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Speaker 1: This is Bloomberg law with June grossoe, well your argument next?

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Speaker 1: In case nineteen sixty five, Donald Trump versus Cyrus Fans.

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Speaker 1: It was a momentous term for the Supreme Court, not

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Speaker 1: only in the major decisions the Court issued on LGBT rights,

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Speaker 1: presidential powers, abortion rights, religious liberties in Dhaka, but also

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Speaker 1: in the dominance of Chief Justice John Roberts as the

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Speaker 1: crucial vote in closely divided cases. And for the first time,

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Speaker 1: the Court heard arguments by telephone because of the pandemic,

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Speaker 1: and the public could listen in live to hear the

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Speaker 1: booming baritone of the usually silent Justice Justice Thomas Yes

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Speaker 1: ms Ross, the couple of questions, the questioning from her

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Speaker 1: hospital bed of the justice known as the notorious RBG

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Speaker 1: and the chief who ran the show, thank you, miss Blad,

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Speaker 1: Justice Ginsburn. Among the many surprises, Conservative Justice Neil Gorsuch

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Speaker 1: wrote the majority opinion in the water Shared decision protecting

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Speaker 1: the rights of gay and transgender workers. Let's wouldn't wouldn't

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Speaker 1: the employer maybe say it's because this was this person

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Speaker 1: was a man who liked other men, And isn't that

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Speaker 1: first part sex? Chief Justice Roberts sided with the liberals

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Speaker 1: for the first time in a case reinforcing abortion rights,

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Speaker 1: and the two Trump appointees voted with Roberts and the

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Speaker 1: liberal justices in the split decision on subpoenas for Trump's

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Speaker 1: financial records Council. For all that, you don't argue that

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Speaker 1: the grand jury cannot investigate the president, do you? Joining me?

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Speaker 1: As Stephen Vladdock, a professor of constitutional law at the

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Speaker 1: University of Texas Law School, it was an unusual term

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Speaker 1: in many ways, packed with controversial cases and landmark opinions

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Speaker 1: on socially divisive issues. How would you characterize the term

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Speaker 1: putting it in context with past terms. I mean, I

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Speaker 1: think it's so out of contact with past terms. You know,

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Speaker 1: this is a court that heards the fewest arguing cases,

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Speaker 1: at least partly because of the coronavirus pandemics since the

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Speaker 1: Civil War. It's a court that's handed down an unusually

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Speaker 1: large number of really significant decisions given how to overall

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Speaker 1: kisses it heard. It's a court that went further into

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Speaker 1: July then the court has since you know, nine seven before.

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Speaker 1: So I think what's really remarkable about this term is

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Speaker 1: how remarkable it was. Is top to bottom you had

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Speaker 1: one justice, the chief Justice, with a larger role than

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Speaker 1: we've seen any single justice having a term in a

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Speaker 1: long time. And you had a whole bunch of major,

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Speaker 1: major decisions that I think are going to be pretty significant,

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Speaker 1: not only in their own rights June, but in what

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Speaker 1: they opened the door to for further litigation down the road.

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Speaker 1: So really a term that's remarkable in every way that

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Speaker 1: it's not like previous terms. Let's begin with how the

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Speaker 1: Trump administration fared. Trump is the first president since Franklin

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Speaker 1: Delano Roosevelt who has admitted stration lost more cases than

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Speaker 1: it won in a term. Well, I think, you know, first,

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Speaker 1: I think we have to separate Trump the personal litigated

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Speaker 1: from the Trump administration because obviously, I think from the

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Speaker 1: president's perspective, two of the biggest decisions learn about Trump policies,

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Speaker 1: but rather about his own personal financial records, and I

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Speaker 1: suspect he talks poses up his losses. But the broader

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Speaker 1: narrative that the administration had a bad term, I think

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Speaker 1: there's a little bit too superficial judents. That's the narrative

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Speaker 1: that focuses on the fifty some odd decisions and argued cases.

