Transcription:

Rich Ford: From Stanford University and SiriusXM, this is Stanford Legal. I’m Rich Ford.

Joe Bankman: And I’m Joe Bankman.

Ford: Joe, today we’re talking with our colleague, Pam Karlan, about the recent decisions from the Supreme Court, some very momentous and very surprising decisions this term.

Bankman: And as our longtime listeners know, Rich, Pam was one of the original co-hosts of this show, and she is not only a leading expert on constitutional law. She’s been working in some of these areas recently with the Biden administration, and she’s argued many times before the Supreme Court. So, you couldn’t get a better bird’s eye view, so to speak, of what’s been happening and how to make sense of it all. Pam, to start with, I want to welcome you back to the show. Pam and I started Stanford Legal together, and I think Rich and I would both cede the mantle as the premier host of the show to you, Pam. So it’s good to have you back.

Pam Karlan: Oh, thanks, very much. It’s great to be back.

Ford: Pam, we’ve experienced what one might describe as a kind of blockbuster term for the Supreme Court, lots of surprising and momentous decisions made. And as one of the nation’s leading experts on the Supreme Court and constitutional law generally, we’d just like to know from you, what do you think some of the most important cases are? Could you just start with one that you think is the most important?

Karlan: Sure. So, this was just, as you say, an absolutely momentous term at the Supreme Court. We saw the Conservatives really taking over, and moving the law really quite quickly in a number of directions. So the obvious one to start with, I think, is the Dobbs case, which is the case about Mississippi’s ban on abortion after 15 weeks. One of the interesting things about the case is, when the state passed its statute, Justice Ginsburg was still on the Supreme Court. When the state came up to the Supreme Court to ask the court for review, the way it initially presented the question was just, can you have a retreat from the position that the Supreme Court had taken, in Roe against Wade and in Planned Parenthood against Casey.

And the other abortion cases, which was that a state couldn’t ban abortion prior to viability, which is around 21, 22, 23 weeks, somewhere in there. Could a state push it back to 15 weeks? But once Justice Ginsburg died and was replaced by Justice Barrett on the Supreme Court the state changed its position entirely and started pushing for, let’s just get rid of Roe against Wade altogether. And as probably all of our listeners already know, that’s what the Supreme Court did.

Bankman: Pam, what is the practical significance on the ground of cases like Dobbs? Getting rid of Roe is momentous as a matter of constitutional law, and momentous in areas maybe unrelated, or related but not the same as abortion. But in terms of the ability to get an abortion, can you give us on the ground, how it was in a state like Mississippi, and what it’s going to be like now?

Karlan: So there are a couple of different things I think going on in your question, one is as just a legal matter, what’s the change in the landscape. And about half the states in the country now will make all or most, or a fair percentage of abortions illegal in those states. Which means that clinics in those states are going to shut down, which requires women in those states who want to get abortions to travel. Or as some of our listeners may know, to use what’s called a medical abortion rather than a surgical abortion. A surgical abortion is the old style of abortion, it involved things like vacuum aspiration, in which the fetus was removed from the woman’s uterus. Medical abortions involved taking pills, mifepristone is probably the best known example of that.

And so the practical effect on abortions itself, is it’s going to be much more difficult for women in many states to get abortions. But it extends beyond that because the way the laws are written, it’s not always clear what else will be affected. And so, for example, there are already examples of women who are experiencing what’s called an ectopic pregnancy. That’s a pregnancy where the embryo implants in the fallopian tube, rather than in the uterus. Those pregnancies can never be brought to term, and they’re really quite dangerous for the woman. But when women go to hospitals to have that embryo removed, some doctors are now refusing to engage in that procedure, because they’re worried that they will be found to have violated the abortion statute.

So the effect of the law is broader than simply to just forbid abortions. And it raises a huge number of issues that are going to come up when states, for example, Missouri at one point was considering a law that would make it a crime to travel out of state for an abortion. And so that raises the question of, what happens if a woman from Missouri goes to a state where abortion is entirely legal, has an abortion, and then returns to Missouri. Could Missouri make that a crime or does that violate other provisions of the federal constitution, beyond the Liberty provision that was an issue in Roe, and Casey, and in Dobbs.

Ford: And, Pam, I’ve also heard that as a consequence of this decision, women who simply have miscarriages may be investigated, that very often a miscarriage looks like an abortion, or it’s hard to tell. Have you heard anything about these kinds of consequences going forward?

