The Supreme Court chooses what it wants to offer opinions on, and those opinions redefine the way law works in this nation, trickling down to your world works for you. So what did they pick this time around? This is our watchlist for the most significant cases before the court this year.
Transcript
Hannah McCarthy: [00:00:00] Hello? Hello, this is me. I'm talking. Here we go.
Nick Capodice: [00:00:03] All right. From the top.
Hannah McCarthy: [00:00:08] Nick Capodice.
Hannah McCarthy: [00:00:10] Hannah McCarthy.
Hannah McCarthy: [00:00:11] Civics 101.
Nick Capodice: [00:00:12] End of episode.
Hannah McCarthy: [00:00:14] Ta da!
Nick Capodice: [00:00:17] But for real, I am excited for this episode, Hannah, because you promised me a madcap romp through one of our favorite subjects of all time, the Supreme Court, the arbiter of the Supreme law of the land.
Hannah McCarthy: [00:00:28] That is right. And why are we [00:00:30] doing this? Well, the Supreme Court must, according to their own rules, convene for a term at 10 a.m. on the first Monday in October, and it.
Nick Capodice: [00:00:38] Is currently November as we speak these words. So we're about a month and change into the term.
Hannah McCarthy: [00:00:42] And during this term they're going to hear arguments in cases they've decided to review. Now this argument schedule is public. I'm going to post it on our website. And the arguments themselves are public, but seats are limited and you got to wait in line to get there. So in lieu of that, though, I certainly encourage you, my beloved [00:01:00] member of the public, to follow your civic minded heart to the queue, I'm going to let you know what's going to be going on behind those big brass doors this term.
Nick Capodice: [00:01:08] You know, we really could make a whole episode just about those doors.
Hannah McCarthy: [00:01:11] We really could. Just so everyone knows, the doors to the Supreme Court are wicked impressive. You know, I probably will make an episode about them at some point. Famously, the only work of art or architecture that the sculptor of those doors ever signed, which, by the way, is in the tradition of great classical artists [00:01:30] only ever signing the front of what they consider their magnum opus, their masterpiece. Were those doors, right? He was like, this is my greatest work ever, my most important representative of truth and justice. Okay, I digress. The doors are cool. Supreme Court Docket 2023 to 2024. Let's start with the most recent case to be heard. November 7th United States v Rahimi.
Samuel Alito: [00:01:58] We'll hear an argument this morning in case 22 [00:02:00] 915 United States versus Rahimi. General Perliger.
Samuel Alito: [00:02:04] Mr. Chief Justice, and may it please.
Hannah McCarthy: [00:02:07] Questions at issue. The second amendment, domestic gun violence and gun safety.
Nick Capodice: [00:02:11] So you're starting this off easy.
Hannah McCarthy: [00:02:13] This case is going to determine whether a federal law that prohibits people with domestic violence convictions from possessing guns is constitutional.
Nick Capodice: [00:02:21] So currently there is a federal law that says people with domestic violence convictions cannot have guns.
Hannah McCarthy: [00:02:27] For the lawyers representing Rahimi. Yes. [00:02:30] And they're basing this in part on a 2022 Supreme Court ruling in a case called New York State Rifle and Pistol Association versus Bruen. And all you really need to know is that Scotus decided in that case, that gun laws are only constitutional if they're rooted in history and tradition.
Nick Capodice: [00:02:47] Now, what does that mean, exactly? History and tradition?
Hannah McCarthy: [00:02:50] Well, in the Bruen opinion, Clarence Thomas at one point references the era quote before, during and even after unquote the founding. Essentially [00:03:00] what that means is they're going to ask questions like, is there a historical precedent for a Second Amendment based law? And in Rahimi, his lawyers are basically arguing that, no, there is not his conviction based on his gun possession after the domestic violence conviction was unconstitutional and the Fifth Circuit Court of Appeals agreed, they ended up throwing out Rahimi's conviction.
Nick Capodice: [00:03:24] And it was then appealed up to the Supreme Court.
