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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 good. How are you?
J. Aughenbaugh: Well, I'm good for a number of reasons, and one of the most important ones is?
N. Rodgers: You're hanging out with me.
J. Aughenbaugh: Well, I am hanging out with you, and we're talking about one of my favorite subjects, The United State Supreme Court. Listeners. This is another episode in our summer of Scotus, The United States Supreme Court. The next few episodes, we're going to be reviewing some of the important Supreme Court decisions from the 2023-2024 Supreme Court term.
N. Rodgers: I was just about to ask you if they did anything this year.
J. Aughenbaugh: They've issued some important rulings. Listeners, we're going to be breaking this up into multiple episodes because at the time we are recording, the Supreme Court has only issued decisions in about a third of the cases they've heard.
N. Rodgers: They're foot-dragging in the middle of this year.
J. Aughenbaugh: According to scholars who study the court, they are slow by even recent standards.
N. Rodgers: Just last year was pretty bad.
J. Aughenbaugh: Bad, yes. This year is even worse. Right now, they've only really basically issued decisions by and large, in cases that were not closely divided. Today's episode, we're going to be looking at a number of decisions where the votes were 9-0, 7-2. They're important cases, but they didn't really divide the court.
N. Rodgers: Can we talk about the one that came the closest?
J. Aughenbaugh: Sure.
N. Rodgers: 6-3.
J. Aughenbaugh: Let's do it, most awkward.
N. Rodgers: Most devices.
J. Aughenbaugh: Of the ruling.
N. Rodgers: Of the ruling so far. We are fully expecting that at least a couple of the rule that come out are going to be so divisive that the vote may be one hyphen one hyphen. It may just be that there are no, you know what I mean? It's it's going to be 4.5 thing. You don't even know they could do that, but they're going to turn out to find some way to do that because there's really device and stuff.
J. Aughenbaugh: You're going to see some rulings where the vote totals, if you're trying to summarize them, are 414. Or six justices agree with the majority opinion on Parts 2, 3, and 4. But a majority of the justices don't agree to Parts 5 and 6.
N. Rodgers: Have written dissents on this and this. It's almost they've done the easy stuff first.
J. Aughenbaugh: Yes.
N. Rodgers: To get it out of the way. We could, by the way, and if you don't mind, I would like to state this for the record. The Scotus decision as far as I can tell, are released when they dang well feel like it. As far as I can tell J Rob does not have some internal calendar where he says, ''By this date, we're going to have this done, by this date, we're going to have this done.'' It does not seem to be working that way to me.
J. Aughenbaugh: No. Unlike his predecessor Chief Justice William Rehnquist, John Roberts has a lighter touch. Rehnquist, for instance, would send out monthly spreadsheets.
N. Rodgers: Who's behind?
J. Aughenbaugh: Who's behind?
N. Rodgers: Not to shame you or anything, but your mid-term exam grade is an F, so we're going to have to bring that up a little bit.
J. Aughenbaugh: You are correct Nia. We discussed this a couple of years ago, the fact that the justices don't pay attention to what the media would prefer or what the voting public prefers, or what government officials prefer. They don't issue decisions until all of their opinions have been written. If you're writing a dissent, the majority opinion could have been done months ago. But until you are done writing, until all the justices are done writing in a case, the case will not get released.
N. Rodgers: Also, It feels like there might be a little more division on the court, and that could also drive length.
J. Aughenbaugh: We'll discuss that with our last.
N. Rodgers: In the final statistics.
J. Aughenbaugh: Statistics, and other observations. Let's talk about the first case that Nia just referenced a few minutes ago, Alexander versus the NWACP of South Carolina. This concerned South Carolina redrawing its congressional districts after the 2020 census. The Supreme Court ruled in favor of the state of South Carolina, but the vote was 6-3. The six justices in the majority were all the Conservatives on the court. The three in the dissents were all the Liberals.
N. Rodgers: I have to admit this one hurt me a little. Because the justices found that if it's okay for you to gerrymander for partisan politics, it's not okay for you to gerrymander based on race. It's not okay for you to squish all of let's say the African-American voters into one district, so there's only one African-American that represents the state or you're not allowed to do that. But apparently, according to the Supreme Court, you are allowed to say, ''I'm for all Republicans and I shall squish out as many Democrats as I can or the verse, depending on the state.'' I will squish out as many Republicans. I'm assuming that happens in places like California and New York, and so I find that a little distressing. I have to admit.
