May 25, 2021 • 31 mins
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.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Shanny Luft (00:07):
Thank you for listening to No Cure for
Curiosity. I am Shanny Luft,Associate Dean of General
Education at the University ofWisconsin-Stevens Point. Before
the show begins, I want to thankeveryone who's been listening to
the podcast and sharing theirthoughts about No Cure for
Curiosity. And I've got reallyexciting plans for season two,
which I can't wait for you tohear more about. Stay tuned
after this episode to hear alittle more details about that.
(00:29):
The plan for my podcast has beento release episodes during the
fall and spring semester, whichmeans this will be the last
episode of season one. Duringthe summer I'll be recording and
preparing for season two, whichwill start in September. If you
listen to No Cure for Curiosityon any podcast app, please hit
the subscribe button so you'llautomatically receive updates
when new episodes begin airing.
If you listen from our website,please join the No Cure for
(00:51):
Curiosity Facebook page, whichwill be updated as new episodes
come out. While I'm recordingthis summer, I also plan to
release some bonus content fromthis past season and some
teasers for some of the greatupcoming episodes that are going
to be out for season two, soplease look out for those. On
today's episode we're going tobe talking about the Supreme
Court. And last four years, athird of the Supreme Court was
(01:11):
replaced. Neil Gorsuch replacedAntonin Scalia in 2017. Then
Brett Kavanaugh replaced AnthonyKennedy in 2018, and Amy Coney
Barrett replaced Ruth BaderGinsburg just last year. I
invited Professor John Blakemanto talk with me about the recent
Supreme Court term. JohnBlakeman is currently a
professor and the Eugene Katzdistinguished faculty member in
(01:32):
the Department of PoliticalScience at UWSP. He has held
previous faculty appointments atBaylor University, Sweetbriar
College and the University ofVirginia. Dr. Blakeman has
authored and co-authored bookson federal courts and religious
liberty, the Supreme Court andFederalism, and American
constitutional development. Heholds advanced degrees from the
University of Virginia and theLondon School of Economics, and
(01:54):
is originally from easternKentucky. I asked John about
some of the major cases thecourt reviewed this past year,
some of which we're stillwaiting for rulings on. My first
question to John was about howthe three new court appointments
have influenced the overalldirection of the court.
John Blakeman (02:13):
People who study the Supreme Court always think
about it in terms of eight,eight justices and the Chief
Justice. So if you take atypical split an ideological
split on the court itself, in asense, there's always going to
be a justice in the middle,right. So if the court is evenly
(02:35):
divided, you'll have fourjustices on the left or on the
right, and then who we call theswing vote in the middle. And
the swing vote is very, veryimportant. You know, we could go
back to the appointment ofAnthony Kennedy. By the time
Kennedy had been on the courtfor about a decade and then into
the early 2000s he had emergedas the swing vote, and so in
(02:58):
closely decided decisions, itwas all from Justice Kennedy,
who swayed the court onedirection or the other. With his
retirement, the swing vote sortof shifted to Chief Justice John
Roberts. And now the speculationis with the appointment of Brett
Kavanaugh and Neil Gorsuch andAmy Coney Barrett, the swing
(03:20):
vote is shifting a little tomore to the right, so that
Justice Kavanaugh will mostlikely be the new swing vote.
And what that indicates is thecourt itself with the three
appointments from PresidentTrump, the court itself is
shifting to the right. Now howfar right that is, I don't think
(03:41):
we have a sense of that justyet. But there's now a solid six
justice majority on theconservative side, with perhaps
Justice Kavanaugh, maybe JusticeGorsuch from time to time,
joining the three or fourliberal justices to decide a
(04:02):
case a certain way. And sothere's no question that
President Trump has made hismark on the US Supreme Court, he
has shifted it rightward. Nowagain, where we will see that I
don't really know.
Shanny Luft (04:13):
One thing I've seen come up over and over again, is
presidents appoint a justice andthey have specific reasons for
appointing that person. Theyoften are hoping or expecting
that that justice will carryforward the you know, the the
President's ideals or philosophyor agenda, and that there's a
lot of examples where thatdoesn't happen. Justices are
(04:33):
appointed for life, so theydon't have to answer to the
person who appointed them. Andthen the public and the
president learned that thejustice's philosophy doesn't
align with the president whoappointed them very well.
John Blakeman (04:46):
Yeah,
Shanny Luft (04:46):
I'm curious what you think of that with Gorsuch,
Kavanaugh, and Amy ConeyBarrett?
John Blakeman (04:50):
Well, yeah, I mean, justices historically
change over time their viewsevolve, and especially in the
latter half of the 20th centuryto the present day, conservative
justices have typically become alittle more liberal. I can't
necessarily say that a liberaljustice once he or she comes on
to the court becomes moreconservative. So it seems to
(05:12):
work in one direction withJustice Gorsuch, Justice
Kavanaugh, Justice ConeyBarrett, you know, it's still
too early to tell. I thinkJustice Gorsuch is he seems to
be more libertarian in how heapproaches rights and liberties,
which would sort of nudge himmore towards the left. He's, you
(05:37):
know, what we call aconservative when it comes to
regulatory issues. He's veryinterested in reining in federal
agencies. With Justice Kavanaughthat's a tricky one as well. I
think Kavanaugh is sort of likeGorsuch and probably a little
more libertarian on rights andliberties, where he stands on
regulatory issues. I honestlydon't know. But you know, in my
(05:59):
Law Society class, just thissemester, I had my students read
an important decision from JudgeKavanaugh, when he was on the DC
Circuit Court of Appeals, thedecision where he sort of led
the way among federal appellatecourts in accepting battered
woman syndrome, which we wouldreally call battered partner
(06:21):
syndrome, as a credible defensein federal criminal law. And you
know, that's a that's I don'twant to call it a revolutionary
decision. But it recognizes init forces, lower trial judges to
recognize that there are manydifferent things going on when a
person who has been battered bya spouse or a partner commits a
(06:46):
criminal act against thatpartner, you know, judges don't
normally think that way. And sothat indicates to me that
Justice Kavanaugh might approachif similar issues and what we
call a more liberal or moderatedirection. With Justice Coney
Barrett, it's way too soon totell other than she will view
(07:06):
the Free Exercise Clause and theEstablishment Clause in the
constitution very, very stronglyin the sense that she will work
to protect the free exerciserights of individuals, and
churches, and religious groups.
And she will probably beprobably be more than willing to
sort of lower the wall ofseparation between church and
state in the EstablishmentClause.
Shanny Luft (07:29):
Let's talk about some of the cases this year.
John Blakeman (07:31):
Yeah. Okay.
Shanny Luft (07:32):
When when I talk about specific Supreme Court
cases with my students, one ofthe things I tell them is, by
the time a case makes it to theSupreme Court, it is probably by
definition, a difficult issue.
If it were obvious or easy. Ifthe answer were clear to
everybody, it'll get decidedbefore it reaches the Supreme
Court.
John Blakeman (07:50):
Yes, absolutely.
They're not easy.