Hannah McCarthy: [00:03:27] Yes. Now, Rahimi himself [00:03:30] is not considered a great poster boy, even by gun rights activists. He is a convicted domestic assailant, and he has several illegal use of firearm charges under his belt. And during arguments, the justices basically said to the lawyer representing Rahimi side, you know, your client is dangerous, right?
Samuel Alito: [00:03:46] To the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?
Samuel Alito: [00:03:51] Your honor, I would want to know what dangerous person means at the moment.
Samuel Alito: [00:03:55] Someone who's shooting at people. That's a good start. [00:04:00]
Samuel Alito: [00:04:00] So that's fair. I'll say this.
Hannah McCarthy: [00:04:04] And Samuel Alito asked the lawyer whether he believed that unless someone is convicted of a felony, they should be allowed to possess a firearm. And when the lawyer hedged a little, Amy Coney Barrett said that she was, quote, so.
Amy Coney Barrett: [00:04:15] Confused because I thought your argument was that there was no history or tradition, as Justice Kagan just said.
Hannah McCarthy: [00:04:24] And then Elena Kagan told the lawyer that he was running away from his argument.
Elena Kagan: [00:04:28] You know, because the [00:04:30] implications of your argument are just so untenable that you have to say, no, that's not really my argument. I mean, it just seems to me that your argument applies to a wide variety.
Hannah McCarthy: [00:04:41] Now, I think the really interesting part of these oral arguments was the conversation between the justices and the lawyer for the federal government. John Roberts, asked her to define what she meant by responsible and law abiding. In her argument. Amy Coney Barrett acknowledged that domestic abuse is violent, but asked how the federal government might assess other behaviors [00:05:00] as dangerous, and then Ketanji Brown Jackson used these arguments as an opportunity to question the historical tradition test set up in Brewer Brewer.
Nick Capodice: [00:05:10] Meaning the case that established this need for historical precedent. Bingo.
Hannah McCarthy: [00:05:15] She talked about the fact that the federal government had used laws to, for example, disarm Native Americans and enslaved people, but that the Supreme Court had not relied on those same laws. In questions of firearm possession. She said she was, quote, a little troubled. [00:05:30]
Ketanji Brown Jackson: [00:05:30] By having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts. So what do we do with that? Isn't that a flaw with respect to the test?
Nick Capodice: [00:05:45] Wow, that's a lot, Hannah. Per usual, the way the justices use cases to throw constitutional shade basically the most legally important shade that there is. That always fascinates me. All right, let's do the next one. On to number two. [00:06:00]
Hannah McCarthy: [00:06:00] Okay. So let's tick through some cases that have already been heard.
Nick Capodice: [00:06:03] Great.
Hannah McCarthy: [00:06:03] So October 3rd, the court heard oral arguments in Consumer Financial Protection Bureau v Community Financial Services Association of America.
Samuel Alito: [00:06:13] General Prelogar.
Samuel Alito: [00:06:14] Mr. chief Justice and may it please the.
Nick Capodice: [00:06:16] Court. All right. We're talking about money here aren't we. Yeah.
Hannah McCarthy: [00:06:19] So here's what's up. After the 2008 financial crisis about which we made an episode with the very helpful Amy Friend, the Dodd-Frank act authorized the creation of a bureau [00:06:30] within the Federal Reserve to protect consumers from predatory lending practices. Uh huh. So that's the Consumer Financial Protection Bureau, and I'm going to call it the Cfpb from now on. Now, it's funded not by an appropriation during the annual budget process, but directly from the Federal Reserve. Congress has said. That they can spend up to $600 million. And by the way, they have never spent even close to that much.
Nick Capodice: [00:06:55] So how did this case get before the Supreme Court? What was the lawsuit?
Hannah McCarthy: [00:06:59] Well, a group of [00:07:00] money lenders sued the Cfpb. Now they sued over a specific rule. But in the course of that lawsuit, they also pointed out their belief that the Cfpb funding model violates the appropriations clause in the Constitution. And the Fifth Circuit Court agreed. The case was then appealed to the Supreme Court.
Nick Capodice: [00:07:17] All right. And the appropriations clause is the one that lets Congress authorize the spending of public funds. Yeah.
