TRANSCRIPT: The US Supreme Court, less trusted than ever, votes on major cases in June: Emily Bazelon on what to expect
Ian Bremmer:
Hello and welcome to the GZERO World Podcast. I'm Ian Bremmer, and this is where you can find extended versions of my show on public television. And on the pod today I'm taking you to court, the Supreme Court. In a matter of weeks the highest court in the land will issue decisions on cases that will impact everything from gun ownership to reproductive rights, to housing laws, to voting maps, to the power of government agencies. And it comes at a time when approval for the court is at an all time low. I'm welcoming back to the show Emily Bazelon to preview some of the most important rulings to come. She teaches at Yale Law School, co-hosts the popular Slate Political Gabfest podcast and is a staff writer at the New York Times Magazine. Let's get to it.
Emily Bazelon, welcome back to GZERO.
Emily Bazelon:
Thanks so much for having me.
Ian Bremmer:
So much to talk about, as always, with the Supreme Court and the major cases now that everyone paying attention to is impact on this election, specifically right now with rulings coming on immunity. What are you surprised about in the way this has gone so far?
Emily Bazelon:
Well, I was surprised by the argument before the Supreme Court in April because it seemed going in that this was a pretty clear case, that Trump's claim that he has absolute immunity for acts he committed an office is just too broad. This is this idea that the president is not bound by the rule of law. The lower courts had rejected it. It seemed kind of obvious. And then it did not seem obvious at all while the justices were talking about it. They didn't seem really interested in focusing on this set of criminal claims against former President Trump. They were talking about a ruling for the ages, as Justice Gorsuch put it, raising all kinds of hypotheticals that are not, in this case about the scope of immunity and how a ruling that didn't allow for some immunity could go too far in limiting the president's powers.
And so it was a kind of upside down moment, I think, for a lot of people watching where we thought going in the problem was Trump claiming that he wasn't bound by law. And the conservative justice seemed to be worried about what would happen to future presidents if they made it clear that the criminal law did apply.
Ian Bremmer:
Because I mean, some of the things we've heard from the Trump attorneys seem on their face ludicrous. Now, I'm not an expert on jurisprudence, but the notion that you could order the assassination of your political adversary might actually have immunity, seems like the kind of thing that would apply to say Vladimir Putin and not to say Joe Biden. Because I mean, let's face it, this election could be over quickly if that were the case.
Emily Bazelon:
Right. So it would've seemed going in that you can't order such an assassination or order a military coup without facing future criminal prosecution. And remember, we're only talking about former presidents. We're not even talking about prosecuting someone who's still holding office. And yet suddenly those questions not driving the argument. Instead, we were talking about things like, this was Justice Alito, I think the most extreme point was the idea, well, if presidents did fear criminal prosecution in the future then they would pardon themselves. They might do all kinds of corrupt things to avoid being held accountable. And so that's what I mean by kind of through the looking glass upside down world. And there were certainly liberal justices, Ketanji Brown Jackson for example, saying, wait, wait a second, what are you talking about? But it wasn't clear whether they had a majority.
Ian Bremmer:
Well, they don't have a majority, let's put it that way. But it is a question to me of whether the intention here is to make a ruling that stands up legally or to kick the can to ensure that the Supreme Court doesn't have to deal with this issue during an election cycle. How much of this is about timing?
Emily Bazelon:
A lot seemed to be about timing. Well, they're already dealing with it during the election cycle. But I think it seemed almost impossible that Trump would face trial for these federal charges about trying to subvert the election in 2020, almost impossible to imagine he would face trial before November '24. So that almost was not even on the table anymore.
And then you have this question, okay, well, if the justices are looking ahead, where are there five votes? Could there be five votes for a ruling that still allows for a prosecution based on all the things Trump did as a candidate, not as president? This kind of question of official acts versus unofficial acts. His lawyer actually conceded that a lot of the things in the indictment are private acts, not necessary to holding office. And so you could imagine a trial after the election, after a whole other process and the district court to kind of sort through which charges are which, that could still happen.
