Docket launch: a new term for America’s Supreme Court

Hello and welcome to The Intelligence from The Economist. I'm your host, Jason Palmer. Every weekday, we provide a fresh perspective on the events shaping your world. Diseases and pathogens are ravaging the world's trees. That's always been the case, but the spread is very much on the rise. We take a look at the situation in Britain and find the fundamental problem: trees just aren't supposed to move. And think of a movie or television show set in a hotel. It isn't hard. Hotels provide a ready supply of total strangers in close proximity, and filmmakers love all the drama or horror or comedy that can provide. First up, though, Today, America's Supreme Court begins its work again, the first full term with all three of former President Donald Trump's appointees.

I, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, do solemnly swear that I will support—

Inside the court, plenty of big topics await: guns, religious rights, possibly affirmative action. But outside the court, arguments are already heating up.

Our bodies, our choice!

On Saturday, more than 600 protesters Hundreds of demonstrations took place across America in support of abortion rights. In Washington, one reached the steps of the court itself. The protests come after the justices declined to stop a Texas law going into effect that will ban abortions after around 6 weeks.

When it happened, I thought the Supreme Court's going to have to knock it down again. And when they didn't, it just goes to show why elections matter. And so we have to get back out on the streets.

What precedes this very full docket are accusations that the court is being politicized more than usual, and the judges haven't even had the chance to rest up.

It seems to have been a less relaxing summer holiday than usual. The justices traditionally take a break from most court business and from one another. Not so this year.

Stephen Mazie is The Economist's Supreme Court correspondent.

In August and September, the justices dealt with some very high-profile disputes over President Biden's attempt to roll back Donald Trump's asylum policy, and they declined to stand in the way of a Texas law that bans abortion after 6 weeks, in effect erasing Roe v. Wade for 7 million Texans.

Do you think that being that active and that decisive out of term points to what the coming term holds?

Jason, the term ahead is momentous. It's the first time in memory that we've seen a 6-3 conservative supermajority that seems ready to press ahead on agenda items of the right that have been on pause. In the previous decade, the court routinely declined to take up appeals pushing for the elimination of abortion rights or widening access to guns. Now the court is looking at both abortion and gun rights, and signs point to imminent fundamental transformation, not slow, careful, incremental change.

And we spoke about that Texas bill when the court first let it go into effect. How might abortion rights be under further pressure now?

Yes, all the conservatives except for Chief Justice Roberts voted to let the Texas bill take effect despite its immediate impact on Texans' rights. But Roe v. Wade is now facing a formal, direct threat where it could be not only undermined, but erased. The case is coming up on December 1st. It's called Dobbs v. Jackson Women's Health Organization, and it concerns a 15-week ban enacted by Mississippi in 2018. Dobbs gives the justices a chance to reconsider viability, which is the line at about 24 weeks of pregnancy that has distinguished for decades between protected abortions and those terminations that can be blocked in order to protect fetal life. I think overruling Roe is a distinct possibility, but if next spring the ruling comes down and the justices uphold the Mississippi ban without explicitly, in those words, overruling Roe v. Wade, it would be a big mistake to conclude that the court is somehow more more moderate than progressives feared, because there really is no way to uphold the Mississippi ban without tossing the central holding in Roe and in later cases. If viability is no longer the line, more and more red states will push for more and more restrictive abortion laws like the 6-week ban that we've seen in Texas.

And what about guns? What's that case?

Ah yes, guns. The other blockbuster case will be heard early next month, It's called New York State Rifle and Pistol Association versus Bruen, and it's a challenge to New York's rules governing concealed carry licenses. In New York, you can fairly easily get a permit to hunt or to carry a handgun to target practice. But New York requires a gun owner to show proper cause, a kind of special justification, before it grants them a general license to carry a gun outside for self-defense. The court has not taken on a major Second Amendment case in more than a decade, and it has said almost nothing about the right to bear arms in public. So this ruling could free up millions of gun owners in New York and I think 6 other populous blue states to more easily tote their weapons around in public.

So those are the biggest cases ahead for the court.

