The Supreme Court is Back in Action

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Brian Lehrer: Brian Lehrer on WNYC. Despite everything else going on, it is the first Monday in October, and that means the Supreme Court starts its new term today. For the first time in almost 30 years, the term starts without Justice Ginsburg on the bench. The rush to confirm president Trump's nominee, Amy Coney Barrett is still on. There was a decision recently that electors from the electoral college are not bound to vote for a winning candidate who then dies, interesting that that took place in a decision this summer.

There are new questions about Trump having potential liability for infecting people in New Jersey last week, as we were discussing in our last segment, after he knew he might have COVID, but didn't tell the people attending his fundraiser. Not much to talk about this morning with Jami Floyd, senior editor of WNYC's Race and Justice Unit and years long Supreme Court watcher here on this show and elsewhere. Good morning, Jami.

Jami Floyd: Hello, Brian.

Brian: The Amy Coney Barrett hearings can be done remotely, we were told by Jonathan Lemire, but the vote by the full Senate, if it gets to that, is a little trickier since the rules require that that be done in-person. Could McConnell lose his majority on this, because a few of the senators have now tested positive for COVID after attending the Coney Barrett event?

Jami: Yes, you are correct as this Jonathan, they can do the hearing itself remotely, but I'd say even that is tricky, because while the hearings can be remote, we know that coronavirus is unpredictable, so it assumes that senators are not so sick that they can't participate remotely, which could be the case since this disease can make some people very, very sick. Others exhibit very mild symptoms. They can keep working, but some people get so sick. They cannot lift their head off the pillow.

We've got two senators, Thom Tillis, North Carolina, Mike Lee, Utah, both testing positive. You're right, Senator Mitch McConnell saying it's full steam ahead with these hearings, but even the remote judiciary committee hearing, I think, is in jeopardy, but let's assume he can manage to do that remotely, nobody else gets sick, nobody gets so sick that they can't participate remotely and nobody, Brian, succumbs, because this is a deadly illness. You're right, once they have to come back to the floor, they've got a vote in-person.

The rules require actual in-person voting for the actual confirmation of Amy Coney Barrett. If these two, Tillis and Lee, senators Tillis and Lee, either are still too sick to come back to the floor, or if any other Senator comes down with the virus, we are now postponed and we don't have enough senators to make the vote on the floor. That is, I would say, somewhat likely, or even probable.

The thing, I think, is quite in jeopardy, I think it's a close call as to whether the Republicans are going to have enough people on the committee to vote, to move her to the full chamber. I think it's also highly likely that Democrats now will be able to delay this and for good reason, we're talking about a life-threatening illness taking some senators out of commission.

Brian: Do you happen to know if Mitch McConnell and his Senate majority could just change the rules to allow senators to vote in absentia? I believe Nancy Pelosi in her House majority changed the rules just this year because of COVID, so House members could vote remotely, I think.

Jami: I didn't work in the Senate, my husband worked in the Senate though, so I asked him this question over the weekend. They can change the rules, Brian, but to change the rules, they have to vote on changing the rules. They run into a sort of a circular problem because they don't have the members, in the judiciary committee they could change the rules, but they don't have the members within the committee to vote, to change the rules within the committee, and then same problem on the floor. It becomes a problem of circular logic. That's my limited understanding of the ways in which the very complicated rules of the Senate work.

Brian: The circular firing squad that engages in circular logic. Let's move on to the implications of when Amy Coney Barrett might be confirmed. If she's confirmed before the election, would she be part of any cases that arise over counting ballots, for example?

Jami: Yes. She could. Now, a lot of this depends on when she's confirmed, and it also depends on whether and how Chief Justice Roberts- also, first of all, it depends on when she's confirmed, it depends on when and how the election case has come down. If you cast your mind back to the year 2000 and Bush versus Gore and the incredible furiosity and flurry of the election decisions that were coming down to the court, several came to the US Supreme Court more than once, and then the final one, I think around December 18th, but a lot of it is the timing of the election cases and the way in which they make their way to the court.

