innovation. hosted by the washington post. watch live beginning at 9 a.m. eastern on c-span two you can also watch on our free mobile app or online at c-span.org. ♪ >> sunday, talk to -- talks about walmart's efforts to transfer -- transform to a company that promotes a more socialist form of >> this is a company that has really made a good-faith effort in its own context and has done a lot, but again, at the end of the day, the average walmart worker is still making less than $29,000 a year. that is not a living wage. what it showed me is that

corporate america, left on its own, will never move far enough or fast enough to avert this wage crisis that we have in america. these are people waking up, working hard and not being able to make ends meet. >> sunday night at 8 p.m. eastern on c-span. you can listen on our c-span app. next 45 minutes. she is a cofounder and the reporter for the scotus blog and cofounder and editor of her own blog. a busy couple of days at the supreme court including today at 10:00 eastern. the cases moore v. harper, a very closely watched case considering the recent elections. what is it about? guest: it could have a dramatic effect depending on how the

court rules on federal elections, elections for congress and the president. it involves something called the independent state legislature theory and that is the idea that under the constitution state legislatures have near-complete authority to regulate these federal elections without interference from state courts. and the case itself started as a challenge to north carolina's new congressional map. every 10 years we have a census and the states have to redraw the maps. a group of democratic voters and civil rights groups went to state court in north carolina, and that is an important piece of the puzzle, and said the new map of the republican-controlled -- that the republican controlled legislature was a gerrymander. they said even though north carolina is roughly divided between democrats, republicans,

and independents, the new map would give an overwhelming advantage to republicans. 10 out of 14 or 11 out of 14 seats. the state supreme court agreed that it was a partisan gerrymander and sent the case back for the trial court to draw new maps. the trial map was drawn by experts and so the legislature came to the supreme court earlier this year and asked the supreme court to intervene and said that under independent state legislature theory that the state supreme court cannot step in and we have the sole power. caller: -- host: much of this was done earlier this year correct? guest: it started and february and march. they asked is the supreme -- they asked the supreme court to step in and the supreme court declined to do that but they agreed to take up the case and weigh in on the validity of this

theory. host: why do we hear some people in the media write about this independent state legislature theory as a fringe theory, critics say, and why do supporters say it is an integral part of the whole process? guest: they point to the text of the constitution and there are two clauses. one is the elections clause in there is another one called the electors clause. the text refers to the legislature meaning the body that makes the laws. it does not mean the state supreme court or a referendum i the voters or a veto by the governor. this is a theory that the supreme court has not endorsed. back in bush versus gore then chief gusted -- chief justice william rehnquist wrote a second concurring opinion that was joined by scalia and thomas and they said in that opinion that they would have reversed the

decision of the florida supreme court on the grounds that it also violated this independent state legislature theory for the florida supreme court to step in with regard to the recount. again in 2020 after the 2020 elections, pencil -- pennsylvania republicans came to the supreme court and they said that the pennsylvania supreme court extended the deadlines for absentee ballots and pennsylvanian republican said you cannot do that. several justices did not take up the case or weigh in and a couple said we need to take a look at this theory. host: did they mention this theory? guest: they did. host: in terms of the impact of the case, what happens if the court agrees with the republican legislature? what happens to the district --

redistricting in north carolina? guest: if the court were to agree with the republican legislature and a lot depends on how the court rights the opinion. they could say the legislature has complete authority and only congress can otherwise make changes. they could adopt a narrower version of the theory that says that normally the legislature has complete authority, but it if -- but if it has delegated authority to the supreme court or governor in a law then that could trump the the theory. if the supreme court was to rule for the legislature it could go back and the legislature could draw a new map and an important change in north carolina was that the north carolina supreme court that struck down the map was at the time, a democratically controlled court. that court is now controlled by republicans. even if the supreme court were

to say you can delegate your authority to the state supreme court the state supreme court could look at that and say that is not partisan. host: voters are saying the legislature does not fall outside of the own rules, if they write the process that the courts in the states can oversee and overrule the legislature in the case of drawing district maps. guest: they say when you look at what legislature meant, it is a whole body that made laws but nobody intended when they drafted the constitution to mean that the legislature is not constrained by the state constitution, for example. host: she is a supreme court lawyer and a cofounder of scotus blog and her own howe on the court blog. 202-748-8001 is the line to call in for republicans. democrats, 202-748-8000. and for independents and others, 202-748-8002.

