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Friday, June 30th. However, it is going to air on Monday, July 3rd. Where is future you right now? Philadelphia. I'm just going to be literally right here in front of my bookshelf staring at the computer. At home. Okay, so you're in D.C. Amelia, you're in Philadelphia. So we have the capital, the birthplace, and Suffolk County. I don't really know how I would frame. No, round it to New York.
And then we've had all of America's capitals, right? New York, Philadelphia, and D.C. Sorry, is this a history lesson? America has only ever had three capitals, and they are New York, Philadelphia, and D.C.? I think that's true. In my imagination, like, Harrisburg or, like, Annapolis was, like, a secret, you know, sleeper capital.
Yeah, Wikipedia does the thing where like, you know, for like three days, the seat of government was like Trenton, New Jersey and counts that. But the only ones that have been the Capitol for more than a year are the three that we mentioned. What a location to be at for America's birthday.
Hello and welcome to the FiveThirtyEight Politics Podcast. I'm Galen Druk, and I hope everyone is having a nice July 4th long weekend-ish. I know that it's Monday in between the weekend and the holiday, but we'll just call it a long weekend. Last week, the Supreme Court wrapped up its business for the term, closing out a docket that touched on the Voting Rights Act, affirmative action, student loans, business services to LGBTQ people, religious liberty, and the power of state legislatures.
It was another term with some high-profile cases coursing right through the heart of America's cultural debates. So after a year in which one Supreme Court decision in particular played a big role in politics, and of course I am talking about the Dobbs decision here,
How will this year's docket ricochet through politics, if at all? And what more have we learned about this still quite new 6-3 conservative majority? Plus, it's a holiday weekend of sorts, and it's America's birthday, so we're going to play a game that I'm sure everyone will both love and hate. It's called Name the Best State in America. We will be using data, of course, so you can keep your hot takes because the people have spoken and we have receipts.
All right. So is everyone ready here with me for some both rigorous analysis and rowdy gamesmanship is senior reporter Amelia Thompson-DeBeau. Hey, Amelia. Hey, Galen. Also here with us is senior elections analyst Nathaniel Rakich. Hey, Nathaniel. Hey, Galen. It's been a minute. It's been a minute. Are you ready for some rowdy gamesmanship? Always. So let's begin with this. Amelia, we have now just hours ago wrapped up this term of the Supreme Court and
And we're coming off of a year during which we talked about how this one Supreme Court decision in particular, as I mentioned, really sort of resonated politically and was a theme of the midterms and a lot of political coverage over the past year. Are there any cases that you can spot from this?
this term that maybe don't rise to the same level as overturning Roe v. Wade, but that you feel like could have real political consequences in the coming year? It's a hard question because we're back in the territory of cases that are really consequential for the country and for how people live their lives in a lot of different ways, but not really noticeably for most people. So people will see the headlines and
And they'll kind of move on for the most part. I would say the student loans case is the one that has the biggest potential political impact because... Interesting. What happened...
is President Biden had proposed a student loan forgiveness plan that would forgive up to $10,000 of debt, depending on if you qualified. And this was challenged by a number of different people, but the challenge that ended up being successful was from a handful of red states.
So the plan has been overturned. The Supreme Court's conservatives ruled that Biden exceeded his authority and basically usurped some of Congress's power when he tried to implement this student loan forgiveness program. And the reason that I think this has the biggest potential impact on public opinion is
is that we're in a really volatile moment for student loans. Not only are we in a situation where people were, you know, essentially told that their debt was going to be forgiven up to a certain point if they qualified. We're talking about a lot of money. People who have a lot of student debt, you know, or even a little bit of student debt, that really matters. It's a concrete thing about how you live your life.
And then add to that that student loan repayment has been paused for the past couple of years because of the pandemic, but it's slated to resume at the end of the summer. So it's not just that this promise was kind of held out to people and then taken away.
they're also going to have to start repaying their loans in a very short period of time. So this is an issue that's going to be on people's minds. And that, I think, makes it likelier that they will be thinking to themselves, wow, wouldn't it have been great if this student loan forgiveness program could have gone through, if that's something they support, of course, which is, you know, as with...
all things we talk about, there are significant partisan divides on it. But I think it has a more visceral impact for people because it's about their money.
And when Biden did initially enact this executive action canceling out a certain amount of student loan debt, we kind of said at the time that it seemed likely the Supreme Court would overturn it. But there was a lot of pressure on Biden to do so. So this is kind of played out the way that we expected, which is Biden really wants to shore up in particular, maybe support amongst young people, maybe a little support on the left and
enacts a popular policy amongst that part of his coalition. It gets overturned by the Supreme Court, maybe making people even more frustrated. So you can sort of really feel the political aspect of this, regardless of whether or not this was decided correctly, because I think a lot of people, even in the middle or on the left, would say, or even Biden himself and some of the people who work with him, have suggested that he doesn't have the authority to do this. Yeah.