J. Aughenbaugh: Well, the difficulty here, what Nia is pointing to you listeners. The South Carolina Legislature created a congressional map where they basically according to the lower court, exiled Black voters from one district to another to protect a White Republican incumbent. The difficulty is and here's a basic assumption. The assumption is Black voters are Democratic voters, whereas White voters are Republican voters and as Nia has pointed out, the Supreme Court has made it very clear that you can't draw congressional maps or state legislative maps based on racial gerrymandering. But how do you disentangle race from partisan criteria?
J. Aughenbaugh: If you basically assume that most blacks will vote for Democrats, and most whites will vote for the Republican Party.
N. Rodgers: Yeah, see, I personally think that gerrymandering should be legal all around. Just throw the districts and live with it.
J. Aughenbaugh: Unfortunately, Nia, you're running up against a whole bunch of Supreme Court rulings that say racial gerrymandering is unconstitutional per the equal protection clause of the 14th Amendment, but partisan gerrymandering.
N. Rodgers: Is fine.
J. Aughenbaugh: Well, it's fine according to the Federal Constitution. What the Supreme Court said in Rucho versus Common Cause about five years ago was, partisan gerrymandering is a state matter. Now, could a state get rid of partisan gerrymandering? Yes. But as you pointed out.
N. Rodgers: Who would? Which party would do that because both parties do it. Both parties use it to benefit themselves and as legislature swing from one to the other, what they can all agree on is that they want to be able to draw the maps to benefit themselves and harm their opponents.
J. Aughenbaugh: The political impact of the Alexander case is that it could have a huge impact this fall because the House of Representatives is so closely divided. In many ways, the Alexander case did not break any new ground in regards to constitutional law. The Supreme Court over roughly the last, I would say, 6-8 years, has basically said, partisan gerrymandering does not violate the US Constitution. Racial gerrymandering does. The burden is on the challengers to show that race was the primary motivation in the maps that were drawn. But politically, it could have a huge impact because depending on how aggressive a state legislature is in doing partisan gerrymandering, well, the Republicans right now have a five or six seat majority. You change five or six seats out of 435 it could be the Democrats this fall, who regain control of the House.
N. Rodgers: Not likely, but yes.
J. Aughenbaugh: We'll talk about that in the fall. Yes.
N. Rodgers: It also affects the Senate because technically, the senators are going for half of the state, right?
J. Aughenbaugh: No. The Alexander decision doesn't really affect the Senate. It affects state legislatures. Again, state legislatures play an important role for a lot of reasons, including the drawing of congressional maps. Yes.
N. Rodgers: It just feeds itself.
J. Aughenbaugh: Yeah. The next ruling is an administrative law case. The Consumer Financial Protection Bureau, the CFPB and remember, listeners, we do love our acronyms on this podcast versus the Consumer Financial Services Association of America. This was a case concerning a challenge to the CFPB. Basically, the challenge was the CFPB's funding mechanism was unconstitutional because it basically allows the CFPB to get its funding through the imposition of fees imposed by the Federal Reserve Board. Basically, the CFPB gets most of its operating money, not from annual appropriations from Congress but because of fees that it imposes on the financial industry in the United States.
N. Rodgers: But Congress wrote it that way. They set it up that way, not the CFPB just decided one day that's how they were going to fund themselves.
J. Aughenbaugh: Yes. Congress wrote it that way because they wanted the CFPB to be independent. The CFPB for our listeners who don't know this particular federal agency was created after the great recession of 2007-2009. It was designed to go ahead and protect, as the title of the agency would suggest. It was designed to protect consumers. Well, how do you go ahead and protect consumers or how do you protect the agency that's designed to protect consumers if the agency's funding could be affected by the annual appropriations process in Congress?
N. Rodgers: It could be put on hold, it could be slashed, it could be cut out all together.
J. Aughenbaugh: Yes.
N. Rodgers: That's how Congress sometimes controls an agency or a bureau is they just don't give it enough money to do anything.
J. Aughenbaugh: Yeah. It's what me and a fellow doctoral student, colleague of mine. We wrote a paper about this many years ago. We referred to it as public policy light. Congress creates an agency and says, the agency has all this authority to go ahead and solve a particular public policy problem. But then Congress doesn't fund it.
N. Rodgers: The common phrase used for that is unfunded mandate, isn't it?
J. Aughenbaugh: Well, that's when you put a burden on state governments, but then you don't give them any money.
N. Rodgers: Similar concept.
J. Aughenbaugh: Yeah, it's derivative of public policy. Why? The Supreme Court actually ruled in favor of the CFPB. The vote was 7-2. The majority opinion was written by Thomas. I think the only two dissenters were Alito and Gorsuch.
