1 00:00:00,560 --> 00:00:05,360 Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio. 2 00:00:06,440 --> 00:00:10,119 Speaker 1: Chief Justice John Roberts has often said that the judiciary 3 00:00:10,240 --> 00:00:14,320 Speaker 1: is above politics, but he acknowledged the intrusion of politics 4 00:00:14,400 --> 00:00:17,599 Speaker 1: during a question and answer session at the Victoria University 5 00:00:17,640 --> 00:00:22,120 Speaker 1: of Wellington in New Zealand in July, about three months 6 00:00:22,160 --> 00:00:26,279 Speaker 1: after the confirmation of Justice Neil Gorst's in practice, I 7 00:00:26,320 --> 00:00:30,360 Speaker 1: think we're experiencing a bit of a rocky road, um 8 00:00:30,880 --> 00:00:36,479 Speaker 1: because um, the judicial process has become overly politicized. It didn't, 9 00:00:37,200 --> 00:00:40,000 Speaker 1: It didn't used to be that way. Uh As a 10 00:00:40,040 --> 00:00:44,080 Speaker 1: general rule. With the confirmation of Justice Amy Coney Barrett, 11 00:00:44,120 --> 00:00:47,879 Speaker 1: the idea of reforming the court is gaining traction among Democrats. 12 00:00:48,200 --> 00:00:52,480 Speaker 1: Joe Biden is even campaigning on Barrett's confirmation. Drop got 13 00:00:52,479 --> 00:00:55,240 Speaker 1: a Supreme Court justice, and he did it for one 14 00:00:55,280 --> 00:00:58,760 Speaker 1: overwhelming raisin, something've been trying to do since the day 15 00:00:58,800 --> 00:01:04,000 Speaker 1: got elected, to destroy the affordable cure. However, reforming the 16 00:01:04,040 --> 00:01:07,520 Speaker 1: court would require Democrats to control both Houses of Congress 17 00:01:07,520 --> 00:01:10,480 Speaker 1: and the Presidency, and there are a wide range of 18 00:01:10,520 --> 00:01:15,200 Speaker 1: proposals for reforming the court. Court packing term limits, jurisdiction, 19 00:01:15,280 --> 00:01:19,800 Speaker 1: stripping a super majority requirement, a balanced bench, and even 20 00:01:19,880 --> 00:01:23,440 Speaker 1: a lottery system joining me as constitutional law professor David 21 00:01:23,440 --> 00:01:26,959 Speaker 1: Posen of Columbia Law School. David Biden has said that 22 00:01:27,000 --> 00:01:29,720 Speaker 1: he doesn't like the idea of term limits or packing 23 00:01:29,760 --> 00:01:33,080 Speaker 1: the court, and if elected, he would appoint a bipartisan 24 00:01:33,120 --> 00:01:38,360 Speaker 1: commission of constitutional scholars to study court reform. Aren't presidential 25 00:01:38,360 --> 00:01:43,960 Speaker 1: commissions where ideas go to die in some cases. Although 26 00:01:44,000 --> 00:01:45,800 Speaker 1: I think there'll be a lot of pressure on this 27 00:01:45,840 --> 00:01:50,560 Speaker 1: commission to produce some recommendations for reform, I'm not sure 28 00:01:50,640 --> 00:01:55,240 Speaker 1: what will garner bipartisan consensus, but there's a pretty broad 29 00:01:55,400 --> 00:01:59,600 Speaker 1: agreement at least among legal scholars that has come to 30 00:02:00,040 --> 00:02:03,440 Speaker 1: think about fundamental reforms to the court. And there are 31 00:02:03,440 --> 00:02:07,280 Speaker 1: many options to choose from. So let's start with court packing, 32 00:02:07,360 --> 00:02:10,959 Speaker 1: which seems to be the most popular at this point. 