the argument coming up today, 10:00 a.m. eastern and we will have that live on c-span. you will be in the courtroom today or that oral argument. what you will -- what will you be listening for? guest: so going in, the decisions by the supreme court to take up this case suggested that there are several justices that artists -- that are receptive to this theory. what i am listening for is if there are a majority of the justices who seem receptive to it. what version are they going to look to? a version that gives the state legislature unfettered authority or are there narrower versions? host: this is happening at the same time that congress is considering potential changes in the electoral count law. how might -- what is congress

looking to do in changing the law? guest: unfortunately this is not my area of expertise but it is something that i will be looking to see if that comes up as well and what the justices have to say about that. host: 202-748-8001 is a line for republicans. 202-748-8000 for democrats. independents and all others, 202-748-8002. let us go to missouri on the democrat line. you are on. caller: good morning. i am really disappointed by the supreme court. the stolen seats that the republicans failed have -- filled how can you collect a prize for a contest that you did not win? i am saying kavanaugh and barrett should have stepped down out of fairness. the idea that everything has to

fit with the constitution is quaint and unworkable. originalists, would clarence thomas would really like black going back to being slaves. the only voters being white -- being white landowners now? i think the supreme court should reflect more of public desires. thank you. host: amy. any thoughts? guest: thank you for listening and thank you for your comments. host: let me bring marquette university that does a regular polling to ask what people think about supreme court. this approval is quite stark between now and 2020. the approval rating in 2020 was 66% and now it is 44%.

the disapproval rating in 2020 was 33% and out is 56%. what do you think is causing that? guest: i think it was a reaction to the dobbs opinion and the hullabaloo surrounding the leak of the dobbs opinion and the dissatisfaction with the court, obviously. one thing that i have been blogging about and covering the supreme court for over 20 years and it has been interesting to me. there have certainly been stretches in time in which the supreme court's approval ratings did drop because of the citizens united decision in 2010 or shelby county v. holder and then the supreme court tended to recover and bounce back. what i am looking to see is what happens if they do this whole this time next year or the year after, and whether or not the

supreme court is able to rebound. host: you touched of the leak of the opinion in the dobbs decision and there was another reporting -- reported leak. this alleges another supreme court breach about the hobby lobby case. can you address what is going on in terms of looking into the leaks? host: with -- guest: with red guard -- regard to the dobbs leak john roberts indicated who the court's marshall would be conducting an investigation. that is pretty much all we know about that investigation. it is ongoing as far as i know. i do not know whether or not the results will be made public when there is a results, or in what form. whether that could leak. talking about the accusations and the reports of a leak in regards to the hobby lobby case

a couple of years ago, the supreme court's lawyer released a letter that said in essence justice alito did not do anything wrong. he denies having said anything about the decision to the couple that is mentioned in the new york times. they are talking about ethics rules they are said that they are balancing the duty to the public and being able to accept gifts from friends. having said that, the house judiciary committee is holding a hearing tomorrow on supreme court ethics and is focused on the accusations in that article about the hobby lobby leak. the other thing that will be interesting, chief justice john roberts on december 31 at 6:00 p.m. releases his year end report. and some years that addresses things like how the judiciary is coping with covid or has coped with natural disasters.

