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Brian Lehrer: It's Brian Lehrer Show on WNYC. Good morning, everyone. Welcome to the first Monday in October. Today each year when the Supreme Court starts its new term, the first oral arguments in the first case before it should be starting right about now. Today marks their first return to hearing those arguments in person since the start of the pandemic. Although Justice Cavanaugh who tested positive for the coronavirus last week will be connecting from home.

The public is still not allowed in, but the justices, the attorneys, and the main journalists who cover the court will be in the building with a live audio feed for the rest of us. Now, it's a fraught moment for the court and the country, not just because of Justice Cavanaugh's positive test, but they are still feeling the aftershocks when they're six, three decision to let the Texas abortion law take effect, and they are due to hear some very contentious and high stakes cases covering topics like abortion rights, gun rights, and religious rights.

To walk us through what we should expect this morning and beyond, including some unusual rhetoric in the last week from some of the justices themselves, I'm joined by NYU law professor, Melissa Murray, who does analysis for MSNBC as well and is a co-host of the podcast, Strict Scrutiny. Professor Murray, thank you so much for your time today. Welcome back to WNYC.

Melissa: Thank you so much for having me, Brian.

Brian: Maybe we should start with the Texas ruling since it seems to have set the stage for this week. Texas passed an abortion law for those listeners who may not know that seemed to fly in the face of Roe vs. Wade, and the court decided 5-4 not to prevent it's taking effect while it's being challenged in the lower courts. It hasn't been officially upheld by the court, at least not yet. It was unusual, however, in that they didn't block it considering Roe, and Justice Sotomayor called the law flagrantly unconstitutional in her dissent. How did the five justices get to the decision to allow it to go forward? Review for us.

Melissa: Well, it's a great question, Brian. Typically, when an abortion law is enacted, it's usually slated for the state to enforce it, so state officials like the Department of Public Health or a district attorney are charged with enforcing the law's parameters, but what Texas has done is actually prohibited the state from enforcing its law and instead, it's delegated the enforcement of the law to private individuals.

That particular feature which is incredibly unorthodox is what really vexed the justices when this motion came before them, citing what they called procedural irregularities. The fact that there was no state defendant here, the court determined that it could not step into enjoin the enforcement of the law which effectively allowed the law to take effect in Texas hobbling abortion access in the second most populous state in the Union.

I'm sure we will talk about this, it has set off a firestorm about questions about the politicization of the court, and particularly the fate of Roe vs. Wade as a new case will be heard by the court this December on a challenge to the Mississippi 15 week abortion ban.

Brian: Let me ask you about the way the justices have started going at each other around this. Justice Kagan referred to the shadow docket, that term shadow docket in her dissent, a term that Justice Alito took issue with in a speech at Notre Dame last week. We have so-called liberal justice, so-called conservative justice speaking out publicly. What does that refer to shadow docket, and how unusual is it for them to spar like this in speeches?

Melissa: Let me take the last question first. There does seem to be a bit of sharp elbowing going on at one First Street, and that speaks to the climate in which the court finds itself at especially after this decision in the Texas case. The shadow docket refers to the court docket of emergency petitions and motions that comes before it, and it's not a new thing., it's been an issue for the court for a long time. They've always needed ways to resolve questions that present themselves and need expedited disposition, and so the shadow docket has been a way of doing that.

What has been the issue and I think the reason why it has taken on this nefarious tone is, in recent years, and particularly with the Trump administration, we've seen the administration really exploit the shadow docket as a means of allowing its particular policy preferences to go into effect. Skipping over intermediate circuit courts of appeals and challenging rulings at the district court level all the way to the Supreme Court on the shadow docket was something that really happened in the Trump Solicitor General's office, and the courts allowed a lot of that to happen.

What some people have identified about the shadow docket is not simply that it is a place to resolve these emergency appeals, but rather it is a place where in doing so, the court has actually made some really substantive moves and that tend to trend in certain ideological directions. To be very clear, Justice Alito, in that speech at Notre Dame really took issue with the idea of calling it a shadow docket, which she said sounded sinister and nefarious.

