SCOTUS 5 Preview of the 23-24 Term

Aughie and Nia preview some of the 21 cases that the Supreme Court has already agreed to hear for the 23-24 term.

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This podcast uses government documents to illuminate the workings of the American government, and offer context around the effects of government agencies in your everyday life.

Welcome to Civil Discourse. This podcast will use government documents to illuminate the workings of the American Government and offer contexts around the effects of government agencies in your everyday life. Now your hosts, Nia Rodgers, Public Affairs Librarian and Dr. John Aughenbaugh, Political Science Professor.
N. Rodgers: Hey Aughie.
J. Aughenbaugh: Good morning, Nia. How are you?
N. Rodgers: I'm excellent. How are you?
J. Aughenbaugh: I'm good. In part, I am good because we are looking to the future.
N. Rodgers: We have wrapped up our wrap-up, and I like it. We're looking to the future. What should be happening next?
J. Aughenbaugh: Supreme Court [inaudible].
N. Rodgers: Did you realize between last episode and this episode, I had an epiphany?
J. Aughenbaugh: Oh, you did?
N. Rodgers: I had a couple of epiphanies. One of them is that, I still want to be president and rule the world.
J. Aughenbaugh: Well, of course, because you did drop that little mosul into the episode.
N. Rodgers: I'm just saying. But also I had this epiphany about the term. Their term is the same as our term.
J. Aughenbaugh: [inaudible]
N. Rodgers: Their term is a school year.
J. Aughenbaugh: Pretty much.
N. Rodgers: The courts take you to school.
J. Aughenbaugh: They frequently do. Many lessons learned in school.
N. Rodgers: [inaudible]
J. Aughenbaugh: Yes, we don't necessarily like them.
N. Rodgers: But I had never really put that together that, for the most part, they run the academic school year. Well, they start in October, and we start in August. But then they run to June. They're a little bit off of like a month off of us. That's fascinating.
J. Aughenbaugh: But it's to be expected from these high end [inaudible] leave folks.
N. Rodgers: But also, the federal government runs on the October 1st to September 30th.
J. Aughenbaugh: That's their fiscal year.
N. Rodgers: Is that why their term starts in October? Is because it's their fiscal year, or is it just because that's when they darn well feel like it, and they are the Supreme Court?
J. Aughenbaugh: No, that's actually written into federal law, but that was a federal law that was passed decades before.
N. Rodgers: The fiscal year?
J. Aughenbaugh: Yeah. Because Congress didn't change the fiscal year to October 1st to September 30th until 1974.
N. Rodgers: That recently. Do we have lots and lots of cases coming up?
J. Aughenbaugh: Well, so far, the Supreme Court has only accepted 21 cases for its next term.
N. Rodgers: We're not going to talk super in depth, because some of those we will actually go more in depth when the oral arguments are done.
J. Aughenbaugh: Yeah, but for listeners to put this in context, the Supreme Court will get thousands.
N. Rodgers: I'd like to think a gazillion They've got a gazillion appeals.
J. Aughenbaugh: It's not that many, but I'm not entirely sure how many zeros are in a gazillion.
N. Rodgers: A bunch.
J. Aughenbaugh: It's a bunch. If we were not recording, and if this was not a family show, I would use one of my favorite expressions taken from my colleague, Professor Saladino. That also means a bunch, but it's a little bit more profane. Anyways, for listeners to put this in context, the Supreme Court will get thousands of appeals this summer.
N. Rodgers: When does that start?
J. Aughenbaugh: What?
N. Rodgers: The appeals. I'm assuming that it's like they're accepting all year around?
J. Aughenbaugh: Yeah. It's throughout the year. But when the Supreme Court adjourns its term, basically the only people who will now be working at the Supreme Court are the administrative assistance, and the clerks. When you first get hired to work for Supreme Court Justice, your first job is to wade through all of the-
N. Rodgers: Somebody says, how fast can you read?
J. Aughenbaugh: All of these appeals. These are known as a writ of certiorari cert writs.
N. Rodgers: We've talked about that [inaudible] the process.
J. Aughenbaugh: The court's 2023 term docket will get filled in, once they return from their summer sabbatical.
N. Rodgers: Their money-making ventures over the summer. Because that's what they're doing. They're teaching or they're speaking, or going to visit rich friends or they're doing something.
