The ACLU’s Legal Director Reflects on the Supreme Court’s Last Term (ep. 53)

July 2, 2019
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It was another dramatic year for the Supreme Court. A new justice was sworn in against the backdrop of scandal. A beloved justice got sick and recovered. And, of course, major precedent-setting decisions were handed down. David Cole, the ACLU’s legal director and a seasoned Supreme Court litigator makes sense of the highs and lows of the past term and talks through what’s to come when the court reconvenes this fall.

EMERSON SYKES
[00:00:06] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU, and your host. It was another dramatic year for the Supreme Court. A new controversial justice was sworn in, a beloved justice got sick and recovered, and some major precedents setting decisions were handed down. We're here with a special episode of At Liberty, joined by ACLU Legal Director and experienced Supreme Court litigator, David Cole. He'll help us get a sense of the highs and lows of the past term and give us a sense of what's to come when the court reconvenes this fall.

David, thanks very much for joining us today. Welcome back to the podcast.

DAVID COLE
Thanks for having me, Emerson.

EMERSON
So at the end of the term, what's the big headline? Is this a “could have been worse” situation? “Hope is all lost”? Where are you standing at the end of the term as a whole?

DAVID
Well, definitely hope is not all--all lost. You know, the court handed down its two most important decisions of the year on the same day, on the last day of the term. And one of them involved partisan gerrymandering in which the five Republican justices voted to take the federal courts out of the picture of restraining legislatures from gerrymandering districts to entrench particular party's advantage. But the other, the Census case, our case challenging the Trump administration's addition of a citizenship question to the Census, the court ruled 5 to 4 with Chief Justice Roberts, joining the more liberal justices, to hold that addition of the Census was illegal, essentially because the Commerce Department Secretary, Wilbur Ross, lied when he explained the reasons for doing so. And those were the two biggest cases and one went for us and one went against us. So definitely could've been worse.

EMERSON
[00:02:04] Well, you mentioned the two blockbusters that ended the term. Are there any other highlights or important cases that you think bear mentioning?

DAVID
Well, I think there are a number of important cases. It was not a term of blockbuster decisions like last term, but there were some very interesting criminal cases: a couple cases declaring criminal statutes unconstitutional in which Justice Gorsuch joined the four more liberal justices. A decision under the Establishment Clause that upheld a city's maintenance of a 40-foot Latin cross, the preeminent symbol of Christianity, against an Establishment Clause challenge in which the Justice Kagan and Breyer, two of the court's more liberal justices joined the conservatives in upholding that decision.

I think one of the most interesting things about this term is the way in which the court seems to have responded to the incredible partisan controversy around the nomination of Brett Kavanaugh. You know, you'll remember that he was confirmed by the Senate on the Saturday before the court opened its term in October, and so they opened their term in the wake of this know hugely partisan response to the complaints about sexual abuse by Brett Kavanaugh when he was in high school. And I think the court did everything it could to try to, you know, send the message that it is not a partisan institution. That it does not divide along the same lines that Congress does, that the state legislatures do, that the media does, that the rest of the world seems to. And I think, you know, in some ways they succeeded in that.

[00:04:02] There were there were eight 5 to 4 decisions this term in which the five Republican conservative justices were in the five, but there were also eight 5 to 4 decisions this term in which the four liberal justices were in the five, and one of the more conservative justices joined, with the liberals. So in 5 to 4 cases, which are kind of, you know, the most controversial, the closest cases, the liberals quote unquote “won” eight of them and the conservatives “won” eight of them.

You know, I think that's not happenstance. I don't think it's horse trading by the justices, but I do think that they all have an interest in distinguishing what they do from what members of Congress do. And the way they do that is by showing that they are not just voting their personal partisan beliefs but actually trying to apply law to facts.

EMERSON
That's a really interesting dynamic in terms of how the other justices react to the controversy around their new colleague. What about Justice Kavanaugh himself? What have you seen from him in his first term?

