• We The People Podcast

Supreme Court 2021-22 Term Preview

September 30, 2021

Monday, October 4, will be the first day of oral arguments in the new 2021-22 Supreme Court term. On this week’s episode, Supreme Court journalists Kimberly Atkins Stohr of Boston Globe Opinion and Jess Bravin of The Wall Street Journal join host Jeffrey Rosen to preview the forthcoming term’s blockbuster cases on issues including abortion, religion, guns, free speech, state secrets, and more. Cases discussed include:

  • New York State Rifle & Pistol Association, Inc. v. Bruen
  • Dobbs v. Jackson Women’s Health Organization
  • Houston Community College System v. Wilson
  • Carson v. Makin
  • City of Austin, Texas v. Reagan Nat’l Advertising of Texas
  • United States v. Vaello-Madero
  • United States v. Tsarnaev
  • United States v. Zubaydah
  • Federal Bureau of Investigation v. Fazaga
  • Ramirez v. Collier
  • Students for Fair Admissions v. Harvard

FULL PODCAST

This episode was produced by Jackie McDermott and engineered by David Stotz. Research was provided by Michael Esposito, Chase Hanson, and Lana Ulrich.

PARTICIPANTS

Kimberly Atkins Stohr is a senior opinion writer and columnist for Boston Globe Opinion, and a co-host of the podcast #SistersInLaw. Kim is also the inaugural columnist for The Emancipator, an antiracist multimedia project, and an MSNBC contributor.

Jess Bravin is Supreme Court correspondent at The Wall Street Journal, where he was previously United Nations correspondent and editor of the WSJ/California weekly. He was previously a reporter for the LA Times and is the author of several books.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

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TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

 [00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On Monday, October 4th, the Supreme Court begins its new term. Here to preview the blockbuster cases of the forthcoming term are two of America's leading Supreme Court commentators. Kimberly Atkins Stohr is the senior opinion writer and columnist for Boston Globe Opinion. She's also cohost of the podcast Sisters in Law. Also, Kim is the inaugural columnist for the Emancipator, and an MSNBC contributor Kim, it is wonderful to have you on We the People.

[00:00:54] Kimberly Atkins Stohr: Thank you for having me. I'm excited to be here.

[00:00:57] Jeffrey Rosen: And Jess Bravin is Supreme Court correspondent at the Wall Street Journal, where he was previously United Nations correspondent and editor of the WSJ California weekly. He was previously a reporter for the LA Times, is the author of several books, and a great friend of We the People. Jess, it is wonderful to have you back.

[00:01:14] Jess Bravin: It's always a delight.

[00:01:15] Jeffrey Rosen: Let's begin with a case that the court is hearing during the first week of the new term, and that's United States versus Zubaydah, involving state secrets. Jess, tell us what's at stake in the case and what are the main legal arguments we should be looking for.

[00:01:31] Jess Bravin: There's a detainee at Guantanamo Bay whose nom de guerre is Abu Zubaydah. But before he was brought to Guantanamo Bay, he was brought to a CIA black site in Poland, where he was by all accounts, tortured. Water boarded and many other very abusive techniques were used to attempt to get him to, to talk. He later was transferred to Guantanamo Bay after the CIA closed that black site. In in Europe, the European Court of Human Rights ruled that Poland apparently violated its obligations to the European Union by permitting the CIA to operate a black site where there torture was inflicted on detainees. And authorized Zubaydah to file a lawsuit against the Polish authorities, which he has done.

For evidence, Zubaydah wants depositions from CIA contractors who designed and inflicted the torture two former Air Force psychologists who put that interrogation program together. The United States does not want those contractors to testify in this civil lawsuit against Polish authorities, and it has invoked the state secrets privilege, which dates back to the 1950s. In which the government asserts that there would be two great of a threat to national security to permit certain evidence to be introduced into court and therefore can exclude it, even if the consequence is dismissal of the case.

Now it's not clear that this case would be dismissed. It's actually going on in a, in a foreign court. The United States has, of course, agreements with Poland and other countries to exchange evidence for legitimate court proceedings, no one contests that the court proceeding itself is legitimate under Polish and European law. The question is whether the the two CIA contractors can be compelled to submit for these depositions.

One interesting element though is that the state secrets that are at issue aren't really secret in the real world. For example it's well known that Poland was host to a CIA black site, since the European Court of Human Rights has written an opinion about this very fact. But the United States contends that being forced to officially recognize or allowing its foreign contractors to officially recognize this fact could be damaging to national security in, in the future.

[00:03:56] Jeffrey Rosen: Thank you so much for that. So Kim has just the case up. It sounds like the respondents are saying the state secrets privilege doesn't apply 'cause this information isn't secret. The petitioners say that it does apply, and therefore CIA should be able to claim it, and the question is whether the court can itself make an assessment of potential harms and require discovery based on its evaluation of the dangers. Wha- what, what can you add to Jess's setup of the case, and how are the justices likely to balance those competing arguments?

[00:04:32] Kimberly Atkins Stohr: Yeah, I mean, it's, it's really interesting. It's one of the most difficult things to try to say. You know, no, we should give the courts less discretion in these cases is the determination as, as to whether something presents a serious risk to national security. I mean, that so far, that has been sort of a a trump card. That phrase always seems different now. But sort of a, a, a very strong interest that the that is being asserted in these cases where this privilege is used.

But i- is it, you know, is it limitless? And I think this, if there is a case where the court has some room here to say, "Well, you know what? No, it's one where the facts are as clear as they are," in that, as Jess pointed out, this isn't a secret. So I think, i- if the court is willing to go that way. It's hard to tell because the court doesn't take up a ton of state secrets cases, so it's not like it's a big body of recent decisions to, to look at, to sort of read tea leaves here. But it's one that I'm gonna be watching as an observer very closely to see how they come out.

