Upcoming SCOTUS Cases that Could Change America (with Leah Litman)

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The last SCOTUS term was monumental, with a leaked draft and major precedents like Roe v. Wade overturned. What can we expect from this upcoming term? Michigan Law Professor Leah Litman ranks the most important cases coming before the court, from affirmative action to fair elections. Andy asks Leah why she calls this six-justice conservative supermajority a YOLO court, and how life could have been different had Justice Ginsburg retired during Obama’s term.

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Andy Slavitt, Leah Litman

Andy Slavitt  00:19

This is IN THE BUBBLE with Andy Slavitt. So early October is traditional time for lots of things getting geared up for Halloween. People are back at school back at work, starting to think about the holidays. We are contemplating what a COVID winter wave might look like. And of course, we have, as we always do, in October, a new Supreme Court and a new Supreme Court set of cases that we’re going to hear and after the last year. This is not something that many of us are looking forward to. It is a very different court. It is a very activist court. And it is one that my guest today describes as a YOLO court, obviously referring to the fact that this is an opportunity that six conservative justices feel like they have an opportunity that they’ve been waiting for a long time to push through Federalist like doctrine that they think is going to reshape America. And if you look back at the last term, when we saw the Dobbs ruling, ending reproductive rights as guaranteed right for women. And when we saw rulings on what the federal government could do, and we saw rulings on the environment, which rulings on guns, it is pretty clear that this is the start of something quite new and quite different. My guest today is someone who’s going to review with us all of the major cases and what’s likely to happen. Leah Litman is a law professor at the University of Michigan Law School. She has her own podcast called Strict Scrutiny. And she’s an incredible explainer of these cases. And look, I think what we’re going to hear about are some pretty important issues in society, voting, redistricting, the rights of the LGBTQ plus community, the rights of Native Americans, affirmative action, some things that have been fairly long standing, and hard fought areas of rights for people that had been denied them. And of course, a democracy and an election that is representative as possible. Those are the things that are on the docket in the major cases that the Supreme Court is going to hear today and we’re going to preview the major ones, talk about the dynamics, how they might work out whether there’s likely to be any surprises or whether or not indeed the Yolo court is going to do what many of us are predicted to do which is come down with decisions that really restrict people’s rights and leave voting and redistricting in a situation that favors basically the partisan appointments that they receive, which is namely from the Republican Party. That’s what we’re gonna see that we’re going to talk about with Leah and it’s going to be a great conversation. And we’re gonna ring her up right now.

Andy Slavitt  04:50

Welcome, Leah to in the bubble.

Leah Litman  04:52

Thanks so much for having me.

Andy Slavitt  04:54

It feels good being in the bubble. We have had a monumental last Supreme Court season; we had a leak draft. We had major precedents overturned; we’re getting a new justice. So what’s the so what of where the court sits? Is this a conservative majority now ready to step on the gas with all abandon? And what’s their vision?

Leah Litman  05:23

I think every indication is this conservative super majority that is ready to go as fast as they can to where they want to go. We saw that last term in, you know, the Dobbs decision when the court overruled Roe versus Wade. And we also saw indications of this, you know, even before last term, when […] versus Democratic National Committee, the court really substantially watered down section two of the voting rights act when it’s used to challenge preconditions on voting. And the fact that there are six now Republican appointed justices on the court means that they right can lose one vote, and they don’t have to be concerned. And that allows them to go more quickly. It allows them to make more extreme decisions. And that’s what we’ve seen, you know, last year, and really the year before as well.

Andy Slavitt  06:12

What puts on the brakes? Are there anything that puts on the brakes? Is there any concern over court legitimacy? Is there any other you know, kind of social compact that you think could slow that vision down?

Leah Litman  06:26

I think in the past, the Supreme Court and its justices have been quite self-conscious about the role of the court in the American system of government, they have understood, you know, that they are not democratically elected, that they are not, you know, removable by the people when the people disagree with their decisions. And for that reason, you know, have kind of tried to be humble about the decisions they reach and whether they stray too far from, you know, where the people were the public where our political institutions are, the unfortunate reality is, it seems like a majority of justices on the court now don’t believe they owe any sense of humility or any sense of deference or obligation to our political institutions or to the public. You know, when the court overruled Roe versus Wade and the decision that had reaffirmed Roe versus Wade, Planned Parenthood versus Casey, the court overruled a decision that had been explicitly self-conscious about the fact that the court needs to preserve a public perception that the justices are doing law rather than politics. And Justice Alito is majority opinion, basically poo pooed that and said, we’re legitimate when we’re right. And we think we’re right. So that’s that.