Shanny Luft (07:53):
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 readythat Roman Catholic Diocese of
Brooklyn versus Governor Cuomocase. Right. So just to set it
up, New York Governor AndrewCuomo had an executive order
that limited the number ofindividuals who could gather in
(08:13):
places of worship, and places ofworship were treated, basically,
like other kinds of businesses,in which the, the governor was
instituting certain kinds ofpolicies about how many people
could congregate in one place.
The Supreme Court decision was aresponse to appeals by the Roman
Catholic Diocese of Brooklyn andalso Orthodox Jewish
(08:34):
congregation. And it was decidedfive to four, they decided on
the side of the Catholic Church,that the plaintiffs had made a
case that the governor's orderviolated the minimum
requirements of neutrality. I'mreally interested in that case
and your thoughts about it.
John Blakeman (08:51):
That was a really, really fascinating case,
because it illustrates a lot ofthings about the Supreme Court.
Shanny Luft (08:57):
In that case, there were some there were certain
kinds of businesses that thegovernor was the governor had
shut down, and there's noconstitutional right that you
know, bars have to remain open.
John Blakeman (09:08):
Right.
Shanny Luft (09:09):
Right. So certain kinds of businesses, the
governor in this case, in aemergency, right, a pandemic,
the governor had the authorityto shut down certain kinds of
businesses, but the governorallowed other kinds of business
stay open for presumablyemergency reasons, right?
groceries, we need gasoline.
John Blakeman (09:25):
Yep. Yep.
Shanny Luft (09:26):
And the court seemed to the court basically
said, you can't treat if you'regoing to allow certain kinds of
businesses to stay open, thenyou need to defer to religious
bodies in the same way.
John Blakeman (09:38):
Yeah.
Shanny Luft (09:38):
Right. Either shut, you can shut everything down.
And then religious organizationsbe a part of it. But if you're
going to allow certain specifickinds of exemptions, religious
bodies need to be one of thoseexemptions, too.
John Blakeman (09:51):
Yeah, yeah, that's how I would read it. And
you know, and I would alsoconsider it, at least the five
justice majority was willing toplace the First Amendment rights
of religious groups and housesof worship above a state
governor's executive power todeal with a pandemic. And you
know, that's if a state doesn'twant to balance things that way,
(10:14):
you know, the state legislaturewants to allow its governor to
shut down businesses and housesof worship during a pandemic, it
can probably empower thegovernor to do that. I think in
this case, New York had not donethat.
Shanny Luft (10:30):
Okay.
John Blakeman (10:30):
And so that probably affected the courts
reasoning as well, if a similarcase comes back up with the next
pandemic, back up to the SupremeCourt, I think the justices
would probably take a long lookat what the governor or
executive's authority reallywas. And that might factor into
their reasons. Now, there'sanother interesting case,
(10:51):
religious liberty case, Fultonversus city of Philadelphia,
which is really going to forcethe Supreme Court and the rest
of us to confront twoconflicting constitutional
rights, basically, and one isthe right to the free exercise
of religion and religious beliefand the right to act upon that
(11:12):
belief. And the other is theright to equality, the right to
be free from discrimination. Andso Philadelphia, like, you know,
pretty much any municipalitycontracts out a lot of its
services. It contracts out itsfoster care services. To
participate in city inPhiladelphia's foster care
(11:35):
program, well you have to meetthe city's guidelines on
providing foster care, one ofwhich you have to be inclusive,
you have to agree to the city'snon discrimination clause, and
its non discrimination policies,which now include same sex
marriage. So we have Catholicsocial services in Philadelphia
(11:58):
that has contracted withPhiladelphia, for foster care
services for a long time, andyou know, Catholic social
services will place fosterchildren in families that it
interacts with. Catholic socialservices says we will not place
foster foster children in homesof same sex couples. And
(12:20):
Philadelphia says fine, we'restriking you off our contract
lists, we will no longer dobusiness with you for foster
care placements. And so Catholicsocial services, Susan says, you
know, you've put us in aposition where we either give up
a basic religious belief, whichis, you know, heterosexual
(12:42):
couples only, or we give up thatbelief, and we continue to
contract with the city for thesevital services. And how the
courts gonna decide that one, Idon't know, because it presents
two constitutional rights indirect conflict with each other.
Shanny Luft (13:01):
Right. And so essentially, Catholic social
services is saying, if Iunderstand correctly, the city
of Philadelphia's action to tryto remove them from the foster
care contracts is discriminatingagainst Catholic religious
freedoms, right. At the sametime, the court has to weigh
their own responsibility toprotect the freedoms of same sex
(13:25):
couples as foster parents andnot have them discriminated
against.
John Blakeman (13:28):
And and Philadelphia has to comply with
sort of state and federal nondiscrimination laws too, and the
oral arguments. Chief JusticeJohn Roberts indicated that it
might be best if Philadelphiaand Catholic social services
worked out some kind ofcompromise.
Shanny Luft (13:47):
Is that because the court doesn't want to make a
decision? They would like thisdecided some other way.
John Blakeman (13:52):
Yeah, you know, Chief Justice John
Roberts is known for trying toprotect the legitimacy of the
court. Right. And you can'tfault him for that. And I think
he might see this as one casewhere if the court really wades
into it, it's going to tick offhalf the country. Half the
country will love it, you know,and the court doesn't want to be
(14:13):
in that position. It's anuntenable position to be facing.
Shanny Luft (14:19):
Another case I'm really interested in your
thoughts on is one I think thatwas just argued last week,
Mahoney Area School Districtversus B.L.
John Blakeman (14:27):
Oh, yeah,
Shanny Luft (14:27):
So Levy was a ninth grader who failed to make the
varsity cheerleading squad. Shegoes on, I think it was Snapchat
where she said f school fsoftball f cheer f every -- She
didn't say f but she expressedher disdain for everything
related to the school. Sheposted this in a message that
(14:48):
was then brought to the schooland then she received a one year
suspension from the cheerleadingprogram. So this case ends up in
the supreme court as a freedomof speech case. Part of what's
fascinating to me about that wasthe court in the past has ruled
that schools are entitled tocurb students' freedom of speech
in certain instances on schoolgrounds, right, that, that
(15:12):
students don't have all theprotections of the Constitution,
necessarily, and because schoolshave other things that they're
trying to balance, right schoolsafety, things like that. In
this case, though, she was notat school. Right? She was
posting this on Snapchat. Andwhat I find really fascinating
about this case is the questionbeing asked is to what degree
(15:35):
are schools entitled to respondto or curb free speech outside
of school grounds. And then inthis case, it feels the idea of
school grounds, I think, becauseof COVID is now a different
thing.
John Blakeman (15:50):
That's true
Shanny Luft (15:50):
Right they're -- My daughter is permanently, she
started off homeschoolingbecause of COVID. And she loves
it so much, she is going to dokind of homeschooling, you know,
over Zoom for the rest of herhigh school experience. So she's
never on school grounds. Orshe's always on school grounds.
John Blakeman (16:09):
Right, right. Right.
