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- “Supreme Court Deals Dual Blows To Voting Rights, Election Transparency,” Sarah Swann, Ms. Magazine, Jul. 1 2021.
- “‘Alarm Bells Ringing Loudly’: Supreme Court Agrees to Hear Mississippi Abortion Ban Case,” Carrie Baker, Ms. Magazine, May 17, 2021.
- LISTEN: Guest Leah Litman’s podcast, Strict Scrutiny—recent episodes include a recap of the term, an in-depth breakdown of Brnovich, the case that challenged the Voting Rights Act, and more.
Michele Goodwin 00:10
Welcome to “On the Issues: 15 Minutes of Feminism with Michele Goodwin” at Ms. magazine, a show where we report, rebel—you know, we tell it like it is. This week, we add another segment of 15 Minutes of Feminism where we give a serious take on an important issue featuring a single guest. Okay, maybe two guests from time to time. On this show, we hear from voices at the center of the story, people you should know, those who roll up their sleeves and change the world. These are guests who have things to do, places to be and something important to say.
Now next week, we’ll be back to our regular programming. But today we center on the Supreme Court, and we get right to business with our returning guest Professor Leah Litman. She is an assistant professor of law at the University of Michigan law school, co-founder of Women Also Know Law, and is one of the co-hosts and creators of the Strict Scrutiny podcast, which focuses on the Supreme Court. And I want to start off with a question about the highlights of this term.
Leah Litman 01:15
A few stuck out. One is the Court’s major Voting Rights Act case, in which the court interpreted Section 2 of the Voting Rights Act to not prohibit most laws that result in substantial or significant racial disparities in voting. The Court, in Brnovich v. DNC, held that Arizona’s two voting restrictions, one that prohibited the collection of ballots by persons other than the voter, and the second that, throughout counting votes that were accidentally cast in the wrong precinct on Election Day, didn’t violate the Voting Rights Act.
But the more significant part of the court’s opinion was its reasoning. The court laid out a five part test for determining what laws actually violate the Voting Rights Act, and stacked the deck in favor of restrictive voting laws. So that’s definitely one highlight.
Michele Goodwin 02:00
This Supreme Court term was a bit of a roller coaster, no? You highlighted an important case there. And as I’m sure you’re about to point out, there were many others, including some that might not be on our listeners’ radars—not to mention the shadow docket. So give us another one, Leah.
Leah Litman 02:15
The second would be the Court’s religion cases, in which the court expanded the protections for religious groups or religious entities to exempt themselves from generally applicable laws. So in a series of cases involving public health measures that were designed to reduce the transmission of the Coronavirus, the court held that states and localities could not subject religious entities to generally applicable requirements that required everyone to shut down or everyone to abide by certain capacity restrictions.
And those cases are significant because, of course, that is the same theory that the court has used to allow employers to opt out of, among other things, requirements to provide contraception, health insurance coverage or other requirements that are designed to benefit women.
Michele Goodwin 03:04
For our listeners, and yours too, and those who listened to both podcasts, they may be trying to reconcile the Court’s opinions this term. So you think about California v. Texas, a case in which the court held that plaintiffs challenging the Affordable Care Act’s individual mandate as unconstitutional lack standing to bring that case in a federal court, which essentially meant that—three times now that the Affordable Care Act has been challenged, that the Act has prevailed. How does one reconcile that case, alongside those that you’ve just talked about?
Leah Litman 03:40
So the court’s Affordable Care Act case was decided on very narrow and technical grounds. The court didn’t actually reject on the merits the argument that Congress lacked the authority to modify the minimum coverage requirement, nor did it reject on the merits the argument that if that one provision is unconstitutional, then the rest of the act’s provisions have to fall.
Instead, what it held is, the plaintiffs who brought this lawsuit didn’t have standing to challenge the law because they weren’t actually injured by the minimum coverage requirement that lacked a mechanism to enforce it. So there’s no reading this lawsuit either way to indicate what Justice Barrett or Justice Kavanaugh’s views are on the arguments about whether the Affordable Care Act is constitutional, or what they might say in other lawsuits that challenge key provisions of the Act. So there are current challenges that argue among other things, that Congress lacked the authority to give the preventive services commission the authority to designate certain health insurance requirements, that is, they lacked the authority to tell health insurance companies that they had to cover certain services.
So it’s those challenges as well as potential future challenges to the contraception mandate, that will I think determine the fate of the Affordable Care Act.
Michele Goodwin 05:03
Well, we’ve just wrapped up pride month but in reality, we should be having pride all year round. Just like as we celebrate Women’s History Month, it should be every month that we’re celebrating Women’s History Month, and quite honestly the history of all cultures and communities every month. But let’s turn to LGBTQ equality and rights, and the recent ruling in Fulton v. City of Philadelphia. And I’m thinking about this case, in relation to Justice Kennedy as well—you clerked for Justice Kennedy. Tell us about this case and why it matters to LGBTQ equality and rights.
