Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. Happy first Monday in October, which means happy first day of the new Supreme Court term, which comes around the first Monday of every October and lasts until those final high stakes, high drama days that we all know about near the end of June. This term will probably be about as high stakes as some of the recent ones with rights to the abortion pill, voting rights, further questions about affirmative action, maybe even a challenge to Donald Trump's legal basis for hoping to be president again, all being talked about and more.

With us now, Steven Mazie, Supreme Court correspondent for The Economist. He is also the Supreme Court analyst now for the WNYC Supreme Court podcast More Perfect, and More Perfect host Julia Longoria joins us, too. All this week, we are re-airing episodes from last season's More Perfect Monday through Friday nights at eight o'clock, these great episodes that many of you heard as podcasts. We will be airing them on the radio eight o'clock tonight through Friday night this week as they remain highly relevant, and we'll play some clips as we go. Steven, welcome to the live side of WNYC, and Julia, always good to have you on the show. Hi.

Steven Mazie: Brian, thanks for having me. Great to be here.

Brian Lehrer: Let's start with a little bit from the past season and a past justice no longer on the bench, David Souter, subject of one of the more perfect episodes that will be in fact re-airing this week. Julia, you want to set this up for us? Remind us why you did an episode about David Souter and what his legacy is that informs Supreme Court nominations to this day.

Julia Longoria: Absolutely. We got a lot of questions from listeners leading up to this season about how we got here, how did we get this court, how did the court become so political, some people were saying. We tell the story of a conservative justice, a justice that was thought to be conservative appointed by George H.W. Bush who was said to be a home run. The Chief of Staff John Sununu for President Bush called him a home run, said he was going to be a champion of conservative causes on the court, and he ended up disappointing Republicans. He wasn't the first Supreme Court justice to disappoint Republicans, but he might be the last because he, with his decision in a case called Planned Parenthood versus Casey, where he upheld Roe, disappointed conservatives and you'll hear.

Brian Lehrer: Way back in 1992.

Julia Longoria: That's right.

Brian Lehrer: He was appointed by who again? Reagan or Bush?

Julia Longoria: Bush.

Brian Lehrer: The first president Bush. I think that the whole David Souter drama happened because back after Reagan nominee, Robert Bork, got denied a seat because his views were deemed too far to the right and maybe racist. Then came David Souter from H.W. Bush, who what, Julia, managed to hide what his judicial views really were in his confirmation hearings, and that was the new strategy?

Julia Longoria: Right. In the confirmation hearing, he said he didn't want to talk about how he would rule on future cases. It was unclear from what he said, how he really felt about abortion. His clerks and people close to him said that that's the kind of judge he was. He really wanted to take each case as it came, but Republicans saw it as a betrayal when he eventually upheld Roe. After Robert Bork was denied by the Senate, there was a thought that they needed someone who could be a "stealth candidate," somebody whose views weren't immediately apparent that could get through the Senate, that Democrats would approve, but in the end they would know what to do, and Justice Souter didn't do what Republicans wanted him to.

Brian Lehrer: The clip we're going to play here is of John Sununu, is this what you brought, who had been the governor of New Hampshire and then was President H.W. Bush's Chief of Staff?

Julia Longoria: That's right, yes. He was involved in choosing who George H.W. Bush's candidate to the Supreme Court would be. Looking back, he claims he wasn't David Souter's biggest fan, but once George H.W. Bush appointed him to be confirmed, he told the Republican groups that David Souter would be a home run for the Republican Party. He, in particular, felt pretty betrayed by David Souter.

Brian Lehrer: As we hear in this clip of John Sununu from More Perfect.

Julia Longoria: Do you remember what people were saying to you when the Casey decision came down?

John Sununu: Yes. You blew it. I thought David was going to be a good judge on the Supreme Court and tried to support the president's decision wholeheartedly in all of my assurances to the conservative groups around the country. I was so consistent and so aggressive in that direction, is one of the reasons I really feel betrayed. I think it's something he planned all along, to be deceptive during this process, to very clearly obfuscate the real positions he had on the life issue, the Roe v. Wade issue.

Julia Longoria: What I'm hearing you say is that you think he was being deceptive out of ambition for wanting to be added on the Supreme Court?

John Sununu: Exactly right.

Brian Lehrer: Julia, that's exactly what they wanted him to do, isn't it, to be deceptive, to pretend he was a nobody, nobody in terms of having any philosophy, so that he would be, as John Roberts later put it about himself, just a neutral umpire calling balls and strikes on the constitution. "I don't care what policy winds up as long as it's more or less what the constitution call for. I don't have an opinion." That's what they wanted because of Bork and it backfired.