Hannah McCarthy: [00:07:24] And the lawyers who agree with the Fifth Circuit say that basically, if we let Congress [00:07:30] set up this lump sum funding model, they could easily fund any agency in the same way. And that is too much power. The lawyers opposed to the Fifth Circuit ruling say that interpreting the appropriations clause like this could potentially dismantle the Cfpb.
Nick Capodice: [00:07:47] So what happened during the oral arguments? All right.
Hannah McCarthy: [00:07:49] Well, the justices were not strictly divided along ideological lines, which is interesting. Samuel Alito, John Roberts and Clarence Thomas seemed to be pretty convinced that the funding structure is unconstitutional. [00:08:00] You have a.
Samuel Alito: [00:08:01] Very aggressive view of Congress's authority under the appropriations clause. I'm not saying remotely that that's not correct.
Hannah McCarthy: [00:08:09] Neil Gorsuch wondered if funding caps are essential to constitutionality. Amy Coney Barrett is worried about this question of the courts potentially determining how much money an agency is allowed to have money spent.
Amy Coney Barrett: [00:08:22] I mean, I think we're all struggling to figure out then what's what's the standard that you would use. Just assuming that you're right, that there has to be something more than the $600 [00:08:30] million. How do you decide how much is too much or how specific?
Hannah McCarthy: [00:08:33] Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor seem to think that this is a potential overstep for the court to declare the funding structure unconstitutional, and they think it could jeopardize other agencies with different funding models. And then Brett Kavanaugh, he was pretty quiet, but he did mention that Congress could always change the Cfpb's funding scheme if they wanted to, and that the court was not facing some perpetual permanent problem. [00:09:00]
Brett Kavanaugh: [00:09:00] Congress could not entrench a funding scheme. In other words, Congress could not pass a law that says this is the funding scheme and no future Congress may alter this for ten years or 100 years.
Nick Capodice: [00:09:13] Everybody seems to be having a lot of different thoughts about this. Am I hearing here that the Supreme Court is even more divided than usual?
Hannah McCarthy: [00:09:21] Well, it does kind of seem that way. It seems like Brett Kavanaugh could actually be the swing vote in a case like this, but we're going to have to wait and see what happens next year. Okay, [00:09:30] now, Nick, the next one is a big one. So we're going to take a quick break and a deep breath.
Nick Capodice: [00:09:37] All right. And while we do, I ask you, gentle listener, to consider the year ahead both on the court and otherwise, and know that Hannah and I are going to be with you every step of the way. It's our job to help you understand what's going on in America. So if this is something you support in spirit and you've got the ability to do so, I'm asking you to consider supporting it in slightly more [00:10:00] literal terms as well. You can make a contribution to our dear little show by going to Civics101podcast.org and clicking the donate button at the top of the page. All right, deep breath and then back to the court.
Hannah McCarthy: [00:10:28] We're back. We're talking about some [00:10:30] of the major Scotus cases coming up in this term, the ones to watch, if you will. Nick, you ready for another one?
Nick Capodice: [00:10:36] Born ready. Hannah.
Hannah McCarthy: [00:10:37] Gerrymandering.
Nick Capodice: [00:10:38] Oh, you said a thing or two about the old Elbridge Gerry.
Hannah McCarthy: [00:10:42] So Alexander V South Carolina State Conference of the NAACP argued on October 11th. The question did South Carolina Republican legislators engage in Partizan gerrymandering or racial gerrymandering, Mr. Gore?
Samuel Alito: [00:10:58] Mr. Chief Justice, may it please [00:11:00] the court. District one is not a racial gerrymander.
Nick Capodice: [00:11:04] Oh, wow. So how do you figure out which one it is? Wait. Also, is one allowed and the other is not by the way.
Hannah McCarthy: [00:11:11] Well, the court says that racial gerrymandering is strictly barred, but they say that they don't have the power to review Partizan gerrymandering. A lower court says it was racial gerrymandering. South Carolina claims, of course, that it was Partizan. The problem in the last election, black voters in South [00:11:30] Carolina voted 90% Democratic.
Nick Capodice: [00:11:33] Okay, so even if it was Partizan, it would also most likely be congressional redistricting along racial lines. So what did the justices say during arguments about this?
