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listening to the 1-A podcast. I'm Jen

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of our politics series, If You Can

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Keep It. Joining me in studio

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is Todd Zwilik. He joins us every week leading up

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to the election. This is our weekly

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election series where we leave the horse

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race to the side and instead focus

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on the stakes of this election for

0:45

people, for the country, and for our

0:47

democracy. Today we break down the

0:49

latest cases from the Supreme Court, which ends

0:51

its term today with its final decisions.

0:53

That includes their decision on the question

0:56

of Donald Trump's presidential immunity claims. We

0:58

also take a closer look at the Supreme

1:01

Court's recent term, including a rush of a

1:03

dozen cases it released in the last week.

1:05

We're going to look at the implications

1:07

of the Court's decisions this term, both

1:09

for this election campaign and for the

1:11

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2:37

Joining us from Washington, DC is Mary

2:40

McCord. She's the Executive Director of Georgetown

2:42

University's Institute for Constitutional Advocacy and Protection.

2:44

She's also a visiting professor of law

2:46

at Georgetown. Mary, it's great to have

2:49

you back. Nice to be here, Jen. Joining

2:52

us from Brooklyn, New York is Stephen

2:54

Masey. He's a Supreme Court correspondent for

2:56

The Economist, and a professor of political

2:58

studies at Bard High School, early college.

3:00

Stephen, welcome. Jen, thanks for having me.

3:02

Now, the court is expected to release

3:04

its final decisions this hour on the

3:06

presidential immunity claim brought by former President

3:08

Trump, and the cases about social media

3:10

companies removing political posts from their platforms,

3:13

and we'll turn to those decisions as

3:15

they come out and put them to

3:17

our panel for analysis. In the meantime,

3:19

let's dive into some of the decisions

3:21

the court did deliver last week. Stephen,

3:23

on Friday, the Supreme Court decided on

3:25

a pair of cases that challenged a

3:27

longstanding precedent about how government agencies interpret

3:29

laws. It's known as the Chevron Doctrine.

3:31

Explain that doctrine in its place in

3:33

the legal system. Sure.

3:36

Yeah, this is a decision that we've

3:38

known is likely coming for a while.

3:40

There was some chance that the conservative

3:43

majority would just tinker with Chevron rather

3:45

than overrule it. But what

3:47

the court has done in the case called Looper

3:49

Bright is to go ahead and shred another multi-decade

3:52

old precedent, this one

3:54

from 1984. So

3:57

what did Chevron do? I

4:01

mean, in contrast to cases on

4:03

abortion or gun control, hearing about a

4:05

case involving the

4:07

administrative state might make our eyes

4:10

glaze over, especially when it drops

4:12

straight into the post-presidential debate

4:15

miasma on Friday morning. But

4:17

let's go ahead and talk about it. Chevron

4:20

was a

4:22

principle that essentially made

4:25

it such

4:28

that courts would

4:30

defer to agencies when

4:34

there was a gray area in a

4:36

law that Congress had passed authorizing

4:39

that agency's work. So the

4:41

idea was it's better to trust expert

4:43

interpretations of those laws when there's

4:45

some uncertainty about what the laws

4:48

mean, rather than give that law

4:50

to judges. But

4:52

what the court did in Loper-Brite

4:54

last Friday is to say, no,

4:57

judges know best. This

5:01

four-decade-old precedent needs to

5:03

go. And we

5:06

have some uncertainty ahead as to how federal

5:08

agencies, some 400 of them, are going to

5:12

be operating with more judicial oversight

5:14

and less autonomy to decide for

5:16

themselves what

5:18

the laws that authorize their regulations

5:20

mean. We got this email from

5:22

one of you asking, with the

5:25

striking down of Chevron, can Congress

5:27

possibly pass a law to secure

5:29

agency expertise, or is a constitutional

5:31

amendment required? Mary, what can you

5:33

tell us? Well,

5:37

one of the things that was clear from

5:39

the Chief Judge's opinion—sorry, Chief Justice, pardon

5:42

me, Chief Justice Roberts—from the Chief

5:44

Justice's opinion is that he purported

5:47

to be issuing this

5:49

ruling in respect

5:52

for Congress's

5:54

statute in the Administrative Procedure Act.

