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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. As we turn the page on the calendar today to the month of December, New York State is above a 4.2% coronavirus positivity rate for the first time since May 20th. We're headed toward March and April numbers going backwards both in cases and in time, definitely going in the wrong direction. Thanks to the Supreme Court, Governor Cuomo and governors of all the states, have one less tool in their toolkit for preventing further spread. That's because the court has canceled at least for now, the way Cuomo is restricting indoor attendance at religious institutions. We'll consider the arguments in that case.

Then there's the case before the court simply called Trump versus New York, that could be the title of a book about his entire presidency, right? This Trump versus New York is a specific case the Supreme Court heard yesterday. It's about Trump wanting to exclude many New Yorkers and people from every state from the census count based on their immigration status even after they've submitted their census forms.

For Democrats not ready to exhale, and Republicans not ready to concede, there's the unknown this morning of whether the Supreme Court will do what lower courts have so far refused to do and throw out millions of Pennsylvania votes not based on specific claims of anyone committing voter fraud, but on the structure of how the election was run. Yet another case like that is being filed in Wisconsin, today.

Yes, Yogi, the election ain't over till it's over. With us now, Emily Bazelon, New York Times Magazine Supreme Court watcher, Slate Political Gabfest, politics watcher, Truman Capote Fellow for creative writing and the law at Yale, and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Hi, Emily, always great to have you. Welcome back to WNYC.

Emily Bazelon: Thank you, Brian. I hope you had a great Thanksgiving.

Brian Lehrer: Thank you and I hope you did too. Where or where to begin? How about Roman Catholic Diocese of Brooklyn versus Cuomo, that's the official name of the case filed by Bishop Nicholas DiMarzio against Governor Andrew Cuomo. Why did the spat between two Italian Catholic New Yorkers find its way to Amy Coney Barrett and company?

Emily Bazelon: [laughs] Well, this case has a lot going for it from the point of view of the Supreme Court because it involves a really basic principle from the constitution about the freedom to exercise religion. What the Archdiocese and also Agudath Israel Orthodox organization, what they were arguing is that the governor's restrictions on attendance at house of worship went beyond what should be permitted in terms of preventing religious groups from gathering.

As you know, the governor said in a red zone in New York, only 10 people could gather in a church or synagogue or mosque or house of worship, and in an orange zone, only 25 people. Those are really strict attendance caps. They didn't take into account the size of the hall. I think the strongest point that the Archdiocese had on its side was, "Look, we have a cathedral that could suit 1,000 people, how can you say that only 10 people can gather here safely? Doesn't that go too far? Isn't that discrimination against our religious practices?

Brian Lehrer: Justice Neil Gorsuch wrote in upholding the religious institution's case, that there is no world in which the constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops, but shutter churches, synagogues, and mosques. Is that accurate at least on the facts, do the Cuomo rules, open liquor stores everyone's favorite example, and shutter churches, synagogues, and mosques?

Emily Bazelon: Not exactly. What the Cuomo rule said was that essential businesses could be open and did not set strict caps on the number of people who could enter them. Now, what New York wrote in its defense of these regulations was a lot of citing of the public health science and what we know now about the spread of coronavirus. New York was saying, "Look, people go to church. They congregate, they cluster together, they chant and sing. There have been known outbreaks associated with church and synagogue and other kinds of worship. When people go shopping at a liquor store, they're in and out. They're not congregating. They're wearing masks if they're following the rules."

I think it was this idea that there's a different activity taking place in the houses of worship that is riskier for the spread of the virus.

Brian Lehrer: The question of consistency, at least other large venues, non-religious ones, also have a 10 or 25 person limit, regardless of the usual capacity of the hall, if they wanted to hold a rock concert in Madison Square Garden in 25% capacity would be like 4,000 people, is it still only 10 people allowed if it's in a red zone?

Emily Bazelon: Actually, it's zero people. Another thing that some of the dissenting justices like Justice Sonia Sotomayor pointed out was that if you compare the restrictions on the churches and synagogues and mosques to the restrictions on assembly halls and concert halls, then the religious organizations were being treated more favorably not less. This question, it all depends on the unit of comparison.