It was, yeah. I mean, yeah, the legal basis of this is complicated and it was not. I mean, the decision was 6-3, but there were a lot of people, like commentators, who were kind of like, maybe this shouldn't have been a thing. But that's obviously not how it's going to play out politically. Right, right. There's obviously, we should always say, big differences between legal theory and
But Nathaniel, get in here. Do you sort of see the student loan debt case similarly, or is there another case you want to sort of bring up and spotlight as politically salient? No, I do. I think kind of the two most explosive cases this term were the student loan case and, of course, the
The affirmative action cases at UNC at Harvard in which the court found that kind of basically considering race in college admissions is a violation of the 14th Amendment. But if you look at polling of the issues, the student forgiveness of student loans is much more popular than affirmative action, or I should say it counts.
kind of including race in college admissions. So there is a national poll from Marquette Law School that found that 63% of Americans favor the forgiveness of up to $20,000 of federal student loan debt. But then there is a CBS News YouGov poll that found that 70% of Americans think that colleges should not be allowed to consider race in admissions. Now, I should note that polling on affirmative action is complicated. So the kind of
the way you ask the question matters a lot. So for example, the same poll actually found when people asked, what do you think of affirmative action programs? 53% said they should be continued and only 47% thought they should be abolished. So it seems like there's some kind of either framing or informational disconnect there.
But putting that aside, I think it's pretty clear that the student loans forgiveness was more popular. And on top of that, kind of as Amelia said, it's a much more salient issue. It's very personal to a lot of people. So there's another poll from USA Today and Ipsos that found that 83% of people who themselves have student loans supported the plan. That's maybe not surprising, but I think it shows you how basically that voting block is going to be almost universally pissed off by this decision. And obviously that could result in
in them being motivated to vote. Pretty similar kind of to what we saw with abortion and Dobbs. That said, 2023 isn't the election year. Next year is 2024. Um,
There's also, like, I think, questions like, will Americans blame the Supreme Court for this? And will that help Biden? Or will they blame Biden for this? Because he didn't kind of like, you know, he was perceived as not having succeeded in fulfilling his promise and kind of the economic impacts that this could have that might indirectly be bad for Biden, since obviously kind of people's perceptions of the economy are going to be tied into how they vote. So, yeah. You know, I think part of it is just that people are happier when they have more money. Right.
And so, you know, in terms of thinking about like, you know, Biden is already facing pretty significant skepticism from Democrats about whether the economy is as good as he says it is. And I think it would have been helpful for him to be able to say that he puts more money into people's pockets and
And I would not count on people blaming the Supreme Court for this a year and a half from now. I mean, it's hard to say, but what we have noticed with Supreme Court opinions, really that are not the magnitude of Dobbs, which was so unusual. I just can't stress how unusual it is for a Supreme Court ruling to have the impact and penetration in terms of
everyone in the country being aware of it and talking about it and having an opinion on it, that's so unusual. And what we usually see with the Supreme Court is people pay attention, maybe for a couple of weeks at the end of June, they read the headlines, and then everyone just kind of forgets about it. And that leaves lots of room for, you know, other narratives to creep in, including potentially that Biden promised he would do this and he failed. And is
Isn't that a problem? So that's the political ecosystem perspective of this Supreme Court term. That's not to say there are not other cases that people are either happy about or frustrated with, but just in terms of what might have a more immediate political impact, if really anything does. And, you know, to your point, Amelia,
It's fair to question whether or not anything will be salient a year and a half from now, given that in two months, we're probably going to be like, wait, what was even on the Supreme Court docket last term?
But so that's the political perspective. What about the legal perspective? Because that is more enduring, like whether the public cares, whether the public votes on it. We now have new legal precedent that we did not have before this week, which will shape, among other things, like how elections are even conducted for years to come. So if you had to spotlight a case or two in terms of having the most significant legal impact,
what would it be? Well, again, that's kind of a hard question because I think if you asked a lawyer this, they might...
pull out a case that, you know, is really not going to be interesting to people who are not, you know, steeped in... About, like, contract law. Exactly. I mean, it's like, you know, everything the Supreme Court does matters legally. But for our purposes, as people, you know, who are interested in the cases that are most important legally for U.S. politics, I think there are quite a few. I mean, the first one that I would mention again is the Voting Rights Act case, which
which was the big surprise out of this term. Essentially, there was an expectation. I mean, I certainly thought this was likelier than not that the Supreme Court would take this case as an opportunity to weaken Section 2 of the Voting Rights Act. And they did not. They essentially made...
maintain the status quo. So as a result of this decision, it's possible that maps could have to be redrawn in a number of states in ways that would likely be favorable to Democrats. And it also opens up just a whole new
set of cases involving the Voting Rights Act where the Voting Rights Act is still active. And that's really important because when I was talking to legal experts before this case was argued, a lot of them were thinking that maybe Section 2 wouldn't survive at all in any meaningful way.
