Countdown to After America: What Extreme Shifts on the Court Mean for American Democracy with Dr. Sara Benesh

 As we count down to the release of the limited series After America, we are revisiting some past episodes of Deep Dive to help lay the groundwork for this important project that will attempt to answer the question - What would it actually look like if American democracy were to fail?

Dark Tales: Music by Rahul Bhardwaj from Pixabay
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As the gears of our democracy grind toward the 2024 election, the shadow of authoritarianism looms ever larger.  Dr. Sara Benesh discusses the Supreme Court's seismic shift to the right and its implications for our nation, and the need for transparency in our judiciary. Together, we peel back the layers of crucial decisions that are reshaping our society and spotlight the ethical conundrums that question the very underpinnings of our democracy.

Dare to question the substance behind the Supreme Court's adherence to originalism. Through the lens of the Dobbs decision, we scrutinize whether this philosophy serves justice or justifies preconceived ideologies. Justice Alito's comments on legitimacy and the contentious association of Justice Thomas's wife with the January 6th events are put under the microscope. The episode probes the court's treatment of established norms, voting rights through an originalist view, and parallels with past presidential behaviors that flout institutional norms, painting a picture of a judiciary at a pivotal crossroads.

Lastly, we dissect the Supreme Court's latest cases, from Moore v. Harper's potential to redefine election integrity, to the clash of free speech and anti-discrimination in 303 Creative LLC v. Elenis. Unpacking the shadow docket's influence on voting rights and redistricting, we confront California's Proposition 12 and its nationwide ripple effects. Ending on a note of apprehension, I share my fears for precedents that safeguard students of color and the sanctity of future elections. 

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Transcript

Shawn: 0:04

Hey folks, this is Shawn C Fettig, host of Deep Dive. You may have noticed we've released a couple of teaser trailers recently and, if so, you know that we're on the brink of launching a limited series that could redefine your understanding of our nation's current trajectory. After America is set to premiere in late June, and it's dedicated to probing a question that grows more urgent with each passing day as the 2024 election draws closer and closer, and that question is what would democratic backsliding or, worse, a rise of authoritarianism, look like in today's United States if it were to happen? In the lead-up to this series, we are re-releasing past episodes of Deep Dive each Sunday that explore themes and issues that are strikingly relevant to the questions we'll tackle in After America. Each episode serves as a stark reminder of the fragility of our democracy, throwing some light on the forces and the people and the groups threatening it, the immediate danger that authoritarianism poses to our nation and the actions we can probably must take to confront and counter these threats.

Shawn: 1:07

Last week, we revisited an intense conversation that I had in June of 2022 with Jason Van Tatenhove, a former insider of the right-wing militia group, the Oath Keepers. Jason's first-hand account of the group's activities, including their active presence on the Capitol grounds during the January 6th insurrection is, in a word, chilling. His testimony before the January 6th House Committee exposed the ongoing threat these groups pose to our democracy and our nation. Jason will join us again in the After America series to dig further into this who these groups are, how dangerous they remain and, ultimately, what they want.

Shawn: 1:42

This week, we focus on an equally critical aspect of our democracy the judiciary by re-releasing an episode featuring Dr Sarah Benesh, a judicial scholar who advocates for the necessity of an independent judiciary in maintaining a functional democracy. This episode, recorded in the aftermath of the destabilizing fall of Roe v Wade in the summer of 2022, focuses on the profound rightward shift of the Supreme Court since 2020. We discuss the sweeping impacts of the court's decisions on American life, alongside the ethical and legitimacy crises it continues to grapple with Dr Benesh. Jason Van Tatenhove, as I already mentioned, along with about 20 other experts, researchers, journalists and authors, are joining us and contributing to the After America series. So, as we approach the launch of After America, I invite you to join us in this crucial exploration of our nation's future. Keep tuning into Deep Dive on your favorite podcast platform each Sunday to revisit these past relevant episodes and follow and like Deep Dive, to stay updated on all developments related to After America. The clock is ticking, democracy is at a crossroads and the time to act is now.

Sara: 2:57

And we know that the court has preferences that we not use race at all. Right, that's Roberts. His famous line is the best way to end what is it? The best way to end discrimination on the basis of race is to stop discriminating on the basis of race, never making a distinction between the. You know the reason for the discrimination.

Shawn: 3:17

Yeah, lovely, thank you.

Sara: 3:21

Yeah, it's really insightful.

Shawn: 3:29

Yeah, it was really insightful. Welcome to Deep Dive with me, s Fettig. I'm a political scientist and I'm interested in how our government and our politicians influence our lives, but also how our personal stories influence our politics. In this podcast, I may focus on topics in the news, but this is not punditry. Instead, I dive deep into issues and stories with my guests, behind the headlines, beyond the basic narrative that is often crafted by the media and our politicians. To help us better understand each other and why we think and feel the ways we do, I'd like to ask that if you enjoy this podcast or you think that a friend of yours might enjoy it, or even just a particular episode, please do share it with them or give it a like on your favorite podcast platform. It really does help to spread the word. You can also follow the podcast on Instagram at Deep Dive with Sean, on Twitter at Deep Dive Sean, and or subscribe to Deep Dive with Sean C Fettig at YouTube. And, as always, if you have any thoughts, questions or comments, please feel free to email me at deepdivewithsean at gmailcom.

Shawn: 4:38

The United States Supreme Court began their new term on October 3rd and, based on the cases that the court has accepted for review.

Shawn: 4:46

This term looks to be every bit as controversial and consequential, if not more so, than last term On the docket.

