Chagrin, and Barrett: America’s Supreme Court

Hello and welcome to The Intelligence on Economist Radio. I'm your host, Jason Palmer. Every weekday, we provide a fresh perspective on the events shaping your world. As of yesterday, it seems clear that there's at least some water on the moon, potentially huge news for countries that want to explore or even to colonize it. We examine the opening salvos in a wider battle: who will own the water rights? And the flag of Australia's Aboriginal people is one of the country's official flags, but unlike the banners of many nations, it doesn't actually belong to the people. First up, though.

On this vote, the yeas are 52, the nays are 48. The nomination of Amy Coney Barrett of Indiana to be an associate justice of the Supreme Court of the United States is confirmed.

Amy Coney Barrett was confirmed as a Supreme Court justice in America yesterday, shifting the court's ideological balance ever further to the right. I, Amy Coney Barrett, do solemnly swear The appointment was a bitterly partisan affair, coming just 5 weeks after the death of Justice Ruth Bader Ginsburg, a liberal icon.

It is highly fitting that Justice Barrett fills the seat of a true pioneer for women.

Democrats were infuriated by the timing of the confirmation, just a week before America's elections.

The United States Senate has never, never considered a Supreme Court justice this close to a national presidential election day, especially one in which tens of millions of Americans have already voted.

But they had little recourse. Justice Barrett could help shape the court's stance on contentious issues such as abortion for decades.

For the first time in a century and a half, a justice was confirmed to the Supreme Court without a single vote from a member of the opposition party.

Stephen Mazie is The Economist's Supreme Court correspondent.

Amy Coney Barrett was then promptly sworn in by her new colleague, Justice Clarence Thomas, in a White House ceremony. She promised to fulfill her judicial duty and to resist other branches of government and her own political preferences, right before posing and waving awkwardly side by side with President Trump from the White House balcony. Today, Justice Barrett will be sworn in for a second time by the Chief Justice and then she will get straight to work.

And why is this appointment, this confirmation, so significant?

Jason, anytime a new justice arrives on the court, the result is, as Justice Byron White once said, a new court. But with Justice Barrett taking the late Justice Ruth Bader Ginsburg's seat, we have a new court with a vengeance. This is momentous. It's the first time since the 1930s the court will have a 6-3 conservative edge. It's the first time since the Ronald Reagan era that a president will seat 3 3 justices in a single term. And it's the first time since 1991, when Justice Thomas succeeded civil rights icon Thurgood Marshall, that a seat is flipping from one ideological extreme to the other. Justice Ginsburg was a hero of the progressive legal movement. She was a trailblazer for gender equality. Justice Barrett is really her jurisprudential inverse.

[Speaker:GHION_AI] And the question on everyone's mind right now is whether she could have an effect on the outcome of the election.

Well, President Trump apparently thinks she could. He has said a few times that the election is bound to wind up in the Supreme Court's hands, just as the George Bush-Al Gore contest did back in 2000. And he said the court needs the full complement of 9 justices on hand to adjudicate any lawsuits that might arise out of the election. Many cases have arrived at the court involving how states will handle the barrage of mail-in ballots that are coming from voters who prefer to stay away from the polls during the pandemic. Democrats are requesting or defending adjustments to the rules that make voting easier, things like eliminating the witness requirement on mail-in ballots, using drop boxes or drive-by voting, extending the deadline for when ballots need to be received, while Republicans are typically opposing all of those measures. And the court has usually sided with Republicans, apparently on the principle that states should be able to call the shots on how they run their own elections. But a week ago today, the court went the other direction in the all-important state of Pennsylvania. But Republicans in Pennsylvania did not give up. This past Friday, the same plaintiffs renewed their plea to the Supreme Court, apparently hoping that a soon-to-be Justice Barrett may tip the balance in their favor. I do not think this has much of a chance of succeeding. I can't imagine the Supreme Court would want to confuse voters days before the election. It's also possible, given everything given everything Trump has said about how badly he needs Justice Barrett in that seat, that she may recuse herself from this case and from similar cases the court is looking at out of North Carolina and Wisconsin to avoid the apparent conflict of interest.

