The Supreme Court Rules From Home
From The New York Times I'm Michael Borrow. This is the daily today. The Supreme Court Begins Rolling out a series of major rulings on the jury system immigration abortion rights and Presidential Power Adam lip tack on the High Court in the middle of the pandemic. It's Tuesday April twenty first here. We Go Adam Michael. You has the birds chirping at. Maybe I can close the window. I have a window that's cracked open a bit and I I could deter Parizek. Okay here we go. Okay thank you. Thank you for turning off your birds. We used to Adam. We usually talk to you after you spend a morning over the Supreme Court in the chamber watching the justices and I have to imagine that the routines of the court have completely changed. The Supreme Court is turned invisible to me. I cover the court now from my Home Office whereas on days like this when the court issues decisions you typically have packed pressroom and people listening to the justices announced decisions from the bench but They've postponed two sets of arguments and just recently have decided to hear ten arguments by telephone. Which is a brand new appearance for all concerned and we'll let the public listen in on those arguments which also brand new experience of live audio from the Supreme Court. Saw a lot is changing so as different as everything is for the justices and for you covering them. There was a major ruling that was handed down on Monday. So tell us about this case will so. I'm sitting at my desk hitting the refresh button right before. Ten o'clock in the case comes up. It's called Ramos versus Louisiana. It involves EVANGELISTA Ramos. Who in two thousand sixteen was convicted of murder by a Louisiana jury but only ten of the twelve jurors agreed that he was guilty and it presents. A really significant question can states. Let Juries convict people when they're not unanimous and just one clear the man at the centre this case Ramos was charged with murder in Louisiana and he was convicted of that charge even though only ten of the twelve jurors believed that he was guilty? That's right two states Louisiana in Oregon allow non unanimous. Juries Louisiana's recently changed its constitution so going forward even Louisiana doesn't have this rule anymore but that only applies going forward so Mr Ramos was still on the hook for this and lots of other defendants and prisoners have been convicted in Louisiana by non unanimous juries. So the cases quite consequential four perhaps thousands of people who states and on what grounds do his lawyers make a case that somehow gets up to the Supreme Court. Well they have. What would seem to be a pretty strong case? The Supreme Court has said that we're federal. Juries are concerned the sixth amendment which guarantees your right. A fair trial requires the jury be unanimous. In general the bill of rights applies to the states just as it does to the federal government. So you would think that if you have this right in federal court you ought to have it in state court to and that's the basic point. Ramos's lawyers pressed and so how does this case unfold before the justices one fascinating aspect of the case? Michael is that the history of these non unanimous jury. Laws were deeply tainted by racism. Louise used to require unanimous juries but after the civil war and after a Supreme Court decision that said that Louisiana and other states couldn't exclude blacks from juries. They held a constitutional convention. These stated purpose of which was to ensure white supremacy and one upshot of it was to say okay. Maybe we can have a couple of black serve on juries but we WANNA make sure that they will be powerless to alter the conclusion. And how does a non unanimous jury verdict disempower Black Jurors will? Let's assume you're a black defended and let's assume you're in the deep south where an all white jury would be predisposed against you but if you have a black juror or two on that jury who might be more willing to hear your story and might be more willing to give you the benefit of reasonable doubt that could end up in a hung jury and it would prevent would otherwise. Be An all white jury from railroading you. That would be the theory of it. We'll here argument next in case eighteen. Fifty nine twenty four Romo's versus Louisiana Mister Fisher. And how does this racial history come up in the orchids strategic justice? I'm pleased the court. Well Ramos's lawyer makes clear that the presence of all sorts of minority voices on a jury deserve to be considered in heard and shouldn't be shut out if you have one or two members of a minority on a jury. It could be a racial minority. It could be a political minority. It could be a religious minority. Are we really prepared to say that those one or two votes can be utterly canceled out? The idea of the American jury system is that gets a vote and the community as a community is meant to reach consensus not for ten people to outvote to people. And how did the justices approach this question of race? Well nobody seriously disputes that. The roots of these laws were ugly. That the rule in question here is rooted in racism in Justice. Kavanagh went on about the ugly history of Louisiana's requirement rooted in a desire apparently to diminish the voices of black jurors in the late eighteen ninety S. So there was no real dispute. That obviously racially warped jury systems are bad but at least some of the justices thought that what was true in the eighteen. Ninety S is not a reason in twenty twenty necessarily to strike down these laws in which justices made that argument. Well the leading and to my mind. Most surprising proponent of the argument was Justice Elena Kagan Obama. Appointee a liberal. But she said that. Listen SOME STATES. Do it one way some states do it another way. We've been doing it this way for a long time. And there's no reason to reverse course at this point And what did you make of that? I think that if Justice Kagan were writing on a blank slate she would surely be on the other side. But she's the courts leading proponent of respect for precedent and. There's a precedent in play in this case in one thousand. Nine hundred seventy two. The court in a fractured decision allowed these kinds of laws. And this is an outlier in our incorporation doctrine. There's no question that it is but it's been an outlier fifty years it's been completely administrable. It's been completely clear. States have had every right to rely on this for fifty years. It doesn't matter whether it was wrong