If you think that a church should be the same as the grocery store or the liquor store, then they were treated worse. If you think, "Okay, we're talking about big gathering places like nobody can go to a big music hall or even just like a university lecture center right now in a red or orange zone."

Brian Lehrer: Now, the conservative website National Review, in supporting the ruling says, "To fix the problem, Cuomo would not need to exempt houses of worship from the law everyone else follows but merely ensure the churches aren't relegated to second class status." One approach it says maybe to classify churches as essential and to assign all essential activities a capacity limit that takes establishment size into account.

It says another would be to simply let the hard capacity limits go since houses of worship in orange and red areas are still required to keep a low proportion of their total capacity, a third and a quarter respectively, that from National Review. With the governor, as you understand it, argue that those things would not be protective enough against the virus?

Emily Bazelon: The governor actually said before the case was argued, "You know what? Now we're having yellow zone rules. This case, it's not the right time to even decide this. We don't need restrictions of this degree of severity right now." One of the things that surprised legal observers was that the Supreme Court went ahead and seems ready to rule anyway. Usually, or often, I should say, especially conservative judges talk about the principle of judicial modesty, like, we don't get in and mess around with the work of elected officials unless we really have to.

An answer to your question more directly, I think the question here is whether it's totally reasonable to have fixed percentage capacity limits, the way National Review is laying out, or whether officials in New York think that's less workable or unworkable for some reason. Again, usually, you leave this to public health authorities and elected officials. This is judges or really Supreme Court Justices, ignoring what New York said it wanted to do. Also ignoring the careful findings of the district court judge in Brooklyn and saying, "We know better. We want you to do this in a less restrictive way."

Brian Lehrer: To the National Review solution, it says one approach may be to classify churches as essential and to assign all essential activities a capacity limit that takes establishment size into account. Are churches and or religious establishments not considered essential when we talk about essential and non-essential facilities?

Emily Bazelon: I think New York did not treat them as essential because they had this idea of essential businesses and you don't usually think of a church as a business. On its face, I'm not a public health official. Maybe this National Review idea is not a good one but it sounds reasonable. Then, you have to think through like, "Okay, if you set percentage capacity limits for every store, how do you really enforce that? How would that work?" That's a few steps down the line. Again, usually, we just defer to public health authorities, especially during a pandemic.

Brian Lehrer: Emily Bazelon not a public health official with us here on WNYC. She is a legal and political analyst, and we welcome your questions for Emily on the law or politics of Diocese of Brooklyn versus Cuomo, Trump versus New York, which we'll get to, or any of the presidential election cases. 646-435-7280, 646-435-7280. Just one more thing on the churches and other religious institutions case, which way does the slippery slope slide here?

For example, a few Hasidic weddings in New York have reportedly taken place in the last few weeks with thousands of people not socially distanced and not wearing masks against New York State pandemic rules. Will the Justices of the Supreme Court likely call those weddings held in that way, protected by religious liberty under the First Amendment?

Emily Bazelon: I'm going to say no because those were such disturbing frankly photographs because it just seemed like this community was really flouting, not just public health regulations, but really endangering the safety, not just of the people at that wedding, obviously, but all of us who can be affected by the ripple effects of allowing the virus to spread. I don't think there's anything in this ruling that suggests that New York can't prevent gatherings of that size, but it was really interesting to read the opinion knowing about those recent events and see no mention of that and no discussion of how the ruling actually related to that kind of problem.

Brian Lehrer: I think I mistakenly said Archdiocese of Brooklyn, of course, it's just Diocese of Brooklyn. Amy Coney Barrett replaced Ruth Bader Ginsburg. Apparently, that mattered here, 5-4 ruling on one side compared to a 5-4 ruling on the other side compared to a similar past case. Is that right?