33 00:02:11,000 --> 00:02:13,959 Speaker 1: Adding justice is to the court. Is there any doubt 34 00:02:14,000 --> 00:02:18,800 Speaker 1: that that is constitutional? One could imagine arguments that there's 35 00:02:18,919 --> 00:02:23,240 Speaker 1: some kind of unwritten norm against expanding the size of 36 00:02:23,280 --> 00:02:26,320 Speaker 1: the court, given that it's been well over centuries since 37 00:02:26,320 --> 00:02:29,239 Speaker 1: it's happened, and that there was strong pushback to FDR's 38 00:02:29,280 --> 00:02:32,760 Speaker 1: proposal to do that. The idea that that norm has 39 00:02:32,840 --> 00:02:38,480 Speaker 1: now reached the point of enforceable gloss on the Constitution itself. However, 40 00:02:38,520 --> 00:02:42,360 Speaker 1: it's pretty outlandish, and given that the constitutional text says 41 00:02:42,400 --> 00:02:44,520 Speaker 1: nothing about the size of the court, that Congress has 42 00:02:44,600 --> 00:02:48,200 Speaker 1: changed side numerous times throughout our history, I'll be notn 43 00:02:48,200 --> 00:02:50,880 Speaker 1: for over a century, it's a pretty radical argument that 44 00:02:50,919 --> 00:02:53,720 Speaker 1: it would be unconstitutional to increase the size of the court. 45 00:02:54,240 --> 00:02:59,200 Speaker 1: How difficult would it be to accomplish this, Well, assuming 46 00:02:59,200 --> 00:03:02,520 Speaker 1: that it's constitutional, as it is the mainstream view, to 47 00:03:02,639 --> 00:03:05,880 Speaker 1: expand the size of the court, it would take ordinary legislation, 48 00:03:06,600 --> 00:03:08,480 Speaker 1: So you would need the House and the Senate to 49 00:03:08,600 --> 00:03:12,320 Speaker 1: agree on a bill, and the President would have to 50 00:03:12,800 --> 00:03:15,240 Speaker 1: sign the bill into law, and then you just have 51 00:03:15,360 --> 00:03:20,080 Speaker 1: to fill the new justiceships with new appointees. I mean, 52 00:03:20,120 --> 00:03:23,440 Speaker 1: compared to other proposals that might require constitutional amendment, it 53 00:03:23,440 --> 00:03:26,360 Speaker 1: would be relatively straightforward. That there would of course be 54 00:03:26,840 --> 00:03:30,760 Speaker 1: a huge fight over the proposal, I'd imagine, and the 55 00:03:30,800 --> 00:03:33,920 Speaker 1: politics would be very intense, but as far as the 56 00:03:33,960 --> 00:03:36,800 Speaker 1: formal mechanics of getting it done, but we're just talking 57 00:03:36,840 --> 00:03:41,800 Speaker 1: about ordinary legislation. Many constitutional scholars oppose the idea of 58 00:03:41,840 --> 00:03:46,040 Speaker 1: court packing. What's your opinion, Well, I guess My view 59 00:03:46,200 --> 00:03:49,800 Speaker 1: is that term limits are basically a no brainer for 60 00:03:49,960 --> 00:03:54,600 Speaker 1: ensuring regular turnover and reducing incentives for strategic behavior and 61 00:03:54,640 --> 00:03:58,000 Speaker 1: bringing some prodictability and fairness to the process. So I'd 62 00:03:58,040 --> 00:04:02,600 Speaker 1: start there. About expanding the court, I feel ambivalent. It 63 00:04:02,640 --> 00:04:06,320 Speaker 1: would be a more controversial move, it carries more escalation risk, 64 00:04:07,040 --> 00:04:11,720 Speaker 1: but it is clearly constitutionally permissible to do. And there's 65 00:04:11,800 --> 00:04:14,840 Speaker 1: something that just seems to me deeply wrong about fifty 66 00:04:14,840 --> 00:04:19,120 Speaker 1: one plus years straight of Republican control of a court. Um. 67 00:04:19,160 --> 00:04:22,600 Speaker 1: I don't think Republicans would feel okay about that if 68 00:04:22,839 --> 00:04:25,000 Speaker 1: there were fifty one plus years of democratic control of 69 00:04:25,000 --> 00:04:28,000 Speaker 1: the court. And moreover, there's ample evidence that the Roberts 70 00:04:28,040 --> 00:04:33,799 Speaker 1: Court's election law decisions have systematically entrenched a Republican party 71 00:04:33,800 --> 00:04:36,800 Speaker 1: that's no longer confident about its ability to win free 72 00:04:36,800 --> 00:04:40,520 Speaker 1: and fair elections. So the Court itself, um is producing 73 00:04:40,560 --> 00:04:43,800 Speaker 1: the conditions under which Republicans are going to continue to 74 00:04:43,839 --> 00:04:48,520 Speaker 1: have this imbalanced court and unfair advantage. And