Melissa Harris-Perry: I'm Melissa Harris-Perry in for Tanzina Vega, and this is The Takeaway. It's June, graduation season, Pride Month, and the celebration of all things, dad, and of course, June is also that long-awaited month of highly anticipated Supreme Court decisions.
Speaker 1: Oye Oye Oye.
Melissa Harris-Perry: Yes, the nine black robe life-appointed justices of the nation's highest court are wrapping the final weeks of their current term. The start of their summer vacation means we will soon learn the fate and the future of everything from voting rights to LGBTQ+ equality to the Affordable Care Act. In total, SCOTUS has at least 20 cases left to decide before the end of the term.
Already this week, they handed down decisions in a handful of cases, including in a unanimous ruling on Tuesday, SCOTUS affirmed the authority of tribal police and government in US versus Cooley. In another ruling on Thursday, the Court narrowed the scope of the nation's primary computer crime law in a 6-3 vote. What else should we be watching and just what is at stake? Let's go ahead and dig into those questions.
Melissa Harris-Perry: Here to walk us through all of that is Kate Shaw, professor at Cardozo School of Law and co-host of the Supreme Court podcast, Strict Scrutiny. Kate, welcome to the show.
Kate Shaw: Good to be with you, Melissa.
Melissa Harris-Perry: All right. Can we start with some of the rulings that we did get this week? Tell me about Tuesday's unanimous decision in US v. Cooley about the authority of Native American tribal police. What was the central question in this case?
Kate Shaw: Sure. The specific question, in that case, was whether a tribal police officer could stop and search someone who wasn't a member of the tribe, but where the officer had a reason to believe the person was committing a crime on tribal lands. Now, the lower court had said, "No, the officer had no authority here," and the Supreme Court unanimously reversed. This was actually an important win for tribal sovereignty by confirming that in some cases, and indeed, in this case, Indian tribes can exercise jurisdiction over non-Indians if needed to protect the tribe's health or welfare. Important win, but it's still a limited exception to a background principle that doesn't really vindicate the rights of tribes over non-members.
Melissa Harris-Perry: This doesn't necessarily constitute the Supreme Court affirming the sovereignty of Native American tribes and tribal land?
Kate Shaw: I think that's right but I do think it's an important incremental decision, in particular, paired with a decision from last term that was viewed as very much siding with Native American tribes. It seems as though potentially, and in particular with the addition of Justice Neil Gorsuch to the Court, we may be in a new era of Supreme Court jurisprudence with respect to issues of tribes and tribal sovereignty, but this opinion itself, we should say it was relatively narrow.
Melissa Harris-Perry: Let's go to another decision from Tuesday where the Court actually overturned a rule that was favoring asylum seekers. What was happening in this case and what is consequential about it?
Kate Shaw: Sure. Basically, the Ninth Circuit Court of Appeals had adopted a rule in which where an immigration judge hadn't made an explicit adverse credibility finding in an asylum proceeding, federal courts were supposed to presume that the asylum seeker was credible. This was a default presumption that favored individuals seeking asylum and the Supreme Court here reversed, again, unanimously, basically saying that there's no such presumption in the immigration statute at issue so that the Board of Immigration Appeals should presume credibility in the absence of any finding to the contrary.
Once you get to federal court, federal courts aren't supposed to indulge any sort of presumption, just accept the factual findings of the immigration officials. A loss for asylum seekers, definitely, but relatively narrow in application, and that it only really applies when the immigration judge has said nothing about the credibility of the asylum seeker.
Melissa Harris-Perry: I see. Are you at all surprised to have these two unanimous decisions on what feel like perhaps narrow, but still consequential matters?
Kate Shaw: I was a little bit surprised. The Supreme Court actually right now is a little bit higher than its average in terms of unanimous opinions, although the 23 opinions yet to be decided contain a lot that are going to be very divisive. I suspect the numbers will come down once we get to the end of June.
I'm not sure, there's some speculation that the Court is really stretching to try to reach narrow unanimous results in a moment in which questions of the Supreme Court and its role in our democracy, how politicized it is, how politicized the confirmation process has become is sort of in the crosshairs a little bit.
