Abortion, Guns And LGBTQ Rights On The Docket For Supreme Court's New Term Separation of church and state, immigration and questions about impeachment could be on the table this term, which starts Monday and will almost surely be a march to the right on flashpoint issues. This episode: political correspondent Scott Detrow, editor correspondent Domenico Montanaro, and legal affairs correspondent Nina Totenberg. Email the show at nprpolitics@npr.org. Find and support your local public radio station at npr.org/stations.
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Abortion, Guns And LGBTQ Rights On The Docket For Supreme Court's New Term

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Abortion, Guns And LGBTQ Rights On The Docket For Supreme Court's New Term

Abortion, Guns And LGBTQ Rights On The Docket For Supreme Court's New Term

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KAREN: Hi. This is Karen (ph) in Maine, and I'm taking a walk in the woods with my husband Mike and our new foster dog, Cherry. She just arrived last night from a shelter in Arkansas. We love her. This podcast was recorded at...


That sounds delightful. It is 2:06 Eastern on Monday, October 7.

KAREN: Things may have changed by the time you hear this, but we will definitely keep coming out for walks. OK, here's the show.


DETROW: Domenico, that was like peak NPR, like, leaf rustling...

DOMENICO MONTANARO, BYLINE: Yeah, I know. She did a good job with that. You know, and it's exactly how a lot of people listen. They're doing stuff, taking the dog for a walk, whatever.

NINA TOTENBERG, BYLINE: I won't make the obvious crack about what the dog did on the walk.


DETROW: I think you just did. Hey there. It's the NPR POLITICS PODCAST. I'm Scott Detrow. I cover the campaign.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

TOTENBERG: And I'm Nina Totenberg, legal affairs correspondent for this glorious network.

DETROW: And, Nina, you here because a new Supreme Court term begins today, and their docket is a greatest hits of all of the American political flashpoints. We've got abortion, LGBTQ rights, guns, immigration, religious liberty, even the Electoral College.

TOTENBERG: Oh, my God. There is literally not a social flashpoint issue that I can think of that's not before the court this term. Now, they may duck and cover a few times on some of these cases, but they are there. For the most part, they are already granted and scheduled for oral argument.

DETROW: Domenico, Chief Justice John Roberts seems to talk a lot, especially recently, about trying to keep politics out of the court, saying this is not a political institution. We are here as the Supreme Court. I mean, to me, it seems awfully hard looking at all the topics that they're going to weigh in on to avoid coming out looking pretty political this year. I mean, how do you avoid that if you're Roberts and the court?

MONTANARO: No, I mean, eventually, the court has to weigh in on things that do have implications for society writ large. And it's as Nina was talking about. These things are granted - many of them - and they're in front of the court. So it's going to be nearly impossible for the court to say completely that it's steering away from politics. They may, you know, have some decisions that might not exactly be full-throated or as bold as one side or the other wants. But, you know, eventually, they've got to weigh in.

TOTENBERG: OK, here's my NPR moment. Alexis de Tocqueville once observed, after a trip to the United States, that every important issue in American life eventually reaches the Supreme Court. And this term is the embodiment of that. That offsets my poop comment.


MONTANARO: You have a wide range.

DETROW: Low brow, high brow, you know - Nina, before we walk through some of the specific cases, given the topics that are being addressed, given the previous rulings on these topics, who, in your mind, are the key justices to keep an eye on over the course of the year when oral arguments happen as we do the tea leaf reading that, you know, has limited benefits sometimes of how these could turn out?

TOTENBERG: Look. Justice Brett Kavanaugh replaced Anthony Kennedy. And Anthony Kennedy was the fifth conservative vote, but he was far more centrist than the other four justices. And that would include Neil Gorsuch who replaced Justice Antonin Scalia. Kavanaugh has a very firm, pretty hardcore conservative record on most issues. Every justice has something that he or she cares about that's a little different, a little flaky, you didn't predict. But on these big issues, I think the only person who is likely to make the difference is the chief justice, John Roberts, who is a solid, solid conservative and really has only deviated in the big cases twice - once to uphold Obamacare, although on different grounds, and, in the other case, to keep the citizenship question off the census. Those things were seven years apart. And certainly, there were some other littler cases in between, but he's a solid vote. And the only question here is how fast, how aggressively the right on the court, which now has a pretty firm grip - how fast they're going to move to change not just 10 years or 20 or even 30 years of doctrine but sometimes 50, 60, 70 years of doctrine.

