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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Welcome to that Monday kind of Tuesday that comes after a three-day weekend. Yes, it's Tuesday, not Monday. Welcome to June. It's the month of the New York primary. We'll talk about the mayoral race later in the show, and ask what's a progressive voter to do now that Dianne Morales has joined Scott Stringer in the "what should I make of these accusations" category? Every year in June, the Supreme Court hands down its biggest decisions of the year as its term ends at the end of the month.

This year, we're watching a number of consequential cases that could be decided any day now. With Trump appointee Amy Coney Barrett on the court instead of Ruth Bader Ginsburg, some of these cases could be decided differently than they would've been last June. There's one involving a Catholic charity that won't consider same-sex couples for foster parenting, whose rights take priority.

There's another challenge to the Affordable Care Act or Obamacare that could theoretically get the whole system, including your health insurance policy, if you have one, through the Obamacare exchanges, declared unconstitutional. There's a voting rights case that could make it harder for people to collect other voters' absentee ballots for them and could make it harder to prove that any state's voting law changes are racial discriminatory. That, of course, is huge right now with the ways that Georgia and Texas and many other states are changing their voting laws.

We'll also discuss two big hot-button cases the court recently accepted for its next term, one that could make it easier to carry a concealed gun in New York City, and one challenging Mississippi's new abortion law that cuts off abortion rights when the fetus is just 15 weeks old. As if all that isn't enough, there's a controversy swelling, if you haven't heard this yet, around the aging Justice Stephen Breyer, who many liberals would like to see retire. Well, Joe Biden would get to replace him, and Democrats have a majority in the Senate to confirm a Biden nominee, and Breyer making waves of his own with a speech that casts shade on the idea of expanding the size of the court.

It is a time right now for Supreme Court watchers, including WNYC's legal editor Jami Floyd, who joins us now as she does every year at this time for a whole number of years in a row to follow the end-of-term developments and help us make sense of it all. Hi, Jami. Happy June. `

Jami Floyd: Hello, Brian.

Brian Lehrer: Before we get into the decisions we're expecting, how consequential has the Supreme Court term been already with decisions that have come down along the way since Justice Barrett was confirmed last fall?

Jami Floyd: Well, Brian, as your question suggests, confirming Amy Coney, Brian, to replace Justice Ginsburg really created a lopsided 6-3 imbalance, which is against the very idea that the constitution and even civil rights laws passed by Congress are meant to advance justice and equality, a balance on the court. More profoundly, the conservative movement is finally approaching a goal it has sought for decades, ever since I was in law school when it started, this radical reinterpretation of the constitution that actually prohibits our elected representatives from passing laws to provide us social safety nets and protect us from untrammeled power of large corporations.

It's a different thinking. Now, to ask about a particular term, Brian, is a little bit like asking about a presidential administration right after it's ended. You really need some time to digest the term, as you do say Obama's administration. You need some time to really understand the depth and breadth. We're not even finished with the term. We've got a bunch of cases. We've got, I count 26 cases, all of which were argued virtually because of the COVID-19 pandemic, that remain on the docket undecided. Too early to tell, but as you point out, Brian, a significant shift in the balance of the court.

Brian Lehrer: Let's get into these cases about to be decided, at least the few that I singled out out of those 26, and then I'll give you a chance to say which ones I should've included in this list, and also the new hot-button ones soon to be heard. Would you take the legally married same-sex couple rights versus religious liberty rights case first?

Jami Floyd: Sure, I'm going to remind everyone that we are still broadcasting remotely. It's become the norm. We have forgotten that that's what we're doing, but today, Brian, just as I came to the microphone, construction began right outside my window. [chuckles]

Brian Lehrer: Oh, I don't hear anything.

Jami Floyd: You may hear it along the way. I just want to flag it for our listeners. Yes, the freedom of religion cases. Well, there are a couple of big ones on the docket this year, but as you point out, one involves LGBTQI rights versus religious freedom, religious rights. It's a big test of our culture wars really in this country. I would call it a blockbuster case. It questions whether the city of Philadelphia can stop working with a Catholic charity that is declining to screen same-sex couples as foster parents. It's Fulton vs Philadelphia.

It's really one of the most closely watched cases this year because it does pit gay rights against the constitution's protections of religious freedom. It's really not a new fight, Brian. The case was argued just days after Amy Coney Barrett joined the high court. It gets back to the question you asked at the top. It gives conservatives another potential vote in favor of religious freedom. There has been a recent and important line of cases bolstering a very strong undergirding of religious freedom in the country, supported most strongly by Samuel Alito.

