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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 am looking forward to the future.
J. Aughenbaugh: I knew you were going to go there. I was like, yeah.
N. Rodgers: Well, it's better than looking back to the future. Although that was a great movie.
J. Aughenbaugh: That was a great movie.
N. Rodgers: That was a great movie. In its time, Christopher Lloyd may have been one of the funniest demons who who was ever in movies.
J. Aughenbaugh: The sequels, took the basin plot. But that first one.
N. Rodgers: Doc Brown? He was great. Then he was great as Fester in the Adams family. You're like, who is this guy? He's amazing.
J. Aughenbaugh: When Michael J Fox goes ahead and starts playing the Chuck Berry song before the [inaudible]
N. Rodgers: You got to listen to this.
J. Aughenbaugh: His fellow classmates were like, what is this? The reaction of the band members when he went into the solo was like, whoa. That is just priceless cinematic art. But listeners, this episode is where we discuss what the Supreme Court's docket is going to look like for its next term. Its next term is labeled the 2025/2026 term.
N. Rodgers: Theoretically, when does that term start?
J. Aughenbaugh: It's supposed to start the first Monday of October.
N. Rodgers: Is it going to start in the first Monday of October or is it going to start tomorrow?
J. Aughenbaugh: It's going to start this summer. The reason why it's already started is that the Supreme Court concluded its previous term last week, the last full week of June.
N. Rodgers: They're like, that's it. We're done. Then the next day they came out with an emergency ruling. I was like, I thought you were done.
J. Aughenbaugh: We've discussed in previous summer of SCOTUS series episodes, how the Supreme Court Justices historically view July and August like school kids view summer vacation.
N. Rodgers: They are salivating to get out. They want out.
J. Aughenbaugh: When we talk about getting out, we're talking about justices who go to vacation homes in other states.
N. Rodgers: Or other countries.
J. Aughenbaugh: We're talking about justices who snag plum lucrative teaching gigs at universities in Europe, usually, where the weathers nice, it's cool. They get out of DC.
N. Rodgers: They do talking gigs, they write their books.
J. Aughenbaugh: Clarence Thomas and his wife, Jenny, get into their luxury RV, which, as we've known from previous ethics scandals, was actually afforded to him by a wealthy benefactor. But no matter, they get out of DC. But not this summer. Because this summer, we're talking about the Trump effect.
N. Rodgers: Previously mentioned in our previous episode 300 cases coming through the court system.
J. Aughenbaugh: Yes, the lower federal courts.
N. Rodgers: They're going to filter up.
J. Aughenbaugh: They're going to filter up. Because a whole bunch of district court judges have issued injunctions. Some very narrow, quite a few national in scope, and the justices are going to have to go ahead and entertain and respond to Trump appeals of these lower court injunctions. At the time of recording, there have already been at least two significant ones. I'm looking at, I'm tracking easily nine or ten more, which means these justices may have left DC, but they're still having to respond.
N. Rodgers: We're going to need you to take a secure device with you. The other thing is, if math from the past, at least from our last episode, holds true, they are likely to find for Donald Trump, but not all the time.
J. Aughenbaugh: Not all the time.
N. Rodgers: It seems to be about 25% of the time he loses and about 75% of the time he wins roughly? That's rough statistics because I'm not good at statistics.
J. Aughenbaugh: In these emergency or shadow docket cases, the Court is not looking at the merits of the case.
N. Rodgers: Of the thing. They're not saying you shouldn't you shouldn't reduce enforce. They're saying, does the injunction hold? Should the injunction be allowed to be in place? The answer to that was no.
J. Aughenbaugh: No.
N. Rodgers: Sotomayor was very careful to say in her personal opinion that she didn't think that the riffing was a good idea. She just thought the injunction was a bad idea.
J. Aughenbaugh: She even expressed doubts that it's legal. But what she did agree with the majority, and we're talking about an emergency appeal in regards to the Trump administration firing and laying off thousands of federal government employees, she just went ahead and said, I don't think the lower courts had the authority to issue such a broad injunction. But again, this is going to force the justices to interrupt their summer vacation plans.
N. Rodgers: Which I think is going to lead to crabbiness.
J. Aughenbaugh: That's one part of the court's upcoming docket.
N. Rodgers: Then we have all the cases that we know they've taken. You're going to talk about those now. The actual stuff we know legitimately came to them through briefs and through the requests and stuff.