J. Aughenbaugh: See previous podcast episode where we discussed that at the end.
N. Rodgers: Only 21 have been accepted, and we know that there were 58 this year, which means that we're looking at another at least probably 36 or 37. I don't know. Unless they keep going down in number. But roughly that number will come out of the writs that would get called by the clerks for looking for interesting things. You can see our previous episode to see more detail about that. They will add to this, but it won't be probably a huge number.
J. Aughenbaugh: No. I suspect the court will accept somewhere between 35, and maybe 45 more cases. But right now we got roughly about a third.
N. Rodgers: Of what their load is going to be?
J. Aughenbaugh: Yeah. In a few of these cases, I think we might want to pay attention to. The first one out of the box is US versus Rahimi. This is a case coming from an appeal of a Fifth Circuit Court of Appeals ruling. The Fifth Circuit Court of Appeals declared that a federal law that prohibited a person who is subject to a domestic violence restraining order cannot purchase a firearm. The Fifth Circuit Court of Appeals says, sorry, that violates the Second Amendment, if we're being consistent with the Supreme Court's most recent Second Amendment missive brewing, the infamous brewing decision. Nia, you probably saw this in the newspaper, on the media. Listeners, you may have seen this. Because this case got a lot of attention when the Fifth Circuit Court of Appeals issued its ruling.
N. Rodgers: Well, it's certainly alarming to the person who may be the victim of domestic violence that now you're saying this person can own a gun?
J. Aughenbaugh: Yes.
N. Rodgers: If I take a restraining order against you, and you're like me and my glock are going to come visit, that's more frightening than, I'm going to come visit without my glock. So we see why there's a questionnaire. But again, they don't take the easy ones, because you would have the right to own that glock according to the Second Amendment.
J. Aughenbaugh: The thing that the Fifth Circuit Court of Appeals really emphasized, is that, in many states, somebody can get a restraining order without actually demonstrating the person is violent. Their point is, the federal law is based on a number of state laws that have never demonstrated that the person who is subject to the restraining order has ever been violent.
J. Aughenbaugh: If the logic is, we're trying to protect others from violent people ever getting possession of a firearm, that's one thing. But because many restraining orders are issued without even showing that a person is violent, then the federal law seemingly is too broad. Again, this story gets into this notion of an over-broad federal legislation that's based on state laws. Nia, you are correct. One of the purposes of a domestic relations restraining order is to protect one person from another in that particular family's situation. We certainly don't want a person who has demonstrated a propensity towards violence, then to be able to be extra armed.
N. Rodgers: But there is the question of if they haven't done that, are we violating their constitutional right?
J. Aughenbaugh: Again, this gets back to if it was easy, they want to go ahead and take this.
N. Rodgers: That will be an interesting Second Amendment question.
J. Aughenbaugh: The next one, and I put this in there, and Nia, you're so kind.
N. Rodgers: Administrative law group.
J. Aughenbaugh: Yes.
N. Rodgers: Wait, name of the case?
J. Aughenbaugh: The name of the case is the Securities and Exchange Commission versus, I love this last name, Jarkesy, J-A-R-K-E-S-Y.
N. Rodgers: Jarkesy.
J. Aughenbaugh: For our newer listeners to the podcast episode, you may not have heard this, but Nia and I really like a good name. Whether it's first or last.
N. Rodgers: We love a good name.
J. Aughenbaugh: We like a good name. When I saw Jarkesy, I was like, oh.
N. Rodgers: Nia is going to love that one.
J. Aughenbaugh: She's going to love this. But it's administrative law case. What's at issue here is let's just say for instance, Nia, the Securities in Exchange thinks you, who run a publicly traded corporation, has violated one of its thousands of regulations. Let's just say it does. It finds you a whole bunch of money because you violated one of the regulations. You don't think you have.