Shanny Luft (16:10):
Right. And that's so the court has to kind of
weigh in on this case. I'mfascinated by this. And I think
they just heard oral argumentslast week. So we don't have a
decision.
John Blakeman (16:18):
They did. Yeah.
And and I had, I do not know howto predict this one. But I'll
put it in context for you know,so we go back to 1969, with
Tinker versus Des Moines, whichis one of the great free speech
cases in American history.
Except it's not, you know. Soyou've got the Tinker children
in Des Moines, Iowa, who areQuakers. And they're pacifists.
(16:40):
And they wear black armbands totheir public schools in Des
Moines to protest the VietnamWar. They're temporarily
suspended. They sue. The SupremeCourt, a divided Supreme Court
says a school can censor andregulate students' speech in
order to maintain disciplinewithin the school. Right? That
(17:04):
sort of makes sense. If youthink about it within the
school, then we've got thefamous bong hits for Jesus case
coming out of Alaska, maybe 20years ago, which is it's a it's
a it's a student free speechcase where a student who is
attending a school function towatch the Olympic torch go by,
(17:28):
but he's not on school grounds,unfurls a banner that simply
says bong hits for Jesus. And Ibelieve a school principal comes
over rips it down, that leavesall these disciplinary issues.
And the Supreme Court saysTinker versus Des Moines. Even
though the student was notliterally on school property, he
(17:52):
was part of a school function.
So therefore his speech can beregulated. And I think that's
what we're going to see in thiscase. But the the justices have,
as you pointed out, the justiceshave to navigate this really
tricky scenario of when schoolliterally ends both
geographically, temporally,digitally. And I don't know, I,
(18:17):
I guess I have this hunch that abare majority of the justices
will probably say, Hey, youknow, student speech on social
media, at least as related toschool function falls under
Tinker versus Des Moines too andit can be regulated. But I
honestly don't know, this reallyshows, you know how the free
(18:38):
speech clause really pushesboundaries that we hadn't
thought about 10 years ago, 20years ago.
Shanny Luft (18:48):
Is that because of where social media is?
John Blakeman (18:50):
Yeah.
Shanny Luft (18:50):
Because she didn't say this. It's not as if she was
in like a digital classroom andsaid this right. She said this
John Blakeman (18:56):
Right, exactly,
Shanny Luft (18:56):
I guess to her friends. Right. And does that
count as a private conversationamong her friends?
John Blakeman (19:02):
Uh, yeah, exactly. Exactly.
Shanny Luft (19:04):
I'm fascinated by that case.
John Blakeman (19:05):
I don't know. I don't know the answer to that.
Shanny Luft (19:07):
But we'll find out in a couple months.
John Blakeman (19:10):
But let's face it, let's face it, school
administrators really want theSupreme Court to say yeah, you
can regulate private students'speech on social media if it's
related to the school, whereasstudents would really like to
have their free speech libertiesintact.
Shanny Luft (19:27):
So what is the argument from the school about
the harm of speech like thisbong hits for Jesus and fuck
school, fuck softball, is theargument it just undermines the
authority. And I mean, it soundsas if it's not like a safety
argument.
John Blakeman (19:40):
Yeah, yeah. The the bong hits for
Jesus case was the school one ofthe school's arguments was look,
This is drug, pro drug relatedspeech. We can't allow that. But
it's also underminingadministrative authority. You
gotta be sympathetic to thatargument to a certain extent,
but there are always going to bejustices, we can go back to
(20:01):
Tinker versus Des Moines. Wherewho was it was a Justice Fortas?
I can't recall exactly who said,you know, maybe it was Justice
Douglas, the free speech rightsof a student do not stop at the
schoolhouse gate. They continueon into the school. So there
will always be justices who aremore libertarian when it comes
(20:22):
to the rights of students. Andyou know, we're not going to
solve this conflict anytimesoon.
Shanny Luft (20:30):
I've really enjoyed talking to you about all these
cases, some of them have beendecided some of them will have
to wait another month or twobefore the court tells us what
they think.
John Blakeman (20:40):
So the last one to pay attention to is NCAA vs.
Austin. And this is the questionthat we all want to know. You
know, the NCAA regulates collegeathletics, you if you are
competing under NCAA rules, youmust follow NCAA eligibility
guidelines. Those eligibilityguidelines prohibit you from a
(21:04):
as a college athlete from beingcompensated for your play. And
so I'm not quite sure who theplaintiff is Austin, but several
college athletes have sued theNCAA under the Sherman Antitrust
Act, which was passed back inthe mid 1890s. Still around
(21:26):
still a very, very importantfederal statute that allows the
federal government to bust upmonopolies. And the big question
is, does the NCAA fall under theSherman Antitrust Act, do
amateur athletics, which is theNCAA's argument, do amateur
athletics fall under theantitrust laws of the United
(21:50):
States? And depending on how theSupreme 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 exemptsthe NCAA from federal antitrust
(22:13):
law that empowers the NCAA tocontinue on with its eligibility
rules, I suppose I it'sinteresting, if you look at the
oral arguments, Justice Breyersaid indicates that, in his
opinion, judges have no businesswading into college athletics.
And he has a point there. Thethe NCAA press the point to the
(22:36):
Supreme Court that look, thereare a lot of state legislators
right now who are debating theirown state laws to regulate the
NCAA. And I think what the NCAAwas trying to do there is say to
the justices, look, why don'tyou all stay out of it as an
institution? Let's see how thestates regulate us. And then
(22:57):
let's take it from there.
Shanny Luft (22:58):
So is what's driving this case? I don't
follow NC. I don't I don'tfollow a college basketball. But
I do follow the you're shocked.
Well, you're from Kentucky, so Ican understand why that's
important.
John Blakeman (23:11):
Yeah. Right.
Shanny Luft (23:11):
And I shouldn't admit that as a grad student
from UNC Chapel Hill,
John Blakeman (23:15):
Yeah, I know.
That is shocking.
Shanny Luft (23:18):
The part of the debate about the NCAA that I
find interesting is collegeplayers from whom universities
make millions of dollars.
John Blakeman (23:27):
Yeah.
Shanny Luft (23:27):
And then these players are essentially working
for free. But my question isabout compensation, because the
university's arguments is thestudents are getting free
educations, or at least heavilydiscounted educations that is
counting as compensation. Isthat argument no longer holding
right?
John Blakeman (23:46):
I don't know that's a good point. And I'm
sure the NCAA makes thatargument in its legal briefs.
I'll have to go look them up tocheck. But yeah,
Shanny Luft (23:54):
why do you think this case is happening now? Is
there something specific thatjust kind of draw this to the
fore?
John Blakeman (24:01):
I -- That's that's a good question. I don't
know. There are probably a lotof social and economic causes
behind it. I think we have nowrealized that the staggering
sums of money that some DivisionOne athletic programs make and
do not pass on to theirathletes. We have realized that
(24:23):
a lot of these athletes areAfrican American. And so I can
only think that there's a lot ofactivism that feeds into that as
well. There are a lot of womenathletes, obviously at the
division one level who aren'tbeing paid. So I think it's just
(24:43):
a general awareness of issues ofrace and gender in college
athletics. And again, thestaggering sums of money that
flow in to a lot of athleticprograms not at Division Three,
where we are, of course, but atdivision one and division two.
