No Cure for Curiosity
A podcast for curious people! Shanny Luft, administrator and professor of religion at the University of Wisconsin Stevens Point, talks with experts about a broad range of topics from the sciences, pop culture, media, politics, and the arts.
"The cure for boredom is curiosity. There is no cure for curiosity." - Dorothy Parker
No Cure for Curiosity
The Supreme Court (2021)
Shanny talks with Political Science John Blakeman about the Supreme Court. What have been some of the most interesting and important cases from this past term? How have the three new justices impacted the rulings of the Supreme Court? Shanny is curious.
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Our intro music was written by UWSP music student Derek Carden and our logo is by artist and graphic designer Ryan Dreimiller.
You can send comments to nocureforcuriosity@outlook.com.
Thank you for listening to No Cure for Curiosity. I am Shanny Luft, Associate Dean of General Education at the University of Wisconsin-Stevens Point. Before the show begins, I want to thank everyone who's been listening to the podcast and sharing their thoughts about No Cure for Curiosity. And I've got really exciting plans for season two, which I can't wait for you to hear more about. Stay tuned after this episode to hear a little more details about that. The plan for my podcast has been to release episodes during the fall and spring semester, which means this will be the last episode of season one. During the summer I'll be recording and preparing for season two, which will start in September. If you listen to No Cure for Curiosity on any podcast app, please hit the subscribe button so you'll automatically receive updates when new episodes begin airing. If you listen from our website, please join the No Cure for Curiosity Facebook page, which will be updated as new episodes come out. While I'm recording this summer, I also plan to release some bonus content from this past season and some teasers for some of the great upcoming episodes that are going to be out for season two, so please look out for those. On today's episode we're going to be talking about the Supreme Court. And last four years, a third of the Supreme Court was replaced. Neil Gorsuch replaced Antonin Scalia in 2017. Then Brett Kavanaugh replaced Anthony Kennedy in 2018, and Amy Coney Barrett replaced Ruth Bader Ginsburg just last year. I invited Professor John Blakeman to talk with me about the recent Supreme Court term. John Blakeman is currently a professor and the Eugene Katz distinguished faculty member in the Department of Political Science at UWSP. He has held previous faculty appointments at Baylor University, Sweetbriar College and the University of Virginia. Dr. Blakeman has authored and co-authored books on federal courts and religious liberty, the Supreme Court and Federalism, and American constitutional development. He holds advanced degrees from the University of Virginia and the London School of Economics, and is originally from eastern Kentucky. I asked John about some of the major cases the court reviewed this past year, some of which we're still waiting for rulings on. My first question to John was about how the three new court appointments have influenced the overall direction of the court.
John Blakeman:People who study the Supreme Court always think about it in terms of eight, eight justices and the Chief Justice. So if you take a typical split an ideological split on the court itself, in a sense, there's always going to be a justice in the middle, right. So if the court is evenly divided, you'll have four justices on the left or on the right, and then who we call the swing vote in the middle. And the swing vote is very, very important. You know, we could go back to the appointment of Anthony Kennedy. By the time Kennedy had been on the court for about a decade and then into the early 2000s he had emerged as the swing vote, and so in closely decided decisions, it was all from Justice Kennedy, who swayed the court one direction or the other. With his retirement, the swing vote sort of shifted to Chief Justice John Roberts. And now the speculation is with the appointment of Brett Kavanaugh and Neil Gorsuch and Amy Coney Barrett, the swing vote is shifting a little to more to the right, so that Justice Kavanaugh will most likely be the new swing vote. And what that indicates is the court itself with the three appointments from President Trump, the court itself is shifting to the right. Now how far right that is, I don't think we have a sense of that just yet. But there's now a solid six justice majority on the conservative side, with perhaps Justice Kavanaugh, maybe Justice Gorsuch from time to time, joining the three or four liberal justices to decide a case a certain way. And so there's no question that President Trump has made his mark on the US Supreme Court, he has shifted it rightward. Now again, where we will see that I don't really know.