N. Rodgers: I violated this other regulation but not that one.
J. Aughenbaugh: Well, and you wouldn't even admit to violating the other one.
N. Rodgers: Reality is I didn't violate the one you're accusing me of violating.
J. Aughenbaugh: Yes. You challenge it. What's going on here is the SEC, the Securities and Exchange Commission for years, has adjudicated all of these disputes within the agency using administrative law judges.
N. Rodgers: Does it regularly find against itself?
J. Aughenbaugh: No.
N. Rodgers: Because that seems like a conflict of interests.
J. Aughenbaugh: Well, that's part of the, if you will, controversy in regards to administrative law judges. They're hired by the agency per the authority of Congress. They get to adjudicate cases where somebody says the agency screwed up or harmed somebody else. But at the end of the day, they are employed by the agency on fixed terms and their salaries are determined by the agency. Jarkesy was just like, hey, wait a minute here, this is violating a whole bunch of constitutional stuff from the Seventh Amendment in regards to civil penalties, to whether or not allowing administrative law judges to issue these rulings that could affect my corporation. Doesn't that violate the Fifth and Sixth Amendments and addition? Then there's this whole issue of can Congress actually give the executive branch all this authority to adjudicate these cases with judges that they hire? Doesn't this violate what's known as the Non Delegation Doctrine? If you're going to delegate authority to the executive branch, you must do it with guidelines.
N. Rodgers: Regulations.
J. Aughenbaugh: Yes, intelligible principles. This goes back to something we discussed in the most recent podcast episode. This case is teed up for Supreme Court that is increasingly skeptical of the executive branch exercising a whole bunch of authority, and it's largely uncontrolled by the United States
Congress. I pointed this out simply because, one, I knew you'd like the last name of the party in the case. But this is just a fascinating case because so much of the modern administrative state is predicated on agencies issuing regulations, enforcing those regulations. Then if those enforcement disuse gets challenged.
N. Rodgers: Internally adjudicating.
J. Aughenbaugh: Yes. This has always been one of these controversial subjects.
N. Rodgers: Yeah, it seems a little crazy to me, I have to say.
J. Aughenbaugh: Because otherwise, you wouldn't have to hire a whole bunch of federal court judges to hear all of these challenges to what administrative agencies do. By the way, those judges, known as article III judges, get lifetime appointments and their salaries, Nia, are much higher.
N. Rodgers: Somebody's going to have to pay for that.
J. Aughenbaugh: They're going to have to pay for that and they can't be controlled by the executive branch. Now our next case.
N. Rodgers: I think that one, by the way, the SEC versus Jarkesy is going to be Byzantine as all get out. You know how we had 240 pages for the affirmative action case?
J. Aughenbaugh: Yes.
N. Rodgers: We're going to surpass that with that case. That case is going to go berserk or they're going to have one page and it's going to yell, fix it, stop it, the Supreme Court.
J. Aughenbaugh: It's going to be like the book project of the author in Stephen King's The Shining.
N. Rodgers: All work and no play makes Jack a dull boy. Fix it, stop it.
J. Aughenbaugh: I think that's the first time we've referenced Stephen King in one of our podcasts.
N. Rodgers: That could be.
J. Aughenbaugh: Wow, How about that?
N. Rodgers: It only took us four years to get around to it.
J. Aughenbaugh: Well, and that's a shame.
N. Rodgers: Yeah it is, because a lot of Stephen King formed my life fears. I'm just saying. Needful things, maybe one of the best books I've ever read. The whole psychology in getting other people to turn against each other. It's very practical.
J. Aughenbaugh: It's very. The next case is Mikkel worth versus Georgia.
N. Rodgers: Georgia as in the state or Georgia as in a person?
J. Aughenbaugh: This would be the state. It's fascinating case because Georgia went ahead and tried somebody for a crime in which they were previously acquitted. For most constitutional law scholars were like, we thought this was settled law. The Fifth Amendment has a prohibition on double jeopardy. But that did not stop Georgia. We are going to be revisiting.
