The Summer of SCOTUS: Big Decisions & Impact

Episode Notes

Transcript

Steven D. Schwinn:

The sweeping, sweeping executive authority that we’re seeing asserted by this president. And again, unless we get pushback from the Supreme Court in Congress, this authority’s going to stick for years, decades, and even longer.

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J. Craig Williams:

Welcome to Lawyer to Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from sunny Southern California with a little bit of fire off in the distance here and there. Well, summer’s upon us and the Supreme Court of United States is set to rule on a number of landmark cases, speaking of fire, including birthright citizenship, transgender athletes, campaign finance limits, mail-in ballots, independent agencies, just a slew of issues. In this episode, we’re going to spotlight the summer of SCOTUS. We will discuss major SCOTUS decisions happening this summer and the potential impact of these rulings. And without further ado, we’re joined by our returning guest, Steven Schwinn. Steve is a professor of law at the University of Illinois Chicago School of Law, where he teaches and writes in the areas of constitutional law, civil rights, and human rights. Welcome back to the show, Steve.

Steven D. Schwinn:

Thanks so much for having me, Craig. It’s a great pleasure.

J. Craig Williams:

Well, we’ve got a summer of SCOTUS to look at. There’s a ton of cases up in front of us. Let’s get started with presidential firing power and its impact.

Steven D. Schwinn:

Oh my goodness. Yes. We have a ton of cases and there are two really important cases about the president’s ability to remove officers from independent agencies. One, Craig deals with the Federal Trade Commission. The other deals with the Federal Reserve and they tee up slightly different legal issues. In the Federal Trade Commission case, the question is whether the Constitution requires that the president have plenary authority, unilateral complete authority to remove officers from independent federal agencies that Congress has designed to be independent. In the Federal Reserve case, the issue is a little bit different. In that case, the question is, does a Federal Reserve governor enjoy some measure of due process or kind of what are the tests for a president to remove an officer from the Federal Reserve?

J. Craig Williams:

What is an independent agency? I mean, I thought we only had three branches of government. Sounds like we’ve got a fourth here.

Steven D. Schwinn:

Well, it depends a little bit on how you look at it. So Congress has authority to create agencies to vest them with power, to fund them and to oversee them, which Congress has done. We have long held in this country that Congress also has authority to create independent agencies so that they’re politically independent to some degree from the White House. And the way this works is these independent agencies will have what we call for cause firing protection, which means that the officers who head the agencies can only be removed for cause and not at will. Functionally, what that means is the president cannot come in and simply remove them for, say, political reasons and thus politicize the agency. They can only remove them if they’re really not doing their job.

J. Craig Williams:

Let’s talk about appointments for just a second. It’s not necessarily a SCOTUS issue, but sooner or later it’s going to be. We have the president appointing people, like for example, to the DOJ and to the intelligence agency that are going out and apparently prosecuting enemies. What’s the situation with that?

Steven D. Schwinn:

Well, there are a lot of issues with this. So first off, we have a history and tradition in our country of not using the Justice Department and the federal government to prosecute or pursue political enemies. We just haven’t done that in our country’s history. And when we have, we’ve called it out and called it wrong. We see the Trump administration doing this more and more across different federal agencies, most worryingly with the Department of Justice and prosecuting political enemies. And so there’s this issue of using the federal government for your personal political ends, which is deeply problematic in our country’s history and tradition. The other problem with this, Craig, is what you suggested. We have a president who is appointing people apparently kind of willy-nilly to these really important positions who are not only not qualified but don’t have congressional support. In the ordinary course of things, when the president nominates a person to one of these positions, they have to get confirmation by the Senate.

The President has effectively sidestepped that by appointing people who it looks like a majority of the Senate would probably not confirm to high level offices at various important federal government agencies. And so the way I see it, we have at least two problems with this.

J. Craig Williams:

There are significant problems. Let’s talk about a different one. All persons born or naturalized in the United States and subject to the jurisdiction thereof, at least since 1868. Is 2006 going to be a change in that?