Then there's the way in which Justice Roberts would choose to calendar all of that when and whether Amy Coney Barrett is there, because now unlike the year 2000, we would have a four-four possible split, but then there's the case itself. You're asking about, what would those cases be? The Justice's including Amy Coney Barrett might be asked to resolve disputes that arise after what we know will be a very complicated election day, including any case that might determine who wins, like the court did back in 2000, that was a dispute about the counting of votes cast by punching holes on little computer red cards.

Now we're talking about counting the mail-in ballots or in response to election day disruptions caused by, say, a natural disaster, or state computer system failures, all kinds of things. Even the constant refrain from president Trump's team about the claims of fraud in the mail and voting system. There will be challenges, I would say, from one or both sides that the court will be asked to resolve the question of whether Amy Coney Barrett is there, we've addressed that, and I cannot answer it beyond what I've given you.

Brian: Now, one of the big cases that we know she would be a part of if she's confirmed early enough is another challenge to Obamacare and her judicial record suggests that, constitutionally speaking, she's not a fan. Is that fair to say?

Jami: I think that's fair to say. She's supposed to be asked about it, if and when she ever gets to this hearing virtual or real. Here we are again with Obamacare, quick primmer, the Supreme Court first upheld this case, John Robert's writing rather infamously writing that opinion in 2012. He said that the provision that we're now looking at again was a legitimate exercise of Congress's taxing authority. The provision that said issue is the individual mandate. Then in 2017, the Republicans set that tax penalty that Justice Roberts had upheld at zero.

The red States then argued that the tax was effectively eliminated. They say now that the law cannot be saved, that this is a tax and therefore an unconstitutional effort to require all Americans to obtain something. It's unconstitutional therefore, and a federal judge in Texas has agreed, and then the Fifth Circuit Court of Appeals upheld that ruling, and so that brings us back once again, Brian, where we seem to be every time I speak to you on the first Monday in October to Obamacare.

Amy Coney Barrett has indicated, as most conservative jurists do, that she's not a fan of Obamacare. The problem, I'm just going to say, as a legal analyst, with this constant attack on Obamacare is that it is ironic political activism when conservative jurors are supposed to be against political activism. They criticize judges like Thurgood Marshall and Justice Brennan and judges like Sotomayor on the left for being political activists, but this constant attack on Obamacare is political activism.

If you don't like this law, change it in the legislature, stop attacking it in the courts. The law was passed. It serves Americans, this attack in the courts is just petty political activism. She has indicated that she doesn't like it. There was recently a moot court that she participated in, and the judges on that moot court let it stand, so maybe her activism will not come to the fore when she serves on the US Supreme Court. I really think that this has got to stop because the American people, if they don't like it, can vote in a legislature in the US Capitol, they can strike it down. That is not what they've chosen to do.

Brian: It's an interesting point about the irony with conservative justices usually being the ones who say, "Hey, this was not in the constitution. That's not in the constitution." It certainly was not in the constitution for the originalists to find what kind of health care system it's acceptable to create for the American people. Let's go on to another case. One is a voting rights dispute that they took up Friday over "ballot harvesting" in Arizona and whether it's aimed specifically at Black and Latino voters. Can you describe that case?

Jami: Yes. It's a question about whether ballot harvesting is a commonplace practice. It's out of Arizona. As you say, there are two cases essentially out of Arizona that they're joining. Also happens in other states. The claim is whether this causes election fraud, or whether these policies can be race-neutral. The Ninth Circuit is taking a look at whether or not this threatens ordinary election rules. Now, the DNC, the Democratic National Committee, is asking the justices to stay out of this, claiming that Arizona is simply trying to disenfranchise minority voters, and really wants the court to stay out of the election at this point.

The decision to grant review is really significant, Brian, not only for election law, but also for the emergency election appeals that could come to the court, as we were just discussing, in the weeks leading up to the election. It gives the justices an opportunity, I think, to clarify two areas of uncertainty in voting law, how are they going to weigh the burdens that states are going to impose on voting in this moment, the benefits of this practice, and also whether this section of the voting rights applies to the denial of voting at all.