[00:05:37] Jeffrey Rosen: Thank you very much for that. Well, soon after, at the beginning of November, the court will hear New York State Rifle and Pistol Association versus Bruen. This is a big Second Amendment case that has the potential to change the way the court evaluates Second Amendment cases. Jess, tell us what's at stake in this case how the court is evaluating cases now, and what new approach it might adopt.

[00:06:02] Jess Bravin: Well we all recall that in 2008, and, and in 2010, the Supreme Court for the first time, recognized an individual right to armed self-defense under the Second Amendment. But those cases only extended to the, the facts, and the facts involved keeping a handgun inside the home for self-defense. Since then, the Supreme Court has been quite trepidatious about saying how far that Second Amendment right to armed self-defense extends, including whether it extends outside the the home or, or, or the curtilage being a good Supreme Court word that refers to the, the grounds around a house.

But and, and, and this reluctance was, was criticized by some members of the court. Justice Thomas, Justice Alito among them had criticized the court's turning away appeals from lower court decisions that for the most part had upheld gun regulations under a, a, a kind of balancing test. The the, the court accepted this case after the composition changed, and it grew more conservative by most accounts with the addition of Amy Coney Barrett in the seat once held by, by Ruth Bader Ginsburg. And it asks the question of whether a New York State law involving the issuance of concealed weapons permits is consistent with the Second Amendment.

Pretty much under New York State law one can't have a concealed weapon permit without demonstrating to local law authorities a specific need to carry a, a, a firearm with you. The, the... A general concern that it might not be safe to walk the, the, the streets of Rochester or Yonkers is not enough. You have to demonstrate to the local authority. And that's the scheme that's being challenged by the New York State Affiliate of the National Rifle Association, and, and some, some state resident gun owners.

One of the questions that we'll be looking for is going to be what approach the court uses. Is it going to, or is a majority of the court going to use the sort of balancing test that most federal appeals have used in Second Amendment cases, or is it going to a- adopt a approach that Justice Kavanaugh and, and Justice Barrett have shown some sympathy for in their days as, as appellate judges, which is looking at what they consider to be the text and, and history, and, and tradition of the Second Amendment right as exercised at, at, at the founding and in thereafter.

And of course even if one does adopt their approach there's going to be some debate perhaps of what exactly the text and the history and the tradition tell us today in, in 2021, when it comes to issuing concealed weapons permits. But but all of us who have been waiting to see a- another shoe drop when it comes to developing Second Amendment jurisprudence are, are gonna wa- watch this case quite closely.

[00:08:50] Jeffrey Rosen: Thank you for that. In your setup piece on the case for the Wall Street Journal, you quoted Justice Kavanaugh's dissent where he wrote in 2011, "The courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test that weighs the restriction in relation to its justification." And you note that Justice Barrett in 2019 adopted a similar position. Kim, if the court were to adopt this new standard, what would it mean in practice? Some have described it as a kind of strict scrutiny for gun regulations, as opposed to intermediate scrutiny, but others see things differently. And, and what laws in addition to the one that's at issue here might be vulnerable if the court adopts this new approach?

[00:09:35] Kimberly Atkins Stohr: Yeah, I- I really am expecting the court to adopt to really dramatically expand the Second Amendment with this ruling and basically extend Heller the ruling that Jess talked about that established that individual right to have a firearm outside of the home. That seems to be what Justice Kavanaugh is really begging for. I mean, he in a dissent to a- and an order, basically said, "Bring it on. Like, we think that these... I think that these courts are, are applying Heller wrong, and I can't wait for an opportunity to [laughs] you know, take it up." I'm paraphrasing him. He didn't say all that, but that was essentially the gist of what he said.

At that point one of the, I think now there about seven laws that mirror this New York State law, which covers of millions of people. We're talking big metropolises. New York City, Boston, San Francisco. That's a lot of places. So don't be fooled by it's just seven states. Millions and millions of people that these laws would apply to. And what it would really mean would be a wearing away of this limitator that Anthony Kennedy put in that Heller decision. That Heller decision would have been even broader if Anthony Kennedy didn't insist in order to be part of that 5-4 that that opinion include a, a part that basically says, you know, "Some reasonable gun regulations can still exist under this analysis." And tried to limit it a little bit. It seems that that limit may be whittled away a great deal because this is one of the most basic limitations basic regulations that to carry a gun outside of your house you have to give a reason.

Now, of course, folks on the other side says, "It's too arbitrary. It leaves it, the decision making to individual folks, you know, and local officials who can decide whether you can carry this gun outside the house or not." But at a time when gun violence, even in the pandemic, every other kind of crime dropped. Gun violence went up. It's a real big stain interest that I think even if strict scrutiny is applied here there is room for the court to find that these regulations are narrowly tailored to it, but I don't expect, by what the, these justices have said so far, that that's gonna be the ultimate outcome.

[00:11:43] Jeffrey Rosen: Thanks so much for that. Well, let's now turn to the abortion case. Dobbs versus Jackson Women's Health Organization, which is argued on December 1st. What the court will do with Roe v. Wade is one of the great constitutional questions of our time. None of us knows. But I would be grateful for your thoughts about how justices who may have disagreed with Roe as a original matter but are not show whether to overturn it will evaluate the question of precedent.

The three tests for precedent are has a precedent become unworkable? Are there changed facts and circumstances? And are their reliance interests that have developed around it? Jess, as you think about Chief Justice Roberts and perhaps Justice Kavanaugh applying that test about precedent, how do you imagine they might come out?

[00:12:36] Jess Bravin: Well, those three elements, of course are, like, every other [laughs] test of the Supreme Court. Subject to some debate over how to apply them. Whether Roe v. Wade, and, and, and maybe more specifically Planned Parenthood versus Casey, a 1992 case, which narrowed, but did not eliminate the, the rights articulated in, in Roe. Are unworkable sort of depends on whether you want the abor- abortion rights to exist at all.