Aside from those near-term decisions, what else does Justice Barrett have in store for her?

The day after the election, the court is going to hear a conflict between religious liberty and gay and lesbian rights. The case pits a Catholic foster agency that places children only with straight couples against a rule that bars discrimination on the basis of sexual orientation. 6 days later, the court is hearing a lawsuit that could prove fatal to the Affordable Care Act. There's also a new abortion battle brewing. It's out of Mississippi. It involves a law banning most abortions after 15 weeks, which is well short of the stage in pregnancy where Roe v. Wade and later cases set as the date where states could begin to bar abortion. If they opt to hear the case, the core of Roe v. Wade, the 1973 case legalizing abortion, could soon be on the docket.

I mean, this has been a bruising partisan fight, and Democrats have floated different ideas for how to redress this new 6-3 conservative majority, like adding 2 more justices. Is that a realistic proposal to your mind?

Well, it has been bruising only for one side. All the blows have been absorbed by Democrats. 15 of the last 19 justices have been appointed by Republican presidents. In 2016, Mitch McConnell famously refused to even give a hearing to Barack Obama's nominee, Merrick Garland, because he said the American people should have a say. Let's wait for the election. That was 9 months before the election. 4 years later, days before the election, McConnell and the GOP pushed through someone to fill Justice Ginsburg's seat. Understandably, Democrats are infuriated and feel the court has been stolen from them. Some take a lesson from this that the only way forward is to adopt the ruthlessness of the GOP and to expand the court and add more justices to rebalance it, should they be in a position to do that by winning the White House and the Senate next week. This would be perfectly constitutional. The court started with 6 in 1789 and has bobbed up and down a bit between 6 and 10 over the years, but the norm of adding justices whenever a party can could be destabilizing to the court and could provoke a judicial arms race that I think nobody wants.

And what about the longer term? What kind of an impact do you think Justice Barrett's ascension to the court could actually have on it? Do you think she might actually be less ideologically driven, less partisan, more moderate than the conversations so far have indicated?

Justices don't always act as people expect them to. 5 or 6 of those 15 Republican-appointed justices turned out not to have very conservative voting records, and a couple of them were actually quite liberal. But since about 1990, the justices that have made their way to the court have been dependably on the right. And in part, that's due to the efforts of a legal organization called the Federalist Society, whose primary mission has been to cultivate as law students and then to vet and propose right-leaning judicial appointees. We don't know how quickly Justice Barrett's deep conservatism will begin to reshape the court and the country, but it's bound to happen. Affirmative action will be threatened. The status of religious conservatives will grow while the wall separating church and state will shrink. Gay and lesbian rights will be narrowed. Abortion rights will fray. Whether President Trump wins or loses next week, his appointments to the federal bench and particularly the 3 very conservative jurists that he's managed to install on the Supreme Court, will be his longest-lasting and his most consequential legacy.

Thanks very much for your time, Stephen.

Jason, thank you for having me.

Today, we are announcing an important discovery by SOFIA.

Scientists revealed the best evidence yet for something that had long been suspected.

That the previously detected hydrogen on the sunlit surface of the Moon is located in water molecules.

That previously detected hydrogen seemed to be somehow linked to oxygen, but this new result shows it's the important stuff, good old H2O. Researchers also revealed surveys of the Moon's polar regions spotting billions of shadowy depressions that could act as cold traps that shelter ice indefinitely. Future studies will have to assess just how much ice there actually is, and importantly, how easy it would be to gather up.

Knowing how much water is on the Moon and how we might be able to use it in the future supports NASA's long-term human exploration goals into deep space.

Every resource already on the Moon means less that lunar missions must carry to it. And few resources are so precious as water. So there's a bigger fight already, as it were, on the boil: who will own the rights to those resources?

There's an agreement that bodies beyond the Earth—the Moon, Mars, etc.—can't be the subject of territorial claims by terrestrial governments. And that's very firmly said in law.