Shawn: 4:54

This term includes cases that could dramatically impact things like affirmative action, programming, voting protections, the ability of a state to regulate industries beyond its own borders and if the Constitution allows state legislatures to be the final say in how elections are administered within their respective states, setting up a nightmare scenario in which state legislators could overturn the outcome of elections. To discuss some of these cases and potential implications for continued reshaping of the American legal, political and social landscapes, as envisioned by the current Supreme Court, I've invited a frequent deep dive guest back to the podcast, dr Sarah Benesh of the University of Wisconsin-Milwaukee. In addition to the cases on the docket, we talk about the continued fallout from the Dobbs opinion overturning Roe, the court's sinking job approval and legitimacy. If Justice Thomas should recuse himself from cases involving the January 6th coup attempt because of his wife's seemingly active role in furthering that goal, and the impact of an addition Justice Katonji Brown Jackson's first term on the court. Let's do a deep dive, dr Sarah Benesh, fan favorite, welcome back. How are you?

Sara: 6:08

I'm a fan favorite. Thank you, I'm good. Thanks for having me.

Shawn: 6:12

All right, so let's just jump right in. The new Supreme Court term starts October 3rd. By the time this is released, they will have been underway for better or worse. So let's start with what seems like the obvious marker for the court, which is the continuing fallout from Dobbs. So, since that opinion, public approval for the court has tanked and the trend is similar across numerous polls. But Marquette Law School has the court's approval currently at 38%, which is down from 44% in May, which is down from 54% in March, and in September 2020, approval for the court stood at 66%. So this is significant in a very short period of time and we think this matters. I've definitely argued, probably ad nauseum, that the Supreme Court is the last bulwark against potential chaos, so I'm a bit nervous, but I don't know. I don't know what that looks like. What do you think?

Sara: 7:17

Yeah, I think it's really hard to figure out what a complete tanking of the court's legitimacy which is going to mean that litigants aren't going to behave in ways that respect the court's authority to make decisions and people aren't going to hold them to account when they do that. And I think that's, you know, one of the indicators of that is this fairly popular movement to make some major changes on the court, and I think we've maybe talked about that in one of our earlier episodes when we talked about adding justices or coming up with some sort of a term limit or something like that. I mean, I think that those kinds of issues are getting a much more serious play today than they have in the past, and part of the reason is the court's legitimacy. So I think that you know the power that the court has as sort of this favored institution is waning. I think you know obviously that has implications for democracy, given that the court was always the highest approved of institution.

Sara: 8:12

And so when the court even is losing legitimacy and we know that Congress is still not popular and the presidency is still not, you know, super popular, you know it just sort of begs the question of what is government going to be able to do if not for the belief of the citizenry that they're doing things that ought to be complied with and are in our best interest. So I mean I think there's lots of consequences for the loss of legitimacy and I think there are things you know that we could talk about, that the court could do to maybe help attenuate the problems that have been caused. You know that we could talk about that the court could do to maybe help attenuate the problems that have been caused. You know you mentioned the chief justice, I think, in your notes to me about you know what he could do because he's sort of been known to be very interested in the court's legitimacy right and very attentive to the way that the public perceives the court, and you suggested maybe I shouldn't put words in your mouth. Go for it.

Sara: 9:08

You suggested that what he might do is make decisions differently, which is an interesting proposition, right? I mean, he just was out on the circuit talking about the legitimacy of the court and saying you know, people shouldn't feel differently about the court just because they disagree with our decisions. Well, it just so happens, justice Roberts, that most of the political science research suggests that that's exactly what people do. There is a component of decisional approval in people's perceptions of the courts, and Dobbs is really not popular, I think. Some people suggest that it's not popular because it's so activist. But I also think there's a really good chance that Grutter is going to be overturned, which is another big precedent. But affirmative action is not as popular as bodily autonomy and integrity, and so I'm not sure that that decision will have as big of an impact.

Sara: 10:03

But what could the justices do to help their legitimacy? They could maybe comply with some ethics rules that the rest of the judiciary has to abide by. Maybe they could think a little bit more carefully about the appearances that they're making, and you know, for example, not go talk at Mitch McConnell's Institute, you know. I think they could think about that whole shadow docket decision-making thing that they're up to and maybe make some changes in those kinds of processes. So I think there are some things they could do. Whether or not they'll do them is a completely different question.

Shawn: 10:38

I do think that the justices' reaction to this is somewhat interesting.

Shawn: 10:43

I'm in the same boat with you.

Shawn: 10:44

I do believe that there is a potential, that there is an overturning of at least one significant precedent coming up, if not a couple of others, which to me feels as if both their reaction and you know the the you know all signs pointing to the potential for overturning of other precedents to me means that it's just not landing with them, like they're not reading the room Right and I don't know if they're willfully blind or they believe what they're saying, but they definitely don't seem to be embracing the idea that anything that they're doing is contributing to a legitimacy crisis for the court.

Shawn: 11:15

And one is you mentioned Chief Justice Roberts. You know, you know I at least know of one speech that he gave in which and you referenced this you know he said that the courts always issued controversial decisions and then that, you know, issuing controversial decisions should not impact the legitimacy of the court. And I think that's not entirely the issue. It's that people believe that precedence matters at least also, and that this court didn't lay out a thoroughly clear reason for overturning that precedent. It felt in the Dobbs decision, as if they didn't even really try that hard, and Justice Alito told the Wall Street Journal that questioning the court's legitimacy crosses a line, and it just I mean then just left it at that and it just all seems so tone deaf to me.

Sara: 12:09

I don't know if it's a conscious delusion or a subconscious delusion that you know they're just making their decisions, you know, based on their interpretation of the law.

Sara: 12:15

You know the whole, that whole discussion we have about the myth of the courts and the myth of legality, and one thought that that's what one was doing then.

