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October 14th, 2019

Good morning <<First Name>>,

We hope you had a wonderful weekend and are relaxed and ready for the week ahead. 

While the impeachment saga rages on in Washington, this week we've turned our sights elsewhere, to the Supreme Court. The judges are back on the bench as of last Monday, and they've already begun hearing some fascinating cases, the outcomes of which will have a longstanding impact on the country going forward.

So, this week think of us as your intellectual respite from the dramas of Washington, as we break down just how significant is this forthcoming term for the highest court in the land.

Enjoy!

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 THE VENN DEEP DIVE:  SCOTUS
Overview: The Supreme Court is back in action
  • Last Monday, October 7th, the Supreme Court returned to the bench for what is set to be a highly controversial term. It will hear a spate of major cases covering some of the most divisive issues governing our politics, including abortion, Obamacare, LGBTQ+ rights,  immigration, gun control, and religion. 
  • The Court’s decisions are usually released in June, placing them just months before the 2020 election when political tensions will already be running high. While the Court will invariably seek to continue as normal, it will be hard to ignore just how significant the outcome of this momentous term may be on an already deeply polarized presidential campaign. 
  • This will be the first complete term in which the Court has a conservative majority, following the retirement of the reliably centrist Justice Anthony Kennedy, and the confirmation of right-leaning Justice Brett Kavanaugh. So, many will be watching to see how the justices tackle some of the most high profile cases as an indication of how this newly constituted Court will impact the future of the country.  
  • If it’s perceived as pushing forward a conservative agenda, this could galvanize Democratic voters to get to the polls, for fear that if given a second term in office, Trump might have the opportunity to appoint as many as two more judges, should either, or both, Ruth Bader Ginsburg or Stephen Breyer, (liberal justices respectively aged 85 and 79) leave their posts.
  • The prospect of a 6-3 conservative-led Court has already led some Democrats, including Buttigieg, Harris, O'Rourke, and Warren, to say they would consider proposing an increase in the number of justices on the Supreme Court - an idea first floated in 1937 by President Roosevelt, when a conservative court blocked New Deal legislation.
  • Could they do this? Well, it’s not impossible since the Constitution doesn’t actually specify the requisite size of the Court. But the Court has been comprised of 9 judges since 1869. Plus, such a move could set a somewhat sticky precedent going forward.
  • Meanwhile, should the Court be perceived to take a more ‘liberal’ stance, this could galvanize those on the right to get out to the polls in favor of Trump (should he remain the Republican party’s nominee) in the hope that a more conservative-leaning Court could be on the horizon.
  • In essence: the stakes are extra high for the Supreme Court this term.
     
But the Court is not meant to be ‘political’…is it?
  • No it is not, as Chief Justice John G. Roberts Jr. has been forced to remind us. Last year, President Trump referred to a jurist as an ‘Obama-era judge’ for opposing his asylum policy. While it’s rare for a senior member of the judiciary to speak out against a president, Chief Justice Roberts came forward to remind Mr. Trump “We do not have Obama judges or Trump judges, Bush judges or Clinton judges… What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
  • While you may want to presume that as Washington descends into deeper and deeper political turmoil, the Court may too have become warped by partisanship. But once again Roberts has assured us they have not. Speaking at the Temple Emanu-El’s Streicker Center in Manhattan last month, the Chief Justice reiterated: “We don’t go about our work in a political manner… we probably do a better job criticizing ourselves in our dissents than anybody else could.”
  • He reminded the audience that the two Trump appointees, Justices Gorsuch and Kavanaugh, had already taken notably different perspectives on a range of issues. “The point is that when you live in a politically polarized environment, people tend to see everything in those terms. That’s not how we at the Court function and the results in our cases do not suggest otherwise.” 
  • But in today’s political climate, how can the highest court in the land avoid being dragged into political partisanship? Let us not forget that it has been just over a year since the highly controversial appointment of Justice Kavanaugh, following weeks of heated debate surrounding allegations of sexual assault by his former classmate Dr. Christine Blasey Ford. And that it’s been almost three years since the similarly controversial decision by the Senate not to allow the consideration of Obama’s nominee, Merrick Garland. Now, with impeachment potentially on the horizon, Chief Justice Roberts may soon be forced to preside over a case that is by its very nature political. That is, whether the President should be removed from office. 
  • In case you missed our brilliant previous issue in which we delved into impeachment, here is a quick recap: if, following the current inquiry, the Democrat-run House votes to impeach the President, the case would proceed to the Senate, which would hold a trial overseen by Chief Justice Roberts. So, impeachment could well become the most divisive case on Roberts’ overcrowded docket.
Judicial interpretation
  • As the Supreme Court employs its power to analyze the constitutionality of government action, the 9 justices rely on varying methods or “modes of interpretation” for understanding what a particular provision within the Constitution actually means. 
    These include: 
  • Originalism: focusing on the “objectively identifiable” meaning of the Constitution as it was understood at the time.
  • Textualism: an originalist perspective that focuses on the plain meaning of the text as it would have been interpreted at the time of its being written.
  • Intentionalism: also an originalist perspective, but one which gives primary weight to the intentions of the framers, members of proposing bodies, and ratifiers.
  • Judicial precedent: looking at prior decisions on questions of constitutional law as previously determined by the Supreme Court.
  • Pragmatism: open to a more contemporaneous reading of the constitution, for example through looking seriously at judicial precedent, or weighing up the possible, practical consequences of one interpretation of the constitution over another.
  • With the appointment of Justices Gorsuch and Kavanaugh to the bench, the Supreme Court is perceivably moving towards being more originalist and textualist. This follows the theoretical lineage of Justice Antonin Scalia, who spent much of his time on the bench promoting originalism, and is often looked to as the ‘original originalist’. He defined this viewpoint as such: "The constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring. It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted." 
  • His successor, Justice Gorsuch, followed closely in his footsteps, declaring in a speech in 2016 that while politicians must take into account issues around policy, and moral questions, as they shape the law, judges must refrain from doing either and “instead strive to apply the law as they find it, focusing backwards, not forwards," on the original meaning when it was written 230 years ago. 
  • However, originalism isn’t reserved for conservative justices alone. Liberal justice Ruth Bader Ginsberg also defines herself as an originalist, for example, which she sees in terms of someone who looks to U.S. history to ascertain the intentions of the constitution.