so I 75 00:04:48,600 --> 00:04:50,479 Speaker 1: never thought I would say this, but I'm open to 76 00:04:50,640 --> 00:04:52,880 Speaker 1: expanding the Court in a way that I haven't been 77 00:04:52,920 --> 00:04:55,680 Speaker 1: in the past. Because of those factors, I think it 78 00:04:55,760 --> 00:04:57,839 Speaker 1: has to be kept on the table at least, but 79 00:04:57,960 --> 00:05:01,919 Speaker 1: it seems to me term limits eventually will bring the 80 00:05:01,960 --> 00:05:07,479 Speaker 1: Court into closer alignment with the country and electoral outcomes. UM, 81 00:05:07,480 --> 00:05:11,360 Speaker 1: But as in a stopgap measure, UM court expansion has 82 00:05:11,400 --> 00:05:15,960 Speaker 1: to be seriously explored, given UM the circumstances under which 83 00:05:16,240 --> 00:05:19,680 Speaker 1: the Court got so imbalanced, and given the court's own 84 00:05:19,760 --> 00:05:24,000 Speaker 1: rulings that UM are reshaping politics in a way that 85 00:05:24,800 --> 00:05:28,560 Speaker 1: UM it's hard to explain except with reference to artisan entrenchment. 86 00:05:29,200 --> 00:05:33,360 Speaker 1: So one of the proposals is for staggered terms and 87 00:05:33,560 --> 00:05:37,680 Speaker 1: eighteen year limits for future justices. So that's a system 88 00:05:37,680 --> 00:05:41,000 Speaker 1: where one seat would come open every two years. Now, 89 00:05:41,080 --> 00:05:45,479 Speaker 1: we assume that every change would face legal challenges. Would 90 00:05:45,480 --> 00:05:51,000 Speaker 1: this face constitutional challenges? The term limits proposal has been 91 00:05:51,040 --> 00:05:54,719 Speaker 1: around for several decades now in the academic literature and 92 00:05:54,800 --> 00:05:57,520 Speaker 1: has had strong support on the right as well as 93 00:05:57,560 --> 00:06:01,360 Speaker 1: the left, and there are versions of it that are 94 00:06:01,360 --> 00:06:03,760 Speaker 1: meant to be done in a way that would not 95 00:06:03,800 --> 00:06:06,680 Speaker 1: require a constitutional amendment and could be done again by 96 00:06:06,800 --> 00:06:12,200 Speaker 1: ordinary legislation, although there's debate about exactly what would be permissible. 97 00:06:12,320 --> 00:06:17,000 Speaker 1: So most proposals do not have a justice simply ceased 98 00:06:17,040 --> 00:06:19,960 Speaker 1: being a federal judge after his or her eighteen year 99 00:06:20,080 --> 00:06:22,880 Speaker 1: term is up, because there's a provision the Constitution that 100 00:06:22,880 --> 00:06:26,160 Speaker 1: says judges get to enjoy their office during good behavior. 101 00:06:26,800 --> 00:06:29,240 Speaker 1: That has traditionally been understood to mean that they get 102 00:06:29,320 --> 00:06:33,039 Speaker 1: to stay as judges for life life tenure unless they're impeached. 103 00:06:33,560 --> 00:06:39,480 Speaker 1: And most term limit proposals have the justices becoming senior justices, 104 00:06:40,200 --> 00:06:44,160 Speaker 1: or only hearing certain sorts of cases, or possibly going 105 00:06:44,200 --> 00:06:46,719 Speaker 1: down to a lower court, but in any of those 106 00:06:46,760 --> 00:06:50,280 Speaker 1: configurations still serving as a judge in some capacity after 107 00:06:50,360 --> 00:06:54,080 Speaker 1: eighteen years, and that's to allow for this to be 108 00:06:54,120 --> 00:06:57,680 Speaker 1: done by ordinary legislation, not by constitutional amendment. I think 109 00:06:57,880 --> 00:07:01,000 Speaker 1: that the term limit proposal probably the most likely to 110 00:07:01,040 --> 00:07:04,799 Speaker 1: come out of Bidence Commission, assuming it goes forward, precisely 111 00:07:04,839 --> 00:07:08,880 Speaker 1: because it has been endorsed by Republicans and Democrats over 112 00:07:08,880 --> 00:07:11,080 Speaker 1: the years. As far as I