On September 30, Frederick I. and Grace Stokes Professor of Law Melissa Murray and the other hosts of the Strict Scrutiny podcast brought their brand of “respectfully irreverent” US Supreme Court analysis to a livestreamed NYU Law Forum sponsored by Latham & Watkins.
Sporting an NYU T-shirt, Murray chatted with co-hosts Leah Litman, assistant professor of law at the University of Michigan Law School; and Kate Shaw, professor of law at the Benjamin N. Cardozo School of Law. The episode began with a discussion of the Supreme Court’s telephonic sessions, then shifted to breaking news, including the presidential debate on September 29, recent New York Times coverage of President Donald Trump’s tax returns, and the nomination of Judge Amy Coney Barrett to a seat on the Court following the death of Justice Ruth Bader Ginsburg.
The hosts then previewed the Supreme Court’s new term. Among the cases they highlighted were California v. Texas, the latest challenge to the Affordable Care Act, and Fulton v. City of Philadelphia, a First Amendment suit brought by a Catholic foster care agency after the city of Philadelphia stopped referring cases to the agency, which had refused to accept same-sex couples as foster parents.
Selected remarks from the discussion:
Leah Litman: “Republican senators are also avoiding any pretense of consistency about confirming Supreme Court Justices in an election year. We’ve seen, as we discussed last episode, Senator Cruz, Senator Graham, and a bunch of other people offering very different reasons for why it is okay to proceed with this nomination, but not with Judge Garland’s. To my mind, this has some parallels and it also rhymes with another famous switch from Supreme Court history, so, whereas, first-year constitutional law students learn about something called the ‘switch in time to save nine,’ this is kind of like the ‘switch in time to get mine.’”
Kate Shaw: “I am going to lead off with the Affordable Care Act insanity, which is Texas v. California, California v. Texas…and the background here is that in 2017 Congress could not repeal the full Affordable Care Act. Instead, it reduced to zero the penalty imposed on Americans who choose not to buy health insurance, but it retained every other provision of the Affordable Care Act. So Texas and a number of other states are now arguing that because the mandate was sustained in NFIB v. Sebelius, the first big ACA case, as a tax, and because there is now no penalty attached to this tax, the law can no longer be sustained as constitutional—it was already viewed as exceeding Congress’s Commerce Clause authority, and so it must be struck down in its entirety.… Even putting aside the politics of doing it in the face of this pandemic, it’s a pretty distorted reading of the law, which basically says—and the Court has said this in cases as recently as last term, in a Robert’s opinion, in a Kavanaugh opinion, you know—if there’s a constitutional problem with part of a statute, we use a scalpel, not a sledgehammer.”
Melissa Murray: “I think one thing that distinguishes this moment from 2000 is that we did not have a sitting president who had already called into question the impartiality of sitting judges to the point where the Chief Justice felt compelled to publicly address it and say, ‘There are no Trump judges. There are no Obama judges. There are just federal judges doing their level best,’ and on and on. That wasn’t the case in 2000, so I wonder how much the last four years and the assault on the judiciary as an impartial institution will shape the way the Court takes up what is likely to be an election-related challenge in this term. They’ve basically cleared their docket in order to take on some kind of existential challenge, and I think it’s not unlikely we’ll see it, but I think that makes it different."
Watch the full discussion below:
Posted October 16, 2020