What to watch for…
 
Three cases concerning LGBTQ+ rights
  • The broad swathe of monumental cases set to be heard by the Court this term will likely serve to highlight just how influential the ideological make-up of the Court is.
    Amongst them are three cases regarding Title VII of the Civil Rights Act.  The act was passed in 1964 and protects people from employment discrimination on the basis of sex. Now the question before the Court is whether that language also extends protection against discrimination on the basis of sexual orientation and gender identity too. This will be an interesting test of the interpretative principles held by the nine judges. 
  • Two of the cases have been combined, since they both concern cases in which gay men claim they have been fired for being gay. The third case involves a transgender woman who was fired after telling her employer that she would be living and working as a woman going forwards. In all three cases, the plaintiffs’ argue that their respective terminations were a result of discrimination based on sex, and thus breach Title VII of the Civil Rights Act. 
  • Together, they constitute arguably the most influential LGBTQ+-rights cases to come before the Court. And the outcome is uncertain. Were Justice Kennedy still on the bench, the Court would most likely rule in the plaintiffs’ favor, given it was Kennedy who penned the majority opinions in all four of the Court’s major gay rights decisions, including the 2015 Obergefell v. Hodges case, which acknowledged a constitutional right to same-sex marriage. In his absence, the outcome may be very different.
One case concerning abortion rights: June Medical Services LLC v. Gee:
  • Another key case concerns that most polarizing of issues: abortion. The case in question comes from Louisiana, which pushed through a law in 2014 requiring that doctors who perform abortions must have ‘admitting privileges’ at a hospital within a 30-mile radius of wherever the temination is being carried out. 
  • If it sounds familiar, that’s because it is. Several years ago the Court struck down the main body of a similar law enacted in Texas, on the grounds that the law’s sole purpose was to make women’s access to abortions harder. In this instance, Justice Kennedy joined the Court’s four liberals in blocking the law from being passed. 
  • But the case has made it to the Supreme Court once again after the United States Court of Appeals for the Fifth Circuit upheld the Louisiana law, despite the Court’s previous ruling. The hope, it seems, was that in so doing, they could push the case back into the now conservative-led Supreme Court, where it may stand a far better chance of being upheld. It’s a tactic we’re seeing crop up with growing frequency…
  • Make sure to listen to the Vox podcast below for a thorough breakdown on the other cases we’ll be keeping our eyes on throughout this new term. 
Who to watch for...
  • Justice Ruth Badar Ginsberg: She is now 86-years old and has been battling another bout of cancer over the summer. But the ‘notorious RBG’ says she plans on staying in the court until she’s at least 90, which will be salve to some anxious Democrats who hope she’ll stick it out until a Democratic president is in place to nominate her successor.
  • Justice Brett Kavanaugh: He joined the Court last October and has maintained a pretty moderate record throughout his first term, voting with fellow Trump-appointee Gorsuch around half of the time. Whether this changes remains to be seen.
***
Want to know more and dig a little deeper into this fascinating topic? Of course you do. Below are three carefully selected podcast episodes to help you do just that.

THE PODCASTS

THE SUPREME COURT’S ‘BIG MISTAKE’


In 1944 the U.S. Supreme Court ruled in favor of upholding the forcible internment of Japanese-Americans during World War II. It has long been regarded as a major stain on the Court’s history, and a clear mistake. But in the absence of another case that would give the justices an opportunity to overrule it, Korematsu v. United States remained law. That was, until Trump’s travel ban went to the courts and Chief Justice John G. Roberts Jr. used it as an opportunity to finally overrule Korematsu. 
In this episode, we hear from Karen Korematsu, who, as a junior in high school, discovered her father, Fred Korematsu, was held captive in a Japanese-American internment camp. Here we learn what extensive personal damage can be wrought by a single decision made by the Supreme Court.


00:48:39

 

THE SUPREME COURT: WHO? WHAT? WHY?

Who makes up the Supreme Court? How did they get there? Is it true there are zero qualifications needed for nominees? 
In this episode, Stuff You Should Know gives you a great initial primer on the highest court in the land. 


00:46:18

A MOMENTOUS TERM AHEAD

The Supreme Court has returned to the bench for what is set to be an extraordinarily contentious term in which the 9 justices will weigh in on some of the most divisive issues underpinning our politics. Some of the major cases being discussed cover abortion, Obamacare, LGBTQ+ rights, immigration, guns and religion.  With Kavanaugh replacing the consistently center ground Justice Anthony M. Kennedy, the Court now leans to the right. So how will this affect its rulings over the coming months? And how will voters respond? In this episode, Today, Explained examines what exactly is at stake here, and how it may impact the 2020 election.

00:22:04


This rounds up our deep dive, but stay tuned as we will revisit this important issue in a future newsletter.

2020: The Election

PRESIDENT MNUCHIN?


If Trump is impeached, who will step in to take his place as President before the next election? 
In this episode Today, Explained discusses the presidential line of succession, and explains how we could end up with Secretary of the Treasury Steve Mnuchin becoming president… stranger things have happened, haven’t they?

00:15:26

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