know, the US is 113 00:07:11,120 --> 00:07:14,280 Speaker 1: the only country in the world that doesn't use term limits, 114 00:07:14,720 --> 00:07:19,440 Speaker 1: mandatory retirement ages, or both for its highest court judges. So, 115 00:07:19,640 --> 00:07:21,960 Speaker 1: you know, to bring some regularity and predictability to the 116 00:07:21,960 --> 00:07:25,280 Speaker 1: appointment process, lower the stakes of some of the appointment fights, 117 00:07:25,920 --> 00:07:27,680 Speaker 1: and bring the US in line with the rest of 118 00:07:27,680 --> 00:07:30,920 Speaker 1: the world. Termaments makes a lot of sense. It does not, however, 119 00:07:31,320 --> 00:07:34,040 Speaker 1: respond to the concern of Democrats that the court has 120 00:07:34,080 --> 00:07:38,680 Speaker 1: become extremely imbalanced over recent years, and so it's not 121 00:07:38,720 --> 00:07:40,840 Speaker 1: clear that it would be a sufficient reform, even if 122 00:07:40,880 --> 00:07:43,440 Speaker 1: it's necessary to get the court to a to a 123 00:07:43,480 --> 00:07:45,680 Speaker 1: better place. Yeah, well, that was going to be my 124 00:07:45,760 --> 00:07:49,840 Speaker 1: next question, because term limits doesn't change what will be 125 00:07:49,880 --> 00:07:53,000 Speaker 1: a six to three court right in the In the 126 00:07:53,080 --> 00:07:56,480 Speaker 1: long run, it might because once a term limit scheme 127 00:07:56,560 --> 00:08:00,480 Speaker 1: became fully operational, each president would get to this is 128 00:08:00,520 --> 00:08:03,360 Speaker 1: in a four year term, and eventually we would get 129 00:08:03,400 --> 00:08:06,800 Speaker 1: there for more partisan balance on the court based on 130 00:08:06,840 --> 00:08:10,080 Speaker 1: who won the presidential elections. As it is now, a 131 00:08:10,200 --> 00:08:13,720 Speaker 1: majority of the justices have been appointed by a Republican 132 00:08:13,760 --> 00:08:18,960 Speaker 1: president continuously since May nine, So we're over fifty one 133 00:08:19,040 --> 00:08:22,080 Speaker 1: years now Republican control of the Supreme Court. In the 134 00:08:22,120 --> 00:08:25,040 Speaker 1: period in which Democrats control the Senate more than half 135 00:08:25,080 --> 00:08:28,880 Speaker 1: of the time, Democratic presidents had five terms and won 136 00:08:28,920 --> 00:08:31,480 Speaker 1: the plurality vote of the election six of the last 137 00:08:31,480 --> 00:08:34,480 Speaker 1: seven elections, so that we would have such a Republican 138 00:08:34,559 --> 00:08:36,760 Speaker 1: stranglehold on the court in the period in which our 139 00:08:36,800 --> 00:08:39,920 Speaker 1: politics has not been nearly so dominated by that party 140 00:08:40,280 --> 00:08:43,160 Speaker 1: has been calamitous for for Democrats and makes it hard 141 00:08:43,200 --> 00:08:45,559 Speaker 1: to see how they would accept term limits as adequate 142 00:08:45,679 --> 00:08:48,600 Speaker 1: in the near term. Hence the all the discussion about 143 00:08:48,600 --> 00:08:50,960 Speaker 1: expanding the size of the court or other moves that 144 00:08:51,040 --> 00:08:53,600 Speaker 1: might dis empower the Court given the way in which 145 00:08:53,880 --> 00:08:56,400 Speaker 1: it's become so dominated by Republicans, who who I might 146 00:08:56,440 --> 00:09:00,240 Speaker 1: also add, are increasingly internally homogeneous in their jursep ential 147 00:09:00,320 --> 00:09:04,760 Speaker 1: styles and our term limits constitutional The term limits proposal 148 00:09:05,280 --> 00:09:08,559 Speaker 1: has been around for several decades now in the academic 149 00:09:08,600 --> 00:09:11,800 Speaker 1: literature and has had strong support on the right as 150 00:09:11,800 --> 00:09:14,760 Speaker 1: well as the left, and there are versions of it 151 