5:56

And he made clear that if

5:58

Congress delegates— specific

6:00

decision making to administrative agencies,

6:02

then that would be something

6:04

that the courts would defer

6:06

to. So I think the

6:09

answer is sort of generally yes. However, I

6:11

don't think the chief

6:13

or the majority would ever

6:16

agree that Congress could completely delegate

6:18

the interpretation of law to an

6:20

agency, but certainly could

6:22

set forth some parameters about

6:24

where there would be deference

6:26

to agencies as they've already done. And

6:29

one thing that the court did say

6:31

is that in certain circumstances, the court

6:33

can certainly look to the expertise

6:35

of administrative agencies as they are interpreting

6:38

the law. Steve, can

6:40

you talk a little bit about the long arc

6:42

of this case? You sort of said people have

6:44

been waiting on this for 40

6:46

years. How long is

6:48

the project here for

6:51

conservatives, in particular, to want to

6:53

denude the administrative state, basically make

6:55

it harder for the

6:57

EPA to regulate water or for

6:59

the Department of Labor to regulate

7:01

work safety? Put this decision

7:04

in the broader context for us. Okay,

7:07

sure. It hasn't been a 40-year project

7:10

to overturn Chevron. In fact, this was

7:12

an opinion that was decided

7:14

6-0 at the time. And

7:17

when Justice Scalia came on the court, he

7:20

was enamored of Chevron. So someone on the

7:22

very far right of the court was

7:25

a Chevron supporter. The tide started to

7:27

turn a couple decades later when

7:32

the judiciary, the

7:35

sort of ideological slant of

7:37

the judiciary versus the executive

7:39

branch shifted. So the

7:42

real opposition to Chevron

7:44

really came in the last, I would say, 10 years, with

7:48

Justice Neil Gorsuch being one who flagged

7:51

when he was a circuit court judge and then when

7:53

he was a nominee for the Supreme

7:56

Court, flagging a

7:58

real... distrust

8:01

of what he and others who were

8:03

opposed to this doctrine called

8:06

unelected bureaucrats, making decisions

8:08

for all of us and

8:10

for the whole country. So

8:12

it's been really

8:15

in the works for a decade and a

8:17

half or so. And

8:19

two years ago, Justice Gorsuch, in

8:21

a separate opinion in a

8:23

different case, said that

8:25

it would be wonderful if we

8:28

provided a tombstone no one can

8:30

miss for Chevron. And

8:32

he repeated that very language in a concurrence

8:34

he wrote on Friday where he said, hey,

8:37

finally we have a tombstone no

8:39

one can miss for this doctrine.

8:41

It's not ambiguous. At all. Yes.

8:44

Mary, I'm curious about the argument

8:46

the justices made for those who

8:50

overturned this doctrine, the

8:52

argument they made for why judges

8:54

were the people best placed to

8:56

make these decisions. They're not scientists.

8:59

They're not experts on,

9:02

you name it, they're legal experts, but there's a whole list

9:04

of things that they're not experts on. Why

9:07

did they think they were best placed to make

9:09

these decisions? Well, the

9:11

chief goes all the way back to

9:13

Marbury versus Madison, a case in which

9:15

the Supreme Court held that it is

9:17

really the duty of the judges in

9:20

our federal judiciary to say what the

9:22

law is. But he didn't base

9:24

his opinion solely on separation of

9:26

powers because that's really what the heart of

9:29

that decision was. He based it primarily

9:32

on the Administrative Procedure Act, which is

9:34

again a statute passed by Congress decades

9:37

ago that does say that, you

9:39

know, that does give certain authority

9:42

to agencies, but also makes clear

9:44

that the courts are those to

9:47

interpret the law. And so he

9:49

draws a distinction between interpretation of

9:51

law, that's not only the Constitution,

9:54

but also statutes and policymaking, right?

