Legal Docket - Supreme Court Preview: S2.E9

MARY REICHARD, HOST: The Supreme Court 2021/2022 season got underway on October 4th. Many well known cases are on the docket...

MONTAGE: NEWS STORIES

MR: Each of those headline news stories spun lawsuits that have now reached the US Supreme Court. The nine justices will wrestle with questions about capital punishment, school funding, abortion, and other controversies that are sure to affect the lives of Americans for generations to come.

I Clarence Thomas...I Sonya Sotomayor...I Neil M. Gorsuch...I John G Roberts...I Elena Kagan...I Samuel Alito, Jr….I Steven Breyer...I Ruth Bader Ginsburg...I Brett M. Kavanaugh do solemnly swear, do solemnly swear, do solemnly swear, that I will administer justice, without respect to persons, that I will support and defend the constitution of the United States, so help me God…[APPLAUSE]

MR: Welcome to Legal Docket, I’m Mary Reichard.

JENNY ROUGH, HOST: And I’m Jenny Rough. This podcast is from the team that brings you The World and Everything in It.

The honorable Chief Justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez!

MR: Come with us inside the world of the Supreme Court as we look more deeply into current disputes and how they make a difference to your life.

All persons having business before the honorable Supreme Court...

JR: Today, a preview of the new Supreme Court term...that began the first Monday in October.

God save the United States and this honorable court.

UNDERWRITER: Support for the Legal Docket podcast comes from listeners like you. Additional support comes from Samaritan Ministries, a Biblical solution to health care, connecting Christians across the nation who care for one another spiritually and financially when a medical need arises. More at SamaritanMinistries.org/podcast.

MR: Well, Jenny, here we are at the start of a brand new term of the Supreme Court!

JR: That’s right, and so we thought it a good time to preview some of the big cases already on the court’s calendar. And just to clarify, Season 2 of Legal Docket Podcast isn’t over quite yet. God willing, we’ll focus on one more case next week.

MR: We’ve picked a handful of cases to preview that we think you’ll find interesting. And it’s important to note that the court’s argument calendar is not filled up! Typically the court hears somewhere between 60-80 cases per term, so definitely some “biggies” are out there we don’t know about yet.

JR: We’ll be covering each of those every Monday on our sister podcast The World and Everything in It. So we won’t miss anything.

MR: We won’t, and let me say, I’m really glad you’ve come along so I can take some vacation days! All right! Let’s get at it.

JR: Alright. We’ll start with a case scheduled for argument December 1.

SOUND: SONOGRAM

JR: Dobbs v Jackson Women’s Health Organization. It centers on a law about abortion. This case is huge. Even more important than the last two major abortion rulings. Those earlier cases dealt with a more narrow aspect of the debate. That is, what it means to unduly burden a woman who wants to get an abortion. 

MR: This case focuses more on the unborn child. It asks whether it’s unconstitutional for Mississippi to ban nearly all abortions after 15 weeks’ gestation. A little context around abortion jurisprudence may help. Current Supreme Court doctrine combines two prior decisions, Roe v Wade and Casey v Planned Parenthood. Taken together, those rulings say that when the unborn child is not yet viable, a state cannot impose an undue burden on a woman’s right to an abortion.

JR: But technology is changing the viability factor. Around 23, 24 weeks, a child, despite prematurity, can survive outside the womb. And what “undue burden” really means hasn’t been clarified in all circumstances. So that standard is what the justices will revisit. Here are the facts of this Mississippi case. In 2018, the state passed the Gestational Age Act that prohibits abortions after 15 weeks, with a couple of exceptions. Right now, Mississippi has one licensed abortion facility, and it sued along with one of its doctors.

MR: Yeah, they said this directly defies Roe v. Wade. The abortionist won in lower courts. And now the Supreme Court will hear the case. Barry McDonald is a constitutional law professor at Pepperdine University. He’s written a lot about abortion law. McDonald clarifies the precise question for the justices. When he says “plaintiffs,” he means the abortion facility and the doctor challenging the law.

BARRY MCDONALD: The interesting thing is, out of all the claims that the plaintiffs made in the Missouri litigation about, you know, this law being unconstitutional, the Supreme Court just basically issued an order and said, “Okay, the only question that we’re interested in addressing in this case is whether all pre-viability bans on abortion are unconstitutional.”

JR: In other words: The Supreme Court is open to reevaluating viability as the essential point that determines when a state can ban abortion. What does that mean for Roe?