J. Aughenbaugh: Appeals process. As we've discussed in previous episodes, the Roberts Court over roughly the last half dozen years have only been hearing and deciding about 60-65 cases. We already know about a third of their docket because they've already agreed to hear appeals in slightly over 20 cases. The rest of their docket for their next term will be decided on appeals that are submitted this summer and throughout the fall and early next spring. The cases that we're highlighting right now are the cases they've already accepted. There might be some other really big ones that the court will agree to consider. But right now, I just want to highlight how many, about five or six?
N. Rodgers: I think you've got eight on here.
J. Aughenbaugh: But in some of these, listeners, you may have already heard, the first one out of the chute is a case that was docketed for the last term.
N. Rodgers: It was say, that's a holdover, isn't it?
J. Aughenbaugh: Yes. But the court, on the last day of its-
N. Rodgers: Look, it can. Let's kick it down the road.
J. Aughenbaugh: The name of the case is Louisiana versus Callas. This is an important redistricting case arising from the state of Louisiana. Louisiana created a second majority Black voting district in the state. They were ordered to do so surprisingly enough by the very conservative Fifth Circuit Court of Appeals.
N. Rodgers: But that goes to the Voting Rights Act. Basically, what was at question was, you cannot cram all of the Black people in Louisiana into one district. You have one Black member representing all Black people in Louisiana and then all the rest of the districts would be generally White majority. All the other people who go to Congress would be White. The district court said, "That doesn't seem right."
J. Aughenbaugh: Well, it was the appeals court, which is even more surprising. You could still have a liberal rogue district court judge operating in Louisiana, but when the Fifth Circuit Court of Appeals, which again, is considered the most conservative federal appeals court in the United States, says, "You guys need to create a second majority minority voting district in selecting members to the House of Representatives." Whoa. What Louisiana did was, "Fine. We'll create a second majority Black or minority district in the state."
N. Rodgers: The white voters said, "Hey, you've taken away our rights."
J. Aughenbaugh: Our constitutional rights per the Equal Protection Clause of the constitution. In part, why this case is fascinating is that it pits one of the landmark civil rights laws of our country, the 1965 Voting Rights Act versus the Equal Protection Clause.
N. Rodgers: Thomas is chewing at the bit.
J. Aughenbaugh: He's shopping at the bit.
N. Rodgers: He wants this case.
J. Aughenbaugh: He wrote a dissent. When the court ordered the case to be re argued. He has made it very clear in previous voting district cases that he thinks that the Voting Rights Act of 1965 runs counter to the Equal Protection Clause. In part, the reason why he's got a problem with the Voting Rights Act is that most lower federal courts have interpreted that law as meaning that states have to create majority/minority voting districts.
N. Rodgers: For Roberts or Thomas.
J. Aughenbaugh: Thomas believes that this basically assumes that all minorities will vote the same way.
N. Rodgers: For him, there's also a whiff of affirmative action, which he is not a fan of. That will be an interesting case to see how that comes out.
J. Aughenbaugh: Yes. Now, we have another case, interestingly enough, from Louisiana.
N. Rodgers: Louisiana, you are a problem child.
J. Aughenbaugh: Yes. Landor versus Louisiana Department of Corrections and Public Safety. This concerns the interpretation of a federal law that was passed in 2000, the Religious and Use and Institutionalized Persons Act of 2000. What did Louisiana Department of Corrections did? Well, what they did was a few of their officers forced Rastafarian to shave his beard and cut his hair.
N. Rodgers: If you are wondering, listeners, where dreadlocks come from, I believe that is a Rastafarian religious practice that then took hold in a larger community. I could be wrong about that. Please if I'm wrong about that, gently correct me, don't send me ugly hate mail. It's like Hasidic Jews don't cut their hair and often you will see males with long curls.
J. Aughenbaugh: Curls and skull caps.
N. Rodgers: Because there are religious prohibitions against. Muslim men often wear beard for same reason.
J. Aughenbaugh: The problem is Louisiana Department of Corrections has a general rule that you have to be clean shaven and short hair because they argue that long hair and beards are places where instruments.
