Preet Bharara:

From CAFE and the Vox Media Podcast Network. Welcome to Stay Tuned. I’m Preet Bharara.

Kate Shaw:

I think it just illustrates the futility of trying to say we’re going to try to erase the salience of race. It can’t be done. And by allowing some consideration of race in this context, the court has just, I think, suggested, “Well, there’ll be some shifts required on the part of both students and admissions offices,” but we can’t make race not salient.

Preet Bharara:

That’s Kate Shaw. She’s a constitutional law professor at the Cardozo School of Law in New York City. She’s also a co-host of Strict Scrutiny, a legal podcast focused on analyzing the Supreme Court’s cases and culture.

The Supreme Court wrapped up its term last week with a handful of consequential decisions including on affirmative action, free speech, and student loans. So there’s a lot to unpack. What will college admissions look like without race-based affirmative action? What are the limits on laws protecting the rights of LGBTQ people and what’s the extent of executive power?

I discuss all of this and more with Kate Shaw and just as a note, I got a ton of questions from you folks about these decisions. So instead of answering them myself in a typical Q and A, I figured I’d ask the Supreme Court expert that’s coming up. Stay tuned.

Before I get to my conversation with Kate Shaw, I want to make a quick plug for the CAFE Insider Membership. That’s where Joyce Vance and I analyze the most consequential Supreme Court decisions, controversial cases that are likely to come before the high court in the near future, and all the latest developments in the criminal cases and investigations involving Donald Trump.

These days it feels like there is a massive legal story almost every week, and I try to cover as much as I can here on Stay Tuned, but Insider is where I’m able to go much deeper. So please consider signing up. For a limited time we’re offering a special deal. The annual membership is now 40% off for the first year. That’s 40% off for the first year. To sign up head to cafe.com/insider and use special discount code, Justice. That’s cafe.com/insider and special discount code, Justice.

Kate Shaw, welcome to the show.

Kate Shaw:

Preet, thanks so much for having me.

Preet Bharara:

It’s hard to believe that we haven’t had you on before, so it’s long overdue and I’m very pleased in particular to have you here at the end of a very consequential Supreme Court term to answer questions that lots of people have on their minds. We got a ream of questions about some of the cases that ended the term, and rather than answer them myself, I thought I would ask a smarter person.

So let’s dive right into it because there’s a lot to cover. The case that probably got the most attention at the end of the term is this pair of affirmative action cases relating to the University of North Carolina and to Harvard. Could you just broad stroke, tell us the basis on which the court decided the case and what the decision was?

Kate Shaw:

Sure thing. So the plaintiff in these two cases was the same, an organization called Students for Fair Admissions and it sued both Harvard and the University of North Carolina basically claiming that the university’s use of race in their admissions policies was unlawful, unconstitutional in the case of UNC, which is a public institution and so is bound by the Constitution directly and unlawful under a federal statute in the case of Harvard, which is of course a private institution, but the court has basically said that the standards are the same. So the decision didn’t really treat the two differently in any meaningful respect.

So the argument was these universities by their own account do take race into account in their admissions decisions and that the constitution takes off the table the ability of institutions to be mindful of race, whatever the reasons that are offered.

Essentially that’s a bit of a simplification, but that is the basic argument that the plaintiffs made and that was largely embraced by a six three majority of this court. And the background here is, if I can maybe lay a little bit of groundwork, is that the court previously had allowed the use of race in admissions. And so in a case from the 1970s and then a case 20 years ago from 2003, the court basically looked skeptically at university’s use of race.

But in an important concurring opinion from the Bakke case from 1978 and then actually in the majority opinion by Justice O’Connor in the 2003 Grutter case, the Supreme Court held that while any use of race is subject to strict scrutiny, so courts will look very skeptically at any use of race whatsoever, in this instance the reasons that universities gave for being race conscious and making admissions decisions were powerful enough and the mechanisms that were devised were kind of tailored enough that searching constitutional scrutiny was satisfied.

And so under these narrow circumstances where universities were seeking to achieve diversity in their classrooms and where they took an individualized look at each student, didn’t accord points on the basis of race, didn’t use quotas that were racial in nature, under those circumstances it was permissible for the universities to do what Michigan was doing in that case.

And here the Supreme Court basically says, without saying it’s overruling those cases, it essentially repudiates the reasoning in those cases and says, “Even though the universities here were doing things that were not radically different from what the court approved 20 years ago, the Constitution did not permit them. And so these race conscious admission policies were invalidated.”

Preet Bharara:

So this is the question that people have. What has changed since 1978, or since 2003, other than the personnel of the court? Anything?

Kate Shaw:

There’s been a legal effort underway for decades that has sought to basically get the court to declare that the constitution is race blind and cannot permit the taking account of race for any reason no matter how compelling or for very, very few reasons. And until today the court had basically said that not all uses of race are constitutionally identical.

So it is not the same thing to take account of race in order to advance white supremacy as it is to take account of race in order to build a diverse classroom and to produce a diverse workforce and to expose students to a wide range of ideas from individuals from a wide range of backgrounds. And that race is part of, although not in any way, all of that project.

And the court basically here said was, “No matter how well intentioned these programs are, the Constitution does not permit them.” And it’s really hard to see what has changed apart from just there are the votes to do it at this point.

Preet Bharara:

Some of the conservative justices love to talk about the history and tradition of the Constitution. Is there a history and tradition with respect to our constitution of race neutrality?

Kate Shaw:

It very much depends on which of the opinions in this case you read, Preet. So Justice Thomas writes a concurring opinion and interestingly he also delivered that concurring opinion from the bench. So it’s pretty unusual, typically before the pandemic and now they’ve resumed, the justices issue their written opinions, but also they take the bench and the author of the majority opinion reads a summary and sometimes a dissenting justice, if they feel really, really strongly will read or summarize their dissent from the bench.

Very rarely does anybody concur from the bench, but Justice Thomas clearly felt strongly about this case and he concurred from the bench and I wasn’t in the courtroom and we don’t have the audio of that, but certainly from the written opinion it’s pretty clear he makes a historical case that the 14th amendment and the statutes Congress passed in the wake of the passage of that amendment really was always meant to be read as race blind to prohibit the taking account of race for whatever reason and under whatever circumstances.

And you have, I think, very powerful historical counter narratives offered in the two separate descending opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson. Justice Jackson, I think in particular, really, really goes deep in reconstruction era history, they both do, but they really make the case that from the drafting of the 14th Amendment and to the immediate kind of implementation of that equality imperative in that amendment, it’s always been the case that government has understood that the way to actually bring about meaningful substantive equality is to take account of race under some circumstances.

It is not sufficient to simply say, “We won’t allow consideration of race and imagine that equality will kind of flower.” Active efforts are required and they were required in the post Civil War Reconstruction Period. And obviously not the same measures, but on the view of the dissenting justices, some consideration of race remains imperative to actually make equality meaningful.

But you have unbelievably contrasting kind of versions of the historical account and also visions of the Constitution and its equality guarantees that are on display in these competing opinions in the affirmative action cases.

Preet Bharara:

Is it fair to say that whether you’re a conservative or a progressive that the ideal is that at some point race conscious or race based decision making in college admissions should end?

One of the Justices here said, This practice must end.” And on the one hand the conservatives think that it should end now and arguably some of the progressives think, based on what’s still literally going on in our country and our society, it’s too soon. But is it fair to say that everyone is in agreement that in an ideal world at some point this practice would end?