last year it was about ethics reforms and changes to the court and the chief justice said to congress we will deal with this. and i think that people will be watching to see what he says in the wake of all of the explosive allegations related to the dobbs and hobby lobby leak because it has been a year, what is the court doing to deal with this? host: gabriel up next in apex, north carolina. republican line. caller: thank you for this wonderful conversation. i wanted to ask a specific question dealing with the prior cases from 2019 where chief justice roberts ruled with a lot of the current people who will be a big factor today in terms of the jurisprudence, but they ruled that federal courts cannot step into state matters. ruto as an election law made

it where the actual state courts were the only check on partisan gerrymandering. i am wondering how those two will be in or out of alignment today and i wanted to get your thought on that. i wanted to ask if there was anything that, given where the court is with clarence thomas and the shielding capacity and the ability to recuse themselves , what can be done by congress in order to add a layer of protection to regulate the supreme court. it seems like it is entrenched and there is nothing that can be done especially with lifetime tenure. it is one of the only entity is that has that status and it is dangerous to the regions you alluded to. thank you. guest: i think you raised two important points. the first one is the discussion

and it was something i did not want to go on for too long of ruto versus common cause and that was a case out of north carolina involving partisan gerrymandering. as you said the supreme court in an opinion ruled that federal courts cannot consider claims of partisan gerrymandering and they are too political and the federal court should stay out of it. but the opinion by the chief justice made a point of saying that state courts, all is not lost in essence. state courts would be available to consider claims of partisan gerrymandering under the state constitution. that is another thing i will be listening for, is what the lawyers who are arguing on behalf of the challengers and on behalf of the legislature and what the justices say about the decision in ruto v. common cause .

and you talked about what congress can do in regards to the supreme coat -- supreme court and ethics. there is a code of ethics that does not apply directly to the supreme court and that is what congress is looking at, the possibility of adopting an ethics code. as a practical matter we are about to have a divided congress again. are they able to do something in the next couple of weeks, i am kind of skeptical. i am not sure that it is something that would pass in a divided congress. host: you also covered one of the case, a case dealing with a same-sex couple and businesses not working with them, conservative justice was poised to side with a web designer that opposes same-sex marriage, what is called in this case? guest: back in 2018 they heard

the case of jack phillips that was a colorado baker who made custom wedding cakes who did not want to create a cake for same-sex couples because that would violate his religious beliefs. the supreme court in 2018 ruled for phillips but on a narrow ground. they said that he was treated unfairly by the colorado administrative agency that considered his case because of the hostility to his religion. his case was over and the supreme court agreed to take up the same question in the case of a website designer named lori smith who creates custom websites and she wanted to expand her business to include wedding websites, but she like phillips is a devout christian who says she believes that marriage is limited to one man and one woman so she does not want to create custom wedding websites for same-sex couples and she wants to put a notice on her own business website to make

that clear. she says i will serve lgbtq people in other contexts. you want to create a website about an animal shelter that is great, but i will not do weddings. the colorado antidiscrimination law that would require her to do that violates her right to freedom of speech. the supreme court agreed to weigh-in on whether that violates or freedom of speech, not freedom of religion. and there seems to be five or six conservative justices who were sympathetic. the three liberal justices, justice sotomayor, ketanji brown jackson were trying to illustrate further justices and the public to try and press smith's lawyer, kristin wagoner. it boiled down to there are two quotes to boil it down. justice sonya sotomayor said "we

are going to carve out an exemption from antidiscrimination laws for the first time if we rule for smith." and then chief justice john roberts said "if we do not rule for smith we would be compelling speech in violation of someone's beliefs for the first time." it seems like they were sympathetic and they perhaps be inclined to draw a line between service providers like website designers and artists. and on the other hand people were part -- people who are providing services to same-sex weddings like the guy who provides the chairs or the limo driver because that is not speech. host: that term was used a bunch of time, compelled speech. what does that mean? guest: when the government forces you to say something with which you disagree. and the government would have to