00:09:15,120 --> 00:09:17,040 Speaker 1: that are meant to be done in a way that 152 00:09:17,080 --> 00:09:20,000 Speaker 1: would not require a constitutional amendment and could be done 153 00:09:20,000 --> 00:09:24,120 Speaker 1: again by ordinary legislation, although there's debate about exactly what 154 00:09:24,200 --> 00:09:27,840 Speaker 1: would be permissible. So most proposals do not have a 155 00:09:27,960 --> 00:09:31,640 Speaker 1: justice simply ceased being a federal judge after his or 156 00:09:31,640 --> 00:09:34,360 Speaker 1: her eighteen year term is up, because there's a provision 157 00:09:34,400 --> 00:09:37,080 Speaker 1: the Constitution that says judges get to enjoy their office 158 00:09:37,160 --> 00:09:40,439 Speaker 1: during good behavior. That has traditionally been understood to mean 159 00:09:40,480 --> 00:09:42,960 Speaker 1: that they get to stay as judges for life life 160 00:09:43,000 --> 00:09:47,520 Speaker 1: tenure unless they're impeached, and most term limit proposals have 161 00:09:47,800 --> 00:09:52,480 Speaker 1: the justices becoming senior justices, or only hearing certain sorts 162 00:09:52,520 --> 00:09:55,800 Speaker 1: of cases, or possibly going down to a lower court, 163 00:09:56,120 --> 00:09:58,920 Speaker 1: but in any of those configurations still serving as a 164 00:09:58,960 --> 00:10:02,360 Speaker 1: judge in some capacity after eighteen years, and that's too 165 00:10:02,400 --> 00:10:05,280 Speaker 1: allowed for this to be done by ordinary legislation, not 166 00:10:05,320 --> 00:10:08,480 Speaker 1: by a concertual amendment. I think that the term limit 167 00:10:08,559 --> 00:10:11,760 Speaker 1: proposal probably the most likely to come out of Binance Commission, 168 00:10:12,200 --> 00:10:16,000 Speaker 1: assuming it goes forward, precisely because it has been endorsed 169 00:10:16,040 --> 00:10:19,040 Speaker 1: by Republicans and Democrats over the years. As far as 170 00:10:19,120 --> 00:10:20,960 Speaker 1: I know, the US is the only country in the 171 00:10:20,960 --> 00:10:25,440 Speaker 1: world that doesn't use term limits, mandatory retirement ages, or 172 00:10:25,480 --> 00:10:28,440 Speaker 1: both for its highest court judges. So to bring some 173 00:10:28,520 --> 00:10:32,040 Speaker 1: regularity and predictability to the appointment process, lower the stakes 174 00:10:32,040 --> 00:10:34,520 Speaker 1: of some of the appointment fights, and bring the US 175 00:10:34,559 --> 00:10:36,640 Speaker 1: in line with the rest of the world, term limits 176 00:10:36,640 --> 00:10:39,079 Speaker 1: makes a lot of sense. It does, not, however, respond 177 00:10:39,120 --> 00:10:41,320 Speaker 1: to the concern of Democrats that the Court has become 178 00:10:41,520 --> 00:10:45,080 Speaker 1: extremely imbalanced over recent years, and so it's not clear 179 00:10:45,120 --> 00:10:47,200 Speaker 1: that it would be a sufficient reform, even if it's 180 00:10:47,400 --> 00:10:49,920 Speaker 1: necessary to get the Court to a to a better place. 181 00:10:50,320 --> 00:10:54,200 Speaker 1: This week, Democratic presidential candidate Joe Biden said he doesn't 182 00:10:54,240 --> 00:10:57,120 Speaker 1: like the idea of term limits or packing the court. 183 00:10:57,360 --> 00:10:59,320 Speaker 1: I'm not a big fan of court packman. I'm not 184 00:10:59,360 --> 00:11:02,120 Speaker 1: a big out saying we're just going to add judge 185 00:11:02,160 --> 00:11:06,000 Speaker 1: number for our noism. I've been talking to Professor David 186 00:11:06,040 --> 00:11:10,760 Speaker 1: Posen of Columbia Law School about court reform. Biden also said, quote, 187 00:11:11,040 --> 00:11:15,160 Speaker 1: there's some literature among constitutional scholars about the possibility of 188 00:11:15,200 --> 00:11:18,199 Speaker 1: going from one court to another court and not always 189 00:11:18,240 --> 00:11:21,400 Speaker 1: staying on the Supreme Court. But I have made no judgment. 