Elie Mystal on This Week at the Supreme Court

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone. The Supreme Court is working its way through the remaining cases, argued this term. They released four opinions between yesterday and today, or each of yesterday and today, but none of them were in the big cases that everybody's anticipating, like affirmative action or student loans. They'll be back at it on Tuesday. We are told perhaps with those, but let's talk about what we do know from this week's opinions and indulge in some speculation about what's holding up the remaining opinions, the ones the press has been focusing on.

We have our June court watcher back, Elie Mystal, justice correspondent for The Nation and author of the book Allow Me to Retort: A Black Guy’s Guide to the Constitution, now Out and paperback. Hey Elie, welcome back to the show.

Elie Mystal: Eight Opinions in two days, Brian, I'm going to need a new glasses prescription because [chuckles] it's a lot of words.

Brian Lehrer: The one that everybody seems to be focusing on out of the eight is one that came down this morning reviving as The New York Times headline puts it, Biden Immigration Guidelines. What happened?

Elie Mystal: Let me just set the scene for how stupid the Texas lawsuit was. The Biden administration said that we simply cannot possibly have the manpower to deport every single undocumented immigrant living in this country. We don't have the resources. Texas said, "No, no, no you must find the resources to do this." The Biden administration said, "Texas, you're Texas, not the federal government go away." The lower court in Texas approved the Texas Governor's request upholding or holding back the Biden administration policy back in 2021, almost at the very kickoff of the Biden administration.

It's taken us two years for it to get to today's Supreme Court decision where the court ruled eight to one that Texas had no standing to sue the [inaudible 00:02:19] and make immigration policy for itself, which was the obvious outcome. Samuel Alito dissenting for Alito reasons, but that's the most obvious outcome ever. The question is why did it take two years? The answer is that we see the Supreme Court do this all the time. If it's ruling from a liberal jurisdiction that they don't like, they will strike it down before breakfast.

If it's a ruling from a conservative administration or jurisdiction, even when it's clearly legally wrong, they slow walk it all the way up, and so we've had two years of immigration uncertainty over Biden's immigration plan for a case that, again, eight one on obvious grounds Texas never had standing to bring in the first place.

Brian Lehrer: Do I have the content right that Biden wants to prioritize deportations and deport people who've committed serious crimes in this country who are immigrants or undocumented immigrants who've done that first and foremost because the government doesn't have the money to reach out and try to deport everybody who's here illegally, so they prioritize people who've done bad stuff. That's what got upheld.

Elie Mystal: Yes. Exactly. Just politically that's relatively a mainstream position that if you cannot deport everybody and you have to make a decision about who has to go first, violent criminals probably are the first bet. That's probably again, a relatively mainstream position. That's what Texas was holding up under their bonkers theory that the federal government should have an army of people running around the country trying to capture and deport people. It was always a bonkers legal argument.

It's taken us two years to get here because the conservative slow-walked it all the way up to the Supreme Court.

Brian Lehrer: Remember what Trump ran on the first time he ran in 2016, a deportation force that he was going to try to unleash on the country and round up every undocumented immigrant. Of course, by the time he got into office even he realized that that was unrealistic.

Elie Mystal: Again, Brian, when lower courts during the Trump administration would block Trump policies, we saw immediate people call it the shadow docket, the emergency docket. We saw immediate Supreme Court reaction to that kind of stuff. Now when Biden's in charge we see the Supreme Court taking its sweet time to overturn clearly wrong lower court decisions. Again, this case was eight-one on standing. Just to be clear, standing is a procedural issue. We don't even get to what's called the merits.

We don't get even get to the underlying issue when we have a lawsuit like this where Texas has no legal grounds to make a case in the first place.

Brian Lehrer: Now this ruling just came out an hour ago, but we've already seen legal scholars Steve Vladeck, who's been a guest on the show when you don't do it because you don't do every Supreme Court analysis segment with us. He tweeted that this ruling might signal something in the student loan case because that is also some states who don't like Biden's student loan forgiveness. States suing over a Biden executive action that they don't like. Do you think they're signaling or setting that precedent here?

