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a front-row seat to democracy. welcome back to washington journal. i'm joined now by amy howe. she is the cofounder and a reporter at scotus blog. let's talk about the term, the 2022-2023 term that is wrapping up. anything that surprised you? guest: we are waiting on all of the verge -- on virtually all of the big decisions, so it is really too soon. we are still waiting on 27 cases to draw any conclusions about what this version of the court will look like this term. host: we will talk about some of the cases we are waiting on. touchy brown jackson was new this term -- could tonja brown jackson was new this term. what did you expect from her?

guest: she has been a very active justice, may be one of the most active new justices. that is not surprising. she spent most of her time as a judge, a trial court judge. she was the only one in the courtroom. she is very active. she has a lot of questions. she is often working with the other two liberal judges to present a liberal point of view. they are outnumbered. they are all quite active. host: we will be taking your calls on the supreme court and the cases they are looking at. if you would like to call in, you can do that for the next 40 minutes. the lines are by party affiliatio. republicans, (202) 748-8000.

democrats, (202) 748-8001. independents, (202) 748-8002. let's talk about affirmative-action. guest: there are two separate cases, one involving the university of north carolina, the other involving harvard college. there are challenges to those universities consideration of race in their admissions processes. in a previous case, the court ruled that the university of michigan could consider race in its admissions process. that was a 5-4 decision by sandra day o'connor. in the decision at the end, justice o'connor wrote that "in 25 years we would hope that the consideration of race would no longer be necessary, because universities would be able to achieve this diversity through other means." it is 20 years later.

the court is a different court been the one we had in 2003. students for fair admissions brought this challenge to unc arguing that unc could have a diverse student body without considering race, and against harvard saying its consideration of race discriminated against asian american students in favor of black, hispanic, and white students. the lowered courts ruled in favor in both cases, and the supreme court agreed to weigh in and heard oral arguments at the end of october. it seemed unlikely that -- the question is what exactly is the supreme court going to do? we are waiting on tenterhooks to

hear. host: this is about race being either one factor or the determining factor. here is the exchange with chief justice roberts. [veolip] >> being afric-american, or being hispanic, or in some instances being asian american, can provide one of many, many tips. >> you will have to concede that it provides one of many, so it will be determinative. we're talking about race as a determining fact for admission to harvard. >>or some highly qualified applicants, it could be the determining factor just as being an oboe player in a year in which the harvard radcliffe orchestra needs an oboe player could be a tip. >> we did not fight a civil w against oboe players.

we fght a civil war to eliminate discrimination. that is why it is a matter of concern. it is important for you to determine whether giving a credit based on skin color is rooted in stereotype when you say this brings diversity of viewpoint. host: how big of a change with the speed college admissions? guest: this exchange makes a couple of points. the first is that the concession from seth waxman that race does play a role for some students in the admissions process, and the second one is the response from chief justice ron bought -- justice john roberts. some people think of him as being one of the "sw3ing judges -- swing judges." in another case relating to

race, he wrote "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race." this is something he feels very strongly about. what is the impact? justice elena kagan spoke about the importance of this. she talked about what the impact could be not only on admissions to colleges but on society more broadly. college is a pipeline to positions at businesses. if you do not have diversity at colleges, you are less likely to have diversity in businesses. host: let's talk about student loan forgiveness. there are challenges to president biden's plan to forgive certain amounts of

student loans based on other factors. what sense did you get from the arguments about how this would go? guest: there were two separate challenges by some attorneys state general, and to borrowers. one borrow -- and two borrowers. one of them has federal loans but would, not benefit to the fullest extent. they are challenging the program as it is drafted. the first hurdle that both plaintiffs have to clear is standing whether they have a legal right to sue because not everyone can go into court and say "i don't like this policy." you have to show you are injured by this policy. if one of the borrowers are injured, than the challenges can go forward. the way it looks like the case