N. Rodgers: Could hide.
J. Aughenbaugh: Yes.
N. Rodgers: I assume they would also argue uniformity. One of the things about prison is uniformity.
J. Aughenbaugh: Everybody has to look the same. The problem is according to this inmate, it violates this federal law, which was written at the tail end of the Clinton administration to force state institutions and government officials to justify violating one's free exercise of religious beliefs. To me, this is fascinating because the Roberts Court has been increasingly issuing rulings in favor of religious groups. To me, this is going to be fascinating to see how far the conservatives are willing to go in their interpretation of federal law to protect, in this case, a practice that is, and again, listeners, don't send us hate mail, but in terms of statistics, this would be a minority religious practice. It's not considered a majority in terms of the statistics of practicing observant religious individuals in the United States. Now, the next case, Hamm versus Smith, also arising from one of our well-known southern states from the southern state of Texas. A little bit of history here. In 2002, the Supreme Court in the Atkins ruling, which was a case that arose, actually, Nia, in our home state of Virginia, the Supreme Court ruled that the Eighth Amendment prohibits capital punishment for mentally disabled individuals.
N. Rodgers: The problem that has arisen is what constitutes, assumption that an individual is mentally disabled and thus does not understand the punishment that has been levied by a judge or a jury, particularly a capital punishment. In Texas, State courts allowed prosecutors to test individuals multiple times in the hopes that they find a test result that says an individual is not mentally disabled. What the Supreme Court has done is to take the case, to consider whether or not a state can use cumulative or aggregate multiple IQ scores, in assessing an Atkins claim, or whether or not they are bound by just one, even if that one says that a person is mentally disabled and thus cannot be put to death.
J. Aughenbaugh: Well, I guess what Texas is saying is people lie about this, so they don't get, so they don't get the death penalty. They pretend to be disabled when they are not. You know what would solve that, Aggie?
N. Rodgers: Get rid of the death penalty.
J. Aughenbaugh: Get rid of the death penalty. I mean, seriously. I know I've said that before on this podcast. What I don't like about the death penalty is no take back. If you screw that up and that person didn't do what you thought they did, it's done now. There's another part of me that is much more punitive and says it is, a far more painful thing to spend your life without freedom. Than it is to be put to death, at least in my opinion, because I don't know that I'd want to be in a prison for my entire life.
N. Rodgers: The Atkins decision, by the way, listeners, has always been a controversial decision for conservative Supreme Court justices. Because the court's ruling in that case, I believe the majority opinion was written by Justice Anthony Kennedy. A big chunk of his majority opinion was based on international legal norms. Kennedy argued that the meaning of cruel and unusual punishment should be informed by what the international community has said about the death penalty. He said, most countries no longer put mentally disabled individuals to death, if they still have the death penalty as an option. For conservatives like then Scalia, but also Thomas, the United States federal courts, only have the authority to apply the US Constitution, not international legal norms. In part, this case gives Thomas Alito, and if I had to venture a guess Gorsuch, an opportunity to once and for all, get rid of Atkins?
J. Aughenbaugh: I hope not because it seems unfair to me to put someone to death who, if you can show they were not capable of understanding the system.
N. Rodgers: Or the consequences of their behavior, this gets a mens wear. Which did the person.
J. Aughenbaugh: Intellectual capacity.
N. Rodgers: Capacity to understand the consequences of their behavior, right?
J. Aughenbaugh: It's why we don't put six year olds to death. Yes. Because six year olds don't understand I picked up a gun and I was playing with my brother. Their concept of death and murder and everything else is not doesn't exist. I hope they don't get rid of Atkins. What else do we have?
N. Rodgers: Well, since we're talking about the criminal justice system, let's talk about another case, that I'm tracking that I think listeners might want to pay attention to. This is the Ellenburg versus United States case. Now, for listeners, this case deals with mandatory restitution. For instance, federal law, and a number of states have provisions where if you are convicted of a crime, even when you get out of jail, you may still have to pay restitution to the victims of your crime. Now, in 1996, Congress enacted a new law, the mandatory Victim Restitution Act, which went ahead and said that defendants could be liable, to pay restitution until the latter of two dates, 20 years, after the decision or judgment in a court is entered against them or 20 years after when they were released from prison. This brings us to Ellenburg. I love his first name. Halsey Ellenburg, was sentenced to prison for nearly 27 years and to pay restitution, for his role in a bank robbery in Georgia. At the time he was convicted, he was to pay approximately $2,000.
J. Aughenbaugh: He was supposed to pay for 20 years.
N. Rodgers: During that time, he paid approximately $2,000.
J. Aughenbaugh: But he was given the 20 years versus the, whole time you're in prison. Theoretically, for the seven years that he was serving after that?