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Speaker 1: And I'm a big believer that we also have to

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Speaker 1: look at what the court's doing in its order docket.

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Speaker 1: There are a number of really important orders, especially early

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Speaker 1: in the term, that cleared the way for some pretty

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Speaker 1: controversial Trump policies to go into effect, you know, his

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Speaker 1: repurposing of military construction funds to build the border wall,

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Speaker 1: the public charge rule in asylum cases. These are really

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Speaker 1: big wins that I think aren't getting counted because they

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Speaker 1: didn't come in the flood of big published decisions in

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Speaker 1: judents lie. So, you know, I think from a policy

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Speaker 1: level is probably a bit of a mixed bag for

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Speaker 1: the Trump administration this term, losing some really big cases

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Speaker 1: when in some equally important but perhaps the less visible cases.

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Speaker 1: But for President Trumps himself, you know, obviously the rules

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Speaker 1: in the vans and miss oars cases probably put a

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Speaker 1: bit of a damper on what huge victories to one elsewhere.

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Speaker 1: Would you say that those rulings in the cases over

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Speaker 1: subpoena's for President Trump's financial records, would you call those

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Speaker 1: landmark opinions on presidential powers? Yeah, I think so. I mean,

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Speaker 1: I think they're going to be landmark opinions judent at

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Speaker 1: least down the road, especially I think the miss Ours

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Speaker 1: ruling the congressional sapinias. I mean, it's not that common

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Speaker 1: to have local prosecutors subpoena and of president's financial records,

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Speaker 1: and so Vance mand up being an outlier. But in

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Speaker 1: so far as the Court in Vance rejected the president's

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Speaker 1: absolute immunity claims, and as so far as the Court

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Speaker 1: in miss Ours not only made it clear that some

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Speaker 1: congressional subpoenas of the president's records will be upheld, but

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Speaker 1: that it's going to be the court who are going

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Speaker 1: to be the policemen who are going to be intermediaries.

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Speaker 1: I think that's a landmarks decision structurally, because it really

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Speaker 1: does provide a blueprint for this and future Congresses if

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Speaker 1: they really want to put chiefs into their subpoinias, if

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Speaker 1: they really want to try to a certainmselves at the

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Speaker 1: expensive the executive branch. Now they have a referee in

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Speaker 1: ways that I think it wasn't necessarily clear at various

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Speaker 1: points earlier in this year, but that would happen. So

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Speaker 1: Trump may not lose these cases immediately, insofar as we

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Speaker 1: may not see any of the relevant records before the election.

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Speaker 1: But I do think that in the long term the

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Speaker 1: presidency lost both of those cases, and in the Middars case.

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Speaker 1: Especially even though Congress I think loses in the short term,

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Speaker 1: Congress winds unquestionably it might be in the long term.

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Speaker 1: Coll me up next on Bloomberg Law. We'll continue our

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Speaker 1: look at this blockbuster term with a focus on Chief

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Speaker 1: Justice John Roberts, the key vote in the closely divided cases,

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Speaker 1: a role no other chief justice has plate since the

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Speaker 1: nineteen thirties. Did the chief steer the court to the middle.

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Speaker 1: Chief Justice John Roberts famously compared justices to umpires that

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Speaker 1: his confirmation hearings, judges and justices are servants of the law,

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Speaker 1: not the other way around. Judges are like umpires. Umpires

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Speaker 1: don't make the rules, they apply them. The role of

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Speaker 1: an umpire and a judge is critical and make sure

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Speaker 1: everybody plays by the rules. But it is a limited role.