Ian Bremmer:
What about the ruling that has already occurred in terms of the inability of Colorado and other states to kick Trump off the ballot?
Emily Bazelon:
Yeah, so this-
Ian Bremmer:
That was a 9-0 vote.
Emily Bazelon:
This went 9-0 for President Trump, there were four justices who would've issued a more limited ruling, but they all agreed that the states have to let Trump onto the ballot. And this is obviously a big victory for him. And it was also the court's first time really ever weighing in on section three of the 14th Amendment, which is the clause in the Constitution that says if you're involved in an insurrection that you're not allowed to hold office in the United States. Suddenly that seems like a more curtailed small protection against having insurrectionists hold future office than it did before. So that was also a big deal, not just for this election, but going forward.
Ian Bremmer:
And did the letter that was written accompanying this decision by the liberal justices, does that change the way we think about the ruling or not particular?
Emily Bazelon:
Well, no, because they didn't have a majority. I mean, it helped shape, I think, the set of discussions about how broadly the court ruled, and it showed how broad the conservatives were being in their ruling. But that is kind of it.
Ian Bremmer:
So let's now talk just about the role of the Supreme Court generally speaking in this election. Are there areas where you feel like the Supreme Court is losing their sense of independence, their legitimacy? Are they stepping into political territory that with the balance of powers between the courts, the legislative and the executive branches, that historically they've not? What is setting precedent right now?
Emily Bazelon:
When you compare this moment to Bush versus Gore, you see something pretty different unfolding. So in Bush versus Gore, a conservative-led majority rushes in to stop a recount in Florida that could have favored Al Gore and says, no, no, no, we're just going to issue a limited ruling to prevent this from happening. And oh, by the way, it happens to help determine the election for George W. Bush, he takes office. And there's a kind of taint on the Supreme Court for that. Its public approval ratings go down significantly. It is seen as partisan.
Now, you also have low public approval ratings for the Supreme Court, I think again, because it is seen as partisan. It has this even stronger conservative majority of justices all appointed by Republican presidents. And it's talking about issuing a very broad ruling after really, really taking its time in this Trump case. And that seems at odds with the kind of push forward quickly for Bush versus Gore and the breadth of the ruling. And the common factor is that both of these decisions appear to favor Republican candidates for president. That's not going to help the court's reputation.
Ian Bremmer:
How likely do you think that's coincidence?
Emily Bazelon:
I mean, these are the questions that they've gotten harder to answer because as an American, I want to have a good faith belief in the justices' approach to these cases. After a certain number of cases come out particular ways, you start to feel like cynicism is realism about the court. And some of its reasoning in other cases have also given me a lot of doubt about whether there is a real kind of sense of fair-mindedness and rule of law set of principles that are binding some of the conservative justices.
Ian Bremmer:
Because the justices, once they're appointed, they're there. I mean whether they're in tilt or liberal in tilt. And we have seen cases where rulings that have come have been surprising from individual justices, that's happened historically, that's happening still now. You would think that the justices, given that, would have an incentive to have the court portrayed as more legitimate, to have the rulings that come out be seen by the public as more legitimate. Do you see those efforts?
Emily Bazelon:
Well, Chief Justice John Roberts has his name on the court. It's the Roberts court. And in the last several years, he has been the most concerned with exactly this question, it appears, and in finding some kind of middle ground so that by the time the term ends it doesn't appear as if it's just a slam dunk and the Republicans and social conservatives have run the table at the court.
In the immunity case, it was hard to see how Roberts was looking for a compromise, but it's possible that it's still there and we just couldn't hear it in his questions. There's a difference between the ideas they test drive at oral argument and where their opinions land. I also heard some questions from Justice Barrett that seemed more sympathetic to the government's point of view, less sympathetic to Trump's lawyer. And so it is possible that with the three liberal justices, there are still five votes for something that will seem more moderate than what appeared coming out of argument.