N. Rodgers: Yes.
J. Aughenbaugh: He would not have to pay restitution.
N. Rodgers: Yes. He gets paroled, and the government tries to collect additional restitution from him.
J. Aughenbaugh: He gets a job, and they try to garnish his wages.
N. Rodgers: Yes. He argues, this law is in violation of the Constitution because it's forcing me to continue to pay restitution after when I was released. In other words, he was saying, it's the Constitution has a prohibition on ex post factor laws. He goes, when I was convicted, there was no requirement that the federal government could continue to force me to pay restitution after I served my time.
J. Aughenbaugh: Got it.
N. Rodgers: But the 8th Circuit Court of Appeals said, but this is not a punishment. This is a civil remedy.
J. Aughenbaugh: It's not a criminal remedy, meaning your prison time.
N. Rodgers: That's right.
J. Aughenbaugh: It's a civil remedy. Meaning you owe a guy some money.
N. Rodgers: Money. That's right. Because when I read the case facts, he owes restitution to the bank.
J. Aughenbaugh: Because he robbed a bank.
N. Rodgers: Yes.
J. Aughenbaugh: He probably robbed it of more than $2,000.
N. Rodgers: Dollars. That's right.
J. Aughenbaugh: We don't know what he got away with, but he probably got away with more than $2,000, so they want their money. He's like, Dude, I gave you my years in prison. I paid my restitution with my prison job. How long am I going to be punished by this? Oh, that's an interesting one.
N. Rodgers: Now, the next one, and I bet John Roberts, voted not to hear this case, this is another cultural war case. But the name of the case is Child's versus Salazar. This case concerns a Colorado law that bans conversion therapy, IE therapy that is designed to convert someone's sexual orientation or gender identity. The court took the case to decide whether or not the law is regulating conduct or is it violating the free speech clause of the First Amendment? For instance, listeners, most states have laws that regulate doctors treatment of you, and it's considered laws regulating conduct.
J. Aughenbaugh: For instance, let's say that Aggie goes to the doctor and the doctor, has invested time and effort into learning a surgery that will prevent Aggie from ever drinking another cup of coffee again.
N. Rodgers: Oh, my God. That sounds like or.
J. Aughenbaugh: I know he's health. Let's move on. But the doctor says to him, you have to have this surgery. Your heart's gonna explode, blood pressure. If the doctor is going to make money off of that, that is illegal medical practice. I mean, he can't only suggest Aggie have that surgery because he will make money off of that surgery. There has to be a medical need for Aggie to have that surgery. That is the regulation. But there's lots of medical regulations about about appropriate treatment plans. They don't just make money for the doctor.
N. Rodgers: Or they don't work. Let's just say, for instance, the doctor goes ahead and says, Hey, Aggie, I need you to stop drinking coffee because if you don't going to suffer this really bad, disease. But what if the doctor is wrong? Well, the doctor won't get prosecuted for malpractice.
J. Aughenbaugh: Because of his speech, he's being prosecuted for malpractice because his behavior recommended a course of treatment that was wrong, and he should have known it was wrong because he's an expert. That's what Colorado is arguing. Colorado is arguing that we're not trying to go ahead and stop what therapists say to individuals. What we're trying to stop is therapy that is dangerous or harmful to their patients. What's at issue here is Kaley Chiles is a licensed counselor in Colorado and she's a practicing Christian. What she sometimes advocates based on Christian values is that human sexuality clearly establishes that you're either born a male or female.
N. Rodgers: That you're born straight because God frowns upon being homosexuals according to Christian values.
J. Aughenbaugh: Christian values. She argues that speech, which is protected by the First Amendment, Colorado is arguing is, no, that therapy is conduct that you should know is potentially harmful to your patients.
N. Rodgers: I see. If you as a doctor know that doing yoga will not prevent your patient's cancer from spreading, you cannot say, as your cancer treatment, I think you should do more yoga. Because if you do that, your behavior has suggested a negligence. You are being negligent of this person's overall health.
J. Aughenbaugh: That's right. You have a requirement per that state to not advocate treatment that you know won't help your patient.
N. Rodgers: You know harm is both commission and omission.
J. Aughenbaugh: Omission.That's right. The Tenth Circuit Court of Appeals upheld the Colorado law.
N. Rodgers: She's saying it violates her right to free speech.
J. Aughenbaugh: Speech. Yes.
N. Rodgers: That she should be allowed to say these things. I'm not sure that I disagree with that, except that she's not saying them as a citizen. She's saying them in the medical context, which is a different context.