Steven D. Schwinn:

Oh my goodness. Well, yeah. So birthright citizenship goes back to the 14th Amendment in 1868 when we the people adopted the 14th Amendment that grants birthright citizenship to anybody born in the United States and this is the key clause subject to the jurisdiction thereof. Now ever since 1868, when we adopted the 14th Amendment, we have understood the birthright citizenship clause to mean that if a person is born in the United States, they’re a citizen of the United States. It doesn’t matter how long their parents have been here. It doesn’t matter if their parents are sort of what their status is with regard to immigration. If you’re born here, you’re a citizen. The Supreme Court validated that understanding in a case called Wong Kim Ark in 1898. Congress validated that understanding at least a couple of times by enacting legislation throughout the 20th century and the Supreme Court in the 20th century validated that understanding in a kind of bypassing sort of way in a couple of cases throughout the 20th century.

So we have always understood this to mean birthright means birthright. The Trump administration has taken the position that that’s not quite right, that the clause subject to the jurisdiction thereof is actually doing some work in the 14th Amendment. And what it means, according to the Trump administration’s reckoning is that if the parents of the child who are born in the United States, if they don’t owe allegiance to the United States, then the child born within the United States cannot be a citizen of the United States. And so they’re equating this idea of subject to the jurisdiction thereof with owing allegiance to the United States, which is measured by, for example, how long a person has been in the United States and saying that if you’re a child born in the United States to parents who don’t owe allegiance because they haven’t been here long enough, well, that’s just too bad.

You don’t get citizenship.

J. Craig Williams:

My grandmother at three years old came from Wales. I’m not sure because I’ve never seen it, whether she became a naturalized citizen. Am I a citizen if this happens?

Steven D. Schwinn:

So if she became a naturalized citizen and your parents are naturalized citizens, then you would be a citizen even if you were born overseas. And so I think, Craig, I think you’re going to be safe, although I got to say this kind of cautiously because who knows what the Trump administration might be up to next. The Trump administration has taken the position publicly that it would only apply its position on birthright citizenship going forward and so that anybody who currently has citizenship, even birthright citizenship today would not be affected by its view of birthright citizenship. But again, this is an administration that has taken different positions on different days or even different hours. And so we just really don’t know what this administration would do with the power that it’s seeking from the Supreme Court.

J. Craig Williams:

That last part of your answer really brings to the front a question about executive power. And although SCOTUS is affected by this as so is the Congress, it seems like every opportunity that there is, the Trump administration is trying to stretch the boundaries of presidential power beyond what is at least considered to be a norm, let alone a law.

Steven D. Schwinn:

I think that’s exactly right. And to some degree, our constitutional design encourages that. So the way the framers designed our separation of powers is to have three branches of government, each of which would push and pull against each other. The framers expected just because of what they saw as human nature, that each branch would push the boundaries of its own power, but then to be pushed back by the coordinate branches. What we’re seeing in the Trump administration is the president pushed the boundaries of its power beyond anything that we’ve seen in our country’s history and no pushback from Congress or the courts. In fact, not only no pushback, but Congress and the courts are complicit in this power move by President Trump. The net result could be aggrandized power, super agrandized power in the presidency, not just for years and decades to come, but for a lot longer than that, unless and until Congress and the courts can get it together to push back against this presidency.

But in the meantime, we see the Supreme Court validating this kind of robust presidential power at almost every turn. There are some exceptions to this, but at almost every turn, this is a Supreme Court that has been willing to give the president the power that he’s seeking. In my view, Craig, this goes back to a unitary executive theory and back to where we started the conversation with independent government agencies. The president has asserted power over independent federal government agencies under the sort of heading of unitary executive theory. The unitary executive theory is an idea that started in the 1980s by some reckoning before that, but really started in the 1980s and says that the president has plenary power over officers within the executive branch. Now, President Trump has taken that core idea and expanded it dramatically. What he said is the president under the Unitary Executive Theory has plenary control not only over officers within the executive branch, but also employees in the executive branch and not only officers and employees, but in agencies themselves.