So certainly the State of Mississippi, which passed the law we're talking about here, that bans abortions after 15 weeks considers and says quite clearly in its brief that Roe is unworkable. And that furthermore that newer understandings of the origins of life mean that we should reevaluate the basis of Roe. And then, you know, those, those seem to be hard to I think come up with any conclusions about how workable or what, how new the knowledge is.

Reliance may be the most interesting area that we talk about when this case comes forward because what, whose reliance, and, and, and what exactly is being relied on when we look at, at Roe versus Wade. Now some cases, when we talk about a reliance interest i- it, it's pretty clear that there are longterm investments that are made assuming that certain aspects of laws, you know, when someone can declare bankruptcy or you know, what what you know, what, what kind of disclosures a corporate leader has to give in, in terms of stocks and shares. Tho- those sort of reliance interests are, are, are, are relatively easy to identify.

The reliance interests, have, in Roe v. Wade and Planned Parenthood versus Casey depend a lot on, on what, I- I think on what scale one is looking at the reliance. From the government's point of view, I'm talking about the Biden administration, and the views of abortion providers, and, and sort of the, the ACLU and other, other interests who favor abortion rights, the reliance interest is essentially a generation of women, basically all women of, of childbearing age in the United States today growing up with the understanding that there is a constitutional right to abortion at least under some circumstances, particularly at the early stages of pregnancy.

Another way to look at the reliance interest, which is where the opponents of Roe would say is that, well, the reliance interest lasts basically nine months because that's the length of a, of a, of a pregnancy. And and that people will know that they are not guaranteed access in every state to abortion at some point. You know, well before a pregnancy could, could begin. So, you know, the reli- how, how much time you know is involved in asserting the reliance interest I think may be of some debate within the, within the Supreme Court.

[00:15:21] Jeffrey Rosen: Thank you for the, the thoughtful analysis. Kim, if Chief Justice Roberts does find five votes to formally avoid overturning Roe while perhaps upholding the Mississippi law, what might the opinion look like? How, and how would you analyze those three factors about when precedent should be overturned?

[00:15:43] Kimberly Atkins Stohr: Yeah, I mean, I, I, I agree with a lot of what Jess said. I think on the reliance issue it's even greater than that. It's the reliance of an entire healthcare system that has this as a potential lifesaving procedure that can be given to women in the event that something goes wrong with their pre- pregnancy, for example. I mean, you look at the reliance issue interest in making sure healthcare remains equitable, and you have, you know, black women, and, and indigenous women of America who are three times as likely to suffer a complication in pregnancy that ends in their death.

You have people who don't have a- you'll have still people who don't have access. I mean, getting back to the workability part of it. Will Roe v. Wade will still essentially be in action in half the country? Just not in the other half. It's working in some places and not in others. But in terms of what the court might do, how it might thread this needle, I think it will be really hard for the court to issue an opinion.

So essentially one of two, one of three things can happen here. The court could strike down this Mississippi law as violative of Roe v. Wade. We can both... We seem to think that's unlikely. They can say, "Okay, we don't have to overturn Roe versus Wade. We think that this law passes the, the test, that this is not an undue burden on women by passing this law." There may be a way to stretch it to say that, to get the five, and for Chief the Chief Justice who I'm told would really doesn't want that headline, "The Supreme Court overturned Roe v. Wade," to do that.

It's harder to do with this Texas law waiting down the pike, that not only outlaws abortion after six weeks, but deputizes citizens to enforce it. That's heading right up. So i- it's- would be difficult to say, "All right, this, 15 weeks is okay, but what about eight?" I- I think that that may incentivize at least five members of the court, if they do want to get rid of Roe v. Wade just to do it in the Dobbs case and then the, the, the job is done. So I mean, those are the potential outcomes. I don't feel hopeful, given the Texan law that will be challenged that is already... The petition's already been filed that is coming up the pike. That, when it comes to the side that wants to keep Roe the law of the land, I think the ways that that could possibly happen are, are really slimming.

[00:17:58] Jeffrey Rosen: Thank you for that. One more question on this important case. Justice Breyer, Barrett, and Thomas have recently given speeches urging the public not to view the court as political and emphasizing that they rule based on their judicial philosophies, rather than partisan politics. To what degree do you think concerns about maintaining the court's legitimacy might play a role in some of the justices' decisions, perhaps Chief Justice Roberts and, and Justice Kavanaugh, and I wonder if it might affect others.

And I wonder what you think about the memo to Justice David Souter that Josh, or, former colleague Joshua Prager recently published. Souter's law clerk, when the court was deciding whether or not to overturn Roe in 1992, wrote, "If Roe is overturned, the public will understand that the court's reversal is explainable solely by reason of changes in the composition of the court." And he went on to say that, "I'm convinced that it's now impossible for the court to overrule Roe without doing serious damage to both the public standing of the court and the ideal of the rule of law." Might similar arguments weigh on any of the swing justices today, Jess?

[00:19:17] Jess Bravin: Well, those arguments I think will weight on the, on the Chief Justice. I mean, he's, he's indicated as much that as he did in, in the last abortion case that the court decided involving the Louisiana admitting privileges law that even though he had dissented from a similar Texas case, he then voted to strike down the Louisiana law because he felt that the rules of precedent required it, and the legitimacy... I don't know if he used that term in, in his opinion. But those, that, that as opposed to the substance of the decision guided him.