Elie Mystal: I love Steve and I can go either way on the [unintelligible 00:06:10] here. Just to be clear to listeners, standing is the argument that to bring a case against the federal government, you have to be harmed in some way, and it's unclear in the immigration case how Texas is harmed by Biden setting immigration policies. It's unclear how the states are harmed in the situation of student debt relief. The standing argument that they deployed in the Texas case should also work for the student debt case.

That the states simply have no harm that they can show from the relief program, thus they have no standing to sue the Biden administration. I never want to disagree with Steve, let's put it like that. I agree with Steve that the fact that the court is willing to kick a case on standing here bodes well that they will kick the student debt relief case on standing, which again, to me, is always the most legally obvious way to dispense with that challenge. My worry is that we're near the end of the term, Brian. This could have been standing day.

Brian Lehrer: Right, they could have done both things.

Elie Mystal: They could have just done all the cases that they were going to kick on standing today and they did it. Again, this was an eight-one decision. Do I think student debt relief is going to be kicked eight one on standing [unintelligible 00:07:34]

Brian Lehrer: We'll find out next week.

Elie Mystal: Right. I'm worried that this could have been-- If they were going to kick student debt relief on standing today would've been a really good day to do it, so we'll have to wait till next week to see if they are going to continue with the standing arguments or if they're going to go in some other horrible direction.

Brian Lehrer: The other case out of the eight from the last two days that's getting some press attention is yesterday's decision in a case called Jones versus Hendrix, and that's one of two that came out in the last two days that has to do with wrongful convictions. Another one is what's called the Samia case, and I know you're interested in these. What happened?

Elie Mystal: Brian, the conservatives on the Supreme Court are on a war, on a crusade against the wrongly convicted, against the actually innocent. Their conservative standing is basically that once you get into jail, even if the circumstances under which you got into jail were wrong, even if you're actually innocent, doesn't matter, you can rot. That is their point. What we saw in Jones is a particularly ridiculous situation where a man was-- He was convicted for illegally possessing a firearm and making false statements to obtain that firearm.

It was his third strike or whatever, so he is been in jail basically for 20 years. Turns out he didn't know that he wasn't allowed to possess a firearm. It was a juvenile conviction that he believed was expunged, so he didn't know that he wasn't allowed to have a gun so he couldn't lie because he didn't know that he was lying. The court after he was convicted clarified the law to make it clear. The Supreme Court clarified the law to make it clear that if you don't know that you're not allowed to have a gun, you probably shouldn't be convicted of making false statements to have a gun.

I'm sure many of your listeners can understand why the Supreme Court would do this. They love the Second Amendment. They want to make it easier for people to get guns, not harder, and they certainly don't want to punish people from buying firearms when they didn't know that they weren't allowed to have them. Great. Now fast forward to this guy he's like, "Not only am I in jail for something I didn't do, I'm in jail for something that we no longer think is a crime. Surely that means I can get out of jail."

The Supreme Court, six to three conservatives in lockstep said, "No, you have to stay in jail forever. There is no way for you to get the government to reconsider your case because you used your one and only challenge before we changed the law on you. Your tough luck, sir." Which is not only just a ridiculous legal position and Ketanji Brown's Jackson dissent in the Jones. V. Hendrix's case, it is just a tour de force on legal writing.

I read it myself, Brian, and I was like, "Oh wow. That's why she's on the Supreme Court and I'm not." Because it is a brilliant dissent. Not only is it a legally just wrong opinion, it is a morally absurd position for the Supreme Court to take. Yet Brian, we see the Supreme Court, the conservatives consistently taking the side against people who are either wrongly convicted. That's what's happening in the Samia case today, or who are provably innocent.