190 00:11:21,920 --> 00:11:24,920 Speaker 1: What is he referring to there. I assume what he 191 00:11:25,000 --> 00:11:28,120 Speaker 1: means by that is that Supreme Court justices at the 192 00:11:28,240 --> 00:11:31,720 Speaker 1: end of their term under a term limits reform would 193 00:11:32,000 --> 00:11:34,920 Speaker 1: ride circuit, which means that they would sit on lower 194 00:11:34,920 --> 00:11:38,200 Speaker 1: federal courts, go around the country serving as a judge 195 00:11:38,400 --> 00:11:41,120 Speaker 1: on the various appellate courts. Could be done maintment ways. 196 00:11:41,160 --> 00:11:43,360 Speaker 1: It's been done in the U s history in Court 197 00:11:43,440 --> 00:11:46,559 Speaker 1: justice Road Circuit in the early Republic, and the basic 198 00:11:46,960 --> 00:11:50,200 Speaker 1: motivation behind it is that it would allow the justices 199 00:11:50,320 --> 00:11:53,840 Speaker 1: to continue to be federal judges even after the expiration 200 00:11:53,840 --> 00:11:56,240 Speaker 1: of their term and that's meant to make the reform 201 00:11:56,280 --> 00:11:58,400 Speaker 1: consistent with the good behavior clause. You get to keep 202 00:11:58,400 --> 00:12:01,320 Speaker 1: your judge ship during good behavior. The funny thing about 203 00:12:01,400 --> 00:12:04,040 Speaker 1: Biden's comment is you just noted. On the one hand, 204 00:12:04,160 --> 00:12:06,920 Speaker 1: he suggested he might be against term limits. On the 205 00:12:06,920 --> 00:12:09,920 Speaker 1: other hand, he suggested the justices might move around to 206 00:12:10,000 --> 00:12:12,960 Speaker 1: different courts. Well, the reason you have justices move around 207 00:12:13,000 --> 00:12:16,720 Speaker 1: to different courts is because you have a term limits reform, 208 00:12:16,800 --> 00:12:19,080 Speaker 1: and you need to do something with the justices at 209 00:12:19,080 --> 00:12:21,040 Speaker 1: the end of their term to allow them to continue 210 00:12:21,040 --> 00:12:24,480 Speaker 1: to be federal judges but non service active full time 211 00:12:24,520 --> 00:12:27,720 Speaker 1: Supreme Court justices. So there's a bit of attention between 212 00:12:27,720 --> 00:12:31,120 Speaker 1: those supermarks. I looked at what Biden actually said about 213 00:12:31,200 --> 00:12:34,120 Speaker 1: term limits. He said, it's a lifetime appointment. And I 214 00:12:34,200 --> 00:12:36,679 Speaker 1: just want to note that the term limits proposals that 215 00:12:36,720 --> 00:12:40,720 Speaker 1: are out there continue to have justices having a lifetime appointment, 216 00:12:40,960 --> 00:12:43,120 Speaker 1: but it's as a federal judge, not necessarily as a 217 00:12:43,160 --> 00:12:46,319 Speaker 1: full time active Supreme Court justice hearing all cases of 218 00:12:46,360 --> 00:12:50,080 Speaker 1: the court heres. So I'd like to think that Biden 219 00:12:50,240 --> 00:12:53,120 Speaker 1: wasn't ruling out term limits when he said that comment, 220 00:12:53,240 --> 00:12:55,280 Speaker 1: because that would seem to me a very strange thing 221 00:12:55,360 --> 00:12:58,040 Speaker 1: to take off the table in advance of the commission, 222 00:12:58,200 --> 00:13:01,080 Speaker 1: and especially given that it's almost low hanging crew at 223 00:13:01,080 --> 00:13:03,040 Speaker 1: this point to do term limits compared to other most 224 00:13:03,040 --> 00:13:07,280 Speaker 1: he might think, let's turn out to jurisdiction stripping, which 225 00:13:07,280 --> 00:13:11,240 Speaker 1: would limit the power of the Court to review certain laws. 226 00:13:11,240 --> 00:13:15,080 Speaker 1: So lawmakers would put a provision in the legislation that 227 00:13:15,200 --> 00:13:18,720 Speaker 1: says this law is outside the bounds of Supreme Court review. 