Sara: 12:27

Yeah, then why would people criticize you to the point of not approving of your institution's role in democracy? That seems really problematic. But the issue is that that isn't what drives their decision making. And so when they make a decision like the one in Dobbs and rely so heavily on this idea of original intent and on this notion that we ought to understand everything about the Constitution and about the law as it was written at the time it was written, you know, leaving our country, basically in the 1800s, maybe that's what people are reacting to, that that's not a particularly legitimate way to make decisions. Or maybe people are reacting to the ethics violations you know the role of Justice Thomas's wife in the January 6th issue. Maybe they're reacting to these really politicized appearances. You know, I think we often and by we I include me don't give the public very much credit for being knowledgeable, but I do think people can see when there's a mismatch between what people say is happening and what they're actually doing.

Shawn: 13:35

So let's dig in a little bit into originalism and you bumper stickered it just a moment ago, but this is one of a number of judicial and constitutional theories that's evolved in pursuit of providing some structure around the application of things in the Constitution, but originalism seems to be pretty clearly where this conservative court is heading, and so I'm wondering what is originalism beyond the bumper sticker, and how has it been applied in the past? And I guess I mean, if you're up to it, like, is it a legitimate theory?

Sara: 14:06

Yeah, I think those are big questions that you know law professors have spilled a lot of ink over trying to answer, and I think it's you know it's certainly the case that Justice Thomas has revolutionized this area of law and that Justice Scalia was a strong player in that, and that their presence on the Supreme Court has caused litigants to pitch arguments that are based in originalism to the degree that you know we didn't see before they were on the bench and before they were so in tune with this theory of constitutional interpretation. But you know, I mean I think a couple of things about originalism. I think the first thing is that I'm not certain that it's the right answer. If the question we're asking is how ought we interpret the Constitution, I think originalism is certainly an answer, right. It's a theory that we could understand the language in the Constitution based on its text as it was meant when it was written. But I think that kind of backward looking understanding of our constitution is problematic.

Sara: 15:09

And then the other thing I think about originalism is that there's not very much evidence that it actually matters in terms of having an empirical effect on decisions. There's much more evidence that suggests that originalism is a tool to effectuate a policy that is preferred far before the originalist analysis comes, and I think we need to know more about that. I think we need more empirical observation and modeling of Supreme Court decision-making. You know, the only article that we have is one that uses the litigants arguments as the test. So if a litigant makes an originalist argument, is a justice more likely to agree with that litigant, even independent of their ideology? And the authors find that that is not in fact the case that they, that they agree with liberal originalism arguments if they're liberal, and conservative originalism arguments if they're conservative. So there's not much indication that it actually matters. And so then I guess you get back to the whole question of whether the justices are so unconstrained that they needn't worry about all of those pesky legal things like text and precedent and all those sorts of things.

Shawn: 16:24

Are you starting to feel like that might be the case with this court? What, that they aren't so bothered with these pesky things that we give a lot of weight to, mainly because they've been given a lot of weight to? Right? It's not like academics just like created the importance of precedence out of thin air, right, like that is something the court itself lent a lot of weight to over the years, right, and that's just one example. But it feels like this court is willing to say like that's not the thing. That's going to stand between us and whatever outcome, you know, whatever outcome we're in pursuit of in this case, yeah, I think that's an interesting question or an interesting argument.

Sara: 17:01

Is this particular court, so this national court, less interested in some of the norms of the institution itself? In a similar way, I suppose, as the last president that we had was very uninterested in the norms of his office?

Shawn: 17:19

I always start these conversations by saying like I don't want to be an alarmist, but I think the reality is I'm an alarmist these conversations by saying like I don't want to be an alarmist, but I think the reality is I'm an alarmist and I'm going to own it and I'm going to ask you to either confirm it or talk me off the ledge. But, like, when it comes to at least what it seems, how this court is constructing its approach to originalism, I feel like what they're doing is setting up a framework for a really bleak future, frankly. And I have two things that really rattle me here. First is voting and you know this will come to a head probably with a couple of cases this term and we'll talk about those. But voting in the original Constitution limited voting to a very specific group of people, primarily, you know, white property-owning men, but it also left the Senate elections to state legislatures.

Shawn: 18:08

Second, you know this makes me worry about constitutional amendments, because the court doesn't seem to care at all that amendments reflect a changing society, or at least their reasoning in Dobbs doesn't lend itself to some type of a respect for how amendments do reflect a changing society. So, with changing norms and values and here I'm talking about things like enfranchising women, giving women the vote or outlawing slavery, involuntary servitude, or forbidding the denial of the right to vote on the basis of race, etc. If this court's conceptualization of originalism does not allow for amendments to be reflective of evolving norms and values, then I don't know. It strikes me that these amendments, maybe in and of themselves, will not be treated with the same deference and respect as the government and society. You know, because it's not structured by the literal original document.

Sara: 19:00

I don't know that. I've ever really thought about the amendments as categorically separate from the Constitution. Is that what you think is happening? You think the justices are really in love with the original document and sort of dismissive of the later amendments?

Shawn: 19:13

I have that fear. Yeah, that's interesting Because they spent so much time in Dobbs focusing on and interestingly right, because originalism to me strikes me as so subjective that there are a lot of roads to history that lead to different places and help us understand different things about history. On the same topic. Right, they chose a very specific road that had very specific things to support their argument in pursuit of their outcome. That ignores a lot of other roads that explain other parts of history, but it was so rooted in such an early time that I wonder what their approach will be when tackling issues that fall in amendments that were in, you know, the 20th century, right, yeah?

Sara: 19:57

Mm, hmm, yeah, that's. That's an interesting observation, john. I want to think about that a little bit. Hmm, that's interesting.

Shawn: 20:03

So you can't talk me off the ledge.