Ian Bremmer:
Okay. I want to move to the second big area of cases in front of the court. Reproductive health, right to an abortion, right to drugs that can facilitate an abortion. Big case in front of the court right now involving the FDA. Explain that to the viewers.
Emily Bazelon:
So this is a case about the FDA's authority to regulate drugs broadly and in particular to decide that it's safe to reduce restrictions on abortion pills. The most important part of what the FDA did was to say that doctors could prescribe pills, and those pills could be sent through the mail, that you didn't have to go have an in-person visit with an abortion provider to get the pills. The challenge is brought by some doctors who are anti-abortion and who say that because of the FDA's decision, the number of complications from abortions has risen, and they might have to treat such a complication in the hospital. It's a very hypothetical claim, not the kind of claim that you usually get into court for successfully. Usually you have to show I actually experienced a harm-
Ian Bremmer:
A harm directly.
Emily Bazelon:
Yes. And it's really hard to see that here. So during the argument before the Supreme Court it seemed entirely likely that there would be a strong majority of justices, maybe even seven justices, who would say, you know what? This is not the right case. These plaintiffs didn't really experience harm, and we're not going to decide these issues about the FDA's authority, whether the FDA did it right in loosening these restrictions because we don't have the right people standing here in court. And that would kick this can down the road, which will be very important because this is the case that affects women across the country. It's not state by state. It's not Idaho's abortion ban. It's the FDA's authority to allow pills to be shipped everywhere and other rules that have made abortion pills more accessible for women in blue as well as red states.
Ian Bremmer:
How much is interstate commerce playing a role in this? The fact that individual states can't make rules if the government comes in federally and says, no, actually we're going to undermine the nature of previous rulings by saying that women are just going to have the ability to get these drugs.
Emily Bazelon:
So the FDA authorized the drugs and federal law governs them, there are still state bans of the drugs in effect. So legally speaking, you can't take these pills in red states that have banned them even though the FDA has allowed them to be available. So there are still protections, if you want to use that word, against women using them in red states, those red states laws still stands. This is really just about the FDA's authority foundationally to allow people to access the pills.
Ian Bremmer:
Four women on the Supreme Court right now, a historic high water mark. How has that played out in the arguments in the discussion on the court, on issues that are setting back, let's be clear, women's rights for decades in the United States.
Emily Bazelon:
So in Dobbs, which overturned Roe Justice Barrett voted with the men on the court to overturn Roe v. Wade. She has not taken any kind of vote yet in an abortion case that softens that result. It will be interesting to see if that continues this term. In the FDA case we were talking about, there's also a case out of Idaho that is about whether Idaho can have an exception to its abortion ban that only applies when someone is at risk of death, a very, very strict limit, right? Doctors have to say, this person is going to die before they can do an abortion.
And the federal government, the Biden administration is challenging that law under what's called EMTALA, which is the federal law that says that emergency room docs have to provide necessary stabilizing treatment for people. So the idea is you shouldn't have to wait till a woman is at the brink of death to do an abortion if that's the procedure that is necessary to spare her from losing an organ or going into a coma. And in the context of that case, Justice Barrett asked a lot of sharp questions that were really about women's experience of labor and delivery that seemed like she was taking this very seriously. Now we'll have to see how she votes to know whether that really makes a difference. But there was a level of candor about women's health and experience of pregnancy and labor that was unusual at the court.
Ian Bremmer:
I'm asking this in part because it does seem when you're trying to understand the Supreme Court that there's a certain amount of Kremlinology. I mean, just having to read the tea leaves and understanding what these Supreme Court justices actually mean when they're making these decisions and trying to get inside their heads.