N. Rodgers: Just to clarify, that means that Thomas and Sotomayor were on the same side in something.
J. Aughenbaugh: Yeah. This is probably one of the rare times this term that you will actually see, well, actually, we're going to be talking about a couple of other cases where the vote was 9-0, but they don't usually vote together. But Thomas' point was, the funding process or mechanism isn't prohibited by the US Constitution. From a strict constructionist point of view, if something's not prohibited in the Constitution, then it's allowed. But this was one of a number of administrative law cases that the Supreme Court took this term. In future episodes, we're going to have a couple more when the court finally gets to ruling on them, where you see active challenges to the modern administrative state because basically, this was a creation by Congress to address a particular problem that arose during the great recession.
N. Rodgers: I'm a little bit torn about this one because, one, Congress set it up that way, and Congress is the elected branch, and that's how things should work. But I have to admit there's a little part of me that says, doesn't that then encourage the CFPB to impose fines on a variety of institutions so that they can fund themselves? Which is probably the argument.
J. Aughenbaugh: Yeah, that's what the association argued in the case, but it was unpersuasive to the Court because as the Biden administration pointed out, if the Supreme Court said the funding mechanism was unconstitutional, then it would likely also have to rule that the funding mechanisms for other regulatory agencies might also be unconstitutional.
N. Rodgers: This is a slippery slope they're standing on? If you say, well, that's not going to work.
J. Aughenbaugh: Including the Federal Reserve, because the Federal Reserve generates a whole bunch of money, again, because of fees it imposes on all banks in the United States but also even the Social Security Administration, because Congress doesn't allocate money to the Social Security Administration. The Social Security Administration's funding comes from taxes that workers pay in the United States. Again, the agency's money doesn't derive from the common good, the Treasury Department, it comes from people who work.
N. Rodgers: It's in Social Security's best interest for as many people to work as possible?
J. Aughenbaugh: Well, that's right.
N. Rodgers: Pro job, they must be.
J. Aughenbaugh: They have to be pro job. Much like the Federal Reserve because one of the Federal Reserve's primary missions. Again, the argument is, if you lend money, then people will buy. When people buy, that generates economic activity, which means businesses will hire more people to meet the demand for goods and services.
N. Rodgers: There's a tiny little surcharge on lending money to banks to lend to other people. There's a whole thing mechanism. I see where that could have collapsed a lot of different organizations.
J. Aughenbaugh: The metaphor that really made sense to me was, if you pull this string, Nia, then.
N. Rodgers: The whole sweater comes on down.
J. Aughenbaugh: Because there are other strings that are similarly constructed, other sweaters that are similarly constructed.
N. Rodgers: Pretty soon, everybody doesn't have a sweater, and we're like Jimmy Carter in the cold.
J. Aughenbaugh: Nice reference. Our next case is an employment discrimination case, Muldro versus the City of St. Louis.
N. Rodgers: I love this case.
J. Aughenbaugh: Muldro was a cop who got re-assigned. She didn't lose rank, but she got re-assigned. She argued that the re-assignment had a discriminatory effect on her employment situation. The Supreme Court in the 9-0 vote went ahead and said that workers can pursue employment discrimination claims without having to show that the involuntary move caused a significant disadvantage.
N. Rodgers: Did you have to show that it shows harm, but not significant harm?
J. Aughenbaugh: Harm. That's right.
N. Rodgers: It lowered the bar of the harm that they had to show in order to be able to say, hey, this is not legal.
J. Aughenbaugh: Yes.
N. Rodgers: Because she didn't lose money, and she didn't lose rank but she lost a prestigious position, and in a hierarchical position like the police, you being moved to a desk job, or you being moved to something that's less prestigious.
J. Aughenbaugh: If you have to work weekends instead of weekdays and in a police department, if you no longer work on special task force or units, that lead to typically promotion and with promotions and pay increases. This case is rooted in a federal law, Title VII. The Supreme Court basically clarified that Title VII doesn't require the person alleging discrimination to show a significant, if you will, disadvantage. They just have to go ahead and show that because of one of the protected classes, which include race, gender, age, let me see if I remember all the protected classes. Race, gender, age, ethnicity/national origin, and I'm missing.
N. Rodgers: Religion?
J. Aughenbaugh: Religion, yes, which we talked about last year.
N. Rodgers: Which is pretty funny from the atheist reminding the Catholic. Your people are covered under this.
J. Aughenbaugh: Well, and it's funny, too, because, near last summer of Scotus, we actually talked about the employment discrimination case of the part-time postal worker, who lost his job because he wouldn't work on the Sabbath.
