The Supreme Court ended its most recent term on June 30th and it was another blockbuster term. The Court made some surprising and some not-so surprising decisions. It upheld precedent in some places and smashed it in others. While this new Court is still trying to figure out its character, the past two terms have made it pretty clear that this is a conservative majority that intends to reinterpret our long-held understanding of some important constitutional principles and in doing so, reshape the legal, social, and political landscape in the United States.
In this episode, we welcome back friend of the pod, and resident Deep Dive Supreme Court scholar, Dr. Sara Benesh, the chair of and associate professor in the Political Science Department at the University of Wisconsin Milwaukee. We talk about some of this term’s cases, the implications, the tenor of this empowered conservative court, and also the rise of the dissenters. And more ethics crap.
And, also a teaser about a new Deep Dive project in the works. If you're queer and thinking about leaving the United States due to the spike in anti-queer legislation and violence, we've got something coming for you.
Mentioned:
A Court of Thorns and Roses - Sarah J. Maas
-------------------------
Follow Deep Dive:
Instagram
Post.news
YouTube
Email: deepdivewithshawn@gmail.com
**Artwork: Dovi Design
**Music: Joystock
The Supreme Court ended its most recent term on June 30th and it was another blockbuster term. The Court made some surprising and some not-so surprising decisions. It upheld precedent in some places and smashed it in others. While this new Court is still trying to figure out its character, the past two terms have made it pretty clear that this is a conservative majority that intends to reinterpret our long-held understanding of some important constitutional principles and in doing so, reshape the legal, social, and political landscape in the United States.
In this episode, we welcome back friend of the pod, and resident Deep Dive Supreme Court scholar, Dr. Sara Benesh, the chair of and associate professor in the Political Science Department at the University of Wisconsin Milwaukee. We talk about some of this term’s cases, the implications, the tenor of this empowered conservative court, and also the rise of the dissenters. And more ethics crap.
And, also a teaser about a new Deep Dive project in the works. If you're queer and thinking about leaving the United States due to the spike in anti-queer legislation and violence, we've got something coming for you.
Mentioned:
A Court of Thorns and Roses - Sarah J. Maas
-------------------------
Follow Deep Dive:
Instagram
Post.news
YouTube
Email: deepdivewithshawn@gmail.com
**Artwork: Dovi Design
**Music: Joystock
Dr. Sara Benesh: SCOTUS 2023 - The End of Equal Dignity
[00:00:00] Sara: You know, they also did whatever they want during the war in court and we were okay with it cause we liked it, you know? So I think we always have to pay attention to what our own ideological biases are doing to our interpretation of what the court's doing. I don't think the court is doing things that are completely different than it used to do, although, as you said, it might be doing it with a different tenor. I also think that they're far less interested in upholding precedent than they used to be, although they do when they want to, right? Mm-hmm. So the Voting Rights Act case relies on precedent in its interpretation of section two, but then the affirmative Act action case doesn't, you know, and DOS didn't.
[00:00:38] So the overturning of really old established precedence is maybe new, but even again, in both of those cases, abortion and affirmative action. It's not like they just all of a sudden did it. Right. These were projects that were many decades in the making, and the Warren Court overturned a bunch of precedent too.
[00:00:56] I'm just saying[00:01:00]
[00:01:02] Shawn: welcome to Deep Dive with me, Shawn c Fettig. The Supreme Court ended its most recent term on June 30th, and it was another blockbuster term. The court made some surprising and some not so surprising decisions. It upheld precedent in some places and smashed it in others. While this new court is still trying to figure out its character.
[00:01:26] The past two terms have made it pretty clear that this is a conservative majority that intends to reinterpret our long held understanding of some important constitutional principles, and in doing so, reshape the legal, social and political landscape in the United States. So today we're turning to friend of the pod and resident Deep Dive Supreme Court scholar, Dr.
[00:01:46] Sarah Benesh, the chair of and associate professor in the political science department at the University of Wisconsin Milwaukee. We talk about some of this terms, cases, the implications, the tenor of this empowered [00:02:00] conservative court, and also the rise of the dissenters oh, and more ethics crap. If you like this episode or any episode, please feel free to give it a like on your favorite podcast platform and or subscribe to the podcast on YouTube.
[00:02:16] And as always, if you have any thoughts, questions, or comments, please feel free to email me at deepdivewithshawn@gmail.com. Let's do a deep dive.
[00:02:31] Dr. Benesh, welcome back. How are you?
[00:02:34] Sara: I am hanging in there. Shawn, how are you?
[00:02:36] Shawn: Yeah, same. Same.
[00:02:38] Sara: I always feel under-prepared when I talk to you though, so we'll see how I do today.
[00:02:42] Shawn: I feel like you, this is a preface that you have so that if you bomb, it's totally fine, but if you're right, if you're great, you're a total over performer.
[00:02:52] Sara: Excellent. Always manage expectations. Okay, let's talk about the court. Oh, that's what you wanted to talk about? Yeah. [00:03:00]
[00:03:00] Shawn: Shoot. So, yeah, if we thought this was gonna be the year that the Supreme Court took a breather, uh, we were wrong. So this term that just ended proved to be, I think, another blockbuster in its own way.
[00:03:11] So for all intents and purposes, we saw the end of affirmative action. The dispelling of the independent legislature theory. Some suggestion that some gerrymandering might be bad, but it's kind of far from clear what the court's test here is. Some private businesses can discriminate again, though it's far from clear what the court's test is reigning in of the executive and administrative agencies, some fiery dissents, and, uh, a few more ethics issues.
[00:03:37] Hmm, let's start with some of the cases. So one of the last cases the court dropped was its decision in students for Fair Admissions Inc. And here they essentially overturned precedent that had been established in the 1978 BAK case that allowed for some consideration of race and university admissions.