9:57

And does acknowledge that there are,

10:00

can be some room, as I

10:02

was saying earlier, for relying on

10:04

the expertise of agencies, particularly when

10:06

there are fact bound policies

10:09

to be enacted in furtherance of

10:11

a particular statutory regulatory

10:13

scheme and also makes clear that

10:15

when Congress does delegate to an

10:18

agency, that's room for it. But

10:21

he's going back to first principles here with

10:23

respect to the courts and it's the court's

10:25

job, even though they're not experts in many,

10:27

many things, to say

10:29

what the law is. So what

10:31

does this mean for the rulings

10:33

on prior court cases that were

10:36

decided using Chevron-Mary? So

10:38

that's very important because I think that,

10:40

you know, for a lot of people,

10:42

they think, oh my gosh, we're going

10:44

to be, you know, sent into this

10:46

endless litigation over regulations that have been

10:49

enacted over the last decades. What the

10:51

chief said is that this

10:53

does not mean that all cases

10:55

that ever relied on Chevron will

10:57

have to be overruled merely because

10:59

they relied on Chevron. He

11:02

says that most of this would mean if

11:04

somebody's challenging a regulation based on

11:06

a court opinion that accorded Chevron

11:09

deference and upheld that regulation, they

11:11

would have to be arguing that

11:13

that decision was just wrongly decided,

11:15

that that precedent is bad law

11:17

and that that wouldn't necessarily mean.

11:20

It's not like stare decisis would

11:22

not apply. However, the dissent, Justice

11:24

Kagan, really kind of questions that

11:26

and says, you

11:28

know, I think this is going

11:30

to unleash all kinds of litigation

11:32

with people saying there's substantial justification

11:35

to overrule prior rulings. And I

11:37

will note that just this morning

11:39

today, another decision came out that

11:42

says that the date that a

11:44

cause of action accrues to challenge a

11:46

regulation is not the date that the

11:49

rule is enacted, but it's

11:51

the date that the person claiming to be

11:53

harmed by that rule is harmed.

11:55

So you can see that working

11:57

together with this new decision about.

12:00

overruling Chevron to unleash litigation. So

12:02

I think that we will see

12:04

many challenges where people argue that

12:07

prior rulings were bad law, they

12:09

were bad law under Chevron, and

12:11

they should be reversed. Let's

12:14

head to a quick break here. Coming

12:16

up we discussed the court's presidential immunity

12:18

decision for former President Trump and what

12:20

it ruled on the government's ability to

12:22

charge January 6th rioters with obstructing Congress.

12:24

Back with more in a moment. This

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make a difference in your life at

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Capella.edu. Let's

13:42

turn now to a case involving

13:44

social media and the federal government.

13:46

Steven, what was that issue in Murthy

13:48

v. Missouri? All right. This was a

13:51

case that was decided last Wednesday. There

13:53

were two red states, Louisiana and Missouri.