J. Aughenbaugh: The reason why she's able to go ahead and have clients and to conduct therapy sessions is that she has been licensed by the State of Colorado to do these things. Now, the Tenth Circuit upheld the California law and it went ahead and did so based on evidence of the harms of conversion therapy.
N. Rodgers: Colorado law.
J. Aughenbaugh: Yeah, the Colorado law. Again, the Tenth Circuit said, Colorado can do this per their police power in the 10th Amendment. They get to regulate the healthcare profession to protect the health and safety of the citizens of Colorado.
N. Rodgers: Basically Colorado is saying, you can do this, you just can't do it in Colorado. You can go to some other state that would allow you, but our rules.
J. Aughenbaugh: Well, that is true, but you also got the conflict here now between two parts of the Constitution, the 10th Amendment and the First Amendment.
N. Rodgers: Free power is free speech.
J. Aughenbaugh: I tell this to students all the time. Oftentimes what Supreme Court cases concern is the conflict between two Bill of Rights, the 10th Amendment and the First Amendment in this instance.
N. Rodgers: Because they're really the only ones who can settle it at least in the system that we have currently agreed on. Tell me about the FEC, the Federal Election Commission. Please tell me that this is a case about stolen elections.
J. Aughenbaugh: No, it's not about stolen elections. Sorry.
N. Rodgers: I was hoping we could get that through the legal system.
J. Aughenbaugh: No. This actually is another First Amendment case. This is the National Republican Senatorial Committee versus the Federal Election Commission, the FEC. There is a federal law that prohibits political parties from spending money in coordinated communications with specific candidates.
N. Rodgers: That's why it says, this message provided by XPAC as opposed to this message approved by John Aughenbaugh.
J. Aughenbaugh: Well, more specifically, the McCain-Feingold campaign finance law that was passed during the Bush 43 administration had a limit on how much political parties could specifically coordinate fundraising campaign ads, etc, with specific candidates. You can give money to candidates, but you can't coordinate with the particular candidate. You either just either give the money or you don't.
N. Rodgers: You're not allowed to make your messaging all line up.
J. Aughenbaugh: Yeah.
N. Rodgers: Got it.
J. Aughenbaugh: The Supreme Court agreed to revisit its 2001 ruling in the FEC versus Colorado Republican Federal Campaign Committee, where the justices actually upheld an FEC regulation that limited coordinated campaign expenditures. Again, this is a restriction on political parties, right?
N. Rodgers: The restriction on money is a restriction on political speech, according to Citizens United.
J. Aughenbaugh: That's right. Thus, when the NRSC, the National Republican Senatorial Committee, the National Republican Congressional Committee, then Senator J.D. Vance and then former representative Steven Chabot, who represented Ohio in the House of Representatives. They went ahead and claimed that this law, as interpreted by the FEC violates the First Amendment. They're specifically asking the Supreme Court to overturn their Colorado decision. Again, this is a bit [inaudible] .
N. Rodgers: Because money is speech.
J. Aughenbaugh: That's what they emphasized in their appeal. They're like, based on, who wrote the majority opinion in Citizens United? I want to say Anthony Kennedy. I think it was Anthony Kennedy.
N. Rodgers: Anthony Kennedy, your memory is excellent.
J. Aughenbaugh: Anthony Kennedy has the famous quote. "In politics today, money is speech."
N. Rodgers: Sad but true. Not that it should be, but that it, in fact, it's probably undeniable.
J. Aughenbaugh: To me, what's fascinating is I know the medias going to portray this as the Republican Party, is trying to do this. But I'll be interested to see whether or not the Democratic Party submits friend of the court briefs in support of this.
N. Rodgers: Because they want the same thing. They want to be able to spend oodles and oodles of money to try to elect their people. If they're smart, they won't try to make this a Republican thing only because it's not a Republican thing only. One of the things that we have said for years and years, people outside of the political science world who look at it, which is me, not Aughie is, there should be extremely strict limits on the amount of money that can be spent in politics, because what we are now seeing is that we are awash in money. You get somebody like Elon Musk, who has the ability to spend $230 million. It didn't do him any good in Wisconsin, but it wasn't for lack of trying.
J. Aughenbaugh: Again, here, you're talking about the parties. The parties in one sense, are at a disadvantage.
N. Rodgers: Because you have billionaires who can do this individually.
J. Aughenbaugh: The Koch Brothers on the right or Warren Buffett on the left.
N. Rodgers: George Soros somewhere in there.
J. Aughenbaugh: George Soros.
N. Rodgers: Now Elon Musk.
J. Aughenbaugh: Musk. They can raise billions of dollars or just use billions of their own dollars. To influence elections.