[00:03:52] This court ruled that race-based considerations or affirmative action is unconstitutional. And I think the initial reaction to this [00:04:00] was that any race-based consideration. Was no longer allowable. But I think as time has passed and a little bit more careful reading of the decision, actually seems like there might be some wiggle room for universities to be a bit creative here.
[00:04:13] What do you think? Mm-hmm.
[00:04:14] Sara: Yeah, I would agree with that. I think first of all, you know, this is another of those projects. That was a long time in coming, right? I mean, we saw. Over time that the court was less and less enamored with programs that had some sort of preference for race. And so I, I think, you know, we saw Justice Roberts, chief Justice Roberts often talk about, you know, the best way to get rid of race is to stop talking about race or whatever, whatever his little tagline was.
[00:04:39] So I don't think it's entirely surprising or at all surprising that they would find that their interpretation of the 14th Amendment's Equal protection clause suggests that any use of race is unconstitutional, not just. Those nefarious uses of race for which the clause was originally penned. Right? So that's not anything that is new from this [00:05:00] court.
[00:05:00] And they just needed six votes and they got it now. But I do think that, you know, it's interesting that. The chief justice makes that statement in the opinion that this, you know, that nothing that we're saying says that a university can consider an applicant's discussion of how race affected their life.
[00:05:18] Just that we can't just use race as this proxy. We need to really talk about, what is his phrase, challenges bested, skills built or whatever. And, and I don't know if you saw some of the, the pushback by some of the major universities, but they were talking already about ways that they can use the decision to continue the way that they've been engaging with race.
[00:05:38] And, you know, JD Vance, the senator, um, now sent some letters out, I guess, about his displeasure with their reaction. But in general, it's hard to know what colleges and universities do. Right. And I think this. Glimpse into Harvard and UNCs process is something that will perhaps produce more fruit down [00:06:00] the road as we learn even more about the ways in which legacy, for example, play into admissions decisions.
[00:06:06] But I think it's a hard thing for the court to enforce, and I feel like we've maybe talked about that before, that when the court is trying to prescribe ways in which universities create their incoming class. A lot of that is black box, right? A lot of that is things that we don't know and and are things that are individual, which is exactly what the court wants universities to do to engage in this sort of individualistic holistic review.
[00:06:32] So I think it'd be hard for them to actually find instances where the, where the universities are going against this ruling.
[00:06:40] Shawn: You mentioned legacy admission, so. I do wanna talk a little bit about that, but this is an example I think, where the court, to some degree may be thinking that they're settling what was an ambiguous process or so they're settling that question.
[00:06:54] Um, You know, like the opinion in Dobbs, you know, we're settling and we're sending back to the states [00:07:00] the question of abortion, so we don't have to deal with this question so much. And in fact, they're probably gonna be dealing with nuance of abortion questions ad nauseum and in perpetuity as a result of that.
[00:07:09] And it seems like the reasoning in this case could produce the same type of fruit potential lawsuits, right? Aimed at all types of university programs that are trying to be creative about this.
[00:07:23] Sara: Yeah. And there's already, you know, there's already a legacy lawsuit. I haven't read much about it, but, you know, I think it's an, it's an interesting argument that given the alumni makeup of these major prestigious institutions granting legacy status to children, you know, could be seen as a preference based on race.
[00:07:42] Right.
[00:07:43] Shawn: Well, yeah. And that's the practice of universities giving preference to donors and well known, or the children of donors and well known. Mm-hmm. Wealthy alum. Right. And my first thought was, On reading this decision that how is that not right for Target? And sure enough, right, right. Like there's a [00:08:00] suit mm-hmm.
[00:08:00] Against legacy admission. I do wonder though, if universities will see this as a shot across the bow and perhaps even shut that door prior to this advancing too far. But that would be a big hit for universities, wouldn't it?
[00:08:12] Sara: Yeah. And I think they have a, you know, I mean there's, they have lots of reasons why they want to include students of alum or um, children of alums and donors.
[00:08:22] In their classes, you know, I mean, they have a lot of interests that are financial and you know, networking based and otherwise, so it'll be, it would be hard for them to give up, I'm sure. But you know, on the other hand, lots of universities offer admission to most people who apply, so I think. We saw in California when they got rid of affirmative action, that the enrollment of students of color did go down precipitously and California had to figure out ways to make admissions decisions that comported with the law, but still provided for the opportunity to find diversity.
[00:08:56] And so I think, you know, some of the schools will have to do that, but like [00:09:00] other schools, the main issue is getting enough applications from students of various backgrounds because they admit a whole bunch of them.
[00:09:08] Shawn: More v Harper. So this is the case that seemed like perhaps a sleeper case, but could potentially upend in very dramatic ways United States elections.
[00:09:19] So in this case, the court ruled six to three that the independent legislature theory doesn't hold. And so this theory was that state executives and particularly state courts, Don't have any say in election law and process that that's primarily or solely the, the job of the legislature. So this was an avenue that some republicans, and especially those that were in service of Trump's election, have tried to leverage in advance of the 2024 election.
[00:09:44] It, there were whispers of it in the 2020 election. And had the court ruled in the other direction could have caused some chaos in the election. And maybe the worst case scenario here would be that it would've allowed states to actually determine the outcomes of elections that could run counter to the popular vote.
[00:09:58] So in essence, what that would [00:10:00] look like is overturning the popular vote in that state. Your reaction to this case, I think
[00:10:05] Sara: you know. Everything that I read before the court heard the case suggested that this was, you know, to use a legal term crazy, um, that there was really no basis for this theory and that it would, you know, you know, like you said, it would just upend the way that we do elections and it would, you know, totally nullify state constitutions that allow for judicial review and a normal progression in a common law system.