Kate Shaw:

I don’t know. I think at some point in an ideal world, absolutely, but race is so salient in our lives that it’s hard to know what that endpoint will be. And if it ever is the case that that race does not meaningfully constrain and shape our lived experiences and our outcomes, then admissions doesn’t need to take account of race. But it, I think, feels to the descending justices and to a lot of progressives as though we are just radically far from that point.

And so the conservative justices obviously suggest, and this is core to the reasoning in terms of what is wrong with the taking account of race, it is first the kind of dividing people up on the basis of race just is fundamentally constitutionally offensive according to the majority. But there are other specific objections they raise and one is this lack of endpoint, but what Justice Jackson says in dissent, “Deeming race, irrelevant in law does not make it so in life.”

And so for as long as it’s meaningful in life, it’s hard to know what that endpoint would be, but in a realm of pure abstraction, I think, yeah, absolutely.

Preet Bharara:

We had Lee Bollinger, one of the named parties in one of those cases that you mentioned, former President of Columbia University on the show, and he addressed the issue of whether or not strategically over time it would’ve made more sense to make these arguments on behalf of affirmative action practices to make them based on the notion of redress as opposed to the concept of diversity. Do you have a thought on that?

Kate Shaw:

I totally agree and I think Justice Jackson, to return to her dissent, feels like she is trying to begin to lay the groundwork for reviving those arguments because it’s true. So in the Michigan case, which obviously Lee knows very well because he was the name defendant, Grutter versus Bollinger was the 2003 case we were just talking about out of Michigan.

And there the court basically limited the rationales that could sustain race conscious of admissions policies to the pursuit of classroom diversity. And previously any kind of race conscious policies, whether we’re talking about government contracting or admissions or access to broadcast licenses on the airwaves. There are a lot of different state, local, and federal government programs that over the decades have taken account of race in some fashion. And historically you sort of had two separate justifications.

One was the kind of diversity justification, and that’s whether it’s in a classroom or diversity of voices on the airwaves and things like that.

And the other was remedial. It was kind of responsiveness to a history of systemic and structural racism kind of mandated some affirmative steps to ameliorate, to bring about something different today, to ameliorate those past wrongs, at least in part.

And in the affirmative action cases the kind of remedial justification has totally fallen away in favor exclusively of the diversity rationale. And you see Justice Jackson’s dissent steeped in history and making the case both in historical terms but also in terms of present disparities. She really focuses on the enormous and enduring race-based gaps in wealth and health and wellbeing.

And she does really, I think, make an incredibly compelling case for how central the law and also the Supreme Court were in maintaining those, and are in maintaining those structural disparities. So she’s focused on the present, but she does suggest that this kind of history of discrimination and exclusion compounds over time in ways that we feel the effects of in many, many ways today.

And so addressing those past wrongs and making things better in current context are not really separate projects, but in the majority opinions, again, both in Grutter and here, and as these cases were litigated, the diversity rationales essentially the sole basis on which the universities and the arguments and defense of the policies rested.

And so I think that if one can imagine a different court, a court with a different understanding of the constitution’s equality guarantees, it does make sense. And I think she’s sort of thinking long term and in really laying the groundwork for beginning to offer, again, those arguments that are mostly remedial in nature.

Preet Bharara:

So here’s a question that I hope you can explain to our listeners. If diversity is not an important enough value or ideal to overcome the conservative’s problem with race-based admissions and affirmative action, why is it that they made an exception or left aside affirmative action in the military academies like the Naval Academy and West Point?

Kate Shaw:

Well, so I will say they don’t affirmatively bless it. So a footnote in the majority opinion just says we’re not addressing the question of race conscious admissions.

Preet Bharara:

But they could have addressed it.

Kate Shaw:

I think that the logic court would offer is when we’re talking about military policy, the court has always been somewhat more deferential to the federal government, both the executive branch and Congress, than in other contexts. So the court might differently approach…

Preet Bharara:

[inaudible 00:14:42] defer to the FDA.

Kate Shaw:

Not this court and not, no. And so I think it’s right, they sort of treat federal government actions very differently depending on what the action is and depending on what the…

Preet Bharara:

The argument made by the military here is what?

Kate Shaw:

Well, and this was really central to the 2003 Michigan case, which was the military academies are where sort of officer leadership corps gets trained and we have an incredibly diverse fighting force in our military. And so it’s really, really important that we also have diverse military leadership from the perspective of values like military readiness and effectiveness.

So you just cannot have a non-diverse officer corps effectively lead a diverse military. That was the argument offered in a really influential amicus brief in the 2003 case. And that argument was revived here. And so I think the court might, if asked this question directly, might say something like, “Strict scrutiny applies, and under these narrow circumstances where we have the commander in chief and military leadership telling us that military readiness requires this extraordinary practice, we will permit it. We judges are not going to second guess it.”

Of course, they’re second guessing all kinds of things all the time, but I imagine that’s how they would draw the distinction between this case and that one, although Justice Jackson, I think, really takes it aim at the majority by basically suggesting she doesn’t really do develop this argument, but she says, “The majority basically seems more comfortable with race consciousness when we’re talking about preparing folks to fight and die than leadership positions in the boardroom.” And I think she thinks that’s profoundly cynical.

Preet Bharara:

Isn’t that internally inconsistent or are we over stressing this?

Kate Shaw:

No, I think it’s wildly internally inconsistent. I’m just trying to generate the best defense of it that I could. And I think it just does have to do with deference to military decisions on the part, particularly at the executive branch.

Preet Bharara:

So there’s a lot of talk and a lot of questions about what students can and cannot do and say in their applications and what admissions officials can and cannot rely on. And there’s this long sequence in the court’s opinion about essays.

My third kid is going to college in the fall. So I’ve gone through three rounds of college admissions and in particular the essay. Could you explain to folks what Chief Justice Roberts said about what an applicant can say about race and what a school can take into account?

Kate Shaw:

Sure. And it’s a passage in the opinion that honestly is pretty hard to square with the rest of the opinion. So what the court writes, maybe I’ll just quote this language is, “Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration. Or otherwise.”

And then the court goes on to elaborate that, “A benefit to a student who overcame racial discrimination for example, must be tied to that student’s courage and determination. In other words, the student must be treated based on his or her experiences as an individual, not on the basis of race.”

So a couple of responses. One is that’s what the schools have always said they are doing. They’re not just awarding points, they’re trying to take account of a full person and race is a part of that.

So the language is in such contrast to the kind of sharp condemnation of the consideration of race at all in the rest of the opinion. And I don’t know if their concerns that saying you can’t even talk about race in your application would actually raise kind of speech concerns on the student’s part. But it also seems to clearly kind of give the game away because obviously race does affect our lived experiences and requiring a student or an applicant to spell that out so that admissions officers can properly take account of it or making assumptions or inferences about it being a different lived experience to be an 18 year old who is Black or Latino from an 18 year old who is white.

And of course everyone is differently positioned, but the court is basically just saying there may be inferences that admissions officers are drawing and they shouldn’t draw those. Instead they should require the students to spell them out, but maybe they can do the same thing they’ve been doing if they just require this additional interim step that’d be very labor intensive and also, I think would create, people I think in the wake of the decision have noted, all kinds of perverse incentives, essentially creating incentives for students to center race in their narratives where they might want to center other experiences or other aspects of their lives or identities

Preet Bharara:

And causing Black applicants to have to explain to admissions officers the issue of race and the issue of discrimination. It’s a bit of a burden shift, is it not?

