he's interviewed by american enterprise institute senior fellow adam white. watch book tv every sunday on c-span two. and find a full schedule on your program guide or watch online anytime at book tv dot org. span, powered by cable. >> washington journal continues. host: welcome back to washington journal. i'm joined now by amy howe. >> welcome back to washington journal. i'm joined now by amy howe, she's the cofounder and a reporter at scotus blog.

amy, welcome. >> thanks for having. me >> let's talk about the term of the 20 20 to 23 term that's ramping up. maybe this month, maybe next month. anything that surprised you? >> not so far. we're waiting on virtually all of the big decisions. affirmative action, religion, lgbtq rights on voting rights of election law. it's too soon. we're waiting on 27 cases to draw any conclusions about what this version of the court is going to look like this term. >> we're gonna talk about some of these cases were waiting on. first ketanji brown jackson was new this term. what did you see from her. anything different that you did not expect? >> i'm not sure if i didn't expect. but she's been very active just as perhaps one of the most active new justices. that's not surprising. and she spent most of her time

as a judge. as a trial court judge. she was the only one in the courtroom. she is not dominating by any measure but she's very active. she has a lot of questions. she is often working with the other two liberal justices, elena kagan and justice sotomayor to sort of present the liberal point of view. at oral arguments. they're out numbers. there is a 6 to 3 conservative majority on the court. they're all quite active. >> we'll be taking your calls on supreme court and the cases they're looking at. if you would like to call in, you can do that for about the next 40 minutes. the lines are by party affiliation. republicans (202) 748-8001, democrats (202) 748-8000 and independents (202) 748-8002. let's talk about affirmative action. tell us about what's going on there. there is two separate cases. >> two separate cases. one involving the university of

north carolina. one involving harvard college. they are challenges to those universities considerations of race in their admissions process. back in 2003, the supreme court in a case called -- said that the university of michigan could consider a race as part of its admission process. as part of its effort to have a diverse student body. that was a 5 to 4 decision by justices -- who has since retired. even in that decision at the end, justice o'connor wrote we would hope that in 25 years. consideration of race would no longer be necessary. universities would now be able to achieve this diversity through other means. it's now 20 years later. the court is a very different court than the one that we had back in 2003. a group called students referred missions brought of these challenges to you and see. arguing that unc could have a

diverse student body without considering grace. against harvard, arguing that it's consideration of race discriminated against asian american students in favor of white hispanic and black students. those cases came up through the lower courts. the lower courts ruled that in favor the universities in both cases and the supreme court agreed to weigh in. it heard oral arguments at the end of october really at the point of supreme court agreed to weigh in it seemed unlikely that the supreme court was going to hear oral arguments that issued opinions that said university is doing a great job. just keep on doing what you're doing the question is exactly what exactly is the supreme court going to do. that's what we're all waiting on tenterhooks to here >> let's hear that xchange on the harvard case. this is about race either being one faor or the determining factor. he's the exchange with the chief juice roberts.

>> being african american or being hispanic. or in some instances being asian american can provide one of many tips that will -- you will have to concede that hey provides one of ma that in some cases it will be determined. >> do can see that. >> so we're talking about erases a erminate factor in adission to harvard. >> ra for some highly qualified alicants can be the determinant factor just as being the an oboe player ina year in which the harvard tcffe orchestra needs a noble ayer will be the tip. we did not buy the vil war about oval players. did fight a civil waro eliminate racial discmition. that's why it's aatter of considerable concern. i think it's important for you to establish whether or not granting a credit based solely on a skin color is based on a stereotype when he say this

brings diversity of viewpoint. >> what do you think of that and how big of a change with the speed to college admissions. >> to your first point. this exchange makes a couple of points. the first is that the confession by -- the lawyer for harvard that race does play a role in some students in the admissions process. the second one is the response by chief justice john roberts. with this 6 to 3 majority. sometimes people think of him as being one of the court to swing justices. he's one of the last conservative of the conservative justices. not on the issue of race. this is a justice who the couple years ago in another case involving race in public school neighborhood assignments wrote the way to stop discrimination on the basis of races to stop discriminating on the basis of race. this is something that he feels