MONTANARO: And that's something you wrote about this morning. I mean, the idea that, for the first time in three-quarters of a century, that it's a conservative court - the real disagreement here, as you noted, is how fast they move, right?


MONTANARO: And whether or not abortion, for example, is - Roe v. Wade is overturned or hollowed out. Whether it's a year, five years, 10 years out, those are all things that John Roberts has some control over. But it's really just pace not exactly how important it is.

DETROW: So as we walk through just a few of the cases, let's start with abortion. This is a case coming out of Louisiana. Nina, what is this case about? And what are the implications?

TOTENBERG: Well, three years ago, the Supreme Court struck down a Texas law that made it very difficult for abortion clinics to operate and to have doctors that performed abortions. I think something like half the abortion clinics in the state of Texas shut down before the court struck down the law as an unconstitutional burden on a woman's right to terminate a pregnancy. Now comes Louisiana. Louisiana has, for all practical purposes, the exact same law. It even concedes that. And the Supreme Court is being asked to decide whether they should strike down the Louisiana law. Well, it's a pretty clear case of - we're going to see, are there five votes to do that? Or are they going to take the usual course, the more accepted conservative course, traditionally, of respecting precedent? OK, I didn't agree with that decision, but people have relied on it. We're going to uphold it. You know, Roberts is the deciding vote on this. They may try to split the difference, and we'll see how fast, how aggressively they move.

DETROW: And of course, Anthony Kennedy, who often ruled on the side of abortion rights, has been replaced by Brett Kavanaugh. And that's the key difference.

TOTENBERG: That is the key difference. Kavanaugh has a pretty clear record of being unhappy about abortion rights. Let's put it that way.

DETROW: All right. We're going to take a quick break. When we come back, we'll talk about two more high-profile cases - one dealing with LGBTQ rights, the other with gun laws.

OK. We're back, and one of these big cases is going to hear arguments this week. And that's a case dealing with LGBTQ rights. Nina, before the podcast began, you were telling us that people were lining up to be in the courtroom for arguments over the weekend.

TOTENBERG: Yes. They started Saturday morning, and there was a long line snaking around the Court plaza and off onto the sidewalk this morning when I was there, so obviously, there's going to be a lot of folks trying to get into this argument. It's very important to people for a good reason.

At the moment, in a lot of states - something like 25 states have no laws that protect gay and lesbian and trans employees in employment. The 1964 Civil Rights Act says explicitly that you, the employer, may not discriminate, quote, "because of sex." Now, clearly, in 1964, they didn't have the idea of gay or trans employees in their heads, but if you believe in text, that's what the text says. That's what the public meaning of it would be under today's understanding. Then others argue the public meaning of it back then clearly didn't cover this. Now the Supreme Court's going to have to decide whether the 1964 Civil Rights in Employment Act covers gay and trans employees.

DETROW: OK, so this is a case where essentially, we're talking about whether an employer would be free to fire someone because of sexual orientation or gender identity. So what does this case stem from? Like, who was the person involved?

TOTENBERG: I interviewed a couple of them. In one case, the guy was the head of welfare services for Clayton County Georgia. And then he joined a gay softball league, and he says that he was then fired because of that. In the other case, a woman - a trans woman - had worked as a man for a funeral service place, and she finally, after much struggle, told her boss that she would be coming to work as a woman. And two weeks later, he fired her.

DETROW: And of course, Kennedy wrote several rulings leading up to his most famous ruling, legalizing same-sex marriage across the country. Is there any sense what the new court is thinking going into this case?

TOTENBERG: I don't know. We'll just have to wait and see. What a boring thing that is for a reporter to say.


TOTENBERG: But I wouldn't - I think it's always dangerous to predict.


TOTENBERG: But Kennedy really was pivotal about this, and he really did firmly believe that the values espoused in the Constitution, although the founders may not have had gay marriage in mind - that they were broad concepts meant to adjust to the times.

