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Supreme Court Term Preview


We're going to turn now to the Supreme Court, which begins its new term tomorrow. It's shaping up to be a big year for the court. The justices have already agreed to hear cases on access to abortion, religious school funding, LGBT protections in the workplace and the fate of so-called DREAMers. We wanted to learn more about what we might expect this term, so we've called David Kaplan. He is the former legal affairs editor for Newsweek and author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump."

David, nice to have you back on the program. Thanks for joining us.

DAVID KAPLAN: Great to be here as well.

MARTIN: So let's start with the most recent news. This past Friday, the Supreme Court agreed to hear an abortion case out of Louisiana. Can you just briefly explain the central issue in the case and why this is so significant?

KAPLAN: Louisiana had passed a statute that required doctors to have admitting privileges before they could perform abortions. And that would result in virtually no abortion facilities in the state. It's similar to what Texas attempted to do several years ago, and the Supreme Court struck down that law in 2016. But this time, the federal appeals court for Louisiana has upheld the law, and the court was sort of forced to take the case.

MARTIN: The question I think for people who both support abortion rights and expansive abortion rights and those who oppose them is whether the court will turn over the precedent set in Roe v. Wade. Is this case a case that could do that?

MARTIN: It could be. But there is nowhere for the new justices, the Trump justices, Brett Kavanaugh and Neil Gorsuch, to hide. They're going to have to say more than they said at their confirmation hearings, and that's why it's critical. And it is likely that both of them differ from the swing justice of the last 15 years, Anthony Kennedy.

MARTIN: So DACA is another controversial issue. In November, the court's also going to consider whether President Trump can end the DACA program that shields immigrants brought to the United States as children from deportation. It's my understanding that the court isn't going to rule on whether the law itself is legal. So what's the issue here?

KAPLAN: The issue is executive power. The issue is to what extent the Trump administration could reverse the executive action taken by Barack Obama and whether the Trump administration followed the correct procedures. So it will be read by the public as a key ruling on a Trump policy. And therefore, it's important.

MARTIN: And so finally, let's turn our focus to the coming week. The court is going to hear three cases related to workplace discrimination on Tuesday. And basically, the question for the court is whether the Civil Rights Act applies to gay and transgender people in the workplace. Is that the crux of the issue?

KAPLAN: Correct. And it's a question of statutory construction - whether Title VII, passed decades ago by Congress to apply to discrimination based on sex, should also be read to apply to sexual orientation. This is the first time several of these justices are going to weigh in on gay rights.

MARTIN: Is there something that people will be seeing on Tuesday that will be relevant to what's to come, or not?

KAPLAN: It's hard to read a whole lot into the questioning during any case. But if you hear a lot of skepticism about the applicability of Title VII to sexual orientation, then I wouldn't be betting a whole lot of money on the court expanding gay rights. And you may find justices on both sides of the ideological aisle saying so, pretty much with the view that if Congress wanted this to apply to sexual orientation, they would have said so. And they can continue - they can change the law in the future. It's not for us to turn the law into that.

MARTIN: That was David Kaplan, former legal affairs editor for Newsweek. He's the author of "The Most Dangerous Branch: Inside The Supreme Court In The Age Of Trump." We reached him in New York.

David Kaplan, thank you so much for talking to us.

KAPLAN: My pleasure. Transcript provided by NPR, Copyright NPR.