Obviously, President Biden has convened this commission to study structural reforms to the Supreme Court. Maybe the Justices want to ward off that kind of attention and are seeking unanimity in an effort to display that they are nonpartisan and non-ideological, but again, it's a small sample size where I don't want to read too much into it.
Melissa Harris-Perry: Well, let's dig into some of those decisions highly unlikely to be unanimous. Let's start with the case about the Affordable Care Act. Remind us a little bit about what this particular case is, because my goodness, it feels like we've had more than a few decisions about the ACA.
Kate Shaw: We definitely have. This most recent challenge involves Texas and a group of other Republican-led states who have brought a case arguing that the Affordable Care Act is unconstitutional and should be struck down in its entirety. Exactly as you say, Melissa, this is not the first such effort, but this is the one that's before the Court right now.
The background is that in 2017 after the Republican-controlled Congress and White House tried and then failed to repeal the Affordable Care Act, they did amend the law to reduce the penalty attached to the individual mandate to zero. Initially, if you didn't carry health insurance, if you didn't buy individual coverage, you had to pay a penalty. After 2017, that penalty was zeroed out so there was a mandate, but not backed by a penalty.
Now, backing up a little bit to the first big constitutional challenge to the Affordable Care Act that was in 2012, and in that case NFIB versus Sebelius, the Supreme Court upheld the statute, basically said the individual mandate was a tax or could be treated as a tax, and so the law was constitutional. The argument here is that, okay, in 2012, the Supreme Court said the law was constitutional because it was a tax, but now there's no penalty and so the mandate can't be a tax, which means it's no longer constitutionally permissible, and if the mandate is now unconstitutional, the challengers say the rest of the Affordable Care Act has to fall too.
At stake here is the whole ACA, the protection against preexisting, there's condition discrimination for the 130 million Americans with some sort of pre-existing condition, healthcare for the 30 million-plus people who have bought their health insurance on the exchanges. The ACA, obviously, had tons of provisions and the argument is that all of these must fall.
Now, I should say, I think the whole lobbying struck down is very unlikely and so do most court watchers. Usually, in a case like this, even if the challengers are successful in arguing that the mandate is unconstitutional, what the Court will do is basically say, "Okay, part of the statute is unconstitutional, we will sever it and leave the rest of the law intact," but Texas and the other states, and initially the Trump administration argued that the whole law should go. I don't expect that position to carry the day and to get five or more votes, but I do expect it to get a couple of votes. I think everyone who worries about the future of healthcare will rest much easier when the opinion is actually out.
Melissa Harris-Perry: Couldn't the House, which is Democratic-controlled at this time simply pass a $1 tax? It wouldn't even have to necessarily enforce that, right?
Kate Shaw: Yes. It would need to be passed by both Houses and signed by the president, but right. Congress could just pass an amendment that restores some version of the penalty and, right, it would need to be particularly enforced and you're right, it would move the case. The question has been hanging out. If there's a real chance that the Court could actually invalidate the whole thing, shouldn't Congress step in and try to ward off that possibility?
The idea hasn't gotten much traction and I think it's because people expect that it's so such a far-fetched argument and so unlikely that the Court will actually go this far that I don't think there's been a lot of legislative attention to it, but it is out there. Again, it is an argument that was supported by the federal government. The Trump Justice Department filed a brief in this case and so do a number of states. Again, I don't expect the whole lot to fall and I don't think anybody does, but it's impossible to ever predict with absolute certainty what the Supreme Court will do.
Melissa Harris-Perry: I'm going in 2021 with things far-fetched, no longer so far-fetched.
Kate Shaw: Absolutely so true.
Melissa Harris-Perry: Let's talk about another critical area of American life, political life. It could be addressed with legislative action, but it looks like we're going to get a SCOTUS decision first and that's voting rights. SCOTUS is likely going to hand down the decision on an Arizona case. What is happening in this case and what might it mean for what is left of the Voting Rights Act?