[00:10:31] You know, like all, everything I read was that this is just like way beyond the pale. And so, you know, the fact that the justices agreed with that is a good thing.
[00:10:40] Shawn: But not all of the justices, I mean, this is where, this is where I'm having a hard time like squaring some of this, because as you said, Almost uniformly for people that understand constitutional law and electoral law, like this has been described as crazy, a crazy theory, right?
[00:10:57] Mm-hmm. And sure could point to, you [00:11:00] know, the actions of perhaps some of like Trump's supporters and maybe even Trump campaign itself in 2020 to try and leverage this theory to overturn that election. But that is being. Crazy people doing crazy things, and yet three justices were still on board with it, and that feels more threatening than this being a settled question.
[00:11:23] Sara: Yeah, I didn't read the dissents. Did you read the dissents? I thought maybe the dissents were, were about standing or something. They
[00:11:31] Shawn: should have dismissed the case as moot, according to Thomas.
[00:11:34] Sara: Right. I mean, I've seen the justices that were in dissent show some interest in that theory. So I think that's why people, and even at the oral argument, I think people thought that there were at least a few justices who were interested in that theory.
[00:11:47] There are a lot of theories that right wing, you know, law professors, uh donors, conservative activists, have put forward that we thought seemed. Really crazy and then [00:12:00] eventually got adopted by the Supreme Court. So I don't think it's necessarily, and don't ask me for an example of that, I don't think it's necessarily the case that we just rest easy because the Supreme Court rejected this independent.
[00:12:11] I think it's possible that conservative activists will continue to write about this and espouse this idea and try to influence the justices. To start considering it as a reasonable thing to do. Mm-hmm. I mean, I guess the, the easy example of that is the Federalist Society and, um, originalism, right? I mean, that was something that people didn't necessarily think anything much of until these forces kept pushing it, pushing it, pushing it.
[00:12:37] Eventually we had one Justice and then two justices, and then. Now, uh, potentially a majority of justices who think that originalism is the way to interpret the Constitution. So, I mean, I don't think it's necessarily gone forever. Right. But I think it's a positive step that the chief justice and those who agreed with him didn't find it convincing.
[00:12:56] Shawn: Mm-hmm. So there's something about the framing of this case that leaves me a [00:13:00] little uneasy. And it's not even the fault of the court. It's more, I suppose, the media and pundits. So this case has been framed as a win for Democrats, and I guess that's primarily because this case was brought by agents, the Republican party.
[00:13:14] But in essence, what that means is the framing is suggesting that the court is in the business of giving wins to Democrats or Republicans. And not impartially interpreting the Constitution. I think that feeds into a narrative that we're hearing about the court, right? That this is a, not just a conservative court, but it's a Republican court.
[00:13:31] In some cases. You're hearing this as a MAGA court, right? Mm-hmm. But there's, so there's two issues that I have here. One is, if we were seeing this through the lens of wins and losses for parties in the United States, then this seems like the bare minimum. Like we said, this theory seemed crazy. So like this being a win for Democrats, it's, that's a.
[00:13:49] Sad statement on so. So that's one. But the other is, it seems to me that we are increasingly becoming comfortable as a society in [00:14:00] seeing the court through this lens as being either pro republican or pro democrat. And I wonder what that does for its legitimacy, which is tanking.
[00:14:10] Sara: Sure. Yeah. I mean, I think that we've long thought that that was the case in the media, you know, that the media had covered, and, and it's, you know, it's not the media's fault that they wanna sell newspapers or get links or, you know, u use their ads or whatever it is, however, they make money, but they always focus on contentious things and they, they like sensationalist things and they like arguments that are going to make people.
[00:14:34] Furious. You know, so they, they're always gonna do that with Supreme Court decisions. And I think there's a lot of social science research that shows that they do that, especially the. More ideological news outlets, but all of them do to make paper sell a little bit more quickly. But I do think that there's a change in the way that we view the Supreme Court.
[00:14:54] And I think the reason is not necessarily the media, although maybe that helps, but it's also the [00:15:00] justices decisions, right? And their, their choices off the bench and the language they're using and their, just in their opinions. I think there's a lot of reasons why this court is becoming more politicized.
[00:15:12] The media is just one of those reasons. Well, I wanna
[00:15:16] Shawn: circle back to that because this is one of the things that I wanted to talk about was not just the language that they're using, but the way that they're choosing to engage on some of these cases. But before we get there, let's talk about one more case.
[00:15:26] So 3 0 3 creative. And this is the case where the court ruled that some artistic private businesses, so people that own a private business, are engaged in producing some type of their own personal art via the business. They do have a first amendment right to choose to not speak or to not be forced to speak.
[00:15:42] So they can, in essence then discriminate despite the fact that they're engaging in the public marketplace, which has, you know, established expectations and rules and also tax incentives. And I think when we talked about this, Earlier in the year, you know, I had said, and I've said, you know, repeatedly, that when it comes to private businesses being able to deny [00:16:00] services to like queer folks, I personally don't wanna force anyone to do something they don't really want to.
[00:16:04] But I guess I do take issue with businesses that are engaging in the public marketplace and leveraging our tax system. Trading in public spaces and then also denying entry to entire groups, uh, of the public. There's, I think, a further wrinkle to this case, and I think this also speaks to what we can perhaps expect from the court, but you could also set me right if this is perhaps a past PR practice that is rearing its head in that there was some reporting prior to the dropping of this decision.