Hannah McCarthy: [00:11:44] Roberts essentially said to the NAACP lawyer, you're trying to disentangle race and politics. That is really hard to do.
Samuel Alito: [00:11:52] We have said that the burden that you're assuming of disentangling race and politics in a situation [00:12:00] like this is very, very difficult, but it is your burden, right?
Hannah McCarthy: [00:12:04] Gorsuch said that if the Maps challengers had provided an alternative map, that would have been the simplest way to prove their point. But they did not. How do you.
Neil Gorsuch: [00:12:12] Prove that they are acting in bad faith without showing that they could achieve their objective some different way?
Hannah McCarthy: [00:12:20] Alito pointed out that the map maker had a lot of experience, and had worked with both parties in the past. I guess that's proof of the map maker not being Partizan.
Samuel Alito: [00:12:29] He is employed by [00:12:30] the legislature. That's correct.
Samuel Alito: [00:12:32] And has been employed by the legislature for some period of time. That's correct. And he draws maps for both Republicans and Democrats.
Archival: [00:12:39] Yes he did.
Hannah McCarthy: [00:12:40] Kavanaugh noted that the Republican lawmakers claimed to have used voting data from the 2020 election, and that if that data was accurate, then the Supreme Court should consider reversing the lower court's decision.
Brett Kavanaugh: [00:12:51] We relied on this political data. The response is that political data is no good. So you couldn't have been. If that data is good, should [00:13:00] we reverse?
Hannah McCarthy: [00:13:01] No, I don't think so. Kagan, Sotomayor and Jackson said that they were only there to decide whether the lower court had made a clear error not to assess all of the evidence of racial gerrymandering. Jackson said there's a difference between the clear error ruling and deciding whether the lower court could have made a different decision.
Ketanji Brown Jackson: [00:13:18] The clear error standard, and I had it here a second ago, is a highly deferential standard that the court may not reverse just because it would have decided [00:13:30] the matter differently.
Hannah McCarthy: [00:13:31] But Amy Coney Barrett said that it's more complicated than clear error, that it's a question of whether the plaintiffs can disentangle race from politics.
Amy Coney Barrett: [00:13:39] I think there's a reason why Dr. Ragusa's report keeps coming up is because it was the best of the expert reports that actually did try to disentangle race and politics, which was the key question here.
Nick Capodice: [00:13:51] Again, like a really hard thing to do before a court.
Hannah McCarthy: [00:13:54] Yep. And finally, Thomas asked the plaintiff's lawyers about the second question at issue. [00:14:00] Even if the court decides that it was not racial gerrymandering, the challengers are still saying that the legislature intended to discriminate against black voters. Thomas asked what Scotus should do about that, and the plaintiff said, we think you should send it back to the lower courts.
Clarence Thomas: [00:14:16] But if you find we find no intent, should we or should we just simply resolve it here?
Archival: [00:14:21] So our position on the second claim is that if this court were not to affirm on the first racial gerrymandering claim and not find racial [00:14:30] predominance there, that this court should remand on the second claim, because we believe the district court used the wrong legal standards.
Clarence Thomas: [00:14:38] To what should that standard be?
Nick Capodice: [00:14:40] If we're talking about gerrymandering, we are talking about a question that really needs to be decided before 2024.
Hannah McCarthy: [00:14:47] Yeah, because it has to do with elections, right. Which means that the court is probably going to act quickly. So I'm going to go ahead and say that it seems pretty clear which way the majority is leaning, but either way, we may not have to wait long to find out. [00:15:00]
Nick Capodice: [00:15:00] Okay, more. Give me one more.
Hannah McCarthy: [00:15:02] All right. October 4th, my childhood best friend's birthday. And also the day on which the court heard Acheson Hotels LLC v Laufer.
Nick Capodice: [00:15:10] Those two things seem very unrelated.
Archival: [00:15:13] Mr. Janikowski.
Archival: [00:15:14] Mr. Chief Justice, and may it please the court.
Hannah McCarthy: [00:15:17] Laufer sued Acheson Hotels because their website did not have accessibility information as required by the Americans with Disabilities Act. The hotels. Says Lawford, did not have standing, meaning.
