Analysis Of The US Supreme Court's Recently Concluded Term
SPEAKERS
Timothy Johnson, Jim du Bois
Jim du Bois 00:00
Dialogue Minnesota. Conversations about the issues that matter to you. I'm Jim du Bois. The US Supreme Court recently concluded its term and issued several significant rulings. We're joined by University of Minnesota Morse Alumni Distinguished Professor of Political Science and Law Timothy Johnson who is a Supreme Court expert. Professor Johnson, welcome back to Dialogue Minnesota.
Timothy Johnson 00:25
Always a pleasure to be on. Thanks for having me.
Jim du Bois 00:27
Chief Justice John Roberts became a centrist figure on the court when Ruth Bader Ginsburg was still alive. Now that her replacement Amy Coney Barrett has moved the court much farther to the right, has Roberts continued to be a swing vote?
Timothy Johnson 00:43
So, I think the answer to that, Jim, is that it depends. And there are going to be times where he is not the swing vote, where he is going to end up being in dissent with the three justices in the liberal bloc, that would be Justices Breyer, Sotomayor and Kagan. But there are going to be other times where he will continue to be that force, if you will, of being the middle of the road moderate voice. And I think the way that he's going to do that is to have the Court end up having possibly more six to three decisions. And when he's in the majority as Chief, he enjoys one of his limited powers, and that is to decide who writes the majority opinion. That is, he has the assignment power. And many of these cases that are going to continue to come to the Court that might be very high profile that might change the law in dramatic ways, he will most likely assign many of them to himself so that he can limit how extreme those decisions are. But at this point, it's going to ultimately be a power on the Court that is divided between the Chief, if he decides to be in those six member majorities, or with Associate Justice Clarence Thomas who is now the Senior Associate, since as you said, Justice Ginsburg died last year. And so, if the Chief ends up in the minority with the liberal bloc, then it will be Justice Thomas who will get to assign the opinion. And that's where you might see some more stridently conservative opinions. And so that Chief, I think, has a much more difficult job that he did quite well if you are someone who wants the court to remain moderate. This past term, it is in question as to how long he'll be able to hold on to that ability.
Jim du Bois 02:21
Well, to what extent did we see the courts conservative majority actually flex their muscles this past term?
Timothy Johnson 02:28
Yeah, that's a great question. I mean, the biggest flexing or the most flexing you saw was on the last day of the term, and I'm sure we'll talk about these cases, the voting rights case, as well as the freedom of speech case in terms of revealing to whom big corporations are donating money to during elections. And then a little bit earlier in the term, but in the spring, as well, also in a criminal rights case about putting people in jail for a lifetime without parole. But beyond those three cases where you had a pretty big, and your language, Jim, flexing of the conservative muscles, there are several other cases for, in particular, where you ended up having pretty large-scale majority 7-to-2, 8-to-1, or unanimous decisions, where you had members of the liberal coalition signing on to opinions with members of the more conservative coalition in what we would call very narrow decisions. So, the muscle was flexed, the conservative muscle was flexed, but not to the extent that I think commentators thought that it would be.
Jim du Bois 03:30
What is your take on Justice Amy Coney Barrett so far? Have any of her opinions or dissents surprised you?
Timothy Johnson 03:36
So, nothing has been incredibly surprising so far. I mean, I think the biggest surprise is probably that she has taken a more moderate tone than I think many detractors thought that she would. In fact, in a case involving the Environmental Protection Agency that dealt with the Clean Water Act, she actually signed on to a dissent with Justices Sotomayor and Kagan. I don't think anybody would have expected her to ever sign a dissent with the two most liberal justices on the bench, yet she did. She did, however, provide the fifth vote in order to strike down many of the COVID restrictions on religious gatherings beginning out in California, and then that dominoed to several other states, where those restrictions were actually upheld by a five-person majority while Justice Ginsburg was still alive, and Chief Justice Roberts actually provided that fifth vote. He in turn, that is Chief Justice Roberts, continued on the same course of action, that is siding with the liberal coalition but of course, that was just four justices. So, the one place where she really did show her conservatism, if you will, was in those religious gatherings cases. Other than that, she had decisions or or signed on to decisions and opinions that largely would be in keeping with her conservative jurisprudential outlook with the exception, or one other exception, of the election cases from 2020. She was in the majority to say we're not going to hear these cases.
