Melissa Murray on What’s Next for the U.S. Supreme Court
This week, New York University law professor Melissa Murray joins Daniella to discuss the historic confirmation of Judge Ketanji Brown Jackson to the Supreme Court, what this moment means for the court, and some of the many high-profile cases the high court will consider these next few months. Daniella also shares updates on the war in Ukraine and recaps the important policy updates that came out of the White House’s 12th-anniversary celebration of the Affordable Care Act.
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Daniella Gibbs Léger: Hey, everyone, welcome back to “The Tent,” your place for politics, policy, and progress. I’m Daniella Gibbs Léger. It’s a historic week in the United States at the time we’re recording this, so today we have Melissa Murray with us to discuss the confirmation of soon-to-be Justice Ketanji Brown Jackson and what her appointment means for the Supreme Court, and what the next few months of SCOTUS cases will look like. But first, let’s get to some news.
So, the situation in Ukraine, just seems to be getting more horrific by the day. This week, we saw harrowing images and heard firsthand accounts from towns like Bucha in eastern Ukraine, where Russian forces murdered scores of civilians and left the city in ruins. There are also reports of potential executions by Russian soldiers—just a heartbreaking display of senseless violence.
And of course, Vladimir Putin is denying all of it. Russian officials are claiming that photographs of what appear to be mass graves are staged. They’re accusing Ukraine of fabricating images to win international support. And at the same time, they’re continuing their assault on Mariupol and intensifying attacks in the south and east of Ukraine, causing even more evacuations.
It’s not hard to see through the lies coming out of the Kremlin left and right. All of this has not gone unnoticed by the Biden administration and the international community. The U.S. this week is leading an effort to have Russia removed from the U.N. Human Rights Council—kind of a joke that they’re there in the first place. And Secretary of State Antony Blinken is in Brussels right now gathering and examining evidence of Russian war crimes. While he’s there, he’ll be meeting with G7 and NATO representatives to discuss further sanctions and actions that can be taken to punish Russia for these atrocities.
Europe is also mulling a ban over coal imports from Russia, which would be huge. Europe gets about 20 percent of its coal from Russian imports. But these are the kinds of impactful actions we’ll need if we as an international community are going to be able to actually hit Putin where it hurts. The Biden administration led with a ban on Russian oil imports. And while Europe isn’t quite there yet, these are the first steps towards European energy independence from Russia.
This all has me wondering, as I’m sure many of us have in the last month, what is Putin actually thinking? Of course, it’s impossible to understand the mind of a dictator who is okay with indiscriminate killing. But seriously, what does he have to gain here? So far, he’s tanked Russia’s economy, turned the country into a global pariah, gotten himself kicked out of important international diplomatic institutions, gotten up to 15,000 of his own soldiers killed, and backed himself into a corner he can’t get out of.
CAP’s Max Bergmann spoke with us last week about Ukraine, and he described this as Putin’s quagmire, which it really is. The more atrocities he commits, the harder and more punishing the sanctions are going to get. There’s no way out of this and no way for him to reearn the good graces of his global neighbors, particularly in Europe. I really don’t think that this ends in any sort of victory for Putin.
Now, let’s turn to some better news. Former President Barack Obama returned to the White House this week for the first time since the end of his presidency. It has been a long five years, Barry, we missed you. He returned to deliver an address celebrating the twelfth anniversary of the passage of the Affordable Care Act (ACA). He made a wonderful nostalgic speech, and here’s a bit of it.
Former President Barrack Obama, audio clip from White House event: Coming back here gives me a chance to say thank you and spend some time with an extraordinary friend and partner who was by my side for eight years. We helped save the global economy, made record investments in clean energy, we put guardrails on our financial system, we helped turn the auto industry around, repealed don’t ask, don’t tell. But nothing made me prouder than providing better health care and more protections to millions of people across this country.
Gibbs Léger: I don’t know about you, but I can just feel my anxiety melting away whenever he speaks. And President Biden wasn’t just there to celebrate the occasion—he announced new policy measures that would improve the ACA by addressing the quote unquote “family glitch.”