could go forward, is missouri set up an agency to hold them to service student loans. the argument is that if $400 billion in student loans are canceled, they will not make as much money, and they will not be able to contribute to the state's university plans the way it used to. it opens up the doors for other challenges, but if they can let their cases go forward on this narrow ground, they are not opening up the doors in the same way. then you have the substance of the challenge on the merits. the biden administration relied on the heroes act, which allowed the secretary of education to waive the student loan program

so student borrowers are worse off because of the national emergency. in outlining this debt relief program, the secretary of education relied on the heroes act. in the initial student loan payment pause in the trump administration, betsy devos relied on the same statute. the secretary of education relied on this law but the challengers are relying on the major questions doctrine. under this name it is relatively new at the supreme court. the supreme court relied on it in a case called west virginia versus the epa on the clean water act. if the government is going to pass -- the states are saying

yes, the heroes act authorizes changes to the student loan program, but congress did not have $400 billion worth of changes in mind. the biden administration counters that this is exactly what congress intended to do with the heroes act. it was a national emergency, and we want to make sure borrowers are not worse off because of it. the justices seemed skeptical, particularly because the covid-19 emergency ended on may 11. we will have to wait and see what the justices do, what grounds they rely on. host: i want to get to calls, that before we do that voting rights. there was merrill versus milligan.this was around the situation in alabama . this is a complicated case involving voting rights. section two of the voting rights

act of the voting rights act bars racial discrimination in voting. alabama passed a new congressional map. every 10 years, the state has to draw a new map to respond to the changes in population. they have seven seats in congress. alabama has a 27% black population. one of the state's seven congressional seats was a majority black district. the challenge to the map says you could have drawn a second majority black district. instead, you packed a bunch of black voters into that one district, and then you moved, dispersed other black voters into multiple districts when you could have put them all into one district, and created the second majority black district. that is a violation of section 2. the state of alabama has 2 arguments. they said "if you are going to

allege that there is a violation of section two of the voting rights act you have to show that we intended to discriminate against black voters." that did not fare well with the justices, even with the conservative ones. the justices could rule on a narrower ground, but it would still set a relatively high bar for people who want to challenge congressional acts under section two of the voting rights act. host: let's talk to callers. brian is next in farmersville, ohio, republican. caller: good morning. i wanted to ask a couple questions, and then a comment real quick. i'm curious why everyone is making business decisions about color? 10% of our dna is dedicated to our race. at that point let's go ahead and commit 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 we are dislike. on college tuition, i think it is disenfranchising to a lot of people who make business decisions about "i am going to send my kid to school whether i can afford it or not." it would be nice to know if we will get state assistance, or any kind of assistance, colleges, tuitions go. that is what i do for a living. i build the dormitories and colleges. shouldn't miss jackson recuse herself from anything that involves a human because she does not know the difference between a man or a woman? guest: a lot there. thanks for calling. host: let's go to skip in waterbury, connecticut.

caller: since the supreme court has overturned roe it is amazing how much distrust of their is in the supreme court. host: what do you think about the level of trust in the supreme court? guest: i think the caller is referring to recent polling on the trust level of the supreme court, which is at historic lows. there's no getting around that. it is something that concerns the chief justice, but the decision -- there is not much they can do about it. host: 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? guest: it is hard to know. we see so little of the supreme

court. many of the pro-public articles about justice thomas came out at the end of the term. we only hear about them when they release decisions. they were already pretty far behind on the speed at which they were releasing opinions. i think that has less to do with ethical issues and more to do with the fact that they have a lot of complicated, high-profile cases, in which they are likely to be divided, and when they are divided they have main opinions, dissenting opinions, concurrent opinions, and that takes time. there are rumors of new security procedures after the dobbs opinion. it might just take longer for them. we have seen the chief justice john roberts talking about the ethical issues. they are very much on their minds. host: we have a short clip of

