SCOTUS Finale

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Arun Venugopal: It's The Brian Lehrer Show on WNYC. Welcome back, everyone. I'm Arun Venugopal from the WNYC newsroom. With the final two opinions this morning, the Supreme Court term is over. What a term it was. When the court reconvenes in October, Ketanji Brown Jackson will be on the court replacing Stephen Breyer who officially retires at noon today. To talk about today's decisions on the EPA and the Remain in Mexico policy, and to look at the term as a whole and what we can expect next time, we're joined by two guests.

Aziz Huq, Professor of Law at the University of Chicago School of Law, and the author of, most recently, The Collapse of Constitutional Remedies, and Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, and a creative writing and law fellow at Yale Law School. Her most recent book is Charged: The New Movement To Transform American Prosecution and End Mass Incarceration. Welcome back to the show to you both.

Emily Bazelon: Thank you.

Aziz Huq: Thanks.

Arun Venugopal: Let's start with today's opinions, the final ones in this term. First, we had the ruling in the West Virginia versus Environmental Protection Agency case. Now, the case is complicated, but I think basically it was a question of whether the EPA could regulate greenhouse gas emissions by power plants. Chief Justice Roberts wrote the majority opinion, and the three liberal justices, Breyer, Kagan Sotomayor dissented. We can guess that their answer was no. Is that it, in a nutshell, Aziz Huq?

Aziz Huq: That's right, Arun. The case turns on a single clause in the Clean Air Act that allows the EPA to decide what the best system for emission regulation is. What the court did was to say that whatever those words say, it has the power to decide that if the EPA's reading of that clause is too sweeping, particularly for the coal industry, the court can ding the agency's action, and say, "If you're going to do this, Federal Government, it's got to be done through Congress."

Of course, we know that Congress is going to take no action of that kind.

Arun Venugopal: How significant is this in your opinion?

Aziz Huq: The Clean Power Plan, that is an issue here, was abandoned by the Trump administration. The real question here is the scope of the EPA's authority, moving forward, to act on climate change at a point of congressional dysfunction and deadlock. What the court has done is to dramatically undermine the agency's authority to act by shifting the power to make major policy decisions, first of all, back to Congress, but then probably more importantly, giving itself, giving the federal courts a kind of free-range of authority to decide when it thinks an agency rule is too important for the agency to do it alone.

This is on its surface, a victory for Congress, but really deep down, this is a shift of authority to the courts to pick and choose among agency rules that they don't like.

Arun Venugopal: Emily Bazelon, how broad was this ruling? There have been concern that it could impact other EPA regulations or other agencies' ability to regulate things that impact the climate or beyond. Did the court take it that far?

Emily Bazelon: It's pretty broad. The court could have gone still further, but what the court is really saying here is that when agencies do important things, they have to have explicit authority from Congress even if the underlying statute gives them pretty broad powers. That's worse than an analysis that was just trained on this one provision. The conservatives on the court are in the business of creating what they call major questions doctrine. This is what Aziz was referring to, this idea that if the court is doing some big thing, it can't just go along with interpreting a somewhat ambiguous statute.

It has to have Congress exactly direct what it's going to do. That's just not how the court has seen its role in the past, the court has been much more deferential to agencies and their interpretations of laws. That's how American law and regulation has been proceeding for really 50 years. In the implications of this decision, there is a lot of breath here.

Arun Venugopal: Now, were either of you surprised by the ruling in the Remain in Mexico case? In this one, Justice Kavanaugh joined the Chief Justice and the three liberals in saying the Biden administration could end the Remain in Mexico policy put in place by President Trump. Emily, I'll start with you.

Emily Bazelon: I was surprised just because I've been feeling pretty cynical about this court. This was the rare decision, this term where we see, in a fairly major case, conservatives and liberals band together to form a majority. It's an opinion by Chief Justice John Roberts, and then the other folks are conservative Justice Brett Kavanaugh and the court's three liberal members. Then, Amy Coney Barrett agreed with the court on the merit. She just didn't think that the court should have actually reached the case. She had a more technical dispute that put her in dissent.

This is a case that, again, it turns on a close reading of a couple of statutes, and the statutes aren't completely in sync with each other. The question here was whether the statute that says that the federal government may, instead of shall, decide to send someone out of the country in a particular immigration context, whether that was what controlled and Chief Justice Roberts says yes. That allows the Biden administration to not keep in place the Trump administration's Remain in Mexico policy, which caused a great deal of suffering for a lot of people trying to immigrate to the United States.

Arun Venugopal: Aziz, how about you? Were you surprised by this decision?

Aziz Huq: I agree with Emily entirely, that the court rulings, particularly this term, have been characterized by a persistent pattern of concern for groups and society that tend to be associated with the Republican political coalition. The court's rulings have shown very little concern for groups that tend to be associated with the Democratic coalition. At that level, I do think that the Biden v. Texas decision is a surprise. On the other hand, I think that there are two countervailing forces. First, as Emily said, the statute in question here, although it's a bit of a hairshirt for lawyers, given its complexity.

