On Monday, October 2, 2023, the U.S. Supreme Court will begin hearing cases for the 2023-24 term. Cases on the docket include the scope of the right to bear arms, the administrative state, and the First Amendment and social media. Adam Liptak of The New York Times and Sarah Isgur, host of Advisory Opinions, join Jeffrey Rosen, to discuss.
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Today’s episode was produced by Bill Pollock, Samson Mostashari, and Lana Ulrich. It was engineered by Bill Pollock. Research was provided by Lana Ulrich, Samson Mostashari, Derek Shavell, Cooper Smith, and Yara Daraiseh.
Participants
Sarah Isgur is currently a staff writer at The Dispatch, hosts the legal podcast Advisory Opinions, and frequently appears as a legal analyst on cable news. Prior to joining The Dispatch, Sarah served in the Justice Department as the director of the Office of Public Affairs and as senior counsel to the deputy attorney general.
Adam Liptak is a columnist for The New York Times. He covers the Supreme Court and writes Sidebar, a column on legal developments. He practiced law for 14 years before joining The New York Times and has taught courses on the Supreme Court and the First Amendment at several law schools, including Yale and the University of Chicago. He is the author of To Have and Uphold: The Supreme Court and the Battle for Same-Sex Marriage.
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 a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- United States v. Rahimi, SCOTUSblog
- Loper Bright Enterprises v. Raimondo, SCOTUSblog
- CFPB v. Consumer Financial Services Association, SCOTUSblog
- Lindke v. Freed and O’Conner-Radcliffe v Garnier, SCOTUSblog
- PruneYard Shopping Ctr v. Robins (1980)
- Murthy v. Missouri, SCOTUSBlog
- Sarah Isgur and David French, The Problem With “History and Tradition,” Advisory Opinions podcast (Feb. 2023)
- Sarah Isgur and David French, The Gobsmacking Guns Case, Advisory Opinions podcast (Nov. 2022)
- Adam Liptak, “Biden Asks Supreme Court to Lift Limits on Contacts With Social Media Sites,” New York Times (Sep. 2023)
- Adam Liptak and Glenn Thrush, “Supreme Court to Hear Major Guns Case Involving Domestic Violence,” New York Times (Jun. 2023)
- Adam Liptak, “Supreme Court to Decide Whether Officials Can Block Critics on Social Media,” New York Times (Apr.2023)
- Adam Liptak, “Supreme Court to Take Up Case on Fate of Consumer Watchdog," New York Times (Feb. 2023)
Excerpt from Interview
Expectations for the Supreme Court’s October term and how they believe the decisions will go:
Sarah Isgur: I think one thing that you should expect is that we will see very similar justices in the majority as the last several terms, which is Justice Kavanaugh, number one as the sort of chief swing vote, meaning he's in the majority more than any other justice. And Justice Roberts and Barrett sort of making up what I've called the 3-3-3 court, with the three of them being in the majority the most and agreeing with each other the most often. So you want to look to their jurisprudence to think through this. They like precedent more than the other three conservative justices. They don't want huge swings in jurisprudence. They're minimalist justices in that sense. They prefer small changes, see how that goes, see how that percolates at the lower court, then take another case, make another small change. They're for little adjustments versus jerking the wheel.
And that also applies in the First Amendment context, which is not, or sort of maybe my heart is on some of these. I would jerk the wheel on the First Amendment sometimes. But if you are thinking of it as not wanting to overturn precedent, wanting to make those small, more incremental changes, you're looking at maybe not overturning Chevron in any massive way, but just sort of really cabining it to true ambiguities or something like that. And in the First Amendment context, that will be particularly interesting because you are kind of in a whole new world. There's not a whole lot of precedents, setting aside the PruneYard case that we talked about where I think, as Adam said, that cases wouldn't come out the same at all today anyway. And it kind of stands ... The cheese stands alone in PruneYard.
Jeffrey Rosen: [laughs] It does indeed.
Sarah Isgur: [laughs] So I expect pretty robust First Amendment stuff. And on that I think you can expect not six-three. I think you're looking seven-two, eight-one, maybe even nine-zero on some of these tech cases.
Jeffrey Rosen: Adam, last word in this wonderful discussion. Do you, in the ad law and First Amendment cases, do you expect six-three or not? And what are you looking for?
Adam Liptak: I agree with Sarah that the First Amendment cases are kind of a jump ball and will likely be lopsided. I think the CFPB case is an example of lower courts and litigants maybe overreaching. And so I wouldn't expect that to be a classic six-three. I think Chevron may well be. But I also agree that the Court has exit ramps, including that it could say that, where a statute is silent we're not going to let the agency make the decision. But if it's authentically ambiguous, maybe we'll leave that question for another day. So I don't know that this Court, having gone through a couple of terms of really ambitious judicial decision-making, is all that eager to keep its foot on the gas in quite the same way.
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