SCOTUS Opinion Preview

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Brian Lehrer: Brian Lehrer on WNYC. The US Supreme Court did not issue its highly anticipated decision on Roe versus Wade and abortion rights today. It did not issue its decision on whether legal gun owners in New York and New Jersey have an automatic right to carry their weapons in public. It did not issue a decision on whether President Biden has to keep pandemic-related immigration limits in place even as he lifts almost every other federal measure.

They did not release a decision on whether a football coach for a public school who takes a knee in prayer at the end of every game right on the 50-yard line is violating the First Amendment by being a state-sponsored display of a specific religion that violates the rights of students of other religions since the coach is an authority figure who represents the state.

They did not make a ruling on another state-sponsored religious case on whether parents in parts of Maine, where there apparently aren't enough public schools, can use government vouchers for religious school tuition, or only use the public funds for tuition for private schools that have not established a specific religion.

They did issue decisions today, a unanimous one in fact, and a kind of wonky case of an airport worker in a wage dispute with South West Airlines. They also issued a unanimous opinion led by Justice Sotomayor striking down Congress's bankruptcy fee increase. They held that Medicaid, the Medicaid Act, allows the state to seek reimbursement from settlement payments and lawsuits.

These are not the decisions that you've been sitting on the edge of your seat awaiting, but we're going to talk about them. We're going to preview some of the other ones that I just mentioned that they didn't decide on that have nothing to do with Roe versus Wade.

We welcome Kate Shaw, Cardozo Law School professor and host of the Supreme Court podcast called Strict Scrutiny. You might have also seen her recently as co-author of a New York Times op-ed called We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong. That's the Heller decision in 2008 allowing individual gun ownership rights. Never mind that pesky little clause saying it's about a well-regulated militia.

Thanks for coming on today, Professor Shaw, with so much on the Supreme Court's plate. Welcome back to WNYC.

Kate Shaw: Thank you so much for having me back, Brian.

Brian Lehrer: Let's talk briefly first about the decisions issued today, and then we'll preview some of the ones that may be lesser known to our listeners, but that are important and yet to come. Do you know anything about this bankruptcy fee increase?

Kate Shaw: It's a pretty technical case, the Court handed down a unanimous

opinion, as you mentioned, by Justice Sotomayor. Basically, there's a clause in the Constitution that people probably aren't terribly familiar with that allows Congress to establish uniform laws on the subject of bankruptcies.

The Court here held that a congressional scheme that basically treated a couple of states differently from the rest of the states when it came to these particular fees regarding Bankruptcy trustees wasn't uniform, so violated the uniformity requirement. So not enormous impact, although significant in the context of bankruptcy laws, people in the two exempted states were being treated differently from individuals in bankruptcy proceedings in the other states. The Court said that that's not permissible, uniformity is required.

Brian Lehrer: This ruling holding 72 ruling that the Medicaid Act allows the state to seek reimbursement from settlement payments in lawsuits, is that just because if somebody was injured, let's say in a malpractice case, not just the individual, but the state, which put out money for Medicaid reimbursements, gets some of that money back?

Kate Shaw: Yes, that's exactly right. The case actually involves incredibly tragic facts. This was a teenager who was left in a persistent vegetative state after being struck by a truck after she stepped off of her school bus. Her parents sued and obtained a recovery, and then the state of Florida, basically, then claimed entitlement to part of that recovery. The Court, in a Justice Thomas authored opinion, held however tragic these facts are, there is a federal law that, in fact, does let the state get part of the recovery that the parents of this child obtained. It's not the full recovery, but it's a significant percentage of the recovery-- [crosstalk].

Brian Lehrer: Interesting. I know that's what the private insurance companies do. If you have a lawsuit for damages, first you have to pay back what they laid out because they were harmed too, and then you get to keep whatever else. This last one today, an eight to nothing ruling, Amy Coney Barrett was recused having to do with an airport worker in a wage dispute with Southwest Airlines. Anything worth saying about that?

Kate Shaw: Just worth saying that the Supreme Court has, for years, been very aggressive in enforcing requirements that arbitration be used as opposed to federal lawsuits because of a statute called the Federal Arbitration Act. That's a statute that ordinarily really benefits employers against employees and consumers, and so one of cases, again, the Court has taken this very pro-employer and pro-business reading of the statute, and this actually cuts in the other direction.

