JUANA SUMMERS, HOST:
After releasing several blockbuster opinions this week, the Supreme Court has packed up for the summer. This term gave us major decisions where the current court's conservative supermajority effectively further expanded the powers of the U.S. president. It also rejected some of President Trump's signature policies and actions. Let's recap that term with NPR legal affairs correspondent Nina Totenberg, as well as legal expert Sarah Isgur of SCOTUSblog and Melissa Murray of NYU Law School. Hi to all of you.
NINA TOTENBERG, BYLINE: Hi.
SARAH ISGUR: Hello.
MELISSA MURRAY: Hi.
SUMMERS: Nina, I want to start with you if we can. Can you briefly remind us of some of the big highlights of this term?
TOTENBERG: Well, the Supreme Court ended the term with cataclysmic decisions that included decisions on birthright citizenship. It got rid of, for all practical purposes, what's left of the Voting Rights Act. It dramatically altered the structure of regulatory agencies. It eliminated temporary protective status for immigrants legally in the U.S. or at least allowed the president to do it without any court review, and much more.
SUMMERS: Yeah. There's a lot to talk about. I mean, you've covered the court for so many years. So I do want to know - was there anything that surprised you?
TOTENBERG: I really was kind of surprised by the closeness of the birthright citizenship case because no judge in a century has ruled that birthright citizenship is unconstitutional, and for all practical purposes, a 5 to 4 vote. All the people that I talked to when I was doing my work yesterday said the thing that the president won from this is that - even though he technically lost on the issue - what he won was bringing a previously fringe theory into the mainstream.
SUMMERS: Sarah Isgur, I want to bring you in here, too. Do you agree with that take?
ISGUR: No. So the question was whether Donald Trump's executive order changing birthright citizenship would go into effect, and that was a 6-3 decision against President Trump. The question of if someone's here on a tourist visa for less than a month, has no intention of staying, has a child and has - you know, leaves with that child after a month, could Congress pass a law saying that they don't automatically get birthright citizenship? Maybe. And there were four votes for that maybe. I don't think that is nearly the massive landslide of legal thinking that others are saying it is.
SUMMERS: Melissa Murray, how about you?
MURRAY: So I think Sarah may overstate the case here. I, too, was surprised by the closeness of the decision. I was very surprised by Justice Kavanaugh writing a separate writing that was both a concurrence and a dissent in which he effectively joined the dissenters in the view that birthright citizenship can be rescinded, and he then provided a roadmap for Congress to effectively do that. And I think Nina is exactly right - this was a bedrock principle, and now it is unsettled and uncertain.
SUMMERS: As I've been following some of the major decisions in this term, I noticed that a number of them had to do with issues of race, like birthright citizenship, as we were just discussing. There was, of course, redistricting and temporary protected status. Melissa, I want to start with you here, but everyone else, feel free to chime in. How much of a role did race play in this term? How much of a focus was it?
MURRAY: It's a good question. Race is something that this court only sees when it wants to see it. So in the voting rights cases, for example, Justice Alito effectively wrote that the possibility of drawing districts where minorities have the opportunity to elect a candidate of their choice - you can't do that. Like, to even consider race in that circumstance would be unlawful. And, you know, I think what he misses there in sort of prioritizing the authority of states to draw districts for partisan advantage is the way in which race and partisan advantage often run together, particularly in the South where African American voters are often Democrats. And again, you saw Justice Alito in the TPS case refusing to see race in the president's invective against Haitian nationals. I mean, there was a lot of racial invective here, and this court refused to take account of it, something that Justice Kagan noted in her dissent.
SUMMERS: Sarah, I'd like to bring you in here if you have thoughts.
ISGUR: I think there's an interesting and long-running debate within the Supreme Court about exactly what the purpose of the 14th Amendment was, and I think you're seeing that play out in a lot of these cases. Was the 14th Amendment simply a reset, a refounding of America to stop racial discrimination moving forward? Or was the 14th Amendment meant to be remedial - not just to stop racial discrimination, but to actually allow for racial preferences or help on the basis of race moving forward? And that clash of visions for the 14th Amendment isn't going to be resolved in any given case. It's going to be resolved over the course of years and over the course of history.
SUMMERS: Nina, there are some other opinions I want to ask you about. We saw the court move to expand the president's power by giving him the ability to fire anyone he wants to at independent agencies while, at the same time, the court said that the Fed was different. How should we think about this?
TOTENBERG: Because the court basically all but directed the lower court to say leave Lisa Cook in place. You can't fuss with the Fed.
SUMMERS: And that's the Fed governor that the president...
TOTENBERG: Yeah.
SUMMERS: ...Tried to fire.