Observers, including myself, see the outcome in this case as going toward the religious freedom. I would predict that Alito will write the case. I'm really going out on a limb here. You know I don't like to make predictions, but that's my prediction. We've seen recent emergency appeals to the court, which were shot down during COVID-19. You remember, Brian, limiting church attendance to slow the spread of the virus, and some other religious freedom cases. That's where I think they'll go on this one. I could be wrong. It's a very interesting one that looks at religion in the context of our culture wars and the freedom of LGBTQ couples.

Brian Lehrer: Let me get into the weeds on this one a little bit because I think it really is interesting and that a lot of our listeners, whether they have a personal stake in it or not, will find it really interesting and important. I think this is really a case that asks, can a city government refuse to do foster care business with a religious charity that discriminates against married same-sex couples?

Would it be different if it were a private non-governmental group that wanted to exclude the religious one? I think the central question is here, and correct me if I'm wrong, that the city of Philadelphia says, "No, we're not working with you Catholic Charities on our foster care program because you won't even consider same-sex couples to be foster parents." In a way, it's whether the city can single out the religious foster care group because it singles out gay couples.

Jami Floyd: You're asking an excellent and first-order question in constitutional jurisprudence. It's always about governmental action, city, state, federal. That's the first question, can the city do this because they're the governmental actor? The First Amendment is about religious freedom, is about suppression of that religious freedom by the governmental entity. When my kids say to me, "Well, I have free speech," I say, "No, you don't because I'm your parent." You can only raise that claim when the government tramples on your free speech.

There's another big free speech case in the court right now that involves a young woman who was a cheerleader. She posted some stuff on Snapchat and her public school punished her. It's a public school, so that's why it matters. If she went to a Catholic school or a Yeshiva, her rights might be different. In fact, they would be different.

Brian Lehrer: Or a non-religious private school, any private school.

Jami Floyd: Exactly. Now, there you still have free speech rights. It's not as if you don't just because you're at a different kind of school. There are reasons for that, Brian. You raised a very good question. Let's say this were a private entity, going back to the civil rights era when private entities wanted to discriminate against African Americans, how was that stopped by the US Supreme Court? They used something called the Commerce Clause saying, "Well, you're still engaging as a government entity in a way because you're using things that travel through interstate commerce." This incredible reach to say, "Well, we're still going to say there's some state action here because you're engaging in interstate commerce."

It's a very controversial theory, but here you don't need to go there because we've got the city of Philadelphia on one hand and Catholic Charities. What Catholic Charities is trying to get, Brian, is an exemption. They want an exemption. Think back on the exemptions requested by religious groups, from the birth control requirements in Obamacare, very similar, right? There have been other exemptions requests that this court has allowed. We'll see if the court allows this exemption to this requirement requested of the city of Philadelphia.

Brian Lehrer: This one seems right up Justice Barrett's religious liberty alley on a question where Ruth Bader Ginsburg probably would have voted differently. It's a stark reminder of the change in personnel. One more question on this case before we move on to the voting rights case. Since same-sex marriage itself is constitutionally protected now, why can anyone legally discriminate against the legally married couple for anything at this point based on sexual orientation?

Jami Floyd: It reminds me of the cake baker. Remember the wedding cake?

Brian Lehrer: Yes.

Jami Floyd: [chuckles] Well, it's very interesting for I said Alito would write this, Amy Coney Barrett might write it also. I'd say one of the two of them, because you have the right to be married. This is a question about foster care and whether or not Catholic Charities has the right to determine who will be a foster parent under their program. You can still be a foster parent under a different program in Philadelphia, just not Catholic Charities. The question is whether or not Catholic Charities as a religious organization has the right, a religious entity has a right to exercise its freedom of religion to choose which parents will participate in the program.

The city of Philadelphia wants to protect the freedoms of its LGBTQ citizens. You have these competing rights, but you as a citizen in Philadelphia or anywhere in the United States now have the right to be married. This doesn't affect your right to marry in Philadelphia. It's just Catholic Charities saying, "Well, you can be a foster parent, just not through our program."

Brian Lehrer: Listeners, we can take some phone calls for our legal editor, Jami Floyd, on any of the cases now before the Supreme Court, as they're expected to come down with some big decisions before, in fact, they're required just about to come down with these big decisions before the end of their term at the end of this month. We're going to get into the Justice Breyer controversies too. You can call on that if you like at 646-435-7280, or tweet a question @BrianLehrer.

Let's go on to the voting rights case. This is from Arizona, which some of our listeners who were really paying attention will know that it's one of the states, one of just two, that many Republicans voted to reject the electoral votes from on January 6th. Pennsylvania was the other one. Specifically, this case involves when other people can collect your absentee ballot or mail-in ballot and deliver it for you, a practice that opponents derisively call ballot harvesting. What's the legal question?