N. Rodgers: Which was not okay.
J. Aughenbaugh: Which was not okay.
N. Rodgers: I'm with the Supremes on that. That's not okay either. Just because it is not a thing that I believe doesn't mean that it should not be respected. In this instance, she complained because she's female.
J. Aughenbaugh: Yes.
N. Rodgers: She was saying that as a woman in a police situation, she was in a protected class. Her reassignment was less prestigious, and it made her look bad. It made her look like she wasn't as competent as the men in her department, which they agreed was enough harm that she could go forward with her lawsuit. All this did was give her permission to go back to the beginning and come back through a lawsuit but it didn't actually give her a win. It just gave her permission.
J. Aughenbaugh: Well, the reason why this ruling is the court provided some clarity. This case arose because the lower courts were divided on what should be the standard. When you see the Supreme Court in a 9-0 vote with an opinion written by Kagan, that made it very clear. Title VII does not require a showing of significant disadvantage, the burden is still on the person claiming discrimination.
N. Rodgers: They still have to show they've been harmed, but not have been harmed so very much that it has ruined my career or whatever.
J. Aughenbaugh: I like it when the Supreme Court provides clarity. When you can get a 9-0 vote, you can't get any more clarity from the Supreme Court.
N. Rodgers: Although, sorry, y'all, we're about to hit you with three more 9-0 votes. This idea that they are divided in some ways, and they are totally not divided in other ways.
J. Aughenbaugh: Divided in other ways.
N. Rodgers: I'm not entirely certain that even the best predictors can predict exactly where they're going to go with something.
J. Aughenbaugh: Well, a good example of this is our next two cases. These are two combined cases, O'Connor-Ratcliff versus Garnier and Lindke versus Freed. The issue here was you had individuals claiming that when government officials blocked them on social media, it violated their First Amendment rights. The Supreme Court said, it depends, and the vote was 9-0.
N. Rodgers: It depends.
J. Aughenbaugh: It depends. Yes?
N. Rodgers: Hang on. I'm sorry. It's taking me a second. The text of the First Amendment is congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press, or of the right of the people peaceably to assembly and to petition the government for a redress of grievances.
J. Aughenbaugh: Yes.
N. Rodgers: That last phrase, petition the government for a redress of grievances that is mostly coming into play here. It's people on social media saying you're a fink. This is not how it should be done and criticizing.
J. Aughenbaugh: It actually combines two of the liberties found in the First Amendment. You should be as a member of the public, to be able to speak publicly on government matters, but also petition the government for redress. Now, what we're talking about here listeners is the fact that many government officials have social media accounts.
N. Rodgers: Yes, they do.
J. Aughenbaugh: They either have Facebook pages, they have Instagram accounts.
N. Rodgers: X formerly Twitter.
J. Aughenbaugh: Yeah, they have Twitter accounts, etc. But what happens when you get somebody in your public that just like starts posting criticism of you and of your government on your social media accounts. Can you as a government official block them? Now, what the Supreme Court said was, public officials are liable constitutionally per the First Amendment for blocking or deleting critics from their social media accounts only when they're acting in an official capacity with the actual authority to speak on behalf of the government.
N. Rodgers: Let's just pretend that Aughie is on Twitter or X, which is now the name of that which was formerly called Twitter. He's on X and I know he's not official but bear with me for a second. He says the Political Science Department's policy regarding absences is and he makes some statement. Then somebody gets all crabby and they write back multiple times saying, this is why you're wrong and this is where it should be blah blah. He cannot block that person because he's acting in an official capacity for the political science department. But if he posts on his X a personal opinion about something going on politically, I think that there should be more free bears in Maymont Park and we could just see who fights it out among people and bears. If he puts that in there as a joke I would hope and somebody criticizes him about, you're being mean to bears and you're a bear hater and blah, blah, blah. He could block that person because it's not an official capacity statement. Am I in the neighborhood of what they're saying the difference is?
J. Aughenbaugh: Yeah. If I go ahead and put something on X where I'm talking about a political science department event, etc., where it seems like I am representing the department, then the First Amendment kicks in and I can't go ahead and block somebody who then retweets and says.
N. Rodgers: This is the dumbest event ever. I went last year and it was totally stupid. Don't go.
J. Aughenbaugh: Yeah. This department sucks, blah blah, I can't block that. But on the other hand, I go ahead and post a photo of me and my daughter, hanging out with my daughter's dog. Then somebody from the public decides to go ahead and say well, if you could only be as nice as a government official blah blah blah, I can block that. Because me and my daughter hanging out with her dog has nothing to do with my government position.