It does have a relatively crisp and clear command that the executive has discretion. You might think that the conservative members of the court are going to keep in mind the future cases in which they will want to give the executive discretion, particularly with respect to immigration matters. The second point that I think blunts the surprise in the MPP case, is that the court decided, earlier this term, two decisions, where it dramatically limited the kind of relief that immigrants in detention could get. It cut off a number of statute-based remedies.

Then it said that immigrants can't get relief on the basis of a class or a group. They have to get relief on the basis of their individual conditions. Given those two decisions that are in the background, the effect of allowing the Biden administration to repeal Remain in Mexico, and to have a more modulated detention-related policy is going to be a buffer. Courts are not going to be able to give immigrants relief in many detention cases.

Arun Venugopal: Important context. Listeners, we can take some calls with your reactions to today's decisions, or if you have questions for my guests, Aziz Huq and Emily Bazelon, just tweet us @BrianLehrer or call us at 212-433-WNYC. That's 212-433-9692. Now, yesterday, the court weighed in on two other cases. One to do with whether a veteran can sue over not getting accommodation at his old job when he returned from Iraq with lung damage from burn pits. That hinged on what's called State Sovereign Immunity. Aziz, I know your recent book is about what's known as qualified immunity.

Different concepts I guess, but did anything strike you about that particular opinion?

Aziz Huq: The opinion you're asking about, Arun, is the Torres case. The outcome of that case is another one of the surprisingly liberal-coded outcomes of the term. The reason for this is that Torres concerned the power of the federal government acting through a statute to allow private individuals to sue a state. As context, the Roberts and Rehnquist courts have dramatically cut back on Congress's power to allow private parties to sue states when it comes to civil rights matters. This case, however, turned on the power of Congress to act in relation to military matters.

A liberal-conservative coalition of the Court said, "When it's a military-related matter, Congress can allow, through statute, a private party to sue the state." This is an exception to the general pattern, which is evident this term as well as previous terms, of the court drawing back, dramatically, the ability of individuals to bring suit against the federal government for being unconstitutionally coerced or violated in their person. It is an exception that might be explained by the fact that it's not civil rights that's an issue per se. It's Congress's power with respect to the military.

The latter might be more appealing to some of the conservative judges who joined the Torres case.

Arun Venugopal: Got it. Now, Emily, the other case dealt with tribal sovereignty and the state's ability to prosecute crimes on reservations. Justice Gorsuch, who has been a big advocate of tribal sovereignty, was joined by the three liberals in dissent. I know, for some Native Americans, it's driven them to great anger, the decision that was taken. Tell us a little about this case, and how much this has walked back an earlier Supreme Court opinion that said state and local governments cannot prosecute crimes on reservations.

Emily Bazelon: This is a really sad set of facts in which someone who is not a Native American abused a child in territory that the Cherokee Nation controls. The question was whether the tribe is sovereign here, and thus can do this prosecution, or whether the prosecution had to be done by the state or the federal government. The majority opinion by Brett Kavanaugh says that someone who's not Native American cannot be prosecuted by the tribe. That is a real curtailment of this increase in sovereignty for Native American tribes that we saw last term.

The reason Justice Gorsuch is angrily in dissent is that he has really been pushing this more sweeping definition of tribal sovereignty in last term in another case called McGirt. In an opinion he wrote, he said that tribal sovereignty really extended to almost half the land in Oklahoma, and that was obviously a big change. This case is dialing back what that actually means in a criminal context.

Arun Venugopal: I saw a tweet by a legal expert who is herself a Native American who referred to this as an act of conquest. Why is this, I guess, angering some Native American advocates, activists, and legal experts so much?

Emily Bazelon: I think if you think of this idea that the court, last term, was giving Native American tribes more power, more sovereignty by extending the expanse of their authority over more land, then you see the court, this term, saying, "No, we didn't mean it, at least not when it comes to criminally prosecuting people." The actual effect in this particular case, this person convicted of child abuse got, I think, a 28-year sentence. Then after the lower courts said, "No, no, the tribe did not have the power to prosecute you." He was re-prosecuted in federal court and received a seven-year sentence.

I think there's the sense that there was a real injustice in this particular case given the really terrible acts he was accused of.

Arun Venugopal: Aziz, looking back now at the decisions last week on guns and abortion, critics have pointed to the irony, I guess you could call it that, that the court is hands-off when it comes to guns and very hands-on when it comes to women's bodies. I think you've written that there's no throughline in the legal reasoning behind those two decisions. That they actually rely on contradictory readings of history to get to their conclusions. Is that what you've concluded?