Leah Litman 05:39
So I think it’s hard not to read that decision, as well as language from the Court’s pro-LGBTQ equality ruling in Bostock v. Clayton County, which held that Title XII does prohibit discrimination on the basis of sexual orientation and gender identity. It’s hard not to read those cases as signaling a trend toward giving exemptions from these civil rights protections to persons with religious objections to same sex equality.
Of course, in Fulton the Court avoided a watershed ruling, in which it could have held that every single civil rights statute that burdens some religious practices was presumptively unconstitutional. Justice Gorsuch, Justice Alito, and Justice Thomas would have held that. Instead, the majority in Fulton said that because the Philadelphia requirement gave the city the authority to exempt some people from the requirement not to discriminate on the basis of sexual orientation, that exemption process created an unduly high risk of discrimination against religious entities. And so that calls into question the validity of civil rights regimes with exemptions, but not necessarily the validity of civil rights regimes that lack that exemption process.
But again, given language in the Court’s opinion from Bostock, in which it said that it was not deciding whether the Religious Freedom Restoration Act required the federal government to exempt employers with religious objections to same sex equality from Title XII’s prohibition on discriminating on the basis of sexual orientation or gender identity. You read those opinions together, as well as the Court’s cases on religious exemptions from Coronavirus health measures, and it’s easy to see that the Court is trending toward giving exemptions from civil rights protections to LGBT and Q individuals.
Michele Goodwin 07:36
So in light of the cases we’ve just discussed from Brnovich v. DNC to Fulton v. City of Philadelphia, it’s possible that one could be discouraged by what they see coming from the United States Supreme Court. Or look at Edwards v. Vannoy, where the court held that its recent opinion that states must obtain a unanimous verdict to convict a criminal defendant does not apply retroactively. Or one that has many people up in arms who care about children’s rights, Jones v. Mississippi, where the court held that the Eighth Amendment, which prohibits cruel and unusual punishment, is not offended by a life sentence without parole for juveniles, including those who are not deemed incorrigible.
So, Leah, in light of all of this, were there civil rights, civil liberties victories in this term?
Leah Litman 08:30
I mean, I would count as victories those cases that warded off more dramatic and worse changes to the law. So I think it is a victory that the court did dismiss on technical grounds the lawsuit against the Affordable Care Act. I mean, imagine if the court had completely undone people’s health insurance protections during a global pandemic, that would have been disastrous. So avoiding that decision, to my mind counts as a win, even though of course, the lawsuit never should have even made its way thus far.
Similarly, the ruling in Fulton, you know, is a loss for the plaintiffs advancing the cause of LGBTQ equality in that case, but they too avoided a more disastrous ruling that would have called into question every single civil rights statute and every single civil rights protection under the sun. So in some ways, those decisions count as victories in the sense that they warded off what would have been disastrous rulings with much more significant consequences.
But I don’t want to frame them as victories in the sense that they give people less reason to be concerned about the Supreme Court, or as a reason to step back and breathe easy about the Supreme Court.
Michele Goodwin 09:55
Leah, let’s unpack the conversation a bit further. Maybe open this up to a bit of dodgeball predictions, which are hard and messy to do, but let’s have at it. Justice Kennedy retired from the court in 2018. And then the last term sadly, we lost Justice Ruth Bader Ginsburg. Now with Justice Kennedy, many people saw him as a warrior for LGBTQ equality. I think that’s rightfully so. And Justice Ruth Bader Ginsburg was known for much more than being a women’s rights advocate and being steadfast in that lane. But she was also predictively supportive of civil rights and civil liberties, including voting rights.
Now, in their stead, we now have Justices Gorsuch, Kavanaugh and Amy Coney Barrett. Justice Barrett has said from the White House lawn that she sees herself in the fashion of Justice Scalia, whom she clerked for, and certainly Justices Gorsuch and Kavanaugh have not made any kind of inroads in showing that, although they were clerks of Kennedy, that they’re anything like Justice Kennedy when it comes to LGBTQ equality.
So how should we be thinking about the Court going forward? Are there any predictions that you have?
Leah Litman 11:16
I think there are a few issues to watch. Obviously one major case that the court will be deciding this upcoming term is Dobbs, the challenge to Mississippi’s prohibition on abortion after 15 weeks of pregnancy. So I think how the court disposes of that case will tell us a lot about how they are going to fare on issues of sex equality and reproductive rights and justice.
I think a second issue to watch on voting rights is what the court does in response to state or local and possibly congressional efforts to stem the tide against voter suppression. There are some states that have attempted to give independent commissions the authority to draw legislative districts, rather than self interested legislators who attempt to lock in their own power at the expense of popular will.
Similarly, there are efforts to kind of overhaul the campaign finance system, and give people more information about the kind of money that is being spent, and on what causes in our electoral system. I think watching to see what the court does on those issues, or, you know, state courts’ efforts to expand voting rights on state constitutional grounds, that will provide us a lot of information about what the court is going to do.
