Supreme Court begins new term as public’s trust hits historic low

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• Judy Woodruff:

  The Supreme Court kicked off its first day of the new term with fresh arguments and a new face.

  To unpack today and all that's to come, we turn now to our regular court watcher, Marcia Coyle, chief Washington correspondent for "The National Law Journal," and Josh Gerstein, Politico senior legal affairs reporter.

  Welcome to you both. It's so great to have you. So much to ask you about.

  But, Marcia, let's start with a new person the court, Ketanji Brown Jackson. This is the first case she's hearing.

  We have just a bit of an excerpt, an audio excerpt, of her questioning as the justices heard the arguments, we're going to listen to that and come back to you.

  Marcia Coyle, "The National Law Journal": OK.

• Ketanji Brown Jackson, U.S. Supreme Court Associate Justice:

  Did they see the property? I understood in the pictures that you could tell that at least part of it was a wetland by looking at it, so…

• Damien Schiff, Attorney:

  I believe Mr. Fletcher was referring to after the initial work had been done. And the pictures show that there's water on the property, but that doesn't show how it was before.

  But if I could go back to, though, to the question of the jurisdiction…

• Ketanji Brown Jackson:

  But you keep talking about notice and fair notice and property owners not being able to tell or know about this issue.

• Judy Woodruff:

  So, Marcia, not being shy. She's right in there with questions.

• Marcia Coyle:

  Absolutely.

• Judy Woodruff:

  How did she do?

• Marcia Coyle:

  I think she did very well. She had a tendency at points to dominate the questioning. And I think that's just the function of being new, until you get a sense of your colleagues, and how and when they like to ask questions.

  She — there's really two general approaches that new justices take at their first oral argument. They're either cautious and hang back, ask a question or two, or they jump in full-throated like she did.

  And, in a way, Judy, she reminded me, Justice Sonia Sotomayor when she started on the court. She had, like Sotomayor, complete command of the record in the case, which I think reflects her being a trial judge, and also of the legislative history and Congress' intent behind the statute that was before the court.

• Judy Woodruff:

  Josh, what was your take on how she did?

• Josh Gerstein, Politico:

  Well, she was certainly, as Marcia said, very vocal.

  I mean, she, I think, may have spoken and questioned more than any other justice, at least during that first section of the arguments. And she was very well-informed, as Marcia said. She reminded me in fact, a little bit of her predecessor, Justice Breyer, in this question she kept bring up about congressional purpose and congressional intent.

  But there was no question she intended to come out of the gate here very strong, and to indicate that she's not going to be some kind of shrinking violet on the court. That's not going to be her role.

• Judy Woodruff:

  She wasn't holding back.

  Well, Marcia, let's talk for just a moment about what the case was today. It was about the Clean Water Act. In a nutshell, what was the argument? What's the significance?

• Marcia Coyle:

  Well, it's very significant, because how the justices decide what kind of test to use to determine whether wetlands are part of the waters of the United States can really affect how broadly the Clean Water Act can be used to ensure water quality in a lot of different types of water bodies.

  And so there was a lot of discussion about what the lower federal appellate court's test was. And the family that brought the case to the Supreme Court, they're asking for a test that really would allow them to build their family home on the lot that the government has said is a wetland. And they can't do that.

  So I thought, the justices at the very end were really struggling with some sort of middle ground here between what the Sackett family was arguing and what the government wants the court to do.

• Judy Woodruff:

  So — and, Josh, all this — of course, this is the first day of the term. It's been anticipated in so many ways, not only because there's a new justice, but because we are seeing tensions in the court and public trust of this court at almost historically low levels.

• Josh Gerstein:

  Yes, there's been an unusual exchange, also, Judy, over the last few weeks.

  Normally, the summer time, the justices sort of take time off, go to their vacation homes and so forth. Some of them go teach in Europe customarily. But we have seen this unusual back and forth that has developed over the last couple of months, chiefly led by Justice Elena Kagan, who has come out in a series of speaking appearances and said that she thinks that some of the court's reasons decisions have given people reason to think that the court is deciding cases in an unprincipled way, she suggested maybe in a political way or with an eye to achieving a certain outcome.