MCDONALD: I think essentially, reading between the tea leaves, we are open to either revising the Roe-Casey framework substantially, or at least sort of agreeing that a state can move that key marker earlier in the pregnancy to when a state can ban abortions.

JR: Does that mean overturning Roe? Maybe. But McDonald foresees the court tinkering instead.

MCDONALD: I think the easiest path for the court would be not to overrule Roe, to sort of retain its holding that there is a right of a a woman to get an abortion before a certain point. I just think that they might say, you might get a coalition of justices to say that, well, that point is earlier than when the fetus becomes viable. It’s really roughly around what Mississippi has determined is a legitimate milestone for that, which is the 15-week mark. That would allow them to say we’re not overruling Roe v. Wade or Casey, we’re just sort of modifying those rulings a bit. 

SONG: HAPPY BIRTHDAY BY FLIPSYDE

MR: So that’s the big pro-life case this term. Well, let’s move on to another dispute the Supreme Court will hear.

COMMERCIAL: It’s more than a marathon. It’s The Marathon.

MR: This case arises from April 2013, when two brothers detonated bombs at the Boston Marathon, intent on jihad against Americans. Three people lost their lives that day, including 8 year old Martin Richard. Hundreds of others suffered grievous, life altering injuries. Including Richard’s little sister, who lost both of her legs in the blasts.

JR: The older brother was killed in a shootout with police. Two years later, 19 year old Dzhokhar Tsarnaev received the death penalty for his part in the bombings. He appealed, alleging the jury selection process violated his constitutional rights to due process and an impartial jury, among other things. The trial court hadn’t asked potential jurors about what media coverage they’d seen about the case. Nor had evidence been allowed in about the older brother’s prior crimes. That might have shown undue influence over the younger brother and mitigated some of his actions.

MR: Well, the appeals court agreed with him and threw out the death sentences. So now the United States appeals, asking the justices to find the appeals court got it wrong. It’s important to note that Tsarnaev is serving several life sentences, so even if he prevails here, he won’t be released from prison.

JR: Moving along now to our next case. 

MCDONALD: If any decision is going to have a real impact on Americans’ day-to-day life, and I mean their day-to-day life, it’s going to be this decision.

JR: That’s Pepperdine law professor McDonald again talking about New York State Rifle and Pistol Association v. Bruen. A dispute over gun laws. He gives a super brief history of when the Second Amendment in the Bill of Rights became an individual right. That happened in a 2008 case. Before then—

MCDONALD: But the Supreme Court had never held that the Second Amendment guaranteed a right to own weapons for purposes of self defense. If you look at the Second Amendment, you know, you’ve got to focus on the prefatory clause: A well regulated Militia, being necessary to the security of a free State, comma, the right to keep and bear Arms, shall not be infringed.

MR: That comma McDonald pointed out? That’s caused a lot of debate about the purpose of the Second Amendment. The Supreme Court in 2008 held that the Second Amendment guaranteed an individual’s right to own weapons for the purpose of self defense. In the home. And called it a fundamental right. The upcoming case goes a step further: outside the home.

JR: Correct. That’s the question here: whether that right extends outside the home. Two men and a gun rights advocacy organization sued over a state law.

MCDONALD: You have two plaintiffs who wanted to be able to get a license as New York requires to carry concealed weapons in public. But New York law requires that there be a special self defense need in order to get such a license. And one of the plaintiffs basically cited the fact that he lives in a neighborhood that has experienced a string of robberies. And the other plaintiff just said I’m just well-trained in firearm use and shouldn’t need a special justification to carry a concealed weapon in public. And so they’re just suing to say this requirement of a special needs in order to get a license to carry a concealed weapon in public violates their Second Amendment rights.

JR: In other words, New York law says you have to have good cause to conceal carry outside the home.

MR: Other states have similar restrictions on guns. For example, Massachusetts and California. But constitutional rights labeled as fundamental are usually subject to strict scrutiny. That’s the highest level of judicial review. It requires that the government show a compelling interest before infringing on certain rights. And even the compelling interest must be narrowly tailored to achieve that interest. That’s not the test lower courts applied after the high court’s 2008 ruling.

JR: Instead, the lower courts have adopted a form of intermediate scrutiny. They have looked at certain gun restrictions carefully for a number of reasons, like concern over mass shootings.