This finds that these ramp supervisors who basically said they were entitled to overtime pay they weren't getting can sue in Federal Court, they are not required under this federal statute to pursue arbitration, which is a less public and sometimes less favorable forum in which to get these claims resolved. This is a favorable decision for this category of employees here, just ramp supervisors, but a significant victory nonetheless, particularly in light of the trend of the court recent arbitration cases.

Brian Lehrer: Let's go on to some of these cases that we were waiting for. Let me ask you about your article with John Bash in The Times on the landmark gun rights case known as Heller from 2008 as we await this decision on whether people with any kind of gun license should automatically have a constitutional right to carry that in-person in New York City. It's a New York City case, but your joined headline is, We Clerked for Justices Scalia and Stevens. America Is Getting Heller Wrong. That was the case that held the Second Amendment grants an individual right to bear arms at least in your own home. First, by way of background, what was your role in that case?

Kate Shaw: Sure. I was a clerk to Justice Stevens and my co-author in this op-ed, John, was a clerk to Justice Scalia. When the Court decides the case sometimes, like two of the cases we just talked about, the Court is unanimous, and so there's just one opinion, and sometimes there are concurrences or dissents.

In this case, Justice Scalia wrote the majority opinion and Justice Stevens wrote the lead dissent, Justice Breyer had a separate dissent. I assisted Justice Stevens with the research and some of the drafting of the opinion, which is pretty typical for law clerks assisting their justices with their opinions in cases, and John did the same for Justice Scalia.

This was an incredibly significant case. It was the first time the Supreme Court had decided that the Second Amendment, notwithstanding the language that you quoted, that refers to a well-regulated militia, that notwithstanding that language, the Second Amendment protected an individual right to gun ownership, unconnected to any service in a well-regulated militia.

Justice Stevens, for whom I clerked, took the position that the well-regulated militia language had to mean something, and it basically meant that all the Amendment protected was your right to own a gun in connection to service in a well-regulated militia, but Justice Scalia disagreed about what the Amendment meant.

That case struck down a DC law that had been a total prohibition on owning handguns as inconsistent with the individual right protected by the Second Amendment. Heller, first of all, didn't say anything else about things like carrying guns in public, it was just about owning a gun in your home.

More to the point for the purposes of our op-ed, Heller had a lot of language. Again, this is in a Scalia majority opinion, that said nothing in this opinion throws into question all kinds of gun regulations that are long-standing, prohibitions on possession by felons and the mentally ill, limitations on the kinds of individuals who can commercially purchase firearms, bans on guns in sensitive places like schools. There's a lot of language that seems to embrace reasonable regulation of firearms.

In the 14 years since Heller was decided, it seems like there's been a lot of emphasis on Heller's announcement of an individual right to guns but a lot less recognition of the important qualifying language in Heller that makes clear that there's a lot of latitude to regulate guns, notwithstanding that there is a Second Amendment right to

own, but no constitutional rights are unlimited, they're all subject to regulations.

Brian Lehrer: There could be background checks, there could be a limit on assault weapons purchases probably without running afoul of the Constitution, that doesn't mean that there's the political will right now, but things like that would probably hold up in Court. Could you just answer the well-regulated militia part in a little more detail because callers ask me this all the time, and I really don't have a good answer for them?

First, I'm just going to read the Second Amendment. It's one line, "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." If the founders hung it on the need for a well-regulated militia, and today the US has a standing army and every state has a national guard, how did the Court decide that there's an individual right to bear arms in the absence of a civilian militia, which is no longer needed for the security of a free state?

Kate Shaw: The Justice Scalia majority opinion basically says, of course, that language regarding a militia is in the Amendment and it may be that the reason that the Amendment was included in the Constitution was precisely because there was a fear, this was Steven's key point, but that there was a fear that the federal government would disarm state militias. It was important actually to protect state militias, not to protect individuals, to enshrine this protection in the Constitution. Again, against the federal government to make clear that these state militias would endure.

Scalia says, be that as it may, even if that's why the Amendment was worded the way it was, that doesn't limit the scope of the right announced in the second half of the Amendment. In fact, what the Amendment is more broadly doing is enshrining a preexisting right to gun ownership and to self-defense, one that actually predates the drafting of the Constitution, the founding of the country, there's a lot of citation to English history as early as the 17th century, making clear that subject to lots of limits, there was understood to be a right for at least some members of the population to protect themselves, including with weapons.

