Legal Docket: Behind the scenes

MEGAN BASHAM, HOST: It’s October 7th, the first Monday in October 2019. Our colleague Nick Eicher had to be away today for a family obligation, and we’re here to pick each other up.

Happy to be here today and good morning to you, I’m Megan Basham.

MARY REICHARD, HOST: And I’m Mary Reichard. 

It is the first Monday in October, and of course that means the Supreme Court hears oral argument today for the new 2019-2020 term. 

We’ll get to that in a moment. 

But first, a surprise decision from the federal bench just over a week ago. Interesting it should come as we’d just discussed last week the erosion of free speech and freedom of religion on college campuses.

But U.S. District Judge Stephanie Rose ruled that the University of Iowa violated the Constitutional rights of students in a Christian ministry, InterVarsity. 

University officials had earlier decided the group cannot ask its leadership to be practicing Christians. 

Other religious groups were also kicked off campus under the same school policy. Yet, the school didn’t apply the same standard to secular groups and some religious groups of which the public university approved.

BASHAM: That’s right, and looking over the decision, Judge Rose went even further: She found the actions of the university so egregious that the officers involved would be personally liable for the money InterVarsity lost defending its Constitutional rights.

Egregious acts like freezing InterVarsity’s bank account. Closing down its website. Putting out word that the group was “defunct” due to lack of interest.

The court used the words “ludicrous” and “baffling” to describe what the university had done, especially in light of a lawsuit it lost earlier this year. 

That case involved Business Leaders in Christ.

REICHARD: As we reported last week, Wayne State University threw  InterVarsity off campus for the same reason. That school is still defending its actions in another court. And Duke University did the same thing to Young Life, another Christian organization. 

Judge Rose is a trial judge and her decision doesn’t bind other jurisdictions, so we’ll have to wait to see whether her reasoning emboldens other judges in other settings. We’ll keep watching.

BASHAM: Well, Mary, as you said, today marks the opening of a new term for the Supreme Court, and I know the argument analysis keeps you very busy, but I’m eager to hear your take on this new batch of cases.

I see here that five arguments are on the calendar for this first week. 

The first case asks whether the Constitution allows a state to abolish the insanity defense. The last argument this week is the case I heard you talk about several weeks ago: the employment dispute involving a transgender individual who worked as a funeral director.

REICHARD: That’s going to be a significant case, because it touches on so many areas of employment law, so it’s pretty certain to be a landmark case however it’s decided.

But of course it’s not the only one. I expect over the next seven months, we’ll have something like 70 arguments the justices will hear this term. And we will touch on them all.

And this is the way we do that, given the ten minutes allocated to Legal Docket each Monday.

The Supreme Court releases the transcripts the day of arguments. I read through those to get a sense of the direction the case is going.

But the court releases audio for arguments on Friday afternoons of the week those cases are argued. So, in other words, for a case argued today I won’t have access to the audio until Friday.

And that means finding the best audio takes me some time on Friday and Saturday, because I listen to them myself.

BASHAM: You typically only cover 1-2 cases per week, though. So I assume sometimes you’ll have a little play in the process?

REICHARD: If I do it right, sometimes. Yes. But it’s called the Supreme Court for a reason. The court makes its own rules and runs according to its own schedule. Haha, so my powers are limited!

BASHAM: Sometimes they just run roughshod over our schedules!

REICHARD: They sure do! All I get to say is, “may it please the court” and sometimes my plans simply don’t please the court. 

Well, let me set the table for the term, as best as I know it. This is a sort of tutorial for understanding  the mechanics of the Supreme Court. I’ve done this a few times in the past to good effect, I think.

I’ll start with how a case gets to the High Court in the first place. 

The Constitution narrows down the field of potential cases by defining what kind of case is suitable for review at the Supreme Court. 

One kind arises from a dispute between the states. Those goes straight to the court, no lower court involvement at all. 

That’s called “original jurisdiction.”

BASHAM: But those are pretty rare, right? It’s usually a review of some error or conflict in other lower-court rulings.

REICHARD: You’re right about that. The vast majority of cases end at the appeals level. Truthfully, even most of the trial decisions that are appealed aren’t even accepted for appeal. So if you lose at trial, odds are that’s it. But appealing the appellate courts is even longer odds.

In other words, the Supreme Court has wide discretion in what cases to hear.

Listen to the way Justice Clarence Thomas explained it on C-SPAN:

THOMAS: Most people think that they have a right to come to the court. For the most part, you don’t. Not this court. The courts of last resort maybe you have a right to go to those. But most of our jurisdiction is discretionary. In other words, we decide if you can come. 

Overall, the main focus is to ensure federal law is uniform across the country. 

That means if the circuits disagree with each other, the Supreme Court is more likely to accept it. 

But it’s no guarantee. 

After a case is accepted, both sides file their written arguments, called briefs. “Brief” in this context is still pretty long: It can run up to 50 pages.

If any person or group has a particular interest in the outcome of a case, they have the option of filing friend of the court briefs in support of one side or the other, or sometimes, no side at all. In that instance, the party just wants its views known on the law or the facts.

BASHAM: Now, skip ahead to oral argument day.  Lawyers arrive by 9:45 a.m. eastern time for some instructions.