Emily Bazelon:
It's true. It's true. I mean, I think that we do have them playing with ideas at argument, and we get to read what they've written, and sometimes you could just get a sense of the dynamics based on how they're responding to each other and writing. They're on a kind of publicity tour right now, some of them, to reassure everyone about how well they get along with each other individually. I'm personally mystified why they think we should care about that. I don't care whether they can be nice to each other when they're having lunch, whether they're collegial. I care about whether American law is going in a direction that makes sense to most Americans. I care about the principles at stake and how much they're agreeing or disagreeing about these fundamental precepts of our legal system. So to me-
Ian Bremmer:
I mean, I would argue you're an unusual demographic in terms of your engagement with the Supreme Court in the United States.
Emily Bazelon:
But why does it matter how well they get along with each other?
Ian Bremmer:
For the average American?
Emily Bazelon:
Yeah, that they're modeling collegiality. Who cares about that?
Ian Bremmer:
Well, in a country where the one thing that Democrats and Republicans agree on is that the other side is trying to destroy democracy, it is interesting and unusual to see a group of conservatives and liberals that actually talk to each other and seem to have respect for each other's people.
Emily Bazelon:
That's totally fair. I guess I would just say that they all have an incentive to protect the institution. The liberals as well as the conservatives, they don't want to see Americans lose total faith in the court. That's not good for them and their job security and their collective legacy. And so it just seems self-interested to me to be going on about how chatty they are with each other.
Ian Bremmer:
So beyond the degree to which the Supreme Court justices get along with each other, how much does it matter, in your view, if the Supreme Court is or is not in step with the views of the American public?
Emily Bazelon:
So this is a classic question about our separation of powers. The justices are not elected. They're not supposed to be simply responding to popular will like a weather vane. On the other hand, if they lose sight of the American public entirely, if they're not paying attention to the climate as opposed to whether it's raining, then they lose their legitimacy. And then the other branches of government get restive and have done things in the past like change how many justices there are on the court.
And so I also think for the health of American democracy, you want all three branches, more or less thinking about how the American public is moving forward as opposed to being stuck in the past. And when you have Supreme Court justices who were confirmed decades ago, there's no term limits, there's no regularity to how they're replaced, you risk having them really cemented back in the past with the set of concerns and politics of when they got onto the court versus thinking ahead. And if you think the American electorate is moving in a more liberal direction and you have this very strongly entrenched conservative majority, you kind of worry about tension there. And the question is, how much space can there be?
Ian Bremmer:
Let's move on to other cases that are interesting facing the court right now. Homelessness is in front of the court, the idea that you have to have a right to be able to be on the street if there's no other place for you to go. What's at stake here? Where do you think it's going to go?
Emily Bazelon:
Yeah, so this is a case coming out of a town in Oregon called Grants Pass that provides very little services for homeless people and also has made it a crime to sleep outside with a blanket. And the question is whether that violates the ban against cruel and unusual punishment in the Eighth Amendment, the Ninth Circuit, which is the appeals court that has jurisdiction in the west of the United States said years ago that it is. That cities can't provide very few services and also make it a crime to sleep outside. The rest of the country doesn't live under that legal regime. And it's easier for cities to say, you got to go, you can't sleep here, you can't put up a tent here.
And the justices had a kind of philosophical discussion about sleeping. Is sleeping, like breathing something that a city or a state has to make room for people to be able to do. And if they don't have an inside, then they have to do it outside. The conservatives were skeptical about this whole idea that you would have any Eighth Amendment right to live outside. And so it seemed like at the end of argument that cities are going to have more leeway to make people get up and move to prevent homeless people from being on the street in parks, et cetera.
Ian Bremmer:
Is the idea then that one way or the other the state has to provide either setting up homeless shelters or making room for them in jail?
Emily Bazelon:
I mean, we'll see if there's even a part of the decision that talks about what states and cities have to do. It's kind of a crazy case in that the problems we have with being unhoused in this country are about big policy disputes about there's not enough affordable housing, we don't have good transportation from place to place. That's why there are a lot of people are homeless in addition to problems with not treating drug use and mental illness-
Ian Bremmer:
Mental health and all [inaudible 00:20:47] yeah.