Shanny Luft (25:00):
So all these cases that you've described, they've
already been argued. Is thatright?
John Blakeman (25:04):
Yes. Yep.
Shanny Luft (25:05):
And so we are all just waiting enthusiastically to
see.
John Blakeman (25:08):
We're waiting enthusiastically Yes.
Shanny Luft (25:11):
To see where this all -- and we'll find out in
what June July?
John Blakeman (25:14):
Yeah, I would say by late June. Okay. Oh, and
there's one other case, the lastone which Obamacare, the
Affordable Care Act has comearound yet again.
Shanny Luft (25:25):
Yeah.
John Blakeman (25:26):
So you might recall years ago, this, the
Supreme Court struck down theindividual mandate as
unconstitutional, but allowedthe statute the Affordable Care
Act to continue on. The questionnow is without the individual
mandate, can the Affordable CareAct still exist? So can in a
(25:48):
sense, can you sever theindividual mandate from the act
itself? Several state attorneysgeneral from conservative states
have argued No, you can't. Nowthat you've gotten rid of the
individual individual mandate,it means the whole statute
collapses. And so if the SupremeCourt decides that, that will be
(26:13):
that will cause a lot ofshockwaves, given how many
people are now buying theirhealth insurance out of the
Affordable Care Act exchanges,and you know how ingrained the
Affordable Care Act is, in ourunderstanding of health care
policy. Plus the fact thatCongress tried to repeal it
twice, and was unsuccessful.
Shanny Luft (26:34):
Right. So
John Blakeman (26:36):
I would say out of out of this term, that's
probably the case to watch. AndI really feel bad for the
justices having to decide thatone.
Shanny Luft (26:46):
And the Obamacare case, the Supreme Court has had
to weigh in on that now separateit's been, of course, different
groups of justices. But they'veweighed in on this for a decade,
right in different contexts.
John Blakeman (26:57):
Yeah, that's right.
Shanny Luft (26:58):
But my thought about both the NCAA case and the
Obamacare case is the courtruling could profoundly change
enormous things. Right,depending on what happens with
the NCAA case that could changesomething substantial about
universities?
John Blakeman (27:12):
Yeah, right.
Shanny Luft (27:13):
Right. That would have to sort of I mean, some of
their universities that themoney they're making from their
college basketball team is whatis propping up the university.
John Blakeman (27:22):
Right.
Shanny Luft (27:22):
The Obamacare case, there are 20 million people who
get their insurance through theObamacare market, that one
decision could affect millionsof people. And my impression is
the supreme court does not liketo make decisions that are that
in one day, suddenly affect 1020 million people
John Blakeman (27:42):
Right.
Shanny Luft (27:42):
Right that they want legislators to do that.
John Blakeman (27:45):
Yeah, you know, and historically, when it comes
to athletics, and the AntitrustAct, thinking of Major League
Baseball, for example, theSupreme Court does not have a
good track record there. So Ican see in the NCAA case, the
justices saying, you know what,this really belongs in Congress,
if Congress wants to extend theAntitrust Act to college
(28:07):
athletics have at it. But youcan see if the Supreme a
majority say yeah, the NCAA nowfalls under federal antitrust
regulations. All of a sudden,college athletics fall under the
Department of Justice, which isthe main enforcer of federal
antitrust law, but that's goingto bring in the Department of
(28:27):
Education, it's going to bringfederal agencies and the federal
government into an area ofuniversity life where the
government hasn't been in a realsense. And I can see the
justices might think that might,you know, that's unpredictable.
And I'll tell you how that willturn out. So we'll just step
back from that. And you're rightwith the Affordable Care Act
(28:49):
too, you know, the Supreme Courtwould potentially up end health
care or 20 million Americans.
Now, we don't want the supremecourt to decide a case because
of the effect or the impact ofit. Right? Because then they're
no different than ourlegislative body. But the
reality is, I figure that goesthrough the minds of the
(29:10):
justices all the time.
Shanny Luft (29:13):
Right. And it does seem to particularly influence
the the John Roberts. Right. Asyou said earlier in this
conversation, he is reallysensitive to the public
perception of the court.
John Blakeman (29:23):
Yeah.
Shanny Luft (29:24):
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 (29:33):
Right.
Shanny Luft (29:34):
These cases are really fascinating. Part of what
I love about these Supreme Courtcases is as we talked about
earlier, they're almost alwaysreally interesting, knotty,
thorny problems.
John Blakeman (29:43):
Yeah.
Shanny Luft (29:44):
To wrestle with.
They're also great narratives.
John Blakeman (29:46):
They are great narratives.
Shanny Luft (29:47):
So many Supreme Court cases are great stories to
tell. And their impact. Thesecases have an impact on a lot of
people's lives more so than Ithink some of us realize.
John Blakeman (29:55):
Yeah, absolutely.
Absolutely.
Shanny Luft (29:57):
So thank you for coming on today.
John Blakeman (29:59):
Yeah.
Shanny Luft (29:59):
Will you come back after these cases are decided,
and so we can maybe get ascorecard of how the Supreme
Court did?
John Blakeman (30:06):
Yeah, we should.
Shanny Luft (30:07):
John Blakeman is currently the professor and
Eugene Katz distinguishedfaculty member in the Department
of Political Science at UWSP.
John, it is so much fun to talkto you about these cases, I'd
love to talk about the politicsof them, the philosophy, the
history. So thank you so muchfor joining me.
John Blakeman (30:22):
Yeah, you're welcome, Shanny. Thanks for
having me.
Shanny Luft (30:26):
And so that wraps up Season One of No Cure for
Curiosity. I have had such ablast, having conversations with
my colleagues, and discussing arange of topics from Wonder
Woman and King Kong andGodzilla, to curse words, deep
ecology, and the Supreme Court.
It's been a lot of fun. I'mreally grateful for all the
people who took the time out tojoin me as well as everyone
who's tuned in and listened. Wehave had listeners from all over
(30:48):
the country from coast to coast,as well as all over the world
from Germany and Paris, toTunisia and Australia. It's been
really fun to see people findthe podcast. If you've been
enjoying the show, please shareit with your friends. And please
come to our No Cure forCuriosity Facebook page, let us
know what you think about theSupreme Court cases. If you have
thoughts or questions about anyof the episodes we've recorded,
(31:08):
I'd love to hear what you thinkyou can always drop me a line at
nocureforcuriosity@outlook.com.
Thanks so much for listening.
Stay tuned this summer for somebonus content. And I'll see you
next semester with some brandnew really fun episodes, we'll
keep exploring our curiositiestogether.
Gretel Stock (31:25):
This podcast is brought to you by University
College at University ofWisconsin-Stevens Point. Our
mission is to providecoordinated intentional and
inclusive services andopportunities through our core
values of connecting,supporting, collaborating and
engaging. Learn more aboutUW-Stevens Point and all our
programs at uwsp.edu.