Leah Litman  06:27

With the younger justices Kavanaugh and Barrett have more vested concern in the courts legitimacy, and therefore, act as a sort of a broker or some breaks along with Roberts? Or is that just too hopeful? And in fact, you know, the best you’re gonna see is sort of the theory that Kavanaugh is going to maybe put some window dressing on some into packaging, that looks friendlier, but subsequently will be with the rest of the super majority.

Leah Litman  08:16

I think that take that Justice Kavanaugh, maybe justice Barrett will try to make the courts extreme decisions seem more palatable, you know, in how they are phrased, but not in their substance, again, seems to be the case based off of the last term. And of course, you know, things can always change. Let’s imagine, for example, that in the upcoming midterm elections is just a blowout for the Democratic Party at the federal level and the state level, I can imagine that, you know, leading a justice to pause and take another look at whether they should just press on ahead, no matter what, you know, politics and the public think about what they are doing. But at least up until this point, it seems like the younger justices are just not too concerned with what the public or politicians outside of their friends think of them.

Andy Slavitt  09:07

It causes me to ask you to explain your T-shirt.

Leah Litman  09:10

So my T shirt is the yellow court term I coined for the Supreme Court, which seems to have the attitude of right You only live once like we’re here we have a supermajority of the court, let’s just do all of the things and do all of them now, even though these are justices who are appointed for life, you know, they could pump the brakes, pause, you know, slow their roll and try to space out these extreme decisions and they just don’t seem inclined to do so.

Andy Slavitt  09:40

So we’re gonna get into the actual cases on the big cases, but before we do, I want to just spend a little bit more time on the personalities and the justices. Can you remind us kind of where the Ballard stands now where the center is, who you think are going to be some of the opinion drivers. And then that further, I think there’s a new justice on the liberal side. And you know, her reputation is not only being incredibly good justice, but also being pretty influential and pretty good bridge builder. So help us assess the dynamic a little bit.

Leah Litman  10:17

Sure. So I think most people understand the median, the center of the current court to be justice Brett Kavanaugh, you know, he’s no centrist. He’s no moderate. But that’s where the current median justice on the court is.

Andy Slavitt  10:32

There’s a certain power in that if you’re willing to exercise it, as Justice Kennedy showed, but that means occasionally breaking from the majority to side and select cases with the other side. Do you think he views his role that way?

Leah Litman  10:46

No, not at all. I think, you know, that’s why I don’t think anyone should call him a swing justice. You know, a swing justice refers to someone whose votes are uncertain in important cases, you know, who is open minded and could side with the Republican appointed justices on some big issues and democratic appointed justices and other big issues. And that just doesn’t describe justice Kavanaugh. And then I think, you know, other people kind of view Justice Thomas and Justice Alito, as you know, further to the right, more extreme in their views. Justice Gorsuch is often with them, although he has some time some idiosyncratic views about federal Indian law and Native American Affairs, perhaps given his experience, you know, growing up and serving, you know, in the American West, that has led him to side with his Democratic appointed colleagues. And then justice Barrett is again usually with the Justice Alito, Justice Thomas, Justice Gorsuch band, the Chief Justice is more to the center than Brett Kavanaugh in the sense that he voted with the Democratic appointed justices to strike down Louisiana’s abortion restrictions. Back when Justice Ginsburg was still on the court voted with them to invalidate President Trump’s position of the Deferred Action for Childhood Arrivals program. And a few other things, too, you know, he voted to uphold the Affordable Care Act. And then you have the three democratic appointed justices just kind of on an island of their own, three women, two women of color, you know, and it is both powerful and notable that that is who has the voice of you know, the more liberal wing, the progressive wing on the court, and all of them, you know, are great in different ways. They all have a different set of skills. You know, Justice Elena Kagan is somewhat known for her pointed incisive questions, and really, like incisive, powerful writing on the court. Justice Jackson, of course, is the newest justice, but in the few arguments we have seen, she is a powerhouse at oral argument, you know, she knows and comes ready to fight on the history fight on the text, bite on the legislative context. And, you know, be prepared on the facts. And on the record. You know, Justice Sotomayor is also someone who has used oral argument and also opinions to speak to the American people, I think in very powerful ways. You know, she famously wrote a passage of an opinion that mentioned the talk that Black parents, you know, give their children about the dangers of police violence. So those are kind of the different personalities of the justices.

Andy Slavitt  13:32

So before we dig in, maybe you can articulate that this may be something you don’t get asked to do every day, the vision of the court from that supermajority, the vision of the country, you know, the philosophy that guides them?