Sara: 20:06

Actually, I think this, this case on this Moore versus Harper case, is a good test. I mean, I've been reading a little bit about thets and state constitutions from constraining state legislatures and so if they decide to formulate an originalist argument that upholds the state legislative sort of plenary power over federal elections you know, I don't know, I feel like that should be something that everybody should say whoa, wait a second. But you know they're not going to do that because you know, like you said, there are many roads to different kinds of interpretations of history and you know it turns out none of those justices are historians for one thing. So it's really kind of fascinating to me that, as a court, they have chosen or at least as several individual justices have chosen a method of analysis that really is not something that their training makes them an expert in right. So, like you, focus on precedent, focus on the text.

Sara: 21:22

Maybe those are things that law schools teach people to study. No, law schools teach people about the history of 18th century United States, whatever constitutional drafting or whatever. So, yeah, so maybe we'll see in more, but maybe we won't be able to see because maybe they'll obfuscate enough. Did I say that word right, where we think that they're using originalism, but they're not.

Shawn: 21:50

Okay, so let's talk about Morvey Harper, then, and this is the case coming out of North Carolina.

Shawn: 21:54

That has every legal and constitutional scholar on edge, and it revolves around the independent state legislature doctrine and that's being tested here.

Shawn: 22:02

So it issues a challenge to the Constitution's language that the manner of holding elections for senators and representatives should be prescribed by the legislature thereof, and this doctrine to me I don't know it advances a fucked up theory that essentially, this means that the legislatures of states have sole authority to determine the outcome of elections, that the people, the governor, the judicial branch really has absolutely no say in things related to elections, including their outcomes, that this power lies solely with the state legislature. And I guess if we were to put this in practice, or imagine this in practice, and if the court were to have adopted this theory in 2018, then we can think about states like Pennsylvania, michigan, wisconsin, georgia, arizona as good examples of what might have happened in 2020. So if the independent state legislature doctrine had been in effect, those legislatures could have done what they were trying to do so, that's, nullify election results in pursuit of an outcome that you know ran counter to the popular vote and aligned more with their own preference.

Sara: 22:57

Yeah, I mean, I think it's interesting.

Sara: 22:58

I listened to, I've listened to some scholars talk about this case and some people think that it's preposterous to say that there'd be ever any sort of delegation of federal authority to specifically state legislatures, regardless of their state court and their state constitution.

Sara: 23:16

And so you know the folks on strict scrutiny, for example, who have an obvious ideological position. Right, they were freaking out about this like they wouldn't even call it a theory because they thought it was so stupid matter of fact that this was a strong argument that state legislatures were carefully chosen by the framers, that framers wrestled really hard and long over this question of who should be in charge of congressional and presidential elections, and they settled specifically on state legislatures as a way to make sure that there was a publicly accountable branch that was behind these decisions. And he characterized the case as sort of like a federal express delegation of federal power to state legislatures, which would then say there's nothing the state constitution and state court can say about it. And the other guy on his panel for the Heritage Foundation said I think it's a little bit harder of a question.

Sara: 24:18

But I just found it sort of fascinating that that Paul Clement, who to be the Solicitor General, was sort of very dismissive that it would even be a question and then the lawyers in strict scrutiny were so dismissive that anyone could ever make this argument. So obviously the court likes to take cases where there's some arguments, good arguments on both sides. But, as I mentioned, I think this is a test for their theories of originalism in some ways, or at least it could be seen that way. And I mean, maybe that's what they're thinking about when they take the case. You know, maybe they want to demonstrate that sometimes they're going to come out on the other side using originalism and so that we should all take originalism more seriously.

Sara: 24:59

But it certainly has lots of ramifications, as you noted, and you know. One of those ramifications would be probably the overturning of the Arizona case where they, the court, upheld the delegation of the Arizona state legislature to an independent redistricting commission. And I think, given the gerrymandering issues that we're dealing with, redistricting is exceedingly important. Gerrymandering issues that we're dealing with. Redistricting is exceedingly important. You know state attempts to try to take politics out of that redistricting. I would think this would be entirely the wrong time to change that, but that was a five to four decision. The chief dissented, so we could see another precedent go down in that case.

Shawn: 25:37

Morvey Harper, to me, is the type of case where, you know, sometimes we see very controversial cases go before the court and we imagine that there's some way that the court can thread the needle on it. To me, morvey Harper reads very differently, and I don't know if it's because of the environment that we're in and following Dobbs and feeling really discombobulated, as it relates to like, what is this court doing, and it might take a couple terms for us to figure that out. So to me it seems like the only options here are they completely shred the independent state legislature doctrine once and for all or they're going to adopt it, right? I don't see where the middle road is on this, and I'm sure there is. You know, I'm sure legal scholars and I'm not one could give me a handful of them, but that scares me, that those are the two options. And then when I look at the makeup of this court and what they've done thus far scares me.

Shawn: 26:35

That's fair Moving on, while, while we still have semblance of a country, let's move to the next case.

Shawn: 26:45

Okay, so this is another consequential case is Students for Fair Admissions, inc.

Shawn: 26:50

And this case is a direct challenge you mentioned this earlier to an existing precedent that was established in 2003 in Grutter v Bollinger, in which the court found that schools can utilize race-conscious admissions programs as long as those programs were this is the court's language quote narrowly tailored to further compelling government interests, and they decided this case under the Equal Protection Clause. So this case that's before them is actually a combination of two cases that were brought by students for fair admissions, and one is against Harvard and one is against the University of North Carolina. But what's interesting here is that Harvard is private and therefore not subject to the Equal Protection Clause, and the University of North Carolina is public and it is subject to the Equal Protection Clause. So where the case could be decided in such a way that it impacts Harvard is that they are subject to Title VI because they receive public funds, which prohibits discrimination based on race, color or national origin in programming. So this goes at the heart of race-conscious admission programs at both public and private schools.

