SCOTUS News Roundup: Ethics and Oversight

Brian Lehrer: Brian Lehrer on WNYC, and this is WNYC FM HD and AM New York, WNJT-FM 88.1 Trenton, WNJP 88.5 Sussex, WNJY 89.3 Netcong, and WNJO 90.3 Toms River. We are New York and New Jersey Public Radio and live streaming at wnyc.org. There's a lot of news coming out of the Supreme Court over the last week. Of course, on Friday morning, the country learned of the passing of Sandra Day O'Connor, the first woman to ever sit on the bench.

We'll take some time in this segment to look back on her legacy a little bit, including how she defended on this show what may have been her most controversial decision as a Supreme Court justice. Some of you can probably guess what that was, but something you may have missed about the Supreme Court from last week is a case that seeks to limit our country's administrative bodies of power.

If that sounds kind of dry and wonky, imagine a future in which administrative institutions in our country cannot do the things that they do at the federal government level like, oh, regulate financial markets, oh, decide what goes into our food and medicine, oh, regulate the environment or how we're kept safe in the workplace. More on that coming up. Another case we'll check in on involves the Sackler family and whether or not they're evading justice for their involvement in manufacturing the opioid crisis. That goes to the Supreme Court today.

We'll touch on how at the Senate Judiciary Committee they have subpoenaed Leonard Leo and Harlan Crow, two individuals, as some of you know, embroiled in ethics scandals plaguing justices now on the court, especially Clarence Thomas. Joining us now for the Supreme Court roundup, Kate Shaw, law professor at the Cardozo Law School here in New York.

She's also an ABC Supreme Court contributor and co-host of the Strict Scrutiny podcast. And Andrea Bernstein, journalist and podcast host most recently of We Don't Talk About Leonard from ProPublica and On the Media about the right-wing legal powerhouse, Leonard Leo, and many of you know her previous podcasts Will be Wild about January 6th and Trump, Inc. She's also author of American Oligarchs: The Kushners, The Trumps and the Marriage of Money and Power. Hi, Kate. Hi, Andrea. Welcome back to the show.

Andrea Bernstein: Hey, Brian.

Kate Shaw: Hi, Brian.

Andrea Bernstein: Great to talk to you.

Brian Lehrer: Let's start and let's cue up this Leonard Leo clip. Andrea, you were on the show about a month ago to talk about your podcast diving deep into Leonard Leo's impact on the court and by proxy on American society. Now he's being subpoenaed to testify to the Senate Judiciary Committee, and here's a clip that includes Leo's voice as well as yours from your show on On the Media. This is 40 seconds.

Leonard Leo: State Supreme Courts and state courts are an incredibly important part of the American jurisprudential scene. In fact, one can very ably argue, I think, that state Supreme Courts are in many cases where the rubber really meets the road.

Andrea Bernstein: Leo travels around making speeches and moderating forums.

Leonard Leo: Somewhere in the neighborhood of 95% to 98% of all litigation takes place in the state courts. I dare say that many of you in this room when you're practicing law may end up trying or arguing one of your most important cases, if not your most important case, before a state Supreme Court or in some part of the state court system.

Brian Lehrer: Andrea, Leonard Leo is a right-wing activist, he's a power broker, but why is he being called to testify before the Senate Judiciary Committee?

Andrea Bernstein: The reason he's being called to testify is-- many of your listeners I'm sure are familiar with my colleague at ProPublica, my colleague's reporting on the trips that Samuel Alito, Clarence Thomas have taken with extremely wealthy donors, which they did not disclose. In Clarence Thomas' case, there were lavish vacations, a $100,000 trip to Indonesia, a trip to the Adirondacks at the Upper St. Regis Lake camp of Harlan Crow, and in Samuel Alito's case, a fishing trip in Alaska.

The through line on all these trips, the person who seems to have made the connections between the justices and these extremely wealthy donors is Leonard Leo. In fact, in the case of the Alaska fishing trip, the Justice Samuel Alito trip, there were two billionaires on that trip and Samuel Alito. It seems that they didn't know each other until Leo connected them.

Leo, as we talk about in our podcast, is somebody who is largely unknown to most Americans but has been a fundraiser raising money to promote his right-wing causes and economic conservatism like the administrative state issues that are coming up. People don't really know about him. They don't understand about him, and that seems to be what's motivating the Judiciary Committee is here's a private individual who's had an enormous effect on American jurisprudence, and they want to understand more about this, particularly the trips that he arranged that were not initially disclosed.

Brian Lehrer: The Senate is controlled by Democrats, so I guess that's probably one reason why the Senate Judiciary Committee is calling Leonard Leo while the House, whatever committee that is, is calling Hunter Biden as they're controlled by Republicans. Andrea, not that simple?