Karlan: Yeah. I mean, another term for a miscarriage is a spontaneous abortion. And so, when a woman has a miscarriage, sometimes the miscarriage is complete, her body expels the embryo or the fetus entirely, and there’s nothing left to do. But in a lot of cases, the woman will have a miscarriage, and there are still parts of the embryo or the fetus that need to be removed. And the technique for doing that is identical to the technique for a surgical abortion. And so, if a woman presents at a hospital in a state that’s made all abortions illegal, with an incomplete miscarriage, if you will, she might be worried about being investigated, the doctors who perform the procedure might be worried about being investigated. That’s a real fear for people in a number of states, where they have really draconian abortion bans now.

Ford: So, for 50 years, we haven’t had to worry about these kinds of issues, but now we’re in this brave new landscape, where all sorts of regulations that haven’t been tested for 50 years are back and in force. And the Dobbs decision has other potential consequences for rights, beyond the right to reproductive freedom, doesn’t it? Can you tell us a little bit about those?

Karlan: The right to an abortion, the federal constitutional protection for a woman’s decision, whether to terminate a pregnancy, was located in what’s called the Liberty clause of the 14th Amendment which says that a state can’t deny any person within its jurisdiction. Liberty, without due process of law. And the doctrine that underlay Roe was called substantive due process, this was a Liberty interest that was so important, so fundamental, that a woman’s right to terminate a pregnancy prior to viability could not be banned by the state. There are a number of other rights that are located in that same Liberty clause, the right, for example, to same sex sexual intimacy, which the Supreme Court protected in the Lawrence decision. The right to marriage, which the Supreme Court protected in the Loving decision, which was about the right of interracial couples to marry. And in the Obergefell decision, which was about the right of same sex couples to marry. The right of contraception from Griswold against Connecticut. Even things like the right of parents to decide whether to send their children to parochial schools or to public schools.

All of those rights are located in the Liberty clause of the 14th Amendment. And what the Supreme Court said in Dobbs, it said two things in Dobbs. The first thing it said was, in trying to figure out whether you have a Liberty right that’s so fundamental, that the state can’t just regulate it for pretty much any reason, we look at history and we ask how established was this right historically. And Justice Alito’s opinion for the court says, well, there was no real right to an abortion in 1868, when the 14th Amendment, where the Liberty clause is located, was ratified. And there’s never traditionally been a right to an abortion. Now there’s a fair amount of disagreement over the history that Justice Alito laid out. But leaving that aside for a moment, so he says, that’s the analysis you do, well, if you do that analysis, there was no right to interracial marriage in 1868, there was no right to same sex marriage in 1868. It’s not clear that it was some right to contraception in 1868.

Now he says, in his opinion, we’re just deciding about abortion here. So, it’s reminiscent a little bit of the Supreme Court’s decision in Bush against Court where they said, don’t try this at home folks, this decision is good for this and not for anything else. But then Justice Thomas, who’s one of the justices in the majority, goes on to write a concurrence and says, “Don’t believe what Justice Alito is saying here. I think we should revisit same sex marriage. I think we should revisit contraception.” Now, interestingly enough, he does not say we should revisit interracial marriage, which he happens to be in an interracial marriage, so it’s interesting exclusion there. But the question of, what else gets addressed here, and what lower courts are likely to do, what state legislatures are likely to do. Supreme Court has announced open season on substantive due process, and I think we’re going to see a number of places where states take up that invitation.

Bankman: I know, Pam, there’s movements in a lot of states, to have constitutional amendments, to constitutionalized as it were the right to abortion, to make it harder for a new legislature to eliminate. That’s fertile ground for the American political system now, do you have any prediction? This is going a little bit afar from you as a constitutional expert. One of the interesting things is a lot of polls, show that most Americans favor some sort of right to an abortion for women. Do you have any prediction of what’s going to happen as this hits the American political system?

Karlan: So as you say, Joe, I’m not really an expert in that question. I will say a couple of things about this, that we know from both constitutional law generally, and from public choice theory, which you are more of an expert at even, certainly than I. But you can have a very large majority of people who have a particular view, but if that view isn’t at the top of their list, they will be less powerful in the political system than those who are single issue voters. And I think one place, and we can turn to this in a moment, if you want, where we’ve seen this is gun control. A vast majority of Americans are in favor of various restrictions on carrying and discharging firearms of various kinds. And yet most states do not have strong firearms laws, because the voters who believe in gun rights are often single-issue voters on gun rights.

They care passionately about that. And they decide whether to support or oppose a candidate on those grounds. Whereas, for most of the people who are in favor of regulation of guns, that’s not the top issue on their list. Now over the last generation, when it came to abortion rights, anti-abortion voters, pro-life voters were much more likely to be single issue voters on this issue than voters who supported abortion. And one of the interesting, and that’s because voters who supported abortion, they knew that the Supreme Court was their backstop. That the Supreme Court, while it might chip away at the right to an abortion, was not going to get rid of it all together. But now that political landscape has changed. So, what we now have is a political landscape in which you might have a lot of single issue voters, on both sides of the abortion question.