228 00:13:19,320 --> 00:13:21,560 Speaker 1: That's right. There are many forms of jurisdiction stripping, but 229 00:13:21,600 --> 00:13:25,840 Speaker 1: the basic idea is to disempower the Court from hearing 230 00:13:26,120 --> 00:13:29,040 Speaker 1: that sort of case at all. So this is another 231 00:13:29,360 --> 00:13:34,920 Speaker 1: solution that only deals with future federal laws. Potentially, jurisdiction 232 00:13:35,000 --> 00:13:38,040 Speaker 1: stripping could apply to existing laws as well, but you're 233 00:13:38,080 --> 00:13:39,800 Speaker 1: right one it would. It would be very hard to 234 00:13:39,880 --> 00:13:43,959 Speaker 1: draft a jurisdiction stripping provision to cover only what the 235 00:13:44,040 --> 00:13:46,880 Speaker 1: proponents wanted to cover and nothing else than too, there 236 00:13:46,880 --> 00:13:50,280 Speaker 1: would be constituental challenges to any such effort. There's an 237 00:13:50,280 --> 00:13:55,040 Speaker 1: extremely complex literature on jurisdiction stripping, and everyone agrees that 238 00:13:55,080 --> 00:13:58,320 Speaker 1: Congress can't dictate the outcome of a specific case, but 239 00:13:58,400 --> 00:14:01,240 Speaker 1: that has some power to prevent the Court from hearing 240 00:14:01,520 --> 00:14:04,880 Speaker 1: various other general categories of cases in its appellate jurisdiction. 241 00:14:04,960 --> 00:14:07,400 Speaker 1: But in between those polls there's a lot of disagreement, 242 00:14:07,720 --> 00:14:09,800 Speaker 1: and as far as what it would cover, if it 243 00:14:09,840 --> 00:14:13,200 Speaker 1: could be done successfully, it would only insulate some swaths 244 00:14:13,360 --> 00:14:16,360 Speaker 1: of legislation that the future Democratic Congress might try to pass. 245 00:14:16,760 --> 00:14:18,960 Speaker 1: Most people think about the Green New Deal or healthcare 246 00:14:19,000 --> 00:14:21,720 Speaker 1: reforms areas that the Congress might try to insulate from 247 00:14:21,720 --> 00:14:24,520 Speaker 1: court review. But it's long been known that Congress has 248 00:14:24,560 --> 00:14:28,040 Speaker 1: pretty broad powers to do jurisdiction stripping. There's been something 249 00:14:28,040 --> 00:14:31,239 Speaker 1: of a taint on the idea because it was opponents 250 00:14:31,240 --> 00:14:33,560 Speaker 1: of civil rights in the middle of the twentieth century 251 00:14:33,680 --> 00:14:36,400 Speaker 1: who are the most forceful advocates jurisdictions stripping, trying to 252 00:14:36,400 --> 00:14:39,320 Speaker 1: prevent the Court from making further civil rights rulings. But 253 00:14:39,360 --> 00:14:42,280 Speaker 1: there's nothing inherently partisan about the idea. It could be 254 00:14:42,320 --> 00:14:45,080 Speaker 1: applied to progressive ends as well as the reactionary ends, 255 00:14:45,080 --> 00:14:47,360 Speaker 1: and it seems to be getting some some support, at 256 00:14:47,440 --> 00:14:51,280 Speaker 1: least among liberal legal scholars. Chief Justice John Roberts wrote 257 00:14:51,320 --> 00:14:54,600 Speaker 1: about jurisdiction stripping when he was at the Justice Department. 