Jami Floyd: I love the phrase ballot harvesting. It really just means allowing outside groups to pick up mail-in or absentee ballots from voters and deliver them to election officials. It's particularly helpful when you have elderly voters or voters who cannot, for other reasons, get to the polls. Of course, it increases voter turnout. Opponents/Republicans say the practice invites fraud. Though, instances of fraud, Brian, are extraordinarily rare. It's hard to find evidence of fraud.

Supporters of this practice say that it enfranchises low-income voters who may be busy working multiple jobs, or as I said, just can't get to the polls. Maybe there are access to transportation issues, or even in some cases, the mail. The Postal Service may not service some lower-income areas as much as others. The bigger issue in the case, Brian, though, is the Voting Rights Act. We come back to that.

There's a provision in the 1965 Voting Rights Act. Civil rights advocates are concerned that the court could use this case to undermine another provision of the Act that allows people to bring claims against states for some election laws that have a discriminatory result. That's one of the issues raised in the case. When you go and look at the case, they list out a slew of issues, and they made sure to include this one to give the court an opportunity to review a provision of the Act, another provision, one having been struck down in Shelby, a key one. Advocates prefer a much higher bar set by the court back in 1980.

There's this provision floating around that the court may or may not choose to rule on. The ballot harvesting question on the table. I should point out, Brian, that as of late March, legislators have introduced 361 bills. Did you hear me? 361 to restrict voting provisions in 47 states? That's according to the Brennan Center for Justice, which is a nonpartisan think tank looking at voting issues. A lot of this is based on former president Trump's baseless allegations of fraud asserted after the 2020 election.

Brian Lehrer: Well, what is left of the Voting Rights Act for them to challenge? You mentioned the Shelby case from 2013, was it?

Jami Floyd: Yes, I believe it was. I may have said '15. You're correct. 2013.

Brian Lehrer: Oh, you didn't say a year. I was just guessing.

Jami Floyd: Obergefell was '15, Shelby was '13. Good news, bad news. [crosstalk]

Brian Lehrer: Obergefell was same-sex marriage. This Shelby case really weakened the Voting Rights Act. Remind us about Shelby. What did it take away and what remains that the people who want to make it harder to collect ballots are challenging here?

Jami Floyd: Well, the Shelby case in 2013 struck down effectively the heart of the 1965 Voting Rights Act. It was Section 5, and it required prior federal approval of any changes to voting procedures in parts of the country that had a history of racial and other discrimination. It was a very hotly contested case within the court amongst the justices, 5-4. It was Shelby County v Eric Holder, the attorney general.

It said that the Section 2, which is permanent and applied nationwide, is not an issue in the case. Justice Roberts wrote that because he wrote the majority opinion, but then he struck down the important Section 5, which would require you to go to the federal government and request a change if you were a county that had a history of discrimination. That went away. Justice Roberts said, "Well, we don't need that anymore."

The times have changed. He didn't say racism had evaporated, but he said discriminatory practices and discriminatory results, intentional discrimination, and the things that that section was written to address, they're no longer what they were in 1965. This is what John Lewis had marched across the bridge with Dr. King and so many others and nearly died for, was beaten about the head and nearly died for, and here it evaporated. I remember seeing the tears stream down his face as the decision came down.

The Arizona case that we see now involves two kinds of voting restrictions. One requires election officials to discard the ballots that were "harvested", and the other would make it a crime, Brian, for campaign workers and activists to collect those ballots in the first place. It's another stab at voting rights and the Voting Rights Act.

Brian Lehrer: Cynthia in Morningside Heights has a question about the case we discussed first, the Philadelphia case involving whether Philly can stop doing business with Catholic Charities on the foster care program that the city has because Catholic Charities won't even consider gay, married couples to be foster parents. Cynthia, you're on WNYC with our legal editor, Jami Floyd. Hi, there.

Cynthia: Hi. Thank you. I'm confused as to why this is referred to as a case of civil, of religious liberty. They keep saying religious liberty. There's nothing preventing the Catholic organization, as I understand it, from continuing to refuse to deal with a gay foster parents within their own bailiwick, so to speak. It seems to me they're trying to force a secular civic entity such as the city of Philadelphia, to do business with them against civil law, and presumably, there's taxpayer money involved also. I don't see why it's a question of civil, of religious liberty to have them be able to say that secular civic institutions must do business under their specific religious code of beliefs.

Brian Lehrer: Cynthia could be a lawyer for the sake.