N. Rodgers: How did Georgia get away with that? Well, I guess they didn't because it's coming to the Supreme Court.
J. Aughenbaugh: It's coming to the Supreme Court. But apparently the Georgia courts thought that the second charge was sufficiently different even though it was basically for the same behavior from what I've been able to read.
N. Rodgers: That one's going to be interesting.
J. Aughenbaugh: That's going to be interesting. The next one, this is for our woke progressive listeners. You might want to pay attention to this case. Moore versus the United States. There is currently a provision in the US tax code that allows the IRS to tax what is referred to as unrealized sums of money. In other words, potential investment earnings earned overseas.
J. Aughenbaugh: Moore is claiming that this violates the 16th Amendment because congress can only tax non income as long as it's apportioned among the states. For those of you who don't recall the history of the 16th Amendment, prior to the 16th Amendment, the Supreme Court had ruled in the Pollock case that an income tax violated the US Constitution because it was not apportioned among the states. An income tax is basically imposed on one's individual income. If you're a state with a lot of high income earners, you would be paying greater amount in tax than a state that had a bunch of citizens that didn't earn as much money. The Supreme Court said that violated that provision in the original Constitution. While the 16th Amendment gets around that, because it imposes an income tax, so our constitution was amended. But what Moore is saying is the federal government's trying to tax potential investment earnings, but that's not income. That's potential investment earnings. The reason why I'm flagging this case for our woke progressive listeners, is that many scholars are thinking that the court took this case in part to address some discussion about a proposal to tax wealth. The infamous wealth tax.
N. Rodgers: Is that the idea of you can only make so much money and then above that the government can take large portions of it, or am I thinking of something else?
J. Aughenbaugh: No, that would be a surcharge related to income. How that would work is, let's say for instance, Nia, I make $150,000, and the federal government says, anybody who makes over $150,000 is going to be taxed additionally, on every $25,000 extra that they've earned. The wealth tax ID is to tax your wealth. After you've paid your income tax, if what your wealth has been calculated, including income, investments, property you own, real, in other words, if you're over a certain threshold, then you would have to pay an additional tax. But the 16th Amendment only allows income tax. Otherwise, according to the language of the Constitution, any other tax has to be apportioned among the states.
N. Rodgers: We can go to the federal government, we can go to the state government anyway?
J. Aughenbaugh: But if a state tries to do that, aren't they still violating the US Constitution that prohibits such taxing arrangements.
N. Rodgers: That one's going to be a long.
J. Aughenbaugh: It's super-complicated because you know that justices are going to go head during oral arguments and draw out these just really long into the hypotheticals. If the government does this, and if California wants to do that, can they tax this? Can they tax that? I think there should be like a performative dancers going that oral argument.
N. Rodgers: This person represent boats and planes and homes, and this person represents cash, and this person represents investments. This is how they work together. It would be very Martha Graham.
J. Aughenbaugh: But don't you think that would be a much more entertaining oral argument?
N. Rodgers: I would want to see that oral argument. I wish that I would be able to see. They need cameras. At some point, do you think the Supreme so we'll ever move into this century and have cameras in the court?
J. Aughenbaugh: No.
N. Rodgers: It's really too bad because part of the ethical problems stem from the mystery that surrounds the court.
J. Aughenbaugh: You can make that argument.
N. Rodgers: If they committed their courtness in front of people, they might, I don't know how you would say that. But you know what I mean, if they had oral arguments where everybody could watch them?
J. Aughenbaugh: I got two more cases that listeners may want to pay some attention to. Again, I included this case in part because I thought, Nia, you would like at least one the named parties.
N. Rodgers: You know how in the previous case you were having our liberal woke listeners who are on the progressive side for the wealth tax question? I'm thinking our conservative or that group of listeners might be more interested in this case.