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Speaker 1: But that was fifteen years ago. Has Robert's viewpoint changed

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Speaker 1: as his role on the court has changed. Roberts was

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Speaker 1: the deciding vote in nearly every close case this term,

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Speaker 1: many involving controversial social issues, and the author of landmark

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Speaker 1: opinions that will become required reading for law students. My

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Speaker 1: guest is Stephen Vladdock, Professor of Constitutional law at the

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Speaker 1: University of Texas Law School. Steve, There's no doubt about

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Speaker 1: one thing this term, and that's the Chief Justice John

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Speaker 1: Robert has dominated the term, and so the comparisons with

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Speaker 1: Chief Justice John Marshall has started. How do you see

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Speaker 1: the Chief I don't even know if the comparisons to

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Speaker 1: John Marshall's there to Chief Justice Roberts, because Marshall never

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Speaker 1: had a term like this where he was dealing with

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Speaker 1: conflicting majorities in all the political pressures June. We've never

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Speaker 1: seen a term like this from any justice level. In

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Speaker 1: the Chief Justice, you know, not only is he responsible

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Speaker 1: for right in arguably eight of the nine most important

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Speaker 1: opinions the Court handed down this term, as you say,

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Speaker 1: he's in the majority in all but two cases. In

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Speaker 1: every five four case except for one, he's in the majority.

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Speaker 1: And so you know, it's really a talent sign of

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Speaker 1: where the Court is that John Roberts, who is by

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Speaker 1: no means I think a centrist, but it's clearly on

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Speaker 1: all but the most random issues, the median vote between

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Speaker 1: the very very solid Conservative for Justice block and the

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Speaker 1: solid for justice Progressive block and I don't know if

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Speaker 1: that's necessarily what John Roberts like, but at least allows

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Speaker 1: him to put his stamp on what the Court's doing.

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Speaker 1: And so I think the decisions we saw this term

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Speaker 1: were very much consistent with what I've all these, dude,

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Speaker 1: is his vision of the Court, that it's the court

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Speaker 1: that is going to be very conservative in the institutional sense,

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Speaker 1: but also very assertive when necessary, that ultimately it is

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Speaker 1: for the Court to be the authoritative expositor of the Constitution,

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Speaker 1: and even that means moving slowly, and even that means

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Speaker 1: handing down decisions that don't go as far as say,

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Speaker 1: you know, those who align with him politically would like

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Speaker 1: him to. It leads in that direction eventually. So June,

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Speaker 1: I can't think of another term in any recent memory

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Speaker 1: in which a single justice has this kind of impact.

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Speaker 1: Certainly we never saw that from Justice Kennedy, even when

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Speaker 1: he was at the height of being listening of Justice.

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Speaker 1: It's just it's a remarkable amount of power, and I

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Speaker 1: think it's a remarkable amount of control. And you know,

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Speaker 1: from his perspective, I suspect even if he doesn't like

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Speaker 1: the spotlight, it means a lot of opinions that ended

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Speaker 1: up where he wanted them to be. Looking at some

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Speaker 1: of the five to four cases, the Chief voted with

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Speaker 1: the liberals in the abortion case and the data case,

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Speaker 1: but voted with the conservatives in the school vouchers case

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Speaker 1: and the Obamacare contraceptive mandate case. So going forward, is

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Speaker 1: there any way to tell how the Chief wiellcast his vote. Well,

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Speaker 1: for one, I think no one should come away in

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Speaker 1: the term thinking that Roberts is somehow moved radically to

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Speaker 1: the last And I think that was a headline and

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Speaker 1: a couple of news stories that I just don't understand.

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Speaker 1: I think the reality, June is that the Court has

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Speaker 1: moved very far to the right in a fairly short

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Speaker 1: period of time. Ever since just as a lead overplaced

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Speaker 1: Justice O'Connor just kinda on place and Justice Kennedy, and

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Speaker 1: so I think it's much more assigned you that the

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Speaker 1: four conservative justices have gone even further to the right

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Speaker 1: as cases that show up further to the right on

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Speaker 1: the biological spectrum have come to the Court, and the

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Speaker 1: Chief toll on the line looks like it has this

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Speaker 1: leftward effects when it really doesn't. So what does that

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Speaker 1: mean for how we predict where the chiefs that's going

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Speaker 1: to be. I think it's pretty right forward that in

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Speaker 1: a case that does not look like it's an institutional

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Speaker 1: assault on the judiciary, he's gonna be his old self.