Jim du Bois 05:02
Well, we'll segue right into that. As the Trump campaign sought to overturn election results in several states, the Supreme Court mainly let the state courts handle those decisions. Why did the Court largely stay out of the election fight?
Timothy Johnson 05:17
Yeah, I got to tell you, if you go back and read the scores of books that were written about Bush versus Gore, 21 years ago now, and the hundreds, if not thousands, of articles and analyses, both academic as well as other legal commentary about Bush versus Gore, one of the key themes you will get, Jim, is that the justices really wish in the end that they had not taken that case. Now, you heard a different drumbeat from Justices Scalia and Thomas, who said, look, we had to decide it, and Scalia's famous line was, we decided that Bush won, get over with it. I'm paraphrasing, but that's essentially what he would say in public talks. But I think even he and Justice Thomas would say that it was probably not good for the Court in many ways. It harmed the Court's legitimacy, at least in the short term. I know that there were psychological effects, that is the justices really had a difficult time knowing that they were going to upset for certain half of the country with that particular decision. And, and frankly, the justices said many times behind the scenes, sometimes publicly, that they never really wanted to get involved in a presidential election again, and in fact, they didn't want to get involved in the election game at all, aside from voting rights cases, about the Voting Rights Act. And you saw that when there was the recall election in California, the first time the one in 2001, 2002, when Arnold Schwarzenegger became governor, there were lawsuits, and the Supreme Court refused to hear those cases. And so, I think that the justices really wanted to stay out of the business of deciding a presidential election again, and fortunately for them, they had a really good out and that is, presidential elections or all federal elections, are generally controlled as per the Constitution by state governments. And therefore, they can say, this is not our purview. We don't have anything to say about this. And unless there was some unconstitutional decision made, we're going to stay out of it. And they did. And I guarantee you that made the Chief Justice as well as all eight associates happy.
Jim du Bois 07:22
How did the Court decide cases this term involving COVID restrictions? In the battle between public health versus individual freedoms, how did the court rule?
Timothy Johnson 07:32
Right. So, it initially ruled with the five person majority that included Justice Ruth Bader Ginsburg and the other three liberals along with the Chief Justice, that most of those restrictions were constitutional, right? Remember, the Constitution says point blank, that one of the key powers or the key duties of the federal government and any level of government in the United States is to protect the general welfare, right? That is to protect the people. And those restrictions, even though they may have violated religious freedom to some extent, right, because it was stopping gatherings, the court said during a pandemic, those are legitimate restrictions that are put on even a fundamental right found in the First Amendment. That flipped however, as we just talked about after Justice Ginsburg died, and Justice Coney Barrett joined the bench, because now there was a five-person majority to say, no, those restrictions probably go too far. The problem in the end for the Court, and for people who are fighting the restrictions was in fact that by the time those cases were getting to the court, many of the restrictions were actually being lifted because the pandemic was less of a problem in many of those areas in California and several other states where the lawsuits emanated. And so, the states are already allowing more gatherings or larger gatherings for religious purposes to take place. So, in the end, you know, the Court upheld restrictions and then really was hands off to a large extent.
Jim du Bois 09:03
A majority of the current Supreme Court justices are Catholic. Are there any indications that this influenced how the Court decided cases involving religion during this term?
Timothy Johnson 09:13
You know, I think that probably has something to do with it although we don't have systematic evidence. Systematic evidence has never shown specifically that religious beliefs have an effect on how the justices decide. That said, and you can certainly infer that when you have justices who are not only Catholic but are very strong, religious adherents, if you will, that that might have some effect, and time will tell. What you did see was the court decide, for instance, in favor of Catholic Social Services in the Fulton versus Philadelphia case, the case where Catholic Social Services was part and continues to be part of the Philadelphia adoption program but was refusing to work with same sex couples. Philadelphia said we will no longer allow Catholic Social Services to be a part of our program to place potential adoptees with potential new parents. Catholic Social Services sued, went to the Court and in fact won in a unanimous decision. And that win, in the end, while it may have been influenced by the Catholicism of a majority of the justices was actually agreed upon by the remainder of the court as well. And that is, in a very narrow decision, the Court simply says, look, you still have to work with these folks. We have other agencies who, or Philadelphia as other agencies who can place potential adoptees with same sex couples, and we're going to violate the religious freedom of Catholic Social Services, if in fact, we keep them lock stock and barrel out of this program. So, in the end, it sounds like I'm punting. There may be an effect, but we don't know yet if there's a systematic effect because the only religion cases that we really have that would point to some effect would be those cases on COVID restrictions. And then this Catholic Social Services cases, and even that one, as I said, was unanimous with all three of the members of the liberal bloc signing on as well.
