The New Supreme Court Cases to Watch

from The New York Times I'm Sabrina. tavernes and this is the. [Music]. daily last week the Supreme Court began. its new term picking up where it left. off on the most contentious issues of. the day but while previous terms. produced major victories for the. conservative legal movement my colleague. Adam lipac explains today why this term. may be different.

[Music]. it's Tuesday October. [Music]. 10th Adam hi Sabrina you're back which. means the Supreme Court is back and we. wanted to go to you Adam our trusted. Supreme Court expert to learn what big. cases are coming up this term and you.

know we've had of course two terms of. Blockbuster cases that brought these. huge changes to American society you. know tugging it to the right what do you. expect to see this term I think this. term will show us and bring into Focus. how far and how fast it wants to. continue to move to the right it has a. lot of Unfinished Business from those. earlier terms it's facing a series of. kind of follow-up cases in the areas of. administrative law agency power the.

Second Amendment gun rights and abortion. all of which are cases in which. conservative litigants and conservative. courts are pushing hard in anticipation. of a positive reception from the Supreme. Court so you're saying that conservative. legal activists watch this 63 majority. make major rulings on these three issues. and now they see an Open Door and they.

want to push it to see how much farther. they can go that's exactly right so Adam. let's dig into this so let's start with. the administrative state which of course. I know is kind of a thing out there but. what exactly is that start with the. definition and then tell me about that. case so for the longest time the. conservative legal movement has really. despised the idea that unelected. bureaucrats experts who were Aman.

agencies like the Environmental. Protection Agency or the Food and Drug. Administration that they would say are. unaccountable to the American public get. to make major decisions about American. life that they say belongs to Congress. or if not to Congress to the courts but. not to what they would call you know. these deep State experts and in various. ways they've tried to withdraw power. from the agencies and this term comes on.

the heels of two Blockbuster decisions. in the last term and the one before one. of them making it hard for the EPA to. address climate change the other. striking down President Biden's student. loan forgiveness program both of them. saying that the executive branch had. gone too far had gone beyond what. Congress had authorized and those cases. set the stage for the new cases this.

term so what about this term what about. these new cases well the biggest case. asks the court to overrule really the. foundational precedent in this area a. 40-year-old president called Chevron and. it gave rise to a concept people call. Chevron Defence and this is going to. sound technical but it's important what. that case says is if a law passed by. Congress is.

ambiguous then the agency gets to decide. what the correct interpretation of that. statute is and so long as it's a. reasonable interpretation the courts. defer to the agency the short of it is. that agencies which regulate all kinds. of aspects of American Life the. environment the workplace the. marketplace at the margin but it's a. wide margin.

get to make the key decisions about how. to implement a congressional statute. essentially that if the law as written. is confusing or has different. interpretations what this precedent says. is that the federal agency say the EPA. for example should be able to decide how. to interpret it like they don't need. permission from Congress it doesn't fall. to a judge it's the federal agency. itself that governs the thing that's. right so there's a logic to it these are.

complicated statutes and complicated. regulatory areas and you might want the. experts to decide precisely how it. applies that's one kind of argument what. the opponents of the Chevron Doctrine. say is that gives them too much power. Congress if it wants to do something. should say so and if Congress doesn't. say so the courts will step in and tell. us what the law is and Adam tell me. about the case this term that the. justices have taken up it involves.

hering fishermen in Cape Main New Jersey. who a federal law says have to bring. Federal observers Federal monitors on. their boats to make scientific. assessments and to make sure that. there's not over fishing the fishermen. say they have no problem with that but. the law doesn't say who pays for these. monitors and the federal Maritime agency. says that fishermen should pay for the.

monitors and the fishermen object to. that both as a practical matter they. don't want to pay for it but also as a. kind of theoretical matter saying. Congress hasn't said so explicitly and. we shouldn't defer to the agency's. interpretation of who has to pay that. should get a fresh look from the courts. and what is your sense of how the. justices might rule on this the justices. are hostile to Chevron have not.

themselves invoked it in years although. lower courts continue to and that gives. you the feeling that this could be yet. another precedent like abortion like. affirmative action a major precedent. overturned by the Supreme Court I think. chevron's days might be numbered and. that will be a very significant move if. the court indeed does overrule it it. would essentially take power away from. the government to regulate business it. would take power away from the executive.

branch away from agencies and it would. nominally and here's the key point it. would nominally Empower Congress it. would say congress you decide what the. law is but because we have a wholly. dysfunctional Congress what it in effect. does is transfer power to the Judiciary. and to the Supreme Court in particular. and what does the Biden Administration. think about this the Biden. Administration in a brief in the case.

said that overruling Chevron would be a. convulsive shock to the legal system it. says that this is a workable Arrangement. a sensible. Arrangement that people and agencies and. business groups have organized their. lives around for decades and that. there's no good reason to throw away. this precedent but Sabrina I don't. expect every attack on the regulate. story state to succeed we'll hear an. argument this morning in case.