Leah Litman  13:49

Sure. So I think if I had to articulate that vision, it would be something like the law and our institutions have gone very wrong. They have strayed from what they are supposed to be and what they are supposed to do. That is partially a vision about how American government should work. The idea being that it should be more limited. You know, there shouldn’t be federal administrative agencies who are making important decisions around health, safety, welfare, it’s also about the rights that we possess, you know, there’s a very strong through line in their views about the law that somewhere during the Warren Court things went awry, the court started recognizing, you know, rights for criminal defendants rights for women, you know, more recently rights for LGBTQ individuals, and those just aren’t rights that are part of, you know, our foundational system of government, our Constitution, and so they view what they are doing as kind of a course correction to, you know, previous courts and two governments that went off track at various points.

Andy Slavitt  14:53

Okay, we’ll tell you what, we’re going to come back and we’re going to talk about, among other things, voting rights, LGBTQ plus rights, we do districting affirmative action cases involving the former president himself and where the biggest landmines are gonna likely be. As we come back with Leah, let’s take a quick break. We are back with Leah Litman. Thank you for joining us again Leah to talk about this supreme court season a lot of big topics, and I wouldn’t go through each of them with you. But I want you to pick which one we’re gonna start with by telling me which one is going to be the biggest earthquake of this session?

Leah Litman  17:13

Oh, that’s a tough one. I guess I would probably say the Voting Rights Act decision that the court heard the first week of the October term, Merrill versus Milligan.

Andy Slavitt  17:24

And this concerns, what? Tells what’s the background here.

Leah Litman  17:28

So the background is basically what the Voting Rights Act protects against section two of the Voting Rights Act, which is a provision that remains you know, since the court demolished the preclearance regime of the Voting Rights Act, and Shelby County versus holder prohibits voting practices or policies that result in disproportionate effects on the basis of race. And here, it’s a challenge to so called vote dilution. Vote dilution is where legislatures draw districts in ways that dilute the voting power of voters of color, and inhibit their ability to elect candidates of their choice. So the case comes out of Alabama, black Alabamians represent over 25% of Alabama voters, I think it’s close to 27%. And yet, Alabama drew districts in a way that black voters will only be able to elect the candidate of their choice in one out of seven or less than 14% of districts. And so the allegation is, look that districting line dilutes the voting power of black voters and diminishes their representation in Congress.

Andy Slavitt  18:34

And the conflation here, of course, with party as well, because the only democratic seats are likely to come from those seats. So people could talk about principle, but others will see politics in this. Where do we think the justices stand on this right now? Do we have any clues?

Leah Litman  18:51

So based on the oral argument, it seemed like, you know, the Republican appointed justices were inclined to limit the reach of the Voting Rights Act, although it’s not exactly clear how Alabama is pressing a set of pretty extreme arguments that would require plaintiffs to establish that the legislature intentionally discriminated on the basis of race, even though this provision of the Voting Rights Act was enacted in response to a previous Supreme Court decision that said it’s only illegal under the Voting Rights Act to intentionally discriminated on the basis of race. And Congress was like, no, no, no, actually, like we want to guard against the risk of you know, unintentional discrimination and vote dilution in those circumstances as well. And so Alabama is first and foremost pressing different versions of an argument that would require plaintiffs to show that the only explanation for the maps that the state Drew was intentional racial discrimination.

Andy Slavitt  19:47

And you say this is the biggest earthquake. Why?

Leah Litman  19:50

So it’s a huge earthquake because it concerns like the future of our democracy, whether we are a true multiracial democracy, you know, the Voting Rights Act that was passed in 1965 is really what made this country a truer democracy, a multiracial democracy. And if states can draw districting lines in ways that ensure black voters can never elect the candidates of their choice, then we are poorer as a democracy. Our institutions are less representative. You know, when asked an oral argument by Justice Kagan, under Alabama’s theory, could Alabama draw a set of maps under which Black voters would not be able to elect the candidate of their choice in any districts. Alabama was kind of like, Yeah, maybe? Sure. And that would just be a huge and devastating loss for, again, how representative and democratic our legislatures are.

Andy Slavitt  20:41

So, it’s a question is this is a court that essentially adapts a we are race blind kind of view? And maybe as you answer that question, let’s probably turn to the second case to bring up which is the affirmative action case that’s on the docket with Harvard and University of North Carolina.

Leah Litman  20:58

The theory that is I think, going to lead the courts to limit the Voting Rights Act is also the theory that seems like it’s going to resolve the challenge to Harvard and the University of North Carolina’s use of race and admissions policies, which they do in order to ensure a diverse student body. And the view basically runs as follows. It is unconstitutional discrimination on the basis of race for governmental institutions to consider race at all, even when, as in the case of the Voting Rights Act, they are considering race in order to avoid diluting the voting power of racial minorities or in the case of the affirmative action cases they are considering race in order to ensure a diverse student body the argument is, that’s unconstitutional race discrimination. It doesn’t matter why you’re doing that. That is the legal equivalent of Jim Crow era segregation.

