, Thank you, Nia.
N. Rodgers: Thank you, Aggie.
FEMALE_1: 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 Isaac Hobson. Find more information @guides.library.vcu.edu/discourse. As always, no documents will harm to the making of this podcast.