There's a lot of pre founding history and founding era history, and then post founding history. Scalia relies very heavily on Court decisions and state constitutional provisions and state statutes, some of them from the mid-19th century that he says reflect an understanding of kind of a fundamental right to gun ownership and that that understanding has to inform the way we read the text of the Second Amendment. Now, you're asking me to channel an opinion, that's the reasoning of my opinion that-

Brian Lehrer: That you disagree with.

Kate Shaw: -I was on the opposite side of. My boss was on the opposite side of, but that is the basic thrust of how Scalia basically reasons around the militia language of the Second Amendment, really limiting the scope of the right that it protects.

Brian Lehrer: Showing that you do your job well as a college professor, teaching the law at a law school, and can explain both sides of the case. I want to go on to another case that the Court is deciding, a decision we're expecting this month that has to do with President Biden's right to use the EPA to establish a climate policy designed to reduce greenhouse gas emissions by half by 2030, which is his policy.

From what I've read, the coal industry is opposing Biden's right but the power industry is supporting it. Do you know enough about this case to understand why the power plant industry would support limiting their own right to generate power using fossil fuels?

Kate Shaw: I think it's a really interesting question. I think that it is striking because most of the time when you have a case like this involving a challenge to an administrative agency's power to regulate, you have the regulated entities objecting, saying, no, you don't have the power because regulated entities prefer to be minimally regulated.

I think it's very interesting in this case that you do have the coal companies on the side of West Virginia and several other states that have challenged this. It's actually the Obama era regulation, not even the Biden regulation, that is squarely at issue in this case, which I'm happy to get into if that's helpful.

More to your point, the rest of the power industry, apart from just coal companies, is actually on the other side of the case. Is on the side of the case that suggests the federal government does have pretty broad authority to limit carbon emissions.

I don't have a complete answer to why that is, except to say, first of all, the power sector has actually already matched and, I think in some instances, overtaken the benchmarks that were set when the Obama administration initially issued this regulation called the Clean Power Plan. That industry is actually already, even without the plan ever going into force, sort of caught up with an overtaken the initial targets that were set.

I think that from the perspective of the industry, it's actually better to have uniform and clear standards because they, I think, too understand that climate change is real and it is serious and industry players individually and in an ad-hoc way, trying to respond, is actually less desirable than some clearly thought out, well-considered, and articulated set of standards that the whole industry needs to abide by. I think that is the basic answer to the question, but it is a very interesting dimension of the case.

Brian Lehrer: There's a lot at stake here for all kinds of regulation, as I understand it, because conservatives are against executive power. After Congress passes a bill, like let's say the Clean Water Act says every American has a right to clean water, then the EPA goes about setting particular regulations for what industry or anybody else would have to meet in order to ensure clean water.

I think that the challenge to this is so broad that whether it's workplace regulations, environmental regulations, whatever it is that Congress would have to go back and make the specific determinations and have those votes, those politicized votes in

Congress over so many little things that the executive branch can do now, right?

Kate Shaw: That's exactly right. I think adopting the theory that West Virginia and the coal companies are advancing in this case, which is a version of something called the major questions doctrine, which basically says that on big, big matters of economic and political consequence, Congress has to be really explicit if it wants to regulate at all. It can't just give an agency a broad delegation of authority to say implement regulations that will produce clean air and clean water.

It has to be much more detailed and exactly the way that you were describing in a way that is just not realistic or viable in the context of what it means to run a legislative process. Congress couldn't possibly legislate the specificity that this doctrine would demand and so I think that what would really happen is Congress just wouldn't regulate at all, which I think is actually the ultimate goal of a lot of the proponents of this theory.

Brian Lehrer: We've got 45 seconds left in the segment. I wonder if you, as somebody who did clerk at the Supreme Court, have a take on who leaked the Roe draft opinion and why, and whether Justice Roberts might be able to get one more person on his side so that they just uphold Mississippi's 15-week limit without throwing out the whole thing, Roe versus Wade. We have 30 seconds.

Kate Shaw: I presume that whoever leaked the draft opinion was worried about just the result that you're describing, which is that Chief Justice Roberts might be able to get a second vote to write something somewhat narrower, upholding the Mississippi law, but deferring the ultimate fate of Roe to another day and thought that leaking the opinion would head off that possibility and lock in the majority.

Brian Lehrer: Wow, so it would be the anti-Roe side in that scenario-- [crosstalk]

Kate Shaw: That's my guess. Yes.

Brian Lehrer: Kate Shaw, Cardozo Law School professor and host of the Supreme Court podcast called Strict Scrutiny, always good to have you. Thank you very much.

Kate Shaw: Thank you so much for having me.

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