Andy Slavitt  21:48

And as I understand affirmative action policy, where it stands now, based on the rulings that from the last time affirmative action was heard as it was as University of Michigan Law School, was it? That in order to create a better educational experience, institutions were allowed to factor in the type of student body and the diversity of the student body, as a part of a good educational experience. Is that what’s being challenged now? And the implications of it falling? would seem to be pretty significant. But can you spell those out?

Leah Litman  22:31

Absolutely. So legally, the current status is when schools want to use race, in order to build a student body, they have to show that they are doing so in order to gain the benefits that come from a diverse student body. That’s, you know, the compelling interest that the Court recognized in that case involving the University of Michigan that schools can pursue and consider race. And so if the Supreme Court overrules that decision, or if it narrows it and says, you know, the only instance in which schools can use race is when they are, you know, remedying a specific instance of prior discrimination by that institution in recent history, then, all of a sudden, right, you are risking a universe in which you know, our best institutions aren’t actually reflecting, you know, our best and brightest talent and the diversity of that talent.

Andy Slavitt  23:30

So what will that mean? Will that mean that? Well, first of all, will it extend beyond universities to other places in the US? And will it mean that they very simply cannot take into account race in any way in making decisions?

Leah Litman  23:44

It is likely that, you know, where are the Supreme Court to overrule the affirmative action cases it would do so on the ground that the Constitution generally prohibits, you know, consideration of race even for, you know, benign or noble purposes? And yes, that principle would apply outside the context of schools to other state institutions that consider race for other reasons as well. Now, how broadly how exactly it might apply is going to be unclear, but there’s no question that there will be challenges to other uses of race outside of the educational context. And, you know, the University of Michigan submitted a brief that outline the consequences for the undergraduate institution, after the state adopted a prohibition on using race in admissions showing how the diversity in the student body plummeted, you know, the percentage of Native students, that percentage of Black students is just abysmally low. And that is where the court seems to be pushing, you know, the entire country.

Andy Slavitt  23:44

This applies to anybody who takes federal money, is that who it would apply to?

Leah Litman  23:48

Yes. So it would both apply to state institutions. And because there’s also a case involving Harvard that is a challenge based on you know, the Civil Rights Act, which prohibits the use of race, you know, or institutions that accept federal funds.

Andy Slavitt  25:02

So I’ll just say that when I ran a large federal government agency in the Obama administration, we were required to interview a certain number of veterans and hire a certain number of veterans, I would imagine, well, that’s not race based specifically, get it that feels like the kind of thing that would be potentially upset by this.

Leah Litman  25:23

So I think it’s that the court is going to say, You can’t do that with respect to race, you know, like other status, whether that’s prior service, or let’s say, like socio economic diversity, that’s different.

Andy Slavitt  25:36

Poverty, income will be allowed, could still be okay. All right. That’s interesting. You know, let’s go back to the election pieces, again, because we talked about voting rights. But there’s also a case, a very important case about redistricting. Talk about that one.

Leah Litman  25:54

Sure. So this is Moore versus Harper, a case out of North Carolina. And it involves a constitutional challenge to a decision of the North Carolina Supreme Court that struck down the maps that the North Carolina legislature drew on the ground that they violated the state constitution’s guarantee of free and fair elections. And the state Supreme Court said the maps violated the state constitution because they were extreme partisan gerrymandering. So you mentioned, you know, the overlap between you know, race and party partisan gerrymandering is where legislatures draw districts in order to advantage one political party and disadvantage the other and as a result of partisan gerrymandering, you can have situations where a majority of voters actually vote for one party, but the other party wins a majority of seats in the legislature. And the argument is it actually violated the federal constitution for the state Supreme Court to apply its state constitution to the rules regarding federal elections. This is sometimes called the independent state legislature, idea or theory. And it basically runs as follows the federal constitution, the US Constitution requires state legislatures and state legislatures alone to the exclusion of any other office within the state government to set the rules regarding federal elections.

Andy Slavitt  27:14

So the implication here seems to be rather profound. If state legislatures which many of which are partisan, super majorities, What rights does it would end up giving them should this case go in the direction that North Carolina is pushing it to go? Does this have broader implications about, for example, counting votes and other kinds of things where the checks and balances and the court cases, as we remember, from 2020, were the ones that were important to enforcing the proper outcome of the election.