very strongly about what is the impact. justice elena kagan talked about the impact. perhaps of this. this is one of the points that she made. she talked about the impacts not just on diversity at colleges but what the impact could be on a more broadly that universities are sort of the pipeline to leadership in business is so if you don't have diversity at undergraduate colleges than you are less likely to have diversity in businesses and in society at large at the various levels. >> let's talk about a student loan forgiveness there are two separate challenges to president biden's plan to forgive certain amounts of student loans depending on other factors. where do those stands and what sense did you get from the arguments about how this would go. >> there are two separate challenges. one was brought by a group of states of republican attorneys general and the other is

brought by two individual borrowers. one borrower only has private loans not federal loans. so she would not benefit from the program as it's drafted. the other one has federal loans but when a benefit to the full extent that some borrowers would they're challenging the program as it's drafted. the first sort of hurdle that both sets of plaintiffs have to clear is something called standing. whether or not they have a legal right to sue. that's because anyone can't go into court and say i don't like this policy. you have to show that you are insured by the policy. it's enough that one estate or one of the borrowers is injured. then the challengers can't go forward. the way that it looks like the case could go forward is that missouri which is one of the challengers set up an agency to hold in service student loan so the argument is that if 400 billion dollars in student loans are canceled. then this agency won't make as

much money and then we'll be able to contribute to the states herridge acacia programs at the same level that it has been. it look like the supreme court was because the problem with the supreme court. sorted generally says anyone can challenge this policy. china opened up the doors for other challenges. if they can let the cases go forward on this relatively narrow ground. they're not. the doors in the same. way then you have the challenge. the substance of the challenge on the merits. the biden ministration relied on something called the heroes act. which allows the secretary of education to wave or modify provisions of the student loan program. in cases of national emergency. so that student loan borrowers aren't worse off because of the national emergency in -- outlining the program secretary of education pointed on the heroes act and in the initial

student loan -- gave it pause in the trump administration. secretary of education betsy devos relied on the same statute. the secretary of education relied on this law. but the challengers are relying on something called the major questions doctrine. it's a doctrine that as sort of under this name is relatively new at the supreme court. supreme court relied on it last term in the case called west virginia versus epa involving the clean air act. it's the idea that if congress wants to authorize a program it's gonna have massive economic or political significance. it needs to say so clearly and so the states are saying that yes this heroes act authorizes changes to the student loan program but congress didn't have 400 billion dollars worth of changes in mind the biden ministration's can argument is this is exactly what congressman to do with the

heroes act. the idea that you can waiver modify the stew loan programs to respond to a national emergency. covid-19 was a national emergency and we want to make sure borrowers our interests off because of it. the justices seem skeptical. particularly because the covid-19 emergency ended on may 11th. once again this is a case where we're gonna have to wait to see exactly what the justices do. what grounds do they rely on. >> i want to call us. before we do that, voting rights. there is merrill versus milligan. this is around the situation in alabama. tell us what's going on there. >> this is a complicated case involving voting. right section two of the voting rights act morris racial discrimination in voting. alabama passed a new congressional map. every ten years after the census the states have to draw new map to respond to the changes in population they have a seven seats in congress.

one of alabama has roughly 27% black population. one of the states seven congressional seats was a majority black district. the challenge to the map in this case says look you could have drawn a second majority black district. this is something called a vote dilution claim. it sets instead you packed a bunch of black voters into that one district. then you moved dispersed other black voters into multiple districts when you could have put them all in one district. created a second majority black district. that's a violation of section two. the state of alabama has two arguments the first one didn't fare that well at the oral argument. the said if you're going to allege there is a violation of section two over the voting rights act. you have to show that we intended to discriminate against black voters. that didn't fare very well with

the justices. even with the conservative ones. the justices could rule on a narrower ground. it would still say relatively high bore for people who want to challenge congressional maps under section two of the voting rights act. making much harder to do so in the future let's talk to callers brian's first in farmersville ohio republican. >> good morning, how are you. just kind of want to ask a couple questions. just a common real quick. i'm curious why everyone's making business decisions about colored. 10% of our dna is dedicated to our race. at that point, let's go ahead and committed the other 90% to the human race. i don't know why that is such a factor in this world. it shouldn't be. we are more alike than were disliked. about the college tuition. i think it's disenfranchising