Kate Shaw:

It does seem that way. There was a great essay in the Times by a professor at Bates who had worked in advising students applying to college before becoming an academic, and he used the phrase kind of gamification, racial gamification, trying to figure out in the application process just how to present yourself in racial terms. And this is something he said he had observed obviously well before this opinion, but it does seem as though this opinion will only just really ratchet up those incentives on the part of applicants.

And I think it just illustrates the futility of trying to say, “We’re going to try to erase the salience of race.” It can’t be done. And by allowing some consideration of race in this context, the court has just, I think, suggested, ‘Well, there’ll be some shifts required on the part of both students and admissions offices,” but we can’t make race not salient because the court, whatever great power it does have, it has a ton of power. It does not have the power to do that.

Preet Bharara:

We have a question from a listener, which is a good question from Twitter user Alyssa Davis who says, “In the affirmative action cases, there’s been a lot of discussion about what students can and can’t mention in their essays,” as you and I were just discussing, “was there anything in the decision that might limit what people writing references can mention? #AskPreet”

In other words, I guess, the question is can other people as well, teachers and coaches and others talk about race and how the particular applicant overcame discrimination or racism as well?

Kate Shaw:

There’s certainly nothing in the opinion that would preclude recommenders doing that, and I think it’s probably right that just as students are going to be incentivized to do more of that in their essays, I think that recommenders probably reading this opinion, are going to correctly understand that they should also center that in their narratives about students.

Because the court is not in kind of one fell swoop going to make universities not care about diverse classrooms. That’s not possible. And so I do think that it’s going to be a question of workarounds on both the application and the admission side and this passage that I just quoted from, I think it’s right, it probably will be read and correctly read, by recommenders to suggest there might be some benefit to students to sort of talking about race and obstacles in a way they might not have prior to this opinion.

Preet Bharara:

I read somewhere that Charles Barkley, perhaps among others, has decided when he dies, he doesn’t want to do it now for some reason, that he’s going to fund scholarships for Black students at a college. Anything in the opinion preclude that?

Kate Shaw:

So he’s a private individual and he’s not a recipient of federal funds. That’s a federal statute that brought Harvard within this non-discrimination, a prohibition of federal law. And he’s obviously not bound directly by the constitution. So as I sit here, I think that he could absolutely do that. So private individuals can do those sorts of things without this opinion.

Preet Bharara:

But can it be administered by a public school?

Kate Shaw:

Maybe not. Look, he could set up a foundation, he could have students apply directly depending on what kind of legal constraints the foundation operates under, the same statutory prohibition that Harvard or similar ones we’re talking about state foundation.

Yeah, I think that the administration side of it could trigger legal obligations of non-discrimination that would bring the logic of this opinion into play, but someone could try to keep totally off books operation just to provide direct funding to families would be fine.

Preet Bharara:

I saw a story recently after the decision came down by the University of California at Davis Medical School. And as people may know, the University of California system got rid of race-based admissions many years ago, and in some schools there’s been a diversity issue. According to the article, UC Davis Medical School uses an adversity index and they have quite a diverse racially and otherwise student body. Do you have any thoughts about their mechanism, if you’re familiar with it, and how schools might emulate it?

Kate Shaw:

Well, and Davis is the school that was the defendant in the Bakke case we were talking about earlier. So this is something they’ve been grappling with. All schools pretty much have been for decades. An adversity index is interesting and there are lots of other ways that schools could try to achieve diversity without explicitly taking race into account. Obviously socioeconomic status, family income, geography, zip code, we’re a pretty residentially segregated nation still. So those things can help.

So you’re talking about Davis, but also Texas has long used this top 10% plan. So the top 10% of graduates at high schools in Texas are automatically admitted to the states universities, and so has achieved some racial diversity that way. It wasn’t enough in the views of Texas, and so it was using some additional racial considerations for the spots that remained and that was the issue. And actually two other affirmative action cases before the court, which we haven’t talked about the Fisher cases, but I think that those will be hugely important in the post Students For Fair Admissions era.

What’s a little hard to know from the opinion is if those might be vulnerable too. There are some kind of ominous suggestions, just kind of asides, definitely dicta, but that seem to suggest that where universities adopt policies, maybe like Davis’, as attempts to work around or circumvent a prohibition on consideration of race, those too might be constitutionally suspect.

The court does not hold that. And I don’t think that these programs should trim their sales now in anticipation of what a court might do, but I think there is language in the opinion that is suggestive that if what you’re really trying to do, and you’ve been explicit about this, is to achieve racial diversity, but you’re doing it even in a race blind way, that might still run afoul of the logic of this opinion.

And actually I think in terms of what this opinion will mean in practice, I think the kind of public response and reaction is going to shape that. I think that affirmative action depends obviously how you kind of phrase the question, but it’s not super popular. So I don’t know exactly how the public responds to this opinion.

Obviously universities are really, really unhappy about it, but I haven’t seen polling yet and maybe we will. And what public response looks like, I think may have some bearing on the court’s kind of willingness to take this. I think incredibly aggressive next step, which would be to declare any program that uses anything as a proxy for race or that uses something race blind to achieve diversity is also impermissible. And that I think would be truly radical. This opinion is quite radical, I think on its own, but that would be even more radical.

Preet Bharara:

And that will be litigated for sure, right?

Kate Shaw:

There’s a case out of Virginia, Thomas Jefferson High School, that was just decided by the Federal Appeals Court and I think the Supreme Court very likely will, I don’t know if they’ll take it right away, but I think there’s a decent chance that could be before the court in the next year or two. And so that’s another facially race neutral, but definitely race conscious admissions policy and the court might have a chance to answer that question soon.

Preet Bharara:

So another very common question that I’ve been getting from listeners is, “What does this affirmative action decision or repair of decisions mean for private workplaces or even government workplaces who are seeking to have diverse workforces?”

Kate Shaw:

I think it raises a question. There are tons of policies right in the private and public sector.

Preet Bharara:

But just to be clear, for folks who are lay people, the opinion itself doesn’t address those issues. So private and public employers don’t have to change their hiring practices at this moment, but there could be implications in future litigation. Is that what you’re saying?

Kate Shaw:

I think that’s exactly right. I think that nothing outside of the college admissions sort of world is directly implicated and certainly isn’t directly invalidated by anything in the court’s opinion. The opinion is really just about college admissions, but every other kind of use of race, if we’re talking about high school admissions, if we’re talking about workplaces, I think there is the possibility that the logic in this opinion will embolden challenges to other uses of race in other maybe pretty far flung contexts and workplaces may be able to justify using a broader set of reasons than just this kind of classroom diversity rationale that the court found so lacking in the Students For Fair Admissions.

Some of the other problems that the court identified that the use of race also ended up being used negatively in particular to impact in the court’s view Asian-American applicants who the court read the statistical record as basically establishing that Asian-American students were systematically disadvantaged by the university’s use of race to advantage primarily Black and Latino students.

And so to the extent that those features are absent from say a workplace or other context, those could be very salient distinctions between what the court found so troubling here and other uses of race.