22448 Consumer Financial Protection. Bureau versus the Community Financial. Services Association last week the court. heard arguments in a challenge to the. Consumer Financial Protection Bureau. which is a consumer. Watchdog that protects consumers in. banking credit card and all kinds of. other transactions Mr chief justice and. may it please the court this case is. about checks and balances one of. congress's most important checks on.

executive power is its power of the. purse and the question in the case is. whether the way the cfbb is fund it. through a request to the Federal Reserve. System for the amount of money it thinks. it needs up to a fairly High cap is. constitutional the challenge to the cfbb. is that that funding mechanism gives it. too much Independence too much power and. the outcome of the ruling could be to.

say that that mechanism is. unconstitutional and therefore the. agency is unconstitutional wow but that. attack on the cfbb got very little. traction even from the most conservative. justices on the court uh I get your. point that this is different that it's. Unique that it's odd that they've never. gone this far but that's not having gone. this far is not a constitutional problem. just as Clarence Thomas said yeah it's.

true it's odd It's Curious it's novel. it's an interesting way to fund an. agency but that doesn't make it. unconstitutional and if you don't have. Justice Clarence Thomas and you're a. conservative lawyer you usually don't. have a. case so this attack on an agency the. business groups many of them kind of. hate because they're a very aggressive. regulator seems destined to fail and. it's worth thinking about why that is I.

don't think it's because the court. fundamentally disagrees with the general. critique of the administrative state but. the cases that are reaching it are too. ambitious too aggressive too bold okay. so when it comes to limiting the power. of regulatory agencies there are a few. cases before The Supreme Court and. you're predicting a kind of mixed bag. some wins some losses let's turn to the. next issue in front of the court guns so.

last year two terms ago the court issued. a major decision and major in two senses. it struck down uh New York gun control. law and it said for the first time that. you have a second Amendment right to. carry guns in public for self-defense so. that's huge but also huge was the. standard the court announced that justi. as Clarence Thomas announced about how.

you decide whether other gun control. measures are constitutional or not and. remind me what that standard was Adam so. the standard quite novel draws on. originalism which is the idea that you. want to figure out what the Constitution. meant when it was adopted and what. Justice Thomas said is that you have to. go back in history and figure out. whether there was analogous Reg. regulation which is to say you have to.

find some regulation back in the day. that was more or less similar it doesn't. have to be he says a historical twin but. it has to map on to the modern law. pretty well and unless you can find an. analogous regulation it's. unconstitutional so that's hardcore. originalism and it has really caused. lower courts a lot of distress because. they're not historic. right and we now have a case that's.

going to test whether the court is. really serious about this. methodology it involves a guy named Zaki. rahimi and he was the subject of a. domestic violence restraining. order and rightly so because he was a a. how to put this he did a lot of bad. things with guns including by. threatening women including by shooting. them in public in road rage incidents or.

once when a friend of his didn't get the. fast food order that he wanted my God. but how is this case testing originalism. and historical analogies so he's. convicted under this federal law that. says if you're subject to such an order. you can't have a gun he he's found with. a gun he's convicted and the fifth. circuit says well wait a second in the. founding era there were no such things.

as domestic violence restraining orders. and therefore the law is. unconstitutional wow so that's the fifth. circuit saying hey the new standard is. history here you go history right and I. mean this is telling right because it's. kind of unsurprising that this form of. judicial order didn't exist at a time. when in most places women had very few. rights so you can tell there's a kind of.

disconnect between the standard. announced by Justice Thomas and trying. to implement it and I have to think that. the gun rights folks are quite unhappy. that this is the follow-on case why Adam. because it's factually unattractive it's. sort of theoretically unattractive MH so. this is probably a case where there's. some overreach from the fifth. circuit where the Supreme Court May well.

decide that this federal law that. disarms people subject to domestic. violence restraining orders even under. the history standard is. constitutional but it's going to have to. do some work to get. [Music]. there so those are a few of the big. cases already on the Court's docket but. the court is very likely to to hear. another case and return to the area in.

which it has caused the most upheaval in. recent years. abortion we'll be right. [Music]. back okay so there's a case that you're. expecting that will be taken up by by. the court not on the docket yet but.

probably will be and that is. abortion what is this case about remind. us Adam so this case follows of course. the 2022 Do's decision which did away. with the constitutional right to. abortion but it allowed states that. wanted to have abortion to continue to. do so and anti-abortion groups saw. another line of attack more than half of. pregnancy terminations these days.

involve an abortion pill called. mistone and they make the argument that. 20 years ago the FDA was wrong to. approve this pill that it was. unsafe and they obtained a sweeping. injunction from a trial judge it goes to. the fifth circuit and the fifth circuit. says well we're not going to go that far. but we are going to cut back in. significant ways in ways that are. particularly significant in light of do. we're going to say that you can't get.

the Pill by tele medicine and you can't. have it mailed to you which makes it. much much harder for women and. particularly women in red states where. abortion is banned or severely. restricted from having access to this. pill so it's a very significant case it. has already reached the Supreme Court. once and the Supreme Court has paused. the injunction so today the pill remains. as available as ever but it's less clear.

what will happen when and I think the. correct way to put this is when when the. court agrees to hear the case and. probably by June renders a judgment and. this is important not only for abortion. but to return to the question of. administrative law this would be the. first time ever that a court would tell. the FDA an expert agency that it had. gotten the science wrong and that judges.