Oliver Morton is The Economist's Briefings and Essays editor.

But that leaves a set of interesting questions about the resources, if any, that might be found in these places. Who has a right to exploit them? In whose name can they exploit them? And are they allowed to make money doing so?

And so that's in somewhat sharper relief this week because water is a resource that might yet be exploited.

Water's really useful when you're on the moon because you can make oxygen out of it, which you can breathe, and by making oxygen you also make hydrogen, and then if If you recombine the oxygen and hydrogen, you have rocket fuel. And also, of course, it's nice to be able to have a wash now and then. So having water already on the moon is a very useful thing in principle for putting a base on the moon. So these issues mean that you need a new sort of legal framework for working on the moon. And America has sketched one of these out in consultation with a small select body of like-minded countries called the Artemis Accords, and their signature was announced a few weeks ago.

And what, what do the Artemis Accords lay out then?

The Artemis Accords are basically rules of the road for countries that might be cooperating with America in its Artemis missions, which are meant to return humans to the Moon in 2024. As such, they're mostly boilerplate, but it's interesting that even so, they're not signed on to by nations that aren't so much interested in going back to the Moon with the Americans, notably China, and Russia, while apparently offered the opportunity to sign on, chose not to.

So why is it that these nations have not decided to join America?

Well, what's distinct about the nations that have joined America is they're sort of like America close pals and members of what some people refer to rather ludicrously as the Anglosphere. The obvious standouts not to be there are France and Germany, who are major powers within European space industry, China, which NASA is not allowed to to talk to under American law, so it's not that surprising it's not there. And Russia, which is more surprising because Russia is part of NASA's International Space Station agreements. Russia appears to think that these Artemis Accords are a way of rigging the ground rules of lunar exploitation in America's favor. How so?

How does it look like rigging the rules?

So one of the things about the Artemis Accords is it opens up the way to a discussion for a regime for exploiting the Moon's resources for commercial gain, which would be something like letting a private company extract water from the lunar crust in order to sell it to the American government for its Moon base or something along those lines. It's certainly not a matter of exporting things from the Moon back to the Earth because there's bugger all on the Moon that anyone has any reason to export back to the Earth for anything other than scientific interest.

But that discussion about exploiting the Moon's resources, that goes against the grain of previous agreements about space?

The existing body of space law is fairly straightforward, and it says, let's not be having any wars, no one can actually have a sovereign claim up here, everyone's gotta play nice with each other when we're beyond the atmosphere. The contentious part in space law is an agreement that was reached in 1979, often called the Moon Treaty or the Moon Agreement, which specifically said that the exploitation of resources on the Moon or other solar systems system bodies, must be carried out in a way that benefits everyone, not just the people who are actually able to go there and do it. And in this, it's actually very similar to the Convention on the Law of the Sea, which looks at another area that is the province of all humankind, the deep ocean outside the economic zones of individual nations, and says that they must also be exploited in a way that fits in with a global perspective. And so there is an international seabed authority that seize the attempts to get minerals up from the deep Pacific, say.

And so do you reckon those provisions that have been made for the deep sea floor would be a good framework for how we handle resources in space?

I think with a certain amount of modification, yes. I think that the idea that nations and people who get to the moon first simply because of their technological and economic edge in terrestrial politics and history at the moment should not get to have it all their own way. They should be, to some extent, brought in by international law to meet all sorts of standards, and one of those should be that yes, this really should be in for the benefit of all humankind.

Oliver, thank you very much for your time.

Always a pleasure, Jason.

