This is an audio transcript of the FT News Briefing podcast episode: ‘Swamp Notes: Conservatives have big plans for the judicial branch’
Marc Filippino
The US Supreme Court’s conservative judges have checked off just about every item on their wish list. They rolled back abortion rights in 2022, dismantled affirmative action in 2023, and undermined regulatory agencies this year.
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This is Swamp Notes, the weekly podcast from the FT News Briefing, where we talk about all the things happening in the 2024 US presidential election. I’m Marc Filippino, and this week we’re asking, what’s next for the conservative legal project? Here with me to discuss is Stefania Palma. She is the FT’s US legal and enforcement correspondent. Hi, Stefania.
Stefania Palma
Hi, Marc.
Marc Filippino
And I’m also joined by Barbara Perry. She’s a professor of presidential studies at the University of Virginia’s Miller Center, and she’s an expert on the Supreme Court. Hi, Barbara.
Barbara Perry
Hello, Marc.
Marc Filippino
All right, so just before we look ahead, I want to look back at this past Supreme Court term. Stefania, what are some of the big transformative cases that the court decided this term?
Stefania Palma
So once again, this was a blockbuster term for the Supreme Court. I would say there were two enormous rulings that were handed down. One of them basically overturned a legal doctrine called the Chevron deference doctrine, that essentially said courts should generally defer to federal agencies’ interpretation of ambiguous laws written by Congress. This has underpinned rulemaking in this country for approximately four decades. But now the conservative majority has said No. This doctrine has basically given way too much deference and essentially power to what they see as unelected bureaucrats. The other big case was around presidential immunity. Basically, the conservative majority has granted ex-presidents broad immunity from criminal prosecution when it comes to official acts they completed when they were in the White House. We cannot overstate how important this is going to be, because it truly reshapes presidential accountability going forward, probably for years and years to come.
Marc Filippino
Yeah, those are definitely the headliners. There are many other important ones, but these are really the two that I want to focus on. Barbara, just looking at the Chevron case and the the immunity case, one seems to drastically decrease the power of the executive branch, and the other seems to drastically increase it. Can you help us make sense of these decisions? Are they part of a broader legal theory or a conservative plan?
Barbara Perry
Well, I’ll do my best. Yes, they do seem at odds at first glance. But if you think of the Chevron case, that overturned the so-called Chevron deferences Stefania has so clearly defined for us, it seems to me that this is clearly in the wheelhouse of conservative thinking, which is to, first of all, lower the number of regulations that the government puts upon people or businesses or parts of society. The immunity case is a little bit more perplexing to me that they have given so much power over to particularly the president, and I guess that’s where I would draw a distinction. As Stefania said, these regulations, that have been interpreted under the Chevron deference ruling from 40 years ago, meant that most of that power was in the bureaucracy. And again, I will say, we know that’s another area that conservatives talk about is the deep state and that one of the things that Donald Trump wants to do and The Heritage Foundation wants to do in another term, should Trump get one, would be to put political appointees into many of the positions that are now considered to be non-political positions in the federal bureaucracy and to reduce the federal bureaucracy. And as an example, they want to abolish the Department of Education. So I think that’s the nuanced way to see those two cases, in a conservative context.
Marc Filippino
There’s so much that has happened both just this year and as I mentioned earlier, that conservatives have pushed for and have gotten through: expanding gun rights, like we said, hollowing out regulatory agencies. Where does the conservative legal movement want to go next?
Stefania Palma
It’s difficult to say exactly what would be the priorities necessarily, but just on reproductive rights, there will definitely be more and more abortion cases that most probably will end up reaching the Supreme Court. And we have seen that also this term where a case on abortion pills or, at state level, questions around how would judges now weigh in on things like contraceptives? We’ve also seen some cases tackle IVF. So again, I definitely think the matter has not been closed in that sense.
Marc Filippino
You know, the conservative movement has focussed so much on not just the Supreme Court but the broader judicial branch. Why have they done that recently?
Stefania Palma
Being able to appoint, a vast amount of judges at every single level of the judicial system carries enormous weight. And we saw a very concrete example of this, just this term. So a Trump-appointed judge, in Texas, a district judge, Matthew Kacsmaryk, he was the one who originally ordered the Food and Drug Administration to withdraw its approval of the abortion pill. And then, slowly but surely, the case made its way all the way up to the Supreme Court, and the justices decided to take it on. Now, ultimately, they decided to go for almost a non-decision in the sense that they essentially just threw it back down to the lower courts. But that was a very, very real example of what the impact of appointing a whole sort of wave of lower court judges has in terms of shaping how the legal landscape is, set up in the country.
Barbara Perry
It’s so true, Stefania, that the vast majority of legal cases that come to the federal courts, of course, are decided before they ever get to the Supreme Court, in part because over the years, the Supreme Court has lowered the number of appeals that it will take to hear on appeal. When I was in graduate school back in the 1980s, studying the court, they were taking for full review 160 to 180 cases every term. That’s dropped to way below 100, more like 60 cases now. So the conservatives and liberals alike know that most of the cases in the federal system are going to be decided by those lower courts. It’s been a legal, a social legal movement by both liberals and conservatives and particularly liberal and conservative interest groups, going back to the 1960s and ‘70s, particularly to know how to change American political policies and public policies by reshaping the courts at the federal level in their own image and likeness.
Marc Filippino
So, as you’ve both said, Supreme Court justices and lower court judges have enormous power to shape the country. But it doesn’t seem like we pay them the same attention as we pay the president or even individual members of Congress. Now that we’ve had cases like the repeal of Roe, the presidential immunity case, do you think Americans will let the judicial system impact the way they vote, or just their politics more broadly?