Shanny Luft:One thing I've seen come up over and over again, is presidents appoint a justice and they have specific reasons for appointing that person. They often are hoping or expecting that that justice will carry forward the you know, the the President's ideals or philosophy or agenda, and that there's a lot of examples where that doesn't happen. Justices are appointed for life, so they don't have to answer to the person who appointed them. And then the public and the president learned that the justice's philosophy doesn't align with the president who appointed them very well.
John Blakeman:Yeah,
Shanny Luft:I'm curious what you think of that with Gorsuch, Kavanaugh, and Amy Coney Barrett?
John Blakeman:Well, yeah, I mean, justices historically change over time their views evolve, and especially in the latter half of the 20th century to the present day, conservative justices have typically become a little more liberal. I can't necessarily say that a liberal justice once he or she comes on to the court becomes more conservative. So it seems to work in one direction with Justice Gorsuch, Justice Kavanaugh, Justice Coney Barrett, you know, it's still too early to tell. I think Justice Gorsuch is he seems to be more libertarian in how he approaches rights and liberties, which would sort of nudge him more towards the left. He's, you know, what we call a conservative when it comes to regulatory issues. He's very interested in reining in federal agencies. With Justice Kavanaugh that's a tricky one as well. I think Kavanaugh is sort of like Gorsuch and probably a little more libertarian on rights and liberties, where he stands on regulatory issues. I honestly don't know. But you know, in my Law Society class, just this semester, I had my students read an important decision from Judge Kavanaugh, when he was on the DC Circuit Court of Appeals, the decision where he sort of led the way among federal appellate courts in accepting battered woman syndrome, which we would really call battered partner syndrome, as a credible defense in federal criminal law. And you know, that's a that's I don't want to call it a revolutionary decision. But it recognizes in it forces, lower trial judges to recognize that there are many different things going on when a person who has been battered by a spouse or a partner commits a criminal act against that partner, you know, judges don't normally think that way. And so that indicates to me that Justice Kavanaugh might approach if similar issues and what we call a more liberal or moderate direction. With Justice Coney Barrett, it's way too soon to tell other than she will view the Free Exercise Clause and the Establishment Clause in the constitution very, very strongly in the sense that she will work to protect the free exercise rights of individuals, and churches, and religious groups. And she will probably be probably be more than willing to sort of lower the wall of separation between church and state in the Establishment Clause.
Shanny Luft:Let's talk about some of the cases this year.
John Blakeman:Yeah. Okay.
Shanny Luft:When when I talk about specific Supreme Court cases with my students, one of the things I tell them is, by the time a case makes it to the Supreme Court, it is probably by definition, a difficult issue. If it were obvious or easy. If the answer were clear to everybody, it'll get decided before it reaches the Supreme Court.
John Blakeman:Yes, absolutely. They're not easy.
Shanny Luft:So one of the cases that stood out to me, I was really fascinated by this case, that was decided in November and we have the decision are ready that Roman Catholic Diocese of Brooklyn versus Governor Cuomo case. Right. So just to set it up, New York Governor Andrew Cuomo had an executive order that limited the number of individuals who could gather in places of worship, and places of worship were treated, basically, like other kinds of businesses, in which the, the governor was instituting certain kinds of policies about how many people could congregate in one place. The Supreme Court decision was a response to appeals by the Roman Catholic Diocese of Brooklyn and also Orthodox Jewish congregation. And it was decided five to four, they decided on the side of the Catholic Church, that the plaintiffs had made a case that the governor's order violated the minimum requirements of neutrality. I'm really interested in that case and your thoughts about it.
John Blakeman:That was a really, really fascinating case, because it illustrates a lot of things about the Supreme Court.
Shanny Luft:In that case, there were some there were certain kinds of businesses that the governor was the governor had shut down, and there's no constitutional right that you know, bars have to remain open.
John Blakeman:Right.
Shanny Luft:Right. So certain kinds of businesses, the governor in this case, in a emergency, right, a pandemic, the governor had the authority to shut down certain kinds of businesses, but the governor allowed other kinds of business stay open for presumably emergency reasons, right? groceries, we need gasoline.
John Blakeman:Yep. Yep.
Shanny Luft:And the court seemed to the court basically said, you can't treat if you're going to allow certain kinds of businesses to stay open, then you need to defer to religious bodies in the same way.
John Blakeman:Yeah.