MR: The Supreme Court has declined to hear appeals from these lower court rulings. Until now. Will they signal to the lower courts to start applying strict scrutiny? Will the court extend the Second Amendment to include the right to bear arms outside the home?

JR: McDonald says what the court will do is always a big question mark. But in this case, he thinks it will side with the gun law.

MCDONALD: And I think that the prospect of you know, essentially seeing courts strike down the sorts of special needs requirements and having, you know, millions of Americans out there having guns tucked under their coats, walking in public. I think that's gonna make them extremely nervous, especially in this day of you know, daily shootings. 

SONG: SHOTGUN BY THE RANDY ROGERS BAND

MR: On to our fourth case to preview. This one asks whether a woman who was denied a sign language interpreter can sue for damages for emotional distress.  Jane Cummings was born deaf. She went to a rehab clinic to treat her back pain and asked that the clinic provide an interpreter to communicate in American Sign Language. The clinic declined to do that, but offered to communicate with written notes or lipreading. Or, Cummings could bring in her own interpreter.

JR: That prompted Cummings to sue the clinic, alleging discrimination based on her disability. She sued under several laws: the Americans with Disabilities Act, Title VI of the Civil Rights Act of 1964, and the Affordable Care Act to name three. The lower courts found she couldn’t be compensated for “humiliation, frustration and emotional distress” under the laws she relied upon.

MR: So now the Supreme Court must decide whether she can be compensated for emotional distress under these laws. Onto our 5th case to touch on today. This one arises out of Maine. I spoke to the lawyer for one side. Remember, this is a preview, not a complete treatment. Michael Bindas with the Institute for Justice. I’ll let him explain:

MICHAEL BINDAS: Maine has a town tuitioning program. Basically, if you live in a town in Maine that doesn't either operate its own public school or contract with a school to educate the kids from that town, the town has to pay tuition for those students to attend the school of their choice, be it public or private. But the one type of school Maine does not allow is any school the state deems to be sectarian, basically meaning any school that provides any kind of religious instruction.

JR: Two families who were entitled to use the program sued. But the state said they couldn’t use the program at the school of their choice, which happened to be religious schools. Two families sued when the state denied them tuition money for the school of their choice, which happened to be religious schools. The school doesn’t even have to be in this country. Maine routinely pays for children to attend schools in other districts, and even abroad.

BINDAS: But a student better not dare try to go to a Jewish Day School or their local Catholic parish’s school, because that’s off limits. ​​Maine claims that it wants to ensure that the children who participate in the tuitioning program receive an adequate substitute for a public school education. The problem with that argument, though, is the religious schools that want to participate provide all of the secular instruction that the state requires under the state's compulsory education law. The state has already determined that these schools are an adequate substitute for a public education. And yet the state continues to exclude them.

MR: This dispute might sound familiar to you. Not long ago, the Supreme Court ruled in a case called Espinoza v Montana Department of Revenue. That decision said it’s unconstitutional for a state to permit funding for education in general, while prohibiting it for religious schools. So., what gives?

BINDAS: But the state did some clever tactics to try to navigate its way around that decision, and really kind of forced this issue to the point where the Supreme Court has to step in again…. Basically, what the court said in Espinoza is that you can't exclude a school from a program like this just because it is religious, just because it has a religious status. Well, Maine argued and the first circuit in its decision in the Carson case, said well it's not really excluding schools, because they are religious. It's excluding schools because of the religious use to which a student's tuition benefit would be put, namely providing religious instruction. And somehow this was a distinction with a constitutional difference in the first circuit's mind.

JR: So that’s about school funding, the religion clauses and the Equal Protection Clause of the Constitution. All right, next case: Fazaga v FBI. A surveillance matter. Drones. Security cameras. GPS trackers. Ring. Alexa. It’s unnerving to think how easily we’re spied on.

MR: Government surveillance on American citizens and lawful residents! 

STEVE SCHWINN: The Fazaga case is just a crazy one.

JR: That’s Steve Schwinn. Constitutional law professor at the University of Chicago. Co-editor of the Constitutional Law Prof Blog. He tells the story:

SCHWINN: What happened in this case is a number of Muslim individuals in Southern California alleged that they were subject to electronic surveillance in violation of what’s the called the Foreign Intelligence Surveillance Act.

MR: The F-I-S-A, Foreign Intelligence Surveillance Act. Or FISA for short. Yassir Fazaga and others sued the FBI. They allege the FBI targeted them specifically because of their religious beliefs.