Nick Capodice: [00:15:28] Does not have the legal ability [00:15:30] to bring a lawsuit. Why is that?
Hannah McCarthy: [00:15:34] Because they say Laffer never intended to stay at the hotel, and a lower court agreed they threw the case out, but a court of appeals reinstated it. Now Laffer is a self-appointed Ada tester. She has sued over 600 hotels for violations. But in this particular case, she actually asked the judges to throw the case out.
Nick Capodice: [00:15:59] Well, that seems [00:16:00] strange, Hanna. You know, especially for someone who regularly launches lawsuits like this.
Hannah McCarthy: [00:16:05] What happened is that one of Lauper's former lawyers was found guilty of ethics violations, and a judge recommended that that lawyer be suspended. Now, Lauper didn't want the controversy around this lawyer to distract from the point of her work to challenge Ada violations, so she wanted the case thrown out.
Nick Capodice: [00:16:24] So she wanted it thrown out. But the justices took it up anyway.
Hannah McCarthy: [00:16:28] They did. And [00:16:30] then they said some funny stuff on the the theme of this case being moot anyway. Well, you.
Nick Capodice: [00:16:36] Know me and funny stuff, Hanna.
Hannah McCarthy: [00:16:38] All right. Well, first Thomas just goes. It seems that this is finished.
Clarence Thomas: [00:16:43] Respondent says that she has withdrawn her suit. So why should we decide this? It seems as though it's. It's finished.
Hannah McCarthy: [00:16:52] And then Alito says the case before us is dead as a doornail.
Samuel Alito: [00:16:57] But the case before us is dead as a doornail [00:17:00] and is not going to arise again between these parties.
Hannah McCarthy: [00:17:05] And then Kagan says this case is, quote, dead, dead, dead in all the ways that something can be dead.
Elena Kagan: [00:17:11] You know, the case has been dismissed by the plaintiff. The defendant is totally different. The defendant's website, everybody agrees, is now in compliance with the Ada. So this is like dead, dead, dead and all the ways that something can be [00:17:30] dead.
Hannah McCarthy: [00:17:31] Now, on.
Hannah McCarthy: [00:17:31] The does Laufer have standing question, Sotomayor said she couldn't think of a time the court ruled on standing before it ruled on Mootness.
Sonia Sotomayor: [00:17:40] But I'm I'm unaware of any case where this court had a standing and mootness issue and decided standing rather than mootness first.
Hannah McCarthy: [00:17:52] And then Roberts was like, well, logically speaking, you have to have a case for that case to be moot. He was actually worried [00:18:00] that not ruling on the standing question would encourage other petitioners to moot cases and manipulate the court's jurisdiction.
Nick Capodice: [00:18:08] Moot in this.
Nick Capodice: [00:18:09] Case, being used as a verb. Yeah. Okay.
John Roberts: [00:18:12] Particularly when you have a program of litigation like this around the country by people who may or may not have standing, can manipulate the court's jurisdiction by. After the court's granted cert mooting out the case.
Hannah McCarthy: [00:18:24] He was like, maybe we should rule on the standing question just so we don't have to get jerked [00:18:30] around again with this moot thing. And then they all debated the standing question, as in whether Lawford could bring the case at all, whether intent to travel is necessary for standing, in this case, the nature of travel itself and whether they were looking at discrimination here, a question that even the liberal justices were not in agreement on.
Nick Capodice: [00:18:51] Okay, I'm going to be honest. This is like a word salad. But I do understand it's good for me. It's like a nutritional word salad.
Hannah McCarthy: [00:18:57] It seemed like even the justices were flummoxed and [00:19:00] that the standing question might just be left to the lower courts, because it's really hard to figure out. Apparently, the decision is expected by summertime. All right. I'm going to give you three more. Ready? Wow.
Nick Capodice: [00:19:12] Okay, but first, can I just quickly point out that no matter how we assess the judgment or make up of a sitting court argument, proceedings can be truly entertaining and kind of weird. And sometimes you'll hear the word moot. So many times the word itself becomes moot. Like if you just say it [00:19:30] a bunch of times like moot moot moot moot moot. That happened to me with the word back a lot when I was a kid. I could just said the word back so many times. Back back back back back back back. It didn't mean anything. Um. So sorry. Yeah. Go ahead. Sorry.
