SCOTT DETROW, HOST:
Hey there. It's the NPR POLITICS PODCAST. I'm Scott Detrow. I'm covering the Biden transition.
CARRIE JOHNSON, BYLINE: I'm Carrie Johnson, national justice correspondent.
NINA TOTENBERG, BYLINE: And I'm Nina Totenberg, legal affairs correspondent.
DETROW: And, you know, we've been having these conversations lately about what various policy areas could look like next year once Joe Biden's in the White House. And we're going to do that today with the courts - with the Supreme Court. Obviously, there's no instant shift the moment Biden, you know, becomes president in terms of what the Supreme Court is dealing with and looks like. But I think it's still a good conversation.
And, Nina, let's - you know, there's so much we don't know. But let's start with something we definitely do know. What is on the court's docket over the next few months? And what is the court going to be focused on in the early days of the Biden administration?
TOTENBERG: Well, we haven't gotten any major decisions, but we have had some of the cases argued, for example, a huge religion case that tests whether the city of Philadelphia's foster care program can exclude as a contractor - in this case, Catholic Charities - because they discriminate against gay and lesbian parents who are wanting to foster children. And it's a really big deal, obviously. If this is discrimination against a religion, which I suspect five or six members of the court think it is, then what other kinds of limits can be put on contracts that state and local governments put into effect?
There are a lot more cases coming up. Probably abortion may get to the court, but only in terms of the - of RU-486 and whether - what kinds of regulations can be imposed on that. But we don't - you know, we're just seeing the very beginning of a 6-3 court majority - conservative court majority that is likely to be more conservative than any court since the early 1930s.
JOHNSON: You know, Nina, one of the things that's going to change pretty soon is that Joe Biden is going to be the president. And my understanding is that his officials at the Justice Department could take a look at the array of cases before the court and maybe change their minds about some things. Do you expect a lot of change there?
TOTENBERG: Yes. I think they'll probably wash out a bunch of the Trump policies that are at issue in some of the cases before the court and that are clearly within the purview of the Biden administration, by policy and by executive order, to abolish. And probably, there are a lot of members of the court who will be pathetically grateful for that - that they don't have to make excursions...
TOTENBERG: ...Into (laughter) areas...
TOTENBERG: ...That they wouldn't have otherwise. So I would expect some big cases to wash out that way.
DETROW: Now, one of the cases that had gotten a ton of attention because Biden talked so much about it in the runup to the election, was that case on the Affordable Care Act - any sense when we could get that ruling.
TOTENBERG: It was argued, you know, quite early in the term. And the sense I got at the oral argument was that the lower court had just gone too far when it said that it - you could abolish the entire Affordable Care Act because the individual mandate, otherwise known as a tax penalty, is no longer there. I'm - you know, I don't know how this is going to turn out, but it will be huge if the court were to abolish the entire ACA. I mean, it would be gargantuan.
I just saw that in the last quarter, 8,000,000 new people signed up for Obamacare because, of course, they've lost their jobs and their coverage - their insurance coverage - medical insurance coverage. So that's a huge case that will come down by the end of the term.
DETROW: And that's obviously something that would profoundly shift the legislative focus of the Biden administration, if part of that law were thrown out and Biden had to go to Congress and say this needs to be fixed right away because, of course, he would do that.
The other question I have thinking about the election - you know, obviously we have this unprecedented situation of a high-profile, court-changing confirmation in the final days of the presidential race. There was so much talk over how Barrett, in the 6-3 majority, would shift the court for generations to come. Obviously, that's going to be an enormous storyline. But I wonder, a few months into her time on the court, do we have enough evidence yet? Have we seen trends where you can point and say, this is happening as expected or this is happening a little differently than we might have anticipated?
TOTENBERG: I would say that, you know, she really is a newbie. And she hadn't even been on the Court of Appeals all that long. So my sense, and this is just a sense, is that she's trying to be a team player. She doesn't go out on a limb. She doesn't write separate concurrences or dissents in cases that don't require it or emergency orders where there's an unsigned opinion for the court. And sometimes other justices say, well, I would have gone further or I don't like this. She hasn't done that, by and large.
So she's, I think, so far been a team player. But it's really such early days. All we can tell is that she is pretty much the conservative she was advertised to be and that she has participated in cases involving the election. She did not recuse herself, as some people, including a lot of Democrats, thought she should have done.
DETROW: All right. So a lot of things to look for being issued by the court. We're going to take a quick break. When we come back, we will talk about the ways that the Biden administration might or, you know, maybe might not have a chance to shape both the Supreme Court and lower federal courts.
And we are back. And before we talk about how a Biden administration would try to change the scope and the look of federal courts, just worth stressing one last time just how profoundly the Trump administration and the Republican Senate have really massively left their mark on the federal courts over the last four years.
JOHNSON: Boy, Scott, you got that right. I mean, three Supreme Court justices, but beyond that even, over 200 lower court judges, 54 on the Court of Appeals and almost 175 on the district court level - these are all lifetime tenure jobs. In some instances - in a lot of instances, in fact, Trump elevated people who are in their early to mid-30s to these jobs. So they are going to be around by the time your kid is old enough to drive and go to college for sure.