And you’ll remember, of course, that he, for example, dismantled USAID, sought to dismantle the Consumer Financial Protection Bureau, completely reorganized the Department of Education and has attempted to dismantle or otherwise restructure a number of other federal agencies. But then the Trump administration has taken this yet farther. It’s taken the position, the constitutional position through the Office of Management and Budget that the president has plenary authority over funding of the executive branch. And we all remember from sixth grade civics that it’s Congress that has the power of the purse, not the president, and yet the president has taken the constitutional position that he can do whatever he wants with funding for federal agencies, including impounding federal funds. And then finally, with regard to the law itself of federal agencies, the president seems to have taken the position that the president can ignore valid federal law as it applies to the operations of federal government agencies.

And here I’m thinking about things like conflicts of interest laws, other government ethics laws, and just kind of the nuts and bolts laws about how the government is supposed to operate. And so you’re exactly right. This is sweeping, sweeping executive authority that we’re seeing asserted by this president. And again, unless we get pushback from the Supreme Court in Congress, this authority’s going to stick for years, decades, and even longer.

J. Craig Williams:

How does this unitary executive theory play into the Supreme Court’s kind of new theory of major questions?

Steven D. Schwinn:

Oh, great question. Really good question. So the major questions doctrine says that if Congres is delegating authority to an administrative agency and the administrative agency then takes an action pursuant to that authority that has political or economic significance, that the agency has to point to clear language in the congressional delegation of power. Now, when we think about it that way, the major questions, doctrine, we can understand it in a couple of different ways. One way to understand it is supporting this idea of unitary executive theory, because what it means is that the agencies are going to be constrained in adopting rules and regulations pursuant to federal law and because the agencies are constrained, that’s going to put additional power in the presidency. And so understood that way, the major questions doctrine actually lines up with the unitary executive theory. If we understand the major questions doctrine as a restraint on federal government agencies and also a restraint on Congress, what that means is we got a power drain from the agencies in Congress that’s moving toward the presidency

J. Craig Williams:

At this time we’re going to take a quick break to hear a word from our sponsors. We’ll be right back And welcome back to Lawyer to Lawyer. I’m joined by Steven Schwinn, professor of law at the University of Illinois, Chicago School of Law. Let’s jump back into some of these SCOTUS cases with that explanation in mind. We have transgender girls and women and women’s sports and vice versa. We’ve got a case out of West Virginia. I’m kind of interested in where you see this falling for the Supreme Court equal protection, Title IX, or more federalism. Where is this case going to swing?

Steven D. Schwinn:

Craig, I would say all of the above. So there are two cases. One is from West Virginia, the other is from Idaho that are testing state laws that limit transgender individuals’ ability to participate in sports. The West Virginia case involves a middle school transgender female who wanted to participate in female sports. The Idaho case involves a college athlete, a transgender female college athlete who wanted to participate in intercollegiate female sports at the college level. Both states had a ban on transgender participation in sports and so these plaintiffs were unable to participate in the sports of their choice and they turned around and sued. The cases raise both issues, as you said, both equal protection and Title IX and it might be useful to kind of take those apart for a second. So on the equal protection question, the real question is, does the Equal Protection Clause of the 14th Amendment protect against state discrimination against transgender individuals?

And if it does so protect against that kind of discrimination, is there a basis or a reason that a state could have for nevertheless engaging in that kind of discrimination? And what the states are saying here is that their ban on transgender participation in sports promotes fairness in sports and safety in sports. And so on the equal protection piece of this, we’ll get a really, I think, interesting and important ruling from the Supreme Court about how far the equal protection clause extends and whether it protects transgender individuals in sports or in any other area of life. On the Title IX side, it may be a little bit more interesting. So the Supreme Court several terms ago ruled in a case called Bostock that Title VII applied to transgender individuals. Title VII bans sex discrimination and employment and the Supreme Court said that sex discrimination and employment under Title VII also covers transgender status.