Sara: 27:50

It sure does. So when the court took Dobbs, I thought, oh, you know, that's weird, but I can't imagine they're going to overturn Roe versus Wade, I'm sure everything will be fine, and and I was wrong. And so then, now, you know, the court takes these students for fair admissions cases, and I don't think we can think, oh, I'm sure that Grutter's fine and the court's not going to get rid of affirmative action. So I think you know the fact that they took the case suggests that they're ready to change the law, and we know that there are, you know, at least six justices that are interested in removing race conscious anything right, even when the outcome or the target is equality enhancing rather than discriminating. So so, yeah, I think I expect that the court is going to.

Sara: 28:41

Well, I don't know, it's interesting. So I expect, on an ideological level, that the court is going to overturn Grutter and the use of race in college admissions. What I think is an interesting caveat to that, though, is that it's a that's a really hard thing to enforce, and maybe the court will recognize that that's a really hard thing to enforce, and maybe the court will recognize that that's a really hard thing to enforce, and so perhaps it won't go so far as to say there cannot be any consideration of race, and maybe just tinker a little bit with the situations under which and ways in which colleges and universities can have an admissions policy that has some sort of an equity or diversity goal. But I'm not really sure what's your expectation?

Shawn: 29:31

I'm such a fatalist University might as well start planning, because these are gone.

Sara: 29:35

Yeah, how are they going to? How would the court enforce that?

Shawn: 29:38

Do you think this court cares so much about enforcement? Would the court?

Sara: 29:41

enforce that? Do you think this court cares so much about enforcement? Well, I mean, part of caring about legitimacy is certainly considering the extent to which rules and regulations that you enact are going to be complied with. So I think the general story of you know any sort of separation of powers or federal system or you know whatever, has to at least partially include some calculation as to whether or not you're going to gain what you're hoping to gain with your opinion. I mean, so what if they decide this? And so colleges and universities say okay, and then they continue as they were, like what will happen?

Shawn: 30:17

I don't know, though, aren't you doing the same thing we were talking about earlier, though, which is like assuming that the court, you know, cares about these pesky things?

Sara: 30:24

Sure, I mean it might, we might be assuming norms, but but I do think that it's, you know, I mean they have to recognize that. I don't know they don't have to do anything, they do what they want, but I do think I think you might be right in that I do think there are some justices that would at least consider that Maybe Gorsuch, maybe Roberts, maybe Kavanaugh, they wouldn't have to. Just, I mean, they've got several cases that involve race on the docket in the fall. I mean, so this is one of those cases. And then there's the Merrill versus Milligan case about the Voting Rights Act in majority minority districts. That's going to be about race.

Sara: 31:00

And then, you know, holland versus Brackeen is also about race, that that being the case involving the Indian Child Welfare Act, you know. So all of these cases talk about what, to what extent one can use race to make some sort of categorization or decision or preference, or, you know, districting line or whatever. And we know that the court has preferences. That we not use race at all, right, that's Roberts's famous line is the best way to end. What is it? The best way to end discrimination on the basis of race is to stop discriminating on the basis of race, never making a distinction between the. You know the reason for the discrimination.

Shawn: 31:40

Yeah, lovely, thank you.

Sara: 31:45

Yeah, it was really insightful. But yeah, I think so. I think they definitely have those preferences and they want race to be, you know, a criterion that we're not using for anything and to really abide by that whole you know strict scrutiny for racial classifications thing, regardless of you know the reason for the classification, and so they have several opportunities to engage with that idea. I mean, I think it's kind of interesting that I think it was on SCOTUS talk I don't mean to keep mentioning podcasts to you that maybe are your competitors, but on SCOTUS talk they were talking about like some of these cases and saying, you know, is the Roberts court going to be a tinkerer or is it going to be like a you know, wholesale, like overrule the precedent, start over whatever? And the general consensus was that this is not a tinkering court. So we'll see.

Shawn: 32:39

I can we call it the Roberts court anymore? I mean, you know, by custom we can, but I think I think it's the Alito court now. Then the question is like is the Alito court interested in tinkering?

Sara: 32:51

Right and no for sure. No, yeah, I think they're. I mean it's not just, you know there's Alito and Thomas and then you know there's the other. Just the other conservative justices I don't think are of a kind necessarily with those two, I'm not sure. I mean, some of it remains to be seen. Some of these justices haven't been around for very long.

Shawn: 33:13

That's that's. The other thing is like this is, for all intents and purposes, a very new court and you know, it's not just a shift of one or two over the course of a handful of years, Like it's wholesale a new court and we really don't have our finger on the pulse of the court. And they gave us a few shots across the bow last season which, depending on where you are in the ideological spectrum, you know it's great or not. But yeah, yeah, that's why I do think it's going to take a couple of terms to really figure out, like how we can measure this court.

Shawn: 33:43

Mm, hmm, to really figure out, like how we can measure this court yeah, you mentioned Merrill v Milligan, so let's talk about it. And this case yeah, once again it's Alabama that's driving a truck through the Voting Rights Act. So in this case, the lower court held that Alabama's redistricting plan discriminated against Black voters, which would be a violation of Section 2 of the Voting Rights Act, which prohibits any voting acts or procedures that discriminate on the basis of race. So the claim here is that the Alabama redistricting map dilutes some Black voters by what's called cracking them, so spreading them into districts that you know, subsequently takes away their voting power, and also heavily packs other Black voters into districts, so that also serves to take away their voting power. So what do you think with this case?