Emily Bazelon: Yes. Over the summer, there were challenges brought by churches to restrictions in California and Nevada, and the justices allowed those restrictions by those states to remain in place. Now I should add that we've had more time pass. One of the issues that Justice Gorsuch raised in his dissent was this idea that like, "Okay, the constitution can take a vacation during the pandemic, but it can't go on a sabbatical," a kind of impatience with these continuing restrictions. New York, of course, would argue, "Well, we're having a wave of coronavirus infections that are rising, that's why we still have these restrictions in place."

Brian Lehrer: All right. Let's go on to these presidential election cases. Two layers of federal courts have now rejected in very strong language, the Trump campaign's attempt to throw out millions of votes in Pennsylvania. The latest decision over the weekend was written by a judge who Trump appointed. Is this case going to the Supreme Court?

Emily Bazelon: I really doubt it. One of the interesting things about all of this Trump litigation is how scathing the language from appeals court and district court and state court judges has been both from Republican-appointed and Democratic-appointed judges. You see just this real bristling at how very, very thin both the legal and factual basis is for overturning the election, which is what the Trump campaign is asking for. I feel like the lower court judges are making it safe and also obvious for the Supreme Court to say, "We're not reviewing this case, there's nothing to see here. We're not getting involved."

Brian Lehrer: Remind us of the actual claims in this case. We know that Rudy Giuliani was forced to say while presenting his case to the lower court, that this is not a fraud case. If it's not a fraud case, what is it?

Emily Bazelon: The idea is that when Pennsylvania put into place its rules for absentee balloting, that by allowing counties to do things a little bit differently, they violated everybody's right to equal protection to having their votes equally counted. For example, Philadelphia and Allegheny County, which is Pittsburgh and Montgomery county, they had some small way in which if you turned in your absentee ballot, and there was a technical problem with it, like you didn't fill in your address on the return envelope, they would let you know so you could come in and fix it afterward. That's called curing your ballot, and some counties didn't allow for that.

The idea is that all of the ballots from Philadelphia, Allegheny, and Montgomery county have to be tossed because those voters were somehow given some special privilege that other people didn't. You can tell by my tone of voice like, it is normal to have some small differences among counties and how voting law is implemented. The notion there has to be complete uniformity, and that you would disenfranchise hundreds of thousands of people because of a state rule, that's just a very far-fetched legal argument, especially if you're making it after the fact in which case you would have to disenfranchise all these voters.

Brian Lehrer: When would we know? Will we know if the Supreme Court takes this case? It's not even clear to me that the Trump campaign is officially filed for to take the case.

Emily Bazelon: That's not clear to me, either. I think we will, first, we'll find out if they really file. Presumably, they will. Then I think the Supreme Court will decide whether to take the case relatively quickly. There are a couple of important deadlines coming up, in particular, December 14th is when the electors meet to decide who the next president is going to be.

Anything that happens after that point is really especially too late. I think we'll find out pretty quickly. These legal challenges have been petering out and fizzling and that would be the endpoint presumably.

Brian Lehrer: Petering out and fizzling in dozens of cases, literally dozens that courts have rejected, yet you know they're filing yet another case like this in the Wisconsin court system today. They're still initiating new suits. I read into this case a little this morning, Emily, and I want to run some details by you for a reaction. It's pretty interesting, even if we see it as outrageous and how they're trying to throw out earnestly cast votes by regular citizens. You're ready?

Emily Bazelon: Yes.

Brian Lehrer: All right. The Wisconsin lawsuit seeks to disqualify 220,000 votes from Milwaukee and Madison, democratic leading cities for mainly these reasons. Wisconsin law says you need to be physically infirm at home, a term known as indefinite confinement, to qualify for an absentee ballot. This year, because of the pandemic, Wisconsin allowed other people to use one. The suit, therefore, says all those votes were fraudulently claiming that status, uses the term fraudulently claiming that absentee ballot status for not being qualified to vote that way.

It also says people were allowed to just show up and vote absentee when the law requires an advanced application, and that city clerks filled in missing technical information themselves, what you call ballot curing before, in some cases, technical things like a witness's missing address, instead of returning the ballot to the voter to do it as they say the law specifies.