to a lot of people that make decisions again about i'm gonna send my child to school. whether i could afford it or not. course, they didn't do it and then it was nice to know if we were going to get a supplements, state assistance or some sort of -- any kind of assistance. colleges, tuition, everything. that's what i do for a living its build dormitories and colleges. the last thing is my question is shouldn't miss jackson go ahead and recuse herself from anything that involves a human because she doesn't know the difference between a man or woman? >> what do you think, amy? >> a lot there. thanks for calling. >> let's go to skip in waterbury, connecticut, democrat, good morning. >> good morning. i think it's amazing since supreme court overturned roe, how much is rid -- the people distrust in the

supreme court. >> what do you, think amy, on the trust level of the supreme court? >> i think the caller is referring to some of the recent polling on the trust levels approval ratings of the supreme court which are at historic lows. i don't think there's any getting around that. i think it's something that concerns the chief justice. on the other hand, the decision has been released. there's not much they can do about it. >> speaking of that, let's talk about the ethical issues. a lot has come out around justice thomas and other justices. has that affected the workings of the supreme court. have you seen any impact of that? >> hard to know because we see so little of the supreme court. a lot of the ethics issues the, articles about justice thomas came out towards the end of the term. we only see them when they hear oral arguments for when they release decisions. we see relatively little of

them. they were already pretty far behind. just the speed at which they were releasing opinions. i think i had less to do with the ethical issues and more to do with the fact that they have a lot of complicated high profile cases in which there likely to be divided. when they're divided they have a lot of not just made opinions -- then there are rumors of new security procedures in place after the leak of the dobbs opinion last year. that might just take longer for them. we have seen the chief justice has talked a bit about some of the ethical issues certainly very much on their minds. >> we have a short clip of chief justice john roberts here talking about ethics. >> i want to assure people that i am committed to making certain that we as a court at here to the highest standards of conduct. we are continuing to look at

things we can do to give practical effect to that commitment. i am confident there are ways to do that. that are consistent with our status as an independent branch of government under the constitution's separation of powers. >> amy why do you think there has been a more forceful response and a binding code of ethics for the supreme court. >> it's hard to say. we're not in a deliberations. i think there's probably some internal debate at the supreme court. these remarks came at a meeting of lawyers and law professors in washington d.c.. one of the interesting things about these remarks is that they came after the justices released a non binding reaffirmation of ethics in a statement of principles that it came attached to the chief justices responds to an

invitation to a peer to testify about ethics. i will say that this is these are all very vague statements about what the justices might or might not be doing. i will also say that back in march of 2019, before the pandemic. justice elena kagan and justice samuel alito appeared before the house appropriations committee every couple years. one or two of the justices will come before the house appropriations committee to testify extensively about the supreme court's budget. that's the rare opportunity for members of congress to question the justices about their pet projects like cameras in the courtroom and ethics and at that budget committee hearing. justice kagan said that they were considering an ethics code. that was four years ago. time doesn't take that long to draft an ethics code. >> do you think there should be

won. a binding ethics code for the supreme court. >> i think they need one. i think these questions are going to continue. even with one it will continue to have some issues because they're going to be once one force it against themselves that's part of the problem right now is the justices individually decide whether or not to recuse in a particular case. that this was a point that was made in the statement that the justices released last month. they also talked about how concerns about a security could trump but heat for full transparency and disclosure about travel or accommodations. i do think they need one. >> let's talk to david who's in chicopee massachusetts. independent. >> i have to point that like to make. one is the supreme court's to citing the abortion roe v. wade. a lot of women under blows will say men have nothing to do with that they shouldn't have any in