Thank you for listening to No Cure for
Curiosity. I am Shanny Luft,Associate Dean of General
Education at the University ofWisconsin-Stevens Point. Before
the show begins, I want to thankeveryone who's been listening to
the podcast and sharing theirthoughts about No Cure for
Curiosity. And I've got reallyexciting plans for season two,
which I can't wait for you tohear more about. Stay tuned
after this episode to hear alittle more details about that.
(00:29):
The plan for my podcast has beento release episodes during the
fall and spring semester, whichmeans this will be the last
episode of season one. Duringthe summer I'll be recording and
preparing for season two, whichwill start in September. If you
listen to No Cure for Curiosityon any podcast app, please hit
the subscribe button so you'llautomatically receive updates
when new episodes begin airing.
If you listen from our website,please join the No Cure for
(00:51):
Curiosity Facebook page, whichwill be updated as new episodes
come out. While I'm recordingthis summer, I also plan to
release some bonus content fromthis past season and some
teasers for some of the greatupcoming episodes that are going
to be out for season two, soplease look out for those. On
today's episode we're going tobe talking about the Supreme
Court. And last four years, athird of the Supreme Court was
(01:11):
replaced. Neil Gorsuch replacedAntonin Scalia in 2017. Then
Brett Kavanaugh replaced AnthonyKennedy in 2018, and Amy Coney
Barrett replaced Ruth BaderGinsburg just last year. I
invited Professor John Blakemanto talk with me about the recent
Supreme Court term. JohnBlakeman is currently a
professor and the Eugene Katzdistinguished faculty member in
(01:32):
the Department of PoliticalScience at UWSP. He has held
previous faculty appointments atBaylor University, Sweetbriar
College and the University ofVirginia. Dr. Blakeman has
authored and co-authored bookson federal courts and religious
liberty, the Supreme Court andFederalism, and American
constitutional development. Heholds advanced degrees from the
University of Virginia and theLondon School of Economics, and
(01:54):
is originally from easternKentucky. I asked John about
some of the major cases thecourt reviewed this past year,
some of which we're stillwaiting for rulings on. My first
question to John was about howthe three new court appointments
have influenced the overalldirection of the court.
John Blakeman (02:13):
People who study the Supreme Court always think
about it in terms of eight,eight justices and the Chief
Justice. So if you take atypical split an ideological
split on the court itself, in asense, there's always going to
be a justice in the middle,right. So if the court is evenly
(02:35):
divided, you'll have fourjustices on the left or on the
right, and then who we call theswing vote in the middle. And
the swing vote is very, veryimportant. You know, we could go
back to the appointment ofAnthony Kennedy. By the time
Kennedy had been on the courtfor about a decade and then into
the early 2000s he had emergedas the swing vote, and so in
(02:58):
closely decided decisions, itwas all from Justice Kennedy,
who swayed the court onedirection or the other. With his
retirement, the swing vote sortof shifted to Chief Justice John
Roberts. And now the speculationis with the appointment of Brett
Kavanaugh and Neil Gorsuch andAmy Coney Barrett, the swing
(03:20):
vote is shifting a little tomore to the right, so that
Justice Kavanaugh will mostlikely be the new swing vote.
And what that indicates is thecourt itself with the three
appointments from PresidentTrump, the court itself is
shifting to the right. Now howfar right that is, I don't think
(03:41):
we have a sense of that justyet. But there's now a solid six
justice majority on theconservative side, with perhaps
Justice Kavanaugh, maybe JusticeGorsuch from time to time,
joining the three or fourliberal justices to decide a
(04:02):
case a certain way. And sothere's no question that
President Trump has made hismark on the US Supreme Court, he
has shifted it rightward. Nowagain, where we will see that I
don't really know.
Shanny Luft (04:13):
One thing I've seen come up over and over again, is
presidents appoint a justice andthey have specific reasons for
appointing that person. Theyoften are hoping or expecting
that that justice will carryforward the you know, the the
President's ideals or philosophyor agenda, and that there's a
lot of examples where thatdoesn't happen. Justices are
(04:33):
appointed for life, so theydon't have to answer to the
person who appointed them. Andthen the public and the
president learned that thejustice's philosophy doesn't
align with the president whoappointed them very well.
John Blakeman (04:46):
Yeah,
Shanny Luft (04:46):
I'm curious what you think of that with Gorsuch,
Kavanaugh, and Amy ConeyBarrett?
John Blakeman (04:50):
Well, yeah, I mean, justices historically
change over time their viewsevolve, and especially in the
latter half of the 20th centuryto the present day, conservative
justices have typically become alittle more liberal. I can't
necessarily say that a liberaljustice once he or she comes on
to the court becomes moreconservative. So it seems to
(05:12):
work in one direction withJustice Gorsuch, Justice
Kavanaugh, Justice ConeyBarrett, you know, it's still
too early to tell. I thinkJustice Gorsuch is he seems to
be more libertarian in how heapproaches rights and liberties,
which would sort of nudge himmore towards the left. He's, you
(05:37):
know, what we call aconservative when it comes to
regulatory issues. He's veryinterested in reining in federal
agencies. With Justice Kavanaughthat's a tricky one as well. I
think Kavanaugh is sort of likeGorsuch and probably a little
more libertarian on rights andliberties, where he stands on
regulatory issues. I honestlydon't know. But you know, in my
(05:59):
Law Society class, just thissemester, I had my students read
an important decision from JudgeKavanaugh, when he was on the DC
Circuit Court of Appeals, thedecision where he sort of led
the way among federal appellatecourts in accepting battered
woman syndrome, which we wouldreally call battered partner
(06:21):
syndrome, as a credible defensein federal criminal law. And you
know, that's a that's I don'twant to call it a revolutionary
decision. But it recognizes init forces, lower trial judges to
recognize that there are manydifferent things going on when a
person who has been battered bya spouse or a partner commits a
(06:46):
criminal act against thatpartner, you know, judges don't
normally think that way. And sothat indicates to me that
Justice Kavanaugh might approachif similar issues and what we
call a more liberal or moderatedirection. With Justice Coney
Barrett, it's way too soon totell other than she will view
(07:06):
the Free Exercise Clause and theEstablishment Clause in the
constitution very, very stronglyin the sense that she will work
to protect the free exerciserights of individuals, and
churches, and religious groups.
And she will probably beprobably be more than willing to
sort of lower the wall ofseparation between church and
state in the EstablishmentClause.
Shanny Luft (07:29):
Let's talk about some of the cases this year.
John Blakeman (07:31):
Yeah. Okay.
Shanny Luft (07:32):
When when I talk about specific Supreme Court
cases with my students, one ofthe things I tell them is, by
the time a case makes it to theSupreme Court, it is probably by
definition, a difficult issue.
If it were obvious or easy. Ifthe answer were clear to
everybody, it'll get decidedbefore it reaches the Supreme
Court.
John Blakeman (07:50):
Yes, absolutely.
They're not easy.
