Opinion Day: The Supreme Court, State Legislatures and 'True Threat'

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Brian Lehrer: Brian Lehrer on WNYC. Now we're going to come back and end the show where we started it today with some Supreme Court decisions handed out this morning. Now that people have had a little more time to digest them, the court issued three opinions today, including two that we consider really big on independent state legislatures, that's overwhelmingly big, and another on what constitutes a true threat. That still leaves a number of cases to be decided that are considered extremely controversial and consequential.

We're keeping tabs on ones like on affirmative action in college admissions, President Biden's student loan forgiveness program, and a couple of religious rights cases, but back with us to talk about today's rulings is our June court watcher, Elie Mystal, justice correspondent for The Nation, and host of its new podcast, Contempt of Court with Elie Mystal, and in addition to his book called  Allow Me to Retort: A Black Guy’s Guide to the Constitution. Elie, thanks for being on standby for all of these decisions, and welcome back to the show.

Elie Mystal: Brian, we get to have a democracy for a whole 'nother election cycle. I'm excited.

Brian Lehrer: Moore versus Harper, the North Carolina case 6-3 in favor of, the courts continuing to have the ability to review redistricting at the state level. That can sound pretty wonky to people who haven't been following it, but you and a lot of people are concluding, yes, we get to keep a democracy for at least another election cycle. How come?

Elie Mystal: Look, the case here is about whether the legislatures of each individual state get to set all of the rules about how elections run in those states, or whether the judiciary is allowed to overlook the process. The Republicans in North Carolina argued that the state legislature and only the state legislature gets to set election rules, and that is just not something that comports with our constitutional understanding, either at the federal level or the state level. It is, Brian, exactly the plot of the coup, the legalistic part of the coup, not the violent part of the coup.

This idea that the person who gets to decide who really won the state, which electors really should be, you said so Washington, that the person who gets to decide that is the state legislature instead of the state's voters subject to state's court review. That is the theory that the Supreme Court 6-3 rejected today. I just want to read really quickly from the opinion because it's such a clear statement from Chief Justice John Roberts, who wrote the majority opinion, "The elections clause, that's of the Constitution, does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections." That, my friend, is a mic drop. That ends that theory. Hopefully, we don't have to worry about this anymore.

Brian Lehrer: When you say it's relevant to the coup, this was just about redistricting, but it had so many implications for whether a Trump-style steal of an election could take place, because we recall that he was trying to get some state legislatures, like in Pennsylvania and other places where Biden won but Republicans control the legislature, to flip the result. When he tried to get the courts to do that, he lost 60 times in all these swing states. The courts wouldn't even have had a say if this ruling went the other way, right?

Elie Mystal: That is exactly right. The instant case was about a map that North Carolina Republicans drew that was allegedly partisanly gerrymandered in an illegal way, but to overcome that state court ruling that the maps were partisanly gerrymandered, Republicans went to this kind of nuclear option that yes, would have allowed if not only the maps in North Carolina to go forward. By the way, the partisanly gerrymandered maps in North Carolina are still going to go forward. This doesn't, I don't think, change what's going to happen on the ground in North Carolina.

It would have allowed the kind of John Eastman coup attempts, the fake elector attempts. It would've made that a lot more easy for Republicans to pull off without judicial review. That is the statement that Roberts and a majority of the members on the court rejected. I will say, in a legal procedural way, I don't know that they got it right. Certainly they got it right that independent state legislature theory is bunk. That was always a wackadoodle theory that to me it should have been 9-0 on that question. Procedurally, there was an issue where North Carolina put forward these maps, the state Supreme Court overruled the maps.

Then basically they re-argued in front of a different State Supreme Court and North Carolina was like, actually no, the maps are fine. Technically, that should have made this entire Supreme Court case moot. That means a not a live issue. That it was a ruling that the states figured out on themselves and didn't require Supreme Court review. In his dissent, the first part of his dissent, Clarence Thomas makes, I think, a compelling argument for why this entire case should have been moot and the court shouldn't have ruled on the case at all.