J. Aughenbaugh: Sure. Yes.
N. Rodgers: Go ahead.
J. Aughenbaugh: The name of the case is O'Connor Ratcliff versus Garnier.
N. Rodgers: That's right. Ratcliff versus Garnier. Those are great names.
J. Aughenbaugh: The issue here is, let's say you have a public official engaging in state action, are they subject to the First Amendment if they block an individual from the officials personal social media account? When the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any government authority or duty. Let's just say for instance, Nia.
N. Rodgers: If you put messages on your Twitter account that has to do with your job.
J. Aughenbaugh: As an elected official.
N. Rodgers: Like you're a mayor of Richmond?
J. Aughenbaugh: Wait. Let's let's go with a hypothetical that I know you're rather fond of. Nia, let's say you're elected president in the United State, right?
N. Rodgers: Yes, let's say that.
J. Aughenbaugh: Nia, you have your own Twitter account. You had it before you even ran for elected office. But you use your Twitter account to go ahead.
N. Rodgers: Say presidential things.
J. Aughenbaugh: Things. Hey, this is me in the Rose Garden.
N. Rodgers: This is me signing this document to do this following thing or whatever.
J. Aughenbaugh: This is me at a state dinner.
N. Rodgers: This is me at the Space Force.
J. Aughenbaugh: This is me at a state dinner with an official from another country and I don't know who they are or who that country is, but this is me looking presidential.
N. Rodgers: Then you stay, you go on my Twitter account and you're like, you don't look presidential at all. You are big booger head. Am I allowed to block you from commenting on my social media?
J. Aughenbaugh: That's a big question.
N. Rodgers: Because if that's going to be a "unofficial communication."
J. Aughenbaugh: Yes.
N. Rodgers: About presidential stuff and I block you from seeing it.
J. Aughenbaugh: Blocking you from commenting on it.
N. Rodgers: When I allow other people to comment. One thing if I blocked everybody, then I probably wouldn't have a legal question about that.
J. Aughenbaugh: I believe not.
N. Rodgers: Say with no comments at all. But if I only allowed comments of people that I like or people who like me, or people who are supportive.
J. Aughenbaugh: But then look at the last phrase in the question. But does not do so pursuant to any government authority or duty.
N. Rodgers: It's not the official presidential account.
J. Aughenbaugh: Yes.
N. Rodgers: It's my personal.
J. Aughenbaugh: Yes. In this first arose with, and this is the reason why listeners, Nia, said. Maybe our conservative listeners might want to pay attention to this case, if first arose with President Donald Trump, who tried to go ahead and block. Shall we say critics.
N. Rodgers: That's a nice way to put it.
J. Aughenbaugh: Over his administration.
N. Rodgers: On various social media.
J. Aughenbaugh: Yeah, on various social media. Now the lower federal courts ruled against the president. But once he left office, the case became moot.
N. Rodgers: But this is unmooted.
J. Aughenbaugh: Yes.
N. Rodgers: You didn't know that was the word.
J. Aughenbaugh: No, I did not, I'm going to have to remember that. By the way, this applies to politicians of both political parties quite often.
N. Rodgers: But we are saying that because.
J. Aughenbaugh: This first arose because of conservative.
N. Rodgers: Of conservative media.
J. Aughenbaugh: I recall afterwards, free speech advocates were like, hey, this is great. But a number of constitutional law scholars were just like, well, well, well.
N. Rodgers: This is not a good idea.
J. Aughenbaugh: If this becomes the norm, this might lead elected officials to stop doing what? Communicating through social media, and instead they're only going to rely upon official government, social media accounts, and those quite obviously can be regulated, because the government created the forum. Again, if it was easy, they wouldn't have taken it, right?
N. Rodgers: Yeah. That one's going to be tough.
J. Aughenbaugh: The next one deals with a case concerning a law that Nia and I in previous podcast episodes have spoken rather favorably of a number of times, but it's the following case. The name of the case is Acheson Hotels versus Laufer. Laufer is, and she's acknowledged this in court, she is a self-appointed Americans with Disabilities Act ester. So basically what she does is she tests a number of businesses in person, on websites, customer service, phone, etc.