These cases about transgender athletes, the question isn’t Title VII, it’s Title IX, but Title IX operates an awful lot like Title VII. And so it’ll be interesting to see whether the court applies that Bostock ruling in the Title IX context or whether it says, “You know what? Title IX is different and we’re going to treat Title IX differently and transgender status is not covered under the ban on sex discrimination in Title IX.” And then of course the federalism piece of this, right? This is a Supreme Court that in some ways is all about federalism, in some ways not. I would say it’s sort of opportunistically about federalism. And so it’ll be interesting to see how the court treats a kind of state’s power, state sovereignty, state right to enact a kind of law like a ban on transgender athletes and sports and how they weigh that in the balance against the equal protection and Title IX claims.

J. Craig Williams:

Wow. A lot going on. Let’s jump right into what citizens are going to do or not be able to do with mail-in ballots. We’ve got the broader trend of the court’s election law jurisprudence kind of sacking the Voting Rights Act redistricting. We’ve got campaign finance limits. We’ve got a whole lot going on with elections. How are voters going to be able to express their opinions?

Steven D. Schwinn:

Just a mess of stuff going on with elections and you’re exactly right. The Supreme Court has eviscerated section two of the Voting Rights Act and before that Section five of the Voting Rights Act. And the case most recently coming out of Louisiana, the Kelley case was an invitation for states as we have seen to go ahead and gerrymander even mid-census in an extreme way and a way that effectively is going to whitewash the congressional delegation in several states and state legislatures in several states. And so the ruling in the Kelly case is deeply alarming and I think it’s going to have significant impacts on our democracy. You’d also mention mail-in ballots. We’re waiting on an opinion from the court about state laws that allow mail-in ballots to arrive at the election official’s office sometime after election day and then be counted sometime after election day.

Plaintiffs brought a challenge to these laws saying that election day in federal law means a particular day and that all ballots have to be cast on or before that day. And so mail-in ballots that arrive, say, up to four or five days after election day cannot be counted and that these state laws that allow those ballots to come in and be counted are invalid. That could have a significant effect on mail-in voting and it could have an effect as soon as the upcoming midterm election. And so folks who have engaged in mail-in voting, and there are some states where the majority or even all voters engage in mail-in voting are going to have to make sure that those ballots come in by election day if the Supreme Court agrees with the plaintiffs in the case in order to be counted. So that’s a significant case.

And then finally, you’d mention campaign finance reform. There’s an important case on the court’s docket. We’re still waiting for the decision with regard to political parties roles in campaign finance and whether political parties can coordinate with candidates in the way that they spend money or not. This could be an interesting and important ruling that falls along this trendline that we’ve seen over the last two decades plus, starting with Citizens United, basically opening the floodgates, opening the spigots to unlimited spending in campaigns.

J. Craig Williams:

Let’s assume that we have the citizens rise up and knock on Congress’s door and say, “Where have you been? What are you doing? Why haven’t you been responding to these two massive changes in our democracy and try to elect a new Congress?” What would it take to get Congress to make change in these things?

Steven D. Schwinn:

It would require a Congress with the will and the votes to do it, probably a super majority in the Senate to do some of these things and maybe to do all of them. And it would require a Congress that’s not only creative and aggressive, but on that is willing to stand up to the challenges and really the barriers that the Supreme Court has now erected around congressional authority to address some of these problems. And so for example, we mentioned the Voting Rights Act a second ago. The Supreme Court has effectively gutted the Voting Rights Act as we knew it, both in Section five in a case called Shelby County in 2013 and then more recently in a couple of cases with regard to section two. Most recently, the Kelley case with regard to racial discrimination and gerrymandering, Congres could theoretically come back and adjust the Voting Rights Act or come up with a new Voting Rights Act solution to these problems, but the way the Supreme Court ruled in those cases is going to make it extraordinarily difficult for Congress to write laws that can protect against racial discrimination and voting rights without the Supreme Court striking it.

And so again, we need a creative Congress, an aggressive Congress, and one that’s willing to stand up to these barriers that the Supreme Court has erected.

J. Craig Williams:

Let’s jump into immigration temporary protected status ICE for just a moment. We have had two, at least two, if not more, or two prominent American citizens killed by ICE without any prosecution. We’ve got DPS cases for Haitian and Syrian nationals that are talking about statutory and human, really human issues and the administration that they’re unreviewable. What?