Hannah McCarthy: [00:19:42] You know, I do have to appreciate that arguments are way less. This is what we deified justices know from on high. Then you might expect them to be. There's often a lot of. Well, counselor, what does that even mean? And, like. Okay, so what if we did this? How does that sound to you? [00:20:00] There's just it's a little more human than I ever expected it to be. And I'm reminded of that every time. All right. December 5th.
Nick Capodice: [00:20:09] The day that the 21st amendment was ratified and booze was back, FDR said it's time for beer in 1933. That was.
Hannah McCarthy: [00:20:18] Yep, just in time for the holidays. Also, the day the court will hear arguments in Moore v United States. All right.
Nick Capodice: [00:20:24] So hit me. What is the question at hand?
Hannah McCarthy: [00:20:26] Does the 16th amendment authorize [00:20:30] Congress to tax unrealized sums without apportionment among the states?
Nick Capodice: [00:20:36] A salad, if ever there was one. Hannah.
Hannah McCarthy: [00:20:39] Okay, so here's what that means. The plaintiffs in this case are arguing that under the 16th amendment, which allows Congress to have an income tax unrealized gains. That means money that you haven't gotten yet from, for example, an investment that you haven't yet sold should not be taxable.
Nick Capodice: [00:20:58] But right now they are taxable. [00:21:00] You can be taxed about something that could potentially make you money in the future.
Hannah McCarthy: [00:21:04] Yeah. So right now there are like more than a dozen taxes on unrealized gains. So why that is so savvy investors, corporations and their accountants cannot use fancy footwork to disguise income as nontaxable. Now, if the justices agree with the plaintiffs, that will mean billionaires will get to keep a lot of money, potentially trillions of dollars in tax [00:21:30] revenue. And some of the justices on the court will see their own net worth go up quite a bit.
Nick Capodice: [00:21:36] Oh, wow. Okay. That will actually be interesting to watch out for. You got another one for me? I got.
Hannah McCarthy: [00:21:44] Two more. I think we got to watch. We've got Loper, Bright Enterprises v Raimondo now. It's not scheduled yet. And this one is tricky because it seems to be about fisheries.
Nick Capodice: [00:21:56] Ain't that always the way?
Hannah McCarthy: [00:21:57] What's happening here is that the National Marine [00:22:00] Fisheries Service has this rule that the fishing industry itself has to pay for third party at sea monitoring programs, at.
Nick Capodice: [00:22:08] Sea monitoring programs. What do they get up to?
Hannah McCarthy: [00:22:11] Well, they are they're really important. They go out on fishing boats and they collect, according to the National Oceanic and Atmospheric Administration, scientific management, regulatory compliance and economic data. Basically, these monitors are keeping a finger on the pulse of catch limits and what kinds of fish are being caught.
Nick Capodice: [00:22:29] Right. So just making sure [00:22:30] everyone out there is behaving and we know what's going on with our fish basically.
Hannah McCarthy: [00:22:34] Yeah. And the industry is saying, hey, that is over 700 bucks a day and you cannot make us pay that. They say that based on a fishery act that was passed in the 1970s. The National Marine Fisheries Service is not authorized to create this industry funding model, or make a rule like that at all.
Nick Capodice: [00:22:57] Well, Hanna, if I may, this does [00:23:00] seem to actually be about fisheries.
Hannah McCarthy: [00:23:02] Okay. But what it's really about is something called the Chevron doctrine, so named because it involved the Chevron Corporation appealing a lower court's decision invalidating an Environmental Protection Agency's interpretation. And that sounds really salady, I know, but to keep it super simple ish, this doctrine requires courts to defer to agency expertise. So a lower court told the fishing industry, hey, look, that [00:23:30] fishing act from the 70s requires a government appointed monitor on your boats to ensure compliance, and Congress left it up to the agency to decide how that would happen. If the agency says you got to pay. Well, under the Chevron doctrine, the courts have to defer to the agency. You got to pay.
Nick Capodice: [00:23:51] Okay. So let's just say the Supreme Court sides with the fishing industry in this case. And let's just say that that makes the Chevron doctrine go away. [00:24:00] What does that mean?