And now the abortion question is an issue in every election in the United States, in a way that it really wasn’t before. So I think as somebody who’s not expert in this, I would just say, all bets are off on how we see this play out, because we just have… The Supreme Court has now said, and Justice Kavanaugh, and his opinion was very explicit about this. We’re sending this back to the states, for the people to decide. And once you tell the people, they’ve got to decide about this, there may turn out to be a lot more pro-choice voters, who are single issue voters on this. They say, “Look, I agree with your position on environmental issues. I agree with your position on tax issues. Or I’m voting on the school board, and I agree on your position on whether we should have this curriculum or that curriculum, but I can’t vote for you because you won’t say that you’re in favor of abortion rights.” And that may be a very different landscape.

Ford: Pam, you mentioned that the Dobbs case might have implications for things like same sex marriage. And the House has just passed legislation to preserve same sex marriage rights, not clear what it’s likelihood of passage in the Senate is. But how confident are you as a general matter, that Congress can step in to protect the rights that the Supreme Court has now said, the Liberty clause may no longer protect. Is Congress a backstop?

Karlan: So on some of these issues, Congress is a backstop. And the reason I’d say on some of the issues is, that one of the powers that Congress has, the Supreme Court has interpreted as extraordinarily broad, is the commerce clause power, which is Congress’s ability to regulate commerce, interstate commerce, movement of goods and services across state lines. And so, for example, if Congress were to pass a law that said, you can buy mifepristone in any state in the country, that would be a use of Congress’s commerce clause power.

And it would preempt state laws to the contrary. That is, if Congress says that a particular drug can be sold in the United States, a state can’t ban that drug. So in general, that would be a way that Congress would have a lot of authority. But one of the things about marriage for example, is it’s not directly a commercial activity, I mean, weddings themselves are, but marriage isn’t. And if you had a Supreme Court that was inclined very strongly, to support state’s bans on same sex marriage, that court could find ways of saying that Congress doesn’t have the power to override a state’s ban. So, I mean, one of the things just to take into account about this Supreme Court is, this Supreme Court is very assertive of its powers, relative to every other part of the federal government.

Ford: We’ll be back with more from Pam Karlan, next here on Stanford Legal, on SiriusXM Business Radio 132.

Bankman: Welcome back to Stanford Legal. We’re talking with our colleague, Pam Karlan, about two or more other recent Supreme Court decisions, about the EPA and what government agencies can and cannot do, and whether it’s okay to lead your students into prayer on the 50-yard line.

Ford: So, Pam, Dobbs wasn’t the only momentous case that the supreme court decided this term. Another important case involved environmental protection on West Virginia versus EPA. And I wonder if you could tell us about the significance of that case.

Karlan: Sure. So this is a complicated environmental law case, that involved the question of whether the EPA could regulate greenhouse gases in a particular way. And the reason this is super important, is obviously climate change. The first thing to note about the case is, this is a case the supreme court could have dodged, because the regulations that were an issue here actually aren’t even in effect. It started with the Obama administration, which adopted a set of regulations that were going to try to reduce the carbon pollution that came from power plants, by moving power plants away from using coal to generate electricity, towards things like wind farms or natural gas, that just aren’t likely to cause as much climate change. The EPA, the agency that was involved here, used section 7411 of the Clean Air Act, which gave it the power to determine the best system of emission reduction for buildings that emit air pollutants.

And what the Obama administration was doing, if I understand it correctly was saying, well, we can use this to regulate power plants, and not just buildings that are emitting pollution themselves directly. And so, when the case went up to the Supreme Court, the Supreme Court 6-3 with the usual 6-3 alignment that we’re seeing right now, that is the Republican appointed justices in the majority, and the justices appointed by Democrats in the minority, said that the EPA had exceeded its authority here, because of something the Supreme Court refers to as the major questions doctrine.

And the major questions doctrine, again, if I understand this correctly, because I’m not an administrative law person, says if something’s a huge, big question, and climate change, and power plants, are a huge, big question, we want to see it really clearly that Congress has given the agency the authority to deal with this. We don’t want the agency to use a statute creatively, if you will, to address an issue like this. And so they’ve tossed the issue essentially back to Congress, about whether Congress wants to empower the EPA to regulate the source that power plants use to generate electricity.

Ford: And Pam, this case has potential implications that go, even beyond climate changes as momentous as that is, because it’s restricting the ability of an administrative agency to use discretion and throwing it back to Congress. It could apply to a lot of what administrative agencies do, then we’re going to another act of Congress in order to take any action.