Kate Shaw: Sure. In this case, Brnovich versus DNC there are two provisions of Arizona law at issue. The first is a policy of invalidating ballots that are cast in the wrong precinct, and the second is a prohibition on most third-party collection and return of ballots. Arizona basically says both of these laws are about preventing fraud, but there's no real evidence of fraud occurring in either out of precinct ballot casting or in collecting and returning third-party ballots.
The challengers argue that both of these requirements disproportionately burden minority voters, especially Latino and Native American voters. The challenge was brought under section two of the Voting Rights Act. It basically prohibits any state voting requirement that results in a denial or abridgment of the right to vote on the basis of race or color.
I think the question is how the court is going to, this newly constituted quite conservative Supreme Court is going to construe that provision. I think that the oral argument gave a pretty clear sense that the court will likely find some way to uphold the Arizona restrictions, probably both of them. On the grounds, there's lots of other ways to cast ballots.
The impact, it certainly does seem to have slightly disproportionately burdened minority voters, but that according I think likely to a majority of the court is not going to be enough to invalidate these restrictions, where there are other ways to vote available. Obviously, in a closed election, even a small deterrent or disproportionate impact can change the outcome. I think that this will obviously be important both for the future of voting rights in Arizona, but also more broadly.
What is section two of the Voting Rights Act? Which is the most important provision that remains after Shelby County struck down the preclearance requirements of the Voting Rights Act aren't really mean. That's very consequential in light of all of the new voting laws that have been enacted, both since Shelby County in 2013, but even just since 2020. This case, I think, will say a lot about how challenges to all kinds of new voting restrictions are likely to fare in the Supreme Court.
Melissa Harris-Perry: One other way that the court is different than the American public in general, not only is it more conservative in general, but it's also much more Catholic, much more Catholic than the general population. Right now they're going to send down decisions around some questions around religious rights, tied to a Philadelphia foster care program, and LGBTQ+ folks ability to be part of that program. What do you think?
Kate Shaw: One of the themes that is emerging from this new court is how protective of religious exercise it is. I think it's quite likely that the court is going to find that this social service agency that doesn't want to certify as foster care parents, same-sex couples, is likely to win. I think that we have seen some evidence of that in the Supreme Court's siding with a number of houses of worship, that have challenged COVID restrictions, capacity limits, and things like that.
I think previous supreme courts would have said, "These public health measures are justified and pressing. If for a short period, religious exercise is burdened, then so be it in a multicultural democracy." Here, the Supreme Court has said religious exercise trumps other values. I think that may well be what the court says with respect to LGBTQ equality in this Fulton versus Philadelphia case.
Melissa Harris-Perry: Very last thing here, you mentioned the COVID restrictions. How has COVID changed the court?
Kate Shaw: Well, they've been hearing remote arguments, so they've been telephonic as opposed to in person. All of the justices have asked questions, including Justice Clarence Thomas who typically doesn't speak up in oral arguments. We've all gotten to listen live, which has been great at the Supreme Court. It's only a few hundred people who get to come in and listen live. I think that is done and likely in the fall over Zoom in-person arguments, but they haven't really told us yet.
Melissa Harris-Perry: Kate Shaw is a professor at Cardozo School of Law and co-host of the Supreme Court podcast, Strict Scrutiny. Kate, thanks for getting in so much, and thanks for joining us.
Kate Shaw: Thank you for having me.
Melissa Harris-Perry: Now, during his single term in office, President Trump appointed three justices to the US Supreme Court, three appointments in a single term. Compare that to his predecessors, Presidents Obama, Clinton, and Bush, who each served two full terms and only appointed two justices each. That helps you to see just how substantial the Trump legacy is on the Supreme Court.
Today, 82-year-old justice Stephen Breyer, who was appointed by President Clinton is facing calls to retire ahead of the 2020 midterms. The reasoning, Breyer's swift retirement would ensure that his replacement would be nominated by President Biden and would face confirmation while democrats narrowly retain control of the Senate. With me now is Robert Barnes, Supreme Court correspondent at the Washington Post. Robert, welcome to The Takeaway.
Robert Barnes: Thanks for having me, Melissa.