Leah Litman  27:48

Exactly. So I can kind of spin through a few different possible implications of this case. And I think some are truly terrifying. And I want you to be careful between striking the balance between rights suggesting what this case will and won’t resolve. And also, it’s important.

Andy Slavitt  28:05

Is it as dire as the most terrifying potential outcome, or is it less likely to be?

Leah Litman  28:10

So I don’t think what the court is going to say in this case, even if it rules for the legislature is going to say something that would allow a state legislature to throw out, you know, the votes that have been cast and just declare, you know, we are going to send all of our electors, you know, to support the candidate that didn’t win the state’s popular vote, you know, that idea that state legislatures could do that is of course related in like a warped strange sense to the state legislature theory. Again, the idea being like it’s up to state legislatures to set the rules regarding federal elections, including the appointment of presidential electors. But formally, this case coming out of North Carolina concerns the elections clause, the rules regarding congressional elections, not the electors clause, which concerns the appointment and selection of electors who select the president. And second, this case concerns the rules as they are set before an election occurs, not whether the legislature can just abandon you know, the rules it set up previously, when it doesn’t like the outcome, you know, that followed under those rules. So for those reasons, like I don’t think, you know, the Supreme Court is going to say something in this case that says yes, state legislatures can just declare the winner of the presidential race and act accordingly. That being said, Could it say some things that embolden right state legislators to try and do that? Yes, right. Perhaps Right. Any embrace of this independent state legislature theory is concerning. But I don’t think they are going to go yes, full coos are okay, right, in this case.

Andy Slavitt  29:49

Well, we got that going for us, don’t we?

Leah Litman  29:52

Exactly. Silver Linings.

Andy Slavitt  29:56

Yeah, and yet 50 Chief Justices from every state have written a brief, encouraging the Supreme Court not to support this. I want to come back from one more break. We’re gonna get into what happens if the Trump cases hit the Supreme Court and do a little bit more with some of the other cases left with Leah Litman? We were talking before the break about Moore versus Harper, which is the case of North Carolina containing redistricting and whether or not the legislature needs to be subject to court oversight. This is one where it already you seem to have some of the conservative justices that have weighed in on the side of what appears to be North Carolina. What do you expect to happen here?

Leah Litman  31:52

I’m not sure I think it’s clear where at least some of the justices stand. So in particular, Justices Alito, Thomas and Gorsuch have all made clear right, they are sympathetic to right North Carolina’s argument that state legislatures can’t be subject to state court oversight state constitutional oversight when it comes to setting the rules regarding federal elections. Now, Justice Cavanaugh has also expressed his sympathy for this idea, although he did not join all of Justice Alito and Justice Gorsuch and Justice Thomas’s writings on the subject. So that seems like there are four. And frankly, if justice Kavanaugh is with those other Republican appointed justices, it is hard for me to imagine that Justice Barrett right isn’t there with them. The idea that state legislators rather than state courts or state constitutions need to set the rules regarding federal elections was the argument of the Bush legal campaign during the 2000 election that led the Supreme Court to stop the recount in Florida and you know, effectively result in the election being called for George Bush. And guess who some of the lawyers on the bush legal campaign were Brett Kavanaugh, Amy Coney Barrett and John Roberts. So, you know, I think there are a lot of really troubling signs that a majority of justices are going to embrace some version of the North Carolina legislators argument, it’s just unclear what version of the argument it’s going to look like, given that this is so far removed from what the law has been to date.

Andy Slavitt  33:18

These cases all seem to carry a theme of democracy clashing with rights. And there’s another case that I want to talk about also, which is 303 Creative versus Elenis, tell us about that case.

Leah Litman  33:34

So this is a challenge to a Colorado public accommodations non-discrimination statute that prohibits discrimination in public accommodations on the basis of several characteristics, including sexual orientation. And in a previous case, Masterpiece cake shop versus Colorado Civil Rights Commission. The Court addressed this statute when it was applied to a baker who refused to make or sell a cake to same sex couple who wanted to use the cake in their wedding. And the court basically avoided answering the broad question of whether anti-discrimination, non-discrimination statutes can be applied to individuals who have religious objections to them. So the court avoided answering that question, and now comes 303 creative, which involves a website designer who doesn’t want to, you know, offer website designs to same sex couples for their weddings. And the argument here is it is unconstitutional to apply this public accommodation statutes to me a website designer, because you’re forcing me to say things to engage in speech with which I disagree, and so it violates my rights against compelled speech.

Andy Slavitt  34:48

What I find fascinating here, and maybe you could explain it to us Leah is it’s not so much the person with the website and the case but what I feel Like, am I wrong to feel like that there’s some machinery out there hunting for cases. And weaponizing these little conversations, which no matter how you feel about this particular case, you know, people do have their opinions here. It’s often very small things, but that just heard for these things. So they could find the perfect plaintiff to create a Supreme Court case.