[00:16:32] That, well, we knew that this website didn't exist. So this was, you know, this person had suggested that she wanted to create a website but was afraid to create a website because she might be forced to produce products for people that she didn't particularly agree with their lifestyles. So that's one.
[00:16:48] Mm-hmm. But the other was, That the case hinged on the fact that she had received some letter from some L G B T identified person who had said that they wanted her to [00:17:00] create a website for them, and that was the basis for her complaint. But that this person did not actually exist or did exist, but had never sent a letter and was actually straight.
[00:17:09] Yeah. Granted, I think this reporting came out a day or two before the court dropped its decision, but it does throw a wrinkle into it as to, we just talked about, you know, the dissent in movie Harper, being that the case was moot. Is the case not moot here?
[00:17:23] Sara: Well, I mean, it's weird because it's, yeah, it's a prospective First Amendment case, and the court has heard those in the past.
[00:17:30] So the court has, you know, entertained arguments that certain state laws are going to infringe on free speech before they actually happen. So I, I don't think it's necessarily a problem for the case, but I do think it is yet another example of what I always like to tell you, which is that the court does whatever the heck it wants.
[00:17:47] Mm-hmm. So the court could have chosen not to hear the case due to that. Stance, just as the court decided some of the cases this year that people were, were concerned about on standing [00:18:00] grounds, right? So the court can punt when it wants to, I guess. And, but then it, when it doesn't want to, it, it just, it'll find a way to hear the case, I think is the bottom line.
[00:18:09] I mean, I think it's really, the whole situation is really concerning, right? I mean, who made this request on behalf of this guy who's a real person? Mm-hmm. And it used his real address to create this website. Well, you know, was it a liberal activist? Was it the website designer herself to make it sound like she had a case?
[00:18:29] Was it Alito?
[00:18:31] Shawn: Was it Alito again?
[00:18:34] Sara: Did Alito do this? Um, so yeah, that, I mean, I think, I think that's intriguing, but I don't, I don't necessarily think it matters to the case. I mean, the case itself is, you know, like you, like you said, you struggle a little bit with this difficulty in. Applying public accommodation statutes.
[00:18:52] I think it's a hard case too, but I think that, you know, Sotomayor has the better argument in the dissent. You know that we have public accommodation [00:19:00] statutes so that people have equal access and they have equal dignity. It's not just about, well, they can find another website designer. It's that. You shouldn't be told that you don't get to use the services that everyone else gets to use on the basis of some protected characteristic.
[00:19:14] So, you know, I think when you view it, the way she views it, and I think a lot of what turns on this is whether or not what this woman is doing is, is free speech. You know, so the, the, the court talks about, oh, if we allow this, then they could force artists to do art and speech writers to write speeches.
[00:19:31] And I'm like, could they though? That's a really, I think that's really different than a person who creates a product for anyone in the public who wants to purchase it. Right? Mm-hmm. I mean, I guess a lot of the discussion between the dissent and the majority opinion, you know, really focuses on what, what is she doing and is, you know, so what Sotomayer says is that there's no constitutional right to discriminate.
[00:19:55] There's no constitutionally protected expression of discrimination. Like that is not a [00:20:00] thing. And you know, the court is sort of suggesting that it kind of is, right? That writing a website for a mar for a wedding, Is her personal speech, which I think is kind of crazy. You know, I mean, if I'm a web designer, I don't care what I'm designing, like I'm doing whatever anybody wants me to do.
[00:20:19] I don't even write most of the material, although I think she argued that she would be writing a recap or something.
[00:20:24] Shawn: I mean, I do wonder, let's say I had a business like this and somebody came to me and said, you know, I want to create a recruitment website for right-wing extremists. Right. Would I wanna be forced to do
[00:20:36] Sara: it?
[00:20:37] But I mean, I think what Sotomayor says is that you can be really specific about what you will do and what you won't do as long as you're evenly consistent or as long as you're consistent across all people. Mm-hmm. But there are ways that you can, like you could say that I will not do a website that promotes hate, and as long as that's for everybody, that doesn't matter.
[00:20:55] But what she's trying to say is that she will only not do a wedding website [00:21:00] for specific couples because of their. Her view of their, of their marriage. And that's different than in a sort of an overall, and it's what's interesting to me about this case is that I expected it to be about religion, you know?
[00:21:13] And the court really, the, the majority opinion really doesn't lean on the religious aspect at all. It's all about speech. Mm-hmm. Which I found interesting given that the court has been really sort of motivated by protecting people's religious exercise lately.
[00:21:28] Shawn: This is also another case that I think it opens a door to, I think, more ambiguity and yeah, I that, while I think they've tried to be clear about, you know, private businesses engaging in some personal artistic expression, I don't know that that lands or reads with the public.
[00:21:47] To me, this feels like businesses on the face of it. Are gonna really struggle with, do they have a legal right now to deny service of any kind to certain people. And uh, the other side of [00:22:00] that is, so people like me as a gay person, I will fully admit this. Last week we had to call a plumber and I told them, this is a gay household.
[00:22:10] Is that, is that going? You did, I did. I said, is that going to be a problem for you? Because if it is, I don't even want to go through that. I'll find another plumber.
[00:22:16] Sara: Oh. That makes me so sad. Like that's just not the way this should be going, right? I mean, yeah, a plumber is not engaging in any expressive activity.
[00:22:25] Uh, and she, but could they argue, could they argue that? I don't know. I mean, she claims that she would take, you know, a gay couple on as a client to create a website, just not a marriage one. Why does she get to do that? That just it's, yeah, it just seems unacceptable to me in a country where we want people to feel that they can approach any public company for any service and expect access and dignity, right?
[00:22:51] Mm-hmm. I mean, that's why all these cities and towns have even more specific public accommodation statutes than states and the federal government have that they have [00:23:00] decided that they value people being able to be equally afforded. Any of these publicly available services without regard to any of their protected characteristics.