N. Rodgers: Got you. If Tim Kaine posts about a thing he's passed in Congress, he has to take all the heat.
J. Aughenbaugh: That's right.
N. Rodgers: But if he posts a TikTok of himself dancing to everybody dance now which is apparently a current hot thing to do?
J. Aughenbaugh: Do, yes.
N. Rodgers: We can all say, wow, that was a choice you made. But he can block us if we do that. He can block us because he's not being officially Senator Kaine. He's just being dad Kaine at that point.
J. Aughenbaugh: Yes. Suburban dad Tim Kaine.
N. Rodgers: That makes sense. But that's a fine line. Do we think that will come up more as people define what's official and what's not official or will they just have two accounts at that point? I mean, isn't it a smarter thing for officials to have two accounts, the official team Kaine Senator account and then the team Kaine dad account that are separate?
J. Aughenbaugh: Yeah, you're pointing to two likely outcomes of this case. By the way, the vote was 9-0, and the majority opinion was written by Justice Coney Barrett. But one, the standard now for the lower courts is that the lower courts will have to engage in rather fact specific, if you will, inquiries as to what was the purpose of the social media account. Was it sanctioned by the government agency or government body, or it will encourage government officials to have two social media accounts on a particular platform. One for official business, one for personal business. It will also require government officials to be much more active in deciding who can access their social media accounts.
N. Rodgers: They're going to have to be savvier about where they post things.
J. Aughenbaugh: Yes, they will. Now, another decision already handed down by the court, and we have previously discussed this case was the Donald Trump versus Norma Anderson. Norma Anderson being the Secretary of State for the State of Colorado. Here, this was the case where a number of states tried to remove Trump from state presidential ballots because of Section 3 of the 14th Amendment. The vote was 9-0, though the three liberal justices wrote a separate concurrence taking issue with how far the per curium majority opinion went and for our listeners, per curium means there is not one announced author of the majority opinion. It's the opinion of the court. But basically the ruling was, Colorado, no other state can disqualify Trump from presidential election ballots because of his actions before and during the January 6th, 2021 attack on the Capitol. What the Court said was the responsibility for deciding who's on federal election ballots rests with Congress and not the states.
N. Rodgers: Also, you shouldn't be pulling people off of a ballot before you've given them the due process of law.
J. Aughenbaugh: Law, yes.
N. Rodgers: I feel you were guilty of something. It is not a sufficient measure. You know what I mean? Because I don't like you is not a sufficient measure. But a person needs to be able to defend themselves in some hearing or court situation where they say, you have not shown that I did anything. There's a whole court case about whether this was actually legal or illegal. His actions, which is coming up in Washington, and we'll find out probably in the next five years how that turns out. But all I'm saying is one, you don't take away the people's right to choose and two, how about some due process out there, buddy? Don't we want people to be able to defend themselves? Otherwise, you could just pell-mell remove anybody from anything. Well, that was the dangers. I'm glad the courts found this way, actually.
J. Aughenbaugh: Again, listeners, I point you to our previous episode about this case. But Nia, I'm with you. The other thing is uniformity across the United States in regards to federal election ballots.
N. Rodgers: Everybody should have the chance to vote for all of the candidates or none of the candidates, but I mean, a consistent ballot. Otherwise, how do you know whether somebody won the election or not?
J. Aughenbaugh: I was really afraid about how this would be used going forward, and I know some of our listeners might get tired of me always pointing that out. But if one side of the political debate begins to use a particular weapon and uses it effectively, as a way to hurt the opposition.
N. Rodgers: We think that's not going to happen on the other side though.
J. Aughenbaugh: Other side. I was just really afraid that this was just going to ramp up into, we're removing so and so from the ballot because, they like to put ketch up on their scrambled eggs. Where was this stuff going to end.
N. Rodgers: Well, and escalation is a real thing.
J. Aughenbaugh: Yes.
N. Rodgers: Like anybody who's ever been in a relationship and who's ever been in a fight?
J. Aughenbaugh: Yes.
N. Rodgers: It starts off like you're fighting about where to put the lamp. The next thing you know, you're fighting about you even got married in the first place? Why you're even friends in the first place or I don't even know why I'm living with you as a roommate. Like it turns into a whole thing because it escalates pretty quickly. Hardly ever do humans argue within the parameters that they are originally given? We are only arguing about the placement of the lamp. We are not arguing about your fish breath every Friday night or whatever, but it turns into, we're better off avoiding that thing if we can.