Here’s how the family glitch works: Basically, if your employer requires more than 9.83 percent of your household income on the company’s health plan premium, you’re eligible for marketplace subsidies through the ACA, but the definition is based on your self-coverage only. So, if you use 8 percent of your income for you, but 12 percent total to cover your spouse and kids, you don’t qualify for subsidies. That’s pretty unfair, yes?
About 5.1 million Americans fall into this gap, according to the Kaiser Family Foundation, and a majority of them are children. So, to fix this, the Biden administration issued a new proposal that would allow families to receive tax credits if their total coverage costs exceed more than 10 percent of their incomes, family included. The change is scheduled to take place in January and will allow 200,000 uninsured people to gain coverage and over a million more people to lower their premiums.
This is especially important because it’s unclear how many more times the Department of Health and Human Services will renew the public health emergency declaration it’s had out since the start of the pandemic, especially as case numbers fall. The public health emergency measures created some key protections that have helped avert health care coverage interruptions for millions of Americans over the last two years. So all that is to say, at a time when we may start seeing more coverage interruptions or coverage losses, closing this family glitch loophole and ensuring more people have secure and affordable access to health care is going to really matter.
And on a personal note, I was jealous of all my friends who got to go to the White House to see President Obama. When I worked in the White House, obviously we did a lot of work trying to get the ACA passed. And I was there when we traveled the country and talked to probably millions of people about why we needed to pass the ACA, and then was there when we celebrated its final passing through the House at the White House. So, it’s a moment that will always stay with me and just make me remember when times were different. They weren’t easy, but they certainly were different than they are now. And it was really great to see President Obama and President Biden back together again in the White House.
If there’s anything else you’d like us to cover on the pod, please hit us up on Twitter @TheTentPod, that’s @TheTentPod. And please let us know what you think of the show. You can rate and review us wherever you’re streaming from. And we really appreciate your feedback. Stick around for our interview with Professor Melissa Murray in just a beat.
Melissa Murray is a professor at the New York University School of Law and an expert in family law, constitutional law, and reproductive justice. Prior to joining NYU, she was a faculty director of the Center for Reproductive Rights and Justice at the University of California Berkeley School of Law, and she clerked for then-Judge Sonia Sotomayor. And she is a fellow University of Virginia grad, go hoos! She’s also the co-host of the podcast “Strict Scrutiny” from Crooked Media, which examines the Supreme Court and the legal culture around it. Professor Murray, thank you so much for joining us on “The Tent.”
Professor Melissa Murray: Thank you so much for having me.
Gibbs Léger: So this week, we are obviously celebrating the Senate’s historic confirmation of soon-to-be Justice Ketanji Brown Jackson. She’ll be the first Black woman to be a Supreme Court justice and the only former public defender on the bench. She also is highly qualified. This is a big win for the Biden administration as well, following through on a campaign promise. Still, some have argued that her confirmation won’t have as large an impact on the outcome of most cases, since she’s replacing the liberal Justice Stephen Breyer, and the court’s liberal-to-conservative ratio remains the same. So, with all of that being said, what do you think Judge Jackson’s confirmation means for the Supreme Court, both in terms of equity and representation, but also in terms of the court’s actual decision-making?
Murray: Well, let me break that up into two pieces. So, I think you’re exactly right, that the expressive power of her nomination is just enormous. The fact that there has not been an African American woman on the court is an unfortunate occurrence, and it’s going to be remedied when she is appointed. So that is fantastic. And it will be not only inspiring to generations of other Black women, but will really sort of speak to the possibility and the promise of a multiracial democracy. When you see Judge Jackson, alongside Sonia Sotomayor, Elena Kagan, comprising that hobbled three-justice liberal wing, but doing so in a way that reflects the kind of gender and racial diversity that I think the progressive wing of this country is known for and very much appreciates. You’re right that she does not disrupt the ideological composition of the court; it will still be a six-three conservative supermajority. And I think we are going to see the impact of that conservative supermajority in real time, and she will have a front seat to all of that. But I do think there is something to her replacing Justice Breyer. I know she is a former Breyer clerk and considers him a mentor. But in certain issues, I think she may be very different from a Justice Breyer, in terms of what she would bring to the court’s deliberations.