Julia Longoria: Right. Yes, it was a strategy that did not seem to work, and when it didn't work, I think we see the result of that. The Republican Party and conservatives changed strategies, and wanted to keep a close eye on the people who they would appoint to the Supreme Court, and I think we will see the result of that today.

Brian Lehrer: Steven Mazie, let me bring you into it on that. If you're just joining us, Steven Mazie, Supreme Court correspondent for The Economist and Supreme Court analyst for the WNYC Supreme Court podcast More Perfect. Julie Longoria, host of More Perfect is also with us and was just speaking. Steven Mazie, do you think we see the arc of history going from Bork, laying out who he really was and getting defeated, to Souter hiding who he really was and getting confirmed, but then disappointing the Republican president who appointed him, too? Does that arc wind up with Kavanaugh and Amy Coney Barrett?

Steven Mazie: Clearly it does. David Souter was the last of an era. He was the last justice who deviated in any way in terms of his ideology from the ideology of the appointing president. Since then it has been very clear, and every justice has quitted him or herself well in terms of what the President appointing them was hoping for. In terms of conservatives, this gave rise to the famous or infamous rallying cry, no more Souters.

We cannot entrust anymore Supreme Court seats that are appointed by Republican presidents to untested, unknown quantities. There has been a real effort in the decades since to very carefully vet any potential Supreme Court picks and make sure that they are really in line with the main ideals and ideologies of the Republican Party. I think that's also true on the Democrat side. It's just that they've had many fewer opportunities to seat justices in the last couple of decades.

Brian Lehrer: Right. Julia, for listeners whose interest got piqued by that clip or this little stretch of conversation, which night are you re-airing the Souter episode?

Julia Longoria: That will be on Wednesday night at 8:00 PM.

Brian Lehrer: All right.

Julia Longoria: You can listen to it then or you can subscribe to More Perfect wherever you get podcasts.

Brian Lehrer: We're going to play one more clip from the series partly because it's fun, and then we'll ask Steven Mazie to give us a quick bullet points preview of some of the big cases coming down this term. This is from an episode, Julia, that has the name Andy Warhol in the title. You want to set this up for us in general?

Julia Longoria: Sure, yes. Looking at the docket last term, it was the one case that was like, "Ooh, that sounds like the fun case." We break down what happens in this case, where basically the Andy Warhol Foundation-- The question is, whether the Andy Warhol Foundation was wrong for licensing a photograph of the artist Prince, the artist formerly known as Prince. I guess he's now Prince again.

There was a photo of Prince that Andy Warhol used to make a silk screen. When Prince passed away, it was put in a magazine again. The Andy Warhol Foundation didn't get a license to use it again. Anyway, the origins of this case, it's a copyright case about when it's okay to copy, go back actually to a case about hip hop in Miami, Florida, the group called 2 Live Crew. We revisit this case about copying.

You'll hear one of the members of 2 Live Crew, David Hobbs, and producer Alyssa Eads in the clip. Really the case, in general, you hear the justices trying to avoid sounding like they're art critics. They're wading into the squishy world of art. They're figuring out, "How do we look at art and make law around it?" It ends up being a meditation on what it means to be a judge and what it means to make these kinds of decisions for society.

Brian Lehrer: On a 2 Live Crew track and an old Roy Orbison song, let's hear this excerpt from More Perfect.

Alyssa Eads: They had this album called As Nasty as They Want to Be, which was banned by a federal judge for being obscene, but their thing was being outrageous. How far could you push it? In the spirit of humor, they're taking things they think will be recognizable, and making fun of them. In 1989, they land on the Roy Orbison song-

[MUSIC - The 2 Live Crew: Pretty Woman]

Pretty woman, walkin' down the street

Alyssa Eads: -as something that would be fun to rip and mix.

Girl, you know you ain't right

[Two-timin' woman] You was out with my boy last night

[Two-timin' woman]

David Hobbs: Childish humor. That's what we were doing. It was childish humor in a way where it could be a lot of money was made. I guess their beef was, is that we didn't get permission from them to do it.

O-o-o-o-oh, pretty woman!

Alyssa Eads: To no one's surprise, they get sued and they end up in the Supreme Court.

Brian Lehrer: Julia, and who won?

Julia Longoria: With these copyright cases, it's complicated to say. I think it's fair to say that 2 Live Crew won. Actually, Justice Souter was the one who wrote the opinion and said that the way they copied, the use of parody basically could be a fair use of someone else's work. That opinion basically was back in the Supreme Court. They changed their standard with this Andy Warhol case.