chief justice john roberts talking about ethics. [video clip] >> i am committed to making sure we adhere to the highest standards of conduct. we are looking at things we can do to give practical effect that commitment, and i'm confident there are ways to do that that is consistent with our status as an and departed -- as an independent part of the government. host: why has there not been a more forceful response and a binding code of ethics for the supreme court? guest: it is hard to say because we are not in their deliberations. there is probably some internal debate at the supreme court. this came from a meeting of lawyers and law professors in washington dc. one of the interesting things about these remarks is they came

after the justice's reaffirmation of the fix and a restatement of principles, it came attached to the chief justice's response to an invitation to a peer to testify about ethics. these are very vague statements about with the justices may or may not be doing. back in march of 2019, for the pandemic, justice elena kagan and justice samuel alito appeared before the senate appropriations -- house appropriations committee to testify about the supreme court's budget. that is the rare opportunity for members of congress to question the justices about their pet projects, by cameras in the courtroom, ethics, and at that budget committee hearing, justice kagan said they were

considering an ethics code. that was four years ago. it does not take that long to draft an ethics code. [laughter] host: do you think there should be one? guest: i think they need one. these questions are going to continue. even with one, it will still continue to have some issues, because they are going to be the ones who enforce it against themselves. that is part of the problem right now is that the justices individually decide whether or not to recuse in a particular case. this was a point that was made in the statement that the justices released last month. they also talked about how concerns about security could trump the need for transparency and disclosures about travel and accommodations, but i think they need one. host: let's talk to david in chicopee, as choose its,

independent -- chicopee, massachusetts, independent. caller: a lot of women and liberals will say, men have nothing to do with that. they should not have any decision in that. yet in 1972 the only people on the supreme court were men, and apparently they had no trouble with men deciding that. the second thing i find to be bothering to me is the loans for students. i took my loans from my house. i took my loan for my car. i took my loan to pay off my college debts. why do these people think they should have their loans paid off? i cannot believe that. what is your opinion on that? guest: chief justice john roberts made a similar point during oral arguments. he talked about people who graduated from high school at the same time, one person took out loans to good college, and

one person took out loans to start a business. one is getting their loan forgiven and the other is not. host: i want to ask you about lgbtq rights. what is the back story on that? guest: some of your viewers may remember in 2018 there was a case involving a cake maker in colorado who said "i am christian. i don't want to bake cakes for same-sex couples because i believe marriage should be a union between a man and a woman." the supreme court ruled for him, they do not decide 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. they said administrative agency was hostile to his religious beliefs. that same question is back in the case of a colorado website

designer. she does graphic design. she says she wants to do wedding websites but only for heterosexual couples. i don't want to do same-sex couples because i believe peerages between a man and a woman, and i want to put a sign on my website that says i do not to same-sex wedding websites, but i would run afoul of colorado's antidiscrimination laws. she went to court seeking a declaration that she would not get into trouble for doing that. it is the question, how do you balance the rights of lgbtq people and business people with religious beliefs? the supreme court at the oral argument in december seemed ready to roll for the website designer. a question that comes up is her case. how do they decide other cases?

on multiple levels how do they decide other service providers? you have a wedding website. that is clearly her creating speech, but what about a musician who does not want to play at a same-sex wedding ceremony? what about the invitation designer? the cake maker? the limo driver? where do you draw the line in terms of service providers? where you draw the line in terms of other people who are protected by the antidiscrimination laws? can someone say "i have my religious beliefs. i don't want to provide services to women or minorities"? how exactly do they write the opinion? guest: let's -- host: let's talk to john in east hampton, massachusetts. caller: one of the things i just heard you say is what would happen if there was a christian wedding and they wanted a jewish

person to cater it. that wouldn't be all right. people say kevin mccarthy had to give up a lot to get this speaker should. i wonder what biden had to give up to the crazy libtard left to get his position? host: let's go to kathy in albuquerque, new mexico, democrat, good morning. caller: i don't think people trust of the supreme court lately based on some of their decisions that are inconsistent. they also used two specs a long tradition -- use to respect a long tradition. when you bring up dobbs and brewer, the gun and to bashan -- the gun and abortion debate, they wanted to regulate abortion, but when it came to braylen, they were ok