So that's important. And then the other case is the one involving the independent state legislature theory. I mean, that's a case where what the Supreme Court didn't do is as important as what they did. They had the opportunity to embrace this far reaching fringe legal theory that could have dramatically disrupted the way elections happen in the U.S.
and they didn't take it. Yeah. So this was basically the idea. So the constitution says that the manner of holding federal elections shall be determined by the state legislatures. And historically, that's been taken kind of to mean like holistically, it's like all the different apparatuses of the state, including like the courts and independent redistricting commissions, if
The people in the legislature kind of delegate their power to that and things like that. But the plaintiffs in this case were arguing for a literal interpretation, which is that only the state legislature gets to decide and kind of courts can't come in. So this specific case was over whether the North Carolina Supreme Court was within its rights to overturn the congressional map of North Carolina that was drawn by the legislature and input their own.
And North Carolina's congressional map is going to get redrawn in a way that is a Republican gerrymander anyway, because Republicans took control of the North Carolina Supreme Court in the time that it has taken this case to make its way up to the Supreme Court. But basically, you know, the Supreme Court affirmed that, yes, state Supreme Courts can like, you know, overturn, like use state constitutions to ban partisan gerrymandering, for instance. But I think a really interesting part of this is,
decision was like, if we mosey on back to the halcyon days of the 2020 election, there were all of these challenges to election laws in state court that were, the people asked, the Republicans tended to ask the Supreme Court to step in and block them. And this had to do with things like extending absentee ballot deadlines and things like that. And the Supreme Court
generally has not interfered with state courts. But in this decision, and this again is something Amelia can talk about more, there was a kind of a long discussion in which the justices said like, we're going to hold on to the right to like, if a state court does block an election law and it really kind of goes out over its skis in doing so, and we think that it's an egregious kind of legislating from the bench type of situation, we do reserve the right to
overrule the state court in that regard. And they haven't kind of articulated like what's going too far in that regard, but it leaves the door open. You know, a lot of people were interested in this case because of, you know, the implications for the 2024 election and state legislature certifying results that go contrary to the popular vote. And a lot of that stuff I think was overblown, but, um,
But this issue, I think, is still a live one of the possibility that, you know, like due to an emergency like a pandemic or something like that, a state court extends a deadline or does something that's a little bit, you know, yeah, legislative. And the Supreme Court could still come in and basically dictate that state's election law or revert it to what the state legislature had explicitly decided.
And this could also apply to like election officials, like secretaries of state making decisions, you know, kind of administrative decisions. I mean, the main takeaway from that is that there's just going to be a lot more litigation coming out of this. And we don't exactly know what's going to happen, but the Supreme Court has reserved time.
some amount of power for itself and for federal courts in all of this, which itself was something of a clarification. I mean, it wasn't clear really, you know, like how whether there were limits at all on state courts. And this was something that was controversial back in the 2000 election when the Supreme Court
stepped in and overturned the Florida Supreme Court and essentially decided the election by doing that because the Florida Supreme Court had ordered a recount and their action stopped the recount. So that in itself is significant, but we just don't know what that's going to mean for the future. It might be that the majority that voted here has a very narrow idea of when federal courts can intervene. But we
we can be sure that there is going to be a hell of a lot of fighting about this in 2024. Yeah. And they probably disagree, right? Because you had, you know, like Roberts and the liberals in the same side on Morvey Harper, this case, but presumably... And Kavanaugh. There's probably... Right, and Kavanaugh. But presumably Roberts and Kavanaugh have...
have a different idea for what, when a state court is going too far. Well, maybe, I don't know. I just got the agreement scores. And guess how much they agreed with each other? 98% of the time. 95. All right. Overshot a little bit, but I mean, right. If they're going to have any sort of
power, it's going to be their combined power that's probably most salient on the court because there's no one swing justice. It has to be the swing duo. So I think plenty of the cases that we're talking about here do not have the penetration to get real meaningful public opinion polling. Like if we were to pull the independent state legislative theory, I don't even know that I would trust that poll because it is so complicated and you have to have a lot of
context in order to understand what it would actually do, not to like dive back into the debate about the accuracy of issue polling, but for the cases where there is enough public knowledge and it is sort of concise enough to poll, how in line were the opinions this cycle
with public opinion. There's a great project that's run by a group of political scientists. They do a poll every year, basically trying to get at this question of how the Supreme Court's decisions line up with Americans' views. And so they publish this poll where they try to really get at what's the crucial issue in each case. And so, you know, affirmative action is
is one where, at least according to the way they worded the question, Americans are on the Supreme Court side, that majority is it's slightly different for public colleges and universities and private colleges and universities, but a strong majority on both sides say that colleges and universities should not be able to use race as a factor in admissions. Again, that's another reason why I think even though affirmative action, that ruling is very legally significant and it's obviously going to have a huge impact
on the way college admissions operate going forward. Although again, it's not clear exactly what the extent of that will be. I just don't think it's gonna have the same outrage factor. Student loans, their question there was 50/50. And I'll let you guess how those partisan splits broke out. It's basically even on each side. 73% of Democrats say the Biden administration did not overstep its authority.