N. Rodgers: To see if they are compliant.
J. Aughenbaugh: Compliant with the law.
N. Rodgers: With the ADA law.
J. Aughenbaugh: Yeah, with ADA. Now, she did this with Acheson Hotels website. Acheson Hotels challenged her standing because she acknowledged that she lacked any intention of visiting their place of public accommodation. She just wanted to see if they actually did provide disability accessibility information on its website. What she did was she went to the hotel's website.
N. Rodgers: For their public rooms.
J. Aughenbaugh: Public rooms.
N. Rodgers: Not for their private hotel rooms. Like to say you're going to go there for a conference.
J. Aughenbaugh: Conference.
N. Rodgers: Well, can they accommodate a variety of folks?
J. Aughenbaugh: She said their website failed to provide disability accessible information on its website. So she sued them per the ADA. The hotel, in the deposition, got her to admit that she had no intention of ever going to any of their hotels. The hotel is saying she doesn't have standing, because since she had no intention of going and using any of their hotels, she can't say she was injured.
N. Rodgers: I could see that.
J. Aughenbaugh: But again, this is a really difficult question.
N. Rodgers: Because I can see her side of saying, just because I wasn't going to use your space doesn't mean I don't have reason to know whether your space would be usable or not.
J. Aughenbaugh: Not. Again, because of the way the ADA is written, the question becomes, who's got the burden to show whether or not the company failed to comply with the law? Because the company is saying we don't even have to show we were complying with the law because she's never been injured.
J. Aughenbaugh: Wow. Again, if this was easy.
N. Rodgers: How much do you bet though that when you go to their hotel website now it talks about 88 plus?
J. Aughenbaugh: It's been changed, but nevertheless.
N. Rodgers: In part she got what she would've want, but it is an interesting question and it comes back to this other question in which we have. We have a couple of minutes, so I'm going to briefly talk about this. There are people who will go around and see if a shop has a handicap parking space in front of it. If they don't, they will file a lawsuit against that shop, to force them to come into compliance. Some of those people need those spaces and some of them do not.
J. Aughenbaugh: Do not.
N. Rodgers: But the shops will comply, in part because getting a lawyer and fighting that is way more expensive.
J. Aughenbaugh: Expensive, yes.
N. Rodgers: Than compliance. That's part of what the testers depend on, is that it's expensive to not comply, so shops will just comply, but it can force shops where the ADA does not apply to them.
J. Aughenbaugh: Yes.
N. Rodgers: It can put them in an interesting or odd position. I see it on both sides, where some of that can be abusive to companies, or to overzealous people who are engaging in got you politics. But the flip to that is, this is a reaction to the fact that people used to have to drag themselves onto a bus, because buses do not accommodate wheelchairs. They had to crawl and then drag themselves onto a bus and then somebody else had to bring their wheelchair on the bus, which is unacceptable. It's not a way you treat people who need to get around in the world.
J. Aughenbaugh: Listeners, what Nia is pointing to is after the law was passed inside by the Bush 41 administration.
N. Rodgers: Yeah, and it was that late in our history.
J. Aughenbaugh: Yeah, that late in our history.
N. Rodgers: Which is extremely unfortunate, that's only been 30 plus years.
J. Aughenbaugh: Slightly over 30 years. There was a protracted period of time. Well, not only businesses, but various governments in the United States had to be pushed.
N. Rodgers: Forced to comply.
J. Aughenbaugh: Into court, to comply. One of the key phrases in the law is in undue hardship on the business to comply. What advocates for Americans with Disabilities frequently ran into is that at least initially, many businesses, including various governments in this country, would argue in protracted court cases.
N. Rodgers: It's an undue burden.
J. Aughenbaugh: On the other hand, as Nia points out, if you're a small business.
N. Rodgers: It takes you a while to put in a ramp, or it takes you a while to do this, because financially the business runs on a shoestring, it would be a hardship. Being dragged into court makes that only worse, not better.