-- 1972 the only people on the supreme court where men. apparently they had no trouble with men deciding that. the second thing that i find to be very bothering to me is the loans for students. i took my laws for my house. i took my loans for my car. i took my loan to pay off my college debt. why didn't these people think they should have their loans payoff. i cannot believe that. what is your opinion on that? >> as far as -- the chief justice john roberts made a similar point. during the oral argument. he talked about people graduate from high school at the same time. one person took out loans to go to college. one person to go loans to start a business. now he says one of them is getting a loans forgiven and one of them is not. i think you are in good company to a certain extent. >> want to ask you about lgbtq rights. there is a case called three or

three creative versus -- what's the back story on. that >> the backstory, some of your viewers may remember that back in 2018 there was a case involving a cake baker in colorado. who said -- i'm a christian, i don't have to bake cakes for same-sex couples because i believe that a marriage should be a union between a man and a woman and the supreme court in that case ruled for him but they didn't really decide the case the issue at the heart of the case. which is how do you balance the rights of lgbtq people and his religious rights. they ruled for him on a narrow ground. at least of the colorado misread of agency was hostile to his religious beliefs. that same basic question is back in the case of a colorado what's a designer. she does graphic design. she does website design. as you said i want to do wedding websites. but only for heterosexual couples. i don't want to do same-sex

couples because i believe the marriages between the man and a woman i want to put a sign on my website that says that i don't do same-sex wedding websites. that would run afoul of colorado's antidiscrimination laws. she went to court. seeking a declaration that she wasn't gonna get into trouble for doing that. it's the question of how do you balance the rights of lgbtq people and in the rights of business people with religious beliefs. the supreme court at -- seemed ready to roll for the website designer. the question in this case. it's a question that comes up in a lot of their cases is they're not just deciding her case. how do they decide other cases. on multiple levels how did they decide other sort of service providers. you have a web wedding website. that is clearly her creating speech. what about a musician who doesn't want to play in the

same sex wedding ceremony. what about the invitation designer. the cake baker. the limo driver. where do you draw the line in terms of service providers. and then where do you draw the line in terms of other people who are protected by the antidiscrimination laws. can someone say i have my -- i don't want to provide services to women or two minorities. the justices are grappling with this question and the question will be how exactly do they write their opinion? >> let's talk to john who's in east hampton massachusetts. independent. >> hello -- one of the things i just heard you say is what would happen if there was -- they wanted to jewish person to cater it. i'm pretty sure that would be not all right. wouldn't it now for my other question. people say that kevin mccarthy had to give up a lot to get those speakership. i wonder what biden had to give him to be extreme lefty loony lived hard left in order to get his job. he wasn't doing until south

carolina when he gave into all the blm areas and all the antifa. >> all right. let's go to kathy in albuquerque new mexico. democrats. good morning. >> good morning. i just want to say that i think people don't trust the supreme court lately based on some of their decisions that are inconsistent. these to respect conditions. it used to be -- respect presidents that were years of things that have been done in the past. when you bring up jobs and the gun and abortion debate it seems like they want to give the states the ability to regulate abortions. when it came to -- i think is what it is. they were okay with overturning -- not listening to 100-year-old new york state handguns latency. just seems like they're consistent. i think that's part of the problem. that's what the conservatives have been seeming to make supreme court off balance. anyway, i want to see what he

thought about that. thank you. >> i think public perception is a real concern for chief justice john roberts. that's what we saw him speaking out about ethics again. i think you probably realize that the initial effort with this justices statement reaffirming their shared principles about ethics. didn't satisfy people. it's returning to it again. i think that he's concerned about it. this is something that -- to a certain degree, have within their control. we talked a lot back in 2012 when the decision came out in the health care case about perhaps the chief justice is that what explained by the concern for the institution. it's something that he's concerned about and clearly other people are talking about it as well. >> and as a republican in virginia. good morning, in. >> good morning. i would like to ask --

he seemed to gloss over or failed to mention the fact that the original heroes act was meant to help soldiers who hadn't quit school in order to join the military in the 9/11 effort. the entire nation benefited from young people that had to quit their education and during the military. and still had loan payments to at a certain date. i'm not sure how anyone's equating this current loan forgiveness bid by president biden to be in any way to use the left word equitable because taxpayers do not benefit. only the students are benefiting by these handouts they can afford homes, cars, vacations and so on. i would like the media talked about this that they should always come back or circle back to the point of why we have a hero cited begin with. -- inflated by all administrations in order to gain political favor. thank. you >> i certainly didn't mean