Finally, that events called democracy in the park, where people submitted absentee ballots at parks in Madison, allowed people to vote in places other than designated polling sites. Emily, none of this alleged fraud, it strikes me the way we usually think of it, like making up fake ballots and submitting them under fake names. Just that actual registered voters were allowed by the state to submit or complete their ballots in the pandemic, in ways that typically wouldn't be allowed. On that basis, they want to disenfranchise more than 200,000 people as what the lawsuit calls illegitimate or fraudulent voters. Emily, do you think this can fly in court?

Emily Bazelon: No, I don't. I think the reason is that you're right, there's a conflating of fraud, and very technical picky claims about the idea that Madison and Milwaukee expanded access to balloting, beyond what the letter of the law would provide for absent a pandemic. If you want to make election officials stick absolutely to what's written in the text, then maybe some of these practices went a little bit outside, but of course, they were available to anybody who lived in those counties and other counties in Wisconsin could have done the same thing.

The notion that there was something either fraudulent or just basically unfair here, I think, is something the courts would be very reluctant to say, especially at this stage. One of the really important principles of election law is a technical idea, or it has a technical name, it's called laches, L-A-C-H-E-S. The idea is that if you're going to challenge an election law or procedure, you do it before the election. You don't wait until afterward when you knew about it beforehand, to say, "Oh, wait, stop everything. Even though everyone's already voted, this isn't okay." The courts just don't go for that because of the problem of disenfranchising people.

Brian Lehrer: Interesting. Here's my bottom line question on all this election challenging stuff. It seems to me, Trump doesn't really have a legal strategy. He's failing so badly in court, and they probably knew they would. What he's had all along, is a political strategy. I'm going to ask you to take off your legal analyst hat and put on your political analyst hat, Emily. A political strategy trying to get Republican governors and state legislators to endorse these arguments and throw out the votes in their states, and he needs three states to flip to get enough electoral votes. That's why he's so angry at Brian Kemp, the usually very conservative governor of Georgia, a big Trump supporter, but who says he has no authority to do that. If you tell me state laws are rock-solid in determining the legislatures cannot do that, then a lot of Democratic listeners can exhale. If not, maybe we need to keep watching if enough of them resist the temptation to put it in their guy.

Emily Bazelon: I think we are almost past the point of having to even think about this because the states are going ahead and certifying their election results, and Brian Kemp and Governor Ducey, Republican in Arizona. They are signing the certification orders. I think if the Trump administration had succeeded in finding any real fraud, then you might have seen some success for this political strategy. The Constitution does allow a state legislature to appoint its own electors.

Now, I think legally speaking, it would have been really hard for the legislators to change the rules for appointing electors after the election. There would have been a big fight legally over that, but there is this narrow possibility. I think what happened though, was that there just was no proof of significant fraud. The Trump campaign had hotlines set up around the country, asking for people to call in, and they just got back very very little.

I'd also note that this is a fundraising strategy on the part of President Trump. He's raised right $170 million, a huge amount. Most of it is going to a political action committee he has set up and the rest is going to the Republican National Committee. Maybe that also helps explain the vehemence with which he's pursuing this strategy.

Brian Lehrer: I guess I need you to have half your political analyst hat and half your legal analyst hat to button this up, but Governor Kemp said, "Certification is not the end of the process." I think we've been hearing in the media in general, well, the governor, like you just said, the governor of Georgia, the governor of Arizona, Republican certified the vote, but Kemp says certification needs to take place before what they're calling auditing of the vote. If you're familiar enough, what is this auditing of the vote? They want to re-inspect in Georgia, all the signature envelopes to see if they match people's actual signatures, that kind of recount that the Trump campaign still wants them to do, that's called auditing. That would take place after certification. Would it have any legal standing to overturn the vote?