[00:23:12] Mm-hmm. That just does, it seems ridiculous to me. I also think it's a really bad business, business decision, and I think that will be what will end up stopping people from engaging in this kind of activity. I have friends already who are allies who are saying, Well, whenever I want anybody to do anything like a website, I'm first gonna say I'm a gay couple who wants to be married and wants to have a website and see what they say.
[00:23:36] Mm-hmm. Right, right. And if they say no, then I call a different web designer. It's a bad bus business decision. It's bad for, um, you know, equal rights. It's, it's not the country that we wanna be. And it
[00:23:49] Shawn: does seem to me like this is, this decision sets up. So much lack of clarity and potential conflict over the next handful of years [00:24:00] wherein hopefully they eventually hammer out exactly what they mean.
[00:24:03] Sara: Yeah, I mean, I think it gets really dicey when you start deciding what aspects of people's businesses are. Their own free speech. Mm-hmm. And I mean, there were, you know, in terms of the religious argument, there were tons of religious arguments about not serving blacks too, you know? Mm-hmm. I mean, that was all based on, in interracial marriage.
[00:24:21] All those things are based on what people perceived to be their religious freedom opportunities or whatever. And the court has categorically shut that down and said, no, that's not, that's not acceptable. But they're allowing it here, which I think is. I mean, there's a difference between race and sexual orientation in terms of the law, right?
[00:24:41] Right. The way the court has interpreted the equal protection clause for those groups. But I think Somos descent gave, gave a lot of really good examples of
[00:24:50] Shawn: things I. So this is like, at, at least to my mind, or at least as I can remember, this is the second case in the past year where the dissent has mentioned like, if we open [00:25:00] this door, there's a cascading I, uh, effect here, and how does this not apply then to mm-hmm.
[00:25:06] You know, discrimination and against interracial couples or black folks. What I found really fascinating about that is I almost feel like the weight of that argument just doesn't seem to land the same way. I think it might have 20 years ago.
[00:25:20] Sara: Well. Cause I think there's a lot of people that would be like,
[00:25:22] Shawn: cool.
[00:25:23] Yeah, I think that's, I mean that's kind of where I'm going is I think there are some people that are kinda like, okay. Yeah. Scary times. I know. So let's talk about the newest Justice Kaji Brown Jackson. Have you read any of
[00:25:35] Sara: her dissents? I read the dissent in the, um, affirmative action case.
[00:25:40] Shawn: So there's something about.
[00:25:42] Jackson, her approach is very different from other new justices. So this was her first full term on the bench, and typically justices limit their question time. They speak sparingly. They aren't necessarily writing a lot of, you know, opinions themselves, or they sign on [00:26:00] to, uh, opinions. Jackson's taking a completely different approach.
[00:26:03] So she's used her question time and more in oral arguments. I don't know if you've read that. There were a couple of times where, uh, Roberts was trying to signal to her during oral argument that she was over time. And her dissents are very fiery. They're very, they're, uh, very direct. She often directly calls out the animus that she seems to think is driving some opinions.
[00:26:21] And I, to me, this is epic. But it also makes me wonder if this is just fitting, you know, part of a, a larger narrative about this court, which is that we are just seeing a complete shifting of norms and maybe a entirely new, like a realignment on the court as to what we can expect, both from its decisions, but also just norms and behaviors
[00:26:43] Sara: on the court.
[00:26:44] I think there's a lot of norms that, um, you know, and I think that sort of started with the Trump administration and has bled over into other areas that are less constraining than they used to be. I think, you know, I I, her dissent in the affirmative action case is just a [00:27:00] fantastic history lesson, which she notes court needs.
[00:27:05] Mm-hmm. Which I thought was funny. Yeah. She's definitely very direct and definitely is not pulling any punches, but I think makes some excellence. Points about the intergenerational transmission of inequality. I thought those, those comments that she made, that likened, you know, she, she started out with two individual applicants to U N C and one, you know, was black and one was white.
[00:27:27] And just how she was able to, to, to use the history of our country and all of the decisions that were made throughout the second founding and then into. Jim Crow and all those other redlining and all those things to show that, of course there are effects of these things that need to be considered when we're talking about people's futures.
[00:27:47] It's a, it's a great dissent. Is it different than other freshmen maybe. I mean, she does seem definitely more sure of her herself than than other first term justices. I. Have been, but freshman effects are hard [00:28:00] to discern and we're not exactly sure if they're really real or not, and all those kinds of things.
[00:28:04] You know, there's lots of research on Supreme Court justice's first terms and whether or not they're different, um, from their later terms. And it's, I think I would say the findings are sort of mixed, but she's certainly sure of herself and certainly has a perspective that she wants to share. And I'm, I'm imagining that that's one of the reasons why she was the nominee, right.
[00:28:24] I don't know what that says about the rest of the court or like, I, you had mentioned to me at some point that you felt like the opinions even weren't as meaty as they used to be. I don't know if I really, if I'm seeing that or not. What, what gives you that impression, do you think that they're, that they're just not doing the legal stuff the way they used to do it?
[00:28:43] Shawn: I think it's primarily the language. Well, there's two reasons. One is originalism as a driving legal principle coming from the Supreme Court is new for us. Mm-hmm. And so I haven't wrapped my head around its validity to be completely honest. Mm-hmm. And if I'm, you know, [00:29:00] direct about it, it. Just doesn't hold any water for me.
[00:29:03] There are so many holes in it. Mm-hmm. Or at least holes that could be punched. And this is something else that Jackson has tried to do over the last year is punch a lot of holes in the Yeah. Originalism reasoning. So that's one. The other is, and this is isn't necessarily new, I mean, Scalia maybe was the, uh, torch bearer here of, you know, really divisive language in.