Jim du Bois 11:09
One of the cases that garnered significant media attention dealt with a high school cheerleaders f-bomb laden tirade on social media. How has the court ruled on student speech issues in the past, and did the justices apply previous rulings to this case, or did they set a new precedent?
Timothy Johnson 11:27
You know, it probably didn't set a whole new precedent. And largely, it did follow past cases, right? So, the precedent setting case is Tinker versus Des Moines, and that is the case from during the Vietnam era in the mid-1960s, where two members of the Tinker family as well as some of their friends wore black armbands to high school in Des Moines, and those black armbands had peace symbols on them. The school argued that those armbands disrupted the school and therefore as its power in loco parentis, that is, the school being the kids parents during the school day, in a technical sense, that they could stop them from wearing those armbands. And the court ruled, in fact, against the school district in favor of the Tinkers and said, your rights, in this case your free speech rights, do not end when you walk into the school doors. That said, what the Court did indicate was that there are exceptions to that. And that is if your speech is disruptive, if the tinkers had stood up in the middle of class and screamed anti-war sentiment during an exam, for example, or tried to interrupt the principal doing his or her job, that the school might be able to stop that speech. That's the precedent-setting case. And there have been several other cases since where the Court says, you know, there are some times where the school can regulate speech. So, for instance, there is an infamous case from the early to mid 1990s, where the class president of a school actually gave a speech where every single sentence, and I mean this sincerely, every single sentence was a sexual innuendo. He wasn't saying things overtly sexual or pornographic. But everybody knew what he was saying. The school ultimately suspended him, and his suspension was upheld. In another case, which is one of my favorites. It's known as the Bong Hits for Jesus case. It's a case that took place out of Alaska. And it so happened that the Olympic torch was coming through the town, and all of the kids in the high school got to go across the street from the high school and see the Olympic torch go by. And the litigant in this case, and some of his friends, held up this bizarre sign that simply said, Bong Hits for Jesus. And the Court ruled that because that sign ostensibly suggested that taking an illicit drug that would be, in this case marijuana, was being advocated or was advocated on that sign that the school could stop those students from having that sign produced. That brings us all the way to this case. The young woman in question in this case used her speech not on school grounds, not during the school day, in the privacy of her own home, using her private Instagram account. She never In fact, if you go back and listen to her saying f these people and f that sport and f that school, never called out coaches. Actually, she didn't say the school name. She said school, the sport, cheerleading, and so she never called out anyone in particular. And the Court in the end in an eight to one ruling with just Justice Thomas dissenting, said the school does not have the power to regulate student speech when that speech does not take place on campus with an exception. And that exception is if you could prove, in fact that that speech would ultimately disrupt the school day or student's education, then the school might have an argument in a later case. So, let's think for example, if this particular student had threatened teachers by name, that's something the court insinuated in the majority opinion that perhaps the school could regulate But because she was saying general things about school, about a sport, and still using expletives that that normally we would not use, that is going to be protected speech. So, the court sort of cut this path that said narrowly, yes, we're going to protect this. But just like in Tinker, there might be future circumstances whereby the school could regulate speech, even when it's not on school grounds,
Jim du Bois 15:24
The conservative justices delivered a blow to the 1965 Voting Rights Act. Can you tell us some of the history of this act, and how has the court ruled on this issue in the past? Have conservative judges been chipping away at the act for a while now?