Leah Litman  35:25

I think that that’s exactly right. And that describes this case, you know, the would be plaintiff, the website designer has never actually designed a wedding website. Before, you know, she was in the business of creating websites for political campaigns and political candidates. And then all of a sudden, she’s like, oh, by the way, I’ll do wedding websites, but I don’t want to do same sex couples. And then all of a sudden, there’s a case where you can argue, you know, this statute is requiring someone to speak in a way where you couldn’t as easily make that argument when it involves making a cake, baking a cake, selling a cake, which again, was like less clearly speech. And so that argument wasn’t available in that earlier case.

Andy Slavitt  36:05

Yes, manufacturing these things. And now that we have this court, as you play it out a fairly predictable court in terms of how they’re going to come out in certain issues. Feels like there’s gonna be a whole lot more of this manufacturing going on. Whether it’s affirmative action, LGBTQ rights, rights, granted, based on race, that are just going to not only make the court carry the philosophy that we talked about, but find ways to gin up lots of opportunity for that to happen very quickly.

Leah Litman  36:35

No, I think that that’s exactly right. You know, you have the court you want and so you want to get them the cases to decide the issues to do the things you want. And so, yes, this court is creating that incentive.

Andy Slavitt  36:47

Before we turn to Trump. Are there any other cases we should talk about?

Leah Litman  36:51

I think the challenge to the Indian Child Welfare Act is another important case. So the Indian Child Welfare Act is a federal statute that enacted a variety of protections against the removal of native children from their homes, and against, you know, placing native children outside of their families or their tribes, and whatnot. And there is a constitutional challenge to that statute that basically, you know, ticks through any number of possible reasons why the statute might be unconstitutional. But one reason relates to what we were talking about before, which is the Indian Child Welfare Act by granting special protections and placement protections and placement preferences to native children, actually constitutes unconstitutional discrimination on the basis of race. And so the idea that it violates the Constitution to adapt some remedy for previous discrimination to try to prevent future discrimination is also present in this case, as well.

Andy Slavitt  37:50

What’s the motivation behind this case? I have a harder time understanding what they’re trying to, why they’re trying to do something here.

Leah Litman  37:57

So, for people who are interested in the dynamics between or behind this case, definitely check out this land by Rebecca Nagel, that did a bunch of research about the individuals bringing this case. And I think the reality is there are several different motivations. And some of the motivations are a desire to increase the number of children that are adoptable by white families. You know, that is right, a community that exists. And that seems to be a part of this case. But I think there are also other reasons why you have individuals challenging the federal government’s protections for native tribes, which is, you might be able to limit some of the protections that tribes have over gaming authority. And if you can, right challenge, the tribes gaming rights, then right that might open up market opportunities for other individuals or entities that want to get in on that market. So I think there are both financial and economic reasons why you have people challenging the federal government’s ability to adopt protections for Native nations and Native people, but also reasons related to adoption as well.

Andy Slavitt  39:10

Feels like we should do a whole episode some point on Supreme Court opportunists, people who will use this for either commercial or ideological or religious goals that they’ve long carried. Maybe we’ll close by talking a little about that reality, but I want to turn to Trump. You know, most recently, Trump has asked the court to get involved in the Mar a Lago document case, you tell us a little bit about that, and what we think the Supreme Court is likely to do here.

Leah Litman  39:40

I mean, this is just pure insanity, and it would take a while to describe accurately what is going on. So I’m going to simplify it in broad strokes. You know, the FBI did a raid at Mar a Lago saying you have classified information that is super damaging to our national security and national inter Just in your possession, give it back. And then Trump went to the courts and said, like, I want the information back because somehow executive privilege allows me a private citizen to prevent the executive, the current president, the federal government from holding and possessing classified information like truly, truly a bizarre, strange argument. You know, he also argued that he had telepathically declassified the documents. And, you know, the district court said, you know, what, we need a special master to consider this argument, you know, whether you telepathically declassified documents, whether executive privilege somehow precludes the current executive branch from possessing classified documents. So that’s what the judge did. The US Court of Appeals for the 11th Circuit said, You’re kidding, right? Like, this is insane. And the court that did so included two appellate judges who were appointed by President Trump, in response to that ruling, the district court actually modified her opinion. So it doesn’t apply to certain classified documents that the federal government wants to use right in furtherance of a criminal investigation. So now Trump is at the Supreme Court, but the case is in a super weird posture, because there’s no longer an order of the district court, you know, concerning these classified documents, and so it’s not clear like what relief he can actually get from the Supreme Court. And I think it’s unlikely that you will have five justices give him anything. And I say that as someone who was quite pessimistic about this Court’s like willingness to follow the law, and whatnot, but I just don’t think there are five justices to give him anything here.