I will just note, the term shadow docket was coined by Will Baude who is a professor at the University of Chicago and was a clerk for Chief Justice John Roberts. This is not the case of liberals coming up with this term, this is something that was coined by someone who is within the conservative legal mill you, but Justice Alito very much has taken issue with the rest of the country calling it the shadow docket.

Brian: Yes. On what the term means you described a minute ago, this technical term for things that need emergency authorization, but it does sound sinister, and it sounds like maybe Justice Kagan was using it in that way to suggest that instead of just receiving cases that come up from the lower courts, and then deciding which ones are important enough to the country for the justices of the Supreme Court to take, because they can't take everything that people want them to take, that the conservative justices have an agenda, and they're looking for cases.

They're looking for cases that might weaken abortion rights. They're looking for cases that might strengthen gun rights, et cetera, a shadow docket of their own to cherry pick cases that are coming up toward them. Is that what she means, and do you think that's what's going on?

Melissa: I don't know if that's exactly what she means, I can only speculate as to our terms. I think she is pointing to the fact that what we have seen certainly over the last four years is the use of the shadow docket in ways that are unprecedented. One of the complaints about the shadow docket is that there's not a lot of transparency in its disposition. It is not like the court's ordinary merits docket where you have oral arguments, you have a full briefing, and then you have a decision where the court's reasoning is fully explained.

Often, the shadow docket cases don't have time for oral argument, there's briefing but it's not full briefing, and there's usually not a lengthy disposition explaining the court's reasoning. Sometimes there's just a couple of sentences. In the abortion case, for examples, just a paragraph. It's hard for the American people to understand what the court is doing on the shadow docket, and for that reason, they weren't really supposed to use the shadow docket to decide really consequential questions, but they are in fact doing that right now.

You only need to look no further than the decisions they made about those COVID restrictions in the spring of 2021 and in the spring of 2020 for that matter. In the spring of 2020, when Ruth Bader Ginsburg was on the bench, we saw a number of challenges to state-level COVID restrictions, and they were resolved five to four with the state being allowed to have those restrictions stay in place in the interest of public health.

Then when Ruth Bader Ginsburg, unfortunately, passed away and was replaced on the court in the spring of 2021, we saw those same decisions coming out the complete different way with the Chief Justice siding with the liberal wing, but the conservatives really in ascendance. In making those departures in those COVID level cases, they really were pushing the envelope on Free Exercise Doctrine, Religious Liberty, and then imported some of their reasoning into cases that were later heard on the court's merits docket, and that is actually really unheard of.

It's not what the shadow docket is supposed to be used for. When Justice Kagan complains, it is that kind of slippage between the emergency docket and the merits docket that she's thinking of.

Brian: Listeners, any questions on the new Supreme Court term that begins today for NYU law professor, Melissa Murray, 646-435-7280, 646-435-7280, 646-435-7280, or tweet your question at Brian Lehrer. Back to abortion rights, in the context of this, Professor Murray. In December, the justices are slated to hear arguments in a Mississippi, ban on abortions after 15 weeks, which seems to go directly up against the precedent set in the Casey decision, which came after Roe that said abortions could not be banned before fetal viability.

Why was that law blocked until they can consider the case fully, but the Texas law arguably even more extreme was allowed to go forward?

Melissa: It's a terrific question, and it all turns on the question of who has to enforce the law. The Mississippi 15 week ban that was enacted was basically given to the state to

enforce and that's typical, as I said, of most abortion laws. There's someone in the state administration, whether it's the Department of Public Health, or if it's a criminal law, the district attorneys of the various regions who are charged with enforcing that law.

When the law is passed, abortion providers immediately sue to have it enjoined, and in suing, they sue the state official who is charged with defending it. That's the appropriate defendant. Because Texas has taken the state out of the enforcement business here and instead has delegated it to private individuals who may bring these cases against their fellow citizens, you don't have that state-level defended.