I think though that legitimacy of the court can cut different ways. For the, for the most conservative justices, the court's legitimacy was damaged by Roe v. Wade, and they view overruling it as a way to restore legitimacy. And for the many, many, many people who voted for conservative presidents who quite explicitly, such as former President Trump, said they were going to appoint justices who would overrule Roe v. Wade. That's what they want. That is the legitimacy in their minds that they are, are seeking. So how that applies to the Chief and then also to a degree to Justice Kavanaugh and Justice Barret, we suspect, will be I think the, the key consideration.

I wonder though if I can say one more thing. Because there is one way where the court could take a half step without explicitly overruling Casey, and Roe v. Wade. And that would be the line that Mississippi is actually challenging, and that is viability as the real bright line between a woman's right to terminate pregnancy, and the state's power from preventing her from doing so. So the line has been fetal viability outside the womb. Mississippi is basically pushing that back by a week or so and saying, "We want to eliminate that as the real dividing line when it comes to whose interests predominate, when in abortion." It is possible that the Supreme Court could say that viability no longer is a legitimate dividing line without explicitly overruling Roe versus Wade.

[00:21:32] Jeffrey Rosen: Kim, your thoughts on this question of legitimacy, the degree of which it will weigh on Chief Justice Roberts, Justice Kavanaugh, Justice Barrett or other justices, and also what you think the effect on the court's legitimacy would be if the court does overturn Roe.

[00:21:47] Kimberly Atkins Stohr: Yeah, I think that the point, particularly the point that you made at the beginning of this question about the only thing changing, right? Which is the second factor in stare decisis analysis. The only thing that has changed is the makeup of the court, and I remember the first day I covered the Supreme Court, actually they handed down the decision in Gonzales v. Carhart, which upheld the federal so-called partial birth abortion law, and Ruth Bader Ginsburg, in a very fiery dissent from the bench, one of many that she would end up making during that era, said that the early thing that had changed since Roe and Chase and Casey was the makeup of the court, and this is the first time that the court had rolled it back.

I rem- It was just such a a shocking and unexpected thing to happen on that first day, and I'll never forget it, and that certainly been the case ever since. The more the court changes, the more Roe is threatened. And it's very difficult for members of the public, regardless of what side their on, to see that direct correlation, and it's really hard for any of the justices to say, "No, we're- It's not ideology. It's not- We're just, we're just applying the law faithfully." It's harder and harder for members of the public to believe that, and I think they all know that. The question is whether they care.

I think to some extent the Chief Justice have- has expressed some concern about the legitimacy of the court. But when you have the other justices that you talked about particularly someone like Justice Barrett expressing this concern while at the same time standing next to Mitch McConnell at the McConnell Center, [laughs] giving this, you know, giving this speech, it's hard to take that concern seriously or take that claim seriously, and the public sees that too.

[00:23:20] Jeffrey Rosen: Well, let us turn from abortion to religion. There are at least two cases with important implications for the religion clauses of the First Amendment. And the first one is Carson versus Macon, and the question is, can the State of Maine prohibit students who participate in a generally available student aide program from using the aide to attend schools that provide religious instruction with violating the religion clauses? This jumps on the Espinoza case that the court decided recently. Jess, tell us about what's going on, and what the stakes are.

[00:23:53] Jess Bravin: Well, the Supreme Court has been expanding the deference to religious exercise over the past several years. Sometimes with very broad majorities, including the more liberal justices, sometimes more narrowly. This is the latest in a case in a long running effort by religious conservative to open religious schools to public aid, to get state support for religious schools. Something which had been largely prohibited under pri- previous precedents.

Maine is an interesting case because like the other states, it does guarantee a free public education to all the children in the state. But it doesn't have enough public schools to do that. Maine is a sparsely populated state, and about half of what the state calls school administrative units I guess the equivalent of school districts, don't actually have any schools in them. So those... or public schools, at least. So those school administrative units, or school districts arrange for public education through other means. They either contract with other school districts to educate the children in their areas, or they provide tuition reimbursement or contract with private schools to provide that free public education.

Here the challenge is to the state law that requires schools receiving this the- this tuition money, this tax money be nonsectarian. And it is essentially the next step from the Espinoza case that you just mentioned, Jeff. In that case, the state of Montana had a very limited program to allow tuition subsidies, fairly low tuition subsidies for private schools and the state's Supreme Court had said that the whole program was not valid because it because religious schools were able to get access to that money, and the US Supreme Court said, "No, you can't you, state Supreme Court, you can't abolish the entire program on that grounds just because religious schools may be able to get some of that fairly modest tuition support from the, from the State of Montana."

The Maine situation is different because it's not just sort of a supplement or adjunct to the secular public education system which as it was in Montana. But it actually is the secular public education system because these school administrative units, as they're called, don't operate any schools. And so the State of Maine says, "We're not the same as the situation in Espinoza because what we are doing is accomplishing through contracting the exact same thing we would if we were operating the public school ourselves. And no one says that we, the State of Maine, have to operate a religious public school. In fact, it's exactly the opposite. We can't operate a religious public school. So our program is not like the tuition assistance program that the court discussed in Espinoza."

But the, the parents who want to use the the state funds to go to religious schools say, "Your just discriminating against religious schools." I mean, the, the, the school's academic qualifications is not at issue. They are you know, sufficiently accredited as to meet the state's requirements for you know, curriculum and so on. The, but they also want the religious education and the religious environment that certain schools would also provide, and they say, "You're just, you know, the academics are all, are, are, are satisfactory. You're just excluding schools because of the religious content, and that is discriminating against us because of, of our religion."

So that's the question before the the Supreme Court, and whether the court views this Maine situation as being essentially Maine carrying out its public school mission through contracting because of population issues, or whether it sees it as through the, another angle, as just, you're just excluding religious schools for no reason other than the fact that they're religious, and that is discrimination that the Constitution won't abide.