not MediCal experts would make the call. on whether and how this abortion pill. should be available right and this case. was a big deal we covered it on the show. because the implications of course would. be huge it would reach across all states. blue and red and and restrict this pill. that's been so widely used you know. increasingly over the years and. particularly since dos and it's another. case Sabrina where you could make the.

argument that it has shaky foundations. the plaintiffs in the case may well not. have legal standing meaning they might. not have suffered the sort of injury. that gives them the right to sue they. are doctors but they're doctors who. don't perform abortions including. medication abortions so it's a little. hard to see what their connection is to. the case right and this FDA appr. approval is decades old it was approved.

in 2000 if I remember correctly right. and the statute of limitations for. bringing these suits is 6 years so you. do the math and yeah the lawsuit would. seem to have been filed too late so. there are problems with the case and. there's a larger more conceptual problem. for the Supreme Court because when they. issued the do's decision their rationale. was we're getting out of the abortion. business we're going to let the people's. Representatives decide it this is not. for judges we're done with abortion and.

it would be a hell of a move for them. than just a couple of years later to say. but you know what we got a lot more to. say about abortion so once again the. conservatives are kind of rushing. through an open door but with a case. that's not exactly a slam dunk yes so. what this term is going to tell us is. whether the Supreme Court which has sent. signals that it is. receptive to cases brought by. conservatives may not be receptive to.

all cases brought by conservatives. because there are places at least in. which the right is moving too quickly. even for the tastes of this court so. Adam I want to talk about the broader. context here because you know when I. think forward of course these cases are. going to be decided in the middle of an. election at the same time the justices. themselves have been under a lot of. scrutiny about whether they're too cozy. with political operatives you know I'm. thinking Justice Thomas failing to.

disclose gifts from a wealthy Republican. donor I'm wondering if you think both of. those pieces of context will have an. effect on the way this term plays out so. it's hard to say definitively because. there are a lot of crosscurrents and a. lot of unknowns and the Court's not. particularly. transparent but I think you're right. Sabrina that these Twin Shadows of. politics and ethics scandals will affect. the court the justices over the summer.

were many of them out in public talking. about their eagerness to have an Ethics. code and they say they're at work on. that and that means they're at least. sensitive to the public perception. Justice Thomas did the other day recuse. himself from a case involving his former. law Clerk and former Trump lawyer John. Eastman involving Eastman's efforts to. subvert the election. and that's a step so we have a court.

that's under all kinds of pressure and. you might think that they don't want. this to be the biggest term or the third. term in a row where it's just. Blockbuster after. Blockbuster So Adam we obviously don't. know the answer yet because you know. these cases have yet to be argued but. just to summarize here for a minute. there might be at least one big wi for. conservatives if the court overturns the.

Chevron president the thing you. described to me but otherwise this term. may end up disappointing conservatives. like they got greedy and this term told. them no I think that's right but it's. early days there are other cases on the. horizon that we don't even know about uh. there may be cases arising out of the. election there are efforts around the. country to knock Donald Trump off the. ballot those could reach the Supreme.

Court so it's October it's a long wait. till June the term could take many. different directions but on the evidence. of these early cases this may be a term. in which a conservative Court pushes. back against the right and I wonder you. know if that will tell us something. bigger about the movement like this. decades long very intentional effort to. push the country to the right through. the. courts so the court continues to have a.

six Justice conservative super. majority all appointed by. Republicans and it will continue to move. the law to the. right the question though is how. fast so it's a question Sabrina not of. Direction but of velocity. [Music].

Adam thank you thank you. [Music]. Sabrina we'll be right. [Music]. back here's what else you need to know. know today the conflict in the Middle.

East deepened on Monday with Israel's. defense minister ordering what he called. a Complete Siege of the long blockaded. Gaza Strip Israel also hit the area with. retaliatory air strikes that destroyed. buildings including a mosque and a. Marketplace Israel said the strikes were. aimed at Hamas the militant group that. controls Gaza and that launched the. deadly attack on Israel over the. weekend later in the day Hamas. threatened to execute one Israeli.

civilian hostage every time Israel hit. gazin in their homes without warnings. with an air strike at least 150 Israelis. were taken hostage by Palestinian asants. in the weekend's. attack Israel's military said it had. regained control over the Israeli border. communities where the incursion had. happened but acknowledged that the. fighting was still ongoing 800 is. Israelis and 687 Palestinians have been.

killed in the violence so. far and the Nobel Prize in economic. Sciences was awarded to Professor. Claudia golden for her work studying. women in the labor market her Research. into subjects like the causes of the. gender pay Gap have had a profound. impact on the field of labor economics. she is the third woman to win the prize. and the first to be honored solo. today's episode was produced by Rob.

zipco Luke Vander plug Jessica Chung and. Olivia Nat it was edited by Patricia. willins and Liz oalen contains original. music by Dan Powell and was engineered. by Alyssa Moxley our theme music is by. Jim brunberg and Ben Lanser of. [Music]. wonderly that's it for the daily I'm. Sabrina Tavern see you.

[Music]. tomorrow.