TOTENBERG: Right. You can't fire somebody from the Federal Reserve Board. That's going too far. What isn't going too far, however, is that you can fire all the heads of so-called independent agencies. And it's not just the heads - that it goes all the way down the line, possibly even to the level of secretaries. And it gives him enormous executive power. And when you put that together with what the court did two years ago in the immunity case, giving then-former President Donald Trump almost complete immunity from prosecution for anything he did as an official act while in Congress, when you put those two things together, you have a whopping, powerful executive branch.
ISGUR: Which is sort of funny because there's two ways to look at this, right? On the one hand, they are saying that the president is going to be politically accountable for everything that happens in the executive branch. On the other hand, you look at cases like the tariffs decision, federalizing the National Guard or all the way back to, you know, Biden's student loan debt forgiveness or the Clean Power Plan case, and they are actually shrinking the powers of the presidency, versus Congress, and saying presidents cannot look back to vague statutes to basically legislate themselves into policy and legislative, you know, solutions that they happen to want. You have to have Congress actually in the game here and passing real laws.
TOTENBERG: And a Congress that is very much like - at least Republicans view themselves - almost as part of a parliamentary system. But I did want to say one thing about the tariffs case...
SUMMERS: Yeah.
TOTENBERG: ...And the birthright case. Both cases, which were losses for Trump, involve money. And business wants birthright citizenship. It needs more people in this country. We are not replacing ourself in population, and there are lots of very skilled people and some unskilled people that they want in this country. Those two cases, I think, are illustrative."The big losses," quote-unquote, for the president, in fact, are big wins for the Chamber of Commerce.
MURRAY: I think Nina's right. There is a corporate bent to this court. I don't know if I'd just call it about money. In Slaughter - the upshot of Slaughter is that we're going to have less regulation of corporate interests and industries because we are going to have agencies that are aligned with the president's priorities. And this president, in particular, prioritizes corporations. I think the distinction between Slaughter and Cook can be drawn by the fact that corporate interests, even as they disdain regulation, they're very much in favor of stable, global economies and stable markets, and that is what Federal Reserve policy is supposed to do. And so they don't want anyone realigning the Fed. And I think that also helps us to understand why the court ruled in the way that it did on tariffs. And so all three of those cases, I think, are places where what unites them is a through line that is about a court that is increasingly corporatist in its outlook.
SUMMERS: Just big picture - as we think about it, as someone on the outside looking in - one thing I find myself wondering is just how functional this court actually is. I want to hear you all weigh in on this one. Nina, I'll start with you.
TOTENBERG: Well, this is a court that is composed of people who rather clearly do not like each other very much. And that, of course, makes it more difficult to shepherd everybody and get stuff done and have the court speak with a single voice in the majority. That's much more difficult for the chief justice, and that's part of his job.
SUMMERS: Sarah and Melissa, what do you think?
ISGUR: I still think this is the last branch doing its job in our constitutional order. We have a president that is trying to do way too much - this president, the last president, the president before that. And we have a Congress that has completely delegated all of its responsibilities away. And so the court, as a counter majoritarian branch, is trying to, you know, use the little paddles to try to get the separation of powers working again so that Congress will actually function. You know, 22% of the cases were 6-3 along ideological lines. Forty-two percent were unanimous decisions. And I think, for the most part, that's a court that is functioning the way it is supposed to function, even if we disagree with some of the decisions that they may make.
MURRAY: So I will say that when you ask if the court is functioning, do you mean the court, or do you mean the courts? I do think the lower federal courts have done a great job in reading the Constitution, upholding the rule of law and really acting as a bulwark against this administration's most excessive impulses. The Supreme Court, I think, has done a lot this year, and I don't think I would call it functional. You know, there was just reporting from ProPublica about the way in which the court is doing many of its rulings, maybe the majority of its rulings, on the shadow docket, on the interim docket, where there is very little transparency, very little briefing and very little explanation to the public. And so I don't dispute the court being a counter majoritarian branch. But, right now, we have a Congress that's not really working, a president that's being very muscular, and we have a court that sometimes gets in the game and sometimes doesn't.
TOTENBERG: I just want to say one last thing. In announcing the last decision of the term - the birthright case - it was fascinating to me that Chief Justice Roberts went out of his way to sort of placate the executive branch and the president in saying, this is not a repudiation of them. I had never seen that sort of layup of an opinion announcement before. And I think he knew that he was gutting the president's most important and muscular immigration policy, and he didn't want blowback from the president on television, yelling his head off at them, like they got in the tariff case.
SUMMERS: That was NPR's Nina Totenberg, here with Melissa Murray and Sarah Isgur. Thank you, everyone.
TOTENBERG: Thank you.
MURRAY: Thank you.
ISGUR: Thanks so much.
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