Sara: 34:25

I think it's a similar story, that we don't want to use race to make any sorts of decisions, including decisions about redistricting, and I think that will be what it comes down to right, because I mean they can do all the you know the redistricting cases. I mean I'm sure you've read at least some of them. It's kind of a disaster right so that you know they've got all these tests and rules about compactness and voting blocks and all those kinds of things. So part of this discussion is again another precedent that will maybe, you know, fall or not, which is, I guess, the jingle case that talks about, you know, when minority groups' voting rights are being diluted and so when we should take action and create these majority minority districts. But I think, from the guise of a court that doesn't like to include any discussion of race in decision making, I think that kind of whole notion of these majority minority districts could be, you know, in question.

Shawn: 35:26

All right, I don't have anything more to say about that. I'm starting to feel pretty bad.

Sara: 35:31

So so depressing. That was one of those cases, by the way, that ended up on the shadow docket, at least at some level. So the court stayed the lower court judges ruling in that case.

Shawn: 35:44

So that they could implement that plan for this election, the 2022 election.

Sara: 35:48

Right, right.

Shawn: 35:49

Yeah which I also find that fascinating when they intervene and when they don't, because sometimes they're like, oh, this would just be too disruptive to the you know, the election coming up, and in other times they're they're more than willing to, you know, allow for changes that would seem to be in relatively truncated times before elections.

Sara: 36:07

So yeah, and I think what's particularly interesting about about that whole issue is that some of those cases that say things about when you should be able to make election rule changes are themselves shadow docket cases. Rule changes are themselves shadow docket cases, you know. So they're like. You know and I don't I don't love the term shadow docket, but you know there are emergency petitions where the court doesn't provide any sort of reasoning and doesn't engage in any kind of oral argument and then just makes a decision, doesn't tell anybody why they did it.

Sara: 36:37

You know there's there's a case like that I can't think of the name of it off the top of my head, but it was the case that kind of like what everyone took from the decision, which you know again, is, is without any sort of information from the justices. Um, was that the change that the state was trying to do was too close to an election, and so now they, you know, throw that out whenever they don't want a change to happen. And yeah, probably, I mean I think there wasn't there a Wisconsin case, in a North Carolina case that were almost the same, but they came out separate, different ways. So, yeah, they're not entirely consistent. Yeah.

Shawn: 37:14

All right. Another case 303 creative LLC versus Elenis or Elenis, do you know how to say this?

Sara: 37:20

Nope, let's just call it 303 creative.

Shawn: 37:24

So 303 Creative. So 303 Creative. This is another gay wedding case coming out of Colorado it is. It's a wedding website designer doesn't want to be forced to create websites for gay weddings, and this is essentially a replay or a sequel, I suppose, to Masterpiece Cake Shop, the other Supreme Court case in 2018, which didn't really. They settled it on a technical issue and kicked it back to the lower courts. They didn't really actually settle the underlying question, which is just forcing an artist to speak or, I suppose, stay silent, violate the First Amendment. So I guess this is another bite at the apple. Well, maybe wedding cake and you know, I would assume that the court is poised to actually decide, definitely in this term.

Sara: 38:06

Yeah, but I don't think it's necessarily like.

Sara: 38:08

I mean, it's kind of an area of law where the court hasn't really said very much, this kind of dichotomy or I don't know what's the word I'm looking for.

Sara: 38:16

You know, on the one hand we have free speech right, and we love free speech in this country, at least if we like the speaker.

Sara: 38:23

On the other hand, we have nondiscrimination principles Right, and we have those baked into our Constitution through some of our amendments Right, and that matters and states have an interest in promoting nondiscrimination Right. And so I think, you know, I don't recall a case Maybe you can help me think of one but I don't recall a case where the court took that head on collision between free speech rights of an individual or the right not to speak and non-discrimination principles that a state has put forward for a public accommodation, and clearly any business that does business with whomever wants to come to them is a public accommodation Right. I think Canada has discussed this kind of tension and has favored equality right and favored non-discrimination, but I don't feel like the US has really dealt with that, and so I think this could be a real innovation in free speech law and of course there's lurking in the background or sprinkled around or whatever. Some free exercise claims right.

Shawn: 39:29

To be honest, I'm a bit torn on these types of cases because I guess on a personal level I really don't want to hire someone to produce anything for me if they're fundamentally in opposition to who I am. But I understand the larger argument, you know, related to, you know, free speech and non-discrimination.

Sara: 39:41

Yeah, I mean, I think everybody was ready for a big decision in Masterpiece Cake Shop and then, you know, the court punted. I don't think they can punt this time.

Shawn: 39:48

No, I think there was a lot of disappointment on both sides for them.

Sara: 39:52

Yeah, and I understand your point, like you know, at least this way you have a sign like don't go to this business, you know if they choose to exclude certain kinds of people from there. But I mean then you, then you get back into the whole discussion of you know why we started talking about racial equality, right, you know, in interstate commerce and that kind of thing.

Shawn: 40:13

Yep, you're also great at segues because, speaking of interstate commerce, national Pork Producers Council v Ross, are you excited about this one? Um, so you've hinted that you think this has implications for abortion law. So I want to get there, because if you're unfamiliar with this case, the description I'm about to give you is going to bring you to the table when you hear that Sarah believes that there's implications for abortion law here.

Sara: 40:41

You're going to have to really think hard and stick with me on this.

Shawn: 40:50

Okay. So this case gets at a practice that California, or a policy that California has implemented, I think, in a number of industries you know in past, like including healthcare and automobile production, but this one is related to pork. So voters passed proposition 12 in 2018 that essentially banned selling pork that was produced in inhumane conditions, and since most of the pork in California is imported from another state, this, in effect, is regulating the treatment of pigs in other states, so it clearly has implications for the national pork industry. But the question the court is being asked is if this violates the Commerce Clause by regulating economic activity and an industry that, for the most part, operates outside of the state's borders and also impacts the national industry.