Justice Breyer I think was a little more small-c conservative on some of his criminal justice rulings. I think perhaps her experience as a public defender might mean that she would view those kinds of questions in a different light from Justice Breyer, and that would be important. I think, in other cases, like reproductive rights, for example, where we have relied on Justice Breyer’s voice, she will also be speaking up but again will be doing so from a very different perspective. Much has been made of the fact that impositions on reproductive rights really do impact women of color, and poor women disproportionately. And here is Judge Jackson, an African American mother who can speak to these questions of, you know, Black womens’ experience in the health care system and Black womens’ experiences with pregnancy in a way that, honestly, Justice Breyer probably cannot. So, I think there’s a lot here. And yes, it’s true that this is not going to completely disrupt things at the court. But I do think it will have some important impact in terms of the dynamics between the justices, certainly, and in a lot of ways, even the substance of what they are going to hear in the next couple of years.
Gibbs Léger: That’s great to hear. Congressional Republicans have shown themselves to be very capable of sticking together in their votes, i.e., nearly every bill in the Senate. But it was notable that three Republican senators broke from their colleagues to support Judge Jackson’s nomination. So, I want to ask a couple questions here. One, what do you think this says about, you know, her undeniable qualifications? And two, you know, speaking of qualifications, the initial lists that were being floated around of potential candidates included many stellar Black women, including yourself. Now, I was shocked that people were shocked that there were so many outstanding candidates. So, if I may, a bit of a personal question: How did it feel to hear your name mentioned as a potential nominee?
Murray: I mean, it was amazing to be considered among such distinguished company. I mean, I think I was, you know, very circumspect about it. As a law professor, I think, I probably have less of a chance to be appointed to the Supreme Court just because, you know, I’ve written so much. I think the tendency has been, for at least the last 20 years, to appoint sitting judges, because you have a sense of what their record will be. And so to me, it was just exciting to be considered among that company. And what amazing company it was. And, you know, watching this as the mother of a Black daughter, it was just so gratifying for the American public and my own daughter to see that there were all of these terrific Black women who were literally at the tops of their fields, and they were doing amazing work, groundbreaking work, and they were finally being recognized. And, you know, it showed that there was a reservoir of legal talent that regrettably has gone overlooked even in the legal profession. You know, Black women are, here in law school, represented in great numbers, but we are not represented in the partnerships of large law firms, we are not represented to the same degree as our counterparts in Congress or in judgeships. And so, the fact that you could have this longest shortlist in the world of these fantastic Black women just really showed that there was this talent there, you just had to go and look for it. And you didn’t have to look very hard, because there were a number of them, and they were just right there hiding in plain sight.
Gibbs Léger: Yeah, so related to that, you know, this nomination is the latest example of the Biden administration’s, I would say, successful string of judicial appointments. Judge Jackson is one of 59 appointees to the federal bench. And that’s an astounding number. And I feel like this is something we don’t talk about enough, like, what impact does a slew of appointments have on the judicial system as a whole? And should we expect significant changes to the types of cases that are heard or maybe in the decisions that are being written?
Murray: So, I absolutely agree that this is a signature achievement of the Biden administration for which it does not get nearly the credit that it deserves. I mean, when we reflect on the Carter administration, you know, just four years, a lot of missteps. The one thing Jimmy Carter got right over and over again was judicial appointments. He truly diversified the face of the federal judiciary by adding more women, adding people of color. And I think that’s a big part of the Carter legacy. I think Joe Biden will likely do even more than Carter was able to do, but I’m baffled that we aren’t talking about the great work that’s been done on the federal courts, and not just the Supreme Court, the lower federal courts. And, you know, perhaps that speaks to the way that liberals and progressives overlook the importance of the federal courts as part of this broader policy dimension, right? I mean, you know, so much was made, for example, in the Democratic Convention in 2020 about all of these signature policy achievements—the Violence Against Women Act, DACA. No one talked about the fact that many of these signature policy achievements were scuttled or hollowed out by decisions of a five to four Supreme Court or lower federal courts. I mean, there’s so many ways in which a domestic and foreign agenda can be absolutely hobbled, not in Congress, but in the courts themselves. And so, you know, the Republicans have always been very fixated on the courts. Democrats rarely have been. And I think the fact that we’re not talking about the amazing work that’s been done here to diversify the federal bench is a symptom of that. And, you know, if you want to talk about what has been done, you know, we’re seeing public defenders like Ketanji Brown Jackson who are being appointed to federal courts whereas they would not have been considered before. Labor lawyers, LGBTQ lawyers, I think we’ve had the first Muslim American appointed to the federal courts. I mean, this is absolutely amazing and really sort of speaks to the promise of a multiracial democracy, not just as a theoretical matter, but as an actual practical matter.