72% of Republicans say the Biden administration did overstep its authority. That's actually not as polarized as I would have guessed. Really? What would you have thought? I would have thought closer, you know, 80s, 90s. I don't know. Maybe it's the way that it's like these are pretty technically worded questions. Was Biden mentioned? Yeah, Biden was mentioned. So that's like your trigger word. Still I'm surprised. Yeah. Yeah. And then in case we haven't really talked about
that came down on Friday is another one that I think it's easier to get an opinion on. And this is a case about whether the First Amendment free speech policy
Protection, in this specific case, allowed a web designer who doesn't believe in same-sex marriage to violate Colorado's anti-discrimination law. And if she were hypothetically asked to make a website, this was a weird case because she had not actually been asked, but she was worried about the possibility that she would be asked. And so they asked the question,
Whether this discrimination law violates business owners' rights to free speech, 51% of Americans in this poll said yes, 49% said no. And then again, you basically, it's like Republicans and Democrats split on either side. And those are really the three cases I think you can poll on. There was a question about the Voting Rights Act, but I'm less confident that that's something that Americans have really strong opinions about.
And, you know, there's some really significant rulings, like a ruling about the Clean Water Act that they asked a poll question about, but like...
I, you know, you stop a person on the street and ask them that question. I think they're going to they're going to have a hard time figuring out exactly what's going on there because these are super and that's not to denigrate anyone's intelligence. These are super technical and hard to follow cases. So even though they're important, it's it's, you know, they don't rise to the level of what everyday people are thinking about every day.
Yeah, I mean, one thing that's worth talking about here that I think gets lost in the shuffle sometimes is how narrow or broad these rulings are. Because I think in anticipation for these rulings to come down, a lot of the main outlets that...
Americans would look to to get information about them are primed to say Supreme Court rules this way or Supreme Court rules that way. People process the information like, okay, you can say no to a gay couple that's looking for a website now, period, end of story. That's the information that I wanted to know. Now I've got that information. Affirmative action, no longer allowed. Okay, that's the information that I was looking for. Now I've got that information. But if you read these opinions, which all of us have to varying degrees,
it gets a lot more complicated than that in terms of how broadly affirmative action is now unconstitutional or how broadly a business is free to refuse service to somebody based on closely held beliefs and the First Amendment rights they have to express them. So on these three cases that seem to touch the sort of social cultural debates more directly, how broad were these opinions? Well...
I think affirmative action, there was a kind of interesting debate about whether that went as far as people would have expected for someone like John Roberts, who wrote the opinion, because it...
It did say that the way that colleges and universities at UNC and Harvard specifically are using race is not allowed. You're not allowed to use like race as a sort of organizing factor in admissions, but that you can use the people, applicants can talk about their race in a way that illuminates how it's affected their lives. And that is not acceptable.
a violation of the 14th Amendment, which, of course, led to I saw a bunch of people tweeting that like every college in the U.S. is going to have a supplementary essay next year with like the exact wording from the Supreme Court ruling. That's like, how has race affected your life? And then the colleges and universities can take that into account. Yeah.
I mean, and also there's the fact that, like, colleges and universities have other ways to try to promote racial diversity in their incoming classes. There's been discussion about whether they start targeting zip codes next. I mean, I think we, with the evidence that we have out of California, where affirmative action was banned for public universities,
several decades ago, is that they have been able to increase their racial diversity, but it's taken a long time and it's been very expensive. So I think it is fairly clear that what colleges and universities were doing up till now, they kind of felt like worked for them, and so they're going to have to shift gears. But I think certainly it was not a maximalist opinion. It did not say that race could not be considered
at all in any circumstances. So in some ways, and this is such a challenge with the Supreme Court, because...
I think it's fair, based on their track record, to come in and expect them to do things that would feel very out of step with previous courts, that would feel very conservative, that objectively are very conservative compared to previous courts. But one thing that I have been stressing in my commentary about the court this term is that
They are not just writing right-wing plaintiffs a blank check to do whatever they want. And, you know, we saw that in a couple of the cases that came forward. And so some of what is anchoring people in thinking about what their expectations should be for the case is
is how extreme the question is, which is, of course, like the kind of outer bounds of like, how far could this go? And people are really expecting the court to go far because they have gone really far. You know, I mean, they overturned Roe versus Wade last year. Like, this is not a nutty thing. But they're not going to do that in every instance. And so I think it's genuinely hard to do that kind of expectation setting and to not be surprised because, you
conservatives are coming to the Supreme Court with the things they really want to get accomplished that they would not have asked previous courts because they didn't think they would go through. And so some of them are not going to go through in the way that they want. And figuring out, like, relatively speaking, does it make it narrower than you think? Does it make it broader than you think? Like, it's genuinely tricky. And I think there can be genuine differences of opinion. Right. And part of this...