N. Rodgers: Michael Bloomberg in New York. About you.
J. Aughenbaugh: But the parties are at a disadvantage.
N. Rodgers: Because they can't do that.
J. Aughenbaugh: Because they can't do this.
N. Rodgers: I wonder if McCain-Feingold was a lack of imagination of what billionaires.
J. Aughenbaugh: Might do in the future.
N. Rodgers: How they would decide to play with their money?
J. Aughenbaugh: Well, what's fascinating is McCain-Feingold, one of its purposes, Nia, was to limit soft money.
N. Rodgers: How's that working out?
J. Aughenbaugh: But the Supreme Court undercut that provision in the law with Citizens United.
N. Rodgers: Are they willing to undercut it more?
J. Aughenbaugh: But in Kennedy's majority opinion in Citizens United emphasized that political action committees, whether it be from corporations, individuals, labor unions, they can't be limited in how much money they spend as long as it's not coordinated. With a campaign. Now, let's be very clear. The FEC is so grossly, historically understaffed. We talked about this when we covered the FEC in our series on independent regulatory commissions that they cannot police.
N. Rodgers: There's no way that they can track all of that. They're tracking the biggest cases, maybe.
J. Aughenbaugh: Yes. To me, what's fascinating is, will the court maintain this fiction about coordination?
N. Rodgers: They're not talking to each other. All it does is make me as a GenX are even more cynical. I'm like, really? Come on. Come on. It's billions and billions of dollars sloshing around in the system and don't even try to tell me that they're not talking to each other about how to spend the money. How to make sure that ads or ad spending is done so that you keep a person's name in, I'm not buying what they're selling.
J. Aughenbaugh: Nia, I got to share this anecdote with you just real briefly. I was on a panel after Citizens United, where pretty much the rest of the panelists just railed against the Supreme Court, for allowing in particular corporations, to spend all this money on politics.
N. Rodgers: Corporations are people too.
J. Aughenbaugh: Of course, I responded, It's not just going to be corporations. It's going to be trade associations, unions, wealthy Americans. I said, but to me, the most ludicrous part, and I still remember saying this, and the rest of the panel just looked at me like I had 10 years. I said, the most ludicrous part of Kennedy's majority opinion is saying that we are allowing these groups and these individuals to spend their money as long as it's not coordinated with any specific campaign. I said, Who is going to enforce that? There was a pause.
J. Aughenbaugh: How are you going to enforce that?
N. Rodgers: There was a pause in the room, and everybody just looked at me and I said, well, it's got to be the Federal Election Commission. But the FEC doesn't have enough staff to go ahead and police what's going on in real time in elections. They punish candidates in campaigns after the fact. I'm like, this is ludicrous. This is completely unworkable in terms of implementation. They were like, you're such an administrative law geek. I said, well, of course.
N. Rodgers: Well, way be setting us up for failure court, but that's neither here nor there. We got a couple more.
J. Aughenbaugh: We got a couple more. The next one by all accounts is an administrative law case,.
N. Rodgers: After your heart, of course.
J. Aughenbaugh: Yes. Urias-Orellana versus Bondi. This is Bondi, who is the Attorney General. The justices took this case to decide how much deference courts of appeal should give to determinations made by the Board of Immigration Appeals when an individual is seeking asylum, but has not yet been persecuted. Let's say, Nia, you seek asylum to the United States from another country. Your claim is the reason why I'm seeking asylum is that if I stay in my country, I'm going to be persecuted because of my political beliefs.
N. Rodgers: I'm going to be rounded up and harmed in some way.
J. Aughenbaugh: In some way. Now, increasingly, the Board of Immigration Appeals is forcing the federal government to challenge your claim. If the government cannot show your claim is demonstrably false, then asylum must be granted.
N. Rodgers: If I'm Italian, and I say to the immigration folks, I will be persecuted for being Catholic if I am sent back to Italy. The government has a pretty easy case to say, really? Hello, the Vatican. You can be booted out. But if I say, I'm the "wrong", and I'm not saying wrong in my personal opinion, but I'm the wrong Muslim, and I can't be sent back to Saudi because I'm Sunni and Shia or the reverse. I'm sorry. But you know what I mean? They have to prove that I would not be in danger, or they have to let me stay?