In an effort to not have judges be art critics, trying to determine whether something is a parody or judging the aesthetics of this silk screen, they focus more on the market and say because Andy Warhol and the photographer, Lynn Goldsmith, were both selling their work in the same market, then Andy Warhol Foundation should have gotten permission from Lynn Goldsmith, basically. It's quite wonky, but [crosstalk]. [laughs]

Brian Lehrer: Yes, kind of wonky, but really fun to listen to, obviously, as an episode of More Perfect, and to hear those clips. I think, Steven Mazie, for you as a Supreme Court analyst, people's first response hearing that, if they knew both songs, might be, "Oh, wait, that is Roy Orbison's Pretty Woman. What do you mean they can use that without paying him?"

Steven Mazie: Yes, I think that's true. If we could transition to this year's cases, there aren't a lot of those fun cases, the cases with those interesting facts that are going to grab people's attention. I think one of the challenges that journalists are going to have covering this Supreme Court term, it is as you said, Brian, I think just as big as the last couple. This one has cases in administrative law, which most people eyes are going to glaze over if they hear things the Administrative Procedures Act and things like Chevron deference and these other technical terms. They are incredibly important cases.

When you think of the executive branch, most people think of the President, Vice President, maybe The Cabinet, but underneath those, you've got 2 million people working in the civil service in some 400 agencies that actually do the work of making the government operate, things like workplace safety, and making sure that financial markets are operating smoothly, and cutting social security checks. There are at least three cases on the docket this year that--

Brian Lehrer: Before you even get there,-

Steven Mazie: Oh, sure.

Brian Lehrer: -I just want to acknowledge that you were doing my job for me. You were making the segue from the Supreme Court of the past, those episodes that will air on the More Perfect reboot, not reboot but re-air, that'll be every night this week on the station at 8:00 PM. By the way, Julia, for people who really enjoyed hearing that 2 Live Crew Roy Orbison mashup, what night is that one?

Julia Longoria: That one will be this Friday at 8:00 PM, or you can go and download More Perfect wherever you get podcasts. Or subscribe, not download. You know what I mean?

Brian Lehrer: That's a good one for the weekend, definitely, for Friday night. Steven Mazie, I see the headline, getting back to your main point, on your Economist story is The New Supreme Court Takes Aim at the Administrative State. I appreciate the point that you were trying to make that that sounds a yawn, that sounds like, to many people, something bureaucratic and that doesn't affect their lives, like banning abortion rights as a federal right, but taking aim at the administrative state. People who know the far-right and the Trump movement know that this is like half of Steve Bannon's reason for being, is destroying what he calls "the administrative state." Now take us into a couple of those cases that the Supreme Court is going to hear, and what the real implications for real people's lives really are.

Steven Mazie: Sure. I want to apologize for usurping your segue, although-

Brian Lehrer: Just doing my job. I have to pay you now extra.

[laughter]

Steven Mazie: -that's a model of what the Supreme Court is doing to the rest of the government that is usurping authority. There have been several recent examples of this in the last couple of terms, where regulations that the EPA has been putting out to protect clean air and clean water using statues that Congress legislated back in the '70s called the Clean Water Act and the Clean Air Act. Those regulations have been struck down in 2022 as a 6 to 3 decision in a clean air case. The clean water case from this year, that was a 5 to 4 with Brett Kavanaugh joining the liberals. The basic picture is, yes, it's a Steve Bannon-driven, although he's not the only one, effort to get the courts to clamp down on what administrative agencies do and how much autonomy they have to do the work of helping the government operate. [crosstalk].

Brian Lehrer: Ultimately, if we accept the premise that these cases come to the Supreme Court or to government in general because people have competing interests, whose interest is it in, in general, to dismantle the administrative state? Would it be basically corporate interests because that's who generally gets regulated by the administrative state?

Steven Mazie: Corporate interest is number one, and people who claim that their property rights are being violated on a more in individual basis are also making claims, such as the family in the Clean Water Act case that came down in June. They wanted to build a home on an area that was next to a wetland. The EPA told them they couldn't do that until they got a permit because there was an area in their backyard that was flowing into a nearby wetland that was flowing into, in turn, a waterway. The Supreme Court sided with those landowners and said, "No, they should be able to build because the wetness on their property is too attenuated from those other water sources.

Brian Lehrer: Moving away from administrative cases now for our last minutes.

Steven Mazie: Oh, sure.

Brian Lehrer: Racial affirmative action, race-based affirmative action and college admissions, as we all know, got struck down in the last term. You're anticipating something like that is going to be back to further abolish race-based affirmative action?

Steven Mazie: Well, there are cases that are pending in the lower courts, and there's also a petition before the Supreme Court along those lines. One of them, the one that's closest to reaching the court involves a magnet school, a high school in Virginia that recently changed its admissions policy, although it's still race-blind, it doesn't look at the racial identity of the applicants. It's designed to increase diversity by, in part, it's complicated, but bringing students in from a variety of middle schools around the area to diversify.