There's a substantive issue, and there's a procedural issue. The grant of this review also suggest that they are going to get involved in a rather rigorous way in this election that we're about to walk into. The justices clearly regard these questions of voting rights as worthy of their attention. The question is whether or not they will listen to democrats who are asking them not to put their fingers into the pie too much, too early in the process.

Brian: Listeners, if you're just joining us, my guest is our senior editor for Race and Justice, Jami Floyd, on this first day of the Supreme Court's term. It's always the first Monday in October, with the Amy Coney Barrett confirmation process underway, and also with some potential legal liability that I'm going to ask Jami about coming up for the president after his behavior in Bedminster, New Jersey, last week. Our phone number is 646-435-7280, as always, 646-435-7280. Let's take a phone call now from Susan in Astoria. Hi, Susan. You're on WNYC.

Susan: Hi. Good morning. Thank you. My question is, I guess, for the guest, even if the Republican Senate doesn't confirm this Justice Barrett before the election, are they free to confirm her any time up until the inauguration on the 19th or 20th of January, 2021? I'll go off and take your answer on the radio.

Brian: Thank you, Susan.

Jami: Great question. Yes, through this session, they are free to confirm her. As we saw with Merrick Garland, the poor man, his name keeps coming up. [laughs] He will live on, even though he was not confirmed. Yes, they can. Then when a new congress and senate comes in, they lose the opportunity. Whether or not President Trump is reelected, they lose the opportunity to confirm her.

President Trump could nominate her again, then a new congress and, or senate, could confirm, or perhaps not have the votes to confirm her. The nomination would have to be made anew if President Trump were reelected, or, of course, if President Biden were elected, the nomination would fail. It's good through this term, and then, basically, the deck is cleared, and we start all over with the next congress.

Brian: Yes, it's good through this time, which I guess, means it's good through the end of the year, because, I think, the new senate is sworn in just after new years. That's a few weeks before the inauguration. Up until then, can you imagine- this is a political question, not a legal question, but can you imagine if Biden wins and the Democrats win control of the Senate, that the Republicans would go through with this confirmation anyway?

Jami: No, I really can't. [laughs] I really can't. Politics is the art of the possible. I can't quite recall what brilliant person said that. It's a very famous quote. It's not about the legal, and it's not about the theoretical. It really is about what you can get done now. I think that is why Mitch McConnell is wanting to get going on the 12th. Brian, I don't know if I said it, but that hearing, when and if it happens on October 12th, would be just 10 days after the nomination ceremony in the Rose Garden, and inside The White House, by the way, much of it inside, which is why people- I'm going to pause. I'm not an epidemiologist, but people are getting sick.

He's rushing it because he realizes that if he doesn't get it moving by the 12th, it's not going to happen, despite our caller's question about whether in theory it could happen. The art of the possible suggests that he needs to start a week from today or it's not going to happen, because then the vote has to happen, and then we're pretty much out of session thereafter.

Brian: Speaking of people getting sick, do you think that there's the possibility that the president, or even other members of his family, could face liability claims, either civil or criminal? From the reporting, it sounds like he had symptoms already when he went to his Bedminster, New Jersey, event on Thursday, and knew Hope Hicks had tested positive. Of course, he went without a mask.

There were more than 200 people there. This event was partly indoors. You and I had an exchange about this over the weekend. I pointed out a case in New Jersey, an actual case that NPR reported on in May, where a home health aide got criminally charged for exposing an 80-year-old client while she was waiting for a COVID test result which turned out to be positive, because she didn't disclose it to the client.

Jami: There is not a lot of precedent for this kind of thing, but as you say, Brian, there is some. You and I were talking about that case filed in New Jersey recently. I was just discussing it also with our New Jersey editor, Nancy Solomon who's looking into it as well, in which the home health aide stands accused now of failing to self-isolate after she took that coronavirus screening. She is facing criminal charges after five people in the household in which she worked, tested positive for coronavirus. The 80-year-old patient did die of COVID-19.