overturning new york gun licensing. that is what the conservatives -- i wanted to see what you thought about that. guest: i think the public perception of the core is a real concern for chief justice john roberts. that is why we see him speaking out about ethics again, because he probably realized that the initial effort with the justice's statement reaffirming their shared principles about ethics did not satisfy people. he. is returning to it agai he is . it is something they have within their control. we talked in 2012 when the decision came out in the health care case about chief justice'

s. it is something -- about the chief justice's concern for the institution. host: ann is a republican in virginia. good morning. caller: she failed to mention that the heroes act was meant to help soldiers who had to quit school to join the military during the 9/11 effort. the entire nation benefited from these young people who had to quit their education and still had loan payments due. i don't know how anyone is equating this loan forgiveness bid by biden. you used the word equitable. taxpayers do not benefit. only the student is benefiting. they can avoid homes, cars, educations. i would like that as the media talks about this, they should

circle back to the point of why we have the heroes acted to begin with, and why it has been conflated by all political administrations in order to gain favor. guest: i didn't mean to gloss over it. i think you made the point very eloquently. host: let's talk about another case, which is moore versus harper. guest: this is a fascinating case. it is potentially a very far-reaching case, depending on how the court rules. there is also a question of whether the court will reach the merits in this case. this is a case out of north carolina, once again involving redistricting. again, north carolina drew a congressional map. the north carolina supreme court throughout the map. they said it -- court through out the map.

they said it was the product of gerrymandering, and it violated the state constitution's promise of free and fair elections. the republicans went to federal court, and they argued that the north carolina supreme court's actions in throwing out the map violated the independent state legislature theory, and that is the idea that the federal constitution gives state legislatures 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 in bosch versus gore -- bush versus gore outlined it in a concurrent opinion. this is not a theory that a

majority has endorsed yet. the supreme court agreed to weigh in. they hurt o -- heard oral argument on the case. it did not seem like there was a majority that was ready to go full throated states can never interfere in a state legislature's actions -- full throated "state courts can never interfere in the state legislature's actions." the court went from a democratic-controlled court, because they have elections, the state supreme court, to a republican controlled state supreme court. the republican-controlled state supreme court this spring threw out, reversed its earlier ruling and

said "we believe the supreme court cannot assess these partisan gerrymandering claims." the supreme court asked for more briefing from everyone involved on whether or not it can consider this case at all. there is -- is there a dispute anymore? guest: what about the independent state led-- host: the independent state legislature theory, what would happen if it was implemented? guest: it could be a massive shift in how our elections are run. the u.s. supreme court a few years ago said there is no role for the government in partisan gerrymandering claims. the state courts would not be able to have any say. they could enact many other

rules regarding federal elections for the house of representatives, for the senates and state courts would not be able to step in and play any role if they violated the state constitution. host: let's talk to sheila in st. petersburg, florida, democrat. caller: one question i have on the reversal of roe v. wade was n't it based mainly on a no privacy right? host: was it about privacy? is that why they reversed it? caller: that was the main basis for being able to reverse it. guest: that was one of the reasons. they said the constitution does not say anything about a right to privacy, right to abortion.

if you look at the history, there is no history of this being a right. host: the thing else regarding abortion coming up before this supreme court? anything happening? host: we are way -- guest: we are waiting, for the fifth circuit which is based in texas which is a conservative court. they heard oral argument last month in the battle over the availability of the abortion pill. we are waiting for the court of appeals to rule on that. either way i would expect that to wind up at the supreme court in the upcoming term. host: we have been talking about things we are expecting to come down. what about some of the decisions that have already happened for this term? guest: we have had a couple of big ones.