Karlan: Absolutely, absolutely. I mean, especially there are a whole lot of the areas of modern American life where we really expect the agencies to fill in the details in a broad congressional scheme. I mean, do members of Congress have the expertise that the EPA has, in figuring out the best ways to reduce pollution? Of course, they don’t. What about drugs and regulation of pharmaceuticals? What about regulation of the internet? What about even things like anti-discrimination laws, that are enforced by various agencies like the EEOC, or the Equal Employment Opportunity Commission?

So, depending on what the supreme court now wants to define as a major question, that takes a lot of the power away from agencies, and takes that power away from the executive branch, turns it back towards Congress at a time when the Supreme Court is well aware that Congress is quite dysfunctional. Which means Congress isn’t going to pass a law that deals with climate change. We know that, we’ve just seen that, that Congress isn’t going to deal with climate change. So it really is a way of disempowering, as you say, the administrative state, but disempowering the federal government from dealing with absolutely critical problems in American life.

Bankman: All these decisions that our agency would be doing, now require an act of Congress, which is almost rarer than an admitted act of God, to deal with. The other day, to take one small example from a whole different realm, the SEC, I think two days ago, issued some regulations governing cryptocurrency or took a stand, and an appointee at a competing agency, that’s jockeying for a control over cryptocurrency said, “Well, the SEC’s action is now unconstitutional.” This is a major question, and we’ll have to go to Congress to decide who can issue this regulation. So here’s an example within a very short time in a whole other field, where every administrative action now is really up for grabs.

Karlan: Yeah. I mean, there are lots of things that could be defined as major questions, if you’re inclined to go in that direction, absolutely.

Ford: Pam, another big case that the Supreme Court has decided involved religious liberty. And also, the liberty of other non-religious people, to be free of what we might call coercion, or at least the influence with respect to religion. Could you tell us a little bit about that case? This coach praying on the 50 yard line, and why the supreme court took that up?

Karlan: So Joe mentions the act of God, and the next thing we do we’re talking about God. So this is a case called Kennedy against Bremerton School District. And Kennedy is a football coach, and he wanted to pray on the 50 yard line after the games. And he invited members of his team and members of the other team to pray with him. And the question was whether this violated… I guess I should put it this way, whether the school board’s decision not to allow him to do this violated Kennedy’s religious liberty, that is his free exercise of religion. Because the first amendment has two provisions, that deal very directly with religion. And one says that Congress shall make no law, and that’s now been interpreted to mean, also no other government shall make any law, regarding the establishment of religion, or prohibiting the free exercise thereof.

And you can see there’s a little bit of tension between these two provisions, but there’s some play in the joints as well. So, Kennedy said you’re violating my religious liberty by telling me I can’t pray on the 50 yard line after the game. And the way Kennedy’s lawyers presented the case to the Supreme Court was, should a public employee have the right to engage in private devotional prayer? And the answer to that question is, obviously yes, but the devil here, if you will, we’re talking about God and now we’re talking about the devil. But the devil a little bit is in the details, which is if we were talking about a coach who simply crossed himself, and prayed for the health of his team before the game. Or looked up to heaven and said, thank you God, after the game for bringing my players through healthy, or bringing my players through victorious.

I don’t think anybody would argue, that the school district could ban him from doing that. But the question here, the thing that made this difficult is to recognize, we are in a country with people of very diverse religious and faith beliefs. Ranging from at one end people whose every act is infused with their religious beliefs, to people who are completely atheistic and anti-religious in various ways.

And part of the difficulty of a case like Kennedy’s is, if you did the question the Supreme Court said it was answering, it’s not really a problem, but if you look at what Kennedy was doing, it’s a big problem. Because if you are a student, if you’re a vulnerable student on a team, and you think to yourself, if I don’t pray with the coach, am I going to get playing time, which will lead to perhaps a scholarship to college, or will help me get admitted to college showing that I’m well rounded, or the like. You may feel compelled to engage in this prayer, and what the Supreme Court basically said is, snap out of it, that’s not our problem, that’s your problem, if you feel that way. And so, what the Supreme Court has done, is to give much wider sway to people in public life, expressing their religious beliefs, even in ways that may have a really strong impact on vulnerable people around them.

And it’s part and parcel of the Supreme Court in case after case, viewing religious rights as more important in various ways than anti-discrimination rights. And I think we’re going to see this again, fearless prediction moment, next term in the Supreme Court in the 303 Creative case, which is about the right of a website designer to refuse to provide websites to same-sex couples. Even though under Colorado’s anti-discrimination law, you’re not allowed to discriminate on the basis of sexual orientation. And the Supreme Court really has in the contraceptive mandate case, in the foster family adoption case last year, the Supreme Court has privileged religious exercise, over other rights that are also embodied in the constitution.

Ford: Thanks to Pam Karlan for talking to us today about the recent cases in the Supreme Court. I’m Rich Ford for Joe Bankman, and this is Stanford Legal.