J. Aughenbaugh: Your comments remind me of something in listeners, please forgive the slight digression. Nia, do you remember the movie when Harry met Sally?
N. Rodgers: I very much so.
J. Aughenbaugh: There is a scene in the movie when Harry and Sally are helping their friends move in together. Harry and Sally's relationship has taken a negative turn. But nevertheless, their friends, can't, because they just got married and they're moving in. The male is coming to the relationship with a coffee table, that is based on a wagon wheel. There's the part of the scene where he goes, the relationship ends, and now you're arguing, not necessarily about why the relationship ended, but who brought what into the relationship and who gets to keep the ugly coffee table that's based on a wagon wheel. Likewise, in politics. Because we're talking about the Supreme Court, we've discussed this. Both political parties in the United States, have continued to ramp up the antagonism in regards to federal judges. Who gets selected and what should be the standard for confirming them in the Senate.
N. Rodgers: Well, and now whether they're corrupt and whether the system is corrupt.
J. Aughenbaugh: Corrupt.
N. Rodgers: You're getting all these, I think generally specious arguments. Then you're getting totally ridiculous arguments like the court that found President Trump guilty was the kangaroo court, but the court that found Hunter Biden guilty was a great court and did the right thing. I'm like, how is that possible? Either the courts suck or the courts don't suck. It comes back to what we always tell students, which is, be careful about loving the decisions that agree with you because at some point, the court is going to turn against you. The court is going to do something you don't like, and you don't get to just pick the ones. You don't get to believe in the court when they do the things you like and don't believe in the court when they don't do the things you like.
J. Aughenbaugh: Yes.
N. Rodgers: That's not how this should work, if you want to be consistent.
J. Aughenbaugh: Consistent. As you were talking, I was just like, man, that reminds me of that episode or that scene in when Harry and Sally. The next thing, you're arguing about, who gets to keep this ugly coffee table that looks like a wagon wheel. I'm just like. The last case we're gonna talk about in this episode.
N. Rodgers: Side note.
J. Aughenbaugh: Yes.
N. Rodgers: Best moment of that film is, I'll have what she said.
J. Aughenbaugh: She's have Amy. Yes. Completely unscripted.
N. Rodgers: Completely unscripted. It was the director's mother and it is perfect. Anyway. Last case for this episode.
J. Aughenbaugh: The FDA, that would be the Food and Drug Administration versus [inaudible]
J. Aughenbaugh: Yes.
N. Rodgers: What was his name?
J. Aughenbaugh: Vinnie Barbarino.
N. Rodgers: Yes.
J. Aughenbaugh: Yes.
N. Rodgers: Vinnie Barbarino, yes. He was pretending to be addicted to drugs by saying, give me drugs for a whole episode.
J. Aughenbaugh: By the way, if you want to know the FDA approval process.
N. Rodgers: We have episode. Actually we have three.
J. Aughenbaugh: Three episodes. Gratuitous self plug. I encourage our listeners to look that up. By the way, that was the three part episode where we used our good friend Bill Newman, as a despicable drug executive.
N. Rodgers: That's right. Which is about as far from him as you can get. That's why we chose him. Because if we had chosen other people, it might have been too close to home. But with Billy, it was totally not.
J. Aughenbaugh: He still gives me good natured ribbing.
N. Rodgers: About making him a criminal.
J. Aughenbaugh: About making him a despicable big pharma CEO. But anyways, the food and drug administration versus the Alliance for Hippocratic medicine. The topic here was whether the federal courts could allow challenges to restrict access to a key abortion medication that is used in more than half of all US abortions. This was first approved by the FDA in 2000. What the Supreme Court ruled in a vote of nine to zero in a majority opinion written by Justice Kavanaugh was that the doctors suing the FDA did not have standing as they could not show how the FDA's actions injured them. Now, for our listeners who don't know what standing is, basically, standing means you get to literally stand in front of a court and say, I've been injured, The government in.
N. Rodgers: Here's how.
J. Aughenbaugh: Here's how. This court that I'm standing in front of.
N. Rodgers: Can give me redress.
J. Aughenbaugh: Yes, can redress my injury. What the Supreme Court said is that the doctors in the Alliance for the Hippocratic Medicine could not show how they were injured by the FDA's actions.