DAVID
The way he acted in his first term, I think, reflects a desire on his part to kind of show the world that he is not the person who we all saw responding to Christine Blasey Ford's allegations. On the bench he was polite, he was deferential to the other justices, in terms of his voting record. He voted with liberals in a number of important cases. He was the fifth, and deciding vote, in an antitrust case against Apple in which he joined the liberal justices in allowing an antitrust case against Apple to go forward with the other four conservatives, in dissent. He also wrote the Court's decision in a case called Flowers which involved race-based challenges to jurors in a death penalty case. And he reversed a lower court decision that had found that the prosecutor had not engaged in race-based jury selection. So, he's definitely conservative, no doubt about that. There was never any doubt about that. But, he, like the other conservatives on the court, he has been willing to side with the liberals in a number of important cases.

EMERSON
[00:06:25] I'm interested in hearing more about your ideas about this idea that the court is trying hard to deep politicize at least its image. I mean one of the most important decisions as you mentioned was this gerrymandering decision which has the potential to really deepen politicization, and unrepresentative democracy more broadly, while also the court trying to claim that it is trying to avoid politics.

How do you sort of square that circle?

DAVID
Right. So that, you know, by far the most important case of the term, sort of going forward, is the partisan gerrymandering decision. As we all know this is, this has become an increasingly challenging problem because the amount of data that is now available to anybody, and the abilities of computers to access that data, digest that data, and then spit out districts for legislatures so that they can choose the map that most entrenches the advantage of the incumbent majority party is a real threat to democracy. Absolutely a real threat to democracy and an increasing threat. And this term, the court said, “We're not going to do anything about it.” Chief Justice Roberts, writing the majority opinion.

[00:07:49] And, you know, right now, most--many of the gerrymanders help Republicans, not all of them. One of the gerrymanders that they upheld, by ruling that they couldn't review it, was a gerrymander in Maryland done by the Democratic majority to entrench itself in power. So, you know, it's not something that only Republicans do. It's just that Republicans happen to have more control of the state legislatures right now and that's where the gerrymandering gets done, for the most part. So, on the one hand, you could see it as a kind of the five Republican, Conservative justices siding with a practice, sort of refusing to interfere with a practice that helps Republicans out at a cost to democracy itself. But, you know, from another perspective you could see it as the Court trying to ensure that it does not get pulled into the quagmire of partisan division that-- that the rest of this country seems to be caught in.

Because the argument against the federal courts adjudicating these cases is precisely that there's not a clear line that distinguishes between the partisan considerations that are inevitable, anytime a legislature draws lines for districts, and what is too much partisanship. And given that there's not a clear line, every map is subject to being challenged, and in every situation, it's, you know, the result is either going to favor one party-- the Democrats or favor the Republicans. And if the federal courts are then reviewing those, and either okay-ing them or rejecting them, in situations where one party is obviously a winner and the other party is obviously a loser, there's a real risk that the court will be seen as simply acting in a partisan way. And so the court should just stay out of it altogether.

[00:09:41] And that's really what Chief Justice Roberts is driven by, probably more than a guess that it will, in the end, help Republicans more than Democrats. That's not clear, you can't really predict whether it's going to help Republicans or Democrats in the long run more to gerrymander, but what it's going to hurt is the American people because it gives legislatures the ability to decide who our representatives are going to be, no matter how we vote. And that's just not how a democracy should work. Chief Justice Roberts didn't dispute that, but he said, “We're not the right institution to fix it.” And I think, you know, that is partly driven by his concern that if the courts are the place to go, the courts will get, as I say, sucked into the quagmire of partisan division.

EMERSON
Well, if the courts are going to sit this one out, but we understand, everyone seems to understand, that our democracy is at stake in a very real way because as bad as partisan gerrymandering has been in certain instances, with the advances in social science, the indications are that it could get much worse. So does it lead us to the conclusion that legislatures should not be the ones drawing these lines in the first place?

DAVID
I think that's certainly one conclusion, and many states have adopted that conclusion by adopting referenda that give the districting job to an independent commission, rather than to the legislature. So, for example, just in the 2018 midterms we supported referenda in Michigan and in Nevada that put in place, adopted an independent commission system for districting. Arizona has adopted such a system. A number of states have adopted such a system. And I think that is a much better system. And H.R. 1, the sort of omnibus bill that the House introduced when they first got in after the midterms, has, as part of its agenda, reforming redistricting by requiring states to essentially assign it to independent commissions. That would be a huge plus, and it would be one way of fixing the problem. Another way of responding to the problem is that state courts can adjudicate these cases. Roberts said the federal courts can't do it under the federal constitution, but he pointed to some state courts that have done it. Pennsylvania, just last year, the Pennsylvania Supreme Court declared that its legislature had gerrymandered its districts.

