The United States Supreme Court appears in these excerpts chiefly as the institution that decides, or is expected to decide, the constitutional challenges discussed by Bob Zadek’s guests. The Court is invoked as a predicted arbiter in a healthcare dispute, as a venue where a public-interest law firm has prevailed repeatedly, as the tribunal that will resolve a challenge to a state referendum, and as the source of a holding on license-plate privacy.
The Court as anticipated arbiter of healthcare reform
In a discussion of the Independent Payment Advisory Board, Dr. Jeffrey Singer said the board was being challenged on constitutional grounds and predicted that if the government tried to act against a two-tiered medical system, the United States Supreme Court would not rule differently from the Canadian Supreme Court, which he said had held that a person cannot be prevented from using their own means to seek their own healthcare and cannot be penalized for providing it Will Americans Accept Second Class Medicine? (2013). Singer described the board as fifteen individuals appointed by the President who would review evidence and make recommendations to Medicare, with insurance companies following Medicare’s lead, and he said the board’s decisions were not subject to judicial review or congressional review, which he called constitutionally questionable. Bob Zadek framed the board as the scariest element of Obamacare and said Congress had provided that a future Congress could not eliminate it except during a three-month period in 2017, raising the question whether one Congress can limit what another Congress can do.
Pacific Legal Foundation’s record before the Court
Glenn Roper, speaking about the Pacific Legal Foundation, said the organization had reached twelve victories in the United States Supreme Court with the last Supreme Court term The Mini-Administrative State (2020). He described the foundation as a nationwide nonprofit public interest law firm whose mission is to protect individuals and entities against government overreach, promoting property rights, economic liberty, the separation of powers, and equal protection, providing pro bono representation and funded entirely by donors as a 501(c)(3). Bob Zadek said he had lost track at eight or nine successive victories and described the foundation as representing the little guy, adding that its cases establish precedents that help through a multiplier effect tens of thousands of other similarly situated small business people and small property owners.
A referendum, the Dormant Commerce Clause, and scrutiny
Richard Epstein discussed a California law upheld in the Ninth Circuit against a Dormant Commerce Clause challenge, and said the Supreme Court could end the litigation by striking down the referendum or sustain it, at which point the battle would shift to other fronts California’s Food Fight (2022). He argued that where there is no local party and therefore no discrimination issue on the table, one wants a higher rather than lower level of scrutiny by the United States Supreme Court, and said he believed that was the correct argument. Epstein also noted that amicus briefs are a wildcard, that the people arguing a case may have tunnel vision or may be amazingly perspicacious, and that the quality of the argument, the questions of the judges, and who happens to be a clerk introduce a random element in dealing with the Court.
License plates, aggregation, and the Fourth Amendment
Jonathan Hofer said that since the late 1960s case law on surveillance has focused on whether one has an expectation of privacy, citing the Katz decision of 1968, and that the Supreme Court has explicitly addressed license plates and said there is no expectation of privacy in one’s license plate The Mass Surveillance nobody is talking about (2022). He said it is not illegal to photograph a person’s license plate and that one could set up a camera on the roadway, but that it starts to broach into another Fourth Amendment legal territory once the data is aggregated. In a companion episode, Hofer gave the same account of the Katz decision and the license-plate holding, and said that a private party collecting and selling such data would be totally in the clear, with no state or federal laws preventing it A PSA on ALPRs (2022). Bob Zadek framed the distinction as one between private collection, which he said does not implicate the right to privacy, and government use of the aggregated data, which does.
Across episodes: the Court invoked rather than examined
The excerpts do not show a developing argument about the Court across episodes. The 2013 episode predicts a ruling on healthcare; the 2020 episode counts victories; the 2022 food episode argues for a scrutiny standard; and the two 2022 surveillance episodes repeat the same Katz and license-plate points. What changes is only the subject matter, not the treatment.
What the sources do not cover
The excerpts do not describe the Court’s composition, its docket, or the reasoning of any decision it has issued. No case name other than Katz is given, and no holding is stated beyond the license-plate privacy point and the Canadian ruling Singer attributes to the Canadian Supreme Court. The excerpts also do not say what became of the challenges to the Independent Payment Advisory Board or of the California referendum litigation.