J. Aughenbaugh: What you've seen, not only with the ADA, we see this with other laws. There are advocates, interest groups that employ testers and they use the threat of litigation to get behavioral change. Sometimes that's effective, but if that's done enough, then the assumption of many courts is,
well, until you demonstrate you were actually going to use the business, you've not been injured, so you don't have standing. This is why this case becomes extremely important for the Supreme Court to weigh in. Again, this is a statutory case. This is about a federal law because there is no provision in the US constitution other than the equal protection clause. The basis of this case is ADA. Even if the Supreme court rules in a way that Congress does not like, Congress could go ahead and rewrite the law, but to me it was just fascinating, because Wayfair just came out and admitted it in a deposition, I had no intention of using their hotel. My job was to go around and check out their websites. Were they accessible to those with disabilities?
N. Rodgers: The thing is, when that case comes up and when lots of cases come up, I think that it's good for people to remember that despite whatever the media is going to say about that, and they're going to say all kinds of interesting things, one, compliance with the ADA is good business. It's a smart thing to do.
J. Aughenbaugh: Because that becomes an entire body of clients, customers.
N. Rodgers: That you opened yourself up to.
J. Aughenbaugh: Yes.
N. Rodgers: It's smart business. It's also ethically good. Nobody here is questioning that the ADA is a good thing. The ADA is a good thing. It forced public transportation to change, it forced public buildings to change, and those are good things, but it does bring into question, at what point have advocates crossed the line into, and forgive me, this is probably not the right word, but I'm going to use it, harassment? What point have they cross the line into, it is no longer about getting access, it is about punishing. Because really what we want here is access. I think most people would say, I don't want to punish the business, I just want to use the business. I want to have equal access to.
J. Aughenbaugh: I want the behavior to change. As you and I have discussed on this podcast, there are times where you don't get behavioral change, when you are always crying wolf. That's an old Biblical metaphor, but after a while, if you go ahead and are overzealous, then the reaction of many supporters is, now you guys have just gone too far.
N. Rodgers: You have to be careful in activism and finding that line.
J. Aughenbaugh: That sweet spot.
N. Rodgers: The sweet spot of everybody agrees and we all want to fix it. You go just beyond that and people are like, really now you're just making it hard on small business. [inaudible] hotels may very well not be a small business. I don't know which chain that is, so I'll be interested to see what the courts say about that.
J. Aughenbaugh: Again, if this was an easy case, they wouldn't have taken their input. When I saw this, I was just like, wow.
N. Rodgers: Before we go, can I ask you a question which I did not prepare you for it so you can feel free to tell me that you don't want to talk about it right now?
J. Aughenbaugh: Sure. Go ahead.
N. Rodgers: But I want to ask you a question. Do you think that we will see a Supreme Court case that involves the former president of the United States and potential indictments slash whatever? Will that make it to the Supreme court?
J. Aughenbaugh: I think.
J. Aughenbaugh: Well, the first case, the one brought by the Manhattan DA about the use of federal campaign monies? I think eventually that case is going to get tossed. I just think the legal argument. Do I think that the former president, when he was running for office, paid off somebody he had sex with,so would want to go public? Yes, I did. I do believe that. I just don't think that he necessarily broke any federal election laws.
N. Rodgers: Ethical versus legal.
J. Aughenbaugh: Legal, yeah. The case that I think has the potential is what Trump did with classified documents after he left office, and I'm trying to think about what would be legal issues that could rise to the level of the Supreme Court, and right now, I'm not seeing any simply because what he got charged with are well-established federal laws, and I don't necessarily think that he's being charged in unusual ways. You understand what I'm saying, Nia?
N. Rodgers: I do. I'm wondering if his defense of when you're the president, it's not illegal. Which is the Nixon defense of my behavior is my behavior because I'm the president, and I'm allowed to do that. We never saw that come before the court with Nixon. Nixon went away before that argument got made to the Supremes about where presidential power, what is his executive power.
J. Aughenbaugh: But with the classified documents, he was already out of power. He was no longer in office. He took the documents with him after he was no longer in office, and then the obstruction charges are him hiding those documents. He's a former president. He became a former president once Joe Biden took the oath.