[00:12:16] So the issue is, you know, we will continue to fight for a free and fair elections in which the people choose their representatives rather than the representatives choosing their people. But they have taken away a really critical and important tool for doing that. And I will say that although you know I think one can make a reasonable argument in favor of the concern about the court getting pulled into the partisan rancor that these cases are raised, Justice Kagan wrote a powerful dissent in that case in which she really refuted Chief Justice Roberts’ argument that there is no way to do these cases in a principled and manageable way. And she pointed to you know five or six cases, including our case in Ohio where we recently succeeded in getting their districts declared unconstitutional, as demonstrating that it's not only conceivably possible to do it, but it has been done. And it's been done in a way that the courts certainly could do.

EMERSON
Well, you mentioned Kagan's dissent. It was quite a brilliant plea for our democracy, if only it had been the judgment of the court, rather than a dissent. Maybe to finish, you-- you talked about the blockbusters on the last day but not a whole lot of other blockbusters in the term. Can we look forward to next term? I think there are a handful of blockbusters that are teed up for the fall. Can you just run us through what you're looking out for most in the next term?

DAVID
[00:13:44] Yeah absolutely. Although I should just mention, you know, because it was our biggest case this term, and the second biggest case of the term, the census case, which I mentioned at the outset. But that is a very, very important decision, that the court pushed back on the Trump administration's effort to really undermine the purpose of the census, which is to count every person in this country, no matter whether they are a citizen or an immigrant, by adding a citizenship question that they know will lead many immigrants to be afraid to fill out the census forms. And that will then lead to undercounting of communities with substantial immigrant communities and that will lead to harming the Democratic Party and aiding the Republican Party in a fundamentally unfair way. And so I think, you know, we have to give credit to the court, and particularly to Justice Roberts for, for pushing back against the Trump administration on that one.

EMERSON
We also interviewed Dale Ho right after the decision came down so listeners can refer back to that episode from last week.

DAVID
Yes. Great episode. And Dale who argued the case for us did a fantastic job.

Next term, is going to be a blockbuster term. There are two cases, well three cases actually, involving whether federal employment discrimination law protects transgender and gay and lesbian employees. We are in two of those cases. I think we have a very strong argument that the Title VII does, in fact, extend to discrimination against LGBT folks, but the court will be deciding that. The court also has taken up the question of whether President Trump lawfully sought to rescind DACA protection for the 800,000 undocumented folks who came here as children and were given protection by President Obama under the DACA program. Trump has sought to rescind that. The lower courts have, lower courts of appeals, have uniformly held that his rescission was unlawful under the Administrative Procedures Act. The Supreme Court has taken that up.

[00:15:55] The court is very likely to take up an abortion case next term, a case out of Louisiana involving a requirement that doctors who provide abortions have to have admitting privileges at hospitals near their clinics, a requirement that has no basis in--in medical need and is simply designed to try to make it harder for folks to be able to provide abortions. A similar restriction was struck down in Texas a few years ago and in a decision that Justice Kennedy joined the liberals on, and Chief Justice Roberts was in dissent on. This is a similar law out of Louisiana that the 11th Circuit Court of Appeals has upheld. So, I think the court is very likely to take that up. And it has taken a Second Amendment case, only the third case it has ever taken on the Second Amendment.

So next term we're going to see a lot more deeply controversial cases and I think the real question will be, when you get to these kinds of really, you know, hot button issues, will the court rise above partisan division, or will it simply revert to 5-4, Republican-Democrat? And if it does the latter, then I think the legitimacy of the court is, will really be called into question.

EMERSON
David, thanks very much for speaking with us. We'll be sure to have you on next term when we have got a whole new crop of cases before the court. Have a good holiday weekend.

DAVID
Great, thanks. Nice to talk to you.

EMERSON
Thanks very much for listening. If you enjoyed this conversation, please be sure to subscribe to At Liberty wherever you get your podcasts. You can also check out our previous conversation with David and all of the other 50+ episodes of At Liberty at www.aclu.org/podcast/.

‘Til next week, peace.

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