Stefania Palma
I think, you’re right, Marc, in the sense that there have been such controversial mega, mega decisions that have come through, in the last few years that have impacted people’s lives, on a day-to-day basis. Again, the overturning of Roe is, a very clear one. The immunity decision that obviously has an immediate impact on the 2024 presidential race because Trump is the presumptive Republican nominee. These are cases that have really put a massive, massive spotlight on the courts, in a way that it has been quite rare historically, I would argue. And that really has incensed a lot of critics, especially because with such a big majority, for one particular ideological standpoint, in this case, we’re living in, at a time where it happens to be the conservatives that has naturally led individuals to attack the courts on the basis that it is being political, because some of the most controversial decisions have been split down ideological lines. So it definitely does feature heavily, I would say, in current political discourse. We still have sort of question marks around whether that will be fresh in people’s minds, come November.
Barbara Perry
One of my dear mentors, he used to like to put on exams, quotes from past justices and have students respond, you know, what could this mean? So to this point about how long-lasting are particularly Supreme Court decisions and precedents? He would put on the quote from Justice Robert Jackson, who was an FDR appointee. But Jackson, would say “We are not final because we, the Supreme Court, are infallible, but we are infallible because we are final”.
Marc Filippino
Wow. That really does sum up the stakes here, Barbara. Guys, one last question before we take a break. I think conservatives may have been a bit surprised that after Roe v Wade was overturned and the issue of abortion was sent back to the states, voters, even in swing states, even in red states voted against pro-life measures. So I guess what I’m asking is, even if the conservative movement has captured a big chunk of the judicial branch, it doesn’t necessarily mean that these issues are settled. Right?
Barbara Perry
This is where my political science hat goes on. And I love this conversation about where the people are versus where the court is today, the opinion polls, not just about the Roe decision and access to abortion and reproductive health, but many of the other cases that the court has decided in recent years. In a conservative vein, the opinion polls are showing that sometimes a vast majority of Americans agree with the slide, that the majority of the Supreme Court did not go, in that direction. And so I think that we see this discrepancy now between the court and political opinion, and popular opinion among the American people is leading to the lowest approval ratings the court has ever had since opinion poll takers began asking about it in the early ‘70s. And the court needs to be aware of that on top of some of its ethics issues right now, that it could destroy its own legitimacy.
Marc Filippino
Guys, this has been a fascinating conversation. I think at this point, we’re going to take a quick break, and when we come back, we’re going to do Exit Poll.
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[Unhedged Podcast clip]
Marc Filippino
We are back with Exit Poll, where we talk about something that did not happen on the campaign trail and apply rigorous political analysis to it. It’s been a big summer of soccer. The England men’s national team advanced this week to the final of the European championship, where they’ll face Spain. I’m sure lots of listeners are excited about that. But on this side of the pond, the US men’s national team failed spectacularly in the Copa America. They bowed out after a stunning loss to Panama a few weeks ago. So Barbara and Stefania, what do you make of this poor showing and how could it shape the presidential race, even. Stefania, why don’t you go?
Stefania Palma
(Chucke) I think, honestly, considering the enormous debate and meltdown, frankly, that we’re seeing around age and this presidential race, I think for both candidates who are both arguably elderly, any kind of parallel with sort of youthful and young athletes might not be something they want to, they want to focus on (laughter). But to be honest, though, as soon as you mentioned the US men’s soccer’s performance, honestly, the first thing I thought of was that probably the US women’s soccer team, is really experiencing some pretty great, schadenfreude, especially after having won sort of four World Cups and only managed to get a commitment from US soccer for equal pay, what was it, a couple of years ago?
Marc Filippino
Yeah, I forgot we even had a men’s team, to be honest with you. Barbara, what do you think? Any, any impact on the US presidential election?
Barbara Perry
Well, yes, I, I’m going to say this. I will be focussed because I am a traditional American who doesn’t understand soccer. I will be focusing on the Olympics. And I do think that that can have an impact on politics, because President Biden did allow himself to be seen next to an Olympian athlete. And that is the wonderful swimmer Katie Ledecky, the world champion, Olympic champion. He gave her an award of her at the White House recently, the Presidential Medal of Freedom. So that means he had to go up and stand by her and put the medal around her. And, I’m suggesting that perhaps if the Democrats are going to look for another candidate, maybe Katie Ledecky for president.
Marc Filippino
Great, Maryland zone. Love it. I want to thank our guest, Stefania Palma. She is the FT’s US legal and enforcement correspondent. Thanks, Stefania.
Stefania Palma
Thank you, Marc.
Marc Filippino
And Barbara Perry, she’s a professor of presidential studies at the University of Virginia’s Miller Center. Thanks, Barbara.
Barbara Perry
Thanks, Marc. Great to be with you and Stefania.
Marc Filippino
This was Swamp Notes, the US politics show from the FT News Briefing. If you want to sign up for the Swamp Notes newsletter, we’ve got a link to that in the show notes. Also, we would love to hear a bit more about you, how you read and use the FT and what you like about our show. So we’re running a short survey. Anyone who takes part by August 31st will be entered into a free prize drawing to win £1,000 or your local equivalent. Go to https://www.ft.com/ftsurvey2024. There’s also a link in the show notes and the terms and conditions for the prize drawing. Our show is mixed and produced by Ethan Plotkin. It’s also produced by Lauren Fedor and Sonja Hutson. Special thanks, as always, to Pierre Nicholson. I’m your host, Marc Filippino. Our executive producer is Topher Forhecz, and Cheryl Brumley is the FT’s global head of audio. Original music by Hannis Brown. Check back next week for more US political analysis from the Financial Times.