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Speaker 1: You know, he's going to be conservative. He's going to

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Speaker 1: be very skeptical of the kinds of arguments that tend

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Speaker 1: to be in favor with progressive constitutionalist He's gonna be

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Speaker 1: fairly committed to textualism, to originalism, etcetera. But you're gonna

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Speaker 1: have cases that really do look like they're an assault

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Speaker 1: on the court, either because it's a frontal assault on

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Speaker 1: a precedent, which I think was the Louisian An abortion case,

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Speaker 1: or because you have the executive branch or the federal

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Speaker 1: government of the whole basically asking the courts to just

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Speaker 1: close their eyes to the facts in front of them.

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Speaker 1: I think that's the doctor case. And I think the

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Speaker 1: Chief is gonna he has shown before, he showed again

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Speaker 1: the start, and I think he will show again that

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Speaker 1: he is not someone who's going to be able to

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Speaker 1: sort of look past cases where the relevant actors seemed

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Speaker 1: to be active in bad face. And I don't know

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Speaker 1: that that makes him consistently predictable, but it's a very

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Speaker 1: different kind of centrism and a very some kind of

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Speaker 1: media voter than Anthony Kennedy was. It were thirteen five

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Speaker 1: to four or five to three decisions, which is a

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Speaker 1: drop from the last two years, and there were several

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Speaker 1: major decisions with seven to two votes. Do you think

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Speaker 1: this is a blow for the independence of the judiciary

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Speaker 1: or is that going too far? You know, it's such

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Speaker 1: a small data set June and thirteen is the lower

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Speaker 1: absolute number. But again, this is the course that only

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Speaker 1: handed down fifty three signed opinions for the whole term,

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Speaker 1: so that's still a quarter of what the court did.

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Speaker 1: I think the reality is that this is a course

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Speaker 1: that is increasingly unafraid of the shadow, and that's especially

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Speaker 1: true with John Roberts as the medium vote, you know,

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Speaker 1: as opposed to years past where both were wary about

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Speaker 1: Justice Kennedy and might have not wanted to take cases

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Speaker 1: up because they weren't sure whether he would end up.

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Speaker 1: I think now they all have a pretty good sense

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Speaker 1: of where they are, and so that means that they

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Speaker 1: are going to be cases they take where it's clear

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Speaker 1: from the outset that it's going to be five to four.

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Speaker 1: So I think we're probably looking at actually a higher

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Speaker 1: overall percentage of five to four decisions in the long term.

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Speaker 1: And I think the real question is not, you know,

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Speaker 1: the absolute number of five four decisions, but sort of

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Speaker 1: how many of them is a percentage of the Court's workload,

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Speaker 1: which you know, as you know once again is down

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Speaker 1: this year. And so that's the other trend time here,

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Speaker 1: is that the Court has deciding fewer and fewer cases

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Speaker 1: every year, and against that backdrop, each individual decision is

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Speaker 1: gonna loom that much larger. What's your take on the

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Speaker 1: newest justice is Neil Gorsage and Brett Kavanaugh Justice Course,

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Speaker 1: which did surprise some people writing the majority opinion in

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Speaker 1: the LGBT case and the tribal treaty case. I think

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Speaker 1: they are very much who we expected, At least I

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Speaker 1: always expected there would be a couple of idiosyncratic areas

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Speaker 1: for Justice Course, which you know, where his principle seems

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Speaker 1: at LEASTI perficially inconsistent with his politics. Of course, that

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Speaker 1: was always true with Justice Scalia, his predecessor, And it's

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Speaker 1: not shocking to me that either of the big canons

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Speaker 1: from this year were examples of that right. That Title