JR: And in doing so, violated their First Amendment right of religious freedom. But the FBI argues the FISA allows it to conduct the undercover monitoring here.

SCHWINN: The Foreign Intelligence Surveillance Act allows the government, in certain circumstances, to go to a special court called the Foreign Intelligence Surveillance Court, F-I-S-C, to get a secret warrant to engage in electronic surveillance in the national security.

JR: But the plaintiffs objected and sued.

MR: So the FBI has to mount a defense. But the FBI says, hang on. If we provide information to defend ourselves, that could threaten national security. So we’re invoking a privilege: the state secrets privilege.

SCHWINN: The government says if we are to reveal information that is necessary in this case in order to defend the FBI and/or officers against claims of religious freedom, the information could reveal secrets that would threaten national security. And so therefore we can’t reveal that information.

MR: And when the FBI invokes this privilege, it goes through a formal process. The attorney general or someone in the know signs an affidavit, a sworn statement under oath. That person vouches for the fact that the information could, indeed, threaten national security.

SCHWINN: At that point, the judge takes a look at the affidavit, but not necessarily the actual evidence. Looks at the affidavit and makes a determination. Do I have faith in this affidavit, and therefore I’ll exclude the evidence? Or do I not trust the affidavit, and therefore, I’ll allow the evidence to come into the case?

JR: And the district court allowed the FBI to do just that: to invoke the state secrets privilege. And, in turn, it dismissed the religious liberty claim. But on appeal, the court said, wait, we don’t think the state secrets privilege is applicable here.

SCHWINN: Instead, what’s applicable in this case is a particular provision in the FISA that allows a court to examine evidence in camera and ex parte, that is away from the parties, outside of the presence of the parties and in camera in the judge’s chambers by the judge itself.

JR: So the judge would examine the actual evidence. And the judge would decide if what the FBI claims is actually true: that the evidence it would use to defend itself really would threaten national security.

MR: This appeal to the Supreme Court followed. The FBI argues the state secrets privilege does apply. And? No second-guessing allowed! It argues the privilege is rooted in the president’s constitutional authority to protect national security and engage in foreign affairs. So courts must grant the FBI extraordinary deference when it’s invoked.

JR: In other words, it’s a trump card. The court must dismiss the case. Shut it down.

SCHWINN: It sounds highly technical, and somebody might be scratching their head and ask, well, who cares, right? This actually matters quite a bit. The state secrets privilege is a privilege that we saw the government exert with actually kind of breathtaking aggressiveness in the so-called war on terror.

JR: And none of those previous cases got to the Supreme Court. So here, the Supreme Court has a chance to address things like: What evidence can go forward? How can courts consider that evidence? Schwinn points out there’s always other ways for the court to resolve a case. But it is a chance for the Supreme Court to determine the scope and extent of the state secrets privilege. A big important one, or a lesser important one?

SCHWINN: So, really, on some level, the question is to what degree are the courts going to defer to that affidavit and that say-so? You know, we’ve seen in our country’s history where the courts have deferred to the government's say-so when the government claims that particular evidence would raise a national security concern. And it turned out later to be revealed that it wasn’t a national security concern at all. It was just trying to cover up embarrassment. … Depending on how broadly the Supreme Court defines the state secrets privilege, it could set up a system of incentives for exactly that kind of thing to happen.

MR: Intriguing. We’ll keep our eye on that one.

SONG: AMERICA THE BEAUTIFUL BY RAY CHARLES

JR: Spacious skies … purple mountains majesties.

SOUND: RECORD SCRATCH

MR: And lots and lots of billboards! Beautiful America. File this next case under “First Amendment, free speech.” Billboard speech. City of Austin, Texas v. Reagan National Advertising of Texas. Here’s University of Chicago law professor Steve Schwinn again.

SCHWINN: The City of Austin has a ban on what they call off-premises advertising signs. And here we can think of Billboards that are not at the site of a business, right? A billboard that advertises for a business that’s off-site of the business, which is a typical billboard that I think most of us are familiar with.

JR: So the city bans those. But it grandfathered in billboards that existed before the ban took effect. Older billboards.

SCHWINN: A regular old sort of static billboard that is, you know, either painted on or plastered on.

MR: Well, those billboard operators wanted to change their old school billboards to flashy electronic advertisements. The City of Austin said no. You can change the message, but not the technology. The billboard operators sued, and argued that that violates their First Amendment free speech rights.