Emily Bazelon:
Yeah. This case is not really about any of that. It's about a more theoretical question about cruel and unusual punishment. And so in a sense, it seems kind of removed from the actual policy problems that state and local officials face all the time when they're trying to figure out how to provide adequate services, how to get Americans to want to pay for adequate services. That [inaudible 00:21:08]-
Ian Bremmer:
How often do you think the Supreme Court justice is like, I just don't want to deal with the issue that you want me to deal with, I'm going to take it on my own way because that's uncomfortable?
Emily Bazelon:
I mean, sometimes they do just change the question that the parties are asking or trying to get them to resolve. They just grant review on a different question and say we're going in a different direction. Once they've taken a case, they're supposed to be limited by what the parties have argued, what they've talked about in the lower courts. There's a whole set of constraints that are supposed to make them color within the lines.
Ian Bremmer:
Okay. Last case I want to ask you about is this landmark Chevron case that involves to what extent these major US federal agencies like the EPA can make significant overarching rulings?
Emily Bazelon:
Yeah. So this is a case that's really about deregulation, right? We have federal agencies, they take the laws that Congress has written and they fill in all the details with regulations. And that's how the democracy has operated really since the New Deal. The agencies have become more powerful, they do more. And increasingly, corporations are more conservative, they want less regulation, they push back. So one of the big legal rulings at the center of this, Chevron, says that if a law is ambiguous and the agency has a reasonable interpretation of it, courts will defer to the agency's reading of the law. And the idea here is that agencies have hundreds of people who work there, they're the experts, judges are not, they know better. That is now completely up for grabs, seems very unlikely that Chevron as we've known it since the mid-1980s is going to continue.
And what the conservative justices seemed eager to do in this case was make it easier for corporations to challenge regulations and to have judges that are sympathetic to that point of view overrule agencies like the EPA and the SEC and the FDA, that kind of alphabet soup of Washington that for many decades we've relied on to make these rules.
Ian Bremmer:
And so the idea of the so-called deep state where you have thousands and thousands of bureaucrats that are making laws for your average Americans. But there is, again, a sense of delegitimization there. It's not Supreme Court. It's not just your Congress. It's also the civil servants in the United States. We're seeing backlash against that.
Emily Bazelon:
Absolutely. And one way to think about these agencies is that they keep us safe. They make sure the water is clean and that the air is clean, and they tell power plants you have to limit your carbon emissions. Another way to think about them is they're intruding on corporate profits and taking up too much power. And either Congress should be writing very, very clear, very granular rules about what-
Ian Bremmer:
They can regulate, yeah.
Emily Bazelon:
Exactly. Or the court should be saying, we're going to figure it out ourselves and probably in a more deregulatory environment.
Ian Bremmer:
So in the grand scheme of things, it seems like a lot more at stake with Supreme Court rulings for the state of the republic right now in this session than we would normally see.
Emily Bazelon:
Yeah, this is just a huge year for the Supreme Court. You're right. There's a whole other set of challenges about the power of social media platforms vis-a-vis the government states that want to tell companies like Meta and X, et cetera, that they can't remove content from their platforms that they want to remove because they think that it's misinformation or it's hate speech. So yeah, it's just a giant year for the Supreme Court. You're right.
Ian Bremmer:
Nobody better to navigate it with us. Emily Bazelon, thanks so much for coming back on GZERO.
Emily Bazelon:
Thanks for having me.
Ian Bremmer:
That's it for today's edition of the GZERO World Podcast. Do you like what you heard? Of course you do. Why not make it official? Why don't you rate and review GZERO World five stars, only five stars, otherwise don't do it, on Apple, Spotify or wherever you get your podcasts. Tell your friends.