aspect is that cases that you wouldn't have previously expected to make it to the Supreme Court now make it. And I think you were alluding to that in the website three or three case, which is that the person who brought the complaint had never been asked to make a website for a same-sex couple, but was saying they were afraid of starting their business because of Cal...
because of Colorado's non-discrimination law, they may very well be asked to do so and they would not feel comfortable with that. And they brought the case based on the sort of prospect of something happening, which I've heard suggested in a previous court would not have even been reviewed because the actual violation of free speech that she claims could happen hasn't happened yet.
Right. Because there's a standard that you, to be able to bring a lawsuit, you have to have been concretely injured in some way. You have to have like a real stake in it. And so that also could have been a really easy exit ramp for the justices on that case. You know, they've done this in the past where there's been a big case
And then they've kind of, they've taken it and then they've ended up ruling, you know, sort of like, oh, actually for procedural reasons, like this, this person couldn't bring the lawsuit or, you know, we don't have jurisdiction or something like that. So they don't end up reaching a decision about the actual facts of the case. And that's another thing the court could have done. And they also did not do that. They reached the merits on this.
Yes. So we should just take a moment here to acknowledge the complication in trying to assess how conservative, liberal, or moderate a court is because there are lots of different ways to assess. The cases that get brought up, the cases that make it to the merits, how they actually rule directionally, how broad or narrow the case ends up being. It gets complicated. But I think we can fairly say that this is – actually, I don't want to assert anything
How conservative is this court compared to historical standards? I haven't seen the Martin Quinn scores yet. We're taping on Friday, so that'll be publishing next week if folks are interested.
But what I'm seeing in the preliminary agreement scores that I'm getting, it looks pretty similar to what we've seen in previous terms, where Roberts and Kavanaugh are the justices who are most often in the majority, and then...
It sort of drops off and someone like Clarence Thomas actually isn't in the majority as much because he tends to kind of be a little bit more...
off on his own wavelength on cases where there might be more overlap between liberal and conservative justices, although I don't yet have the data for close cases, which is what I'm really interested in. But anyway, what I'm seeing, what I'm saying is that what I'm seeing is not all that different from previous terms. I mean, and we saw some like kind of, you know, some of the same breaks from expectation that we've seen in the past, like Neil Gorsuch,
went his own way on several high profile cases, including some cases on Indian law, which is just a really interesting thing about Neil Gorsuch. He was a circuit court judge in Colorado for a long time, and they get a lot of Indian law cases in that circuit just because that's where Indian reservations happen to be. And so he's much more experienced with these types of cases than a judge from another part of the country. And so the speculation is that because he's more familiar with
He has more of this sympathy with plaintiffs who were just with with the side of the case that generally would get the liberal votes. So, you know, I don't see I don't see evidence at this point that we there is a huge break from the past, but the
big, big, big caveat to that is that we do not have a good way of measuring how the docket is changing from year to year. And that is the thing that is so important for understanding really is the court moving to the left or the right relative of where it was last year. Because in every year, we can see how the justices voted relative to each other.
And that doesn't shift all that much, or that has not shifted all that much in the past couple of years. And on some things, even not major changes from the Roberts, you know, the sort of earlier Roberts era, I think there are still some ways in which this court is kind of operating the same way that it did even when Kennedy was on the court. And that doesn't mean the court's not conservative. It still was very conservative, but it wasn't...
as aggressive, particularly on kind of social, politically charged culture war issues, in large part because those were the places where Kennedy tended to swing. But that's one of the places where you see a change. So I'm sorry, I'm giving you a deeply unsatisfying answer. But I don't see evidence that the court is getting less conservative.
again, with the giant caveat that we don't have a way to measure, were they getting more extreme cases this year? Were they getting more extreme, like more extreme cases last year? Like how do you weigh something like a Dobbs, which is obviously like a generation defining Supreme Court case against another normal, much more normal Supreme Court term? Those are all questions that are very hard to answer quantitatively.
Okay, final question here before we move on to our game, which is, are there any sleeper cases that anyone wants to shout out? As you mentioned from the beginning, Amelia, there are cases that legal nerds will find far more important than the general public finds that may come back to shape our lives in ways that we don't even know right now. But...