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Speaker 1: seven case was perfect case for his formalistic textualism, and

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Speaker 1: the Oklahoma case I think was very much a context

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Speaker 1: in which any justice on the right was going to

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Speaker 1: be sympathetic, it would be him. I don't think it

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Speaker 1: suggests anything larger about course who to be in some

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Speaker 1: kind of unreliable conservatives. In every other context with a

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Speaker 1: partisan veilance, he was reliably on the right. I was

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Speaker 1: much more surprised in the Title seven case by the

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Speaker 1: Chief Justice joining course his majority opinion than by the fact,

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Speaker 1: of course that wrote it as j. Kavanaugh. I think

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Speaker 1: JUF kavanaughh is doing what most folks expected. He's a

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Speaker 1: pretty reliable vote for whatever is perceived as a conservative

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Speaker 1: positions cases. And the only example really of him sucking

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Speaker 1: that you know, in his first really two terms on

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Speaker 1: the Court was an anti trust case from last terms, Steve.

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Speaker 1: Much has been written about many conservatives being unhappy with

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Speaker 1: the term and seizing on the perhaps unexpected decisions in

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Speaker 1: cases involving abortion rights, LGBT rights, DOCTA recipients. Was it

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Speaker 1: a winning term for liberals? I think it's a little

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Speaker 1: bit too simplistic to look at the term in those labels.

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Speaker 1: If there's a headline there, it is that it wasn't

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Speaker 1: quite the blowout for the conservatives that many expect did.

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Speaker 1: But even the big cases that the Court sort of

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Speaker 1: sided with the progressive and the winds were pretty modest.

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Speaker 1: You know, the title seven cases statutory interpretations, the doctor

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Speaker 1: cases stactory interpretation and leaves the administration free to come

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Speaker 1: back and do it all over again. The Louisiana abortion case,

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Speaker 1: even though the Court struck down the Louisiana statute, the

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Speaker 1: Chief Justice controlling concurrence is actually a pretty friendly opinion

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Speaker 1: first looking for new ways to restrict access to abortion.

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Speaker 1: Whereas the winds were the Conservatives, I think we're huge

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Speaker 1: with We're on the precipice of a major revolution in

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Speaker 1: how the Court handles religious liberty, and I think we

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Speaker 1: saw the beginnings of that in the Espinosa Religious School case,

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Speaker 1: in the ministerial exception case, in the contraceptive mandate case.

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Speaker 1: You know, the Court has an enormous case on the

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Speaker 1: doctet for next term, Faulton versus City of Philadelphia about

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Speaker 1: whether to revisit the canonical decisions religious liberty jurisprudence. So

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Speaker 1: you know, I think if we're just talking up when

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Speaker 1: and losses. Yeah, it was probably a bit of a

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Speaker 1: mixed verdict, and I think it wasn't the clean sweep

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Speaker 1: that a lot of conservatives were expecting given the competent court.

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Speaker 1: I guess I would just say there are two caveats.

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Speaker 1: One that maybe at least in part of reflection of

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Speaker 1: just how extremes some of these cases were, and too,

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Speaker 1: I think the winds, such as they work for the progressives,

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Speaker 1: are going to prove pretty modest in the long term,

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Speaker 1: whereas the winds sort of conservatives, including in cases that

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Speaker 1: have gotten less attention like the expectited removal case, are

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Speaker 1: going to be pretty significant and going to form the

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Speaker 1: basis for much bigger, broader shifts in the law on

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Speaker 1: the ground in the coming years of decades. So tell

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Speaker 1: us more about the lineups of votes in the future,

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Speaker 1: you know, I think the battle lines are drawn pretty

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Speaker 1: clearly with the court in the next five ten years,

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Speaker 1: where there's only going to be a handful of cases

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Speaker 1: where anyone is speculating about whose critical votes are and

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Speaker 1: where In the high profile cases, it's pretty clearly going

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Speaker 1: to be either one of those narrow slightes of cases