Andrea Bernstein: The Senate Judiciary Committee has been extremely cognizant of the fact that the Senate is almost evenly divided. For years, we've been told the Democrats have tried to not really upset the apple cart, and I think it's a measure of how much resistance they've met and how crazy some of the Republicans went and their accusations in trying to block this inquiry that they finally pushed it forward.

They've been talking about these issues for months, and I think they just finally got frustrated, decided that it was the only way they were going to get information. Of course, the electoral clock is ticking. We're almost in 2024. If these issues don't get settled soon, then, of course, everything gets caught up with the elections.

Brian Lehrer: Yes. Kate Shaw, for you as a Supreme Court contributor to ABC News and a Cardozo Law professor, what's the worst that could come of this for the justices and really for the integrity of American Supreme Court decisions? Is there just the appearance of impropriety here as far as you could tell or are actual Supreme Court decisions being bought to any degree?

Kate Shaw: I think it's hard to know. I do think that the reporting that Andrea and our colleagues have done suggests that something is very wrong with the behind-the-scenes activities that the justices are engaging in, and just the distance between these activities and anything that any other public official can permissively engage in, at least without disclosing.

I think there's a question about whether some of these trips might have been permissible, but certainly, I don't think there's much dispute about whether they needed to be disclosed, although the justices have suggested that there are exceptions to disclosure requirements and thus they are able to accept this [unintelligible 00:08:16]. Although exceptions are really meant to be for things like family members or friends you have existing relationships with.

Yes, you can vacation together, of course, you're not disabled from doing that just by virtue of holding public office, but a lot of these, in particular, the Justice Alito trip that Andrea just alluded to, doesn't seem to have been with anyone he even had a pre-existing relationship with. It seems at the very least, these activities are deeply troubling. Their lack of disclosure, to my mind, suggests that justices understood on some level that these looked improper.

I don't think there's any way we will maybe ever know if any particular decisions were influenced because of these relationships or these vacations and activities, but I do think that there is this, at least impression, that the justices are spending a lot of time with highly ideologically motivated donors in these trips arranged by an incredibly and explicitly-- this is Leonard Leo who does not at all conceal his ideological agenda and he's the one putting all of these relationships and trips together. You have to imagine all of that is happening for some reason.

If it's just shoring up the conservative medal of these justices so that they stay the course and issue conservative decisions, that might be at play. It may actually not even be as explicit as that, but there is something untoward at the very least about all of these relationships, and at the least they require disclosure. I think that's a lot of what the Senate is trying to do here.

They're trying to-- I think they want more information. They know what they've read from ProPublica and others, but they would like, I think, additional information because there are holes. I think all of this is probably in service of some effort to actually legislate some more robust disclosure requirements or maybe prohibitions on these activities altogether. Gathering this information is actually an essential antecedent to actually doing some legislation on the topic. I think that's what this is about.

Brian Lehrer: Kate, Andrea mentioned the relationship between Leonard Leo and the kinds of conservative and pro-corporate things that he tries to get justices on the bench to support or tries to pick justices on the basis of thinking they will support and that that's related to this case the Supreme Court heard last week regarding the administrative state.

I want you to come back to this today because I think with all the Middle East news last week and George Santos, this got buried, but its implications are so vast. This is a case simply called Securities and Exchange Commission v. Jarkesy, or Jarkesy, you tell me. Tell everybody, Kate, what this case is and why it has such vast implications.

Kate Shaw: Sure. I think it's actually Jarkesy is the name of the respondent [crosstalk].

Brian Lehrer: [chuckles] None of the above that I gave you as a choice.

Kate Shaw: I only know this because his attorney said that at the oral argument. We've all been mispronouncing it. The case is about essentially what kind of power administrative agencies get to wield. Specifically, this is the SEC and the way it enforces the securities laws when there's been some securities fraud, say, the SEC can either go to federal court or it can initiate proceedings inside the agency.

What it did in this case was initiate agency proceedings. The respondent in this case, the individual who was subject to the enforcement action, basically responded and said the whole way the Securities and Exchange Commission enforces the securities laws is unconstitutional for, not one and not two, but for three distinct reasons because I should have a jury trial by-- the Seventh Amendment of the Constitution guarantees me a jury trial.

There's no jury in the federal agency, and also, this enforcement procedure that I just described, it violates something called the non-delegation doctrine. Congress is essentially giving too much power to federal agencies without enough guidance. Finally, these cases get resolved inside agencies, not by federal judges, but by administrative law judges. Those administrative law judges are in the executive branch, but the president can't totally control them, and so that's unconstitutional.