Shanny Luft (07:53):
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 readythat Roman Catholic Diocese of
Brooklyn versus Governor Cuomocase. Right. So just to set it
up, New York Governor AndrewCuomo had an executive order
that limited the number ofindividuals who could gather in
(08:13):
places of worship, and places ofworship were treated, basically,
like other kinds of businesses,in which the, the governor was
instituting certain kinds ofpolicies about how many people
could congregate in one place.
The Supreme Court decision was aresponse to appeals by the Roman
Catholic Diocese of Brooklyn andalso Orthodox Jewish
(08:34):
congregation. And it was decidedfive to four, they decided on
the side of the Catholic Church,that the plaintiffs had made a
case that the governor's orderviolated the minimum
requirements of neutrality. I'mreally interested in that case
and your thoughts about it.
John Blakeman (08:51):
That was a really, really fascinating case,
because it illustrates a lot ofthings about the Supreme Court.
Shanny Luft (08:57):
In that case, there were some there were certain
kinds of businesses that thegovernor was the governor had
shut down, and there's noconstitutional right that you
know, bars have to remain open.
John Blakeman (09:08):
Right.
Shanny Luft (09:09):
Right. So certain kinds of businesses, the
governor in this case, in aemergency, right, a pandemic,
the governor had the authorityto shut down certain kinds of
businesses, but the governorallowed other kinds of business
stay open for presumablyemergency reasons, right?
groceries, we need gasoline.
John Blakeman (09:25):
Yep. Yep.
Shanny Luft (09:26):
And the court seemed to the court basically
said, you can't treat if you'regoing to allow certain kinds of
businesses to stay open, thenyou need to defer to religious
bodies in the same way.
John Blakeman (09:38):
Yeah.
Shanny Luft (09:38):
Right. Either shut, you can shut everything down.
And then religious organizationsbe a part of it. But if you're
going to allow certain specifickinds of exemptions, religious
bodies need to be one of thoseexemptions, too.
John Blakeman (09:51):
Yeah, yeah, that's how I would read it. And
you know, and I would alsoconsider it, at least the five
justice majority was willing toplace the First Amendment rights
of religious groups and housesof worship above a state
governor's executive power todeal with a pandemic. And you
know, that's if a state doesn'twant to balance things that way,
(10:14):
you know, the state legislaturewants to allow its governor to
shut down businesses and housesof worship during a pandemic, it
can probably empower thegovernor to do that. I think in
this case, New York had not donethat.
Shanny Luft (10:30):
Okay.
John Blakeman (10:30):
And so that probably affected the courts
reasoning as well, if a similarcase comes back up with the next
pandemic, back up to the SupremeCourt, I think the justices
would probably take a long lookat what the governor or
executive's authority reallywas. And that might factor into
their reasons. Now, there'sanother interesting case,
(10:51):
religious liberty case, Fultonversus city of Philadelphia,
which is really going to forcethe Supreme Court and the rest
of us to confront twoconflicting constitutional
rights, basically, and one isthe right to the free exercise
of religion and religious beliefand the right to act upon that
(11:12):
belief. And the other is theright to equality, the right to
be free from discrimination. Andso Philadelphia, like, you know,
pretty much any municipalitycontracts out a lot of its
services. It contracts out itsfoster care services. To
participate in city inPhiladelphia's foster care
(11:35):
program, well you have to meetthe city's guidelines on
providing foster care, one ofwhich you have to be inclusive,
you have to agree to the city'snon discrimination clause, and
its non discrimination policies,which now include same sex
marriage. So we have Catholicsocial services in Philadelphia
(11:58):
that has contracted withPhiladelphia, for foster care
services for a long time, andyou know, Catholic social
services will place fosterchildren in families that it
interacts with. Catholic socialservices says we will not place
foster foster children in homesof same sex couples. And
(12:20):
Philadelphia says fine, we'restriking you off our contract
lists, we will no longer dobusiness with you for foster
care placements. And so Catholicsocial services, Susan says, you
know, you've put us in aposition where we either give up
a basic religious belief, whichis, you know, heterosexual
(12:42):
couples only, or we give up thatbelief, and we continue to
contract with the city for thesevital services. And how the
courts gonna decide that one, Idon't know, because it presents
two constitutional rights indirect conflict with each other.
Shanny Luft (13:01):
Right. And so essentially, Catholic social
services is saying, if Iunderstand correctly, the city
of Philadelphia's action to tryto remove them from the foster
care contracts is discriminatingagainst Catholic religious
freedoms, right. At the sametime, the court has to weigh
their own responsibility toprotect the freedoms of same sex
(13:25):
couples as foster parents andnot have them discriminated
against.
John Blakeman (13:28):
And and Philadelphia has to comply with
sort of state and federal nondiscrimination laws too, and the
oral arguments. Chief JusticeJohn Roberts indicated that it
might be best if Philadelphiaand Catholic social services
worked out some kind ofcompromise.
Shanny Luft (13:47):
Is that because the court doesn't want to make a
decision? They would like thisdecided some other way.
John Blakeman (13:52):
Yeah, you know, Chief Justice John
Roberts is known for trying toprotect the legitimacy of the
court. Right. And you can'tfault him for that. And I think
he might see this as one casewhere if the court really wades
into it, it's going to tick offhalf the country. Half the
country will love it, you know,and the court doesn't want to be
(14:13):
in that position. It's anuntenable position to be facing.
Shanny Luft (14:19):
Another case I'm really interested in your
thoughts on is one I think thatwas just argued last week,
Mahoney Area School Districtversus B.L.
John Blakeman (14:27):
Oh, yeah,
Shanny Luft (14:27):
So Levy was a ninth grader who failed to make the
varsity cheerleading squad. Shegoes on, I think it was Snapchat
where she said f school fsoftball f cheer f every -- She
didn't say f but she expressedher disdain for everything
related to the school. Sheposted this in a message that
(14:48):
was then brought to the schooland then she received a one year
suspension from the cheerleadingprogram. So this case ends up in
the supreme court as a freedomof speech case. Part of what's
fascinating to me about that wasthe court in the past has ruled
that schools are entitled tocurb students' freedom of speech
in certain instances on schoolgrounds, right, that, that
(15:12):
students don't have all theprotections of the Constitution,
necessarily, and because schoolshave other things that they're
trying to balance, right schoolsafety, things like that. In
this case, though, she was notat school. Right? She was
posting this on Snapchat. Andwhat I find really fascinating
about this case is the questionbeing asked is to what degree
(15:35):
are schools entitled to respondto or curb free speech outside
of school grounds. And then inthis case, it feels the idea of
school grounds, I think, becauseof COVID is now a different
thing.
John Blakeman (15:50):
That's true
Shanny Luft (15:50):
Right they're -- My daughter is permanently, she
started off homeschoolingbecause of COVID. And she loves
it so much, she is going to dokind of homeschooling, you know,
over Zoom for the rest of herhigh school experience. So she's
never on school grounds. Orshe's always on school grounds.
John Blakeman (16:09):
Right, right. Right.