[00:29:24] The reasonings, but it just feels like there is a contingent on the court, you know, Alito and then maybe Thomas, that are really leaning into language that is really ideological and divisive. And to me that overwhelms the legal reasoning or the legal argument. It's really hard to get past that and accept the reasoning when it seems so
[00:29:46] Sara: offensive.
[00:29:47] Yeah. I would add Gorsuch to your list of that too, even though he wrote the opinion in the Iqua case. Hmm. He's also
[00:29:54] Shawn: very haughty.
[00:29:56] Sara: He's very What's, what's a nice way to say that he is [00:30:00] mean or a more legal way? Very like unbending. Very rigid, very. Black and white, very like, you're bad and I'm good kinda thing.
[00:30:09] Mm-hmm. So, yeah, I think, I think you're right. Alito, Thomas Gorsuch, definitely using really inflammatory, ideological, divisive language. But Roberts and Barrett and Kavanaugh don't use that kind of language. No. And the liberals definitely do. Yeah, I mean, I think it's different when you're in descent versus when you're the majority opinion author.
[00:30:31] You know, you expect some vitriol from descents, and I think that's something that we've seen a lot of over time. But I mean, if you notice Jackson's descent in this case, no. Respectfully, pagans descent in 3 0 3. No Sor no, respectfully.
[00:30:47] Shawn: That's very different though, than calling people abortionists.
[00:30:51] Sara: Sure.
[00:30:52] But I mean, Jackson's calling them. A lot of things in her descent too. You know, I always tell you that they [00:31:00] do whatever they want. And I, the more, I mean I, I'm thinking that this is a really half-baked thought, so everybody should take that for what it's worth. But you know, they also did whatever they want during the war in court and we were okay with it cause we liked it, you know, so I think we always have to pay attention to what our own ideological biases are doing to our interpretation of what the court's doing.
[00:31:21] I don't think the court is doing things that are completely. Different than it used to do, although, as you said, it might be doing it with a different tenor. I also think that they're far less interested in upholding precedent than they used to be, although they do when they want to, right? Mm-hmm. So the Voting Rights Act case relies on precedent.
[00:31:39] It's interpretation of section two, but then the affirmative ca action case doesn't, you know, and Dobbs didn't, so the overturning of really old established precedents is maybe new. But even again, in both of those cases, abortion and affirmative action, it's not like they just all of a sudden did it.
[00:31:56] Right. These were projects that were many decades [00:32:00] in the making. And the Warren Court overturned a bunch of precedent too. I'm just saying. Mm-hmm. You know, maybe the court's not that different.
[00:32:08] I'll
[00:32:08] Shawn: concede ideologically, I just stand in opposition. Right. I'll concede that. I just also fee, I don't, I don't know.
[00:32:16] I just don't feel like Ginsburg was writing opinions, majority opinions that were just so
[00:32:22] Sara: vicious with like their tongue out with her out. Yeah. Nana boo boo. We won. Yeah. Yeah. I mean, I think the thing that's maybe the thing that's most different. If we wanted to compare the Roberts Court with the Warren Court is, um, the external stuff, you know, so I know you wanted to talk about ethics.
[00:32:38] I think that maybe is why everything else is perceived as more political because they're out talking more, which we know from some of the research I've been working on, on appearances, they're making more ideological speeches. Our buddy wrote an op-ed in the Wall Street Journal recently, you know, so they're doing [00:33:00] things that do that justices didn't used to do, and then also have this six to three conservative majority who seems to be engaging in a project of conservatism, which, you know, is sort of a wishlist for right-wing conservatives over time.
[00:33:19] And so maybe that's why everything feels different. You wanna talk about ethics? Yeah, let's
[00:33:23] Shawn: talk about it. Yeah. So Supreme Court and Ethics, as you mentioned, just continuing saga. Like earlier this year, we had the story that we've talked about in a previous podcast, the ProPublica story about Justice Thomas.
[00:33:36] And then since then, political has uncovered the fact that Gorsuch sold some property to someone who had business before the court. Okay. But he then just didn't disclose the name of the buyer on his financial disclosure form. And then ProPublica recently reported that Alito accepted flights and lodging, food, et cetera, a trip to Alaska that was financed by someone who had business before the court and then didn't disclose that as well.
[00:33:58] So where are you at with all of [00:34:00] this? Like it's almost becoming
[00:34:01] Sara: routine. Yeah, I think so much of this is all sort of mixed up with itself. So like we, you know, we put the court on a pedestal. We think they decide cases based on the law and the constitution. We have all these formalistic, beautiful robes and marble bases or whatever.
[00:34:16] I don't know what's the plural of days. And the justices also buy into that somehow, I think, you know, and that's what they talk about all the time, right? We're not ideological. We're not Obama judges and Trump judges. We're not, you know, we're just calling balls and strikes, all these kinds of things. And so I think they lead themselves to believe that they're above the fray in a way that other politicians and employees and whatever are not.
[00:34:42] And so they think they can take a trip and not be influenced by it if the person who financed the trip. Somehow related to a case that comes before them because they think that they are better than everyone else. And I feel like this all feeds into itself. You know, so like, of course we should have ethics rules [00:35:00] that apply to the Supreme Court.
[00:35:01] My husband is a facilities manager for a, I don't know, the company does. Like, they, they administer healthcare benefits for dentists. Okay. So that, you know, random, right? Mm-hmm. He is forbidden from taking any gifts from any potential contractor that might wanna do like the HVAC, or might wanna do the cleaning contract for the building.