Instead, you have a wide universe of unidentifiable defendants that we'll never know until they actually file suit against someone to bring suit under this law. The problem with the Texas laws is that they weren't sure who the right defendants were. The abortion providers had sued county clerks, they had sued judges who would have to facilitate these lawsuits as they went through the legal system but they weren't actually the people charged with enforcing the law itself.

The Supreme Court said, unable to identify the defendant who would actually be enforcing this and it could be any defendant, they couldn't stop this law from going into effect. There's no problem like that for the Mississippi law because it was passed using the more traditional means of having the state be the avenue for enforcement.

Brian: Now, the Texas law also points to the fact that there's not really a swing vote anymore. Chief Justice Roberts had played that role, but he sided with the more liberal justices on this and was outvoted anyway. The Texas decision also seems to have resulted in a drop in the court's approval rating in a recent poll. Do you think Roberts might be more worried about the court's lack of immunity to the politics that royal the nation, especially since the presidential election, more concerned about their immunity to politics than justice Cavanaugh's lack of immunity to COVID?

Melissa: The Chief Justice has always been among the justices, the one who is perhaps chiefly worried about the institutional legitimacy of the court. He is the institutional stalwart of the court and we've seen him play that role before certainly in 2020 in June medical services, which was another abortion case, where he conceded. He was no fan of abortion, but stare decisis. He said demanded that he vote with the liberal wing of the court to strike down a Louisiana admitting privileges law.

I imagine that right now, there's a lot of teeth-gnashing in the Roberts household because this is not where he wants the court to be. A six to three conservative supermajority means that his vote isn't really consequential. They don't need him to form a majority of five, they can do what they like. That doesn't mean he's necessarily hobbled, certainly not in this case regarding the Mississippi 15 week ban.

You could imagine a scenario where the Chief Justice joins the conservative but does for the purpose of exercising his prerogative to assign the opinion when he is in the majority and you could imagine him assigning that opinion to himself to write a narrower decision. A decision that would be more narrow, would be one where the courts perhaps opposed the Mississippi law, and eviscerates viability as a salient marker in its abortion jurisprudence.

It would be short of overruling Roe explicitly but it would still be a very consequential shift in the court's abortion jurisprudence, but it wouldn't go the whole way. I imagine for chief justice, who is eyeing the midterm elections that are going to happen in November of 2022, just months after this decision in the Mississippi case is likely to come out, that might be a very attractive option. Or given what we just saw in the Texas case, it could just be that this conservative supermajority, have the votes, have the will, and this is its moment to really undo Roe v. Wade, and they will take that opportunity.

Brian: Does Justice Roberts have any right-- right is the wrong word but is it proper for him as Chief Justice of the United States to be looking at the 2022 midterm elections in the political sector and the legislative branch in any way in determining what he does as Chief Justice of the Supreme Court?

Melissa: I think it's a formal matter. He would never admit to that but the court is obviously very well attuned to what is happening in politics and certainly because the court's legitimacy depends on what is happening outside of one First Street. The court is not like Congress, is not like the executive. It doesn't have an army to enforce its decisions so it cannot take away funding from different institutions when they don't comply with its decisions.

The only way they have of forcing that compliance is really to be seen as above the political fray to be legitimate, and I think to the extent that Chief Justice is reading the tea leaves here, I can imagine he does not want to see American women marching to the polls in November 2022 with Roe's deaths on their lips.

The real question, though, is whether he can get his conservative brethren to see that as well. This is not a question of the court being embroiled in politics obviously, politics is in the ether and it's certainly always been a part of the court work, but I think part of the judging of politics here is for the purpose of keeping the court really out of politics, at least making it seem like it's out of politics.

Brian: I've read that to the extent one of the five conservative justices who let the law take effect in Texas might not overturn Roe vs Wade. It would require one of them to let precedent take precedence over their views on abortion rights and Roe as a decision. Does it seem feasible to you that that would happen?