Later in Thomas's dissent, he goes bull on into the wackadoodle independent state legislature theory, and it's his usual trashy Thomas opinion. The first part, I think is relevant. There's an argument here that what the court has really done is to once again assert its supremacy, the Federal Supreme Court's supremacy over this entire field and canon of law. Almost, you can read the opinion as Roberts giving himself and his court even more power to rule for itself what is and is not allowed in federal elections.

Brian Lehrer: Interesting. Are you at all surprised that this ruling was 6-3, which means in addition to the three justices we usually call the liberal justices, three justices who we usually call the conservative justices agreed? That is Chief Justice Roberts, who wrote the majority opinion, plus Kavanaugh and Amy Coney Barrett.

Elie Mystal: I'm a little surprised that Kavanaugh, just because in a former life when Kavanaugh was a lawyer for the Republican party, specifically in the case of Bush v. Gore, Kavanaugh is one of the guys who came up with independent state legislator theory-

Brian Lehrer: What?

Elie Mystal: -as a way to make George W. Bush president. I'm going to show my age here, but in the before times, in the long, long ago of the year 2000, the argument in Bush v. Gore was whether or not a state-mandated recount could go forward. The recount was ordered by the Florida State Supreme Court. Republicans, people who wanted Bush to be president, wanted that recount to stop. One of Kavanaugh's arguments, there are clips of him on CNN making this argument back in the day, one of his arguments was that the Florida State Supreme Court could not order the recount to continue because of independent state legislature theory.

Now, in Bush v. Gore, the majority more or less rejected that argument there. Here in Moore v. Hopper, fast-forward 23 years, Kavanaugh is also now against independent state legislature theory, which was a bit surprising. Kavanaugh did, in this case, write a concurrence that, if you may give me some creative license to summarize, Kavanaugh's concurrence was, "This case is wrong, but what I did in Bush v. Gore was totally right and okay."

It's a very self-serving three-page concurrence, but fundamentally Kavanaugh went with the majority against independent state legislature theory, flip-flopping on a position that he had 23 years ago. That was interesting to me. I'm not surprised that we got Roberts. Roberts was never, I think, going to go for this. I'm not totally surprised that we got Barrett. I am, again, a little bit surprised that they didn't just take the easier way out and just kick the entire case on mootness.

Brian Lehrer: The 2000 election, how quaint to think about the 2000 Bush versus Gore election, which we used to think of as the most legally challenging for democracy in the history of presidential elections. Now that idea seems quaint.

Elie Mystal: If I had the time machine, Brian, that's still the date that I would go back to. I still think that's where everything went wrong.

Brian Lehrer: Do we learn something from the fact that Kavanaugh might have argued for independent state legislature theory at that time when he was a lawyer, and now rules against it as a Supreme Court justice, that we can assume that just because somebody takes a case as a lawyer, that that's their opinion, and that they can still think independently when they become a justice?

Elie Mystal: I don't know if I would go that far, Brian. Again, I would go that far without Kavanaugh's concurrence in this case. Like I said, his concurrence is a completely self-serving three pages of just why he was always right, and this isn't a flip-flop. It's very I was for it before I was against it kind of writing. What I take from it is less that they become independent thinkers once they ascend to the high court, but more that they understand that they are in a political milieu. The Supreme Court would like us to believe that they are above the law, that they are above politics, that they do not concern themselves with these petty squabbles between the parties.

They ain't. They're paying attention. They know and they understand. I think that this case would have unleashed really dark forces in the country, unleashed a real change and challenge to how democracy works in this country, and for the most part, they balked. I think that we do see that a justice like Kavanaugh, a justice like Barrett, certainly a justice like John Roberts. They are concerned with how their court is viewed in the media and politically. I think this kind of case shows that they are not ignorant to the forces writ large in the country.