DETROW: And there is a massive question that we cannot answer right now. So we'll just note it and then keep talking around it. If Republicans win these Georgia runoffs and they maintain control of the Senate, there is an open question of whether Majority Leader Mitch McConnell would bring up a vote for a Supreme Court justice or even, you know, lower federal court openings that Biden nominates. We don't know the answer to that yet because we don't know who's going to control the Senate.
But, you know, how many opportunities would Biden even have to fill federal judgeships right now? Like, did Trump and McConnell just fill everything possible? Are there even openings at the moment? Obviously, people would retire. But what are we looking at right now?
TOTENBERG: I think they were confirming judges last week still.
JOHNSON: Yeah. They were. And they may try to do it again in January, depending on what happens with the Georgia races. I looked, and there seemed to be about 40, 45 vacancies. Almost all of the federal appeals court judgeships are filled, but one or two - and then some lower court judgeships.
The question is, how many judges currently on the bench will decide to retire or take senior status next year? And will Biden succeed in really ramping up the judge machinery and getting through to Mitch McConnell and getting those judges confirmed?
TOTENBERG: Well, Carrie, we know what McConnell did in the past. I mean, even the seat that now Justice Barrett filled was kept open for, I think, at least for a year or something like that, so that the Republicans could fill it instead of letting the Obama nominee go through. And I don't know what your sources are telling you about what McConnell might do.
JOHNSON: You know, he's been a pretty much take-no-prisoners guy when it comes to federal judgeships. He basically said that a lot of the things the Trump administration accomplished will go away overnight or nearly overnight. But the judges are an accomplishment that will last most of the rest of his lifetime, surely, and be Mitch McConnell's legacy to - he - you know, he plays hardball. And I don't know that he's going to stop doing that.
DETROW: Setting that aside, you know, Biden repeatedly refused to issue a list of potential Supreme Court nominees. You know, one of the many memorable moments in that debate where they - where Trump yelled at Biden the entire time and interrupted him, Trump was saying, where's your list, where's your list?
What has Biden said about the type of person he would nominate for the Supreme Court if there is an opening during his term?
TOTENBERG: He pledged to name an African American woman. What he didn't want to do was put out a bunch of names that the right could then go after and take down ahead of him even winning and maybe make him not win, in addition to that. There are basically two leading contenders who are talked about the most, if there were to be a vacancy.
And obviously the person most likely to retire at some point, and he won't necessarily do it in 2021 or at least in this term - and that's Justice Stephen Breyer, who's 82 years old and appears to be in excellent health.
So the leading contenders are California Supreme Court Justice Leondra Kruger and Federal District Court Judge Ketanji Brown Jackson. Both have gold plated credentials, Harvard or Yale or both, served as editors of their law reviews, clerked on the Supreme Court. Both are young. Kruger is 44. Jackson Brown is 50. She was actually interviewed by Obama when the Scalia seat came open. As a lawyer, she was a public defender and worked for respected law firm. She's got lots of other big credentials and has issued some important decisions as a federal district court judge.
Kruger, before becoming a judge, served for six years in the solicitor general's office, rising to the number two position of principal deputy solicitor general. And that was even before she was 40. I watched her argue several cases before the court when she was in her 30s. And she was a real star. But by the time she was arguably old enough to be named to the federal bench in the Obama administration, Mitch McConnell was the Senate Majority Leader and almost certainly would have blocked her appointment on the grounds that she was clearly headed for the Supreme Court. He just wouldn't have let it happen.
So then Governor Jerry Brown in California came calling and named her to the California Supreme Court, where she has earned a reputation again as a star and a moderate liberal over the last six years.
DETROW: Yeah. I was covering California at the time. And it was clear that Jerry Brown was approaching the California Supreme Court as a place to elevate people who could be, you know, future legal superstars on the national level. And it seems like, you know, if there is an opening that that could play out.
JOHNSON: Speaking of elevating future superstars, I've got to tell you what I've been hearing from advocates on the left - progressives in the legal community, groups like that nonprofit group Demand Justice, the NAACP Legal Defense Fund - is that they don't just want to see diversity in terms of ethnicity and gender. Remember, President Trump nominated zero - no Black federal appeals court judges in his entire four years in office.
They - these groups also want to see diversity in terms of professional background, and that means, Scott and Nina, people who don't just come from the ranks of big law firms or marching through the government and government service. They want to see public defenders. They want to see people who have worked in advocacy jobs.
They want to see people like Ruth Bader Ginsburg, who made her mark at the ACLU Women's Rights Project. They want to see those kinds of candidates elevated to lifetime federal judgeships. That would be kind of a remarkable addition to the bench.
DETROW: All right. Nina, Carrie, thanks as always for coming on the pod. I always love having both of you in the conversation.
TOTENBERG: And I love being here.
JOHNSON: Happy to do it.
DETROW: I'm Scott Detrow. I cover the Biden transition.
JOHNSON: I'm Carrie Johnson, national justice correspondent.
TOTENBERG: I'm Nina Totenberg, legal affairs correspondent.
DETROW: Thank you for listening to the NPR POLITICS PODCAST.
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