Melissa Harris-Perry: Absolutely. It certainly feels like the legacy, the spirit, the experience of Ruth Bader Ginsburg's death occurring just before the 2020 general election is the pivotal piece overlaying this call for justice Breyer to retire. Is that what's going on here?
Robert Barnes: I think that that's a huge part of it. Remember that Justice Ginsburg faced calls to retire so that President Obama could replace her. She resisted those and stayed on the court and then she died last September and was quickly replaced by the Republican senate with Amy Coney Barrett. I've really never seen a campaign like the one that's underway to get justice Breyer to retire. There's a Twitter account that called, "Did Justice Breyer announce his retirement today?"
There's really a push by a democratic liberal activist and by Democrats to get him to do it now so that, as you say, his nominee could be confirmed by a Democratic Senate.
Melissa Harris-Perry: What can you tell us about how Justice Breyer feels about this?
Robert Barnes: I don't think any justice likes to have his or her hand pushed that way. We don't know his decision-making process. We do know that he's very active on the court. I don't think listening to oral argument or seeing him on some of the appearances he makes, I don't think that you would think that he is an old 82-year-old. I think he very much enjoys being on the court. I think that Justice Ginsburg's experience and the fact that there are only three liberal justices on the court now has him considering what he should do.
Melissa Harris-Perry: I was thinking, as I was trying to reflect on the history of this, I was remembering that Thurgood Marshall stepped down from the court while there was a Republican in office, which is how, of course, President H.W. Bush puts Clarence Thomas on the court or nominates him for the court. Over our long span of history, do justices typically wait until the party that nominated them to the court is in the white house before stepping down?
Robert Barnes: I think that they probably would want to but as you mentioned, sometimes it's beyond their control. We've had a couple of deaths in the modern court experience. The change that you mentioned, Clarence Thomas replacing Thurgood Marshall was probably the biggest shift that we have seen in one Conservative justice replacing a Liberal. Perhaps until the latest one we just saw where Justice Barrett replaces Justice Ginsburg. Sometimes, they don't have a choice about when they're going or who's going to name their replacement. I think part of the push on Breyer is that he does have that choice now.
Melissa Harris-Perry: You said earlier that part of the anxiety here is about there being simply nine justices and six of them right now Conservative, three Trump appointed. Why do there have to be nine? Can't we just make it a bigger party?
Robert Barnes: Well, that's up to Congress. A lot of things about-- The Supreme Court is established in the Constitution, but not the number of justices on the Supreme Court. It has varied over the years. It's been this way for more than 100 years that there have been nine justices. I think the country thinks of the court as nine justices, and to change that I think would take quite an effort in Congress. Could be done by Congress, but it would really require an effort. I have to say, it doesn't seem like President Biden really has his heart in that effort.
Melissa Harris-Perry: They were certainly part of the discourse during the election itself was around either court expansion or as some call it, court-packing. Biden is a bit more of a moderate guy. We haven't heard that as a central feature of what he sees. I also wonder, is that because this six three court has potentially been a little different than we expected it to be? Looking at these decisions that have come out recently, have they fulfilled the greatest anxieties of progressives or maybe the greatest hopes of the most conservative?
Robert Barnes: Well, we don't have all the answers yet. The court won't finish its work until the end of June. Some of the bigger cases, as always, are going to be left for the final days. Another challenge to the Affordable Care Act, for instance, and a voting rights case from Arizona. We don't know yet exactly what this term is going to look like. What we do know is that the court is already set up for a very big term next year.
Melissa Harris-Perry: The last question here. If, in fact, President Biden has the opportunity to nominate a justice for the Supreme Court, you have any insights on who is on that shortlist?
Robert Barnes: Well, he has said that he's going to nominate the court's first African American woman, which would be historic. He hasn't mentioned names, but there are two people who are mentioned most often. A California Supreme Court Justice named Leondra Kruger, and a judge here in Washington name Ketanji Brown Jackson. He has nominated Judge Jackson to the DC Circuit, which is always considered the second-highest court in the land and she has another thing going for her, which is she's a former clerk to Justice Stephen Breyer.