But I think it would be misguided to basically assume that if you’re talking about a different context, the use of race is completely insulated from challenge because this case was just about college admissions. I think it has really broad implications.

Preet Bharara:

I’ll be right back with my conversation with Kate Shaw.

All right, let’s move on to another case. We could talk about the affirmative action cases for a very long time. So one of the most fraught cases decided by the court at the end politically, at least for the current president, was the student loan case. And a question that I keep getting, and this is relevant to actually all the cases we’re going to discuss, but a Twitter user by the name of Ultimate Webb asks, “How was their standing for the student loan case?” I’m going to ask you the same question when we get to the web designer, but here, who’s the plaintiff and why did they have standing to challenge the massive cancellation of student loan debt?

Kate Shaw:

There were two sets of plaintiffs, a couple of individual plaintiffs who were unhappy with the amount of debt they were eligible for, and the court dismissed their case on standing ground. So those two individual plaintiffs were not found to have standing, but the other group of plaintiffs was a group of red states that brought this challenge.

The case was captioned Nebraska, but actually Missouri ended up being the most important of the states and they had a couple of different arguments for how they were injured by this policy. But the one that was kind of central to the court’s reasoning, or the court’s conclusion that Missouri did have standing, was because an entity called MOHELA, which was the Missouri Higher Education Loan Authority, just this legal and financial entity, that was set up by the state of Missouri but is independent from the state of Missouri, that it was injured by the debt cancellation because Missouri was basically arguing that if the federal government cancels some student debt, then some debt holders will consolidate some of their outstanding debts, some of which are held or serviced by MOHELA, and if those other debts serviced by MOHELA and also the debts that are forgiven altogether will basically cause MOHELA to make less money servicing these loans.

And so that’s the injury. So that’s MOHELA. If MOHELA makes less money, it’ll contribute less money to this state fund that was kind of central to the case. So it’s a standing theory that has a bunch of different steps in the chain of causation.

There’s also the fact, and this was really, really central to Justice Kagan’s dissent, which maybe we could talk about, was that MOHELA is not Missouri. It really is an independent entity and the Chief Justice and the majority opinion says, “It’s state-ish.” It’s state enough that its injury is injury to the state and thus the state can go forward. But in the oral argument, this came up a lot, and again, in Kagan’s dissent, this came up a lot.

MOHELA, the entity, was not a party to the suit, it chose not to bring a lawsuit, a public records request revealed some MOHELA employees sort of talking about how the state is trying to bring them into the case, which isn’t dispositive on the question of standing, but I think does suggest that MOHELA was being used by Missouri. And I think the claim that their injury, first that they’re injured at all, it’s not even clear that they are, but even if they are that their injury is injury to the state, I think is a very, very dubious one.

But that is the basis on which the court concluded there was standing and busted could reach the merits of the lawfulness of the debt cancellation.

Preet Bharara:

Putting standing issues aside for a moment, the case turned on what’s called the Heroes Act. So this is not about the constitution, it’s about the interpretation of a statute. And the Heroes Act, as the court points out, allows the secretary to, “Waive or modify” statutory or regulatory provisions applicable to financial assistance programs under the Education Act.

And so the question was, I guess, and tell me if I have this right, was the wholesale cancellation of debt a waiver or modification or something else?

Kate Shaw:

Yeah, that’s exactly right. Let me just read one more sentence though from the statute, which is so, “The secretary has the authority to wave or modify,” and then the end of that provision says, “As the secretary deems necessary in connection with a war or other military operation or national emergency.”

And it does seem to me that the COVID context was the context in which the decision was made and the secretary took the position. Hard to refute that that was a national emergency. So yes, it is basically the case that the argument the states made that the court accepted was that this statutory language, particularly wave or modify, just doesn’t encompass this kind of wholesale cancellation, which is what the Biden administration engaged in.

And remember the context here is that there were a number of loan repayment pauses in response to the early COVID pandemic, actually first by the Trump administration and the Trump Education Secretary and then by the Biden administration.

Preet Bharara:

Now was that blessed? Was that okay, were the pauses okay?

Kate Shaw:

The court doesn’t address them explicitly, but on the logic, I’m not sure even the pauses were okay, but maybe it’s the fact that they were temporary that the court would say, “Brought them sort of within the purview of this kind of wave or modify language.”

But about a year ago, August 2022, the Biden administration basically said, “Look, we’re ending these across the board pauses, but we’re going to provide permanent relief to a subset of borrowers whose income falls below a certain threshold.” And it offered this really detailed explanation for why, which is that there were still ongoing economic effects of the pandemic unaffected borrowers and offered all kinds of evidence in support of that conclusion. And so it said, “We’re canceling up to $10,000 for a lot of borrowers and up to $20,000 for Pell Grant recipients.”

And it didn’t just do this out of thin air, it had a statute that appointed to that it said is precisely designed to allow the secretary to respond to emergency scenarios in relieving the obligations of student debt.

And so what the court basically did was it imported some language from another opinion using the term modify. This is a Scalia opinion. There’s language from another opinion actually by Justice Scalia that basically said, “The agency in question was using the term modify in an unduly expansive way.” And so Scalia wrote, “This was modify only in the same sense that the French Revolution modified the status of the French nobility. It has abolished them and supplanted them with a new regime entirely.” So that’s from a case called MCI, totally different case and it’s a different statute, but it’s a good line.

So Roberts repurposes it here and basically says, “This goes way too far to qualify as modify.” Now waive is also in the statute, and I think the opinion really focuses on modify to the exclusion of waive, but it does talk about waive a little bit. But it says, “If you look at previous exercises of authority under this statute and you look at what we really think these terms, waive and modified mean, doesn’t seem to us, it means wholesale cancellation of this significant sum of debt for 40 plus million borrowers.”

And this really, I think, epic dissent by Justice Kagan, which is the statute says, “The secretary is allowed to give relief in the form he deems appropriate to counteract the effects of a national emergency on borrower’s capacity to repay.” Who knows if that’s good policy, but that’s not up to us. That’s up to Congress. Congress wrote a statute and that’s the statute under which the education’s secretary was operating kind of full stop.

But the majority opinion not only sort of read the statute, not to clearly allow this, but invoked this idea as a principle that’s invoked in a bunch of cases in recent years called the major questions doctrine, which is basically when if an agency is seeking to do something, like take some action of vast economic and political significance, it can only do that if the statutory authority on which it is relying is really, really clear.

So Congress has to speak clearly if it wants to give agencies big powers, and that’s just not a principle that has a particularly long vintage. It really comes from this [inaudible 00:35:57] case about the FDA trying to regulate tobacco. But it is no…

Preet Bharara:

As we’ve said on the podcast before, there’s no history and tradition of the major question doctrine.

Kate Shaw:

It is just wildly inconsistent with history and tradition, and yet it has just assumed this unbelievable significance in really important recent cases. Last term’s case regarding the EPA authority to regulate coal emissions. And it wasn’t essentially in this term case about the Clean Water Act and Wetlands. There was kind of a related principle, but it wasn’t a major questions case, but major questions came up in a couple of really important COVID cases, vaccine mandate and OSHA, the eviction moratorium.

And so this is just the latest kind of the major questions doctrine strikes again instance, but obviously with enormous consequences for millions of Americans who all of a sudden are facing… We’ll see what Biden does in response, but if there’s no response that is comparable or if court strike that down too, people are going to be on the hook for thousands of dollars that they believed, until the Supreme Court opinion, that they had been forgiven.