Are there any cases like that that we can shout out this term? There were a couple that stood out to me. I think there were a lot of really interesting cases this term. And one of them had to do with the EPA's authority under the Clean Water Act, which is a sentence that I think is going to make most people's eyes glaze over real fast, but is actually incredibly important for the federal government's power to protect wetlands and
and to curb pollution. So the decision that was made in this case by a five justice majority with Samuel Lolito writing for the majority was a very significant blow to the EPA's authority and
It was a very significant blow more generally to administrative agencies' power. And this is a theme that we have seen a lot in the Roberts Court era, particularly the more recent era, the kind of post-Kavanaugh era that I've talked about, where conservatives were
more broadly, you know, not just on the Supreme Court, think basically that agencies which are tasked with creating regulations and basically doing the things that put a law that Congress passes into practice have too much power and are taking on too much responsibility in the process of, you know, saying this is what the Clean Water Act means.
And so they have been pulling back some of that authority. And so this happening again in this case is another significant sign of the trajectory that the court is on with regard to administrative agencies more broadly. And then, you know, just in terms of wetland pollution, it seems likely that it will significantly hamstring the EPA. Okay.
So that's one. And then the other one is one that's in the realm of criminal procedure. And this is one where Justice Clarence Thomas wrote the opinion for a 6-3 majority. And it was basically having to do with these sort of rare situations where, for some reason or another, someone is convicted, sentenced,
and then it turns out they have a claim that they're innocent. You know, let's say the Supreme Court comes back later and says, "Oh, actually, the way that that law was being applied is wrong," and they change it, but people have already been convicted and sentenced under it. Maybe there's a wrongful conviction another way. The court made a mistake. And so the question is, can you use federal habeas to correct that?
And Thomas's ruling makes it not really possible to do that. And so, you know, in practical terms, that's going to make it much harder for people who are in these situations where they may have been wrongfully convicted or what, you know, they were convicted under what seemed like the law at the time. But then the Supreme Court has come back and said, no, actually, that's the wrong interpretation, which happens all the time with, I mean, not all the time, but happens every
frequently with these big criminal laws where there are tons of legal questions afterward. And these laws just keep coming back to the Supreme Court over and over again. And like the sort of specifics of like, how does this get applied? And the Supreme Court clarifies. And so this is a, like, this is an active thing and it's a very restrictive reading and, um,
There was a dissent from Justice Katonji Brown Jackson that sort of had her objections to this. And one thing she said was that the opinion, quote, unjustifiably closes off all avenues for certain defendants to secure meaningful consideration of their innocence claims. So...
Not something that got a lot of headlines, but it's also another thing that we're seeing on this court more generally. It's a pretty anti-defendant stance, rulings that are not helpful for criminal defendants in the federal system.
And again, that's sort of part of a longer trajectory. There was a short period in the 60s when there were all these rulings expanding criminal rights or criminal defendants' rights, and we've gone in the other direction since then. And this is just another way that this court is like really going even more in the direction of ruling against defendants. All right. Well, that is a wrap for this Supreme Court term. And
I'm going to make a little bit of a pivot here and play a game. You're a podcast listener, and this is a podcast ad. Reach great listeners like yourself with podcast advertising from Lipson Ads. Choose from hundreds of top podcasts offering host endorsements or run a reproduced ad like this one across thousands of shows to reach your target audience with Lipson Ads. Go to LipsonAds.com now. That's L-I-B-S-Y-N-Ads.com.
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Okay, so to help celebrate the nation's birthday, we are going to play a game that is pretty in line with one of FiveThirtyEight's favorite pastimes, which is to debate which is the best state in the union. Of course, we all have our own answers in our hearts, but there is only one answer when it comes to the data. And so YouGov polled Americans. They essentially used a win rate percentage. So they asked Americans between these two states, which do you prefer?
And the state that won the most, we're claiming, is the most popular state in the country. And the state that won the least, state or territory, that won the least was...
we're saying is the least popular state in America. And sometimes when YouGov does these kinds of things, the difference will be not that great. It'll be like 98% of Americans like Kit Kats, but 96% of Americans like Reese's Pieces, like Kit Kats are the favorite. In this case, the win rates are quite different. It ranges from a 70% win rate to a 35% win rate for the least popular state.
Wait, so it's just pitting two states against each other and saying like, do you like Colorado or Texas better? Or is it saying like, do you like green chili in Colorado better than green chili in New Mexico? No, it's the states themselves. Okay, so here's the way this is going to work. I am going to award points.
based on how popular the state is that you name. So we're going to have rounds. The first round, you're going to give me a state that you think is the most popular state in the country. Whoever's is closest to number one gets a point and we'll continue on and you'll alternate back and forth because I think there's maybe, I don't know if there's an advantage to going first in this, but if there is, we're going to alternate back and forth. So any questions? Do you understand how this game works?
I think so. How recent is this poll? Is this the poll that you did like two years ago? Yes. Oh, you think this really changes? Okay. Oh, wait, how familiar is Nathaniel with this poll? Yeah, now I'm worried that Nathaniel, I'm not actually worried that, I'm not actually worried that the data is out of date. Obviously we wrote it up when it came out. Okay. I'm worried that Nathaniel has a significant advantage.