Gibbs Léger: So, I want to turn to the cases that are moving to the Supreme Court in a couple of months—a lot of high-profile cases, many of which were brought up during Judge Jackson’s confirmation hearings. Could you, you know, give us maybe three upcoming cases that you’re keeping an eye on? Why are you keeping an eye on them? You know, what impacts will these decisions have on U.S. policies and people across the country? And, if you are in the prediction-making business, how do you think they’ll go?
Murray: Before I name names, let me just say a little bit about what it means that we’re seeing so many high-profile cases in the hopper before the court. You know, as you know, the court has a discretionary docket It doesn’t take everything that’s presented to it. It takes four votes to actually get something on the court’s docket. The fact of a six-to-three conservative supermajority not only shapes the substantive outcomes of cases, it actually shapes what the court will hear. And I think we are seeing because there is this conservative supermajority where, you know, they can lose a vote—they don’t need the chief justice, for example—because they have five who are willing to hang tough together. Because they know that, I think they are much more aggressive about the cases that they decided to take. You know, a couple of years ago, when they just had a five-to-four conservative majority, it was a lot harder to get cert on some of these cases because nobody knew what the chief justice might do because, you know, maybe there was an institutional reason for going the other way, departing from the conservative bloc. Now that they don’t need him, it’s almost like a marshmallow experiment for the court. I always think about the marshmallow experiment. Like if you leave a fourth grader in a room with a marshmallow, like, do you eat the marshmallow now? Or do you wait for later? And this is a court that’s like, “Eat the marshmallow right now, eat them all right now.” And we’re just seeing abortion and affirmative action and gun rights and the Indian Child Welfare Act and the administrative state and every single thing because literally, they can’t help themselves. Like, it’s so close, they have the votes, and they’re going to dismantle it all. And so, yes, it’s going to be a wild ride.
And some of the cases that I’m looking for are obviously Dobbs v. Jackson Women’s Health Organization and Whole Women’s Health v. Jackson. Dobbs is the Mississippi case in which the court has been explicitly asked to overturn Roe v. Wade. I think that they are likely to do so, and that will come down this summer early in the summer. There’s also the Texas S.B. 8 case, Whole Women’s Health v. Jackson, and it’s unclear what will happen there. But obviously if Roe v. Wade is overturned in Dobbs, it will leave the door open for Texas and other states to continue promulgating laws like S.B. 8 that not only prohibit abortion before viability, but actually deputize private citizens to enforce the terms of those laws, which is, I think, a quite alarming development.
Another set of cases I’m thinking about and interested in are the affirmative action cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. the University of North Carolina. I think those two cases, which will be heard next term with Justice Jackson on the bench, are likely to dismantle the use of race preferences in higher education admissions. I think that is being very clearly signaled. And I think I’ve already resigned myself to the outcome and sort of, you know, what does the landscape look like going forward? How do we operate in a world like that? And then, a set of cases I don’t think people are thinking about but they are critically important are the cases involving the Indian Child Welfare Act. So, Brackeen v. Haaland, and there’s another case—[Cherokee Nation v. Brackeen]. And we’ve already seen some appetite from Justice Alito to rethink the Indian Child Welfare Act, which gives Native American tribes sovereignty over child welfare and child custody issues involving a native child or a native child who’s been domiciled on a reservation. And you know, I think there have been a lot of questions about how to treat the prospect of indigeneity, whether it is a political category or racial category. And Justice Alito, I think, has signaled an incredible appetite to rethink everything that we know about these categories and indeed all of our underpinnings about the question of Native American sovereignty in this set of cases may very well be a conduit for doing so.
Gibbs Léger: Wow. Yeah, that is definitely a case that is not getting as much attention because of the other two. So, I really appreciate digging into that. And I want to do sort of a follow-up to this question. So, we see them, you know, eating all the marshmallows and accepting all of these cases. Like, what other rights that we’ve been accustomed to now do we need to worry about? Like, is marriage equality on the table?