Preet Bharara:

Is part of what’s going on here that in the minds of some people, including some of these justices, that Joe Biden had made a political promise and there was a political movement behind student debt cancellation that was totally unconnected to COVID? That just as a general independent freestanding matter, there are lots of people who thought as a matter of policy, the student loan should be forgiven. And that in the minds of some of these justices, it looks like a pure political play and the linkage to COVID is pre-textual. Is there any of that going on here?

Kate Shaw:

I think it’s possible. I think that part of what is so perverse about the way the major questions doctrine has been deployed by this court is it says, “If an issue is one of kind of political significance,” and sometimes it talks about political controversy, “that is a reason to look skeptically on what an agency has done.”

So it sort of creates incentives to gin up political controversy around questions so that the court can then say, “Well, this is a politically controversial question and so we’re not comfortable with allowing the agency to exercise this kind of authority.”

So yes, I think there was a very significant and well organized movement underway to achieve some kind of loan forgiveness that predates COVID. But I also think that the agency tied really tightly the decision here, the sums involved, the kind of category of affected borrowers to the lingering effects of the pandemic.

And so if this is a textualist court, which it is fond of telling us it is, we have a piece of statutory text and it either kind of does or does not authorize what the secretary did here, it seems to me it very, very clearly does. But taking all of these background conditions that there was a movement underway into account, I think actually may be appropriate when you’re interpreting statutes.

To my mind, that’s all fine, but on this court’s own kind of version of appropriate statutory interpretation theory, none of that should matter. And yet it really does matter here.

Preet Bharara:

Do I remember correctly that at the time Joe Biden announced loan forgiveness, there was some reporting that he and his team knew that it might be legally dubious, so they knew there was a risk at the outset, no?

Kate Shaw:

Sure. And the opinion actually quotes Nancy Pelosi basically saying, “The president doesn’t have the authority to do this unilaterally.” And it just, again, what legal significance, the assessment of the speaker of the house, of the lawfulness of the president’s contemplated approaches. That felt like a totally gratuitous inclusion in the majority opinion, but it’s there.

So I think that the Chief Justice really enjoyed including that. And I think that yes, there was definitely reporting that a lot of the president’s lawyers were very unsure, and that’s in some ways why it took as long as it did. But, again, why that should bear on the court’s assessment is really unclear to me.

Preet Bharara:

But should it bear on our assessment of the court’s decision? That with respect to some of these other cases, the effect of wholesale reversal of longstanding precedent like in Dobbs and in the affirmative action cases, this is not as crazy as those. Is that fair?

Kate Shaw:

I think it’s quite crazy actually. I think that the Kagan opinion is really, really convincing. It’s just that maybe viewed in isolation, I suppose one could construct a defense of it, but it just feels like part of a kind of systematic effort to kneecap the administrative state based on just a vision of government in which it doesn’t do much.

So it’s really difficult for Congress to hand broad authority to agencies to do things like respond to public health emergencies or to the climate catastrophe or other things. And that’s just the kind of deep ideological commitment of these justices. And so this is just the latest kind of demonstration of that.

In support of your, maybe this isn’t as crazy kind of position though, Preet, there were actually a couple of amicus briefs from surprising quarters or unexpected ones at least on the side of the states, and that were substantively dubious about the president’s authority here.

So the organization protect democracy, and some pretty liberal law professors actually filed briefs on the side of the states suggesting the president had exceeded his authority here out of just kind of a concern generally speaking about unbridled executive authority sort of just being a problem in a democracy, obviously in the abstract that principle, I think, is correct and I share it.

I’m just not sure here I found it a convincing concern, but I think you’re right that the kind of ideological divides in this case were slightly kind of fuzzier than in some of the other cases we’re talking about.

Preet Bharara:

Let’s move on to case three of the four that I want to focus on. And this has gotten a lot of attention. This is styled as a free speech case, three or three creative, and the most number of questions we’ve gotten relates to the same issue we talked about a moment ago.

Margie Lemons, for example, on Twitter asks, “Dig into standing for the 303 case. How on Earth case got heard? Is there any remedy?” Somebody else tweeted, “Hoping you’ll address the questions about standing in 303?”

Could you explain to folks who the plaintiff was and the controversy about whether or not there was in fact a controversy here?

Kate Shaw:

Sure. So the plaintiff in this case was a would be website designer, Lori Smith, who wanted to offer her services as a web designer for purchase, but did not wish to design websites for same-sex weddings and was concerned about state law in Colorado, a public accommodations law, which prohibits among other things, discrimination on the basis of sexual orientation by any business that sells things to the public.

So she was concerned that that law would compel her to provide a website to a same-sex couple who approached her seeking to secure her services. And in anticipation of being compelled to provide such services under such circumstances, she filed this lawsuit. And if the way I describe this kind of suggests that I too am dubious that she actually should have been in federal court at all.

Yeah, I share what I take to be some of the listener skepticism about whether this was a suit that satisfied the requirements of Article Three of the Constitution, which is supposed to limit federal courts to deciding cases or controversies. And one component of that is you’re supposed to have a plaintiff who is personally injured by whatever law they’re complaining about. And this was just kind of an anticipatory injury that the court decided to take seriously enough to actually issue this major constitutional ruling on.

Preet Bharara:

But in fairness, the court does that from time to time. There is such a thing, just for lay people to understand, there is such a thing as pre enforcement review and challenge?

Kate Shaw:

Definitely. And so it is the case that if an agency has issued a rule and you’re going to argue that the rule violates your constitutional rights or is unlawful under some statute, you don’t have to violate the rule and be subject to sanction in order to bring a challenge, that’s right.

But typically the injury is supposed to be actual or imminent. Certainly impending is a formulation the court is used in a Justice Alito opinion that basically you’re definitely, definitely going to be subject to the injury that you are identifying or complaining about. And here it’s just very unclear that any same-sex couple would’ve tried to retain her services as a website designer.

It is, I think, true that if she denied services, she would be subject to enforcement by the state of Colorado. But that first piece of speculative, I think, actually is a real problem for the case.

And in order to settle her rights or secure her rights, I mean the language of the court is just so much kind of less definitive than in many, many standing cases in which the court has basically said, “Well, there might be an injury here, but it’s not either happening or certain enough to happen to justify our exercise of judicial review here.”

And so it is hard to square this case with… Well, I’m going to have to read it carefully and figure out how to teach it in my Con Law classes next year. But it does feel to me like an awfully generous approach to tanning, which might actually be right under some circumstances. I think that some of the time the court has been far too stingy in finding standing if it doesn’t want to get to the merits here, but it’s eagerness is impossible to miss in this case.

Preet Bharara:

So for example, if Alabama or some other state tomorrow passed a law saying that in that state same-sex marriage was forbidden, and you have a couple that’s not married, but plans to get married, do they need to get married and violate that new statute in order to challenge the statute?

Kate Shaw:

Well, typically the way this kind of litigation would work is you would have a couple who would apply for license and be denied, and that’s the injury. So it’s a small step that is taken and maybe it’s right that you shouldn’t have to do that. But the way the court has basically articulated these standing rules and that organizations that do civil rights litigation, et cetera, have just complied with, they would have somebody apply for license and be denied, and that is an injury.