Jami Floyd: Yes, she could. [chuckles] I don't really even hear her question. She's making a good argument in front of the US Supreme Court and she is precisely right. Cynthia, taxpayer funding is at the heart of the case. The case, which was heard back in November, the argument was very much about the fact that these private agencies, including Catholic Charities, receive taxpayer funding to provide these government services such as foster care. Also, things like food banks, homeless shelters, other services.

Then the question is, can they frankly discriminate against a gay couple that wants to engage these services? Be they LGBTQ or, Brian, going back to your implications earlier, Jewish, Muslim, Mormon. What if they wanted to discriminate against some other group while receiving, as Cynthia suggests, taxpayer funding? That's the question. To me, if I were a justice on the US Supreme Court, the answer would clearly be no. You can do what you want to do, but you can't have our taxpayer funding under the constitution.

I think the court may very well rule differently in this case given the recent rulings on religious freedom. They've carved out taxpayer support for religious education. They've sidestepped job discrimination laws, health insurance coverage for contraceptives, as I've mentioned. I think they see it very differently, Cynthia.

Brian Lehrer: Thanks, Cynthia, for your call. We've got about eight minutes left in the segment. Let's go to a little bit of a lightning round pace from here on in with so many other things that I know you at least want to touch on and I at least want to touch on. Maybe we can dispense with the Affordable Care Act case briefly. Can you put people who have Obamacare health insurance at ease because hasn't the Supreme Court already upheld the constitutionality of the ACA a couple of times?

Jami Floyd: We can do it quickly, Brian. The issue before the court is whether a penalty of zero can still be justified legally as a tax. We could do a whole segment on this Obamacare because it's been around and around and around. It's been to the court several times. The fact is that now the penalty is zero if you don't have Obamacare or ACA. It is really a technicality. I have to say, I think the court is going to uphold it. I just don't think they're going for it. I've dispensed. [laughs] That's it. That's your lightening round. Next?

Brian Lehrer: It's like a brain-teaser. If something is constitutional because it's based on being taxed for a certain behavior, but behavior can't be enforced because the tax penalty you'd have to pay is zero, can the rest of the law still be enforced?

Jami Floyd: Brian, I think they're also going to throw it out on standing because there's no harm. What's the harm? The penalty is zero. I don't even think they're going to get to that issue.

Brian Lehrer: Let me look ahead briefly to at least one of these cases that they've already taken for next term. With gun crimes on the rise in New York city, a lot of city listeners will be interested in this. A case involving concealed carry rights in the city. Who's suing who?

Jami Floyd: It's the National Rifle Association again. We had a gun rights case before and it got mooted out last term. Now we have the National Rifle Association, powerful gun rights organization that we all know, challenging New York's law. This time, the law that restricts, get ready, carrying hidden handguns around in public. [laughs] I'm sorry. I have to laugh. Are you kidding me? We have all these shootings going on and we're going to sue so that we can walk around and carry like it's the Old West. Anyway, they are [crosstalk]

Brian Lehrer: Just to acknowledge their argument, that side argues that it would be safer because the bad guys would never know when they might be shot by an innocent bystander.

Jami Floyd: You could pull out your gun. Well, look, in theory, I used to argue this on the air, Brian, when I had a show like you have. I had a show like you have and I used to get on when I was young and stupid.

Brian Lehrer: On television?

Jami Floyd: No, this was when I had a radio show. I was brand new, 20 years old, 21. I was young and stupid. I would say, "We should all have a gun. I'd feel much better if I had a gun." Then, Brian, I practiced law for a lot of years and I saw the violence that guns wreak on our society. I also learned a little something about response time. You are not going to get out your gun and stop a mass shooting. The police can't even do it and they're trained. We see what happens with guns and police. This is a bad argument. I usually do not editorialize on one side or the other. Well, I guess I do sometimes.

Anyway, the NRA, the gun rights organization is challenging New York's law that restricts carrying hidden handguns in public. The big case here is a case out of the Supreme Court precedent is the Washington DC case, in which the Supreme Court said that the Second Amendment does give us a right to bear arms, not show off our gorgeous arms in public with short sleeves, but actually carry our guns. What that case said, Brian, isn't just a broad right to carry guns all around and shoot them up like the Wild West. It said municipalities can heavily regulate how you own your firearms. It's not this broad right and the government can't tell you what to do with your guns.

I have a feeling that even this conservative court is going to say that the New York law can stand. That's my-- I don't know. It's close. I think you'll get Clarence Thomas and Alito on one side saying, "Yes, go walk around with your gun," and maybe Amy Coney Barrett, but I think the more reasonable justices are going to say, "Are you kidding me? No. If New York city doesn't want you to walk around with your gun in your back pocket, in your holster, that's fine."