Brian Lehrer: Let's take one call for you on the Biden immigration policy ruling, and it's from Richard in Forest Hills. Richard, you're on WNYC with Elie Mystal, justice correspondent for The Nation.

Richard: Good morning, gentlemen. Yes. My question is now that the Supreme Court says that Texas has no right to tell the federal government what to do about immigration, is the federal government going to tell Texas, "Stop your improper human trafficking of migrants from Texas to cities all over the country?" I live in Forest Hills, Queens, New York, and I would like to see something done about this criminal government in Texas on this issue. There are many other criminal issues in Texas, but I'm talking about this issue.

Brian Lehrer: Richard, thank you. Does the government in Washington have standing on that, Elie?

Elie Mystal: Speaking of standing Richard, I think that's where I'm not sure. I'm not sure that the Department of Justice has this legal, technical idea has standing to sue Texas, to sue Florida for their migrant trafficking policies for political gain. I'm not saying that they certainly don't have standing, but I'm saying that is a threshold issue that I'm not sure the government can get around. What I believe needs to happen and Richard, I am totally with you that these policies by Abbott, by DeSantis, are evil and vile and should be stopped.

What probably has to happen is actually a private lawsuit. It's probably has to-- One of these people who was kidnapped and sent to Martha's Vineyard or wherever, actually probably has to be the person to bring that case. They have the better standing argument to sue for their rights against Abbott and DeSantis.

Brian Lehrer: Thank you for your call. We've talked about some of the cases that were decided on and the rulings announced in the last two days. We did not hear about student loans. We did not hear about affirmative action. We did not hear about whether a creator of websites can deny service in their business to gay customers because they feel like it. We did not hear about what might be the really big one for the future of elections in this country. Whether states can change election laws without any review by the state courts.

I know some people think that the Supreme Court holds the controversial cases for right before they adjourned for the summer in order to avoid facing people like politicians Friday afternoon, bad news on any given week. Is it likely that that we haven't heard these big ones that everybody's been anticipating and we're going to hear them all next Friday when I happen to be off just going into the 4th of July weekend?

Elie Mystal: Brian, I used to believe in the institutionalist line that the Supreme Court releases opinions when they're ready with no concern for politics or the media. I used to believe that until I realized just how corrupt these Supreme Court justices are and just how sensitive they are to bad press. I think Samuel Alito's-- Not just the trip that he took with the guy that he didn't want to disclose, but his vociferous defense of himself, the big mad Sam Alito in The Wall Street Journal, which he apparently has on speed dial, really shows me that these people care a lot about how they're talked about in the media.

Now Brian, yes, I do believe that they hold their biggest decisions until they can drop them and skedaddle out of town without risk of having to face the people who are unhappy with their decisions. I now believe that. With affirmative action specifically, I can see an argument for why it's late and this is super [unintelligible 00:15:39] super speculation. Don't quote me on live radio.

Brian Lehrer: I won't.

Elie Mystal: If you look at the tea leaves, it might well be that Roberts is writing the affirmative action banning decision as opposed to Clarence Thomas. I know Clarence Thomas wants it, but it could be that Roberts is writing it instead. If that's the case, what's likely happening is that Thomas then not being allowed to write the majority opinion, has gone off some crazy deep end in a concurring opinion.

Now the dissent, the three liberals who are certainly going to dissent from this opinion, now have to incorporate not just what Roberts is saying, but also Thomas's cuckoo crazy whatever in their dissent. That just back and forth and back and forth is just taking longer than perhaps others anticipated. That is my new operating speculation for why affirmative action is late, but the fundamental principle that they're holding controversial cases to the end so they can leave is now something that I fully believe in.

Brian Lehrer: Elie Mystal, justice correspondent for The Nation and author of, Allow Me to Retort: A Black Guy's Guide to The Constitution. I guess we'll talk next week.

Elie Mystal: See you Tuesday, Brian.

Brian Lehrer: Brian Lehrer, on WNYC. More to come.

 

 

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