Emily Bazelon: In theory, I suppose it could, but I think that Governor Kemp is really just grabbing a fig leaf here because, for him, it's politically tricky to oppose the president. I think what he's doing is pretending that there are some real possibility here that Georgia's election results are going to be overturned. Credit here to another Republican Secretary of State, Brad Raffensperger, who defended the integrity of this election process in Georgia, even though his entire congressional delegation and the Republicans running for Senate in Georgia all called for his resignation. This is a really basic task on duty of government to say, "Look, we ran a decent fair election as best we could," but it's starting to seem heroic to have Republican officials say that in defiance of Trump.

Brian Lehrer: All right. We'll continue in a minute with Emily Bazelon. We'll take your phone calls, and we'll get to our final case, which is called Trump versus New York. It's actually called that, right after this.

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Brian Lehrer: Brian Lehrer on WNYC as we continue with Emily Bazelon, New York Magazine, Supreme Court watcher, Slate Political Gabfest politics watcher, Truman Capote Fellow for creative writing and the law at Yale and the author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. We'll go to some of your calls now on the law or politics of Diocese of Brooklyn versus Cuomo and the presidential election cases and then we'll get to the Supreme Court case Trump versus New York. How about a rabbi in Boston named Ron. Ron Rabbi, you are on WNYC. Hello from New York.

Ron: Hi there. How are you? Thanks for taking my call. I've been for a long time now frustrated with the fact that the imprimatur of the religious community seems to be given almost exclusively in the public imagination to organizations like a [unintelligible 00:24:27] or like the diocese where there are many many, I'd say, non-scientifically, a majority of religious organizations like my synagogue, prioritize the preservation of life as a primary religious, not just civic, but religious obligation. I'm wondering if there were any amicus briefs filed on the side of the state of New York by religious organizations that took the position that the state was doing something that was very much in concert with the First Amendment.

Emily Bazelon: That is such a good question. I am not sure what the answer is about amicus brief filings. I feel like I'm not going to be able to [chuckles] grow it fast enough to figure it out, although maybe I'll try in a minute. I think your point is really well taken that there is a multiplicity of views among religious organizations. Sometimes in moments like this, they seem to be represented by groups that are taking one stand that other synagogues or churches or other houses of worship and groups just don't share. I hope that there are amicus briefs that reflect that for you, I'm just not sure.

Brian Lehrer: Rabbi, thank you for posing a stumper to Emily Bazelon, who's usually unstoppable. Susan in Chatham, New Jersey, you're on WNYC. Hi, Susan.

Susan: Hi. How's everybody? I'm going to try to be quick because I know you're supposed to be quick here. I just wanted to let how things are handled here in our diocese, which is the Diocese of Paterson. Now, our church started out with live streams. People could watch it on their computer. The bishop then said, "Okay, we'll go by what the state says." They limited the number of people, and of course, did all the cleaning stuff and everything else, which was time-consuming, they only had two masses. Of course, everyone had to wear a mask.

Then they increase the number of people. By the way, we used to have to make reservations to go to church. Then they eliminated the reservation, they increased the number of people again, based on what the state has said. Now, this is the diocese. This is the ruling for all the parishes within the diocese.

Brian Lehrer: The point is, I think, from the legal standpoint that the Diocese of Paterson is choosing to do this voluntarily not being required to do it by the state, right, Susan?

Susan: No. They're following the state's rules.

Brian Lehrer: Okay.

Susan: I don't know if this guy over in Brooklyn, I don't know, who does he report to? Where's Cardinal O'Connor? Why doesn't he say something?

Brian Lehrer: Right. I think it's Cardinal Dolan, but nevertheless. Emily, any answer to that question? Because it's not New Jersey's restrictions, New Jersey also has restrictions that was taken to court. It's Cuomo's in New York in particular.

Emily Bazelon: I wonder if the red and orange zone designations play a role here, but I'm not familiar enough with the boundaries to know. I did find the amicus brief answer, and yes, there is a brief in this case. It was filed officially by Americans United for Separation of Church and State but has lots of signatories like the Central Conference of American Rabbis, Covenant Network of Presbyterians, lots of other people coming in.