because overruling something requires more than just the decision. Be Wrong it's been there states have relied on it. There's no reason to change it. The End starry designed for Justice Kagan. It's more important to stick to that president than to drive herself to the result. She might otherwise want. She's playing a long game and that long game includes the day when a challenge to Roe V. Wade the one thousand nine hundred ninety three decision establishing constitutional right to abortion reaches the court and she wants to have as much firepower as possible to insist that the court respect precedent in that sitting and she's willing to make the argument in every setting because she thinks the stakes are high enough so she's making a larger point about the need for the court to remain faithful to president. That's right I think she's nervous that this new conservative majority on the Supreme Court is poised to undo all sorts of presidents and in particular. She's nervous about abortion rights and she's nervous that the court will take up a challenge to Roe v Wade and so she is trying to marshal as much evidence and as many arguments for adherence to precedent. And it's important to the rule of law instability and respect for the court. Is She in okay so with that in mind? How did the justices including Justice Kagan and a ruling on Monday in this Louisiana case so the vote is six to three to strike down Louisiana law? And it's a really scrambled lineup. It's very unusual lineup. Justice gorsuch wrote the majority opinion and he was joined by all of justice. Kagan's usual liberal allies This is Ruth Bader Ginsburg Stephen Brier and Sonia Sotomayor and also in large part by justice. Brad Kavanagh Justice Thomas Road. His opinion offer himself but agreed on the bottom line that the laws were no good and on the other side. You have to conservative. Justices Chief Justice Roberts and Justice Samuel Alito joined by Justice Kagan. The liberal and their descent is completely focused on respect for president. I have no reason to think they think this Louisiana law is a good idea but they also say that lowering the bar for overruling are precedents is a bad idea. And I think the Audience Justice Kagan was speaking to was not her liberal colleagues but her conservative. Saying I'll come along with chief justice roberts injustice leader on this one and I'm hopeful that when today comes that we confront the same issue in a setting where your policy instincts might go in a different direction. Youtube will respect precedent. In other words. She sang all come with you on this case. And I hope you'll come with me when Roe v Wade is challenged or when there's a major abortion case that's right and of course that day may be coming up quite soon. We may have an abortion case. The court will almost certainly decide by June a very quick answer the question of whether Justice Kagan got anything for her. Vote in this jury. Casse older back. This episode of the daily is supported by the new showtime original series penny dreadful city of angels when a gruesome murder shock nineteen thirty eight. Los Angeles Detective Tiago Vega and his partner. Louis Michener themselves grappling with Nazi spies crooked politicians and powerful supernatural forces. Natalie dormer Daniels Auto and Nathan Lane Star and Penny dreadful city of Angels Premiering April. Twenty six only on showtime the daily listeners can try showtime free for thirty days go to showtime Dot Com now and enter code daily offer. Expires may twenty four. Th Twenty twenty at we have talked with you about this case on the show before but remind us of this abortion case. That justice Kagan seems to be eyeing so closely. What's one of several big cases in what's shaping up to be a blockbuster term but it's the one that most pointedly gets at this question of respect for precedent it involves a Louisiana law that requires doctors performing abortions to have admitting privileges at nearby hospitals. And it probably will drive the number of clinics in Louisiana down to one and the number of doctors able to perform abortions at that clinic also to one drastically reduced the availability of abortions in Louisiana. I say that this picks up on precedent because just a few years ago in two thousand sixteen. The court struck down is unconstitutional. An essentially identical Texas Law. So just a few years later. It's coming back to decide the same basic legal question in a different state and it's going to give us a very strong sense of where the court stands on. The power of president right almost feels like an ideal test of whether Justice Kagan consider her conservative colleagues. I will do you assault on President now. It's time for you to do one for me and this would be the perfect case. That's right okay. So what's the next major decision? That will be coming in the next few months. We're also waiting to hear. A set of cases argued very early in the term which presents a very consequential question of whether a landmark federal civil rights law protects gay and transgender people from job. Discrimination the law says you can't discriminate based on sex and the question of what those words mean whether sex applies to sexual orientation discrimination and transgender. Status Discrimination will matter to millions of Americans who are in most of the country not protected from job discrimination right and that and we spoke to you about this case and about the plaintiff who worked for a funeral home and says she was fired after telling her boss that she was transitioning from male to female right and her experiences emblematic of what is a very important case. Because Justice Anthony Kennedy. Who wrote all four of the courts major gay rights decisions has left the court replaced by the more conservative justice? Brad Kavanagh so this will give us a real insight into this cords commitment to gay rights in transgender rights. We're also going to get a major constitutional showdown on presidential power. It involves subpoenas from Congress and from prosecutors seeking president trump's tax records so that case which has echoes of the Nixon tapes case in which President Nixon was made to turn over evidence in the Watergate scandal to Clinton Against Jones in which President Clinton was made to give a deposition in the sexual harassment. Case all of that involves a real confrontation between executive power and the rule of law and the ability of prosecutors. Congress to get access to evidence. And it's really going to put the court to a test. Given