If the federal government is a party, the person who represents it is the SG, the Solicitor General. We have audio from one of them, a former SG by the name of Drew Days.

DAYS: It’s designed to calm lawyers down who are doing their arguments for the first time.  To make certain that there are not faux pas – that they don’t tell jokes or attempt to tell jokes during their oral arguments or not refer to their familiarity with one of the justices. And that indeed they will survive the experience.

I love that, survive the experience. It’s got to be nerve-wracking. I’ve talked to lawyers who’ve spent months rehearsing their arguments, preparing what they plan to say, then succeeding in only getting “may it please the court” out of their mouths only immediately to be interrupted with a justice’s question they just didn’t see coming. It’s rattling!

Still, it’s not necessarily as freewheeling as it may seem. 

The justices have to get ready, too. A buzzer sounds to alert the justices they have 10 minutes to put on their robes and be in their seats. 

Justice Ruth Bader Ginsburg describes the tradition around that.

GINSBURG: As we enter the robing room, the first thing we do is go around the room, each justice shaking hands with every other.And it’s a way of saying “we’re all in this together.”

BASHAM: The justices then proceed to the Courtroom and take their seat on an elevated dais. The Chief Justice takes the middle seat, senior associate Justice Thomas sits to his right, and to his left the second senior associate justice, Ruth Bader Ginsburg. It alternates like that by seniority. Farthest away are Justices Neil Gorsuch and Brett Kavanaugh, as the two newest associate justices.

Since 2001, Marshall Pamela Talkin opens with this traditional chant, the old French rendering of “Hear! Hear! Hear!” designed to command attention, at ten a.m. sharp eastern time.

TALKIN: (Gavel) The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez, Oyez, Oyez! God save the United States, and this honorable Court. (Gavel)

REICHARD: Then Chief Justice John Roberts opens each argument just as he did for the very last argument heard in April of this year, along with the obligatory opening line from the lawyer at the lectern:

ROBERTS: We’ll hear argument next in Case 18-489, Taggart versus Lorenzen. Mr. Geyser? 

GEYSER: Thank you, Mr. Chief Justice, and may it please the court.

And off to the races the lawyers go, making their best arguments for their clients, peppered with questions from the justices. 

Justice Elena Kagan explains that aspect.

KAGAN: The argument is for us to say, ‘well, yes, we’ve read your brief. We know what you think of the case. But here are the questions that that inspired in us.

One justice is famous for saying nothing most of the time. When Justice Thomas actually does say something, it makes the news! Here he is again on C-SPAN.

THOMAS: I guess I view oral argument a little bit differently. 20:24-20:28 I think it’s hard to have a conversation when nobody’s listening. When you can’t complete sentences or answers. Perhaps that’s a southern thing, I don’t know.

So different people, different styles. 

At this level of the judiciary, there’s no witness stand. No cross-examination, no jury. 

Those are lower court functions. 

At the Supreme Court, it’s not about guilt or innocence. It’s about how to administer the law as measured against the Constitution.

And this is where another difference can be heard from the bench. It’s the difference between originalism adherence and the “living Constitution” adherence. 

Justice Neil Gorsuch is an originalist. 

GORSUCH: All it is though is the idea that judges should interpret written laws according to their original public meaning… What happens when judges act as legislators? And instead of following the law, faithfully, begin to make things up?  Well, maybe the first real departure by the United States Supreme Court from the Constitution as it was originally written was Dred Scott…the Supreme Court of the United States held that white persons have the right to own black persons in the territories of the United States. And they said that right could be found in the Fifth Amendment’s Due Process Clause. Now scour the Fifth Amendment as long as you want. It’s not there.

In other words, the separation of powers means judges and justices should apply the law and let any changes to the law come from the people’s representatives in Congress, where government officials don’t have life-long tenure and who are accountable to the people they represent. 

Here’s another way Justice Gorsuch put it:

GORSUCH: The Constitution l starts with three words. And they aren’t “we, the judges.” They’re “we, the people.”

But other justices are more of the “Living Constitution” mindset. 

Listen to this clip on C-SPAN from 2016 of Justice Sonia Sotomayor on the Living Constitution theory.

SOTOMAYOR: Which is that the Constitution is not a dead document, but a living one, that was intended to last as long as the country could last. And that our Founders hoped it would be basically forever. And that it was intended to grow with the society and to be interpreted within the norms that the society develops. For example, on issues like cruel and unusual punishment. A person or a justice more akin to the living constitution would say, you know, it was okay back when to burn people to death. Today, our norms of decency have changed. Today, that’s cruel and unusual.

That tension around how to do the job of judging is evident during oral argument with questions the justices ask. And it’s revealed in the eventual opinions and dissents the justices write. 

I’ll let Justice Gorsuch have the last word today, but it’s one that I think the other justices would support.

GORSUCH: The rule of law in this country is one of the wonders of the world. It is the envy of much of the world. I’m not here to tell you it’s perfect but I am here to tell you we have a wonderful inheritance, a blessing and we should appreciate that.

So next week, we begin anew to bring you every oral argument the Supreme Court hears this term.

And that’s this week’s Legal Docket!

(AP Photo/J. Scott Applewhite) In this June 24, 2019 file photo, the empty courtroom is seen at the U.S. Supreme Court in Washington. 

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