[00:27:57] Jeffrey Rosen: Thank you very much for that and for explaining so clearly the, the distinction with the Montana decision, a- as you say and as Chief Justice Roberts emphasized in Montana that decision turned on the school's religious status as religious schools, rather than on their curriculums, and Chief Justice Roberts said there may be a difference between an institution's religious identity and its conduct. He said, "We acknowledge that point. We- but we don't examine it here." And it, as it turns out, that's the very point that a three judge panel of the First Circuit, which included retired Supreme Court, Court Justice David Souter invoked. He s- sat by designation in this First Circuit case, and he distinguished Espinoza from Maine on the grounds that what was being subsidized was not religious instruction in Espinoza, and that could be the case here.

So an important case there are competing precedents on both sides, sort of all over the place, and as you say, Jess, this is an area where the court's been increasingly active. Kim, how do you think the court will [laughs] address this, this ra- rather fine distinction between a- a school's status and its curriculum, and, and, and more broadly how- how will this fit into the way the court is showing increasing solicitude for the First Amendment rights of free- of free exercise?

[00:29:14] Kimberly Atkins Stohr: Yeah, this is such an interesting case because generally speaking, I always say this is a pro-First Amendment court. The court is very protective of First Amendment rights. Well, here you have two First Amendment rights that are competing. You have the Establishment Clause versus the Free Exercise Clause, and they're battling out, and there's that tension. But we have seen the court really dramatically expand its Free Exercise protections in recent years. We've seen it do it even when it's not in session with all of these shadow docket cases involving challenges by churches against COVID restrictions on gathering and the court being very favorable to- to granting those orders in favor of those churches.

On this claim we've seen increasing Free Exercise claims being made against, you know, laws f- seeking e- exemptions and exceptions to anti-discrimination laws. We- we've really seen that that's where the energy and the growth is, and I think that plus this Espinoza case makes it really... if I had to read tea leaves, I would say it would, it, the, the onus is probably gonna be on Maine to really defend this ban on the use of this, especially situationally, given that for some of these students, you can say, where else can they go, and you're really denying them the ability to use this subsidy to, to educate their children in a way that because the closest school maybe a religious school, and it may not be because of religion that you want to send your child there.

But I am m- more broadly, you know, watching the expansi- the expansion of this Free Exercise protection. Because as I said before, it can apply to so many other places, and it seems to be an area where the court is really really flexing its muscle.

[00:30:54] Jeffrey Rosen: Thank you very much for that. Let's turn now to another important case with Fr- Free Exercise dimensions. It's the Ramirez case, which you wrote about recently Jess. The Supreme Court blocked Texas's execution for an inmate who wanted a pastor's touch, was the evocative headline of your piece. Tell- tell us what's at issue in this case.

[00:31:18] Jess Bravin: Well, I have to say, you know, reporters usually don't write headlines, and that one wasn't mine, so let's, let's hear it for the, the copy desk in, in in writing that evocative phrase. This is Free Exercise at the other spectrum, not for in young and innocent children with their lives ahead of them, but for a convicted killer with his life about to end. Two years ago or so, the Supreme Court had a very contentious series of emergency orders involving the religious right's both rights with a G-H, and rites with a T-E that condemned inmates had at the very last moments of their lives in the execution chamber, and whether they could be accompanied by a pastor or imam or, or spiritual counselor in the, the room where they're being put to death.

And ultimately the court after questions about whether they treated Muslim and Buddhist inmates as favorably as, as Christian inmates were, were, were treated in their final moments seemed to suggest that that the state would have to meet a very high burden to justify excluding a religious counselor or spiritual advisor, pastor from the execution chamber as the inmate was put to death.

In Mr. Ramirez's case he argues that his particular brand of, of of, of of, of Baptist religion involves a laying on of hands. There's a citation from the New Testament about laying on of hands as a, as a spiritual act, and his pastor would like to stand by him in the execution chamber and touch him and utter some prayers or hymns as Mr. Ramirez is injected with lethal narcotics for his crimes.

The state does not want to do that and says that the presence of the pastor could be, or at least the, the physical touch of the pastor could be disruptive, as could the prayers or, or, or, or hymns. And that the pastor must be limited to standing silently in the corner in the execution chamber, not being able to take these more affirmative steps to guide Mr. Ramirez to his next place.

The... Ramirez's lawyer says essentially the state says the pastor can do nothing more than be a potted plant in the, in the corner of the room. The state says that, you know, executions are very sensitive procedures, and they can't afford the risk of disruption and they need to be able to proceed quite deliberately in, in taking the inmate's life.

So the Supreme Court did block the execution from going forward under as Texas has planned. But it is interesting that it ordered a very rapid briefing schedule and accelerated the argument to, to the November sitting. Normally given when the court agreed to hear this case, it would have been scheduled much later in the term. So it suggests that perhaps some members of the court who are frustrated with what they view as stalling tactics by death penalty opponents, and, and condemned inmates, and sort of gaming the- the system to delay executions, they were willing to entertain Mr. Ramirez's claim, but not in a way that would overly delay his execution. So they put it ahead of other cases, so they could give their answer, and he could be put to death whether with or without his pastor's touch in, in fairly rapid order.

[00:34:42] Jeffrey Rosen: This a- as you wrote in your piece, is a case decided under the Federal Religious Land Use and Institutional Persons Act, which bans prison policies that substantially burdens an inmate's religious exercises, unless they're the least restrictive way to achieve a compelling governmental interest. Kim, whe- in- in evaluating this case, which, which has such powerful facts, as well as the case involving the Buddhist inmate recently, do you think the justices are simply applying the statute, or are they seem to be motivated by background concerns about the constitutional protections for free exercise, that they're balancing against their more general reluctance to impose limits on the death penalty under the Eighth Amendment?