Shanny Luft (16:10):
Right. And that's so the court has to kind of
weigh in on this case. I'mfascinated by this. And I think
they just heard oral argumentslast week. So we don't have a
decision.
John Blakeman (16:18):
They did. Yeah.
And and I had, I do not know howto predict this one. But I'll
put it in context for you know,so we go back to 1969, with
Tinker versus Des Moines, whichis one of the great free speech
cases in American history.
Except it's not, you know. Soyou've got the Tinker children
in Des Moines, Iowa, who areQuakers. And they're pacifists.
(16:40):
And they wear black armbands totheir public schools in Des
Moines to protest the VietnamWar. They're temporarily
suspended. They sue. The SupremeCourt, a divided Supreme Court
says a school can censor andregulate students' speech in
order to maintain disciplinewithin the school. Right? That
(17:04):
sort of makes sense. If youthink about it within the
school, then we've got thefamous bong hits for Jesus case
coming out of Alaska, maybe 20years ago, which is it's a it's
a it's a student free speechcase where a student who is
attending a school function towatch the Olympic torch go by,
(17:28):
but he's not on school grounds,unfurls a banner that simply
says bong hits for Jesus. And Ibelieve a school principal comes
over rips it down, that leavesall these disciplinary issues.
And the Supreme Court saysTinker versus Des Moines. Even
though the student was notliterally on school property, he
(17:52):
was part of a school function.
So therefore his speech can beregulated. And I think that's
what we're going to see in thiscase. But the the justices have,
as you pointed out, the justiceshave to navigate this really
tricky scenario of when schoolliterally ends both
geographically, temporally,digitally. And I don't know, I,
(18:17):
I guess I have this hunch that abare majority of the justices
will probably say, Hey, youknow, student speech on social
media, at least as related toschool function falls under
Tinker versus Des Moines too andit can be regulated. But I
honestly don't know, this reallyshows, you know how the free
(18:38):
speech clause really pushesboundaries that we hadn't
thought about 10 years ago, 20years ago.
Shanny Luft (18:48):
Is that because of where social media is?
John Blakeman (18:50):
Yeah.
Shanny Luft (18:50):
Because she didn't say this. It's not as if she was
in like a digital classroom andsaid this right. She said this
John Blakeman (18:56):
Right, exactly,
Shanny Luft (18:56):
I guess to her friends. Right. And does that
count as a private conversationamong her friends?
John Blakeman (19:02):
Uh, yeah, exactly. Exactly.
Shanny Luft (19:04):
I'm fascinated by that case.
John Blakeman (19:05):
I don't know. I don't know the answer to that.
Shanny Luft (19:07):
But we'll find out in a couple months.
John Blakeman (19:10):
But let's face it, let's face it, school
administrators really want theSupreme Court to say yeah, you
can regulate private students'speech on social media if it's
related to the school, whereasstudents would really like to
have their free speech libertiesintact.
Shanny Luft (19:27):
So what is the argument from the school about
the harm of speech like thisbong hits for Jesus and fuck
school, fuck softball, is theargument it just undermines the
authority. And I mean, it soundsas if it's not like a safety
argument.
John Blakeman (19:40):
Yeah, yeah. The the bong hits for
Jesus case was the school one ofthe school's arguments was look,
This is drug, pro drug relatedspeech. We can't allow that. But
it's also underminingadministrative authority. You
gotta be sympathetic to thatargument to a certain extent,
but there are always going to bejustices, we can go back to
(20:01):
Tinker versus Des Moines. Wherewho was it was a Justice Fortas?
I can't recall exactly who said,you know, maybe it was Justice
Douglas, the free speech rightsof a student do not stop at the
schoolhouse gate. They continueon into the school. So there
will always be justices who aremore libertarian when it comes
(20:22):
to the rights of students. Andyou know, we're not going to
solve this conflict anytimesoon.
Shanny Luft (20:30):
I've really enjoyed talking to you about all these
cases, some of them have beendecided some of them will have
to wait another month or twobefore the court tells us what
they think.
John Blakeman (20:40):
So the last one to pay attention to is NCAA vs.
Austin. And this is the questionthat we all want to know. You
know, the NCAA regulates collegeathletics, you if you are
competing under NCAA rules, youmust follow NCAA eligibility
guidelines. Those eligibilityguidelines prohibit you from a
(21:04):
as a college athlete from beingcompensated for your play. And
so I'm not quite sure who theplaintiff is Austin, but several
college athletes have sued theNCAA under the Sherman Antitrust
Act, which was passed back inthe mid 1890s. Still around
(21:26):
still a very, very importantfederal statute that allows the
federal government to bust upmonopolies. And the big question
is, does the NCAA fall under theSherman Antitrust Act, do
amateur athletics, which is theNCAA's argument, do amateur
athletics fall under theantitrust laws of the United
(21:50):
States? And depending on how theSupreme 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 exemptsthe NCAA from federal antitrust
(22:13):
law that empowers the NCAA tocontinue on with its eligibility
rules, I suppose I it'sinteresting, if you look at the
oral arguments, Justice Breyersaid indicates that, in his
opinion, judges have no businesswading into college athletics.
And he has a point there. Thethe NCAA press the point to the
(22:36):
Supreme Court that look, thereare a lot of state legislators
right now who are debating theirown state laws to regulate the
NCAA. And I think what the NCAAwas trying to do there is say to
the justices, look, why don'tyou all stay out of it as an
institution? Let's see how thestates regulate us. And then
(22:57):
let's take it from there.
Shanny Luft (22:58):
So is what's driving this case? I don't
follow NC. I don't I don'tfollow a college basketball. But
I do follow the you're shocked.
Well, you're from Kentucky, so Ican understand why that's
important.
John Blakeman (23:11):
Yeah. Right.
Shanny Luft (23:11):
And I shouldn't admit that as a grad student
from UNC Chapel Hill,
John Blakeman (23:15):
Yeah, I know.
That is shocking.
Shanny Luft (23:18):
The part of the debate about the NCAA that I
find interesting is collegeplayers from whom universities
make millions of dollars.
John Blakeman (23:27):
Yeah.
Shanny Luft (23:27):
And then these players are essentially working
for free. But my question isabout compensation, because the
university's arguments is thestudents are getting free
educations, or at least heavilydiscounted educations that is
counting as compensation. Isthat argument no longer holding
right?
John Blakeman (23:46):
I don't know that's a good point. And I'm
sure the NCAA makes thatargument in its legal briefs.
I'll have to go look them up tocheck. But yeah,
Shanny Luft (23:54):
why do you think this case is happening now? Is
there something specific thatjust kind of draw this to the
fore?
John Blakeman (24:01):
I -- That's that's a good question. I don't
know. There are probably a lotof social and economic causes
behind it. I think we have nowrealized that the staggering
sums of money that some DivisionOne athletic programs make and
do not pass on to theirathletes. We have realized that
(24:23):
a lot of these athletes areAfrican American. And so I can
only think that there's a lot ofactivism that feeds into that as
well. There are a lot of womenathletes, obviously at the
division one level who aren'tbeing paid. So I think it's just
(24:43):
a general awareness of issues ofrace and gender in college
athletics. And again, thestaggering sums of money that
flow in to a lot of athleticprograms not at Division Three,
where we are, of course, but atdivision one and division two.