Shanny Luft:Right. Either shut, you can shut everything down. And then religious organizations be a part of it. But if you're going to allow certain specific kinds of exemptions, religious bodies need to be one of those exemptions, too.
John Blakeman:Yeah, yeah, that's how I would read it. And you know, and I would also consider it, at least the five justice majority was willing to place the First Amendment rights of religious groups and houses of worship above a state governor's executive power to deal with a pandemic. And you know, that's if a state doesn't want to balance things that way, you know, the state legislature wants to allow its governor to shut down businesses and houses of worship during a pandemic, it can probably empower the governor to do that. I think in this case, New York had not done that.
Shanny Luft:Okay.
John Blakeman:And so that probably affected the courts reasoning as well, if a similar case comes back up with the next pandemic, back up to the Supreme Court, I think the justices would probably take a long look at what the governor or executive's authority really was. And that might factor into their reasons. Now, there's another interesting case, religious liberty case, Fulton versus city of Philadelphia, which is really going to force the Supreme Court and the rest of us to confront two conflicting constitutional rights, basically, and one is the right to the free exercise of religion and religious belief and the right to act upon that belief. And the other is the right to equality, the right to be free from discrimination. And so Philadelphia, like, you know, pretty much any municipality contracts out a lot of its services. It contracts out its foster care services. To participate in city in Philadelphia's foster care program, well you have to meet the city's guidelines on providing foster care, one of which you have to be inclusive, you have to agree to the city's non discrimination clause, and its non discrimination policies, which now include same sex marriage. So we have Catholic social services in Philadelphia that has contracted with Philadelphia, for foster care services for a long time, and you know, Catholic social services will place foster children in families that it interacts with. Catholic social services says we will not place foster foster children in homes of same sex couples. And Philadelphia says fine, we're striking you off our contract lists, we will no longer do business with you for foster care placements. And so Catholic social services, Susan says, you know, you've put us in a position where we either give up a basic religious belief, which is, you know, heterosexual couples only, or we give up that belief, and we continue to contract with the city for these vital services. And how the courts gonna decide that one, I don't know, because it presents two constitutional rights in direct conflict with each other.
Shanny Luft:Right. And so essentially, Catholic social services is saying, if I understand correctly, the city of Philadelphia's action to try to remove them from the foster care contracts is discriminating against Catholic religious freedoms, right. At the same time, the court has to weigh their own responsibility to protect the freedoms of same sex couples as foster parents and not have them discriminated against.
John Blakeman:And and Philadelphia has to comply with sort of state and federal non discrimination laws too, and the oral arguments. Chief Justice John Roberts indicated that it might be best if Philadelphia and Catholic social services worked out some kind of compromise.
Shanny Luft:Is that because the court doesn't want to make a decision? They would like this decided some other way.
John Blakeman:Yeah, you know, Chief Justice John Roberts is known for trying to protect the legitimacy of the court. Right. And you can't fault him for that. And I think he might see this as one case where if the court really wades into it, it's going to tick off half the country. Half the country will love it, you know, and the court doesn't want to be in that position. It's an untenable position to be facing.
Shanny Luft:Another case I'm really interested in your thoughts on is one I think that was just argued last week, Mahoney Area School District versus B.L.
John Blakeman:Oh, yeah,
Shanny Luft:So Levy was a ninth grader who failed to make the varsity cheerleading squad. She goes on, I think it was Snapchat where she said f school f softball f cheer f every -- She didn't say f but she expressed her disdain for everything related to the school. She posted this in a message that was then brought to the school and then she received a one year suspension from the cheerleading program. So this case ends up in the supreme court as a freedom of speech case. Part of what's fascinating to me about that was the court in the past has ruled that schools are entitled to curb students' freedom of speech in certain instances on school grounds, right, that, that students don't have all the protections of the Constitution, necessarily, and because schools have other things that they're trying to balance, right school safety, things like that. In this case, though, she was not at school. Right? She was posting this on Snapchat. And what I find really fascinating about this case is the question being asked is to what degree are schools entitled to respond to or curb free speech outside of school grounds. And then in this case, it feels the idea of school grounds, I think, because of COVID is now a different thing.