So if you’re just unhappy typically with policy and even policy that you think might in some future set of circumstances impact you personally and directly, that’s typically not enough to get to federal court.

Preet Bharara:

So what was deemed speech in this case. The case is styled a free speech case. It’s not a discrimination case, it’s not a free exercise of religion case. It’s not an establishment clause case, it’s a free speech case. Was this speech the creation or the anticipated creation of a website for a same-sex couple?

Kate Shaw:

Basically, yeah. So she basically suggested that this law would compel her to speak a message she objected to. And the core, and you’re right, this is a speech case. It wasn’t a free exercise, religion case as a technical matter, but the core of her objection to speaking this message was a religiously grounded one.

So she basically said she has a religiously grounded view that same sex marriages are, in her words, false. And that God’s true story of marriage is a union between one man and one woman. And having to design a website for a same-sex couple would compel her to speak some different version of truth that this was a, I guess, true marriage or a real marriage and a union that was legitimate like a union between a man and a woman. And that would be unconstitutionally compelled speech.

And that’s then what the court in a opinion, by Justice Gorsuch, very, very resoundingly sided with this argument by Lori Smith.

Preet Bharara:

Is that part of the argument, putting aside whether or not it can be overcome and the standing issues, is the consensus even among people who disagree with the opinions conclusion that the web design is speech or is that controversial in your mind too?

Kate Shaw:

No, I think it’s whether it’s pure speech or speech and also kind of commercial activity, I think it does have speech elements. There’s a couple of places where what the tenth circuit, the lower court here described this website design as pure speech and the court recited that language, but it’s also something being sold and it’s some kind, and other places, the opinion describes it as expressive activity.

So I think it’s right that it has some expressive/speechy components, but it’s also offered for sale. And to be honest, most goods or services that are sold have or could be described as having some kind of expressive component, probably a sandwich that is pre-made if you’re going to buy, it’d be really hard for a vendor to deny you service on the basis that to do so would be compelled speech. But I truly don’t know if you have a same sex couple that walks into an establishment and wants to order sandwiches and the vendor objects.

Preet Bharara:

Is the provision of the sandwich speech?

Kate Shaw:

Well, probably not. But also if the provision of the sandwich is deemed, or could be characterized by the vendor as communicating support for a lifestyle, I don’t know. I think there are not a lot of limiting principles in this opinion in a way that makes me really, really nervous about just the kind of general viability of public accommodations laws, which are very, very longstanding laws that since the 60s as a matter of federal law have prohibited discrimination in places of public accommodation.

So that’s just anybody who offers their goods or services to the public, that does not encompass everybody. But that’s the general kind of definition of public accommodations can’t discriminate originally just on the basis of race and religion and national origin. And a lot of places like Colorado have subsequently added sexual orientation and gender identity discrimination as prohibited under these public accommodation statutes.

But if you have a religiously grounded objection to providing websites for same-sex marriages, I’m not sure how there’s any way to distinguish that from a religiously grounded objection to providing websites for interracial marriages, which is explicitly highlighted in the dissent came up a bunch in the oral argument. The idea of individuals with disabilities, that’s also protected status. If you object to a marriage in which one or both individuals has a disability, could you refuse if you claim some religious basis or maybe even if you don’t, because again, as you said, this isn’t a religion case on its face.

It just feels as though these very longstanding norms that the government will never ever be able to tell you what can be in your heart. But that if you hold yourself out to the public as providing a good or service, you need to do that to all comers on a non-discriminatory basis. That principle feels like it’s in real jeopardy after this opinion.

Preet Bharara:

Can you help explain how this case 303 Creative, as a first amendment case, is different from that cake shop case from a few years ago?

Kate Shaw:

It’s not different in the kind of general arguments that were being made. The only difference is the court resolved that Masterpiece Cake Shop case by basically arguing that it didn’t kind of have to decide if this public accommodation law required the baker, or Jack Phillips was the baker in that case, to provide a cake to a same-sex couple.

I think they had been married in another state, but they wanted to have a celebration of their marriage in Colorado. And the kind of clash that the court resolves in 303 Creative just doesn’t get resolved in the Masterpiece Cake Shop case because the court basically found in the administrative proceedings because that case, unlike this one, actually did involve a same-sex couple who walked into a cake shop and tried to order a cake and were turned away. And so there was no real standing question there. Really contrast with this case,

Preet Bharara:

But the objection to providing the cake was what?

Kate Shaw:

It was both a religion and a speech objection. It was the same. It was a religiously grounded objection to same sex marriage that had both speech and religion components. But the court didn’t ultimately resolve the question of whether Phillips had a constitutional right to refuse the service irrespective of this statute, because it found that in the administrative proceedings that ensued after this couple complained some of the Colorado officials basically seem to voice anti-religion animus, bias against religion.

They said things like, “Religion has long justified acts of discrimination and that’s not okay in our state.” And the court basically said that that discrimination was impermissible, but it didn’t answer the later question of whether the refusal of the cake sale was constitutionally protected or privileged. So that the sort of factual background there was a little bit different.

The court basically used those administrative statements as an off-ramp. It found for the baker, but not on the basis that there was a constitutional right to refuse the sale. It was an earlier stage of the kind of the decision tree, I would say.

Preet Bharara:

This is something that’s confusing. We say all the time on the podcast and people try to explain the concept of abridgment of free speech as something that is only applicable towards the state. So Twitter can decide, or Facebook can decide, or NBC can decide not to air certain speech. You don’t have an absolute right, because those are not state actors. How is it the case that you have this free speech question, but not an obvious state actor?

Kate Shaw:

It’s just the state laws. So because the state of Colorado passed the public accommodations laws, those state compulsions to provide services, those would be the thing that violates the constitutional rights of either the baker or the web designer. So you’re right there isn’t, and in Colorado, in the first case, the cake shop case, there were actual administrative officials enforcing the law and basically Phillips had to undergo some training. There were sanctions for his refusal to sell the cake. And those are the kinds of sanctions that Lori Smith, the web designer, was concerned about when she brought this lawsuit.

So you do have enforcement in the first of these cases, but more broadly it is the state law, and that is of course, the product of state action that these would be vendors are arguing, violates their first amendment rights.

Preet Bharara:

So there’s a Supreme Court case called Obergefell, decided some years ago, that upheld the right to same-sex marriage. Do you think anything about this case, we’ve been talking about 303 Creative suggests, directly or indirectly, that Obergefell is in jeopardy?

Kate Shaw:

I don’t think anything in this case directly calls into question Obergefell. No. I do think that it could be the case that you have under the constitution a right to marry, including a right to marry someone of the same sex, but you’re not going to have the same experience if you’re in a state where a lot of people object to providing you… If you get married a lot of the time, if you do a real wedding, there’s clothing, there’s cake, there’s photography, there’s floral design. You interact with a lot of vendors, calligraphy, they mentioned the opinion, for invitations and things like that.

So it could be the case that if this opinion emboldens a lot of people to refuse services to same-sex couples, it’s not going to be the same experience as it would a different sex couple getting married.

So I do think that there’s impact on marriage, no question. But as to the core constitutional right to marry, I don’t see anything in this opinion that calls it into question, although I hasten to add last term. In the Dobbs case, Justice Thomas’s dissent explicitly included Obergefell on the list of precedents that the court should reconsider in light of the kind of new approach it is taking to fundamental rights.