JR: What’s known as a content-based restriction on free speech. The Supreme Court has taken the position that regulations should be treated with suspicion if they regulate expressive activities. The billboard operators say that’s what the city is doing here. It’s a clever argument. Listen closely:

SCHWINN: The government here is restricting the kind of speech of the billboard operators based on the content of their speech. Now, this isn’t obvious. What they’re saying is that you have to actually read the content of the billboard to determine whether the billboard is on-site or off-site. And because you have to read the content of the billboard in order to make that determination, the rule itself is content-based.

MR: In other words, the billboard operators say the signage code prohibits certain off-premises signs. The only way to know if a sign is off-premises—if goods are offered in a different location—is to read the sign. Because you have to read the content of the sign to understand that, the city is trying to regulate content-based speech. That’s not allowed under the First Amendment.

JR: The City of Austin is saying, no, no, no. This isn’t about what the billboard says. This is just a law about a content-neutral time, place, and manner restriction on speech. They’re concerned with aesthetics. And don’t want flashing ads that could distract drivers. So that’s the fight in that case.

SONG: KEEP THE CUSTOMER SATISFIED BY SIMON AND GARFUNKEL

BILLY GRAHAM: I think we’re all conscious that this life is very temporary. And it’s very short. … We’re all facing death. And we all better get worried about it and be sure we’re right with God.

MR: Ok, now we’re to the final case we will preview today. A case that may finally settle a problem that’s cropped up in the most somber of places: the death chamber.  

NEWS CLIP: We’re gonna get straight to it. The US Supreme Court issued a stay of execution for John Henry Ramirez. He’s convicted of killing Corpus Christi convenience store clerk Pablo Castro in 2004.

MR: That stay of execution came in the 11th hour in September. Death row inmate John Ramirez wants his Southern Baptist pastor to pray out loud and lay hands on him while he is executed. Ramirez says that to deny him that violates the First Amendment and Religious Land Use and Institutionalized Persons Act.

JR: But the prison has a policy about this. For one thing, a background check on the spiritual advisor’s credentials must be done. That takes time. The spiritual adviser needs to complete a two hour, in- person orientation with a staff member. Other rules apply,too, and all have time requirements in which to request and then complete them. This inmate didn’t meet those requirements. And he kept changing what kind of spiritual help he wanted.

MR: Listen to Elaine Salcedo, the sister in law of the murder victim, after hearing the news that Ramirez’s execution is delayed for the third time.

ELAINE SALCEDO: From here on out it’s just a waiting game, it’s just a waiting game. And once again, the family’s put on trial because they have to go through this.

MR: Ramirez’s attorney Seth Kretzer sympathized with how disappointed the family of Pablo Castro must be with another delay. Kretzer acknowledges his client will eventually die by lethal injection, but:

SETH KRETZER: So that all I can conclude is that there is no prayer- free zone in our country. There is no Godless vacuum in the execution chamber or anyplace else. Laws are laws, the Constitution applies, has to apply everywhere and always, every corner of our fair land and that even includes the hell of an execution chamber right before a citizen is put to death.

JR: Texas argues it isn’t forcing Ramirez to do something that violates his faith; it is merely declining to accommodate all that he requests. And that, it argues, does not substantially burden his rights.

MR: Well, that concludes our preview of some cases to be argued during this next Supreme Court term. As we noted earlier, the justices will add many more cases to fill out the entire term. Next week is our final installment for Season 2 of Legal Docket Podcast. Think Thomas Edison. The Wright Brothers. Alexander Graham Bell. We’ll cover a case about inventors.

JR: Legal Docket is produced by the creative team at WORLD Radio. I’m Jenny Rough.

MR: And I’m Mary Reichard. We’re the hosts each week and we research and write the scripts. Our script editor is Paul Butler, who is also our producer. Technical engineer is Rich Roszel.

JR: We want to thank our guests who gave us insight into these cases: Barry McDonald, Michael Bindas, and Steve Schwinn.
Music from Flipsyde, The Randy Rogers Band, Ray Charles, and Simon and Garfunkel. Other audio sources include ABC News, Al Jazeera, The Associated Press, The Boston Athletic Association, WCSH, EWTN, and KRIS-TV.

MR: Thank you for leaving us ratings and reviews. And if you’ve also shared this podcast with others, all the better! It’s fuel to propel us to a season three next summer, God willing.

JR: On behalf of our entire team, we thank you for listening!

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