Steven D. Schwinn:

In the immigration area, I kind of feel like we’re dealing with a kind of fire hose of activity coming out of the White House in immigration alone. You had mentioned a couple of areas where ICE officials have engaged in unlawful behavior, including killing US citizens in our very own cities and we’re not seeing accountability. That’s a deep problem. It’s not at the Supreme Court yet, but I imagine that a case like that could come to the Supreme Court incoming terms given ISIS behavior. The case that is before the Supreme Court this term deals with temporary protected status for Haitians and Syrians, as you had mentioned This is a status that Congress has written into our immigration law that allows the government to grant temporary status within the United States for individuals who are from countries where it would be very dangerous for them to return, either because of civil unrest or strife or because of natural disasters.

And so both Haitians and Syrians have long qualified for this TPS status for both countries has been renewed and there’s been a kind of widespread recognition that Haitians and Syrians should not be returned to their country because it’s dangerous for them there. The Trump administration took a different view and sought to revoke TPS status for Haitians and Syrians unilaterally in violation of federal law, which requires that the federal government follow a particular procedure and jump through some hoops before it revoked TPS status. The administration did not follow those steps and did not jump through those hoops and so Haitians and Syrians sued and the question for the court now is, can the president bypass those congressionally mandated steps and hoops before the president can revoke TPS status? These cases deal with Haitians and Syrians, but there are a number of other individuals in the United States right now from other countries around the world that also qualify for TPS status and the ruling in this case could invite the Trump administration to unilaterally revoke TPS status for those other countries as well.

A number of other issues with regard to immigration are percolating in the lower courts and these are going to come to the Supreme Court sooner or later, but you had mentioned two of the big ones that many of us have our eyes on.

J. Craig Williams:

Well, and we have a big change in technology as everybody’s seen with the jump in the way the computers are working these days, but it’s also having an effect on policing and geofencing, Google location warrants. We have a question about how Carpenter, the cases that deal with earlier third party doctrine cases about geofencing and how this affects it. And just from a practical standpoint from there, how would you tell defense attorneys and for that matter, judges to begin dealing with this?

Steven D. Schwinn:

Well, that’s a real hard one. So the geofencing case deals with search warrants that investigators obtained in order to get information from third parties about the location of individuals and the geofencing refers to the geographical area in which the search warrant would apply. And so there’s a kind of imaginary fence around this area and we call that geofencing. It’s a Fourth Amendment case. The question is, does geofencing and this technique, the strategy of getting a warrant against a third party provider, does that violate the Fourth Amendment? These are really interesting cases because they don’t always follow the traditional conservative progressive alignment on the Supreme Court. And so the geofencing case, I think is going to be a really interesting one. When it comes out, we’ll take a careful look at it and given advances and enhancements in technology, I think you’re exactly right then. The big question is, well, what do we do with this for not only geofencing, but the next generation of government searches and seizures?

J. Craig Williams:

And let’s take another quick break to hear a word from our sponsors. We will be right back. And welcome back to Lawyer to Lawyer. I’m back with Steve Schwinn. He’s a professor of law at the University’s Chicago School of Law. Well, let’s take technology just a step further into copyright and AI. We’ve recently had the Cox versus Sony case about ISBs not being liable for users piracy, kind of a change in the way that copyright enforcement works. There’s also generative AI, trade secrets and significant questions about AI coming forward, hacking and IP rights. Do you see the court kind of developing a cohesive AI and technology theory, or are we just going to get a smattering of different rulings on these different aspects of it?

Steven D. Schwinn:

My guess is the latter that we’re not going to see a coherent theory around AI emerge unless and until the Supreme Court takes up enough of these cases to fully get its head around how AI is being used and misused in our society and our economy and our politics and our education kind of across the board. My guess is that these issues will come up in sort of ad hoc ways dealing with particular issues that the court will be willing to pick off as a kind of one off and as a result, we’ll get a sort of scattershot or smattering of rulings again, unless and until there’s a critical mass of opinions that allows the court to develop a coherent theory. But my guess is that the court is struggling with AI and technology in the way that we all are and that is just trying to figure out what’s going on.

The Supreme Court tends to be a step or two behind in terms of its understanding of technology and so there may be some lag time before we even get a scattershot from the court.