Brian Lehrer: Jami making predictions today.

Jami Floyd: I know, rare. I'm stepping out. The fact is, the question in the gun case, Brian, isn't whether or not you have the right to carry. The question is whether New York has the right to tell you whether or not you have the right to carry. The question is the state's right to regulate carry. That's the question.

Brian Lehrer: Always the question. As you pointed out before, government rights are overstepping its authority when the cases are constitutional. Let's touch on Justice Stephen Breyer. 85 years old, appointed by President Clinton, usually votes with the liberal wing. He gave a speech at Harvard in April in which he seemed to warn President Biden and Democrats in Congress against expanding the Supreme Court to counter what they see as Mitch McConnell's dirty pool refusing to consider a nominee near the end of Obama's term as president, but rushing through Justice Barrett at the end of Trump's. In this minute-and-a-half clip from Breyer's speech, he had just described some of the history that President Franklin Roosevelt made trying to pack the court with more justices in the 1930s. That was a long time ago, but--

Justice Stephen Breyer: The court-packing story is relevant here for another reason. Proposals have been recently made to increase the number of Supreme Court justices. I'm certain that others will discuss related political arguments, for example, will what goes around come around, are the nomination and confirmation processes working well, do appointments too closely reflect partisan political division as the court itself become politically partisan?

This lecture reflects my own effort, however, to be certain that those who are going to debate these questions and related proposals, also consider an important institutional point, namely, how would court-packing reflect and affect the rule of law itself? To discuss this institutional question, it's important to focus upon more than the rights or wrongs of individual cases however important those cases are. When I or others dissent, naturally, I think the majority is wrong and sometimes I think they're very wrong.

Discussion of institutional change should include discussion of certain background matters, such as the trust that the court has gradually built, the long period of time needed to build that trust, the importance of that trust in a nation that values, indeed depends upon, a rule of law.

Brian Lehrer: Justice Breyer at Harvard in April. Yes, Justices of the Supreme Court do sometimes speak in public. Jami, we could obviously do a whole segment on this, but in our last minute, help us understand briefly what he's getting at. I think he's afraid as institutions are breaking down in this country one by one, nobody will feel compelled to abide by even a Supreme Court decision, if the court is seen to have been politicized by expanding it, yes?

Jami Floyd: I think that's right. There are a couple of things going on. Of course, he's 82, so he's under pressure, especially from progressives, to retire so that President Biden can name a replacement while Democrats have this tenuous majority in the Senate. Brian, of course, when justices step down, they often do so at the very end of the term, so here we are. He is one who is, as we've heard there, and he has a book out, by the way, decrying the politicization of the court. That would seem to suggest he's not going to step down.

The book can be read. I've only read portions of it, I will admit, but the portions I've read are actually an indictment of the timed retirement as a political act. That seems to say that he is not going to step down just to ensure that a seat is filled by a Democrat. It's kind of a manifesto. His book is against the idea that courts should be perceived as political. He says, "If the public comes to see judges as merely politicians in robes," going on with his quote, "It's confidence in the courts and the rule of law itself will only decline."

I'm going to go out on a limb again, Brian, and say he's going to stay put. Then on the issue of packing the court or restructuring the court, also the other issue he's talked about quite a bit is getting rid of life terms for justices. A handful of Democratic lawmakers have introduced legislation that would add four seats to the Supreme Court. That landed with a thud in Congress. Nancy Pelosi said she has no plans to bring the bill to the floor. President Biden has a commission studying Supreme Court reform, but there are no really outspoken proponents of reform on the commission.

I think Justice Breyer, 82 though he may be, is pretty much sitting in a seat that will be reflected well in history. He's on the right side of history. I think the court is a strong institution, at a time when our other institutions, Congress and the executive branch, the presidency, are extremely weak. I'm happy that the court, though conservatively balanced, is still mostly legitimate in the eyes of the public.

Brian Lehrer: By the way, I stand corrected. I said Brian was 85. You were right, he's 82.

Jami Floyd: He needs those years, Brian. [chuckles] Give them back.

Brian Lehrer: We all do. What is a two but a five stood on its head. Who knows with sports betting now legalized in so many states, maybe next will be Supreme Court betting? We'll see what the over-under is on Breyer retiring or not at the end of this term. WNYC legal editor Jami Floyd, who I suspect will have reason to join us once or twice, let's say, this month as these big end-of-term Supreme Court decisions come down. Jami, thanks for today.

Jami Floyd: Always my pleasure, Brian.

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