They're the biggest, but there are more. We've got 2 cases involving capital punishment this autumn. There's also Carson v. Makin, a major dispute out of Maine, a state that is sparsely populated and which does not have public high schools in over 100 small towns. Maine pays private school tuition for these students without a public school, but does not pay for parents to send their children to religious schools with sectarian curricula. The question in that case is whether that exclusion is a violation of the First Amendment. If that's not enough, the justices are also mulling whether to take cases involving union rules, the power of the EPA, and also a showdown at Harvard University over affirmative action.

So the court doesn't seem to be shying away from big political arguments this year, but the court itself has been facing big attacks over politicization recently. How are the justices responding to that?

The justices don't seem very happy with this criticism. Back in 2005, in his confirmation hearing, Chief Justice Roberts was famous for saying that a justice's job is like that of an umpire, just calling balls and strikes, having no skin in the game.

Umpires don't make the rules, they apply them.

The role of an umpire and a judge is critical.

They make sure everybody plays by the rules, but it is a limited role.

That type of reassurance has been echoed in the past few weeks by 4 justices who have been out stumping for the impartiality of the court. A few justices on the right have been sounding these themes: Clarence Thomas, Amy Coney Barrett, Samuel Alito. Amy Coney Barrett the other week said, Hey, we are not partisan hacks. We're just following our own judicial philosophies. Now, if this sounds like they're being defensive, they have cause to be. Last week, Gallup reported that just 40% of Americans approve of the Supreme Court. That is a dramatic drop over the past year and even over the past few months, and is the lowest percentage since 2000. I expect it could dip still further.

And do you think that those accusations of politicization will have any effect on the court?

No, not a great deal. The justices serve for life, or as long as they want to stay on. They're not politically accountable to the public. That said, intense public scrutiny may make at least some of the justices think twice about how their rulings will be received. There's another dose of scrutiny in the background, which has been the presidential commission on the Supreme Court, due to report to President Biden next month. The commission took testimony on the court's power and on proposals to add seats to the court or limit lifetime tenure and require more transparency. There's also the distinct possibility of the personnel of the court shifting at the end of this term. Stephen Breyer could retire and give President Biden a chance to appoint a new, younger liberal justice. But the most salient data point we have to come back to is the 6-3 conservative supermajority. The wave of speeches has the feel of an attempt to anticipate a backlash, trying to preempt it with a prophylactic story about how neutral and objective and nonpartisan all the justices are. But for now, it looks like the court will shape America more than America will shape the court.

Stephen, thank you very much for your time.

Thank you, Jason. Always great being on with you.

For more analysis like this from our international network of correspondents, take out a subscription to The Economist. Get a great introductory deal at economist.com/intelligenceoffer. The link is in the show notes.

The English elm is stronger than most elms against the disease, but the current epidemic is the most severe in living memory.

The leaves of infected trees—

Back in the 1970s, British arborists scrambled to try to save beloved trees from Dutch elm disease. Ultimately, they failed. But that devastation wasn't unique. Increasingly, it's looking like it was just the first act in a long battle to save British trees.

So I'm standing in a wood just to the southwest tip of Windermere, and it's beautiful. There's sort of moss covering the stones.

Catherine Nixie is a Britain correspondent with The Economist, and she's been visiting the country's Lake District.

And it's very quiet. There's a slight breeze. I don't know if you can hear it in the trees and the odd leaf coming down just as autumn's beginning. And I'm here because of larch trees.

Larch trees are just one of the many species now facing the grave danger that Dutch elm disease made so clear.

We're in the era of the tree-demic, and a tree-demic is exactly as it sounds. It's like a pandemic but for trees. So it's hitting ash and elm and oak and beech. And it's dangerous because they're not just turning up in different countries, they're sometimes becoming more lethal in different countries. And they're killing trees in vast numbers. Millions, billions of trees are dying.

And why is it that we're seeing this now?