[00:35:24] He can't even take Brewer tickets. Hmm. So he has that rule. I am a state employee. I cannot take gifts from students. That is illegal for me to do. And these guys think that it's no big deal that they just happen to take the last seat on a plane to Alaska. Like that's, that's amazing to me. And it, it has to be born of some sort of feeling, you know, maybe that they don't make enough money, maybe that they have these really important jobs and they're not compensated, maybe, you know, but the feeling that they're, they couldn't possibly, no one could possibly question their, you know, [00:36:00] unbiased ness or whatever.
[00:36:01] Shawn: So follow my thread here because this is what I'm really struggling with, is if we buy the argument that they're making, which is, uh, you know, essentially in line with what you're saying, that to them, they're just completely flummoxed by the idea that they could somehow be in influenced as a result of this.
[00:36:19] Mm-hmm. So let's say they truly believe this, that scares the crap outta me because to the rest of us, it's so obvious. How right this could potentially influence a justice or at least give the appearance of influencing a justice.
[00:36:35] Sara: Well, and doesn't that maybe suggest that this happens all the time and we don't know about it?
[00:36:40] Shawn: Oh, yeah. This has to be the tip of an iceberg,
[00:36:42] Sara: right? That they've, they've lived their lives this way, right? Yeah. And so they're like, why is everybody making a big deal outta this? Of course, I sold my house to that guy. Like, he's my buddy. Or like Thomas, you know, he's a good friend. Like of course he takes me to his Hagrid cabin or whatever.
[00:36:57] It's
[00:36:57] Shawn: yeah. Ugh. But, so the, the [00:37:00] final point though, and this is my biggest fear, is if they believe all of this, and it's so clearly obvious to the rest of us why there's at least an appearance. Of partiality or influence. These people are making massive decisions that influence people on very personal, in very personal ways and, and in their personal lives.
[00:37:21] Yeah. And they can't see this. That's
[00:37:23] Sara: scary. Yeah. Yeah. I agree. That's why I think we need term limits. This
[00:37:29] Shawn: is another reason I think that this is political, is there is a lot of talk, at least within the Democratic Party and primarily in the Senate. That there needs to be some type of binding ethics for the Supreme Court and that we need to revisit things like term limits, right?
[00:37:45] Yeah. For, for the justices. And so Roberts was invited to testify before the Senate. He declined respectfully arguing that that would violate separation of powers. And so that is left then to the political [00:38:00] process within Congress to address, and I think we all know that. It won't go anywhere because this will be politicized and that Republicans won't support it.
[00:38:09] Ah,
[00:38:10] Sara: Congress. Yeah. I know. I mean, and I think that's, I think that's true of some of the decisions that the court is making as well. And you know, I mean, we briefly. Talked about, maybe we didn't talk about it. Maybe it was just when we were just chatting about administrative agency difference and those kinds of things.
[00:38:26] Um, you know, their, their argument is always, well, Congress didn't say this, so we can't just assume that they would do this. And so you have to wait for Congress. You know, I guess it, you know, applies to the school loans case, right? Mm-hmm. But Congress won't act on that stuff, you know, what makes them think that Congress is gonna act on these things?
[00:38:43] Uh, and so I think waiting for Congress, you're right, it's a fool's errand. It's
[00:38:46] Shawn: also, to me, this is all highlighting how scary it is when we're so partisan that, you know, as opposed to friction between the executive and Congress, or friction between Congress and [00:39:00] the court by virtue of separate branches, when it becomes so partisan and one.
[00:39:05] Party can either do whatever it wants or block whatever it wants, how much power that gives. Right. So, you know, my fear is that part of what's driving this, the conservative majority in Supreme Court, is they know that they're essentially un untethered and that there is no accountability down the road for them.
[00:39:25] Sara: Yeah, I mean, I think it is, it's, it's upsetting that we can't recognize that there are some things that just need to be done for the good of the country, right? I mean, everyone should agree that we need a Supreme Court that at least avoids the appearance of bias, right? And that should have some rules that ensure that they won't appear, at least to be unduly biased toward one party or the other.
[00:39:48] And, and it's, you know, it's upsetting that we can't. Agree on something that simple and that seemingly obvious, right? Mm-hmm. So
[00:39:57] Shawn: how are you feeling about the court
[00:39:58] Sara: these days? Yeah, [00:40:00] I don't really like that institution right now. No, I mean, I've always been the one who's been like, oh, we can't mess around with the court.
[00:40:10] That would damage legitimacy. All this stuff, you know, and I, I think it's a combination of a bunch of things, and part of it is what you're saying about, you know, this partisanship and polarization. Part of it to me is this complete and utter lack of representation in even the elected branches right now because of gerrymandering and the senates.
[00:40:28] Equal representation rules. And then you know, the culmination of having a president who wasn't elected by the majority of people and a Senate who represents only a small proportion of the people pick the Supreme Court, which then is lifetime tenured and you know, completely inaccessible to the people.
[00:40:46] Like there's just something really wrong with that whole system. The problem is nothing will, I just don't know when anything will be done. You know? I mean, Congress holds hearings, Biden creates a commission. You know, nothing seems to. To happen. And so, yeah, that, that can [00:41:00] be very frustrating. I think people need to vote.
[00:41:05] Shawn: What's something interesting you've been reading, watching, listening to or doing lately? Well, I
[00:41:09] Sara: told you I've been working too much. Mm-hmm. But I do love to read novels and as you know, I'm looking for a way to monetize that love. But I have not succeed yet. But I just binged the um, AAR series, the Accord, accord of Thorns and Roses by Sarah Moss.