Melissa: Unclear. That justice would have a model and the Chief Justice and his concurrence in June medical services where he was very clear, "I had earlier voted to uphold a law like this, and now I'm voting to strike it down because stare decisis demands such a result." That sort of principle above ideology, I think is something that perhaps we will see, but it's really hard to say, when you have six votes, you can do whatever you want.

Brian: That's right and in that context, though, would you define for our listeners a term that you used a little earlier that refers to precedent and Justice Robert's respect for it stare decisis?

Melissa: Sure, stare decisis is a Latin term for that which is settled stay. Basically, let past decisions that have been decided, let those guide you and it generally refers to deference to settle decisions of the court and the question of stare decisis is one that always comes up with regard to Roe v. Wade and Planned Parenthood versus Casey with reproductive rights Stalwart, saying that these precedents cannot be casually overturned because some majority of the court doesn't like it anymore.

That's the whole point of longevity and institutional predictability, but then you have people on the court, including Justice Clarence Thomas, for example, who argue that stare decisis is a guide, it's not a mandate, and where you have a decision that is demonstrably erroneous, and to be clear, justice, Thomas very much believes that Roe v. Wade and indeed the whole line of cases about the right to privacy are improperly decided. "When you have a decision that is demonstrably erroneous, the court has an obligation," he says, "to overrule it."

Brian: Justice Coney Barrett, one of the moments in her testimony that I really set up straight and took notice of when she was asked directly if she thought Roe is super precedent, a super precedent, which I guess would be the same as stare decisis and your definition tell me if you think not, and she said no, Roe is not a super precedent, even though it's almost 50 years old, et cetera because it's controversial.

Melissa: The term super precedent comes from a former judge, Judge J. Michael Luttig, who was on the Fourth Circuit and was often touted as a potential nominee to the Supreme Court. He left the bench and then went on to a career as the General Counsel of Boeing, but when he was on the bench he coined this term super president to refer to those decisions that not only had been decided by the court but had repeatedly and consistently been affirmed by the court in subsequent decisions.

and Griswold v. Connecticut was one of those and Roe v. Wade, he noted was one as well. The court has consistently and repeatedly confirmed the holdings of Roe v. Wade. That was a head-scratcher when justice Barrett said that she did not believe Roe was a super precedent but I think it was a very telling admission.

Brian: When do you think the Supreme Court should throw out super precedents or stare decisis cases that have established law that's been in effect for a long time? Of course, we can go back to horrible precedents having to do with racist laws during the slavery era and the Jim Crow era. We presumably would want the Supreme Court to look at them in a new light, even decades or centuries later.

Melissa: I think this is the really vexed question that again, is one that liberals and conservatives really struggle with on both sides. Is it the case that you are stuck with something that an earlier court did that is just clearly out of step with

where the country is at a particular moment? Is it the case that past decisions of the court misread the Constitution, misinterpreted its terms? There are guidelines that are laid out for courts to reconsider precedent.

Planned Parenthood v Casey, for example, lays out a series of factors that federal courts should go through as they decide whether or not to overrule a precedent. One is, where there are new facts that make clear that the earlier court really got it grievously, grievously wrong, and maybe that's the case around Plessy v. Ferguson and the Court shift in Brown v. Board of Education. Another factor that Casey identified is whether the decision has proven to be unworkable over time.

A number of abortion opponents have argued that Roe's provisions are just very difficult to actually make cash out on the ground. It's very hard to say these are vexed questions. I think people rightly wonder whether we should be held to standards that courts, where a lot of people would not have been present in the decision-making process, or whether in politics or on the court itself would not have had a voice, whether those kinds of decisions should be allowed to stand. Again, the other way that we've seen this is that courts continually refine through interpretation their view of what these precedents mean.

Brian: We're talking about the first day of this very high-stakes new term for the United States Supreme Court with NYU Law Professor Melissa Murray. Professor Murray, I know you get a lot of international students at NYU. I don't know if you've ever had somebody in your law classes from Germany, but we have a caller, Yans from Kiel, Germany. Yans, you are on WNYC. Hello from the United States.