Andy Slavitt  41:45

It seems in general, that the Supreme Court is not working quite the way he imagines it would when he thinks about it, like his own family business, like, you know, I appointed you, therefore, you’re my court, it feels like, I’d be in for all of the conservatism and ideology and all the things we’ve talked about the court that there aren’t a lot of signs. Maybe Justice Thomas and his wife is a powerful exception, that they are sympathetic to breaking obvious laws in support of the person who put them on the bench. And I know that he put Thomas on the bench, but Ginny Thomas’ is as close to this as any, anybody in very strange ways, obviously.

Leah Litman  42:31

I mean, what I would say is, I think it’s clear that this Court is willing to change the law, ignore statutory text, ignore you know, relevant constitutional precedent and other things in order to advance the political agenda of the Republican Party. Right. I think that that is an important part of the independent state legislature case, I think that’s an important part of the Voting Rights Act case as well. I don’t think however, they’re willing to do the same thing, just to personally benefit Trump. You know, there’s got to be some kind of like, broader ideological project that a case or an issue relates to, in order to right kind of tickle their fancy.

Andy Slavitt  43:08

Well, it’s the Federalist Society advancing some theories about why they should be supporting this or they should stay out of this.

Leah Litman  43:15

So there isn’t really a legal theory for why the right to this needs to happen for Trump here, right. It is an anti-executive power argument. The Federalist Society has been like pretty pro presidential authority, at least in the sense of right, like pro executive privilege, and things like that. And here, right, again, they are trying to limit the current president’s current executives authority to use classified information. And it’s just a super strange, odd theory that has no basis in any kind of general principle. And so I haven’t yet seen a theory that even remotely comes close to explaining how this advances some larger ideological or political project.

Andy Slavitt  43:59

And yet he’s still likely to get, like we’re saying it’s going to be nine to zero either.

Leah Litman  44:03

Yeah, I am not so confident. It’s nine zero. And that is a sad state of affairs.

Andy Slavitt  44:10

It’s conceivable that other cases involving Trump could end up on the court or at least a contested 2022, midterm election, or other things, among other things that are currently brewing say, you know, in the Fulton County case, or something related to January 6, you walk us through your perception of how that would happen, and where you think the court would be in something of that import.

Leah Litman  44:39

Sure. I mean, so there are any number of things that could reach the court, you can imagine a case about whether individuals can have absentee ballots counted after a deadline reaching the court you can imagine a case about whether, you know, individuals can deposit their, you know, votes at ballot drop boxes that state executive Officials have opened up reaching the court related to the 2022. midterms. Maybe there’s a challenge to one of the grand jury subpoenas, you know, coming out of Fulton County. The reason why that isn’t yet at the Supreme Court is the Court of Appeals for the 11th circuit basically said, you know, trial court to take another look at this. And so, right, that issue, right isn’t yet ready for Supreme Court review. But any number of the civil or criminal investigations related to January 6, related to the Trump Corporation related to Donald Trump, you know, could conceivably make their way to the court. It’s just it’s difficult to know exactly what form that might take. And without knowing that it’s difficult to know what the court might do with it, I think.

Andy Slavitt  45:41

Yeah, yes, it is, you know, for those of us who remember 2000 election, and, of course, 2020, it’s hard not to imagine in some way. And you’re right, it’s hard to exactly predict the form, that the courts aren’t going to somehow be involved in these contested elections. And if we just limit ourselves away from the criminal or civil cases against Trump and focus on the election cases, because he did it, they matter more to us. Do we have any sense that this sort of partisan leaning this sort of doing the bidding of the Republican Party that we’ve talked about, in other cases, would carry over? And that if there are any grounds to be sympathetic to the Republican cause? They wouldn’t hesitate to do that, or, you know, is this a place where there might actually be some prudence and a much more call it fair interpretation of the laws.

