Ultimate Supreme Court Nerdery Part II

David and Sarah finish their preview of a number of upcoming Supreme Court decisions from ...

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David and Sarah finish their preview of a number of upcoming Supreme Court decisions from the Consumer Financial Protection Bureau to DACA and the Title VII cases. The two also discuss the debate over moves to expand vote by mail, and the new Hulu miniseries Mrs. America.


Show Notes:

–Texas vote by mail lawsuit

–A Guide To the 10 Biggest Supreme Court Cases of This Term

–A Glossary of Important SCOTUS Terminology

See omnystudio.com/listener for privacy information.

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  1. Kit Johnson

    So, which side did David French take on Grant's Overland Campaign?

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    Brett Crawford

    I am wondering about a statement Sarah made about gay marriage being decided mostly by the culture BEFORE the courts ruled in favor.

    I live in Oklahoma, so we are more conservative than mainstream populations.

    I was very surprised when that happened however.

    Almost any ballot measure that I was aware of in favor of legalizing gay marriage had failed, so for me, I always thought the courts basically forced the country to accept the legality of gay marriage, and the cultural acceptance came after.

    Am I wrong?

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    ARS

    Re Mrs. America, I think Sarah does not fully understand a perspective Schlafly may have based on her comments. My guess is Schlafly would have thought through a combination of cleverness, humor and sheer force of will women could accomplish the things she did and laws aren't needed for it. I think Schlafly is wrong. I don't think she appreciates that not all women (or men for that matter) could possess her kind of personality and so they would be at a distinct advantage. But to Schlafly, she is not being hypocritical because even if she did run into some brick walls, she was able to do most of what she wanted to do and much of that was through sheer force of will.
    My first job out of college in the mid-90s was working for a very conservative think tank run by a female -- it was actually started by her in the early 80s. She reminded me a bit of Phyllis. I know my old boss was often in a room full of men and I'm sure she was often dismissed and condescended to -- at first. And I have no doubt she was aware of it. I can assure you it didn't last long and her approach would have been to make solid arguments but then to bulldoze the men if she had to. And when the power dynamic was so against her, maybe charm them, flatter them, whatever works. I don't think all women should be expected to be such a strong personality and do so much work to garner equal and due respect, but I do think Sarah might underestimate how much women like them didn't feel overly constrained because of their dominant personalities.

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    Angie

    Great podcast thank you
    I was a teenager during the Mrs. America Time and I remember Phyllis and Betty etc..
    Even then I was big on equality for women...but, either I read the wrong people or I am just weird...lol

    To me, it was always about choice, not picking one or the other, but allowing women to choose anywhere on the spectrum they wanted to be..from a stay at home mom to high powered Ceo career woman...I am neither ( well wasn't as far as children and staying at home..too old now anyway...lol)...Divorced, no children, lower-middle-class Bookkeeper/Operations mgr for a law firm..though to be honest, my plans were to be higher up the employment chain...but, life interfered...

    As a result, I stopped listening to the fight I guess, and I admit to having issues with many of the women in the movement on the ERA side...they sure sounded to my ears like they hated men ( especially with the lesbian ones at the time), and that was something I didn't do...lol

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      Angie

      PS: the law part was equally good, I just didn't have anything pithy or relevant to say about it...lol

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    Billehrich85

    David and Sarah, I loved your latest podcast, as always. I was especially intrigued by your short conversation about Mrs. Schlafly at the end. She was, no doubt, a polarizing figure. Sarah, you mentioned how Mrs. Schlafly was against "equal pay for equal work." I teach economics at the high school level in Missouri, and I find this topic very interesting (and very difficult) to discuss.There is no doubt that a person should not be paid less for a job solely because she is a woman. There must be other factors, and that can require legislation. However, good legislation on this topic would be incredibly difficult to write without leading to unintended consequences and/or undue deference to the courts and bureaucracy.

    The reason it's so difficult is because almost everyone has a different definition of "equal work." I would love to hear how both of you define that term. What goes into determining if work is "equal"? Education level and experience are widely regarded as differentiating factors that are acceptable. What about productivity or revenue generated? Do some form of these have to be included? If not, I'm afraid I could see a day where many professional women's sports would cease to exist, and that would be a shame. They're doing the "same job" as men, often for the same owners, but at vastly different pay. The WNBA simply does not generate the revenue the NBA does, so how else can we justify the incredible difference in their pay per game while still fighting for equal pay in other areas? If, in your opinion, we can't justify that huge discrepancy in pay, will the WNBA even exist any more?

    How do we write a law that keeps a factory in my town from paying a woman with equal experience, quality of work and productivity as a man less than him (although I'm fairly certain they wouldn't) without leading ourselves into some murky unintended waters? The one thing we don't want to do is write legislation that would prevent private employers from giving raises to people who are great at their jobs, so how do we do that?

    I sincerely hope these do not come off as "hot takes" or "loaded questions." I want to make sure that women aren't paid less than men when they shouldn't be. To do that, we'll need the very best definition of "equal work" that we can get. You two are highly qualified to do that, and I thank you in advance for taking up the question in writing...or on a future podcast!