It's basically container shipping. So trees have always moved around the planet. You know, the Romans would warm their toes with trees that they'd cut down in the forests of Dacia and North Africa, and they would ship them to Rome and burn them into warm Roman baths. But they didn't take soil with them. We are moving live trees. So the boom in container shipping and the cheapness of international shipping means that you can take an entire tree from one country and plant it in another, and in doing so, take all its diseases with it.

So why is that such a problem? How do the diseases move with the trees?

Yeah, I mean, look, Biologically, trees shouldn't move. It's just not something outside Tolkien that a tree should be doing. They should be staying put. Their seeds can move and they can go quite a long way if they're eaten by a bird, but the tree itself should absolutely stay put. And they are not. They are moving thousands of miles in days and they are coming into contact with all sorts of new diseases. And often you're not just importing them from one country. So you can buy a tree that looks like a British tree in the shop. It will be called British, but in fact, its seeds were sent to the Netherlands to start their life. And then the Netherlands sent them to Italy where it's nice and hot and sunny. And then they went back to the Netherlands or maybe to Germany, and then they came back to Britain. And then this inverted commas British plant is sold and British people buy them and put them in their gardens. But they have gone on an entire arboreal grand tour of Europe. And like other things that have gone on grand tours of Europe, they could end up completely riddled with diseases.

And you mentioned that it's partly because these trees are being moved alive that the pathogens can travel. I mean, why is that?

It's not just the tree itself is moving, it's moving in the soil. And soil is basically just wonderful home for all kinds of pathogens, insect and fungal and bacterial. And in a paper published earlier this year, scientists looked at the soil. They took 99 woody plants that they'd bought in nurseries and they analysed them for spores capable of causing diseases. And they found that 89% of them contained those spores. Now, not all of them are going to cause diseases on those plants, but they could cause diseases on other plants in your garden. And what was really frightening about this paper was that 86% of those trees were asymptomatic. So you would never have known, you'd have had no idea, and then you'd have just planted them in your garden.

And so what kind of diseases are we talking about here?

Lots and lots and lots of different diseases. Since the '60s, over 20 new diseases and pests have appeared in Britain. More may well be here, but we just haven't noticed them. It takes years before a tree disease can be spotted by people. And potentially 40 more are feared. There's some particularly nasty ones in the southern Mediterranean that might yet be turning up in Britain. They're currently ravaging olive trees in the south of the Mediterranean. And if they arrive, they could really, really damage oak.

And what exactly are we seeing in Britain?

The one that we're suffering from now is ash dieback, which people will have noticed. You see ash trees with these silvery skeletal fingers that lift up to the sky. And ash dieback is spreading and has spread basically all over Britain now in the past 10 years or so. There are probably 150 million trees that could be infected by it and 1.8 billion saplings. If it infects them, it kills around 90% of trees. Estimates vary, but it's really serious. And the cost of that alone, ash dieback alone, has been estimated will cost the British economy £15 billion. So that's just one disease in Britain.

And you saw this for yourself firsthand?

I went up to The Lake District, so famous bucolic place, home of the Lake Poets and archetypal English countryside. And I went to this wood called Great Knott Wood and I spoke to Heather Swift, who is the manager, the site manager for the Woodland Trust up there. The Woodland Trust are a tree charity. And she is very worried about not just dieback, which has already affected Cumbria badly, but also a new disease which is now affecting large trees. It's the speed at which it comes on you and the fact that it's all happening at once. You can deal with trees dying one at a time, and you'd be planning to fell timber trees, you know, gradually, but you wouldn't be planning to do the sort of scale we're doing. And we've noticed it's not just the number of diseases that are coming in, but the way they're spreading through the country.

The way you describe it makes it seem very much like a genie that is long since out of the bottle. I mean, is there any way to protect the trees?

You can help trees by letting them do what trees normally do in nature, which is not move. So you should grow them in one place and then keep them in that place. And Britain has a huge advantage because it's an island. So some diseases are going to come across on the wind, but not all of them are capable of that. So we should be growing not just plants, we should be growing entire nurseries. We should be building up the British nursery industry is the answer that everybody gives to this. It's a very simple sort of solution, a slightly expensive one, but really nothing compared to the cost of ash dieback because The annual trade in trees in Britain was £300 million in 2017, and that is just— that's 2% of the cost of what Ashdieback alone is going to cost Britain.