[00:35:27] Kimberly Atkins Stohr: Yeah, I think that that, this case is a key test to really see where the justices are on this. If there is that continued expansion that we've been talking about, about this free exercise right. Even when it bumps up against other really important interests. I mean, the government says they have an interest in making sure that the process of carrying out an execution is orderly that it is... You need it to be quiet so that you know you can hear the processes taking place. You, you, you know what's happening in there. It can be a safety concern. And certainly we have seen in recent years the very serious Eighth Amendment questions raised about executions and the way they've been administered, and particularly with lethal injections that you know, the federal lethal injections were halted for over a decade while the Justice Department studied how this was being carried out.

A lot of times the, the inmates were in pain, and, and clearly suffering during this process, and if the state is saying, "Look, we need quiet in there. We need order in there to make sure that's not happening." I think that's a fairly compelling reason. But again, we'll have to see in this balancing where the court, where the court has come- where the court will come down. I think this will be a telling case.

[00:36:42] Jeffrey Rosen: There's one more very high profile death penalty case on the docket, and that is United States versus Tsarnaev, which arises out of the conviction of the perpetrator of the Boston Marathon bombings. Jess, tell us about that case.

[00:36:59] Jess Bravin: Well two two brothers Tamerlan and Dzhokhar Tsarnaev were involved in this horrific terror attack on the Boston Marathon and Tamerlan was killed with, by police but his younger brother survived, was convicted, and sentenced to death by federal court in Massachusetts.

The First Circuit Court of Appeals overturned the death sentence that Tsarnaev received because it concluded that the trial judge had not adequately vetted the jurors for possible prejudice based on the very, very extensive and understandable news coverage of the crimes and their aftermath in Boston. And so the appeals court concluded that he hadn't gotten a fair trial, and reduced his sentence to life imprisonment. The Justice Department appealed and they are asking that the Supreme Court reinstate the death sentence and can- arguing that the trial judge did take all the necessary steps to protect Tsarnaev's fair trial rights.

One of the interesting things, though, that, you know picking up from, from, from Kimberly's remarks is that you have the Biden administration arguing to reinstate a death sentence while President Biden himself has said he opposes the death penalty, would like to see the federal death penalty repealed, would like states to repeal their own death penalties, and that his attorney general, Merrick Garland, has imposed a moratorium on federal executions. And we understand that the Justice Department is not presently seeking death sentences in its, in its pending cases. So why are they doing this? Why are they purs- trying to get Tsarnaev back on, on death row?

And the, I mean, the reason may be that the, the prosecutors have other interests that they want to see vindicated. They don't want there to be too high standards for fair trials when it comes to vetting jurors. And when I say too high, I'm not trying to be I'm not trying [laughs] suggest that prosecutors don't want fair trials. I'm saying that they don't want the standards to be so high that they can easily be abridged or aviolated and require new sentencing, or, or new proceedings.

So that may be what is going on in this case. The prosecution's just don't want a harder rule that they have to comply with when it comes to voir dire, and, and, and juror qualification. But it does have a, a, you know, this interesting question of, you know, what year they proceeding here to, to, to get this death sentence reinstated when the president and the attorney general seem so skeptical of the utility and appropriateness of capital punishment.

[00:39:37] Jeffrey Rosen: So on the question in the case, whether a district court is constitutionally required to ask potential jurors about the media coverage they have seen. Kim, how, how do you imagine the court might evaluate that, and is this likely to fall along predictable lines, or, or might there be a, a bipartisan consensus either way?

[00:39:58] Kimberly Atkins Stohr: Yeah, I think the one place where y- the court traditionally, at least since I've been covering it as been willing to break from the ideological split that we talk about all the time are in cases involving criminal matters, criminal procedures, sentencing Fourth Amendment even. We, we do see those unusual alliances, at least unusual to the public. So that certainly is a possibility here.

Of course, the court has many ways that they can deal with this. They can try to set some constitutional voir dire rule. Seems most of the time the court doesn't seem as willing to stick its constitutional neck out in cases if it doesn't absolutely have to, and I think this case might be one they could rule on it very narrowly. Of course, the Biden administration [laughs] could also change its mind. It could finally be convinced by folks to come out in, in, against the, the death penalty and make it their policy that they will not seek it and reverse its position.

I was actually surprised when they took this up. And you know, it just... This isn't really a legal standpoint, but it's a tough case. It demonstrates one of the arguments against the federal death penalty or to any death penalty at all. Which is in Boston, where I lived for a long time, where I cover I write for the Boston Globe. It's a community that had, has been traumatized. You know, just the name Tsarnaev is very difficult in that place. I mean, it was a, it was a national story, but it was a local one for sure, and I've heard from some of the victims who said they wish that he had been given life in prison because then he would have gone to prison, and we wouldn't have to think about him again.

But instead, we have to relive this over and over again as it makes its way up and down the court with all of the appellate the appeals that he has a right to make. And this is an example of that, and that's a very powerful argument for people who oppose the death penalty. But then on the other hand, you have those who say, if there was ever a crime that deserves this option to at least be on the table, it, it was the terroristic attack that the Tsarnaev brothers carried out. So it's just a really powerful case. Much, in a much bigger way when you're talking about the death penalty than the very limited question presented, questions presented in this case.

[00:42:16] Jeffrey Rosen: Thanks for all that, and for reminding us of how resonant this case is in, in Boston, and, a- and elsewhere. There are two important free speech cases on the docket. Houston Community College System versus Wilson, which asks, does the First Amendment restrict the authority of an elected body to issue a censure resolution in response to a member's speech? And then another case from Texas, City of Austin versus Reagan National Advertising of Texas. Is Austin's regulatory distinction between on-premise and off-premise billboards a facially unconstitutional content-based regulation? Jess, can you give us a sense of both of those cases?