Aziz Huq: I think a distinctive feature of the court's opinions this term, not just the guns and the abortion case, but also the religion clause cases, is a turn in the court's method. We're all used to calling the conservative members of the court, originalists. Indeed, even Judge Jackson, in her confirmation hearing, called herself an originalist. What we see in the recent high-profile culture war cases is the court talking its originalism toward something that it calls text and tradition.

That is, in these cases, it's looking across the broader sweep of American legal traditions and practices, to reach conclusions about, for example, the permissibility of public carrying, the appropriate treatment of school teachers who pray while on school property at school hours, or the right to reproductive choice in the form of an abortion. Across all of these cases, however, when the court turns to tradition in particular, what characterizes the recent decisions is a selectivity, a choice about which traditions count and which traditions do not.

I think the best example of this is the Dobbs case, which relies upon a history that, in large measure, was written not just by men and voted upon just by men, but written by men who were overtly misogynists. The court here, rather than hewing to some sort of understanding of the constitution or a constitutional provision at the moment that it was enacted, is broadening its lens to encompass all of history, and then picking and choosing winners among historical traditions in ways that reflect outcomes of overtly ideological conflicts today.

Arun Venugopal: Emily, anything to add to that regarding Dobbs?

Emily Bazelon: I think Aziz is exactly right. We see the court turn toward this notion that the only way to interpret the constitution is to look at what is firmly rooted in our nation's history and tradition. They used that language in the religion case, in the abortion case, in the gun safety case, and then they cherry-pick through the history to come up with an outcome that serves conservative ideological ends. It's really hard to read these cases as anything but a kind of repudiation of a more modern, capacious understanding of the constitution that allows concepts like liberty and equality to match our current circumstance.

I think, for a lot of liberals watching this court, you just wonder about what's going to happen next.

Arun Venugopal: Let's take a call. Hugh, you're on the air, calling in from Sussex, New Jersey. What do you have to say, Hugh? A question for our legal experts?

Hugh: Exactly. I was wondering if anybody has heard anything about the possibility of the impeachment of either Kavanaugh or Gorsuch because of their less than honest answers during their pre-appointment hearings?

Arun Venugopal: Emily or Aziz?

Emily Bazelon: I think that there is a sense in which I understand why people feel that Gorsuch and Kavanaugh, and sometimes this is extended to Justice Barrett, were somewhat misleading, but I think if you look carefully at what they said, they said things like, "Roe is the settled law of the land. Roe is an important precedent." They didn't say, "And I promise to keep it that way." It's that future power that they were about to hold that really matters here. I understand the frustration, but I can't imagine seeing either justice impeached over their statements in their hearings.

Arun Venugopal: Anything to add to that, Aziz?

Aziz Huq: I agree with Emily. I would add that the question of impeachment arises in a context in which the Biden administration has, for the last year and a half, tried to underplay, downplay the importance of the courts as policy-making instruments in our national polity. That's what it did with its commission, which had several dozen members, and which predictably reached a report that was longer than anyone but an academic with too much time on their hands to read, and it didn't come out with clear conclusions.

The Biden administration has decelerated political pressure on the courts in a way that is entirely inconsistent with impeachment, and probably has allowed the court some wiggle room, psychologically, at least, to take actions or to write opinions that are more aggressive than we'd otherwise expect.

Arun Venugopal: Emily, I saw where Dahlia Lithwick, writing in Slate, credits Clarence Thomas with a candor in what he wrote, for at least admitting where the logic of the dog's opinion takes him. He thinks same-sex rights and contraception need to be the next to go, anything based on a right to privacy. We only have a minute or two left, but do you agree with her assessment?

Emily Bazelon: I think Thomas is staking out a clear position. It's important to note though that in the next term, at least so far, the docket is about different subjects. It's about affirmative action, which looks very vulnerable. Just today, the Supreme Court agreed to hear an elections case out of North Carolina that could really, really limit the power of state courts and state agencies to make election rules that are making it easier for people to vote as opposed to harder. That's under something called the independent state legislature power and the constitution. It really could change how elections are administered in this country.

Arun Venugopal: Aziz, we just have a few seconds left, but anything to say about Justice Breyer's legacy now that he is officially retiring today?

Aziz Huq: Justice Breyer, I think will be seen as symbolic of an era of the court which took facts seriously, which tried to account for the interests of all sides to controversies, and that genuinely aimed to broker decisions that were compromises, insofar as they reflected the competing interest in law and the competing interest in the world. I fear that none of that could be said now of the court moving forward.

Arun Venugopal: We're going to have to leave it there. Thank you to Aziz Huq, Professor of Law at the University of Chicago School of Law, and Emily Bazelon, staff writer for The New York Times Magazine, co-host of Slate's Political Gabfest podcast, and the Truman Capote Fellow for creative writing and law at Yale Law School. I'm Arun Venugopal, and this is The Brian Lehrer Show on WNYC. Thanks for listening.

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