They are worried that while the right to worship freely is precious and should not be misused to cause harm, they're also worried that they thought that the diocese and Agudath Israel's position in this went too far and would inflict substantial harm on people. They opposed granting the injunction.

Brian Lehrer: All right. Susan, thank you for your call. On the Trump election lawsuit, Sam, an attorney in Brooklyn. I love we got a rabbi on the religious suits. We got an attorney on the legal case. Sam in Brooklyn, you're on WNYC. Hello.

Sam: Thanks, Brian. I'm an attorney. I am also a litigator, and I regularly have clients approach me and ask me to file suits for some real or imagined wrong. I evaluate the case and I see if they have the facts necessary to support a claim and I see if I can fit their claim into an existing legal theory. Then I, most importantly, see if they have the evidence to back up their claim. If those things don't exist, I won't file the case because there are potential consequences not only to me but to the client.

Most states, New York included, have sanctions provisions, where if an attorney files a frivolous lawsuit, which is a lawsuit that has no basis in law or fact, the attorney can be sanctioned and fined and disciplined and hit with attorney's fees. My question is, these lawsuits when you read the judges decisions, the judges are hinting that they're frivolous, that there was no evidence in many of these cases to back up these claims. Why aren't these lawyers being sanctioned?

Brian Lehrer: Sam, would they typically be sanctioned at the time of the ruling or would this come up later?

Sam: Both. Sometimes at the time of the ruling, the judge will say, "I'm awarding sanctions." Usually, the opposing party has to ask for them. Sometimes judges award or issue sanctions on their own motion. Sometimes will go so far as to refer a lawyer to the disciplinary committee on their own if they feel that a lawyer has repeatedly abused the system.

Brian Lehrer: Emily, do these rise to that level, in your opinion, and has there been any indication from these various benches that they might do that to Rudy Giuliani or somebody else?

Emily Bazelon: I have heard a lot of discussion among lawyers asking this very question because it just seems like if you bring a suit over and over again, without a sound, factual basis, as well, as a very thin legal theory, you're really testing the limits of what attorneys are supposed to do in exactly the way the caller laid out. I have not seen any judges mention the idea of what are called usually rule 11 sanctions.

What the judges have done, however, is award the cost of litigation, to say that the Trump campaign is going to have to pay the cost of litigation for the other side, for the state in having to respond. That's an indication also that these cases have pushed some legal boundaries, but it doesn't quite go as far as sanctions. I wonder if there is just a reluctance given the heated political nature of these disputes for courts to sanction the attorneys.

Brian Lehrer: You are the Truman Capote Fellow for creative writing and the law at Yale Law School. Did Rudy Giuliani take your course?

Emily Bazelon: [laughs]

Brian Lehrer: It's very creative writing.

Emily Bazelon: Yes, creative but, man, the errors they've made in some of these petitions, they're really embarrassing. They brought up counties that don't exist in Wisconsin, and they spelled the word district wrong twice in the top of a pleading. It just goes on and on the level of clownish lawyering.

Brian Lehrer: One more on this. Tom in Sea Bright you're on WNYC. Hi, Tom.

Tom: Hi, good morning. Thanks for taking my call. I was wondering if your guest knows what happened to Justice [unintelligible 00:32:32] Kavanaugh's thread a few weeks ago in the Pennsylvania case that they were going to revisit whether the votes that were segregated after the election day based on somebody's lawsuit, I guess it was Trump's or someone, that the Pennsylvania Supreme Court interpreted the election law in Pennsylvania and on its own said, "We can accept votes after election day." Is that still relevant? Is that looted or do you know what I'm talking about?

Brian Lehrer: That's a relatively small number of votes. That wouldn't flip the results in Pennsylvania, not nearly, on that issue that was much in the news, for those of you who need reminding, of whether absentee ballots postmarked by Election Day could be received up to three days past election day and still be counted as Pennsylvania policy had it. Emily.