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    Richard Maxton

    First off - I'm NOT a lawyer, so forgive me if my ignorance is showing. With that said, I get the stare decisis principle, but I'm not on board with the comment David and Sara were making about RECENT decisions being overturned. If the case is made that previous courts (Supreme or not) made a faulty decision then overturning it shouldn't depend on how old the decision is. . .someone please explain to me why this isn't laughable from a common sense point of view.

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      Beardman

      I'm with you. My intuition is that the older the precedent is, the more troublesome it would be to overturn. A newer precedent would be less of a problem since there is less history (for lack of a better word) behind it. Though...I think they discussed this on a previous episode. I think it was David who said the reason is that lower courts and law firms need consistency in precedence so they know what cases are worth their time in bringing up the court system. An oscillating court system means that people (executive branch, businesses, citizens, etc) will be hesitant to take actions because they don't want to get sued in the face of an unpredictable court.

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        Richard Maxton

        I see what you're saying about an oscillating court, and I agree. Nevertheless, my problem remains: we don't overturn "recent" cases because we don't want to oscillate, but we don't want to overturn older cases with plenty of issues riding on the precedent from that opinion - where's the middle ground here? Seems a recipe to let bad law stand until it is SO egregious it can't be ignored, and by then you're damned to face all the complications anyway.
        I'm usually a "perfection is the enemy of the good" kind of thinker, but I'm having a hard time being comfortable with this. Bad law is bad law, and should be called as such regardless of its age.

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          Beardman

          I agree whole-heartedly

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    CoLaura

    Sara- I have to admit as a center left listener, (who lived in DC for 15 years), I am not sure I have met a feminist conservative. (Perhaps I need to get out more lol). Can you either write a post or have a discussion of your view of feminism and what how that does/doesn't align with the conservative/Republican platform?

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      Angie

      I have seen a few as opinion writers in major media outlets...but, can't think of any I know personally...

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      CoLaura

      Also, it might be interesting for you to reflect on them 1 year post baby? I know my policy views have changed quite a bit in this space.

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  8. Melissa

    I thought this was great!

    I don't understand why David called the subgroup of women who were championing women's rights "cultural elites." If more wealth and status was concentrated in traditional families in which the woman was expected/ chose to/ received the financial benefits to be able to stay at home, then this would confer elite status, so it's a misnomer to call these people elites.

    Similarly, it's a common conservative turn of phrase to call people "elites." You hear this from people like Tucker Carlson, who last time I paid attention to what he was doing was wearing a bowtie. For the past twenty years the majority of Americans in the lower part of the medium income have voted democratic. Wealthy, white suburban Americans broke for Trump in the past election. Therefore, it would seem appropriate to talk about conservative elites, but the other way around isn't necessarily accurate (unless "elite" doesn't have anything to do with wealth, status or power).

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      BrandonAlleman

      I've always wondered and been annoyed with the 'elites' label especially when it comes from the media. Surely anyone in the media despite their political persuasion is elite since they have influence and their voices are heard. Seems more like a code word for liberal or people you disagree with than anything I've been able to decipher.

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      1. Melissa

        I think so!

        Lots of conservatives use the word "elite" quite liberally, so maybe someone who feels confident about who is an elite and who isn't could shine some light on these questions, which I generally wonder about:

        1. Speaking for myself, I have voted democratic elections since I've been able to vote and I attended universities with a lot of name recognition or prestige for undergrad and grad school. I like to read the New York Times and the Washington Post. Neither of my parents graduated high school and when I was a child my mom received welfare benefits while she was getting her GED and going through nursing school. I am currently employed as a public school teacher, though I am on sabbatical for the current year. I am politically left of center. Am I an elite?
        2. Is Jonah Goldberg an elite?
        3. Is David French an elite?
        4. If we think about those occupying positions of power in conservative radio media and the Fox News late night people -- Are they elites? Why or why not?

        I guess I would like it if someone who considers themselves confident about who is an elite and who isn't could shed some light on these questions.

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        1. Melissa

          I should add that I like to watch Hollywood movies since this might have bearing on my elite status.

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    2. Melissa

      Whoops, median.

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    Adicesa14

    David’s view that the Louisiana case is especially important struck a chord with me. If one sets the actual issue (abortion) aside, its affect on our politics & culture has been quite negative. I cannot speak for others, but I am quite sick of abortion being front and center in every Presidential election and Supreme Court selection. Had the Burger Court ‘punted,’ and allowed the State’s to decide the issue for themselves, or Congress done its’ job, a sensible consensus on the issue may have developed, by now. Instead, we are left with a seemingly irreconcilable kerfuffle.

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    Brian Levy

    Rather than fashioning thier own constitutional resolution on the CFPB case by severing for cause dismissal (which Kavanaugh did at the DC Circuit), isn't the "Roberts resolution/Constitutional avoidance" position to get a plurality to agree to Paul Clement's arguments that the Constitutional issue isn't quite ripe in this case becuase it just involved subpoena power? Then Roberts can still allow the concurring opinions to signal to Congress that Humphrey's Executor is in danger of being overturned. So, Congress better do its job and fix this in the CFPB and other agencies before that issue comes to SCOTUS in a better case (several are pending).

    David, your crow eating will require recognition of Jordan as the GOAT.

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