John Blakeman:That's true
Shanny Luft:Right they're -- My daughter is permanently, she started off homeschooling because of COVID. And she loves it so much, she is going to do kind of homeschooling, you know, over Zoom for the rest of her high school experience. So she's never on school grounds. Or she's always on school grounds.
John Blakeman:Right, right. Right.
Shanny Luft:Right. And that's so the court has to kind of weigh in on this case. I'm fascinated by this. And I think they just heard oral arguments last week. So we don't have a decision.
John Blakeman:They did. Yeah. And and I had, I do not know how to predict this one. But I'll put it in context for you know, so we go back to 1969, with Tinker versus Des Moines, which is one of the great free speech cases in American history. Except it's not, you know. So you've got the Tinker children in Des Moines, Iowa, who are Quakers. And they're pacifists. And they wear black armbands to their public schools in Des Moines to protest the Vietnam War. They're temporarily suspended. They sue. The Supreme Court, a divided Supreme Court says a school can censor and regulate students' speech in order to maintain discipline within the school. Right? That sort of makes sense. If you think about it within the school, then we've got the famous bong hits for Jesus case coming out of Alaska, maybe 20 years ago, which is it's a it's a it's a student free speech case where a student who is attending a school function to watch the Olympic torch go by, but he's not on school grounds, unfurls a banner that simply says bong hits for Jesus. And I believe a school principal comes over rips it down, that leaves all these disciplinary issues. And the Supreme Court says Tinker versus Des Moines. Even though the student was not literally on school property, he was part of a school function. So therefore his speech can be regulated. And I think that's what we're going to see in this case. But the the justices have, as you pointed out, the justices have to navigate this really tricky scenario of when school literally ends both geographically, temporally, digitally. And I don't know, I, I guess I have this hunch that a bare majority of the justices will probably say, Hey, you know, student speech on social media, at least as related to school function falls under Tinker versus Des Moines too and it can be regulated. But I honestly don't know, this really shows, you know how the free speech clause really pushes boundaries that we hadn't thought about 10 years ago, 20 years ago.
Shanny Luft:Is that because of where social media is?
John Blakeman:Yeah.
Shanny Luft:Because she didn't say this. It's not as if she was in like a digital classroom and said this right. She said this
John Blakeman:Right, exactly,
Shanny Luft:I guess to her friends. Right. And does that count as a private conversation among her friends?
John Blakeman:Uh, yeah, exactly. Exactly.
Shanny Luft:I'm fascinated by that case.
John Blakeman:I don't know. I don't know the answer to that.
Shanny Luft:But we'll find out in a couple months.
John Blakeman:But let's face it, let's face it, school administrators really want the Supreme Court to say yeah, you can regulate private students' speech on social media if it's related to the school, whereas students would really like to have their free speech liberties intact.
Shanny Luft:So what is the argument from the school about the harm of speech like this bong hits for Jesus and fuck school, fuck softball, is the argument it just undermines the authority. And I mean, it sounds as if it's not like a safety argument.
John Blakeman:Yeah, yeah. The the bong hits for Jesus case was the school one of the school's arguments was look, This is drug, pro drug related speech. We can't allow that. But it's also undermining administrative authority. You gotta be sympathetic to that argument to a certain extent, but there are always going to be justices, we can go back to Tinker versus Des Moines. Where who was it was a Justice Fortas? I can't recall exactly who said, you know, maybe it was Justice Douglas, the free speech rights of a student do not stop at the schoolhouse gate. They continue on into the school. So there will always be justices who are more libertarian when it comes to the rights of students. And you know, we're not going to solve this conflict anytime soon.
Shanny Luft:I've really enjoyed talking to you about all these cases, some of them have been decided some of them will have to wait another month or two before the court tells us what they think.