pass a very high bar to do that and they say it is not met here. host: in essence it boils down to mayor making a first amendment case. guest: this is the argument that compelling her to create custom wedding websites for same-sex couples when it is contrary to her religious beliefs violates her rights to freedom of speech. host: let us hear from paul in the nation's capital, democrats line. caller: i just had a comment and question. 59 years old and have lived in d.c. all of my life. when i started paying attention to the supreme court, which was in my teens and learning about it, i just feel like there is a gap between what we as a country feel the supreme court should be, and what it is. for as long as i can remember,

there has been a partisan bench, of course, to the nominations and how the court rules. and then there is, i feel, this notion that the court can be because it is a legal body above it all. and i think that is not the case. maybe at some point before my life, it was playing out in my manner, but that -- but not that i have seen. that is my comment but i also have a question and this is totally my endurance. has anyone been removed for the court -- from the court for for lack of a better phrase bad behavior? host: they would have to be impeached, correct? guest: yes, but justices have been and it is extremely rare. host: you want to comment on her

view of the partisan bend of the court. guest: i would be glad to. there is, and i want to make clear that this is not necessarily my view, i am just saying what the other side would be. they would say precisely that the supreme court is not intended to reflect the will of the people. the supreme court justice says are not elected, -- justices are not elected but picked by the senate and then -- by the president and confirmed by the president. they have life tenure so they can make decisions that are not popular. host: jeff from nebraska on the republican line. guest: i am a firm believer -- caller: i am a firm believer of the federal government staying out of the state business. let the states do it however they want to do it and control it through the courts and

whatever they have to do. however, we really have a problem when it comes to federal voting. we need to set up a four day period of time, friday through monday and make it like something where we have a national holiday. and people can go vote, show their identification card, and vote with paper ballots. and if you have an illness or you are military, or you have a legitimate reason why you cannot make it, you can use a mail-in ballot. but anything beyond that, people need to go. we need to get this in control. it is start -- it needs to get under control because it takes too long to get things counted. and there are just too many people out there, like myself.

we do have -- there is a lot of problems. host: alright. keeping on elections for a moment on the supreme court, are there other elections related cases coming up this time? guest: not this term. the one thing in response to the caller, it is an interesting point talking about the partisan gerrymandering case and the independent state legislature theory. there was an article last week in "the washington post" by sam wang that said the case that is before the supreme court involved a republican-controlled legislature that wanted to draft a map that would benefit republicans. but if you look at the national map that ruling in favor of the republican-controlled legislature would actually benefit democrats more because

there are a bunch of blue and swing states that have not drawn partisan maps because they are constrained by the governor or referendum or the state supreme court. if those supreme court were to remove the constraints then they would be able to draw maps that favored democrats. host: a question from jim "isn't it true that both parties gerrymander their states?" guest: gerrymandering is a bipartisan issue. the supreme court heard another pair of partisan gerrymandering cases, one of them was from maryland challenging a map drawn by the democrats. host: tim in wisconsin, the democrats line. caller: thank you for taking my call. i would just like to say, i do not have a lot of patiend3 for

this -- patience to the supreme court, when you had trump putting three on, but i guess it was legal. and then you take into consideration that you can get 52 republican senators or 42 percent cast in this country for senators, i do not think it represents the will of the people. as you stated, maybe that is not the case, but it should not represent the will of the federalist society people who can pick who sits on the supreme court for life, which is the scary part. they are in for life. thomas has been there for 40 years and will be there for another 20. i do not feel that that is right. thank you. guest: you know, i think --

thank you for listening and thank you for watching. host: you obviously cover the court and you've argued before the court. what do you think that most of us who just listen or sit in or read the newspaper, what we miss about the court's function and role? guest: the one thing that has largely flown beneath the radar of the left, so in the last year or so with the supreme court's decision not to block the texas abortion law is what is known as the shadow docket which the supreme court hears oral arguments in those arguments are now livestreamed including biases and which is wonderful because it opens up access to the court to everyone, you can go to the supreme court if you can stand in line and you can read the opinions on the website. but a lot of action happens