Yans: Hello, Brian, thank you very much. First-time caller longtime listener from abroad. Thank you very much for doing this great show. I'm by no means a law student, I'm just a keen follower of American politics as I have very many friends in the United States. I just wanted to express that I'm indeed worried about the current session of the Supreme Court.

If they indeed decide to overturn Roe v. Wade or do change the gun laws and soften the division between church and state, I know this could be seen as a kind of step backwards internationally. I know this is mixing the Supreme Court and the legal decisions and politics again, but for me, this would be terrible, at least from the United States being the leader of the free world and how this looks to all the other nations of the Western world.

Brian: Yans, what do you have over there with respect to abortion rights and gun rights?

Yans: Gun rights are extremely strict. Even the most minuscule BB gun is highly regulated. Abortion rights is a different issue. There are still too many influences of the Church when it comes to politics and abortion, at least from my perspective, but of course, it's more liberal than in Texas for example.

Brian: Yans, thank you so much for your call. Keep listening and feel free to call us again. Professor Murray, anything you want to say in response to Yans? It also reminds me that I saw a headline that made me click on it the other day that said, "Supreme Court upholds abortion rights," and I was like, "What?" Then it turned out to be Mexico Supreme Court.

Melissa: Well, Yans makes a number of good points. One, certainly in the realm of abortion, the United States may actually be seen as an outlier on a number of fronts no less because it is actually moving backwards in terms of liberalizing abortion access whereas a number of countries particularly very religious and Catholic countries are moving ahead and liberalizing access to abortion.

Mexico, as you know, is one of them. The Mexico Supreme Court in the same week that our Supreme Court allowed the Texas law to go into effect, the Mexico Supreme Court basically decriminalized abortion in that country paving the way for laws that would make abortion access wider and more accessible in that country. We've also seen similar movements in places like Argentina. Again, Ireland, Argentina, very Catholic countries where we're seeing liberal abortion access. The United States is like Poland and Nicaragua.

The three countries were kind of moving backwards on these fronts. Yans' question also suggests that it's a barn burner of a term, not just because Roe v. Wade is once again in the crosshairs, but because there are all of these culture war issues that are on top for the Court this term. There is a major case that's going to be argued around gun rights and whether or not New York can actually put conditions on conceal carry permits. If that law is struck down, that will certainly open the door to other states relaxing its requirements for a conceal carry permits.

Brian: I want to come back to that in a second. We have to take a break and when we come back with Professor Murray from NYU, we're going to look at two cases before the Court that are specifically New York City cases, that conceal carry case that she just referred to, and also one having to do with, guess what? The vaccine mandate for school employees in New York City, so stay with us.

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Brian: Brian Lehrer WNYC on this first day of the very high-stakes new term of the United States Supreme Court with the three Trump appointees on it now and so many cases that have to do with such big issues about to come before it. We've been talking mostly about the Texas Abortion Law ruling recently and how abortion rights will continue to come before the Court in this term.

Just before the break, if you were listening, Professor Murray mentioned that New York is also front and center with a controversial gun rights case. It's a challenge by the NRA to the very limited concealed carry permitting that New York City does. Professor Murray, explain that. What's the New York City status quo and what is the NRA trying to change via the Supreme Court?

Melissa: New York City like many other municipalities allows concealed carry permits, but only under certain conditions. For example, if you're in a job for example that requires you to carry a permit or carry a weapon, that might be one reason to do so. There are a series of conditions that have to be fulfilled before you can actually get one of these concealed carry permits.

The New York State Rifle and Pistol Association, which is a frequent litigant at the Court, they had another case at the Court a few terms ago challenging another New York City law that has subsequently been repealed, but they are arguing that these conditions in order to get a concealed carry permit violate the individual gun owners right to bear arms.