Melissa Harris-Perry: I like that connection. Robert Barnes is the Supreme Court correspondent at the Washington Post. Thank you for joining us and for your insights.
Robert Barnes: My pleasure. Thanks for having me.
Melissa Harris-Perry: Now so far this hour, we've been talking about the Supreme court and how the decisions that the justices are making could impact your lives, but we also wanted you to weigh in on the court and whether it needs to be reformed. Some of you told us it's just fine the way it is.
John: This is John from Highland Park, and I don't believe the Supreme Court United States needs any tinkering. The institution is fine just the way it is. Nine members appointed for life and no court-packing, no term limits, just the way it was established in the constitution.
Mark: Hi, I'm Mark from Downingtown, Pennsylvania. There's nothing wrong with today's court. The current concern about the court is that it cannot be expected to be another Warren court. One that was reliably liberal, progressive in today's terminology. It's a court that understands that its role was not to legislate. The leftist in this nation have not been able to capture the Congress and see, packing the court as a means to realizing its political goals.
Melissa Harris-Perry: We also heard from a lot of you with innovative ideas about overhauling the Supreme Court, as we know it.
Su: Hi, this is Su from Raleigh, North Carolina. I think that there should be legislation that requires that SCOTUS vacancies be filled by the current administration, period.
Jan: My name is Jan [unintelligible 00:22:05], calling from Newton, Mass. It's clear to me that we need term limits, more seated judges, and a limit to how many judges each president can appoint per presidential term.
Rob: This is Rob calling from Lansdowne, Pennsylvania, and I would like to see lifetime appointment abolished with a constitutional amendment. Court-packing also needs to be abolished with a constitutional amendment, but only after Democrats get to a point the number of justices they were entitled to under Obama.
Adam: Hi, this is Adam from San Diego, California. I think that the Supreme Court has gotten too important due to hyper-partisanship. I think if we address congressional gerrymandering and term limits, that that would restore the court to its proper place in the role of check and balance. However, I think Republicans have also set a precedent of playing dirty between denying Merrick Garland a hearing and then pushing through Amy Coney Barrett. For me, this means that court-packing is a necessity in this current political climate.
Simon: Hi, my name is Simon Spence and I live in Gilbert, Arizona. The appointment by president is in my view, a major abuse. I have to say the Brits sorted this out a couple of centuries ago. Let the senior judge or judges appoint the judiciary, they know who they are and they know what they're doing.
Ian: This is Ian from Skagway, Alaska. I'd like to see the legislative branch actually legislate so that the executive branch is no longer forced to hit everyone with a tidal wave of executive orders, which in turn triggers the overuse of the Supreme Court via lawsuits challenging executive orders. If the legislative branch would do their work, then the Supreme Court wouldn't have to weigh in on every single thing we tried to do.
Gail: My name is Gail, I'm calling from New York City. Because the court has become so political and divided, term limits might be appropriate as well as adding two or more members, perhaps with a national, regional, and sexual diversity criteria with the object of the most representative court possible.
Melissa Harris-Perry: You guys know, we always appreciate hearing from you, so you can send us a tweet about the Supreme Court or anything else you'd like for us to cover on the show. We're at The Takeaway or leave a voice message for us at 877-8-MY-TAKE. That's 877-869-8253. That's all we have for y'all today. It's been an absolute pleasure being here with you all week and we'll do it again next week as well. Make sure you come right back and hang out with me again.
Now, before we go, I want to give a shout-out to this amazing crew who puts the show together daily. Our producers are Ethan Oberman, José Olivares, Meg Dalton, Patricia Yacob, and Lydia McMullen-Laird. Our line producer is Jackie Martin. Our senior producer is Amber Hall. Milton Ruiz was our board op and Vince Fairchild is our engineer. Jay Cowit is our director and sound designer and Polly Irungu is our digital editor. David Gebel is our executive assistant and Lee Hill is our executive producer.
Thanks so much for listening. I'm Melissa Harris-Perry in for Tanzina Vega and this is The Takeaway.
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