I think I remember what the most popular one was. Well, that will only give you one point. This is both a test of Nathaniel's guessing and his memory. You'd have to remember like the top 10 in order to get 10 points. Because if you guess the most popular state the first time, that's only going to get you one point. Amelia, now the pressure's on. Okay, well, I'm definitely guessing the most obvious one, California. That's wrong. That is wrong. It's wrong? People don't like California? Maybe I'm misremembering.
Okay, Nathaniel, this is your opportunity. Okay, well, I have to be strategic here. Do I want to shoot my shot and use the one that I think is the most popular, or do I want to do one that I think is moderately popular and more popular than California? I'm going to do the latter and say Colorado. Okay, Nathaniel wins this one. Colorado is the second most popular state in the union. California is the 12th most popular state in the union. What?!
This is shocking. It's also shocking because presumably a lot of Californians are taking this, like more Californians than any other state. I assume that just like more populous states must have an advantage. But Republicans hate California. Yeah, but they like living there. Do they? Like everyone who lives in California. They're all moving out of it apparently.
Yeah, but to justify staying there, they've got to really like, if you talk to a Californian, they're like, no, it's good here. Like, and that's the mindset you've got to have. They have Stockholm Syndrome, basically. That is a good point. Like, states that don't have political meanings are going to be more popular because you're not going to have half the country basically shitting on it.
And California probably has too much political meaning for both sides. It's too blue. So I have to guess states that people don't think about politically and are also not obviously crappy. You want to just guess magnanimous states with good natural resources. That is the winner. Next round. Nathaniel, you're starting this time. I believe the number one state in this poll was Hawaii.
I was going to guess Hawaii. Damn it, that's what I should have guessed. This is terrible. This is like a real hostage-taking situation. Well, it's like now Hawaii probably is the top state because who has something bad to say about Hawaii? What's an innocuous state with natural resources? Alaska.
Okay, so Nathaniel does get it. Hawaii is number one, 69% win rate. Alaska is up there, 57% win rate. It's number 13. And actually, the two that you picked are very close together. California is 12. Alaska is 13. Now I'm going to assume at this point, it can actually begin to get fun. We've now had the first and second most popular states guessed, which are Hawaii and Colorado.
What are you thinking for the third most popular or at least popular? Well, I was talking about green chili before, so I'm going to say New Mexico. Vermont. Oh, but that's like, it's if, if your, if your politics theory holds up, like that's not, that's not a good Vermont's like. I don't know. Bernie, Bernie. I feel like, you know, cause of the accent, he's thought of more of a Brooklynite. Okay. So Vermont is number 14.
Right behind Alaska. Okay, that's worse than I thought. They're picking them right in a row. Oh, we're really... Sadly, New Mexico... ...combing in on that... ...is number... ...like, upper middle. New Mexico is number 28 with a 48% win rate. That's... And maybe it just doesn't loom large enough in people's imagination. That's unfair.
New Mexico is beautiful. It does seem unfair. It's like a pretty apolitical state, and it's beautiful. Yeah, I'm going to have to disagree with this one. So the point will go to Amelia instead. Can you just give me the point because I'm objectively right? Okay, thank you. What? Thank you for ensuring this will not be a total blowout game. Great, okay. Okay, Nathaniel, you're up next. What state are you picking? You know, I'm going to go with my gut, even though I don't think...
It doesn't make a lot of intuitive sense, but I'm going to go with my gut. Utah. Oh, no, I don't. I don't think that's crazy. Interesting. Okay. Amelia. I don't even know now. Like, I just feel like if Vermont beats New Mexico so handily, like my state preferences are so misaligned with Americans that I'm just not, I'm just not in a good position. It's the joy of public opinion. I will say, um,
We get to learn the ways in which... Yeah, I don't like the way this poll was... I have problems with this poll. Because it doesn't... They didn't call me. When in doubt, attack the poll. When in doubt, attack the poll. I was not polled. Oregon.
you win this one. So Oregon is number 16 with a 55% win rate. Utah is number 27 with a 48% win rate. Bad guess. Bad guess, Nathaniel. Have I guessed a single state that's in the top 10? No. And
And in fact, the only states that have been guessed in the top 10 are the two that Nathaniel already knew. Now that I'm looking at the top 10 states, I'm not sure, like, I think kind of magnanimous state with good natural resources applies to some. It's not the overarching rule. So in addition to this being rigged, I was also lied to. Is that what you're saying? I mean, it is.
You were also onto something when you guessed California in that large population states, people do tend to pick their own state. And so large population states do have some advantage here. Amelia, it's now 2-2 because-
You guessed one right and you got one by default. I didn't. Let's not speak of cheating, Nathaniel. Well, I don't know. Stay in the Pacific Northwest, Washington. Washington. Okay. All right. Nathaniel? I mean, Galen's hint is making me think Texas, but...