Timothy Johnson 15:40
Right, so the Voting Rights Act of 1965 was meant, as you and I and your listeners know, was meant to very much protect the rights of African American voters who were sometimes explicitly but most of the time implicitly, stopped from voting mostly south of the Mason Dixon in the southeastern states in the United States. Of course, it happened in other states as well. And we know that empirically. So, what the Voting Rights Act did was said, we're going to put in place mechanisms to make sure that states cannot continue to discriminate and stop people from taking part in the most fundamental right that we have in the United States, and that is voting for elected officials. There are two key provisions that are often talked about and used in order to protect this particular right. One was section two, which gives specific ability to prove or easier ability to prove that discrimination took place if a particular law was passed to stop a group of people from voting, and the other was section five, which is known as this pre-clearance section. And pre-clearance simply means this: if you were a state, and I always forget the exact number, but if you were a state where the percentage of African Americans voting was below a certain threshold, then if you wanted to change your voting laws, you would have to get pre-clearance from the federal government first, from a federal judge ostensibly, and this lasted for quite some time. Now, there was some chipping away of the Voting Rights Act during the Rehnquist Court in the early 1990s but not much, and Congress usually responded. It was not until Shelby County versus Holder was decided towards the end of the Obama administration between 2013 and 2015. I think Shelby County is the 2013 term. But I'm bad with terms, I apologize, your listeners, like I and you can Google this. That's neither here nor there. in Shelby County, the court actually, for all intents and purposes in the decision written by Chief Justice Roberts and the majority opinion, said explicitly, section five, that pre-clearance section is no longer needed. As Roberts put it, and this is me, paraphrasing him, we've come so far between 1965 and now the middle of the two thousand and teen decades or years, that we can get rid of that pre-clearance. And that really opened up the floodgates, if you will do allow states to put all sorts of regulations on voting rights that could really harm, in particular, people of color and other minority voices who want to get to the polls to vote, and also, in fact, made it very much more difficult to prove intentional discrimination that's under article or under Section Two of the Voting Rights Act. And so now you've opened up these floodgates, as I said, in Shelby County. And then the court gets the case this past term. And here, what the court says out of Arizona is that we're going to gut even further the Voting Rights Act by cutting out sections that stop states from changing regulations even more. We're going to go further, if you will, then then gutting Section Five. It's going to be easier now for states to put restrictions on people's rights to vote. And it's going to make it harder to challenge because the standard now is that if you're going to sue because you think your voting rights have been violated, you actually have to prove that there was intent to discriminate. And that is a high burden of proof in a trial court. And so yes, there's a long history, especially since the Rehnquist Court became so conservative in the early to mid 1990s. But the Roberts Court is no friend of voting rights. And it's going to be more and more difficult both at the state level and at the federal level in Congress, even though we've got the John Lewis Act still sort of percolating around Congress, to stop states from putting more and more restrictions on.
Jim du Bois 19:29
What other decisions caught your attention this past term?
Timothy Johnson 19:33
Yeah, so I think that importantly, once again, the Supreme Court showed no appetite for striking down the Affordable Care Act or Obamacare, as we know it, although it was a seven-two decision, and it was decided very narrowly. That case, Texas versus California, the Court said that the states really don't have standing, and so they kicked out the case on technical grounds, and there were two dissenters who would have wanted to decide the case. But there was just as I said, no appetite at this point to overturn the ACA and once again, Obamacare stands, and it has stood challenges through, again, the Roberts Court is very conservative, so it still challenges through one of the most conservative Courts in the history of the United States Supreme Court. But this power to make sure that people have healthcare in the United States has stood the test of time. Another interesting and important case was the NCAA ruling that came down. The ruling, which was unanimous, did not say that student athletes can get paid, but it's paving the road to student athletes being paid. What it said is, the NCAA cannot prohibit schools from trying to lure students to their schools by giving them additional monies for academic purposes. They can't just give them a pile of money to do whatever they want with but they could give them better laptops, they could give them better access to teaching assistants or other tutors, better access to better instruments if they happen to play music on the side of being a football or volleyball player. And so, it's that first step towards the Court saying we think the NCAA is probably regulating student athletes way too much. And the most important opinion in that case was actually Justice Kavanaugh's concurring opinion where he said explicitly, yeah, I think in the end, the NCAA probably is going to have to allow student athletes to be paid. He didn't have enough votes for his concurring opinion to become a majority, but he was really sort of foretelling the future. And then, you exacerbate that court decision that is handed down mid to late June with the July 1 deadline were in several states and now in every state because the NCAA capitulated to those few states, where student athletes can now be paid for their images. And we know that there are athletes on the Gophers football team, that's the first Gophers team that I've heard about who already have endorsements for several things, and it just came out that the new starting quarterback of the University of Alabama has over a million dollars in endorsements already where his image is being used to sell particular products. This is the first in a long line of cases that will get to the Court. And the Court with a unanimous decision really is insinuating that it's going to continue probably to rule against the NCAA.