So not only obviously the majority opinion just overrules Roe and Casey and actually kind of is at pains to say that it’s not calling it a question other cases. But that I think is, as Justice Thomas is in many ways like a real thought leader on this court. And so a lot of his once fringe positions have moved much, much closer to the center of the court in recent years. And so I do think that, eyes wide open, I think that Orbergefell could be vulnerable at some point, but I don’t think that 303 Creative in any way directly calls it into question

Preet Bharara:

I’ll be right back with Kate Shaw after this. Can we take a step back for a second and talk about the entire term? More or less radical than the year before?

Kate Shaw:

So I’m going to give it differently radical than the year before, I guess. It is still a really, really conservative court and it has moved very quickly to change the law just this year. And also in the context of just the three years the conservative supermajority has been in place, there are some metrics on which this looks less conservative than previous years. So you had…

Preet Bharara:

For example that voting rights case, right?

Kate Shaw:

Right. So you have both in anecdotally, so in Alan versus Milligan, the court could have gutted, could have potentially even have struck down section two of the Voting Rights Act. The court did not do that. That was significant, obviously more, which we just talked about was significant. A case called Haaland versus Brackeen about the Indian Child Welfare Act was viewed as an existential threat to this really important longstanding federal statute. And the court turned away two on the merits, one on standing grounds, all of these big challenges that had been brought to that statute.

So a case about the spending clause called Palevsky that could have been, I think, really damaging and was not. So there definitely were liberal victories and by the numbers, the liberals were actually, when the New York Times crunched these numbers, they were on the winning side more than Thomas and Alito were. And you also had this real increase in unanimous opinion, so up to 47% from 28%, but the numbers just kind of obscure more than they illuminate and that most of the unanimous opinions were in the really low stakes cases. And in most of the most important cases, the conservative victories were enormous.

So obviously the Students For Fair Admissions and 303 Creative, which we were just talking about, and then more is, I think, is more mixed. But the kind of magnitude of the victories in the cases that the conservatives won gets obscured by that kind of number crunching. And so I guess I still think it’s a really conservative court.

All six of the court’s conservatives are very, very conservative, but they do have different styles and I think different approaches they would like to take to bringing about the change they want to see, and I’ve used this metaphor before, but I sometimes think of it as an express train versus local train kind of distinction, which is that Thomas and Alito are very, and Gorsuch most of the time, are very much on the express train. And Roberts wants to take a sort of local train and make stops and make incremental change. And sometimes Kavanaugh is with him and sometimes Barrett is with him, but often they’re on the express train, but the destination is the same and it is really, really fundamentally transforming our law.

Preet Bharara:

Which train you think, is it the 123? Is it the NR?

Kate Shaw:

Even the express trains in New York are not that fast. So I guess I don’t really have a good particular train in mind. But I do think that the metaphor broadly speaking is right. So it’s just a question of how you get there and also how much you take account of things like the court’s standing and approval numbers and public opinion. And I think Roberts very much cares about those things and I think Kavanaugh might also, and I don’t think the others do.

Preet Bharara:

So Roberts, since you mentioned him, there have been people, including those who have appeared in the show who in the last couple of years have started to say that Roberts doesn’t really have control of the court, that he’s losing influence. What do you make of his standing on the court at this moment?

Kate Shaw:

He does look stronger this term than last term. I think that’s definitely right. I think his failed effort to craft a kind of compromise, or what he would’ve styled as a compromise solution, in Dobbs, I think exposed, it seemed to expose, so he concurred, he did not want to overturn Roe and Casey, but he would’ve upheld the Mississippi 15 Week Abortion Ban.

And by several accounts he was really trying to get Kavanaugh to go along with him and obviously failed to do that. I think it’s right that he seems to be in somewhat more control of the court right now. And I think that his decision in Allen to uphold the Voting Rights Act, in particular, John Roberts who 10 years ago wrote the opinion striking down section where the coverage formula in the Voting Rights Act in Shelby County versus Holder, that was significant.

So that I think did, and I don’t really have a great explanation for what has happened. And if we thought when Allen came out a couple of weeks ago that maybe his views on race and its salience had evolved, I think Students For Fair Admissions, I think, really disabused me or anyone else who might have been harboring that suspicion of that idea. But that’s an opinion that does seem to suggest that race does still matter and in a way that is very, very sharply kind of contrast with what he wrote 10 years ago in Shelby County.

So I think that this is someone who maybe has seen his views evolve on some questions and has managed to keep for himself opinions that have kept a court and not lost a majority to some concurring opinion or something like that. You could have imagine in the Students For Fair Admissions case, he keeps the majority opinion because of course the chief, if he’s in the majority, gets to decide who writes the opinion.

So either he can assign to himself the majority opinion or he could assign it to someone else. And I just had this feeling that Justice Thomas really wanted to write that opinion, but the chief kept him and I think maybe he wrote an opinion that was more aggressive than it would otherwise have been, but not as aggressive as Justice Thomas’s concurrence in order to keep a majority with him as opposed to losing it to Justice Thomas. And if he wrote something that felt too moderate.

I do believe that paragraph that we talked about, there must have been a lot of negotiation over that paragraph, but I think that it sort of remains to be seen. This new super conservative court is pretty new. It’s still kind of, I think, getting its legs. So I think long-term assessments will probably have to weigh, but Roberts and Kavanaugh are obviously the most important players on this court right now. And Kavanaugh in many ways, he’s concurred in some pretty important ways in some of these cases. So he’s obviously the justice to watch on a lot of important questions we’re going to see in the next couple of terms.

Preet Bharara:

Are conservatives disappointed with Kavanaugh yet?

Kate Shaw:

I think so, yeah. I think that…

Preet Bharara:

Is it surprising?

Kate Shaw:

Not just Kavanaugh, I mean Barrett and Gorsuch are disappointing conservatives. The Times quoted Law Professor Josh Blackman who basically said, “These lists are basically useless, a lot of conservatives think, if they’re not going to produce people who are as reliably conservative on every question as Justice Thomas and Justice Alito.”

It is interesting. The three Trump appointees are somewhat more moderate than Justice Thomas and Justice Alito. And I think that a future Republican president would prefer to appoint justices in the mold of Justice Thomas and Justice Alito than these newer appointees. So again, I think the disappointment is probably the most acute with Kavanaugh, who has shown there’s glimmers of moderation, but again, Barrett wrote the opinion upholding the Indian Child Welfare Act, which a lot of conservatives had really, really hoped to take down in its entirety in this challenge. And Gorsuch has, in a number of other important cases involving Federal Indian law sided with tribal sovereignty and tribal interests.

And so I think that there are sources of disappointment, I think, for conservatives. I think with all of these three new appointees, but probably most with Kavanaugh.

Preet Bharara:

Do you think the recent ethics revelations and scandals, specifically with respect to Justice Thomas and Justice Alito are having any effect on the substance of the court’s work?

Kate Shaw:

It’s hard to know.

Preet Bharara:

Is Robert bending over backwards to be a certain way in the wake of those things? Or he’s just doing what he otherwise would’ve done?

Kate Shaw:

I don’t think anything in the opinions. And of course I read them with that front of mind. I don’t think anything in the opinions this term makes me think that the court’s deciding or writing cases differently based on that. But I have to imagine that internally Roberts is focused on trying to get the court to do something kind of affirmative on ethics that will send the message that they take this seriously.