The challengers are saying that even though it's a race-blind policy, it's motivated by a desire for racial diversity. That is the next frontier that the court is going to be considering, and I don't know if they're going to go as far as they did in the UNC and Harvard cases of completely striking down the consideration of race and making it so that really any desire for more diversity, even if it's not explicit consideration of race, could also violate the Constitution.

Brian Lehrer: Maybe I'm seeing in your article a race-based affirmative action challenge to West Point. Now, west Point is, on one level of college, but it was exempted from last year's Supreme Court decision on race-based affirmative action?

Steven Mazie: It was, yes. In the oral arguments and in the briefs, the federal government made the point that when it comes to military academies, racial diversity is not just something that promotes better discussions in the classroom, but it's actually a national security imperative to have an Officer Corps that is diverse, that reflects the diversity of the rank and file soldiers. That the country will not be ready for military action if there isn't that kind of convergence between diversity in the officers and diversity in the soldiers. This was an exception. This was a carve-out in the June decision, and now that carve out is being challenged by some of the same people who challenged the Harvard and UNC policies originally.

Brian Lehrer: Lastly, post-Dobbs, yet another challenge to another aspect of abortion rights having to do with Mifepristone, the abortion pill?

Steven Mazie: Yes. Although lastly, we also have the Big Guns case. Could I mention both quickly?

Brian Lehrer: Yes, please go ahead.

Steven Mazie: Okay. Starting with mifepristone, the whole idea behind Dobbs is that states can regulate abortion as they choose, and pro-choice states can have abortion available just as freely as before. In April, a lower court judge decided that the main abortion medication used by millions of women in America annually is invalid because the FDA's original approval of it in 2000 did not take adequate consideration of safety. His opinion would've taken mifepristone off the market. That didn't happen because a combination of the Fifth Circuit Court of Appeals and the US Supreme Court stepping in to block that decision kept mifepristone on the shelves.

Since then, last month, the Fifth Circuit rule that although mifepristone may remain valid as one of the abortion pills, the other factors that the lower court put on it, the other limits can be imposed, meaning that it can only be used up to seven weeks of pregnancy rather than 10. That it cannot be sent through the mail. That you cannot use a telemedicine appointment to get it. That's what the Fifth Circuit Court of Appeals has said, and now both the manufacturer of mifepristone and the federal government are asking the Supreme Court to eliminate those restrictions. The court hasn't said if it's going to do that yet, but I think chances are very good that it will and we'll have another abortion ruling in June of 2024.

Brian Lehrer: Give me 30 seconds on the coming gun case because then we have a whole other segment to do on the show. We're going to deal with the whole Roman Empire. Give me guns in the Supreme Court, what to expect, and obviously, listeners, will do a segment on this once the oral arguments are heard. Go ahead.

Steven Mazie: Well, now you made me think of the Roman Empire, Brian. Okay. When it comes to--

Brian Lehrer: Men always think about the Roman Empire. That's the premise of the segment but anyway, go ahead.

[laughter]

Steven Mazie: All right, in 30 seconds. There's a very bad guy named Rahimi, who assaulted his girlfriend with whom he shares a child, warned her not to tell anyone, said he would shoot her. Ultimately, this led to a restraining order against him. The question is, he was then prosecuted along several grounds, he made a Second Amendment claim that there is no ability of the government to take guns away from people who have domestic abuse restraining orders. Why is that? Because as the Supreme Court decided a year-and-a-half ago, the only restrictions on guns that are constitutional are those that have copies or analogs at the founding of the country, or when the 14th Amendment was ratified in 1868.

Brian Lehrer: Wow.

Steven Mazie: Since there was no such thing as domestic violence at either of those points in American history, there clearly were no bans on domestic violence restraining order men having rights to those guns.

Brian Lehrer: Wow.

Steven Mazie: He says, "The Constitution gives me that right." This is a really tricky one for the justices because conservatives, I think, don't want to arm such a dangerous, violent man, but also might be undermining their own decision if they find some sneaky way of allowing that regulation to pass constitutional muster.

Brian Lehrer: Steven Mazie, Supreme Court correspondent for The Economist and Legal Advisor for WNYC Supreme Court Podcast, More Perfect, and Julia Longoria, host of More Perfect. We are re-airing five More Perfect episodes all this week in the 8:00 PM hour on WNYC, or as the little birdie told me a few times during this segment, subscribe to More Perfect wherever you get your podcasts. Julia and Steven, thank you so much.

Julia Longoria: Thanks for having us.

Steven Mazie: Great being with you. Thank you, Brian.

 

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