Jim du Bois 22:23
In the upcoming October term, the justices will hear cases challenging Roe v. Wade, gun restrictions and affirmative action. Do you think we'll see a bolder conservative court next term?
Timothy Johnson 22:35
I think it's highly possible. As we talked about with your first question, which was a great way to start this conversation off, by the way, you're going to see this balancing act that the Chief is going to have to deal with and that is, does he want to end up in the minority with the three liberals, which I don't think would please him very much because while Chief Justice Roberts is quite conservative, he certainly is much more moderate than almost every other justice on the bench, or in the conservative coalition, save probably for Justice Kavanaugh at this point. I don't make public predictions. But what I'll tell you is I expect six-to-three decisions in all three of these cases that will be conservative decisions, but the Chief being in the majority in those cases, which is what is likely to happen, he probably writes the opinion in all three cases, if at all humanly possible on his part, and then he narrowly decides them. So I could see, for instance, upholding some semblance of the Mississippi restriction, 15 week restriction on abortions, but doing so on very narrow grounds and not overturning Roe vs. Wade at all, although that's highly possible because the other five don't need the Chief to do that, right? They've got five votes to overturn Roe vs. Wade. The same with affirmative action, the same with conceal and carry and the Chief is in a very precarious position. I have argued since the initial Obamacare case in, ACA case in 2012, I've argued that the Chief ruled the way he did and wrote the majority opinion because he really cares about the legitimacy of the court. He cares about how he will go down in history and the Roberts Court will go down in history, and he didn't want to be the Chief that took away health care from millions and millions of people. At this point, he can't stop any of these conservative decisions, but he will try mightily because he also does not want to be the Chief Justice going down in history as the Chief who had Roe vs. Wade overturned, and the chief who saw affirmative action be completely gutted to help minority groups get into colleges like Harvard, which this case that is docketed for next term is about. It is going to be an interesting term to see how conservative Justice Coney Barrett, is just how conservative Brett Kavanaugh, Justice Brett Kavanaugh is and then ultimately, as I said, what the Chief can do to stop a conservative onslaught.
Jim du Bois 24:53
During the Democratic presidential primary, the Supreme Court was a major issue, and some Democratic lawmakers are now pushing for term limits or adding more justices to the bench. Now President Biden has set up a Supreme Court commission. What can you tell us about the status of this commission, and in your opinion, what is the likelihood the commission will make changes to the court?
Timothy Johnson 25:17
So, the commission has only met twice. It has not released public records. It's been pretty much on what it's talked about so far. I suppose someone could issue a Freedom of Information request. I don't know that anyone has done so yet. This is a high, high level number of people in terms of their political and legal acumen inside and outside of the academy. You've got moderates, you've got liberals, you've got conservatives, all people who have a lot to say and have done a lot of writing and researching about the US Supreme Court over the course of their careers, both historically as well as politically, so they haven't done a whole lot yet. And the likelihood that they come through with recommendations to put in term limits which would actually take a constitutional amendment or increase the number of justices which would not take an amendment to the Constitution, it's probably not very likely. I believe that if those sorts of reforms are going to be pushed, they would have been done in the first three months or 100 days, right, the first 100 days, the honeymoon period of President Biden's term in office. They weren't done, so I'm not sure he's an incredible fan of doing so. But I could see a scenario under which changes could come out of the Biden administration. Let's just say that the abortion case overturns Roe versus Wade, that the guns case allows conceal and carry everywhere with no permit. Now, everybody doesn't need a, nobody needs a background check, nobody needs a permit, you can just put a gun in your pocket. And you, are it's perfectly legal under the Constitution to do so. And that we get rid of all affirmative action. I would imagine all three of those cases are so far to the right that it's unpalatable to a majority of Americans. And I would argue the number suggests that all three of those decisions would run opposite of what most Americans would like to see on those three legal and policy areas. You could see the Biden administration prior to the midterm election saying we need to change things, and we need to add a couple of justices to the bench. We need to do something. But again, the likelihood is very, very small that it will happen.