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Speaker 1: where it's possible that this scorsa or I think the

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Speaker 1: warm the standard and what was true to this term,

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Speaker 1: and it's going to be the chief COVID nineteen loomed

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Speaker 1: large this year at the court in many different ways,

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Speaker 1: especially for the general public because they got to hear

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Speaker 1: the justices asking questions as it happened. How do you

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Speaker 1: think it played a role in what happened at the court? Well,

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Speaker 1: I think it certainly slowed the court down. And I

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Speaker 1: think the obvious reason why the court, you know, is

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Speaker 1: still handing down the marriage decisions after July four, it's

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Speaker 1: because of the general arguments in May. As you know,

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Speaker 1: I was actually supposed to argue the very first case

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Speaker 1: that was delayed by the coronavirus. That's not gonna be

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Speaker 1: arguing the fault. I think it's also gonna have an

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Speaker 1: effect on the court dockets both of this term and

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Speaker 1: next term, where it's going to have a smaller number

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Speaker 1: of overall cases. There are a couple of sort of

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Speaker 1: smaller effects stood where you know, they're used to seeing

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Speaker 1: each other in person, and like all of us, right there,

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Speaker 1: pride of the opportunity to converse in person, to have

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Speaker 1: the sort of the group dynamics to come from sitting

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Speaker 1: around the table discussing these cases. I'm sure that it's

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Speaker 1: had marginal effects and how the word the court has

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Speaker 1: been done. And then of course there's been the COVID

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Speaker 1: specific cases. We already saw the really important decision in

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Speaker 1: April and the Wisconsin election case. We saw the Chief

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Speaker 1: Justice casting and the deciding vote in the California Religious

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Speaker 1: Services case. I have to think that we're in for

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Speaker 1: more of those over the summer and in the fall,

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Speaker 1: especially as the elections in November approach. Let's talk about

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Speaker 1: the Supreme Court so called shadow ducket. How important was

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Speaker 1: it this term? We pay attention for obvious reasons to

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Speaker 1: the big, high profile cases that the Court handled, what

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Speaker 1: you might say, in a plenary way where they have

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Speaker 1: briefing and argument, and where we get these opinions handed

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Speaker 1: down in May, June, and July. This term I think

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Speaker 1: was equally important in many respects Jude for all of

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Speaker 1: the stuff the Court did not through those kinds of

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Speaker 1: merits cases, but all of the one sentence orders, grantings,

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Speaker 1: stay applications to the federal government, denying applications to other parties.

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Speaker 1: And I think this term as much as any recent one.

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Speaker 1: We saw a volume of those rulings in a way

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Speaker 1: that really had an impact everything from free enough the

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Speaker 1: president to build his border wall even though no court

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Speaker 1: has ever actually said it's legal for him to use

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Speaker 1: no old construction funds the way he's using it, to

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Speaker 1: the Wisconsin election case, to the two am ruling on

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Speaker 1: July about the federal death penalty. These are contexts where

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Speaker 1: the Court is often doing just as much work June

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Speaker 1: and having just as much of an impact on the ground,

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Speaker 1: but they don't get the same attention because the rulings

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Speaker 1: are usually cryptic. They usually come out of nowhere, you know,

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Speaker 1: they're not sort of handed down with this big pomp

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Speaker 1: and circumstance. And I think this term, as much as

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Speaker 1: any recent term, we've seen the impact of those orders

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Speaker 1: and how they really are as much an important part

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Speaker 1: of what the Court is doing. Part of why that matters,

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Speaker 1: it's because if you account for those orders as well

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Speaker 1: as the decisions in the argued cases, so I think

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Speaker 1: it looks much more like an even better term for

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Speaker 1: conservatives and even more remarkable term for the two Justice

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Speaker 1: Thanks Steve. That's Steven Vladik at the University of Texas

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Speaker 1: Law School. I'm June Grasso, and this is Lamberg. It