Sara: 41:31

I think what is sort of fascinating about this case are the hypotheticals that you could run around with if the court were to allow California to engage in this activity. So I think, as Sean, I think Sean, part of the discussion I think what you mentioned, like almost all of the pigs that California in you know, like almost all work, comes from somewhere other than California. Right.

Sara: 41:56

And so the question in this case is whether the California rule about how pigs are housed ends up becoming this violation of the dormant commerce clause, and by dormant commerce clause we're generally meaning interstate commerce that Congress has chosen not to regulate but could right. So what the pig people are saying, the national pork producers, is that, you know, california is making rules that amount to extraterritorial regulation. They're regulating the behavior of pork producers in other states. They are making these pork producers change their habits so that they can then have California as an export partner, and they are then, you know, sort of trampling on the rights of the state, of the of the states that have the pork producers in them, to regulate their own industry. So usually the Commerce Clause is about not discriminating against out of state products in state.

Sara: 42:54

This is not that case, so that can't apply, because California is also abiding by the same rule and most of the California voters voted for this thing.

Sara: 43:03

So this is a, this is a, you know, a democratically chosen policy that they want to be nicer to pigs. So how does this relate to abortion? Or sends pork both to California and to, say, arkansas and would have to deal with the fact that, say, california says that these pigs have to be in this certain size container or house, and Arkansas wants them to not be that way, right. And so this pork producer is trying to figure out how to run his or her business, knowing that these different states are imposing different regulations on them, and they're in, say, Iowa, right. So under that theory, we could have states that make rules about other things that could also then implicate interstate commerce, like climate change, like assisted suicide, like abortion pills, and so if states start regulating what companies in their state, or companies that send things to their state, can do in these other areas of public policy, then we've opened this really big can of worms about how states can affect policy across the United States just in their own policymaking. Imposing those policies on other states, you buy it.

Shawn: 44:27

I do.

Sara: 44:28

I mean, I don't know if it will happen and we know that. You know, in the case of abortion pills, for example, Congress has acted, at least with respect to medication in general, right. So there is FDA regulation of medication that might be similar with some of the assisted suicide issues, but, like Vermont, I guess, has a residency requirement if someone wants to use the services of a doctor to end their life, and so that argument, that requirement might affect people's ability to travel to Vermont, for example, and that could impact some other parts of the constitution which aren't really there but we sort of assume are there like things like interstate travel. So there's lots of like interstate commerce issues in this case that make it. I think you know it's an animal cruelty case, sure, but it's really about California trying to rule the other states and that's kind of fascinating.

Shawn: 45:24

So we've talked a little bit about our own feelings about where these cases are going to land, or at least some of them, and also that we don't really have the read of this court. But I feel like Thomas and Alito are staunchly solid conservative votes on any case, with a clear distinction, and maybe Barrett I guess I don't have a read on her as well and I think that if we can ascertain during oral arguments that Roberts is sympathetic to the liberal argument, then I think Gorsuch and Kavanaugh become the you know like quote unquote swing votes. But I'm not sure what this means for cases like the ones we've discussed here. What do you think?

Sara: 45:59

Yeah, I don't know, I think it's. I think the question of you know and you know again, know, I think it's, I think the question of you know and you know again, political scientists tend to just sort of reject this idea. But this question of activism and perceptions of the court's role in in democracy, you know, I think can matter to some of those center justices. But again, that's, I mean, that's a lot of speculation. But I feel like Roberts and Kavanaugh, for example, are receptive to those kinds of issues Like should we be making this decision? Ought we go that far on this case? What will happen to the legitimacy of the court if we do this? And generally speaking, political scientists would say none of that matters.

Sara: 46:38

Shocking about Dobbs is how far it went and how strong the language was that Alito used and that seems to, by all indications, have really hurt the court's legitimacy in a way that a single decision doesn't usually do. I mean, we'll see if that continues. You know if the effect continues or not, but so maybe that is something that matters institutionally. So maybe it doesn't drive individual justices' votes necessarily, but maybe it affects the breadth with which they decide some of these questions and the doctrines that come out of the cases? I'm not sure. I think it's a pretty no holds barred kind of court right now.

Shawn: 47:24

Well, come back at the end of the term and we can talk about it. Okay, the Thomas affair. So, jeannie Thomas, today actually she testified, so we're recording this September 29th and she testified before the January 6th committee today. And so the big question is should Justice Thomas be recusing himself in cases related to the January 6th insurrection coup?

Sara: 47:47

That's completely up to Justice Thomas Sean.

Shawn: 47:50

I know I said should, though I said should.

Sara: 47:55

I mean yeah, I mean so the Supreme Court. So I mentioned this at the beginning. You know they don't hold themselves to the ethics rules that the rest of the federal judiciary has to work under. But even that, even the federal ethics rules generally allow the justices to make decisions about recusal on their own and they don't generally require them to justify those decisions. So you probably remember when Scalia went duck hunting with Cheney, he did write a decision, he wrote an opinion to explain why he didn't recuse himself. Then, when the vice president had a case before the Supreme Court. But that isn't anything that's required by anything and there's lots of you know lots of thinking by the court and others that recusal ought to be a last step, that really the justices should try to hear the cases that come to them, because when you recuse, obviously that creates a problem with potential ties and sort of lessens the ability of the court to do its work. So we generally want the justices to err on the side of not recusing, but there's probably some legitimacy implications for that right.