J. Aughenbaugh: Yes.
N. Rodgers: Is the court saying the Board of Immigration Appeals is the board of final arbitration on that?
J. Aughenbaugh: The court is taking the case to decide how much federal appeals courts should defer to rulings made by the Board of Immigration Appeals, and this is the reason why it touches upon administrative law
N. Rodgers: Do they have standing?
J. Aughenbaugh: Well, not so much do they have standing. It's just how much deference should federal appeals courts give to determinations made by the Board of Immigration Appeals?
N. Rodgers: Got you.
J. Aughenbaugh: This brings us back to Loper Bright decision from last year. How much should the federal judiciary defer to the experts in the bureaucracy?
N. Rodgers: There are going to be 86 opinions out of this case.
J. Aughenbaugh: Well, and this is big, because of the Trump administration's increased efforts to deport non-citizens. In many instances, the Trump administration is saying, these folks are claiming asylum, and the Board of Immigration Appeals is agreeing or accepting their claims, and we believe that those determinations should be granted very little deference by federal appeals courts.
N. Rodgers: I think that this is going to put the liberal justices in an odd place, because if you say that these boards should be respected by the court, then the board of 17 people who just got replaced from the Health and Human Services with vaccines, who are very conservative about vaccines and, in fact, in many instances do not believe in vaccines, which will drive the liberals crazy, then you would also be giving deference to that board. Be careful how you open this can of worms.
J. Aughenbaugh: You think about the flip side. It might be difficult for the conservative justices, because it was the conservative justices who say bureaucratic experts should not be deferred by federal appeals court judges.
N. Rodgers: This case is going to be fascinating to watch.
J. Aughenbaugh: The fact that the justices agreed to take this on, I was just like, wow. I wonder if there was one or two liberals and one or two conservatives who decided to take the case, but for different reasons.
N. Rodgers: It'll be fun to read the dissents. Will Pam Bondi represent the government, or will she be represented by someone else?
J. Aughenbaugh: No. More than likely, she'll be represented by the solicitor general.
N. Rodgers: Okay.
J. Aughenbaugh: Yeah, the solicitor general. The US Attorney General hardly ever argues cases in front of the Supreme Court. Now, they have final decision on whether or not the federal government should appeal. But that's based on a recommendation made by the person who will more than likely argue the case in front of the Supreme Court, the solicitor general. I bet John Roberts is like, my colleagues are killing me. The next two cases have been combined by the court. One arose from West Virginia, and the other one comes from Idaho. The Idaho case is Little versus Hecox, and the West Virginia case is West Virginia versus BPJ, an acronym for a minor. The Idaho case looks at a challenge to the State's Fairness and Women's Sports Act, which drew "an across the board distinction based on sex, which would prevent transgendered athletes from competing in girls and women sports leagues." When that law was challenged, the Ninth Circuit Court of Appeals declared the law unconstitutional, holding that it more than likely violated the Equal Protection Clause of the 14th Amendment. The West Virginia case arose after that state passed its Save Women Sports Act, which bars athletes who were born male from participating on girl sports teams in competitive and/or context sports. The Fourth Circuit Court of Appeals ruled in the team's favor, deciding that the law violated Title IX of the Civil Rights Act.
N. Rodgers: One court goes with the Equal Protection Clause, and one court goes with Title IX.
J. Aughenbaugh: Yes.
N. Rodgers: Now the Supremes have got to decide between those two?
J. Aughenbaugh: Yes. To me, what's fascinating about this is the Fourth Circuit's ruling based on Title IX, came after the Biden administration said that Title IX protects transgendered athletes. It was one of the first times that any presidential administration used Title IX to cover transgendered athletes. In fact, I think it was the first time argued in a federal appeals court. The Ninth Circuit focused on the Equal Protection Clause, and this has so many, if you will, remnants of the Skrmetti case that the Supreme Court just decided. There, the Tennessee law banned Beta blockers and medical procedures for transgendered minors.
N. Rodgers: The court upheld?
J. Aughenbaugh: The court upheld the Tennessee law. This is the next battle in regards to the rights of transgendered individuals
J. Aughenbaugh: I got to admit, based on the opinions in the Skrmetti case.
N. Rodgers: The transgender community is going to get handed another loss. I think they'll say that Title 9 was written to be more specific than the Equal Protection Clause and the intent of Congress was to protect girls and women in sport.