The last time the Supreme Court took up a case about the scope and substance of the Second Amendment was back in I believe 2008 in Heller v. The District of Columbia. There the Court really expanded their traditional understanding of the Second Amendment by noting that this was not a right that was linked in any way to militia service. The militia is mentioned in the text of the Second Amendment, but rather it's simply a right of the individual to bear arms for such traditional purposes as home defense. That was the locus of it in the Heller case.

This case seeks to push beyond the envelope of Heller by allowing now outside of the home, perhaps still for self-defense but certainly outside of the home, the opportunity to exercise one's Second Amendment rights in a different context. Again, this will expand if the Court is receptive to this bid and receptive to this challenge will expand the scope of Second Amendment rights and will basically stand for the proposition that the Second Amendment permits an individual to hold their arms outside of the home for purposes of defense.

Brian: We'll see how they rule on that New Yorkers. Also pertinent to New York City, listeners you might have missed this because just on Friday Justice Sotomayor denied the request to block New York City's vaccine mandate for school employees from taking effect that's why school employees have to be vaccinated if they want to go to work starting this morning.

She didn't refer the challenge to the full Court. Is the question of vaccine mandates in any form likely to make it to the full Court this term and explain to our listeners how one justice could have made this decision on Friday for the New York City school employees rather than the full Court?

Melissa: To be clear, Justice Sotomayor is not the first justice to make a decision like this without referring it to the entire conference. In August, Justice Amy Coney Barrett, who is the circuit justice for the Seventh Circuit, also upheld an Indiana University vaccine mandate against challenge from Indiana University students on similar grounds. She offered very little explanation for it as well. Justice Sotomayor's decision on Friday is very much in keeping with that earlier decision from August but

it's not to say that we're not going to see a challenge to one of these vaccine mandates make it before the court, but it seems like we're not going to see it on that emergency or shadow docket.

Brian: Lance in Brooklyn. You're on WNYC with NYU law professor Melissa Murray, looking at the Supreme court. Hi Lance.

Lance: Oh, yes. Hello. I hope you can hear me okay. My point is that when the justices are nominated and before Congress and stating they're being questioned, most of them will say that they-- I think all of them will say that their own personal values or political views or religious views will not influence their decisions. To me, that seems like a complete fiction because if you look at some of the decisions and especially with guns and the abortion rights, it seems like can be directly traced back to their religious beliefs.

There are so many either conservative Christians or Catholics in the majority that how can they maintain that fiction? Also makes me wonder why you can't question someone's about their religious beliefs when they're testifying, since we're supposed to have a separation of church and state, why is that out about? That's my [unintelligible 00:31:30]

Brian: Thank you, Lance. Professor Murray.

Melissa: It's not exactly out of bounds. We did see one Senator Dianne Feinstein from California question then professor Amy Coney Barrett during her confirmations to the seventh circuit about her Catholic views and her religious faith. I think at one point Senator Feinstein said something like, "It seems to me that Dogma lives loudly in you," and not out of bounds, but probably not the best statement in terms of optics, because those who supported then judge Barrett made hay of that, talked about how these progressives and liberals were beating up on this woman because of her faith.[00:32:15]

It really shaped, I think the confirmation hearings when Judge Barrett was nominated to be Justice Barrett because at that point, fearing any kind of reprisals about questioning her about her faith, the Democrats really stayed away from it entirely. It's not the case that they don't get questioned, it's sometimes when they do there are serious political consequences. You were right.

There are a number of Catholics on this court. Justice Kavanaugh, Justice Thomas, Justice Alito, Justice Sotomayor, Justice [unintelligible 00:32:46] Justice Roberts went to a Catholic boy school, and Justice Gorsuch was raised in the Catholic church although now he is a practicing Episcopalian. It's not always the case that one's faith necessarily determines one's views of these issues. Again, Justice Sotomayor was raised in the Catholic faith. She is a Catholic, but she's obviously not viewing to Catholic dogma on some of these issues. It is the case, but it's not always the case.