Shawn: 49:03

I don't think it's fair to say that because she believes something, you know that he necessarily believes it, or that because she did that, that he was involved. But I mean, I do think it's fair to say that if she was involved in you know some way with violent overthrow of the government, then he really shouldn't be involved in cases having to do with that insurrection. And we've, you know, definitely seen I mean, this is this, is this gets into, you know, like gender parity issues as well. But we've definitely seen something similar play out with members of Congress, you know, or of an administration, when their family members, and particularly their spouses, engage in, you know, what appears to be I don't know, oddly advantageous trading. You know that the link between that and their spouses, who work in government and have access to non-public market information, that at minimum creates the perception of malfeasance or some lack of ethics if not outright insider trading.

Shawn: 49:56

So I don't see how this is such a stretch.

Sara: 49:59

Right, yeah, I mean I don't know that we know with certainty what kinds of activities she was engaged in. Do we?

Shawn: 50:07

No, and I think you know there's definitely reason to be cagey about it.

Sara: 50:13

Sure. So you know, I think maybe part of it depends on what they're able to demonstrate her role to have been.

Shawn: 50:20

I just yeah, I agree, though Like at the end of the day, like the perception of it or the image of it just doesn't look good.

Sara: 50:27

Right, but there really is nothing we can do about it, given the current rules and norms at the Supreme Court. It really is something we leave up to the justices. But you know, as I said at the start, I think that's a place where the justices have an opportunity to gain some ground back on legitimacy. You know, like start showing people that you take seriously potential conflicts of interest and start demonstrating to people that you take seriously your obligation to have full oral arguments in cases that are going to set some sort of policy. You know, think through the implications for legitimacy of your choices that you make in terms of where to appear and what sorts of audiences to address and what kinds of topics to talk about. Those are all opportunities for the court to affect their legitimacy, as far as we know.

Shawn: 51:17

All right, we can't finish without talking about the newest addition to the court, so Justice Katonji Brown-Jack Jackson. Unfortunately, she's joining the court at a time that will probably end up being inauspicious for her first term, but you know what does this mean for the court and for the country.

Sara: 51:33

I mean, I think it's a powerful symbol of, you know, the ability to rise above some of the systemic racism that continues to pervade the legal profession and other professions. I think her experience as a defense attorney is hugely important, also maybe more important than her gender and her race, but I do think the fact that she is joining the bench as the first African-American woman is something that is, you know, really impactful for people who are watching the court. As you said, not much impact on policy likely, and it'll be interesting to see how frequently she dissents and what sorts of arguments she makes and whether those are any kind of, you know, any sort of systemic difference from her other democratically appointed justices or colleagues. But you know, I think it's, I think it's a really big. That first day will be a really big day for, you know, racial and gender equity.

Shawn: 52:34

Okay, Final question what's something interesting you've been reading, watching, listening to or doing lately, and it doesn't have to be related to this topic?

Sara: 52:41

I was recently in Montreal. I saw that.

Shawn: 52:44

It looks beautiful.

Sara: 52:45

Oh, it was gorgeous and that was really fun, and one of the things I did as you know, sort of the book nerd that I am is kind of tried to scope out some places in Louise Penny's Mysteries. Have you ever read any of her mysteries?

Shawn: 52:59

No, I know the name, but no.

Sara: 53:01

Yeah, she has this Inspector Gamache series that's set in Quebec and there are some. I mean the bulk of it plays out in the Eastern townships, but there's a few things that happen in Montreal, so I kind of looked around for those a little bit. But it was a nice trip. It was nice to see. I went for the political science convention and it was really nice to see people Like we haven't been to many in-person conventions recently, so that was fun. Although when the customs agent asked me you know like, were you here for the political science convention? I said yeah, and he's like how is that? And I'm like I mean it was a political science convention.

Shawn: 53:40

How small is this airport we're getting?

Sara: 53:43

an influx and it's only political scientists. No, we were huge. Like there were banners all over the city with APSA on them. It was crazy.

Shawn: 53:51

It looked beautiful.

Sara: 53:53

Apparently, it's a big conference for Montreal.

Shawn: 53:55

I was going to. Yeah, clearly, have you read the Cardinal series that I think they made it into? Well, I know they made it into a TV series, but it's a series of books. I don't think so. Crime set in Canada. Oh, and it has a Nordic noir feel to it. They're very good.

Sara: 54:10

Oh cool, I'll have to look for that.

Shawn: 54:12

Yeah, I'll send you the information.

Sara: 54:14

Thanks for the tip, yeah.

Shawn: 54:16

Dr Benesh. As always, it was fun. Thank you, you're Anytime Okay. So this court is poised to take on most likely, in my opinion, overturn some pretty significant precedents on very consequential issues this term. As I told Dr Benesh, I'm an alarmist and I'm a fatalist, but the past few years have borne me out. I feel as if I've finally let go of the pomp, circumstance theories and norms that have led me to believe that the country is shielded from the worst that a purely ideological court could do enrollments of students of color. If politicians have redrawn their districts outside of the census cycle to explicitly erase the voting power of constituencies they don't like, and states are actively preparing themselves to overturn election results in the next presidential election that don't align with their preferred outcomes. All legal and all thanks to the United States Supreme Court. I hope I'm wrong, but I doubt I am. I'll have Dr Benesh back on Deep D dive after the term concludes in June or July next year to survey the damage.

Shawn: 55:31

All right, next week I'm talking to Alex Vatanca, founding director of the Iran program at the Middle East Institute and author of the book the Battle of the Ayatollahs in Iran the United States foreign policy and political rivalry since 1979. We'll talks in Iran the United States Foreign Policy and Political Rivalry Since 1979. We'll talk about his work, the Iranian revolution, the influence of the Ayatollahs in everyday life of Iranians, the relationship between Iran and the United States, the morality police in Iran, the death of Masa Amini, the protests that have engulfed the country since and what it might or might not mean. Chat soon, folks.