Emily Bazelon: The Supreme Court is still considering whether to rule in that case. Yesterday, I believe the Secretary of State in Pennsylvania filed a petition or a motion wherever we are in this procedure, saying, "Please don't. You don't need to rule in this case. It's irrelevant for the reason that Brian just gave. There are fewer than 10,000 ballots at issue, really no need to wait in here."

I would expect the Supreme Court not to step in. This is a really interesting issue about whether the Pennsylvania Supreme Court under the Pennsylvania constitution had the power to extend the deadline for returning mail-in ballots from Election Day to November 6th. Normally, we think of state courts as having a lot of power under their own laws and constitutions to make rules. You're right. Justice Kavanaugh and other conservatives were expressing some skepticism in this case. It's a tricky issue and it's very pandemic specific, this idea of extending deadlines. I would not think the Supreme Court would pick this case to weigh in.

Brian Lehrer: The Supreme Court is so conservative at this point, including-- You watch much closer than I do so you can tell me if this is a fair characterization. Angry, aggrieved justices, like with the opinions that Sam Alito expressed in a public speech recently, with an aggrieved tone and the aggrieved tone the Justices Thomas and Kavanaugh have been known to take in public. I don't know yet about Amy Coney Barrett, and I'm not sure if Gorsuch is in that camp or not. Can you see at least some of them identifying just emotionally with aggrieved Republicans who Trump is stoking and saying, "Structurally, these elections disenfranchise people who voted in-person," by letting all these creaky absentee ballot rules exist this year?

Emily Bazelon: I just don't think so. It would be so at odds with so much law. Think of it as like, there's this mountain of precedent and actual legislation, and state court and lower court decisions that you would have to face down. It would just be incredibly dramatic from any legal point of view. I just don't think-- why would the Supreme Court Justices go to that length for President Trump? They think of themselves as doing something different called law than politics. Whether that's true or not, the notion that they would interview so wildly on behalf of one precedent, it just seems really unlikely to me.

Brian Lehrer: All right. The Supreme Court heard a case yesterday simply called Trump versus New York. As I said at the top of the segment, that could be the title of a book about his entire presidency, Trump versus New York. This Trump versus New York is a specific case about Trump wanting to exclude many New Yorkers, and people from every state from the census count, based on their immigration status, even after they've submitted their census forms. Who's arguing what in Trump versus New York?

Emily Bazelon: Trump is arguing that he has the right as president to strip undocumented immigrants from the census count that determines apportionment, which means the balance of power in the House of Representatives. The clear result here would be to increase the number of likely Republican seats in the US House. This is something no president has ever tried to do before. The Supreme Court seemed quite skeptical that the president could do this. In fact, Amy Coney Barrett said, "What you're proposing is at odds with lots of history and precedent-- all the history and precedent."

The Trump administration has another big problem, which is the Census Bureau has said, "We need more time to prepare these results. We're not going to even have a complete census and this undocumented immigrant estimate you want in time for the end of your term." There was also this frustration on the part of Justice Alito, yesterday at the Trump administration saying, "Well, wait a second, if you don't even have this data, what are we doing here?"

Brian Lehrer: It sounds like they were skeptical, to begin with, even the conservative justices on the court but also I think I hear you're saying assuming Biden is inaugurated on January 20th the new administration could cancel this case by just reversing the policy and counting everybody in the census.

Emily Bazelon: Yes, exactly. I think what the court recognized-- actually, Chief Justice Roberts said this, is that if the Trump administration goes forward and rams through this, it would be potentially a quite flawed census count and strips undocumented immigrants from the apportionment, and then the Biden ministration tries to undo it. Roberts called that unscrambling the egg. There is something that's still at stake here. It just is very uncertain whether the Trump administration even has the data to try to pull this off.

Brian Lehrer: Emily Bazelon, New York Times Magazine, Supreme Court watcher, Slate Political Gabfest, politics watcher, Truman Capote Fellow for creative writing, but don't get too creative and the law at Yale and author of Charged: The New Movement to Transform American Prosecution and End Mass Incarceration. Thank you for so much clarity. Thanks, Emily.

Emily Bazelon: Thanks so much for having me.

 

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