J. Craig Williams:

Talking about scattershots, we’re in the middle of a gun debate again carrying guns on private property, firearm possession by drug users. There’s a real tension between historical analogs and what I would say are contemporary regulatory needs in these new gun cases to protect the safety of people from dangerous people.

Steven D. Schwinn:

Oh, completely. So you refer to the history and tradition or what the court might call historical tradition approach that it developed in a case called Bruen several terms ago where it said for Second Amendment purposes, what we’re going to do is if a government regulation regulates activity that is protected by the Second Amendment, we’re going to require that the government, the state or federal government come up with a historical analog to its gun regulation and show that it’s Ported in our country’s history and tradition. The court said it doesn’t need to be a precise analog. It doesn’t need to be exactly the same, but the purpose of it needs to be the same and how it operates more or less needs to be the same. That was very quickly tested then in a case called Rahimi where the federal government had a law that criminalized possession of guns by individuals who are subject to a domestic violence restraining order and listeners can recognize the problem immediately.

We haven’t had domestic violence restraining orders in our country’s history and tradition very long and so there isn’t a great historical tradition of disarming individuals under DV orders on the one hand. On the other hand, it would be hard to find anybody in today’s society who would support people under a DV order having firearms. And so the Supreme Court kind of painted itself into a corner. It got out in the Rahimi case by saying that by disarming people under a DV order, the government really is disarming dangerous people and there is a history and tradition of disarming dangerous people. And so therefore the government regulation can stand. But you can see that there’s some tension in this historical tradition approach and as you correctly say, the society’s current need for reasonable gun regulations. And so there are a couple of cases on the court’s docket that are going to give us a little bit more information this term.

One, the court has already decided. That’s with regard to gun possession by drug users. And the court really didn’t say very much in this case. The case involved an individual who by his own account used marijuana about every other day and was prosecuted for possessing guns under a law that prohibits gun possession by drug users. The Supreme Court said that law can’t apply to this individual consistent with the Second Amendment. This is somebody who uses marijuana every other day. They don’t pose a danger to anybody using their guns and so this law is going to fail as to this particular plaintiff. Now the law stays on the books and it could apply to others, but for that particular individual, it’s not going to app. The other case on the docket that we haven’t heard about yet is the Second Amendment case that requires that a gun possessor get permission of a property owner for property that it’s open to the general public before they bring their gun on the premises.

And so for example, this would apply in privately owned restaurants or bars or movie theaters, that kind of thing. Places that are typically open to anybody who comes to patrons, what the law would require is that people who want to carry guns into those locations that they get permission before they do so. This is a really interesting case. It will raise the historical tradition approach and it’ll be interesting to see how the court deals with that in this case. But the other thing about this is that there’s a tension between Second Amendment rights in this case and property owner’s rights in this case. And on this court we have a number of individuals, a clear majority who favor Second Amendment rights and robust Second Amendment rights, but it’s also those same individuals who favor robust property rights. And given the tension between the two, it’s going to be interesting to see how that case comes out.

J. Craig Williams:

Well, let me point or at least invite the Supreme Court to go ahead and read one of my favorite cases called People versus Foranik, F-O-R-A-N-Y-I-C, out of the court of appeal here in Southern California. It’s the fourth, third written by one of my friends who says that the police have probable cause and a terry stop to pull over an ax-wielding bicyclist at three o’clock in the morning.

Steven D. Schwinn:

Well, that does sound like a case to read.

J. Craig Williams:

It is a case to read and Justice Bedworth who wrote it is the author of a long running article in the Orange County Lawyer Magazine called The Criminal Waste of Space, some of which is just absolutely hilarious, which kind of brings us to my last series of questions on court legitimacy, ethics, and the myth of merit. We have the Supreme Court and getting an internship or a clerkship as they’re known among lawyers on the Supreme Court is a coveted opportunity. It pretty much guarantees a huge starting salary at one of the White Shoe law firms in Boston or New York or Los Angeles or one of the major cities. And there’s also feeder judges and elite schools that come into this whole thing and that effect on some of these controversial decisions because there’s also the issue of the loss of DEI. And we also have some legitimacy issues on the Supreme Court itself, some ethical concerns where they’re basically just not paying attention to any kind of ethical checks despite what Justice Roberts may say, at least in my opinion.