13:56

Plus a few social media users

13:58

who were anti-vaxxers. that

32:00

he and the liberal justices and Justice

32:02

Barrett would find a way to be

32:06

clearer about what actually

32:08

is subject to immunity and what

32:10

is not, and sort of give

32:13

the guidance to the lower court so the trial

32:15

could potentially get started. I

32:17

was wrong about that, but there seems to be some

32:20

disagreement between

32:23

the dissenters and Chief Justice Roberts

32:25

who wrote the opinion as to

32:27

what the decision actually does. So

32:29

just two quick quotes. Justice Sotomayor

32:31

in her dissent says, today's decision

32:33

makes a mockery of the principle

32:35

foundational to our constitution and system

32:38

of government that no man is

32:40

above the law. So

32:42

that's in dissent, but then Roberts, in

32:45

his rejoinder to that argument says this,

32:47

as for the dissents, they strike a

32:49

tone of chilling doom that

32:52

is wholly disproportionate to what the court

32:54

actually does today, which is

32:56

to conclude that immunity extends to official

32:58

discussions between the president and his attorney

33:00

general, and then remand to the lower

33:02

courts to determine whether

33:05

and to what extent Trump's remaining alleged

33:07

conduct is entitled to immunity. So

33:09

from Roberts' point of view, this is

33:12

a mild, reasonable, let's let the lower

33:14

court work out the principle here, whereas

33:17

for the dissenters, something

33:19

terrible for democracy has just happened. Mary,

33:22

I see you've had a couple of minutes

33:24

with what I'm sure was a power

33:26

read of this decision, your

33:28

takeaways. So I think probably

33:31

most significant for a lot of people

33:33

listening is what's gonna happen now. And

33:36

Steve was starting to get into that. The

33:38

court did something that's, they

33:40

don't always do, they provided a fair

33:42

number of guideposts and even made some

33:45

of their own decisions. So again, as

33:47

you said, for core constitutional things like

33:49

appointing ambassadors, that kind of thing, things

33:51

that really aren't issue with this

33:54

indictment, there's absolute immunity. For other

33:56

things within the outer perimeter of

33:59

the president's official. acts, what the

34:01

court says is there's presumptive immunity,

34:03

but it can be overcome by

34:06

a substantial showing

34:08

by the government that criminal

34:11

prosecution for these official acts,

34:14

even if presumptively immune, would

34:16

not so interfere on sort

34:18

of presidential powers or chill

34:22

presidents from performing their functions in the future

34:24

that they can't be prosecuted. So that's

34:26

where sort of the rubber meets the road

34:28

here. And then of course, the court said

34:30

purely unofficial acts are not

34:32

immune at all. So the question is,

34:35

what's official? What's unofficial? The court does

34:37

give some guideposts. It says that

34:39

the part of the indictment that

34:41

talks about former

34:43

President Trump's communications with his

34:46

Department of Justice and his

34:48

assistant attorneys general about investigations

34:51

into alleged election fraud,

34:53

that is something

34:55

that's totally an official act that

34:58

it would not be proper to

35:00

charge for because executive decisions about

35:02

who to charge with crimes, those

35:04

are things within the executive branch.

35:07

It says then it's tougher when it

35:09

comes to the indictments allegations about the

35:11

pressure on the vice president to take

35:14

particular acts on

35:16

January 6 itself. And it says

35:18

the question then becomes whether that

35:21

the presumption of immunity is rebutted

35:23

under the circumstance and it's the

35:25

government's burden to rebut

35:27

that immunity. And therefore the court remands

35:29

this down to the district court to

35:31

make a decision in the first incident

35:34

where there are prosecution involving Trump's alleged

35:36

attempts to influence Vice President Pence would

35:39

pose any dangers of intrusion on the

35:41

authority or functions of the executive

35:43

branch. Similarly, the court

35:45

says it's a tougher question

35:47

whether that pressure on state

35:50

officials, you remember, calls

35:52

to state legislators, calls to Secretary

35:54

of State Brad Raffensperger in Georgia,

35:56

whether those are official acts are

35:58

not official. And the court, again,

36:00

remains to the district court to

36:02

make those decisions in the first

36:05

instance. So the

36:07

court does also indicate that there may

36:09

be times that a president is speaking

36:11

in this unofficial capacity, perhaps as a

36:13

candidate for office. And those are things

36:15

that are a fact bound analysis that

36:17

the district court needs to look at

36:20

that, but that kind of thing, speaking

36:22

in your personal capacity as a candidate,

36:24

as opposed to in your capacity as

36:26

a president might also be a factor

36:28

that shows that something is not to

36:32

be afforded immunity. Mary,

36:34

what about the other federal case

36:37

against Donald Trump? He's charged with

36:39

dozens of felony counts for mishandling

36:41

classified documents and obstruction. That's the

36:44

Mar-a-Lago case. Does this Supreme Court

36:46

ruling impact that at all or

36:48

not because the alleged conduct happened

36:51

after he was president? So

36:54

it should not at all, because again, as

36:56

you just said, the alleged

36:58

conduct happened after he was president. And

37:00

I will note that Mr.

37:02

Trump through his lawyers did move to

37:06

dismiss that indictment on the grounds

37:08

of immunity. And I suspect

37:11

that they will now come into the court and

37:13

say, hey, we'd like to brief that again

37:15

for you, Judge Cannon, in light

37:18

of this decision. However, there's nothing

37:20

about this decision that really should

37:22

apply there, because again, we're talking

37:24

about in his capacity as a

37:26

former president having

37:28

classified documents and national defense information

37:31

in places that they are

37:33

not allowed to be. And

37:37

that's all conduct that happened not within the scope

37:39

of his official act. So this should not have

37:41

an impact on this. Well, I'm curious to hear

37:43

from both of you, Stephen

37:45

and Mary, about the fact that this

37:47

decision, a decision we've been waiting on

37:49

all term, it's

37:51

not the only decision that broke along

37:54

ideological lines. But I think it's significant

37:56

that this one did, especially considering the

37:59

current. view of the court and

38:01

people's fear about

38:03

the court being increasingly politicized.