to gloss over. we only got so much time. here i think you made a point there eloquently. >> let's talk about another case which is moore versus harper. that has to do with who can regulate elections? >> this is a fascinating case it's potentially a very far-reaching case depending on how to -- whether or not the court will reach the merit in this case. and just to sort of backup. this is the case at a north carolina. once again involving redistricting the -- north carolina drew a congressional map. the north carolina supreme court throughout the map they said that it was the product of partisan gerrymandering. that in violated the state constitution's guarantee of free and fair elections. the republican legislature is -- legislatures controlled by

republicans went to federal court. and they argued that the north carolina supreme court actions in throwing out the map violated what is called the independent state legislature theory. that is the idea that the federal constitution gives state legislature's near complete control over federal elections without interference from state courts. this is not a theory that a majority of the u.s. supreme court has endorsed yet. several justices versus for our winded in a concurring opinion. other justices more recently in case arising out of the 2020 election had disgusted. it's not a theory that a majority has endorsed yet. the supreme court agrees to weigh in. they heard oral argument in the case. it didn't seem like there was a majority on the supreme court when they heard oral argument

that was ready to go for a full-throated state court can never interfere in federal -- state legislatures. in regards to federal elections. since then, the north carolina supreme court there was an election in north carolina in 2022. north carolina supreme court went from a democratic -controlled port. they had elections. the state supreme court. the republican-controlled supreme court. the republican-controlled state supreme court this spraying -- throughout its a reversed the earlier ruling and said that actually, we feel that the states supreme court can't consider these kinds of partisan gerrymandering claims. it's not a role for the state courts in here. the supreme court asked for a more briefing from everyone involved on whether or not it

can consider this case at all there is no -- is there a dispute anymore what about the independent state legislatures theory. what would happen if that was fully implemented. >> it could be sort of a massive shift in how our elections are run. the state legislature could make rules. it could enact these. maps the u.s. supreme court couple years ago said there is no role for federal courts in partisan gerrymandering claims. now the state legislatures could enact maps that are gerrymandered. the state courts would not be able to have anything in it. state legislatures connect all of it. >> many are out other kinds of rules relating to federal elections. elections for the house of representatives. for the senate. for the presidency. and state courts wouldn't be able to step in to play any role in correcting them if they violated the state constitution.

>> let's talk to sheila. she's in saint petersburg florida. democrat. good morning sheila. >> good morning i question i had on the reversal of roe v. wade. was it based mainly on the privacy right? >> was about privacy. is that why they reversed it. was that the main reason reason for being able to reverse it that was definitely one of the reasons. they said there is the constitution doesn't say anything about a right to privacy. a right to abortion if you look at the history and the texan tradition there is no history of there being this right. >> anything else regarding abortion coming up before the

supreme court anything happening or bubbling up on that. >> we are waiting the u.s. court of appeals for the fifth circuit which is based in texas which is a conservative court. heard oral arguments last month in the battle over the availability of the abortion pill mifepristone. we are waiting for the court of appeals to rule on that. i think either way i would expect that to wind up back at the supreme court in the upcoming term. >> we've been talking about things that we're expecting to come down. what about some of the decisions that have already happened for this tournament can you tell us about some of those. >> we had a couple of big ones. we had one involving the clean water act recently. wetlands are protected by the clean water act. the court unanimously ruled that a idaho couples wetlands.

it's one of the things that it's effects this couple but then it could affect the regulation of wetlands much more broadly. the courting honestly agree that this particular couples property was not wetlands but split 5 to 4 on what the tests should be. the court establish a test that's gonna be hard for the epa to meet in determining what wetlands are protected by the clean water act. he said it has to be a continuous connection to other waters. if there are some sort of burn or dike in the way they're not protected by the wetlands. that was a 54 decision justice kavanaugh joined the three liberal justices. it was also an illustration of the effect of replacing justice ruth bader ginsburg. which isn't amy coney barrett on the court. if you have a five forecourt. they only need the justices