Brian Lehrer: There was one more decision that came down today that was on our list of big ones that we're watching. It's known as the true threat case, technically Counterman versus Colorado. This hinges on whether what matters is if you think you reasonably conclude that you're being threatened, or if the other person actually intended to threaten you. I can't help but think of the Daniel Penny chokehold murder of Jordan Neely or chokehold killing of Jordan Neely that courts will have to decide if it was manslaughter. That obviously was not the case in front of the Supreme Court. What was?

Elie Mystal: This is a really interesting case, Brian. Basically, we have a stalker. We have a man who was sending Facebook messages to a woman that he didn't know but they were very creeper. They were, "Oh, I like the new Jeep you bought." She's never met this man before. "Looks like you were just at the grocery store." She's never met this man before. The woman got scared, I think legitimately so, and sued. Now, here's the thing, is the messages that he was sending, they weren't, "I'm going to kidnap you and kill you." They weren't threatening in that kind of violent way.

They were awfully disconcerting. The question then in front of the court was whether these kinds of messages, whether or not those would trip what's called true threat analysis, which is a legal jargon term for when your free speech stops because you're freaking other people out. At some point, your right to harass people under the First Amendment stops because you're a creeper. We understand that. The question from the Supreme Court is where you draw the line. What the ruling was 7-2 written by Elena Kagan. It's very interesting.

She basically lets the stalker win the actual case. He was convicted of harassment or whatever. She says, no, he has to be retry because the Colorado State court used a standard of objectivity that these were objectively threatening messages. Kagan says, no, you have to look at this subjectively, you have to look at this in terms of whether or not the person receiving the message reasonably or legitimately, or whatever, understood those messages to be a threat. It's a subjective standard, not an objective standard. That's a win for the stalker.

She says that that subjective standard should be one of recklessness, mere recklessness, which is basically you knew or you should have known that these messages would've been taken the wrong way. That is frankly, a different lower, weaker standard than I think we had before. Even though Kagan made the stalker win the actual lawsuit, I think she very cleverly set up a situation where it's going to be easier to sue people for the online threats, harassment, stalking, whatever that they make through social media platforms. This stalker was using Facebook.

People can imagine people using Twitter or whatever replaces Twitter soon in the future, we can imagine these cases now being a little bit easier to prove under Kagan's subjective recklessness standard than they were before, even though she's made a ruling that favors the stalker in the instant case at the bar. It's a really interesting decision and a clever one, but I think the right one. I think that given where we are online, we have to have stronger protections against stalkers, stronger protections against these creepers. It shouldn't have to be just, "I'm going to kill you." Something as simple as, "Nice Jeep you just bought there," we should at least be able to have a case about that. I think that that's--

Brian Lehrer: In our last 15 seconds, protections that if you reasonably think you're being threatened, you can do what? You can put somebody in a fatal chokehold, you can sue them in civil court. You know what I mean? You can do what? 15 seconds, Ellie.

Elie Mystal: You can sue them. [laughs] Definitely you can't choke them to death. You can sue them and they can't just run behind the First Amendment. They have to make some other showing that they didn't mean, intend, or think that the messages they sent you were going to be threatening

Brian Lehrer: You can get a restraining order, right?

Elie Mystal: Yes.

Brian Lehrer: Elie Mystal, justice correspondent for The Nation, author of the book, Allow Me to Retort, and host of The Nation's new podcast, Contempt of Court with Elie Mystal. Elie's going to be on standby for us for what we think are going to be the last two days of the term of the Supreme Court with big rulings yet to come Thursday and probably Friday. Ellie, talk to you then. Thank you for today.

Elie Mystal: Thank you so much, Brian.

Brian Lehrer: Now listeners, if you're interested in the Supreme Court, you may be interested in joining Brooke Gladstone tomorrow night for a live conversation on the Supreme Court and the impact of some of its recent rulings. Her guest will be Michael Waldman, head of the Brennan Center for Justice. RSVP for free tickets at wnyc.org/thegreenspace. That of course is in WNYC's ground-floor theater, the Green Space. That's tomorrow night. Brian Lehrer, WNYC. Stay tuned for Alison.

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