outside of the normal process on the shadow docket. the emergency appeals that come in asking the supreme court to step in, and the supreme court has been somewhat responsive to the criticism that it can swoop in and issue an order that blocks a government program and do that without any explanation, but for example they are hearing org you -- oral arguments and they will fast track some of these cases and rule on them based on a cousin. -- a couple of dozen pages of briefing but there is a lot going on behind the scenes. host: the court issued a challenge to the federal immigration policy and a number of tates -- of states are challenging the policy. guest: there are roughly 11 million undocumented immigrants in the united states who could be subject to deportation. and so the biden administration

adopted a policy to prioritize who will they -- who they will deport. they said we would deport people who are convicted of serious crimes and people who have entered the country recently. and so texas and louisiana challenge policy in federal court in texas as being inconsistent with federal immigration law. they said it requires you, the biden administration to deport people who meets the criteria and they said it cost the states money because we have to pay for education and to incarcerate these people and for health care. and so the question is whether or not this policy should be allowed to stand, but there are important questions and that is in and of itself an important question.

the biden administration says we cannot deport everyone who is subject to deportation, we have to prioritize and immigration officials has always had discretion. if we have to deport everyone who we pick up that will keep us from being able to focus on the people who need to be deported the most. there are other important questions in the case including about whether or not the states can bring a lawsuit at all in the first place. the state say this has harmed us. the federal government says it has only home -- harmed you indirectly. and what the argument is that anytime a state has suffered an indirect injury of even a dollar then you can march over to federal court and file a lawsuit and that is going to be unsustainable. host: steve calling from chagrin falls, ohio. democrats line. caller: good morning.

there are a number of things that come to mind. the one with respect to the court, it has become more politicized, for sure. and the fact of maybe these conservative interest groups doing their vat -- various vaccine things to influence -- various back scene things would influence things. i think it goes to bush versus gore when the supreme court swoops in and ignores the state dominance in governance on how they do elections. and that was probably the beginning of it. the other one is this website situation now. or, case. it is interesting because there is -- she brought the suit up, nobody asked her to do anything. it is kind of like a political

type of case in a way. but my question regarding that is, if it is really free speech, about free speech, and everybody has a belief or religious belief that they do not want to be involved in promulgating some sort of speech, ok. making a website that does not agree with their viewpoint. well then what about a newspaper publisher? and somebody wants to advertise something in their newspaper, and they say no, i do not agree with that that is against my belief system. is that what the court is opening up, people can just pick and choose the things that they wants to help other people communicate? so the communication platforms and how we try to persuade people about things, that is a

whole ball of wax. and if the court comes in and makes a decision on a case that really has no case, it is somebody's belief that they do not want to do something that nobody has asked them to do so. they are really opening a can of worms. host: we will get a response. guest: one of the points that you raised the idea that lori smith has never actually tried to offer wedding websites to anyone or has never turned down a same-sex couple, that is the argument that the lawyers representing colorado and some of the justices were making. normally we deal with facts, and we do not have a lot of facts about how this will work suggesting that the state courts should send the case back to the lower court. there did not seem to be a lot of traction for that idea, but it was certainly an argument that some of the justices and

lawyers are making. and then to get to your point about the supreme court being politicized. we are at an interesting point in the supreme court's history. i will not say if the court is politicized or partisan. but we are at a point where each of the justices really kind of reflects the ideological bent of the presidents that appoints them. that has not always been the case on the supreme court. in the period since i started following the court you had justices like john paul stevens and david souter who were both republican appointees that by the end of their career were solid members of the court's liberal wing. you had justice anthony kennedy who is not member of the liberal wing but sometimes crossed over to join the liberal justices on important issues like affirmative action and the

rights for lgbtq people, and abortion. and that as one of the earlier callers said, became a rallying cry for conservative republicans who have been focused for decades on changing the makeup of the court was to say things like no more souters when they had a nomination available to make sure that they were picking someone who was a serious conservative justice. host: in very short order after the dobbs decision this summer, bipartisan and bicameral support came behind legislation to enshrine in law the right for same-sex marriage and interracial marriage. why did some people feel that that was necessitated after the dobbs decision? guest: that is a great question. in the dobbs decision the majority opinion by justice samuel alito carved out a special role for abortion.