DETROW: One more case to talk about - and there's a whole other bunch of cases we will get to when the rulings come in, but one more case is gun rights. It's been about a decade since the landmark court ruling protecting individuals' rights to own firearms. Why revisit it now? What is this specifically about?

TOTENBERG: I think most court observers - that would include me - thought that once the Supreme Court said 10 years ago, you have the right to own a gun for self-defense in your home - and that was the Heller decision. Justice Scalia wrote the decision. But clearly, there was a section of that decision that was Kennedy's quid pro quo, as it were. And it said, but the Second Amendment right to bear arms is not - is hardly absolute, and there are lots of regulations that the government can impose. But it didn't say which those regulations were, so now with Kennedy gone, we're going to see a battle over which regulations are OK and which ones aren't.

The particular case before the court may fizzle out on procedural grounds. It's a kind of bizarre law from New York. But the case is about - can you openly carry a gun? Do you have - you know, is that part of your constitutional right? Can you concealed carry a gun? Is that part of your constitutional right? All kinds of these questions about gun rights are going to come before the court, and Brett Kavanaugh, as a lower court judge, was a believer in a very expansive right to bear arms.

DETROW: So is this a court that you could see allowing a society in which, you know, five, 10, 15 years from now, we see people in cities across the country with holsters carrying firearms?

TOTENBERG: I don't know because there is such consensus in the country politically - like, 80, 90% - about some gun regulations. But Brett Kavanaugh would have struck down a D.C. law that banned assault weapons and magazine clips, big magazine clips. You know, I would think that a ban on large magazine clips would be wildly popular and easy for some Congress to enact and some president to sign - maybe not this Congress, maybe not this president, but some time. And then there's this clash, and I - it will be very difficult, I think, for the court.

DETROW: So it seems like...

MONTANARO: Well, it has been a big shift in the last 20 years, obviously, on a couple different directions because when you talk about 80 to 90% of people being in favor of some gun restrictions - you know, universal background checks, for example - huge numbers, including Republicans. High-capacity magazines, it's a little different. You have about two-thirds of the country in our polling saying that they're in favor of it, but it's mostly Democrats and Independents. Republicans are the ones who still continue to say that they're not in favor of it, and you look at the court, and the balance of who's been put there by whom - you know, it makes sense that they might not feel the same way that Independents and Democrats do.

DETROW: So, Nina, all of the concerns that Democrats in the Senate had during last year's confirmation hearings for Brett Kavanaugh, all of the conversation about how much he could change the Court replacing the swing vote Anthony Kennedy - it seems like you look at all the issues that they're dealing with this year, and a lot of that is going to come to a head over the next nine, 10 months or so.

TOTENBERG: Right, and if Kavanaugh goes in the very conservative direction on these, then the only real shot left for liberals is the chief justice, who's by nature, I think, a cautious person. And so far, Kavanaugh has sort of been under his wing, has not wanted to be out there on his own yelling and screaming in dissent. But it's just the beginning of what promises to be a very long tenure for this potentially incredibly important justice.


MONTANARO: And none of this is to say anything of DACA...


MONTANARO: ...Deferred Action for Childhood Arrivals, or DREAMers...

TOTENBERG: The DREAMers, the so-called DREAMers...

MONTANARO: ...People who were brought to the United States illegally as children and now many of whom are adults because they've been waiting so long.

TOTENBERG: They might be your doctor.

MONTANARO: Or even thinking about something like presidential power - as we're looking at an impeachment proceeding that is continuing and getting closer to Democrats actually having some action on it, whether or not, you know, subpoenas, for example, that wind up going from Congress to the executive branch - if the Trump administration denies those, you have some justices on the court who believe in a very expansive view of presidential power.

DETROW: Well, when all of these oral arguments happen, when all of these decisions are reached, we will talk about it in the podcast. That is it for today. We will, of course, be back tomorrow. Until then, head to npr.org/politicsnewsletter to subscribe to a weekly roundup of our best online analysis, often written by Domenico, that shows up in your inbox every Saturday morning.

I'm Scott Detrow. I cover the campaign.

MONTANARO: I'm Domenico Montanaro, senior political editor and correspondent.

TOTENBERG: And I'm Nina Totenberg, boss of everybody.

DETROW: Thank you for listening to the NPR POLITICS PODCAST.


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