What are your thoughts?

Steven D. Schwinn:

Same. We’ve got a ton of issues, everything from legitimacy to … I like the way you frame it and I think the way I think about it is a court that seems to be more and more out of touch with the reality that so many of us are facing in our daily lives. And the ethics issues on the court are huge. The Supreme Court and Chief Justice Roberts has taken the position that Congress cannot impose mandatory ethics standards on justices of the Supreme Court, but that they will abide by voluntary standards that the nine of them have agreed to. Many of us think that that is preposterous, that of course Congress can impose mandatory standards on the Supreme Court and hold them to ordinary ethics standards like any other government employee who has to report on conflicts of interests and potential conflicts of interests, who has to report on gifts that they receive from outside sources and ultimately in the Supreme Court’s case has to recuse from cases where they have a clear conflict of interest.

So there’s a lot of work to be done with regard to the court’s legitimacy, to its ethics, to public faith in the Supreme Court. The court famously has neither the power of the purse nor the sword. All it has is its reasoning and its reasoning in my view is not looking tremendously strong recently. That’s not a good sign for the court and it could certainly take some steps to shore up its public perception.

J. Craig Williams:

It certainly needs to do a lot to shore up the public perception of its decisions that seemingly say that they’re going to respect historical perspective and then don’t.

Steven D. Schwinn:

Right, right. Or do it in ways that seem inconsistent and even politically motivated. I think that’s exactly right.

J. Craig Williams:

Well, we’re here publishing this podcast on the 4th of July, so happy 250th birthday to the United States of America. What are your thoughts about the current state of democracy, given where we are 250 years later? Are we watching the fall of Rome or are we watching the rise of democracy?

Steven D. Schwinn:

Well, I worry very deeply about our democracy. If you look globally in the last 10, 20 years, there’s a checklist that authoritarians follow and they do it step by step. They usually do it step by step in baby steps over time and suddenly a country will discover that it’s lost its democracy. The Trump administration has taken this playbook and accelerated it and adopted all of its steps very, very quickly and very, very aggressively. We’re not seeing pushback by the coordinate branches as we should. We’re seeing a partial pushback by the states and that’s encouraging, but we’re also seeing a number of states and private actors fully capitulate to what we’re seeing as dramatic overpower plays on the part of the Trump administration. And so I worry very deeply about the state of our democracy. A lot is going to turn on the upcoming midterm elections and voters’ willingness and ability to get out and support candidates who are pro- democracy and send a message to Congress that it needs to start doing its job.

J. Craig Williams:

Well, Steve, it’s been an absolute pleasure to have you on the show. Why have we covered an awful lot? Let me wrap up, get your final thoughts and anything else you’d like to let our listeners know.

Steven D. Schwinn:

It’s been a great pleasure and honor to spend time with you, Craig. Wonderful, wonderful questions. I’m really glad that we had this discussion or we could go on and talk for hours about these issues. I will say that I would invite listeners to check out my new website and blog constitution360.com, where I’m trying to stay on top of many of the issues that we covered, although it’s really hard. And if listeners want to reach out, I would invite them to do so. You can get me at Schwinn, S-C-H-W-I-N-N @UIC as in universityofillinoischicago.edu.

J. Craig Williams:

Well, Steve, thank you so much for being on the show. It’s been a fantastic discussion.

Steven D. Schwinn:

Thanks, Craig. I appreciate it.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topics. Far too much to talk about in just a couple of minutes here, but I guess my reaction is more than anything else is do what you can to get people out to vote and overcome the issues regarding gerrymandering and a whole slew of other issues that are trying to stop voters. That’s the biggest concern I have about the value of our democracy and Steve is right, we need to be concerned. So if you’re concerned about any one of these issues, get out and vote. And that’s it for my rant on today’s topic. Let me know what you think. And if you like what you heard today, please rate us on Apple Podcasts, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams.

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