Finding water anywhere in the solar system is exciting to scientists. This week, author Michael Marshall talks to Babbage, our sister podcast on science and technology. He discusses what other conditions make for a good starting point in the hunt for life elsewhere. Life on Earth is completely dependent on liquid water, and so that's going to be really crucial for the formation and existence of life. But it may be that actually the conditions are a little bit narrower than that. So for example, we don't know how big or small a planet can be and still have the right conditions for life. So it may be that things like plate tectonics and volcanic activity are really important. Babbage is out tomorrow and every Wednesday. Find it wherever in the galaxy you're listening. For half a century, the black, red, and yellow Aboriginal flag has been a familiar sight in Australia, an emblem both of pride and of protest. What do we want? Justice! When do we want it? Now! According to Harold Thomas, its creator, the black band represents the country's first people, the red one the land and the ochre used in their ceremonies. The yellow circle at the center represents the life-giving sun. But lately, Aussies are seeing less and less of the flag.

The Aboriginal flag is ensnared in this kind of unusual dispute because It is one of the few in the world which is still protected by copyright, and that means it can't be freely used.

Eleanor Whitehead is our Australia and New Zealand correspondent.

The copyright is owned by the artist who created it, Harold Thomas. He designed it way back in the 1970s for an Indigenous land rights movement. The problems haven't started till a long time later, after 2018, when he sold the commercial rights to reproduce the image on clothing to a company called Wam Clothing. It's a private company owned by white Australians, so anybody else wanting to use the image now has to have its permission and probably also to pay for the privilege. Absolutely, yes. So this company has been very assertive in chasing down companies which are using the image on clothing and asking them for royalties. It's not only for-profit companies that it's going after, but not-for-profits as well. There's been a Senate inquiry into the use of the flag recently, and a number of charities came out saying that they'd been asked to pay. One of them was the Victorian Aboriginal Health Service. It said it used pictures of the flag on t-shirts which it handed out to patients who came in for checkups. There was another charity, Diabetes Victoria, which said it had to stop using images of the flag on its website and on its flyers because the company also owns the rights to using it on media products. And it said it was asked to pay, and wham, this company wouldn't grant it an exemption, despite the fact that it was a charity.

And it must irk people that this icon of Aboriginal culture then is being sold off piece by piece.

It does, very much so. So the flag is really a kind of symbol of pride and resistance for Aboriginals. So it's distressing to them that it's being kind of commercialized in this way, and that's gone down very badly. And that is what Laura Thompson, who is an Indigenous health expert, told me her social enterprise was using pictures of the flag on t-shirts that it was selling, and it was issued last year with a cease and desist notice to stop printing it on their products. Once we received that cease and desist, I think I was shocked by the fact that one company had a complete monopoly on an iconic symbol, and we decided to start a campaign to free the flag and found out that Aboriginal people are unique in the sense that They're one of the only races of people that have a national symbol, their flag, privately owned and controlled. It is an added frustration to some Indigenous Australians that the company which owns the rights to the flag now, one of its co-founders, a chap called Ben Wooster, has got a record, so they say, of exploiting Indigenous culture. He set up an art company which last year was fined nearly $2.5 million $1.5 million Australian dollars for selling fake Aboriginal art, which was marketed as genuine but actually was made in Indonesia.

So does all of this make Australians more reluctant to actually use the symbol rather than pay the money or fight the fight?

So the concern is for a lot of Indigenous Australians that it is kind of pushing it out of popular use. Linda Burney, who is Australia's first female Indigenous MP, said to me that the danger is that it could be forced out of use. The place that that is most obvious is on sporting pitches in Australia. The Australian Football League, or Aussie Rules as lots of people know it, normally prints the flag on pitches and on players' shirts for an annual Indigenous round which it runs, which celebrates its many Indigenous players. It stopped doing that this year. It was threatened with legal action by the this company, WAM, and has said it doesn't want to negotiate with it. Several other sporting codes have followed. The National Cricket Team, the Rugby Union Team, who are the Wallabies, and the National Rugby League as well are all saying that they're not using the flag any longer because they're not going to pay for it. So the concern is that it's kind of slowly being covered up.

Eleanor, thank you very much for joining us.

Thanks, Jason.

That's all for this episode of The Intelligence. If you like us, give us a rating on Apple Podcasts, and you can subscribe to The Economist at economist.com/intelligenceoffer. That link is in the show notes. See you back here tomorrow.