I would be surprised if Texas was in the top 10. I just don't, I don't, or like Florida? I think that's too political. Yeah, same with Florida. Yeah. I was thinking about Florida, but I don't know. People have such strong opinions about Florida. Yeah. But it might be, it might be the kind of thing where like normies are like, what are you talking about? Disney World's there and it has nice beaches. So who cares about the politics?
So I'll say Florida. Washington comes in at 15 with a 56. I mean, the Americans don't see a real difference. Have I guessed like a bunch of states in a row? You guys have guessed 12 through 16. California, Alaska, Vermont, Washington, and Oregon. Florida, Nathaniel was right. To the general public, Florida is sunshine and beaches, and it comes in at number six with a 61% win rate. All right.
Florida. Okay, so now I'm going to guess Texas because I'm just really curious. That's not your favorite. Although I think Nathaniel gets to guess first. No, it's my turn first. Yeah. All right, Nathaniel, go ahead. Another personal favorite, Maine. Maine, interesting. Oh, Maine's a good one. Lobster. People like lobster. Are you sticking with Texas? Sure. All right, you won it, Amelia. Woo!
Yeah, that is true. Texas more popular than Maine, but by a smidge. So Texas is number 10. Maine is number 11. You have now, you have avoided the top 10 for the most part, but you have guessed 10 through 16. Okay, so it is 3-3. We now have a tie. This is going to be the final guess. And we are starting with you, Amelia. Okay, so I'm going to do...
what I feel is a very American thing and guess my home state of Virginia. I'm daring you to guess Massachusetts. I'm not going to do that. Well, actually, maybe I will. Actually, that's not a bad idea because then we can finally determine.
Which of our hometowns is best? Sure. What the hell? Massachusetts. My real guess was going to be Arizona. And the truth is, Nathaniel, that you would have lost either way because Virginia is the third most popular state in the country. Really? Yeah. Should have given your home state more credit earlier on, Amelia. Yeah.
Okay, so there might be something. I'm sorry. I just don't, I don't think that's warranted. So I think it's interesting here. You lived in New Orleans for 18 years.
Meanwhile, Massachusetts is 31. I think it's interesting here that two and three are both states that are like now like basically safely Democratic, but used to be in like very modern, like recent memory, like Republican. So maybe those are the states that like Virginia and Colorado for like Republicans. It's like, oh yeah, like, you know, I, for most of my life or whatever, that's been a red state and I've been cool with it culturally. But now Democrats are like, oh, those are blue fun states where like all my friends live now.
I don't know. I think you're reaching. Yeah. I don't know what else explains Virginia. However, the top. You know what? Okay. This is what I think maybe explains Virginia. Everyone learns about Virginia. And if you go through the American public education system, you learn about Virginia. And a lot of people go to Virginia, like from the surrounding region on field trips. Like I am from Charlottesville. That is a big tourist destination. So if you're thinking about like, Virginia is a very pleasant state. I'm sorry. I don't necessarily think it's number three.
Oh, I hate that. It's a very nice state. Great branding. And you probably have been there as a tourist. That's true. I mean, I guess Hawaii has good branding too. Maybe this is all about branding. So... Colorado. Honestly, the top... Maybe it's about their tourism campaigns. The top 10 states...
really are, I don't know what's going on here, really skew purple. I mean, the number one most popular state, Hawaii, it's like the most democratic state in the country. But I don't think people think about Hawaii politically. I think they just think about Hawaii as like cruises and backpacking and whatever. Anyway, so number two, Colorado. Number three, Virginia. Number four, Nevada. Number five, North Carolina. Number six, Florida. Number seven, Arizona. Number eight, New York.
number nine, Georgia. And you already guessed 10 through 16, but New York is ahead of California. New York is ahead of California as it should be, as it should be. Yeah. Okay. Yeah. Which of those, which of those places smells like trash in the summer? I guess that's just New York city. The rest of New York doesn't smell like trash. Uh, so yeah, a lot of purple states. I mean, it's a lot of big states. It's a lot of purple states. Um,
But it's not the biggest state. Okay, the least popular states, so least popular is District of Columbia, not a state at 35%. Then Alabama, Mississippi, get ready, New Jersey.
Arkansas, Iowa, Indiana, South Dakota, Missouri, Kentucky, Kansas, Idaho. Branding clearly matters. New Jersey, quite a large state, but also very unpopular. Yeah. I mean, that's hard. It's hard to overcome anti-New Jersey stereotypes. All right. Well, that's a wrap. Congratulations, Hawaii, on being the most popular state in the country. And happy Independence Day.
to everyone else. Thank you, Amelia and Nathaniel for playing along and wrapping up this Supreme Court term. We will be back next week with more. My name is Galen Druk. Tony Chow is in the virtual control room and also on video editing. You can get in touch by emailing us at podcasts at 538.com. You can also, of course, tweet us with any questions or comments. If you're a fan of the show, leave us a rating or review in the Apple podcast store or tell someone about us. Thanks for listening and we will see you soon.