These are the democratic efforts to actually expand the franchise. We got some indications when the Court read out effectively Section 2 of the Voting Rights Act in Brnovich, but we’re going to get others. And then on the LGBTQ equality front, you know, I would just say continue to watch the religious exemption cases.
Michele Goodwin 12:59
One of the most controversial nomination hearings of a Supreme Court Justice, was that involving Justice Kavanaugh. He’s been on the court now a couple of terms. And I want to know, is there anything that you see that we can predict about his jurisprudence?
Leah Litman 13:14
I think that it is difficult to make broad pronouncements about a justice after a year or two on the court. Sometimes it takes a justice a few years to kind of become comfortable being themselves on the Supreme Court after they emerge from being so heavily in the limelight and spotlight during their confirmation hearing, centering their first few years on the court.
That being said, I think we do have some pretty clear indications about where Justice Kavanaugh stands on issues like respect for precedent, which could prove to be quite significant when we’re talking about what the court is going to do going forward on issues of reproductive rights and justice or LGBTQ equality. In particular, in cases involving criminal justice this past term, so Jones v. Mississippi which involve imposing life without parole sentences on juveniles or Edwards v. Vannoy, which involved remedying convictions that were obtained by non unanimous juries, Justice Kavanaugh indicated very little respect and regard for the Court’s key precedents on criminal procedure. And if his treatment of precedent is indicative from those cases, then that could spell a lot of trouble going forward for reproductive rights, where a lot of the calls for respecting reproductive rights and justice are anchored in respect for the court’s prior decisions, recognizing women’s right to have an abortion, or similarly in LGBTQ equality cases.
Michele Goodwin 14:55
So what about current champions on the court? Was there one that you could say, really stood out, you took one for the team, thank you for standing up for civil liberties and civil rights. Who would that be? Or who would they be?
Leah Litman 15:08
I would definitely highlight Justice Kagan. I think that her dissent in the Arizona Voting Rights Act case Brnovich is truly one for the ages. The dissent made some headway in canonizing Justice Ruth Bader Ginsburg’s famous dissent in Shelby County v. Holder the decision striking down Section 5 of the Voting Rights Act.
Justice Kagan basically said, after the court mistakenly invalidated Section 5, it ushered in a wave of voter suppression that wouldn’t have happened without the court overruling Section 5, and the opening and closing of her opinion basically says, this Court has treated no statute worse than the Voting Rights Act, even though the Voting Rights Act represents the best, and is so important in the current moment as we tried to build a real multiracial democracy.
Michele Goodwin 15:56
Well, on that important note, I’m thinking again about Justice Ruth Bader Ginsburg and the Shelby County v. Holder decision where she predicted the need for the umbrella when the thunderstorm would actually hit. And I’m also thinking about Justice Sotomayor too, who has been holding down the fort in those very cogent brilliant dissents, where she has been fighting very hard for all of us to remember the importance of civil liberties and civil rights across a number of cases, including those that have been part of the shadow docket.
But what I want to get to Leah is for us to talk about Strict Scrutiny, your podcast. Alright, tell us what listeners can expect to hear from Strict Scrutiny these days.
Leah Litman 16:44
We are covering the Supreme Court and everything they are doing to the best that we can. Over the summer, we’ll be doing some deep dives on issues that the Court has touched on recently or might in the future, ranging from how to interpret statutes, to the administrative state, to how the Court views rights and what might be better ways than the Court’s current approach, as well as voting rights.
So tune in this summer to get some deep dives on issues that have been on the Court’s docket, and might appear on the Court’s docket soon. And then when the court returns to its regular session, starting in October, we’ll be discussing the cases as the Court hears them and decides them.
Michele Goodwin 17:18
So Ms. listeners, make sure that you tune in for more of Professor Leah Litman and her co-host over at Strict Scrutiny, where you will learn much more about the happenings at the United States Supreme Court.
Leah on every episode, as you know, we ask our listeners about a silver lining going forward. And I’m really curious to hear that from you.
Leah Litman 17:41
I think the silver lining is, at this current moment when the Supreme Court is showing itself to be so anti-democratic, we are finally rethinking what the role for the Supreme Court should be in our constitutional democracy. And I hope that that means we will make some changes to enable, you know, the political processes and political branches to pursue more democratic actions without running the risk of being invalidated by a Supreme Court. So, necessary conversations about the role of the Supreme Court in our society is the silver lining.
Michele Goodwin 18:15
And that’s Leah Litman. Listeners, that’s the rundown. I want to thank my very special guest Professor Leah Litman for getting us right to the point and telling it like it is. To you, our listeners, I thank you for tuning in for the rundown of 15 Minutes of Feminism with Michele Goodwin at Ms. magazine. Join us again for our next episode where we will roll up our sleeves and hear from guests changing the world.
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This has been your host Michele Goodwin, reporting, rebelling and telling it like it is. 15 Minutes of Feminism with Michele Goodwin is a Ms. magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode are Roxy Szal and Oliver Haug. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen, music by Chris J. Lee, and connecting voices by Lillian La Salle. And the fabulous Stephanie Wilner provides executive assistance.