John Blakeman:So the last one to pay attention to is NCAA vs. Austin. And this is the question that we all want to know. You know, the NCAA regulates college athletics, you if you are competing under NCAA rules, you must follow NCAA eligibility guidelines. Those eligibility guidelines prohibit you from a as a college athlete from being compensated for your play. And so I'm not quite sure who the plaintiff is Austin, but several college athletes have sued the NCAA under the Sherman Antitrust Act, which was passed back in the mid 1890s. Still around still a very, very important federal statute that allows the federal government to bust up monopolies. And the big question is, does the NCAA fall under the Sherman Antitrust Act, do amateur athletics, which is the NCAA's argument, do amateur athletics fall under the antitrust laws of the United States? And depending on how the Supreme Court decides this one, if it decides against the NCAA, now the NCAA presumably has to follow federal antitrust law, which means the whole system is going to change. If it exempts the NCAA from federal antitrust law that empowers the NCAA to continue on with its eligibility rules, I suppose I it's interesting, if you look at the oral arguments, Justice Breyer said indicates that, in his opinion, judges have no business wading into college athletics. And he has a point there. The the NCAA press the point to the Supreme Court that look, there are a lot of state legislators right now who are debating their own state laws to regulate the NCAA. And I think what the NCAA was trying to do there is say to the justices, look, why don't you all stay out of it as an institution? Let's see how the states regulate us. And then let's take it from there.
Shanny Luft:So is what's driving this case? I don't follow NC. I don't I don't follow a college basketball. But I do follow the you're shocked. Well, you're from Kentucky, so I can understand why that's important.
John Blakeman:Yeah. Right.
Shanny Luft:And I shouldn't admit that as a grad student from UNC Chapel Hill,
John Blakeman:Yeah, I know. That is shocking.
Shanny Luft:The part of the debate about the NCAA that I find interesting is college players from whom universities make millions of dollars.
John Blakeman:Yeah.
Shanny Luft:And then these players are essentially working for free. But my question is about compensation, because the university's arguments is the students are getting free educations, or at least heavily discounted educations that is counting as compensation. Is that argument no longer holding right?
John Blakeman:I don't know that's a good point. And I'm sure the NCAA makes that argument in its legal briefs. I'll have to go look them up to check. But yeah,
Shanny Luft:why do you think this case is happening now? Is there something specific that just kind of draw this to the fore?
John Blakeman:I -- That's that's a good question. I don't know. There are probably a lot of social and economic causes behind it. I think we have now realized that the staggering sums of money that some Division One athletic programs make and do not pass on to their athletes. We have realized that a lot of these athletes are African American. And so I can only think that there's a lot of activism that feeds into that as well. There are a lot of women athletes, obviously at the division one level who aren't being paid. So I think it's just a general awareness of issues of race and gender in college athletics. And again, the staggering sums of money that flow in to a lot of athletic programs not at Division Three, where we are, of course, but at division one and division two.
Shanny Luft:So all these cases that you've described, they've already been argued. Is that right?
John Blakeman:Yes. Yep.
Shanny Luft:And so we are all just waiting enthusiastically to see.
John Blakeman:We're waiting enthusiastically Yes.
Shanny Luft:To see where this all -- and we'll find out in what June July?
John Blakeman:Yeah, I would say by late June. Okay. Oh, and there's one other case, the last one which Obamacare, the Affordable Care Act has come around yet again.
Shanny Luft:Yeah.
John Blakeman:So you might recall years ago, this, the Supreme Court struck down the individual mandate as unconstitutional, but allowed the statute the Affordable Care Act to continue on. The question now is without the individual mandate, can the Affordable Care Act still exist? So can in a sense, can you sever the individual mandate from the act itself? Several state attorneys general from conservative states have argued No, you can't. Now that you've gotten rid of the individual individual mandate, it means the whole statute collapses. And so if the Supreme Court decides that, that will be that will cause a lot of shockwaves, given how many people are now buying their health insurance out of the Affordable Care Act exchanges, and you know how ingrained the Affordable Care Act is, in our understanding of health care policy. Plus the fact that Congress tried to repeal it twice, and was unsuccessful.
Shanny Luft:Right. So
John Blakeman:I would say out of out of this term, that's probably the case to watch. And I really feel bad for the justices having to decide that one.
Shanny Luft:And the Obamacare case, the Supreme Court has had to weigh in on that now separate it's been, of course, different groups of justices. But they've weighed in on this for a decade, right in different contexts.
John Blakeman:Yeah, that's right.
Shanny Luft:But my thought about both the NCAA case and the Obamacare case is the court ruling could profoundly change enormous things. Right, depending on what happens with the NCAA case that could change something substantial about universities?
John Blakeman:Yeah, right.