And I’m not sure sort of what that would look like, because that really is on him. I think that you can sort of ask the question about how substantively in control of the decisions of this court, he of course has just one vote. He has the assignment power, but apart from that, he’s like first among equals as people sometimes say about the chief justice. But when it comes to the court and its administrative kind of activities, Roberts has all the power.

And so if the word does nothing on ethics, I think that 100% sort of has to lie at the feet of John Roberts. And I think because he does care very much about both the institution and I think his own legacy as a chief justice, I have to imagine he’s going to try to do something. I just don’t think this is the kind of thing that they can just ignore and hope people will stop paying attention to. And I don’t think that the reporters who are on this beat have stopped looking. And I think there probably are more shoes to drop in terms of the court’s ethics scandals. So I think Roberts is going to have to take some action.

Preet Bharara:

Well, Justice Kagan doesn’t accept bagels from friends.

Kate Shaw:

Well, the lox anyway, but I guess bagels too.

Preet Bharara:

I think it’s both bagels and lox. Certainly the lox.

Kate Shaw:

[inaudible 01:04:07]. We were speculating on my podcast recently about whether the recent kind of Justice Alito salmon fishing revelations have caused Justin Kagan to rethink her previous kind of hard life.

Preet Bharara:

I think they’re always allowed to accept a pumpernickel bagel. Because who wants that?

Kate Shaw:

Yeah. Little white fish bread though. I don’t know. That might be across the line.

Preet Bharara:

I know it’s been a while, but there’s so much to cover, a couple minutes on what’s in store for the next term?

Kate Shaw:

Sure.

Preet Bharara:

There’s this case we’ve talked about on the podcast once or twice relating to herring fisherman and it’s escaped the kind of attention that the affirmative action cases and student loan cases and free speech cases get. But could you explain why that is a gigantic deal?

Kate Shaw:

Sure. So this is a case called Loper Bright Enterprises versus Raimondo. And I guess something to do with monitor on a fishing boat, a question that a statute is arguably ambiguous on. And the key question is an institutional one. If a statute is ambiguous, does an agency get to construe that and ambiguous statute and should a court just defer to the agency’s interpretation of that ambiguous statute? Or really is it for the court to decide what a statute means?

And since 1984, in an important case called Chevron versus NRDC, the Supreme Court has said that, “Where a statute is ambiguous and where an agency that administers the statute has offered a reasonable interpretation of that statute, courts are supposed to defer to statutes.”

There are just thousands and thousands of ambiguous terms and statutes and agencies have to decide how to interpret those ambiguous provisions and interpret them in the context of things like rules that agencies write, but also in terms of how they decide when to bring and how to bring an enforcement action and who pays for various things.

There’s just absolutely infinite number of these decisions agencies have to make all the time and sometimes an unhappy party challenges the way an agency has read a statute. And again, since 1984, the Supreme Court has said, “Courts defer to agencies.” And this Chevron case has come under fire in recent years. And the idea is, I think, this is of a piece with the [inaudible 01:06:08] the major questions doctrine, which we were just talking about, but that the major questions doctrine is about kind of courts taking power from agencies. Chevron was always about courts deferring to agencies. And so the kind of attack on Chevron has been also about disempowering agencies and empowering courts.

So the idea of people who don’t Chevron, and it hasn’t always had the same political valence, but the kind of anti Chevron camp has been pretty well aligned with sort of what Gillian Metzger at Columbia calls like an anti administrative camp, which is just keep agencies powerless or as powerless as possible.

So the idea is that Chevron gives agencies too much power and then courts basically need to reign agencies in by actually overruling Chevron. And in recent years, the court has kind of ignored Chevron but not actually overruled it. And so this case is a frontal attack on Chevron.

Preet Bharara:

What’s the prediction?

Kate Shaw:

This term has been interesting because, as we talked about in the affirmative action cases, the court did not do a lot of overruling. So the court purported just to basically find that the conditions that it set forth in Grutter in the 2003 case weren’t satisfied here. And so it doesn’t formally overrule those affirmative action precedents. There’s another case we didn’t talk about Groff versus DeJoy, which is about religious accommodations at work. And there was a 1977 opinion that the court was asked to overrule. And there too, it didn’t overrule it, but it did really recast it.

I think the court has sort taken a lesson from the kind of backlash to its Dobbs opinion as at least in part maybe we’ll find a way to work around precedents. Because when we overrule a case, then that generates a lot of big headlines. And obviously overruling Roe is kind of in its own category, but I do think that the court seems to be really straining not to overrule precedence right now. And I think that that could happen here. But the court, I think, very right, clearly will do something…

Preet Bharara:

Because they’ve been doing enough of that.

Kate Shaw:

So I think here they might just say, “Well, we’re just really narrow the circumstances in which deference to an agency is appropriate.” And that would functionally be basically the same as overruling Chevron. And that would, again, be another real blow to agency’s ability to do important work to kind of keep us all safe and healthy and all the many, many things that agencies do.

Not that they’re perfect, no one thinks they’re perfect, but they’re an important part of our collective lives. And the court’s kind of unremitting hostility to agencies and agency power, I think, is just a really important theme of this court and a really important one that we’ll have practical consequences for all of us.

Preet Bharara:

Any other big case in the next term we should be looking out for?

Kate Shaw:

Well, there’s Rahimi, the court just granted. So a gun case post Bruen. So one of the big cases last term, obviously, probably the other hugely important case in addition to Dobbs, was Bruen. The case basically striking down New York’s permitting regime for carrying weapons around and also announcing a standard for evaluating gun laws that is very, very protective of gun ownership and very skeptical of gun regulations.

And this is a case involving a provision of federal law that makes it a felony for someone under a domestic violence order of protection to possess a firearm. And this is a pretty commonly used federal statute. And the Fifth Circuit struck that statute down as inconsistent with the standard the court sat down in Bruen and the court just agreed to take it up.

So we’re going to, I think, see very quickly whether the court is going to try to carve out an exception to Bruen and is not going to be willing to basically say, “We can’t disarm a abusers,” which does feel like a radical, radical position. And one I wonder whether John Roberts and Brett Kavanaugh will find some way around or whether they will just basically say, “We meant what we said in Bruen, and almost all gun laws are presumptively unconstitutional,” because that’s basically what the text in Bruen has reduced to. And that is, I think, a very, very alarming case.

Preet Bharara:

I can keep talking to you, but I’m not going to force you to suffer through this. Kate Shaw, thanks so much for being on the show.

Kate Shaw:

Thank you for having me, Preet.

Preet Bharara:

My conversation with Kate Shaw continues for members of the CAFE Insider Community. In the bonus for Insiders, we speak about Moore v. Harper, the court’s decision rejecting the independent state legislature theory.

Kate Shaw:

To the extent that people had hoped that Moore versus Harper would decisively reject this theory and kind of put it to rest for all times, such that it was not going to arise in the context of say, the 2024 election, I don’t think that happened.

Preet Bharara:

The annual membership is now 40% off for the first year. To sign up head to cafe.com/insider. Again, that’s cafe.com/insider. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Kate Shaw.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the #AskPreet. Or you can call and leave me a message at 669-247-7338. That’s 669-24-Preet. Or you can send an email to letters@cafe.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David David Tadashore. The senior producers are Adam Waller and Matthew Billy. The CAFE team is David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Namita Shah, and Claudia Hernandez. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.