that those earlier decisions were both of them. Unanimous and both of them involved appointees of the president in question. It'll be very interesting to see how trump's appointees justices gorsuch and cavenaugh rule in a case involving him right and correct me. If I'm wrong Adam. Those two previous cases involving both Nixon and Clinton ended with the Supreme Court saying Mr President. You must turn these documents these tapes over in both of them. The president had to submit evidence. That's right and unanimously end including justices that he appointed to the court. So that's an instance. Also we've been talking about president where president will probably have some gravitational pull over what the court does. They're not precisely identical issues but they're certainly very similar so in the next few weeks the court is going to be ruling on the future of abortion on whether civil rights law protects gay and transgender Americans in the workplace and whether the president can keep something as important as his tax records from congressional investigators. That's a pretty good session. Co there's more we're also waiting to hear on a case that will affect some seven hundred thousand young immigrants known as dreamers brought to the United States as children and whether the trump administration can rollback a program meant to protect them from deportation. Allow them to work. And where does that case? Stand that cases awaiting decision but just on Monday there was a development of small development. But a telling one where the court allowed some of these dreamers lawyers for some of these dreamers to submit an additional brief making the point that the corona virus pandemic should figure in the case. And that's not immediately obvious but once you think about it it is obvious some twenty seven thousand of these dreamers work in the healthcare industry some doctors or nurses emergency medical technicians some work in other parts of hospitals and so on and if the court were to decide the trump administration can shut down this program in the midst of the pandemic. It could do real damage the society's ability to respond to the pandemic because they would be forbidden from being able to work I wonder if you think an argument like that could possibly sway the justices given that it is such a practical rationale for ruling one way rather than a kind of legal one. It seems to have to do almost exclusively with the on the ground consequences rather than a kind of larger legal theory. So cute points. The justices don't always admit it but of course they take account of what the real world consequences of their decisions are going to be in the transgender case. We talked about a second ago. Everyone went on and on. You know what would happen to our bathrooms if we rule in favor of transgender people. Next question about what the law requires. That's a question of consequences on the ground but the other is that there is a way to make this illegal argument. The question in the case was whether the administration had given adequate consideration to the cost and benefits of its move and this might be one place where they didn't give adequate consideration to the consequences of their move and the crisis now revealing those consequences. That's when you're saying that although justices may not explicitly saying this pandemic could very well influence how they rule in a case like I feel certain that on some level they take account of it reminds me of a famous statement by Justice Felix Frankfurter. Who said there comes a point where this court should not be ignorant as judges of what we know as men other words the real world intrudes and the real world has to include and it would be foolish to think otherwise. We were talking about precedent earlier. Michael and of course respect for president is important an aspect of the rule of law but the court has to balance all kinds of things practical considerations the societal consequences of its decisions the public's respect for the authority of the court and getting that mix right is what makes that job to be a supreme court justice so very hard Thank you very much. Thank you Michael Whoa what would you do if you had to figure out how to photograph something in deep space that nobody knows really there this question and more get answered anti mystery the new podcast from Atlassian hosted by filmmaker Gabriella cow birth weight? T mystery looks past the front page headlines and into the untold stories of teams behind groundbreaking moments each episode examines. How the extraordinary chemistry of these teams made the impossible possible. Download T- mystery for free. Wherever you listen to podcasts and learn more Atlassian dot com slash team history. What else you need glue on Monday? Several states in the American south announced plans to begin reopening their economies despite evidence that the corona virus is still spreading across the country for the good of our state social distancing must continue to but our economic shutdown cannot South Carolina is allowing shops ranging from department stores to flea markets to resume operations immediately. Georgia said that residents could return to gyms and salons as of Friday and dine at restaurants starting Monday and in Tennessee governor. Bill said that most businesses will be allowed to reopen on. May first while we continue to emphasize social distancing for Tennessee. And I will not extend the safer at home. Order Past April thirtieth all three states said they would still require social distancing measures at the reopened businesses. But it's unclear how they would be enforced and for the first time in history. The price of a barrel of oil dipped below zero on Monday as investors deemed. Its value as essentially worthless. The anomaly occurred because the pandemic is destroying demand for energy meaning that there is now far more oil than can be used or stork the negative price for barrels to be delivered in May revealed. That sellers are now willing to pay for excess oil to be taken off their hands. That's it for the deal. I'm Michael Borrow see tomorrow. Then Guard was founded on the simple radical idea that in investment company can succeed because it puts investors first vanguard is client own you own. Their funds and the funds owned vanguard which means vanguard is built to ensure that your interests will be the priority together Vanguards. Thirty million investors are changing the way the world invests visit vanguard dot com or talk to your financial advisor to learn more.