Shanny Luft (25:00):
So all these cases that you've described, they've
already been argued. Is thatright?
John Blakeman (25:04):
Yes. Yep.
Shanny Luft (25:05):
And so we are all just waiting enthusiastically to
see.
John Blakeman (25:08):
We're waiting enthusiastically Yes.
Shanny Luft (25:11):
To see where this all -- and we'll find out in
what June July?
John Blakeman (25:14):
Yeah, I would say by late June. Okay. Oh, and
there's one other case, the lastone which Obamacare, the
Affordable Care Act has comearound yet again.
Shanny Luft (25:25):
Yeah.
John Blakeman (25:26):
So you might recall years ago, this, the
Supreme Court struck down theindividual mandate as
unconstitutional, but allowedthe statute the Affordable Care
Act to continue on. The questionnow is without the individual
mandate, can the Affordable CareAct still exist? So can in a
(25:48):
sense, can you sever theindividual mandate from the act
itself? Several state attorneysgeneral from conservative states
have argued No, you can't. Nowthat you've gotten rid of the
individual individual mandate,it means the whole statute
collapses. And so if the SupremeCourt decides that, that will be
(26:13):
that will cause a lot ofshockwaves, given how many
people are now buying theirhealth insurance out of the
Affordable Care Act exchanges,and you know how ingrained the
Affordable Care Act is, in ourunderstanding of health care
policy. Plus the fact thatCongress tried to repeal it
twice, and was unsuccessful.
Shanny Luft (26:34):
Right. So
John Blakeman (26:36):
I would say out of out of this term, that's
probably the case to watch. AndI really feel bad for the
justices having to decide thatone.
Shanny Luft (26:46):
And the Obamacare case, the Supreme Court has had
to weigh in on that now separateit's been, of course, different
groups of justices. But they'veweighed in on this for a decade,
right in different contexts.
John Blakeman (26:57):
Yeah, that's right.
Shanny Luft (26:58):
But my thought about both the NCAA case and the
Obamacare case is the courtruling could profoundly change
enormous things. Right,depending on what happens with
the NCAA case that could changesomething substantial about
universities?
John Blakeman (27:12):
Yeah, right.
Shanny Luft (27:13):
Right. That would have to sort of I mean, some of
their universities that themoney they're making from their
college basketball team is whatis propping up the university.
John Blakeman (27:22):
Right.
Shanny Luft (27:22):
The Obamacare case, there are 20 million people who
get their insurance through theObamacare market, that one
decision could affect millionsof people. And my impression is
the supreme court does not liketo make decisions that are that
in one day, suddenly affect 1020 million people
John Blakeman (27:42):
Right.
Shanny Luft (27:42):
Right that they want legislators to do that.
John Blakeman (27:45):
Yeah, you know, and historically, when it comes
to athletics, and the AntitrustAct, thinking of Major League
Baseball, for example, theSupreme Court does not have a
good track record there. So Ican see in the NCAA case, the
justices saying, you know what,this really belongs in Congress,
if Congress wants to extend theAntitrust Act to college
(28:07):
athletics have at it. But youcan see if the Supreme a
majority say yeah, the NCAA nowfalls under federal antitrust
regulations. All of a sudden,college athletics fall under the
Department of Justice, which isthe main enforcer of federal
antitrust law, but that's goingto bring in the Department of
(28:27):
Education, it's going to bringfederal agencies and the federal
government into an area ofuniversity life where the
government hasn't been in a realsense. And I can see the
justices might think that might,you know, that's unpredictable.
And I'll tell you how that willturn out. So we'll just step
back from that. And you're rightwith the Affordable Care Act
(28:49):
too, you know, the Supreme Courtwould potentially up end health
care or 20 million Americans.
Now, we don't want the supremecourt to decide a case because
of the effect or the impact ofit. Right? Because then they're
no different than ourlegislative body. But the
reality is, I figure that goesthrough the minds of the
(29:10):
justices all the time.
Shanny Luft (29:13):
Right. And it does seem to particularly influence
the the John Roberts. Right. Asyou said earlier in this
conversation, he is reallysensitive to the public
perception of the court.
John Blakeman (29:23):
Yeah.
Shanny Luft (29:24):
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 (29:33):
Right.
Shanny Luft (29:34):
These cases are really fascinating. Part of what
I love about these Supreme Courtcases is as we talked about
earlier, they're almost alwaysreally interesting, knotty,
thorny problems.
John Blakeman (29:43):
Yeah.
Shanny Luft (29:44):
To wrestle with.
They're also great narratives.
John Blakeman (29:46):
They are great narratives.
Shanny Luft (29:47):
So many Supreme Court cases are great stories to
tell. And their impact. Thesecases have an impact on a lot of
people's lives more so than Ithink some of us realize.
John Blakeman (29:55):
Yeah, absolutely.
Absolutely.
Shanny Luft (29:57):
So thank you for coming on today.
John Blakeman (29:59):
Yeah.
Shanny Luft (29:59):
Will you come back after these cases are decided,
and so we can maybe get ascorecard of how the Supreme
Court did?
John Blakeman (30:06):
Yeah, we should.
Shanny Luft (30:07):
John Blakeman is currently the professor and
Eugene Katz distinguishedfaculty member in the Department
of Political Science at UWSP.
John, it is so much fun to talkto you about these cases, I'd
love to talk about the politicsof them, the philosophy, the
history. So thank you so muchfor joining me.
John Blakeman (30:22):
Yeah, you're welcome, Shanny. Thanks for
having me.
Shanny Luft (30:26):
And so that wraps up Season One of No Cure for
Curiosity. I have had such ablast, having conversations with
my colleagues, and discussing arange of topics from Wonder
Woman and King Kong andGodzilla, to curse words, deep
ecology, and the Supreme Court.
It's been a lot of fun. I'mreally grateful for all the
people who took the time out tojoin me as well as everyone
who's tuned in and listened. Wehave had listeners from all over
(30:48):
the country from coast to coast,as well as all over the world
from Germany and Paris, toTunisia and Australia. It's been
really fun to see people findthe podcast. If you've been
enjoying the show, please shareit with your friends. And please
come to our No Cure forCuriosity Facebook page, let us
know what you think about theSupreme Court cases. If you have
thoughts or questions about anyof the episodes we've recorded,
(31:08):
I'd love to hear what you thinkyou can always drop me a line at
nocureforcuriosity@outlook.com.
Thanks so much for listening.
Stay tuned this summer for somebonus content. And I'll see you
next semester with some brandnew really fun episodes, we'll
keep exploring our curiositiestogether.
Gretel Stock (31:25):
This podcast is brought to you by University
College at University ofWisconsin-Stevens Point. Our
mission is to providecoordinated intentional and
inclusive services andopportunities through our core
values of connecting,supporting, collaborating and
engaging. Learn more aboutUW-Stevens Point and all our
programs at uwsp.edu.
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