N. Rodgers: They do not prescribe me ARU 486? Sorry. I can't say the name.
J. Aughenbaugh: I always missed the name.
N. Rodgers: [inaudible] Anyway, RU 486? They don't prescribe it. It's not part of their regimen. They don't prescribe it. They had no way to show that any use of it would harm them because they don't prescribe it.
J. Aughenbaugh: Yes.
N. Rodgers: What they were basically arguing was that other doctors prescribing it should be stopped. The court was saying, you don't get to speak for other doctors?
J. Aughenbaugh: Well, you don't even get to speak for the other doctors who have patients who use RU 486.
N. Rodgers: Because you're not involved in that.
J. Aughenbaugh: Because these are doctors who have made it very clear, and they made it very clear as this case proceeded through the federal court system. These are doctors who refuse, to prescribe or perform prescribe drugs for or perform abortions.
N. Rodgers: RU 486 is birth control. But in early stages, it can act as an abortion. It doesn't later, but it can early.
J. Aughenbaugh: What we're referring to is what the FDA approved, which is basically the two drug plan B, abortion process.
N. Rodgers: Which was approved about 150,000 years ago.
J. Aughenbaugh: Two thousand, in fact.
N. Rodgers: Twenty-four years ago. Whatever, Aughie. You're doing math.
J. Aughenbaugh: But has been shown to be very limited math because, quite obviously, I have my PhD in the social sciences.
N. Rodgers: It's been shown to be relatively safe. It's been on the market for 24 years. There were other reasons that this group brought it, mostly because they were attempting to.
J. Aughenbaugh: Of course court abortion.
N. Rodgers: They don't like abortion. The court was saying, you don't have a dog in this hunt. You don't do abortion. You're not. Be cautious listeners about thinking that it is a ruling about RU 486 because it's not a ruling about the drug. It's a ruling about whether these people can show that they have been harmed, and the answer is they cannot. This could come up in a different court case. Aughie, you could come up.
J. Aughenbaugh: Right now, there are a handful of states that have already filed motions, letting federal courts know that they intend to also challenge the FDA's approval process for not only RU 486, but the buying administration also allowing the medication to be mailed.
N. Rodgers: Then you get into the postal.
J. Aughenbaugh: The states are saying, we have bans or near bans, and the federal government is usurping our authority by allowing women in our states to get access via the US Postal Service to these drugs.
N. Rodgers: This isn't done yet?
J. Aughenbaugh: No, this is not done. But listeners, as Nia just cautioned you, the only thing the court ruled on in this case was that these doctors did not have standing.
N. Rodgers: They chose a very narrow way.
J. Aughenbaugh: Narrow way. Yes. In fact.
N. Rodgers: They are dodging answering this question.
J. Aughenbaugh: They are punting this to a future year in a future case.
N. Rodgers: Where some of them are hoping they will no longer be on the court.
J. Aughenbaugh: The court yes.[LAUGHTER].
N. Rodgers: You know what I mean? They're like, If I can drag this out long enough, I will have retired from the court, and I will not be on it to have to make this. This is a complicate unwinding all of this, unwinding whether you can mail it to people. The idea that you can go back later and say that the FDA that you can unapprove something that's been.
J. Aughenbaugh: Yes.
N. Rodgers: That people can challenge the FDA 24 years later and the approval process. It's a little late in the day for that. There's some really complicated things involved here, but can you do that with any agency? Can you say to the EPA? I don't really think this thing's a wetland. I want you to show me how you arrived at.
J. Aughenbaugh: But Nia, you and I already discussed this when we looked at the FDA's approval process. One of the criticisms by consumer groups is that historically, the federal courts show the FDA deference in regards to its approval process far greater than what federal courts show in terms of deference to other agencies. Because with other agencies. It's not unusual for a regulation that was issued years ago to get challenged. But with the FDA, typically the federal courts, federal judges are like, but these are the experts.
N. Rodgers: I think it is.
J. Aughenbaugh: Congress has given them the authority to do this.
N. Rodgers: One of the things about the FDA, which I'm going to make this my last comment is, it can be that after long term study, you could, in fact, figure out that something that the FDA had approved was dangerous.
J. Aughenbaugh: Yes.
N. Rodgers: I was like, we should not have approved that, and we need to take that off the market because that combination is bad or that drug is bad, or it turns out that it has deleterious effects that we were not aware of or whatever.
J. Aughenbaugh: When we granted approval. Yes.
N. Rodgers: I could understand that unfortunately, for these plaintiffs, they are going to have a tough time showing that about this particular drug which seems to have a very strong track record. Unless they can on earth, a lot of studies in the meantime that show that it is more dangerous than people think it is, pulling it off the market, changing the FDA approval process may or may not pull RU 486 from the market because those are two separate questions.