Shanny Luft:Right. That would have to sort of I mean, some of their universities that the money they're making from their college basketball team is what is propping up the university.
John Blakeman:Right.
Shanny Luft:The Obamacare case, there are 20 million people who get their insurance through the Obamacare market, that one decision could affect millions of people. And my impression is the supreme court does not like to make decisions that are that in one day, suddenly affect 10 20 million people
John Blakeman:Right.
Shanny Luft:Right that they want legislators to do that.
John Blakeman:Yeah, you know, and historically, when it comes to athletics, and the Antitrust Act, thinking of Major League Baseball, for example, the Supreme Court does not have a good track record there. So I can see in the NCAA case, the justices saying, you know what, this really belongs in Congress, if Congress wants to extend the Antitrust Act to college athletics have at it. But you can see if the Supreme a majority say yeah, the NCAA now falls under federal antitrust regulations. All of a sudden, college athletics fall under the Department of Justice, which is the main enforcer of federal antitrust law, but that's going to bring in the Department of Education, it's going to bring federal agencies and the federal government into an area of university life where the government hasn't been in a real sense. And I can see the justices might think that might, you know, that's unpredictable. And I'll tell you how that will turn out. So we'll just step back from that. And you're right with the Affordable Care Act too, you know, the Supreme Court would potentially up end health care or 20 million Americans. Now, we don't want the supreme court to decide a case because of the effect or the impact of it. Right? Because then they're no different than our legislative body. But the reality is, I figure that goes through the minds of the justices all the time.
Shanny Luft:Right. And it does seem to particularly influence the the John Roberts. Right. As you said earlier in this conversation, he is really sensitive to the public perception of the court.
John Blakeman:Yeah.
Shanny Luft:And he doesn't like to weigh in on issues that 50% of America will be offended, horrified, angered by the decision Supreme Court makes.
John Blakeman:Right.
Shanny Luft:These cases are really fascinating. Part of what I love about these Supreme Court cases is as we talked about earlier, they're almost always really interesting, knotty, thorny problems.
John Blakeman:Yeah.
Shanny Luft:To wrestle with. They're also great narratives.
John Blakeman:They are great narratives.
Shanny Luft:So many Supreme Court cases are great stories to tell. And their impact. These cases have an impact on a lot of people's lives more so than I think some of us realize.
John Blakeman:Yeah, absolutely. Absolutely.
Shanny Luft:So thank you for coming on today.
John Blakeman:Yeah.
Shanny Luft:Will you come back after these cases are decided, and so we can maybe get a scorecard of how the Supreme Court did?
John Blakeman:Yeah, we should.
Shanny Luft:John Blakeman is currently the professor and Eugene Katz distinguished faculty member in the Department of Political Science at UWSP. John, it is so much fun to talk to you about these cases, I'd love to talk about the politics of them, the philosophy, the history. So thank you so much for joining me.
John Blakeman:Yeah, you're welcome, Shanny. Thanks for having me.
Shanny Luft:And so that wraps up Season One of No Cure for Curiosity. I have had such a blast, having conversations with my colleagues, and discussing a range of topics from Wonder Woman and King Kong and Godzilla, to curse words, deep ecology, and the Supreme Court. It's been a lot of fun. I'm really grateful for all the people who took the time out to join me as well as everyone who's tuned in and listened. We have had listeners from all over the country from coast to coast, as well as all over the world from Germany and Paris, to Tunisia and Australia. It's been really fun to see people find the podcast. If you've been enjoying the show, please share it with your friends. And please come to our No Cure for Curiosity Facebook page, let us know what you think about the Supreme Court cases. If you have thoughts or questions about any of the episodes we've recorded, I'd love to hear what you think you can always drop me a line at nocureforcuriosity@outlook.com. Thanks so much for listening. Stay tuned this summer for some bonus content. And I'll see you next semester with some brand new really fun episodes, we'll keep exploring our curiosities together.
Gretel Stock:This podcast is brought to you by University College at University of Wisconsin-Stevens Point. Our mission is to provide coordinated intentional and inclusive services and opportunities through our core values of connecting, supporting, collaborating and engaging. Learn more about UW-Stevens Point and all our programs at uwsp.edu.