need to pick up one more to get a liberal result when you have a 63 court it's much more difficult for them to do. >> there's an article here at nbc news.com that headline -- majority of americans favor affirmative action and colleges. a supreme court seems poised to end it, new poll that found that 62% of americans don't think the supreme court should pan authoritative action in college admissions. what are your thoughts on at the disconnect with public opinion and what's happening on the court? >> there's often a disconnect. i think we saw that with a supreme courses decision in dobbs. with the decision in -- the new york gun case. the justices i think they would tell you their job is not to be -- to take polls that they conservative justices they say we look at the constitution. we see what it says. >> any issues around the

celebration they think this court may be taking up? or has taken up? i believe there was a decision, arizona versus mayorkas. >> the answer was mayorkas and we are still waiting on that decision. call arizona versus texas. and this was a bad administration's priority for immigration enforcement. the biden administration has prioritized three groups of people for suspected terrorists, people who crossed the border, who are caught crossing the border and people have committed serious crimes. and a group of states have challenged that, that policy is being inconsistent with immigration law. they say they often forced a lot more stringent silly anyone being reported should be deported. the biden ministration congress

is not giving us the resources to catch and then deport everyone who is potentially subject to deportation. so we're prioritizing who we want to do that for and we have the discretion to do that. that's a case before the supreme court to be decided. every day at the supreme court will issued on thursday. >> we're talking about lgbtq issues, there's also a pending case which is wrought versus detroit which is why they christian mail carrier. >> a male career in pennsylvania was to work on sundays. and there's no male delivery on sunday. so for the post was not a problem with the post office when the post office contracted with amazon on sunday that became a problem.

and offered to work on saturday and work on holidays. and the question before the court there is a decades old decision with totally a verses -- that interprets the federal discrimination laws and there was discussion of how far they have to go to accommodate and employees religious beliefs. under that standard, the as interview by the supreme court the answer was very little and it would make sort of the telling him to do a amount of effort to recover that you don't have to collect. they're asking to overturn that decision. an interesting argument, the justices did not seem inclined to overturn that decision. but at the same time, to say employees do have to just made a massive effort. >> lastly they want to wrap up

with asking you about packing the court. so, there are lot of people on the left who are justifiably upset with merrick garland at the end of the obama administration and things like that and what your thoughts on that. >> i am a reporter so i don't really have thoughts. my response is always been with the division, it has been and continues to be a nonstarter. i don't really see a scenario where congress is going to do it and for it and against it and i think ironically, i think that it is something that is easier to do, than changing the term limits for justices.

because a term limits needed the moment to the constitution. from a political anger angle, i think this is a nonstarter right now. with congress. >> democrats, good morning, mary. >> good, morning we've a problem with the supreme court. they have been purchased. purchased by extreme people. harlan crow, leonard leo. you have applauding life with justice thomas. robert and thomas, their wives are supposed to disclose their. incomes that has not been done. with regard to roe v. wade they believe it is very decisive so you have to overturn roe. i don't know, one of the keep religion out of government decisions?

they are supposed to be a separation of church and state. and, then as far as student loans go, we're talking about ten or $20,000. that is an entire 50, 000, such a large school loan and we cannot all have a mega billionaire a donor like justice thomas who leaks $285,000 a year and pays for his relative school and pays for his mother to live rent free in the and pays for him when he literally flies high in the friendly skies and half 1 million dollars worth of vacations and private jets. and yachts and these people are making generational changes, decisions in our lives. and this, this independent state legislature, let's talk about what it really is. but talking about taking away

your voting rights. they are going to say that if we have the majority or a supermajority which is happening in some states then they will just overturn what the majority of the people want. >> all right, mary. let's get a response. >> i know from explaining it. clearly >> there are many who share your views so thank you for calling. >> all right. that is the time we have got. >> it went by so fast. >> when you're having. fun ami is a cofounder reporter at -- blob he is also the founder and editor of how on the court blocked. thanks so much for having us. >> thanks for having me. >> today, security concerns ahead of the residential cycle live at 3:30 pm eastern. before the senate rules and administration committee. on c-span three. c-span now is a free mobile video app and online at

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