The broader question of how someone's views, whether they're religious views or simply the experiences that they've had when they were being raised, how that influences their views as a justice, I think you see that all of the time. I recall when Chief Justice was Roberts was being confirmed in 2005, he famously said that they were just like umpires, justly calling balls and strikes.

Everyone talked about that. That's the right role for a judge, but that's hogwash. Most of the cases that they're deciding are not simply reflexive applications of law. They really are areas where the law is unclear, something is fuzzy and those situations demand judgment and sensitivity. Of course your own views, your own experiences are going to shade the judgment and sensitivity you bring to those matters.

Brian: Right. Of course, the standard is not to question somebody because they might have a fringy "set of religious beliefs or belong to a sect that many people consider extreme". That's what religious liberty is all about for people not to be discriminated against, even for a high role like justice of the Supreme Court based on their religious views. It's whether they're going to let their religious views dictate the policies and the interpretations of the constitution that they align within the civic space.

That's why I always thought that Senator Feinstein's comment was inbound that the dogma lives loudly in you. It's not that she believes any particular thing, let anybody adhere to whatever religion they want in this country. It's that the dogma allegedly lives loudly in her in a way that would skew her interpretation of the constitution. One more thing on that point, and we're almost at a time. I always wondered why Roe was not decided or abortion rights cases in general on brought on religious liberty grounds.

Because if you look at the religious landscape in this country, yes, the Catholic church thinks abortion should be illegal, but other mainstream Protestant denominations are pro-choice. The largest Jewish denomination in the United States [unintelligible 00:35:41] Judaism is pro-choice. You get major mainstream religions with different views on abortion rights. Why hasn't somebody brought a case saying it is therefore not the place of the Supreme court or of the state to regulate abortion?

Melissa: Before Roe was actually litigated, there were a number of challenges to abortion laws across this country. They were brought on many different grounds, including religious Liberty grounds. In fact, one of the cases that then professor Ruth Bader Ginsburg was trying to bring before the court was a challenge to the military's policy, that required servicewomen, if they became pregnant to either leave the service or have an abortion. Imagine the federal government mandating that you have an abortion.

She had a plaintiff who was a servicewoman who found herself pregnant after a tour of duty in Vietnam. She was an ardent Catholic. She did not want to have an abortion. She wanted to have the child and give it up for option, and she couldn't do that and keep her job. Justice Ginsburg thought this was the best case to bring reproductive rights to the court because it showed the religious Liberty dimension, the fact that pregnancy discrimination was at play, that there were equality concerns as well as privacy concerns.

Ultimately the case got mooed when the military chain in its policy. Instead, the case that got to the Supreme court first was a case that was really narrow in terms of its arguments. That of course, was Roe v. Wade, which decided the whole issue on the right to privacy.

Brian: All right. Can you name Professor Murray, one other case that we haven't talked about as everybody is focusing so much on abortion rights and gun rights, one other case that we haven't mentioned that you've got your eye on for this new term of the Supreme court?

Melissa: Sure. Carson v. Makin is a challenge to a main tuition assistance program that basically provides students who live in rural areas where there's no school district per se in the state to actually go to a private school and have it be funded by the state. The state does not, of course, fund religious schools because of the separation of church and state. That is being challenged on free exercise grounds. The idea being, that if you don't allow religious schools to participate in this program or to be funded under this program, it is discrimination on the basis of religion.

That's a really important case that will have enormous ramifications for the debate over school vouchers. That's one that I'm watching. Then another one that I'm watching, that's not a case at all right now, is this petition for [unintelligible 00:38:07] in the Harvard affirmative action case. That's been pending on the court's docket for a while. The justices asked the solicitor General's office for their views on this. I think they knew what the views of the Biden administration would be, which suggests that maybe they're trying to kick this can down the road to October term 2022.

Brian: NYU law professor, Melissa Murray, who also does analysis for MSNBC On The Law and is a co-host of the podcast, Strict Scrutiny. Thank you so much for your analysis here. We really, really appreciate it.

Melissa: Thanks for having me, Brian.

 

 

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