Murray: So, I think about this as—do you remember Hungry Hungry Hippos?
Gibbs Léger: Yes!
Murray: Are you Generation X?
Gibbs Léger: I’m Gen X, yeah.
Murray: Yeah, this is like that: Hungry Hungry Hippos. So, I don’t think the court has so much signaled it, but people outside of the court have signaled this. So, for example, in the Dobbs case, there was an amicus brief filed by Jonathan Mitchell and Adam Mortara. They’re two conservative lawyers. Jonathan Mitchell, incidentally, is the architect of Texas’ S.B. 8, the procedural feature that deputizes private individuals to enforce the terms of that law, and that is that procedural quirk that’s made it so hard to challenge the law. He’s the one who came up with that. I believe that Justice Kagan referred to this as “some geniuses,” so Adam Mortara and Jonathan Mitchell as “some geniuses,” not only weighing in on S.B. 8, also weighing in on Dobbs to argue that while the court is overruling Roe v. Wade, it should also overrule these other precedents that recognize quote unquote “unenumerated, non-text based rights,” like the right to privacy, the right to marry, the right of parents to raise their children in the manner of their choosing. And they start naming names as well. So, this would include decisions like Griswold v. Connecticut that legalized the use of contraception by married couples; Eisenstaedt v. Baird, which legalized the use of contraception by unmarried people; Loving v. Virginia, which legalized interracial marriage, although they bracket that, perhaps for Justice Thomas, by saying that there are likely statutory protections that would exist for interracial marriages. But as a constitutional matter it would be off the table. They also talk about Obergefell v. Hodges, that’s the 2015 case that legalized same-sex marriage. They also talk about Lawrence v. Texas, which is a 2003 case that basically legalized the prospect of same-sex sexuality by invalidating laws prohibiting gay sex.
So, everything is on the table, all of these rights that I think we really take for granted that are the scaffolding of our intimate lives, our private lives. They are very much signaling they’re on the table. And what was interesting to me about Judge Jackson’s hearings is that many of the senators, in questioning her, emphasized this juxtaposition of unenumerated rights and text-based rights, which they equated with religious liberty and gun rights, like text-based rights deserve primacy and can be prioritized, whereas unenumerated rights because they are implicit in the Constitution, but not explicit in its text, they don’t deserve any deference or respect and can be reconsidered and, indeed, overruled. And, you know, we had Senator Blackburn from Tennessee suggesting that Griswold v. Connecticut, the contraception case, can and should be overruled. We had Senator Cornyn, the senior senator from Texas, saying that Obergefell v. Hodges, decided in 2015, should be reconsidered and overruled because it’s not rightly decided, because it’s rooted in an unenumerated right to marry. So yes, if you think that this is going to end with abortion, you are deluding yourselves, and you’re in for a really rude awakening because everything is on the table.
Gibbs Léger: Wow. Okay, that is frightening, terrifying. And we can spend an entire other episode just talking about this and what we should do about that. But I want to end on a more lighter note. You are the host of Strict Scrutiny, a fabulous new podcast about the Supreme Court from Crooked Media.
Murray: Not new, we’re two years old! In podcast years, we’re definitely toddlers.
Gibbs Léger: Okay, you’re a toddler. I know all about that toddler life right now.
Murray: We’re just breaking things everywhere. We can’t control ourselves and we break things.
Gibbs Léger: Just causing adorable chaos, that’s what I like to call it.
Murray: That’s us.
Gibbs Léger: What is your favorite Supreme Court fact? Or, if you can’t think of one on the spot, what’s been, you know, your favorite or most surprising interview on the podcast?
Murray: What’s my favorite Supreme Court fact? Gosh, that’s … Oh, I love that there has been one president who has also been chief justice of the United States. And that, of course, is William Howard Taft, who probably loved being chief justice way more than he enjoyed being president.
Gibbs Léger: I can see that.