N. Rodgers: You don't think we'll see that argument?
J. Aughenbaugh: No.
N. Rodgers: I would love to know what the court would do with that argument. This president is king argument. But I'm fascinated too by this idea that the court, in some instances, doesn't weigh in because it says that is a political branch. That is the legislative. That's up to the politics side of this thing, so we're not going to deal with it, and so people who say, it's just going to end up in front of the Supreme Court.
I'm like, I don't know if it will because they try not to get involved in that political weighing-in kind of thing.
J. Aughenbaugh: When I hear that type of argument, I'm like this is a court that generally tries to stay out of the limelight.
N. Rodgers: Not doing the greatest job of that right now.
J. Aughenbaugh: No, and again, I think if the current Chief Justice, John Roberts had his way, next term the Supreme Court would not take any landmark Constitutional law cases.
N. Rodgers: That's reversal case.
J. Aughenbaugh: Yeah, right?
N. Rodgers: We're just going to quietly settle a bunch of administrative law-type things and be boring for a year.
J. Aughenbaugh: Let's take about four or five tax cases.
N. Rodgers: Let's take the spotlight off of ourselves.
J. Aughenbaugh: Let's take a few more trademark cases. Hopefully, none of them actually touch upon the First Amendment and freedom of speech. But let's take a whole bunch of those cases. Maybe throw in a good maritime case. We haven't had one of those.
N. Rodgers: We haven't dealt with the oceans in a long time.
J. Aughenbaugh: In a long time. Because, hey, let's face it, most Americans can't identify most of the oceans anyways. Wait a minute. If that sounded snarky, I'm just relying upon public opinion polls where many Americans struggle to go ahead and name the oceans. Listeners, okay, I'm not being condescending.
N. Rodgers: Don't be offended. He doesn't mean you.
J. Aughenbaugh: No, I don't mean you. You should not feel attacked. I just know that as recently as.
N. Rodgers: Well, and you've also dealt with Saladino giving his map quizzes and having despair.
J. Aughenbaugh: Yeah, right and then also having an 11-year-old okay who's coming home and I got to help her with her geography homework, and I got to give her quiz preparation for the continents, the oceans, and I'm just like, really?
N. Rodgers: What are they teaching you these days? You know what they're teaching them, they're teaching them to look it up.
J. Aughenbaugh: Then, of course, it forces me to go in and say, really there's that many oceans. I don't recall that many oceans.
N. Rodgers: Thank you, Aughie. I'm looking forward to some of these cases as they get argued because we will hear even more nuance in the arguments, and so that will be really interesting. It's been a good summer and I look forward to seeing you in the fall.
J. Aughenbaugh: Likewise. Again, listeners, we have a couple of new series that we have planned.
N. Rodgers: We do. We're going to continue to visit the Federalist Papers. We are going to sprinkle in some of our favorites because we have been asked about that. Just on personal note, what's your favorite political, and they're all political related. They're not just what's your favorite song because how long do you have. For either one of us, that would be a terrible.
J. Aughenbaugh: Decade, a genre.
N. Rodgers: Exactly. I'm going to need you to skip it down to a month within a year for me to pick my favorite song, and we're also at some point, maybe this fall, but maybe in the spring, going to start visiting some of the grounding documents of the United States.
J. Aughenbaugh: Yes.
N. Rodgers: Common sense.
J. Aughenbaugh: The Declaration of Independence. Maybe the First Continental Congress.
N. Rodgers: Exactly, and personal letters written at the time, about the things that were going on in government.
J. Aughenbaugh: Nia mentioned also off recording, maybe pulling up one of the colonies charters to see.
N. Rodgers: Those are primary sources we're going to take.
J. Aughenbaugh: Anyways, listeners, we sincerely hope you have a good summer.
N. Rodgers: We'll see you late August.
J. Aughenbaugh: Yeah, late August and take care of yourself and one another.
N. Rodgers: Thank you.
J. Aughenbaugh: Thank you, Nia. 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.