[00:41:26] And it was
[00:41:26] Shawn: so much fun. I have no idea
[00:41:28] Sara: what it is. It's novels, fantasy novel. Um, I would never have guessed that, that I like fantasy novels. Yeah, yeah, yeah, I do. And I, I didn't, I didn't guess it either, um, until I read Harry Potter. Funny enough, um, many years ago, 27 years ago, whenever it was coming out.
[00:41:46] And then I loved it and I was like, oh my God, I love fantasy. So then I do dabble in fantasy. And so this series has gotten a lot of attention on, like the book talk and stuff, you know, the, the kids are talking about it. And so I decided to read it and it was just [00:42:00] absolutely fun. And what's one of the fun things about the books?
[00:42:03] I think, I mean, they're not. They're not concerned with L G B T Q issues, but they have characters that are just, you know, they just happen to be gay and it's just worked into the story and they're, you know, they're these really powerful fairies and, uh, I loved that, but I was just like, they're just talking about this fairy, this high, high Lord's lover, and he happened to be a man and nobody cared.
[00:42:26] I was like, oh, how fun. So yeah, that's what I've been, I've been reading a lot.
[00:42:30] Shawn: You've always been reading a lot. I'm always like, when you say like, you're super, super busy and you're overwhelmed and then you've read nine books. I'm like, uh, I think we might have an answer here.
[00:42:40] Sara: I mean, yeah, I probably do spend time doing that, that I should be spending doing other things.
[00:42:46] But, um, it's mostly, I mostly read when I, at night, when I go to bed. Mm-hmm. So instead of watching tv, I usually read, although I've watched a couple of really good TV shows too. Ooh. Like what? So I'm in love with Ted Lasso. Tell me you've watched. The first [00:43:00] season. You didn't love it? I did. Oh, okay. Good. Yeah, I just finished that.
[00:43:04] That was perfect. Daisy Jones and the six. Yeah.
[00:43:08] Shawn: That's a good, that's a good sh Did you read the book?
[00:43:10] Sara: I did, and I loved it. Yeah. I read it again after I watched the show because I loved the book. I loved the show so much. I'm also starting The Americans. Have you seen that? Mm-hmm. Kind of weird. Little bit scary.
[00:43:21] Shawn: Wait, that's, that's older though, right?
[00:43:23] Sara: It is. I, I never knew about it and one of my colleagues was like, are you kidding me? You haven't watched the Americans. It's good. It
[00:43:30] Shawn: is good. Have you heard of the Diplomat? I
[00:43:32] Sara: did watch that. That was fun. Yeah. Yeah. That's fun.
[00:43:35] Shawn: Yeah. Carrie Russell's great. Yeah, she's great.
[00:43:38] You know what I just started watching that is also an older show, uh, is Nashville. Oh
[00:43:42] Sara: yeah. I've heard people talk about that.
[00:43:44] Shawn: It's like, it's such a soap opera. You love it. I
[00:43:48] Sara: do love it though. It's so, it's about a country singer, right? And her mom or something? Well, it's
[00:43:52] Shawn: an, it's like a queen of country, so like a, a mature country singer.
[00:43:55] And then so it's like her world and then how it intersects with [00:44:00] like an up and coming young country singer. And, and their world. But it's such, I mean, so this person's mom killed this person, but then committed suicide and framed this person. It's a good show
[00:44:13] Sara: though. It's fun. So I was at, my mom's just visiting for the fourth and um, everybody had gone golfing and mom and I stayed home and she, I was like, let's go out on the deck.
[00:44:21] It's so nice out. And she's like, oh, I have to wash my soap opera first. So she still watches soap opera number one, which is crazy to me. Um, but then like, you know, you, you get drawn in. And then I'm like, well, who's that? Yeah. Well, how, why did he kiss him? Like, what did, and she's like, oh my God, get out. No
[00:44:41] Shawn: questions.
[00:44:42] Yeah, there's something addictive about it.
[00:44:44] Sara: I know it's crazy, but it's fun.
[00:44:46] Shawn: Dr. Benes as always, thanks for being here. Anytime Shawn, go with God,
[00:44:58] there's something [00:45:00] happening with the conservative, largely Christian movement in the United States in pursuit of reshaping the legal system and by extension, the civil and social society we live in and have lived in for 250 plus years. Wherein they craft crisis and manufacture scenarios and injured parties.
[00:45:19] In some cases, people and injuries that don't even exist, as was the case in 3 0 3 Creative in order to fundamentally alter the country we live in, the rules we live by. It's one thing to exploit actual injury to this end. But to manufacture entire scenarios and people out of whole cloth that don't even exist to make substantial bewildering and oppressive changes to our society is dangerous and frightening.
[00:45:46] Following the Supreme Court's decision in 3 0 3 Creative, I started thinking seriously about the options available to my husband and I to leave the United States if the environment for queer folks continues to worsen here. And it made [00:46:00] me wonder if other people were thinking the same. So I did a little bit of research examining the number of Google searches for safe countries for LGBTQ plus people following the Supreme Court's decision that allows for some private businesses to discriminate against lgbtq plus people.
[00:46:17] And I posted a chart on deep dives Instagram that shows a massive spike in searches in the moments after the decision dropped. It remains to be seen how and if people follow through and we can't ignore the fact that some people just don't have the option to leave the hellscape that's being built around them.
[00:46:34] It's a sad state of American affairs if people are giving up or have given up on our foundational principles. To that end, I wanna let you know that we, at Deep Dive, we'll be digging into this potential phenomenon. People considering leaving the United States or people actually leaving the United States and where are they going?
[00:46:53] And we plan to bring you an interesting, limited deep dive series related to this in the near future. So stay tuned. [00:47:00] In the meantime, check back soon for another episode of Deep Dive Chat soon folks.