Catherine, thank you very much for joining us.

Thank you for having me. The goal is to disappear behind our masks as pleasant, interchangeable helpers. It's tropical kabuki.

HBO's The White Lotus has been one of the small screen hits of the last year or so. Nine Perfect Strangers on Amazon Prime has enjoyed similar acclaim.

Welcome to Tranquillum House. The people who come here, they come to heal. I don't want to suffer. You're already suffering.

Both share a setting of sorts. —a place where people are randomly drawn together.

Hotels are an incredibly attractive stage to set a drama on. You get to watch characters perform in all sorts of interesting and awkward situations. Rolf Jones writes about culture for The Economist. Hotels, they give you both anonymity and an escape, while at the same time also providing an incredible sense of claustrophobia and also intense conflict.

And how is it that screenwriters make use of all those opportunities?

If there's a drama set in a hotel, then essentially the world is the hotel, meaning there's no escape. A wonderful example of how it works very well for horror is The Shining, which was made in 1980 with Warner Brothers. Here's Johnny! And this is set in a hotel during the off-season. So in other words, the main characters are the only people in the hotel.

Redrum! Redrum! Redrum!

When you remove the people, obviously the hotel takes on an incredibly odd tone. But where hotels come into their own, I think, is in creating incredibly fertile ground for comedy. And so what's a good example of the hotel set comedy? The archetypal hotel comedy is Fawlty Towers, which was made in 1975 and went out on the BBC. So this is John Cleese's fantastic, almost unimprovable sitcom in which everything takes place inside the hotel.

You mean to tell me you didn't realize this man was dead?

People don't talk that much in the morning. Look, I'm just delivering a tray, right?

If the guest isn't singing, 'Oh, what a beautiful morning!' I don't immediately think, 'Oh, there's another one snuffed it in the night.' If a guest dies, for example, it's very difficult to get them out without the other hotel guests noticing. It's absolutely brilliant for comedy, and maybe one of the reasons that it was so difficult to make a hotel sitcom, especially in England, for years after Fawlty Towers came out. More recently, you've got Schitt's Creek, which was 2015 on CBC.

This is a motel, so we cater more to off-road truckers and drunk teenagers.

And there, the comedy comes from not only the confines of the hotel, but also the contrast between the rich residents and the very unpleasant circumstances of the motel. There are just so many contrasts and so many conflicts that you can play with. And it kind of just gives you a perfectly organic environment in which characters can bump up against each other, which is great for the viewer and often, you know, not so great for the hotel guest.

And I suppose it's good for writers then, though, if it contains all of these possibilities, all of these coincidences.

In the case of a hotel, there will always be new guests. And that means that if you're writing a long-standing show, then it just means you have an incredible potential for dozens, hundreds of episodes, essentially, because you can always press the refresh button and bring in an eccentric hotel guest who can create problems and episodes entirely on their own. And I spoke to Tony Bazgallop, who created the TV show Hotel Babylon, which was on the BBC in the mid-2000s. And he said that it's a very easy way to write television. It's a kind of gift It's so fluid that everyone just kind of drifts around to whatever you want. So, there was always that aspect that stories are very easy to tell because, particularly with television, the notion of doing story of the week type of television is that a new story walks through the door.

And people sometimes don't act very much like themselves when they're in hotels.

Exactly. I think that's why hotels are so interesting because, as well as being claustrophobic and pressure cookers, they're also very freeing, and people— become anonymous, become different people in hotels. You know, if you go into a hotel, you often feel that you can leave everything behind and you can assume a new identity. So normal rules don't apply. And that's exactly why I think, you know, so many writers have been drawn to it. And you wonder why TV shows are set anywhere else once you examine how fertile the trope really is.

Ralph, thanks very much for checking in.

Thank you very much for having me.

That's all for this episode of The Intelligence. If you like us, leave us a rating and a review, and see you back here tomorrow.