The arguments are pretty technical, but I think stepping back a little bit, it's basically an argument that a lot of the way that administrative agencies enforce the laws and here it's the securities laws, but as you mentioned, Brian, that could involve everything from environmental laws to food safety, to workplace safety, to agricultural rules and regulations. There are dozens and dozens of agencies that use very similar procedures to the one at issue in this case.

If the court finds that that's unconstitutional, a lot of the way that agencies do the work they do is essential to keeping all of us safe and healthy. Who says agencies do everything perfectly? Of course, they don't, but they're a hugely central part of just American governance today. This is a pretty existential challenge to a lot of that.

Brian Lehrer: There's the constitutional argument. Okay, it's due process, it's democracy. They don't have the same rights under an administrative judge as they do under other kinds of judges, but Andrea, what's the political goal here? Because This isn't about really democracy right and wrong, this is about people's interests. Who is Leonard Leo leading the charge on behalf of in pushing a case like this?

Andrea Bernstein: Well, it all ties together. One of the things we learned in the reporting of our podcast, we spoke to an individual named the Reverend Rob Schenck, who's a former evangelical minister who worked in parallel with Leonard Leo, not closely with him, but he is somebody who worked assiduously to influence Supreme Court justices and then regretted it and has now spoken out to a few people including to us.

He really made the connection to us between the economic conservatives' agenda and the moral conservatives' agenda and how these business leaders don't necessarily have fervent troops to destroy the administrative state or lower taxes or reduce regulations. By raising money from these individuals and tying their causes together, what people like Schenck and Leo have done is harness the fervor of moral conservatives to achieve economic gains.

For Leo, what was really important, what motivated his entry into politics was being anti-abortion. He saw that to achieve his goals, he could cultivate these very rich economic conservatives. Then to tie all of that together and keep their wishes going, what we really got deep down into in our podcast is how you have to create, from Leo's perspective, a self-perpetuating machine to keep getting the justices you want because courts are ultimately minoritarian institutions.

Brian Lehrer: Right. That goes to the clip that we played where he says don't forget about the state courts because so many decisions get made there. We're coming to the end of our time. I want to play one clip of Sandra Day O'Connor from this show back in 2006. Kate, get your quick take. There's been a lot of remembrance, obviously, of Sandra Day O'Connor for being the first woman on the Supreme Court in a trailblazer in that respect, a lot of positive coverage, but there is that decision that was probably the most controversial thing that she ever did when she was the swing voter, you could say, on the court in Bush v. Gore at the end of the 2000 election.

She voted to stop the recount in Florida, which effectively handed the election to George W. Bush. When she was on the show, I asked her if she felt okay about that still.

Sandra Day O’Connor: Florida had the opportunity to recount votes and did, but the court found that the Florida courts were not correctly applying federal law in the election process there. After the decision of our court became final, there were three separate recounts of the votes in the counties that were affected by the decision. Those were conducted by members of the media, and in none of those votes would the result have changed. Indeed, the Florida vote count was as it was very close indeed, but it went in favor of George Bush.

Brian Lehrer: I guess you never second-guessed yourself on that one.

Sandra Day O’Connor: Well, I don't know that I need to.

Brian Lehrer: Kate Shaw, Sandra Day O’Connor in Bush v. Gore.

Kate Shaw: Well, I had not heard that clip, so I'm still processing it. The reason I'm a little surprised is because I think that there was the impression out there that she actually did harbor some regrets about having cast the deciding vote in that five-four opinion that stopped the recount and did hand the presidency to George W. Bush, in part, because it was so out of keeping with her ordinary judicial style.

She deferred to the states, wanted the court to do minimalist decisions. She was very pragmatic. I guess there was a pragmatic component to her vote, which is she thought there was a long, messy road ahead in the court. Stopping it would at least provide an answer to the country that everyone could move on from. The more you read the opinion, the less convincing it is as a piece of judicial craft.

I do think it's hard to not see that as a mar on her otherwise really extraordinary legacy. I think she really was this pragmatic thinker and also had a real modesty about her and her vision of the court as one that was supposed to let the political branches run the show. That's very sorely lacking on this court, which in the administrative law cases we're just talking about but more broadly Dobbs, which I've been on the show to talk to you about before, Brian.

The court has an incredibly expansive conception of its own role in American constitutional democracy, I think, in a really problematic way right now. O'Connor had a very different vision of the court. It's one that I think is really missing right now.

Brian Lehrer: Kate Shaw, law professor at the Cardozo Law School here in New York, ABC Supreme Court contributor, and co-host of the podcast, Strict Scrutiny. Kate, thank you so much.

Kate Shaw: Thank you, Brian

Brian Lehrer: Andrea Bernstein, journalist and podcast host most recently, We Don't Talk About Leonard from ProPublica and On the Media about Leonard Leo. Andrea, thank you.

Andrea Bernstein: Thank you. So great to talk to you.

 

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