  And this has produced a rebuttal both from Chief Justice John Roberts and also from Justice Samuel Alito, who have pushed back against that. But the chief justice in particular seemed kind of unhappy earlier in the month about this whole exchange and about Kagan's criticism, without directly going after her.

• Judy Woodruff:

  He's been speaking about it, as you say, without going after an individual justice, but making it clear that he's not comfortable with it.

  Marcia, all this happens as we're heading into a term with a long list of contentious, controversial cases. Just name just a few of the ones that you're watching.

• Marcia Coyle:

  And, Judy, I think if you defined last term by the abortion ruling, I think this term may well be defined by what the justices do with cases involving race.

  So I'm watching two cases involving Harvard College, another involving the University of North Carolina, in which the court is being asked to overrule a nearly 20-year-old precedent of the court that allows higher education institutions to consider race as one factor in the admissions policies.

  And then, also, there's very important voting rights case that's actually going to be argued tomorrow morning. And that comes out of Alabama and involves probably the only part of the Voting Rights Act that is left, because the Supreme Court in 2013 gutted another important part of the Voting Rights Act. This time, it's Section 2.

  So voting rights advocates are very concerned about what the court will do to that section in this case, which involved Alabama's 2021 congressional map in which a lower court found it violated the Voting Rights Act because it diluted the votes of Black Alabamans.

• Judy Woodruff:

  A lot of — Josh, a lot of attention that case. As you say, it's going to be argued tomorrow morning.

  And it has the potential, and these other cases do, to play into this perception out there that the court is more political than it's ever been.

• Josh Gerstein:

  Right. I mean, we're looking at a 6-3 conservative court here with three justices appointed by a single president, President Trump. And so it's not terribly surprising that they would have a different perspective on some of these issues.

  But they keep turning to these cases such as the abortion case that was decided last term. There's another voting rights-related case that's coming up this term involving state legislatures and how much power they should have, perhaps potentially unchecked power, over voting and voting rights issues.

  And these are all areas where really the conservatives are preparing to really show their muscle, I think, on some of these subjects.

• Marcia Coyle:

  Judy, I think it's important too to also note that, for the most part, the court has almost absolute discretion in choosing the cases that it will hear to decide. It only takes four votes to grant review. But you do need five for a majority.

  And we now have a conservative majority that has six in it. So the court, in a sense, has reached out for some of these cases where there is no conflict in the lower courts. The affirmative action case is a good example that it's been quiet for years.

• Judy Woodruff:

  Which makes it appear that the court is looking to make waves, if you will.

• Marcia Coyle:

  Yes, it does.

• Judy Woodruff:

  … with the decisions that are coming.

• Josh Gerstein:

  That's right.

  I mean, we do even see the justices now in opinions and other cases that they turn down basically suggest that litigants come forward and bring some of these controversial issues back to the court. And, indeed, that has happened on several occasions just in the last couple of years.

• Judy Woodruff:

  Marcia, do you see from any direction an effort by the court, other than remarks by the chief justice, to try to head off that impression that the court is moving in a very politicized or political direction?

• Marcia Coyle:

  I think the only way we can tell will be how they decide the cases this term, whether they will go big or whether they will attempt to find some narrow rulings, as the chief justice generally prefers, to move a little more incrementally than his five conservative colleagues.

  So I don't know that I can say now that we're going to see any real concern for that. We should listen for the opinions that come and probably the dissents that give us some sense of what is happening inside the court.

• Judy Woodruff:

  The wording of their opinions.

• Marcia Coyle:

  Exactly.

• Judy Woodruff:

  We can tell a lot from that.

• Marcia Coyle:

  Yes.

• Judy Woodruff:

  Marcia Coyle, Josh Gerstein, thank you both.

• Josh Gerstein:

  Thanks, Judy.

• Marcia Coyle:

  It's a pleasure, Judy.