J. Aughenbaugh: I think where the states, if they're smart, where they will focus.
N. Rodgers: Big if.
J. Aughenbaugh: Is not on the FDA approval process, but instead, what will be the costs to them having to go ahead and allow this. Because states can then go ahead and tie this into their police power, the 10th Amendment, etc. But showing that the FDA didn't follow its approval process, I'm not convinced that they're going to get anywhere, particularly because federal judges are going to look at the years of medical records, where there are very few instances where a woman suffered negative side effects from using RU 486. I don't think that is. But again, this gets into standing folks. By the time you're listening to this, and if you've already perused, articles or seen posts on social media, do you understand? The court did not reaffirm the FDA's approval process or what the Biden administration did. All the court said.
N. Rodgers: Or RU 486 for that matter.
J. Aughenbaugh: No. All the court said.
N. Rodgers: They didn't affirm that either.
J. Aughenbaugh: No. All the court said was, Nia, I think you used the right phrase. The court dodged the more significant issue, simply because the challengers didn't have standing. If I had to venture a guess, Chief Justice John Roberts was extremely happy when he went ahead at their conference and saw that there were nine votes to avoid the substantive legal issue in this case. I think he was probably right.
N. Rodgers: The Court does this sometimes.
J. Aughenbaugh: Sure. Yes.
N. Rodgers: The court looks for whatever thing it can do to not have to answer this question at this time.
J. Aughenbaugh: Yes.
N. Rodgers: By saying, you don't have standing or.
J. Aughenbaugh: Yes.
N. Rodgers: Anyway, that's our first set.
J. Aughenbaugh: Yes.
N. Rodgers: There are still lots and lots of cases to be decided. Some of which when we announce them to you, we're going to be like three minutes and done because they will be tax courts, tax cases, or whatever. [LAUGHTER] That won't be particularly interesting to those of us who do not have a Cazilion dollar stashed away in the Caymans. But there are that are going to be really interesting. First to see the United States.
J. Aughenbaugh: There's a couple cases concerning [OVERLAPPING] former President Trump, a couple cases dealing with the second amendment. We got at least one more abortion related case. We got a couple other cases about social media. Then the administrative law geek in me. There's easily two more related cases concerning that. We even got homeless cases and the 8th Amendment. But these are all forthcoming listeners, a little bit of foreshadowing.
N. Rodgers: Can I just say that the one that I'm actually excited about is Harrington V Purdue Pharma?
J. Aughenbaugh: The Big Pharma.
N. Rodgers: I'm curious to see if Purdue Pharma will be held accountable for the pod crisis or not. As far they have dodged taking responsibility. It will be interesting to see if they're held to account.
J. Aughenbaugh: Listeners, what Nia is referring to is in the Harrington case, there is a proposed Purdue Pharma bankruptcy plan, that basically would shield the Sackler family from any liability.
N. Rodgers: They're crabby.
J. Aughenbaugh: The Biden administration was just like, that's BS. However, there are a whole bunch of plaintiff's attorneys who are like, well, if we don't go forward with the proposed plan, some of us will never see a single dollar, from Purdue Pharma.
N. Rodgers: That's true. From the harm.
J. Aughenbaugh: For the harm that they caused by mass producing opiods during the nation's opiod crisis. This is going to be tough, but we got a whole bunch of really interesting cases that the Supreme Court has not ruled on. We're going to be introducing you all to concepts in legal terms that some of you probably have never heard of before. Bump stock.
N. Rodgers: Yes.
J. Aughenbaugh: Bump stock.
N. Rodgers: Be totally exciting.
J. Aughenbaugh: Chevron.
N. Rodgers: 16th Amendment?
J. Aughenbaugh: Mitts. Yes.[OVERLAPPING]
N. Rodgers: Nobody ever talks about the 16th.
J. Aughenbaugh: We're going to dust off.
N. Rodgers: They talked 13th, 14th, 15th, and they skipped to 19th. Nothing happened between.
J. Aughenbaugh: No, we will actually go back to our roots, where we will pull up a government document, i.e, the 16th Amendment.
N. Rodgers: Read it.
J. Aughenbaugh: Read it to you, and then talk about how the Supreme Court applied it to a case about some rich people trying to avoid paying some taxes.[LAUGHTER] Anyways, listeners. But that's all on the com, as confidence men would say. Thank you, Nia. This has been a rather enjoyable episode. Thanks.
N. Rodgers: Thank you, Aughie.
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