[00:42:57] Jess Bravin: Well, let's first again thank the State of Texas for providing so much of the Supreme Court docket. It's given us some death cases, and, and here they've given us a couple of, of First Amendment cases to, to contemplate. The, the Wilson case, which is the, the Houston Community College System case is interesting. If if you've ever attended a- a local government meeting of city council or school board you might be familiar with the the, with the gadfly character. There are certain people who come to every meeting and always have something to say. Sometimes politely often quite quite aggressively criticizing the operations of that local body.

In Houston, someone of, of that sort was elected to the Houston Community College Board, which runs that city's community colleges and immediately began opposing and, and taking very aggressive actions against the other members of the board. Like with a robocall platform, and websites, and suing them, and doing all kinds of things in his capacity as a board member and elected official to attack the majority of the board, which he viewed as making unwise and perhaps illegal decisions.

The rest of the board didn't like this. And found itself constantly having to respond to legal claims that he had filed, and his criticisms of them and basically he was not really taking part in the co- sort of deliberate process that legislative bodies or boards like to think that they stand for, even when people disagree. And so they censured him. They, they voted to censure his conduct as inappropriate, and, and beyond the bounds of the, of the board of trustees.

And he then in turn, sued the board for censuring him, for infringing on his First Amendment rights by trying to chill or critic- or, or, or punish him for his, for his speech through this official censure resolution, which they said was really the, the strictest and strongest action they could take against him since they can't kick him off the board, since he was elected to it.

So a federal appeals court, the Fifth Circuit found reinstated the lawsuit. A trial judge had thrown it out, but the, the Fifth Circuit reinstated this lawsuit and said he had bra- raised a legitimate First Amendment claim, and it should proceed to trial. The school, rather the community college board has appealed to the Supreme Court, and it makes a number of arguments, saying that first off the, the board itself has a free speech right to express its views of his conduct, and that's what it was doing.

And it argues that the freedom of speech provision in the Constitution allows the board member to say the the incendiary things that they did that they, they found so outrageous, but also allows them to officially state their view of his conduct as a board member, and they believe he is, his, his conduct is is, is inappropriate. So that's that case.

[00:45:53] Jeffrey Rosen: Thank you so much for that. And that was great. Kim, do you mind taking the Austin billboard case?

[00:45:58] Kimberly Atkins Stohr: Sure. So that case involves a city code in Austin that makes a distinction between signs, billboards that can be put up. Between those that are digitized well, digitized signs. Whether they're on the premises of a, of a particular buil- business, or off the premises. Like, the billboards that we see. And with those off-premises signs, they may not be digitized. But the signs, you can have a digital sign on your own premises. And it is facing a a facial challenge, a facially co- unconstitutional challenge saying that it is content based regulation under the previous precedent in Reid versus Town of Gilbert, which found that state signs that were of certain categories were, were... The signs of certain categories were distinguished. It was, it was more content based.

The claim here by the City of Austin saying, "Well, it's not content based. It's just where the sign is. It, it... We're not regulating what is put on the sign." But those challenging it are basically saying that it works out to be that challenge, that it is unconstitutional. The city maintains that it's leaving ample room for free speech and not impeding anyone's speech. So it's just another limitation, another opportunity for the court to further set the boundaries as to what it is making...

I personally think this case is not as strong as the one in Gilbert. Just because you do have... it does seem to be really time and place more than an- any sort of content base. But the court is taking it up, and Austin seems pretty confident that their orders are constitutional.

[00:47:36] Jeffrey Rosen: Well, let's end with a case that I know you've both been following, and it arises out of Puerto Rico. It's United States versus Vaello Madero, and the question is whether Congress violated the Equal Protection guarantees of the Constitution by establishing supplemental security income for the residents in the 50 states, for the District of Columbia, and for the Northern Marian Islands, but not for residents of Puerto Rico. Jess, tell us about that case.

[00:48:03] Jess Bravin: Puerto Rico has several million residents, more than a number of states. And has actually been a possession of the United States longer than some states have been in the union, such as Alaska or Hawaii Arizona. But Puerto Rico is not a state. It is considered an unincorporated territory of the United States, which was acquired in the Spanish American War by a, a treaty with Spain in 1898.

And shortly after Puerto Rico and some other smaller possessions were acquired in this way by the United States, the Supreme Court issued a, a number of opinions known as the insular cases, which effectively allowed Congress to treat these territories as colonies, rather than as states or, or future states. To perpetually govern them differently than states were governed. Until that point, if something was a US territory, the idea was that it would eventually mature into a state, like the Illinois territory or the Oklahoma territory or what, what, what have you.

So that has periodically given rise to questions at the Supreme Court and other courts about the legal status of Puerto Rico and how that affects the rights of people who live there. And that's come up in criminal cases several times in recent years. And now it comes up in this case about access to federal benefits under Social Security program. And the the, the, the question is whether the distinction that Congress drew between Puerto Rico and the states can stand this constitutional scrutiny.

But lurking behind this decision essentially the, the case involves somebody who, who, who had moved for- to- to Puerto Rico and continued to collect benefits, and the government wanted them back because if he's a Puerto Rico resident, he's not entitled to them. I mean, that's basically what the, the, the facts in, in this case.

But, but lurking behind is this sort of larger question about Puerto Rico's anomalous status with, with the United States. There had been some briefs in this case urging the court to repudiate the insular cases, which did allow this kind of dual system of, of treating US territories. But the Supreme Court has not been willing to do that. It's been asked several times to repudiate those cases. People contend they were based on, on racism or prejudice. When the, the US acquired territories where, whose residents spoke Spanish and were predominantly Catholic, and, and, and Hispanic in, in background.