38:06

I mean, Stephen, when

38:08

you look at this breakdown, what

38:11

do you make of that? Does it say

38:13

something significant to the public that this decision

38:15

came down on these lines? I

38:18

think so. Yeah, there's been some discussion that

38:20

maybe the Supreme Court is not as conservative

38:22

as we thought. There

38:25

is certainly more conservative court in the land,

38:27

which is the Fifth Circuit we talked about

38:29

before, but my back

38:31

of the envelope count of six to three

38:33

decisions split between the

38:35

six Republican appointees and the three

38:37

Democratic ones is 11 of the

38:40

60 cases were decided

38:42

that way, which is an extraordinary proportion. We

38:46

had the racial gerrymandering case decided

38:48

by the same margin. Chevron, the

38:50

homelessness case that we talked about,

38:52

a case about civil forfeiture,

38:54

a case about the SEC's power,

38:57

the guns case involving bump stocks

38:59

and more. These were all six

39:02

to three decisions. I

39:05

think it really drives home how this

39:07

is a really

39:10

extremely conservative court

39:12

that when it comes

39:14

down to the most important issues facing the

39:16

country and the future

39:19

of the country, we are in

39:21

for a conservative

39:23

supermajority that is continuing

39:26

to boldly assert and irrigate

39:29

power. Mary, your thoughts?

39:31

Well, I agree with what

39:33

Steve just said. I will note though that

39:36

Justice Amy Comey Barrett has certainly in

39:39

several opinions this term, including some of

39:41

the recent ones, shown herself

39:43

both in the opinions and also at

39:46

argument to be trying

39:48

to sometimes build a chart

39:50

a middle path. And

39:53

we saw in the obstruction case,

39:55

the Fisher case that involved the

39:57

obstruction of an official proceeding charges

39:59

against about almost 350 of the rioters.

40:02

And also these are charges that Mr. Trump

40:05

himself faced in the indictment we've just been

40:07

talking about. She was

40:09

with the Justice Sotomayor

40:11

and Justice Kagan in rejecting

40:14

the view of the other

40:16

conservative members of

40:18

the court who read that statute

40:20

more restrictively to apply to impairment

40:23

or availability of some sort of,

40:26

to require that the

40:29

allegations applied to the impairment of

40:31

the integrity or availability of something

40:33

to be used in official proceeding

40:35

and not just violence, right? And

40:37

she said essentially that

40:39

the majority had engaged in

40:41

textual back flips to reach

40:44

that result. And

40:47

we've seen that we, apparently she has a

40:49

concurring opinion, which of course I

40:51

haven't been able to read yet in this

40:53

immunity case as well, where she would have

40:56

a different approach to official acts. So I

40:58

think we've seen that a few different cases.

41:00

I will also note on the obstruction charges

41:03

that even the majority's opinion

41:05

makes clear that the type of

41:07

obstruction, the impairment of the integrity

41:09

or availability of something doesn't mean

41:11

it has to be a record

41:14

or a document or object. It

41:16

could be impairment of witness testimony.

41:18

It could be impairment of other

41:20

intangible information the Chief Justice wrote.

41:22

And it also could apply to

41:24

creating false documents. And so as

41:26

Justice Jackson pointed out, she concurred

41:28

with the majority, but had a

41:31

separate opinion saying, it's quite possible

41:33

that not only Mr. Fisher, but

41:35

other rioters, the government

41:37

could meet that standard because of their

41:39

impairment of the electoral ballots being

41:42

counted on January 6th. And that's the

41:44

case that I think also should have

41:46

no impact on Mr. Trump's prosecution. But

41:48

of course now with the immunity decision,

41:50

there is an impact. Todd,

41:53

we're of course having this conversation during a

41:55

campaign season. What are the stakes here? Well,

41:58

stakes, Donald. Trump has

42:00

achieved the delay that he's been seeking

42:03

all along. This trial is very unlikely

42:05

now to take place before the election

42:07

stakes. The public now will not know

42:10

if the last and former president in

42:12

his attempt to engineer a coup and

42:15

steal the last election, whether that was, whether he's

42:17

going to be held criminally liable, it will not

42:19

be litigated in public before people get a chance

42:21

to vote on him again. That's

42:24

Todd Zwilich also with us, Stephen

42:26

Mazie, Supreme Court correspondent for The

42:28

Economist and Mary McCord, executive director

42:30

of Georgetown University's Institute for Constitutional

42:32

Advocacy and Protection. Thanks to you

42:34

all. Today's producer was

42:36

Michael Folaro. This program comes to

42:38

you from WAMU, part of American

42:40

University in Washington, distributed by NPR.

42:43

I'm Jen White. Thanks for listening.

42:45

We'll talk again tomorrow. This is

42:47

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