he said that our decision regarding abortion does not implicate some of the other rights to privacy including the right to contraception, same-sex marriage, interracial marriage that has been the subject of the supreme court decisions. those are different, this case is just about abortion. in a second concurring opinion justice clarence thomas suggested that because those rights are on the same foundation, the right to privacy which is not found specifically in the constitution but the supreme court has read the constitution to include might be in jeopardy because of the reasoning in the dobbs decision. so the reaction to both the reasoning and the thomas opinion is pretty -- in particular because justice thomas in the past has written these separate

opinions that sometimes seem to reflect only his views. but as the supreme court has become a more conservative court some of the things that he has suggested over the years that the supreme court should do the supreme court takes up and do. host: becoming more conservative and they gained a new democratic appointee and justice qanon she brown jackson. you're in the -- justice catania brown jackson. you are in the courtroom, what is her role in the arguments? guest: she has been very active, she has been one of the justices leading the response to the use of history when you are interpreting that constitution. there is the idea that you look at the text but you then you also look at how the people who drafted that text would have understood it when it was drafted in the late 18th century or the case of some of the amendments, the mid 19th century. the idea of history and

tradition were at the center of some of the court's rulings last term in the dobbs case in a case called new york state v. briuan involving the second amendment. she turned around relatively quickly and said that two can play at this game asking in a decision about voting rights, wasn't the 14th amendment to the constitution actually intended not to be neutral with regard to race but to help african-americans. she was active in the 303 creative website designer case with a lot of different hypotheticals for the lawyer. and she has written a couple of opinions and has not released any opinions after oral arguments but a couple of but -- a couple of opinions dissenting from the decision not to grant relief to death row inmates. host: mike in new york,

independent line. caller: good morning, i was just wondering if amy could enlighten us a little bit on the federalist society's involvement with supreme court appointees. it seems like the six conservative dissenting members are all members of the federalist society. i was wondering if she could give us an idea of the agenda behind the society. i know skelly was a member, and of court -- scalia was a member and we know what he did. if she could give us a little information on her involvement. guest: i am not sure that all of the justices are members. the federalist society is an organization that was formed

some time ago. initially in response to the perception that conservatives were underrepresented in academia. it became an organization that became heavily involved with the selection and nomination of judges and justices during the trump administration in particular. so many of your viewers might recall that before the november 2016 elections, donald trump had announced that he will release a list of potential supreme court nominees if he was elected president. i think he probably had a lot of assistance from the federalist society in coming up with those names. that list that's a lot of credit for getting trump over the finish line and getting elected in 2016 because they were some

people who were social conservatives who were not convinced about this real estate developer from new york. and that gave them a lot of comfort that if he were elected, he was going to nominate solidly conservative justices and judges, particular to the supreme court so that they would have a chance to overrule roe v. wade. host: one more call, don in new mexico. caller: good morning. it is my distinct opinion that there is no reason that this case should be before the supreme court. there is no injured party. what we are dealing with is a a case with a potential injury. so will you give me three examples where he supreme court has reached out and taken a case on the basis of potential

injury? guest: i am not sure i can come up with three off the top of my head as i said earlier, this was certainly an argument made and this was also made at the stage at which they decided whether or not to take up lori smith's case in the first place and obviously there were at least four justices who thought they should go ahead. it does not seem to be getting a lot of traction. host: we will have live cov of the north carolina redistricting case. moore v. harper takes place live at 10:00 and you can hear it live on television and amy howe will be targeting court has untt

year for the issuing a ruling.