J. Aughenbaugh: Sports to give them more opportunities.
N. Rodgers: Speaking as a woman who grew up with this idea of We used to be told when I was a kid, boy sports pay for everything. Boys sports are more important. They just are. They're more important. We all go to football games because those are more important and what Title 9 was theoretically supposed to do was help even that playing field and say, Yes, girls sports may not bring in the same money that boys sports bring in, but there still needs to be girls sports. There still needs to be a place for girls to do athletics athletics don't just help your body. They help you learn cooperation and teamwork and leadership, like there's all these things. An interesting question because what do you do with transgendered students? You want them to have the ability to have access to those same leadership and team mating and all that atmosphere. But you also needed to be safe for everybody to participate.
J. Aughenbaugh: If you allow transgendered athletes to occupy spots on teams that may have gone to non-transgendered females.
N. Rodgers: Do you harm females?
J. Aughenbaugh: The justice who's going to be fascinating with these two combined cases is Gorsuch. On one hand, he joined the majority in the Skrmetti case because the Skrmetti case was about the Equal Protection Clause. On the other hand, I think it was three years ago in the Bostock case, he said that sex in the 1964 Civil Rights Act could include protection for transgendered individuals who were discriminated in employment.
N. Rodgers: He's got to find.
J. Aughenbaugh: I wonder if he votes to uphold the Idaho law because it was challenged on and held deficient in terms of the Equal Protection Clause. But upholds the Fourth Circuit Court of Appeals ruling in regards to the West Virginia law. Because it was based on by administration's reinterpretation of Title 9.
N. Rodgers: This this time around, the dissents are going to be fascinating in several of the cases. We're going to see, in case people are wondering, we're going to see lots of six, threes, five, fours.
J. Aughenbaugh: Yes.
N. Rodgers: Out of these eight cases.
J. Aughenbaugh: Yes.
N. Rodgers: That doesn't mean and like we said before, we talked about, I think 12 or 14 cases from last year, and there were 60. The rest of those cases were almost all unanimous or 637281.
J. Aughenbaugh: There were 254s.
N. Rodgers: The big ones get that, but the other ones don't other ones get, we all agree you can't do that in the tax law or whatever.
J. Aughenbaugh: Listeners, a couple of things to keep in mind, the cases that we just mentioned, but again, okay the Trump effect on the Cords docket.
N. Rodgers: The sheer exhaustion they're going to experience.
J. Aughenbaugh: I mean, because let's face it, a lot of these shadow docket cases have been about process. But once they get sent back to the lower courts and the lower courts start holding hearings and issuing decisions, that's when the merits of the Trump administration policies then will rise up to the federal appeals courts and then eventually the Supreme Court.
N. Rodgers: Birthright citizenship is coming.
J. Aughenbaugh: Sure.
N. Rodgers: Other cases are coming.
J. Aughenbaugh: Coming. Yes.
N. Rodgers: Where we're going to it's going to actually be on the merit of the law. It's not going to be.
J. Aughenbaugh: About the process.
N. Rodgers: That stuff is coming. And it may come next, or it may come the following.
J. Aughenbaugh: Following term. Yes.
N. Rodgers: We'll have to see how long the cases take.
J. Aughenbaugh: I mean, particularly because remember, folks, we have an intervening variable that occurs this November.
N. Rodgers: The midterms.
J. Aughenbaugh: For opponents of the Trump administration, if you think that the first few months of his second term had a lot of executive orders. Think about how more willing he will be to issue executive orders if his party loses control of one or both Houses of Congress.
N. Rodgers: The last year, all bets are off. Oh, my goodness. Because the last year of his presidency, he will have nothing to lose.
J. Aughenbaugh: Yes.
N. Rodgers: This is going to be we are living in interesting times. We have been cursed by an ancient Chinese individual to live in interesting times.
J. Aughenbaugh: Yes.
N. Rodgers: But what's good news is that we you and I will never run out of Supreme Court stuff to talk about.
J. Aughenbaugh: Oh, my goodness, yes. I mean, and I've joked at academic conferences. Instead of bemoaning the Trump, you know, Trump presidency, we should cherish and glorify it because it gives us so much work.
N. Rodgers: Comedians are like, I won the lottery. I got dragon.
J. Aughenbaugh: Comedians and constitutional law professors are like, Wow.
N. Rodgers: Thanks.
J. Aughenbaugh: Thanks.
N. Rodgers: Dan's a lecturate.
J. Aughenbaugh: Yes. Hey, could you give me a couple of months off? Just a couple, anyway, thanks, Nia.
N. Rodgers: Thank you, Aggie.
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