The aide has been arrested and charged in Camden. The charges are endangering welfare charges. Brian, the case is still working its way through the court, and its early days in COVID in terms of what kinds of cases may arise. Anyone who openly flouts Governor Murphy's stay-at-home order, or the mandated closure of non-essential businesses in retail, where required, is facing possible consequences from the top law enforcement officer Gurbir Grewal. Those really were orders having to do with bars and restaurants, but also large house parties. I could see it applying to a fundraiser like the one we saw in Bedminster.

Brian: Lenny in Teaneck, you're on NWYC with Jami Floyd. Hi, Lenny.

Lenny: Hi, Brian. I have a question for your guest. I'm wondering if the two senators who are ill can resign and whether the committee can then appoint two new members of the committee. I'll take the answer off the air.

Brian: Whether they can resign from the judiciary committee so that McConnell could have his majority to go forward with the hearings with, I guess, is the question.

Jami: He's asking about Senator Thom Tillis of North Carolina and Mike Lee of Utah. The answer is no. It's a very clever question. Thinking like McConnell.

[laughter]

Not in short enough order. Basically, the answer is, again, the art of the possible, and the process would take too long, and the replacement senators-- First of all, I don't think McConnell can replace senators. I think that has to be done within the state, and the process would take too long. We basically have to get moving on confirming Coney Barrett by the time those replacement senators were in place.

Brian: I think that Lenny's question is a little narrower than that, actually, which is, can they resign from the judiciary committee?

Jami: I'll move them up within.

Brian: Exactly.

Jami: Yes, okay, I understand. Again, I mentioned that I did not work on Capitol Hill, but my husband worked for a senator. I asked that very same question this weekend. [laughs] Can't McConnell simply replace members of the judiciary committee as he sees fit? The answer to that is "No." The rules for who sits on the committees are very specific. It has to do with seniority.

They rise up based on their various levels of experience and really a lot to do with power. They select their committees. They're appointed based on what they've done in the Senate. So, no. Mitch McConnell, he has a lot to do with it, but he doesn't just hand-pick and he can't just have Tillis and Lee, even if they were willing to resign, and pop some people into those seats to get this job done. It's just not going to happen.

Brian: Before you go--

Jami: Now that I've said that-

Brian: He'll do it.

Jami: -I'll be back next week to talk about the two replacements. No, that's just not how it works in the Senate. It's very Machiavellian and somewhat Byzantine. The answer is no, but it's an excellent question.

Brian: Before you go, let me get to at least one more Supreme court case that I think is on the dark end, and you can throw in any other one that you have your eye on as their term begins today. Are they going to be tasked with figuring out whether the government has to count non-citizens who are counted in the census, as they figure out the redistricting of the House of Representatives next year?

Jami: My sense of that case is that John Roberts may put that over. What he did last year, you'll remember, Brian, because there's-- Oh, I forgot to mention. They are still remote. The Supreme Court is also still remote this fall, starting today, and they are taking all of their arguments via telephone conference. Anyone who is a geek like me can listen in, so that continues to be a novelty this term. I believe that case, I may be wrong about this, this is one where I am really going out on a limb, he may put that case over. He put a number of cases, he and the other justices put a number of cases over in the spring because of COVID and the remote nature of the arguments.

Some of the cases were put over to now, the fall, which is going to require that some additional cases be put over to the spring or to the next term, 21, 22. No, with the census he can't do that because of the extreme urgency of the case, but I think he may hold at least until Amy Barrett or a new justice, whoever that may be, is in place, because the eight-person Supreme Court is a very difficult one to have vote on such an important matter.

That, I think, we may wait on. There are a couple cases that I do think are critically important to mention. We talked about Obamacare. There's a very terribly important case involving death penalty and juveniles that the court is hearing this month. There also is a case involving the young terrorist who is asking the court to review his habeas petition. I'll bring that up with you again, Brian, when it comes up in argument, and we can talk about it in great detail when the court actually hears the case.

Brian: WNYC senior editor for Race and Justice, Jami Floyd.

 

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