Hannah McCarthy: [00:24:02] That could mean that the court is empowering the judicial system to tell executive agencies how to behave when it comes to ambiguous acts of Congress. So basically, if Congress is wishy washy in their language about how a certain law should be followed, federal courts could tell the agency how to follow it instead of letting the agency decide.
Nick Capodice: [00:24:24] Well, the wishy washiness on Congress's part, that's often intentional, isn't it?
Hannah McCarthy: [00:24:29] It's intentional. [00:24:30] A lot of the time, Congress does that when they basically think the experts in an agency are better suited for making certain decisions. One example I read, and this is specifically from the Chevron case, addresses what happens when it comes to the Environmental Protection Agency. The EPA and Congress says, you know, you've got to curb air pollution, but that it is the agency experts at the EPA who decide how much because they understand it better if judges are given the ability to step in. Some people think this [00:25:00] could mean chaos.
Nick Capodice: [00:25:01] Especially, I would imagine, when it comes to politically appointed judges making decisions about corporate regulations or climate change. Yeah.
Hannah McCarthy: [00:25:09] Especially that. So we'll see. All right. Last one, Nick I.
Nick Capodice: [00:25:15] Could do this all day.
Hannah McCarthy: [00:25:15] Hannah Muldrow, the city of Saint Louis, not yet scheduled. A police sergeant was transferred to a different department. She requested a transfer from it. It was denied, [00:25:30] and she says the whole process was sex based discrimination. Now, title seven of the Civil Rights Act of 1964 prohibits an employer from, quote, discriminating against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, or national origin. And a lower court said that the sergeant would have to prove that she experienced a material employment disadvantage, not just that her job changed.
Nick Capodice: [00:25:59] Wait, but [00:26:00] what is the question that the court has to answer?
Hannah McCarthy: [00:26:02] So they have to decide whether title seven is applicable here. Basically, did the Employee experience Civil Rights Act level discriminatory harm? Is the sex based discrimination claim enough? Or did this employee have to also experience and prove in court a substantial change in duties, benefits and salary? Now, the ACLU filed an amicus brief saying basically that treating someone differently [00:26:30] based on a protected characteristic. That is enough. Their argument is that the Civil Rights Act was passed to prevent discrimination, quote, subtle or otherwise. They say that for a court to require additional justification is to oppose the intent of the law. Now, what's interesting about this one is that a ruling in favor of Muldrow would both make it easier for employees facing discrimination to bring claims, and potentially make it easier for other employees to bring reverse [00:27:00] discrimination claims?
Nick Capodice: [00:27:01] Okay, like as in, I am being reverse discriminated against because there's a program in my workplace that mentors women or people of color, and I'm not one of those.
Hannah McCarthy: [00:27:11] Exactly like that.
Nick Capodice: [00:27:13] Hanna, it sounds like this court term has the potential to make some major, major changes to law in America.
Hannah McCarthy: [00:27:23] Which I suppose every term always does. But when we're looking at these cases, it's important to [00:27:30] remember that what the court chooses to hear is almost entirely dependent on their personal preferences, what they want to talk about and rule on. And it is also worth noting that after last year and a slate of politically important cases, the American public sees the Supreme Court as more political than ever. And that's according to the Pew Research Center, assessing its own three decades of polling. These cases are about workplace discrimination, regulatory oversight, [00:28:00] tax law for billionaires, firearm ownership, gerrymandering and whether the court will even continue to look at cases where plaintiffs may not have standing.
Nick Capodice: [00:28:12] Subjects that everybody would call politically supercharged, except maybe the Supreme Court, at least in their public discourse.
Hannah McCarthy: [00:28:29] All [00:28:30] right. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Levoy is our executive producer. Music in this episode by Ryan James Carr, Duke Harrington OT rhymed clang soundtracks LM styles tell Sonic and John Rosenfeld. If you liked this episode, or even if you didn't, drop us a line at Civics101podcast.org. Really, we just want to know you're out there, you're listening and what you think. Civics 101 is a production of NPR, [00:29:00] New Hampshire Public Radio.