But you know, the, the, the court has, has not been willing to revisit it. You know, people in Puerto Rico are United States citizens but under statute, not under the Constitution. It's never... The, the court has never ruled on whether the Constitution requires that such people born there automatically become citizens, and it's never had to come up because Congress said, "People born in Puerto Rico are US citizens." This is one of those cases where Congress decided to treat residents of Puerto Rico differently and the court will have to essentially decide whether Congress still has that power.

[00:51:03] Jeffrey Rosen: Fascinating. Kimberly, the stakes for the legal status of Puerto Rico sound like they might be high. How do you think the court might approach the case?

[00:51:13] Kimberly Atkins Stohr: Yeah, you know, the stakes are high. The facts of this case are really awful too. You have this, this person who was living in New York City, collecting SSI because o- of his health. Moves to Puerto Rico to take care of a family member unaware that that would affect his SSI status, and the government doesn't realize it for years. Finds out. Not only cuts off his ben- his benefits but sues him for... To repay all of this money. It's just such an awful case for the government to sort of... for the government to, to climb its hill on. I'm not using that correctly but you know what I mean.

And it's also against this backdrop of where we've seen Puerto Rico really been- be treated as something even less than a territory. The, its people seen treated as something less than American. The government argues that it has the right to do this because it has an interest in recouping these costs from people who don't pay federal taxes. That the Puerto Ricans don't play- pay federal taxes and therefore they should never be entitled to SSI benefits. Well, meet people who get SSI benefits are at a income level that they don't pay federal taxes anyway. So I think that that's a... if that's the best the government has in this argument, I'm not sure that that will carry the day in this when you have this real bid to say, "No, constitutionally I am being treated differently. My I am not being protected under the Equal Protection clause." I think that's a tough argument for the government to make.

[00:52:43] Jess Bravin: One other point if I could is that Joe Biden criticized the Trump administration's position on this issue when he was running for president. But the Justice Department has stuck to the legal argument here. And the White House takes the view that legally Congress does has the power to do this, that's why they are arguing this position, but they want Puerto Rico's status or the residents of Puerto Rico's right to these benefits equalized with the states as a, as a policy matter. So they- they oppose the policy that they are defending. They would like to repeal the policy, but they are defending the con- the congressional power to establish a policy that they disagree with.

[00:53:24] Jeffrey Rosen: Well, it's time for closing thoughts in this very illuminating and comprehensive review of the docket. This is court term with lots at stake. Jess, how are you thinking about it?

[00:53:39] Jess Bravin: These cases that we've talked about are, are, are all very important. But I'm also thinking about the term in terms of, of, the, the court's personalities. One is Chief Justice Roberts, and his vision of a slow move to the right but in a way that emphasizes institutional values, and, and gives the losers most of the time a, a seat at the table. That his, his idea of institutional stability being important and in some ways even more important than getting the outcomes he thinks are, are legally correct. Whether he still is able to do that in a way he could when Justice Ginsburg was on the court and there were four liberals or when, when Justice Kennedy was, was on the court. I think is going to be an open question, and whether the younger and more aggressive conservatives are going to follow his lead on that.

And the second personality's that of Justice Stephen Breyer, who has been on the court since 1994. He's 83 years old. He seems to be in, in, in good health. And nothing immediate about his situation suggests he, he can't handle the workload. But he'd been under a lot of pressure from Democrats to make way for a much younger person that President Biden could appoint who might be confirmed while the very precarious Democratic majority in the Senate exists. So Justice Breyer has not told us his plans, but he has stressed that he is aware of these factors, and this could well be last year that we see him on the court. And so watching how he conducts himself and what he has to say and what he writes I- I think is is is, is worth doing.

[00:55:18] Jeffrey Rosen: Thank you very much for that. Kim, last words in this great discussion. To you, what are the big themes that you are looking at when you think about this important term?

[00:55:29] Kimberly Atkins Stohr: Yeah. I am looking to see just how often the court breaks down in this 6-3 ideological split that folks like me have been talking about and writing about for so long. And if we're looking at personalities to get a idea as to whether that will happen in particular cases, where perhaps there might be a way to find the narrow consensus that can build a broader, a, a narrow way to build a broader consensus in a ruling, the two justices that I would look to are Justice Kagan, who very much is interested in the in- institutional stature of the court. And is one who is likely to reach across the ideological line to try to find a narrow ruling that can get more people on board, and, and prevent those ideological splits.

I would also look in some cases, not all. Not in the gun case that we talked about and some other cases. At Justice Kavanaugh, who I think has so far on his term in his time on the bench exhibited a willingness on some narrow issues to cross that ideological line. And I think who, you know, probably, and this is just my opinion, is still trying to not look like the bad guy, particularly after the contentious confirmation hearing that he had, and if he has something to point to, to say, "Look, you know, I- I- I- I am not always on one side or another." That that gives him a way to look at it. So if you're looking at oral arguments or listening to oral arguments like we still can, at least for the end of the year those are the two folks that I would at to get an idea as to whether some consensus building is possible.

[00:57:05] Jeffrey Rosen: Thank you so much. Kimberly Atkins Stohr and Jess Bravin for an illuminating discussion in a Supreme Court term that's c- may shed a lot of heat, you have cast much light and help us think about the cases in a deep and meaningful way. Kim, Jess, thank you so much for joining.

[00:57:24] Kimberly Atkins Stohr: Thank you.

[00:57:25] Jess Bravin: Thanks, Jeff.

[00:57:29] Jeffrey Rosen: Today's show was produced by Jackie McDermott, and engineered by David [Stoppens 01:02:47]. Research was provided by Michael Esposito, Chase Hanson, and Lana Ulrich. Please rate, review, and subscribe to We the People on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for a weekly dose of constitutional illumination and debate. And always remember that the National Constitution Center's a private nonprofit. We rely on the generosity, the passion, the engagement, and the devotion to lifelong learning of people like you across the country and around the globe who are inspired by our nonpartisan mission of constitutional education and deba

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