Jim du Bois 27:16
Let's talk about the three remaining liberal justices on the court. What can we glean from their dissents this past term?
Timothy Johnson 27:25
Right. So, I think you can glean very clearly that they are going to stay as tried and true to their legal and political preferences as humanly possible. There will be times where they will cast strategic votes, that is, they will try to jump in the majority as they did in the Catholic Social Services case to try to narrow decisions as much as humanly possible to save what they can save from laws that might be overturned or particular legal doctrines that might be changed in a way with which they disagree. But they are staying pretty tried and true. And you're going to continue to see stronger, more strident, harsher dissents from these three. And you're going to, in particular, get the sense from both Justice Sotomayor and Kagan, the two most liberal members of the Court today, who are two of the most brilliant members of the Court today where they are going to take on point for point majority opinions. They did so in many cases this term, in particular, in the Voting Rights Act case as well as in the case that, the free speech case that allows corporations not to divulge how much money they're giving or to whom they're giving it when it's nonprofit organizations, and you're just going to see much more staunch dissent. They will stay together. The one who you will see that would break from that from time to time would be Justice Breyer because he is much more moderate than Justices Sotomayor and Kagan. And so you will see him break, but he will stick with the two of them most of the time.
Jim du Bois 28:53
As a Supreme Court scholar, do you feel that each court is unique to its particular time in history and the ideologies of the justices? Or do you see any parallels between today's court and any from the past?
Timothy Johnson 29:07
I think it's both, Jim. I think that they're all unique, but you can absolutely see parallels to the past, right? So, this is a court that is very similar to the Warren Court, the liberal Warren Court that had not only six most of the time, but for part of time a seven-two majority on the bench. And then this is also a Court where you've got the majority that that Roger Tawney had after John Marshall died in in 1835. And so, you've got this very strong majority that can't be stopped if it doesn't want to be stopped. But it also then, and this is the other part of both of your questions, it has its own unique thoughts about how it wants the law to be crafted, how it wants the law and policy to be interpreted. And, really, this is a Court that wants to focus on individual liberties. In that sense, it's much more libertarian probably than it is conservative, and you've got a court where you have not a majority yet but close to a majority who really are moving towards Justice Clarence Thomas' view that precedent doesn't have the power that we believe it does. And if you want a case thrown out because you think that it is no longer good law or should be good law, you should just throw it out. And that's what Justice Thomas wanted to do in the free speech case that we talked about a couple of minutes ago. And it's probably clearly what he would like to do in the abortion case emanating out of Mississippi for next term.
Jim du Bois 30:29
About three years ago, we spoke to you about a research project that you had underway that was analyzing the private handwritten notes of the Supreme Court justices. How is that project progressing at this point?
Timothy Johnson 30:43
Oh, it's amazing. So, we are done, all of the transcribing from our volunteers. We ended up having about 6800 volunteers over the three years do transcriptions for us. The algorithm has been fully run, and we are done at this point with that transcribing. And so, we are in the process now of hand-reading every single one of the transcriptions just to check to make sure that the mathematical algorithm that was used to make sure that the transcribing was done well, actually was done well. We have 33,000 images. I'm working with six research assistants. It's going to take us, we believe, about four months to get through all of the images. But right now, things are going incredibly well. We can see systematic patterns already emerging about discussions that the justices have about former precedent, precedents that might be involved in deciding a case in particular way, how often they talk about Congress and what Congress might think if they interpret a statute or in a particular way. And then they talk about each other, right? Here is what Justice Marshall said, and here's my response to what he had to say. So, we're in the midst of just cleaning those data over these next couple of months. And then we're going to begin analysis and write our first book, one of what I think will be several books that will come out of this project. I appreciate you asking.
Jim du Bois 32:05
Timothy Johnson is a Morse Alumni Distinguished Professor of Political Science and Law at the University of Minnesota. Professor Johnson, thanks again for joining us on Dialogue Minnesota.
Timothy Johnson 32:15
Thanks for having me, Jim. I appreciate it.