Murray: So, you know, draw from that what you will. Our most surprising interview or most interesting interview, we had Nina Totenberg on the interview to talk about the whole flap over Justice Gorsuch and Justice Sotomayor and the mask-wearing and the chief justice issuing a statement, and I’ll just say Nina Totenberg puts the “T” in Totenberg because she spilled all the tea about this particular story. And it was just delightful to hear. And so, having someone who’s been a doyen of Supreme Court coverage come and join us to dish about the court was really fantastic. So, fantastic interview, terrific. We also had Joan Biskupic, I did that one by myself. That was really fun. She dished about the chief justice. And you know, this was right before June Medical came out in 2020, I guess. And so, you know, he was really the man of the moment, the true swing Justice. And then, you know, within months, Justice Ginsburg had passed away and Justice Barrett had been appointed to the court and he was no longer the swing justice. And you know, what will happen to the chief if he’s the chief in name only became a big topic of conversation for our podcast.
Gibbs Léger: Wow. Well, those are two that I’m definitely going to make sure I check out. And we could also do a whole separate podcast on the arc of Chief Justice John Roberts, it’s pretty remarkable to see. Well, Professor Melissa Murray, I want to thank you so much for taking time out of your very busy schedule on this extremely important and historic day. Thank you so much.
Murray: Thanks for having me.
Gibbs Léger: As always, thanks for listening. Be sure to go back and check out previous episodes. We’re still in the pandemic people. So, take care yourselves. And if you’re eligible for that second booster, go get it.
A lot of things on my mind as we close out this episode. For one, if you do not live in D.C., you may not have heard about the fox news. And no, I’m not talking about the cable news network. I’m talking about actual fox that was on the Capitol grounds, captivating the imagination of everyone in Washington, D.C., to write their most corny puns on Twitter. Sadly, the fox bit a few people, and sadly the fox was rabid. I feel like there’s, like, a lot of jokes in there. But I’m just gonna leave it alone and say thank you, fox, for your service. And I’m sorry that you sacrificed yourself to give us a little bit of levity in these heavy times.
Other things happening this week: There’s some golf tournament going on that everybody keeps talking about. I mean, I get it. It’s the Masters. If you like golf, this is a big deal. And Tiger Woods is performing … performing, I don’t think we say that. He’s playing. He’s not a musician. Does it need to lead every newscast? Like, I don’t know, maybe I’m the wrong person to ask about this. Because again, I don’t care.
Two very big important things happened though this week: college basketball finale and the Grammys. I will start with the NCAA tournament. I went to the University of Virginia in case you didn’t, in case I haven’t mentioned it like a million times. So, it’s in my blood, in my DNA, to hate both UNC and Duke, but like the good American I am, I hate Duke more. So nothing gave me more pleasure than seeing UNC beat Duke and then seeing UNC lose to Kansas. Like, really? I couldn’t have asked for anything more except if my team didn’t stink it up. Thank you, Kansas!
And the Grammys also happened. So, I used to work in the music industry before I got back into politics. Music is like a big part of my life, and I listen to it all the time, I play it. Grammys are, like, they’re everything. I thought this year’s Grammys were interesting. But the one moment that really touched me was at the end, 11:30, when John Batiste won for I think it was best album. The pure look of joy on his face, and a little bit of shock that he won, it was everything, and his speech was so great. And it was just, like, I wish we could all be like this. And he’s like, you know, there’s no best artist, there’s no best this. He’s like, we’re all musicians, we’re creators, we’re creatives, and this is art. And I just, at a time when I feel like in our schools, arts education is constantly under, you know, the knife, getting cut, being diminished, the importance of the arts, it’s like the last thing that people think about. It hurts my artistic heart. And so, to see him just be his true, unique, quirky, talented self and just put that plea out there for the importance of this medium like really made me happy. If you have not listened to his album, I highly recommend that you do and watch his videos. And yeah, I’ll just leave you with that. It was, it was great. It was a really fun evening, and I’m so happy that he won.
So that’s all I have to say about this week. Thanks again for listening. Take care of yourselves, and we’ll talk to you soon.
“The Tent” is a podcast from the Center for American Progress Action Fund. It’s hosted by me, Daniella Gibbs Léger. Erin Phillips is our lead producer. Kelly McCoy is our supervising producer. Tricia Woodcome is our booking producer, and Sam Signorelli is our digital producer. Elyssa Goswick provided research and production support for this episode. You can find us on Spotify, iTunes, Google Play, or wherever you get your podcasts.
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