Leah Litman  45:41

So this is an area where the Supreme Court has not hesitated to advance the interests of the Republican Party. So just thinking back to the 2020 election, you had a majority of the court, you know, basically putting on hold a lower court decision that invalidated a witness requirement on absentee ballots, you know, during the COVID pandemic, and three justices, Justices, Thomas Alito, and Gorsuch would have thrown out all of the votes that were cast under the court’s decision that said, you don’t actually need a witness and actually, like, you know, risk disenfranchising right, like many South Carolinians. You also had them, you know, saying we’ll put on hold a lower court’s decision that allowed executive officials to count absentee ballots that had been received after the absentee ballot received deadline because of mail delays due to the COVID pandemic and due to delays because more people were requesting absentee ballots in light of COVID. You had four justices. This was before Justice Barrett was confirmed to the court saying we would actually put on hold a state Supreme Court decision that similarly said you can cast absentee ballots and have them counted so long as you cast them before election day. So this is an instance where the Republican appointed justices have been very hardline and okay with changing the law, you know, via these unreasoned orders on the shadow docket, that just kind of do what they want. And they don’t really give any reasons why that is, you know, the reason why Alabama is able to conduct elections under a map that a unanimous, you know, three judge panel concluded, violated the Voting Rights Act is because a majority of justices just said like, yeah, you can use the map like while this litigation is ongoing, they didn’t give any reasons really, you know, there was no majority opinion. But this is an area where they have been extremely proactive, and aggressive.

Andy Slavitt  48:47

So reason to worry if there is a close election. So I have to ask this question. Is it too insensitive to ask or it’s still too soon to ask about whether or not life would have been different had Justice Ginsburg retired during Obama’s term? And is that a matter that that bears any discussion in any circles? Not that it doesn’t look good at this point, but there are lessons for the future, perhaps?

Leah Litman  49:18

No, I think it is an important question and an important conversation to have. Because I think the answer is yes. Like life would look different. It would be different. Had Justice Ginsburg were tired during a time when, you know, Democrats held the Senate and Democrats were able to replace her, you know, with the justice who is still on the court. You know, in that world. There aren’t five justices who overruled Roe versus Wade. There aren’t five justices that would have allowed Texas to enforce a law that effectively prohibited abortions more than six weeks after a person’s last period even before Roe was overruled. So yes, that that world looks different. Now what lessons should we draw from that? I think, you know, at a minimum, justices, federal judges need to be a little bit more humble, when they are thinking about, you know, retirement decisions, decisions about, you know, whether to continue serving, you know, so on and so forth and think about, you know, their sense of importance, versus the larger systems. But, you know, beyond that, it’s not entirely clear, like what everyone else is supposed to do about that, in order to ensure you know, that federal judges aren’t risking, you know, millions of people’s rights and their lives, you know, according to these decisions, and maybe the answer is like, we should think about, you know, mandatory retirement, right, like 18 year terms or things like that, in order to avoid these decisions. Maybe that’s part of it. But yes, I think this is an important question and conversation to have.

Andy Slavitt  50:56

Okay, well, thanks for entertaining it. Leah Litman’s podcast is called Strict Scrutiny. If you enjoyed listening to this great breakdown, then you can get this all the time, at Strict Scrutiny. We’ll have a link, of course to it in our show notes. It was really delightful to have you here. The topics were not the most uplifting topics that you could have for a, you know, a Monday podcast. But yet, again, we have to understand it, we have to know what we’re walking into. I guess I’m gonna just say great talking to you. And let us have better to let us have better news next time.

Leah Litman  51:37

Sounds like a plan. Thanks so much for having me.

Andy Slavitt  51:52

Wednesday show, John King from CNN. We are going to do a full midterm election preview. Great conversation with him that I think will answer a lot of questions. John is an incredibly insightful and honest observer things. We’re going to talk about the coming COVID wave over the winter with Katelyn Jetelina. We’re starting to see signs in Europe of new cases rising and new hospitalizations. And typically that’s what we end up seeing here. We’re going to talk about how Roe and the decision around Dobbs is on the ballot in this election cycle, not just on the ballot metaphorically in bringing people to the polls, but it’s literally on the ballot in a number of states, like Kansas, where there’s referendum. Few other great guests coming up, including Xavier Becerra, the Secretary of Health and Human Services, Cody Keenan, and more. I will look forward to our conversation on Wednesday with John have a great time until then.

CREDITS  53:01

Thanks for listening to IN THE BUBBLE. We’re a production of Lemonada Media. Kathryn Barnes, Jackie Harris and Kyle Shiely produced our show, and they’re great. Our mix is by Noah Smith and James Barber, and they’re great, too. Steve Nelson is the vice president of the weekly content, and he’s okay, too. And of course, the ultimate bosses, Jessica Cordova Kramer and Stephanie Wittels Wachs, they executive produced the show, we love them dearly. Our theme was composed by Dan Molad and Oliver Hill, with additional music by Ivan Kuraev. You can find out more about our show on social media at @LemonadaMedia where you’ll also get the transcript of the show. And you can find me at @ASlavitt on Twitter. If you like what you heard today, why don’t you tell your friends to listen as well, and get them to write a review. Thanks so much, talk to you next time.

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