258 00:14:55,120 --> 00:14:57,840 Speaker 1: Did he find that it was constitutional? There is no 259 00:14:58,080 --> 00:15:00,920 Speaker 1: all purpose general answer as to the k fdationality, because 260 00:15:01,120 --> 00:15:03,800 Speaker 1: much depends on the specifics. As I recall, he noted 261 00:15:03,840 --> 00:15:06,840 Speaker 1: that Congress has brought powers to due jurisdiction scripting and 262 00:15:07,040 --> 00:15:09,400 Speaker 1: seemed to take a fairly expanse of view of Congress's 263 00:15:09,400 --> 00:15:11,680 Speaker 1: authority to do it. But you know he didn't purport 264 00:15:11,720 --> 00:15:14,080 Speaker 1: to give an all purpose answer as to its constitution algy. 265 00:15:14,360 --> 00:15:19,480 Speaker 1: Another proposal is imposing a supermajority requirement for the Court's 266 00:15:19,600 --> 00:15:22,760 Speaker 1: vote in certain high profile cases. How would that work? 267 00:15:23,600 --> 00:15:27,960 Speaker 1: So the standard proposal there is for federal statutes, non 268 00:15:28,040 --> 00:15:31,400 Speaker 1: for state statutes or for federal executive actions, there would 269 00:15:31,400 --> 00:15:35,160 Speaker 1: be a requirement that to invalid the statute, the Court 270 00:15:35,240 --> 00:15:37,400 Speaker 1: not just do it by a simple majority vote as 271 00:15:37,520 --> 00:15:41,600 Speaker 1: is currently practiced, but some kind of supermajority threshold two 272 00:15:41,640 --> 00:15:45,000 Speaker 1: thirds potentially. This idea has been around for a long time. 273 00:15:45,120 --> 00:15:47,600 Speaker 1: The House in the eight hundreds, if I recall, correctly 274 00:15:48,000 --> 00:15:51,280 Speaker 1: endorsed a version of it. In North Dakota and Nebraska 275 00:15:51,440 --> 00:15:55,320 Speaker 1: right now. It's how their state high courts operate, and 276 00:15:55,400 --> 00:15:57,920 Speaker 1: it would make it harder for the Supreme Court to 277 00:15:57,960 --> 00:16:00,840 Speaker 1: wield the most awesome power wheel, which is to strike 278 00:16:00,880 --> 00:16:04,680 Speaker 1: down federal legislation as I'm constitutional, and so if you 279 00:16:04,720 --> 00:16:07,760 Speaker 1: had a Green Deal again or major healthcare reform done 280 00:16:07,760 --> 00:16:10,560 Speaker 1: by statute, court would have to get not justified four 281 00:16:10,560 --> 00:16:12,840 Speaker 1: but the six three or seven to or whatever it 282 00:16:12,920 --> 00:16:14,520 Speaker 1: is to strike it down. So if you want to 283 00:16:14,520 --> 00:16:17,360 Speaker 1: see the Court striking down less that Congress does and 284 00:16:17,400 --> 00:16:21,680 Speaker 1: restore legislative supremacy over the lowmaking process, then there's something 285 00:16:21,680 --> 00:16:26,480 Speaker 1: appealing about it. Would it survive legal challenges? This too 286 00:16:26,560 --> 00:16:30,120 Speaker 1: is contested. There are reasonable arguments, I think, on both 287 00:16:30,160 --> 00:16:33,760 Speaker 1: sides of this one against it. Some have suggested that 288 00:16:33,800 --> 00:16:37,160 Speaker 1: it violates the norm of judicial independence or separation of 289 00:16:37,200 --> 00:16:41,400 Speaker 1: powers that Congress not prescribe decision procedures for the Court. 290 00:16:41,520 --> 00:16:43,520 Speaker 1: On the other hand, it has been done at the 291 00:16:43,560 --> 00:16:47,600 Speaker 1: state level, and Congress does have broad control to organize 292 00:16:47,640 --> 00:16:49,840 Speaker 1: the Court's functions in a lot of ways. We just 293 00:16:49,840 --> 00:16:52,800 Speaker 1: talked about stripping jurisdiction to hear whole sorts of cases, 294 00:16:53,120 --> 00:16:55,640 Speaker 1: and it's at least plausible that Congress could do this. 295 00:16:55,840 --> 00:16:58,080 Speaker 1: I should not clearly constitution would be if the Court 296 00:16:58,120 --> 00:17:01,760 Speaker 1: itself adopted some kind of warm to this effect. It's 297 00:17:01,760 --> 00:17:04,720 Speaker 1: a contested issue, and the proposal, as far as I 298 00:17:04,760 --> 00:17:09,160 Speaker 1: can tell remains a kind of academic darling amongst some 299 00:17:09,359 --> 00:17:12,880 Speaker 1: liberal scholars, but hasn't got much traction in our politics yet. 300 00:17:12,920 --> 00:17:14,720 Speaker 1: So I don't think it's likely to come out of 301 00:17:14,760 --> 00:17:18,240 Speaker 1: a Biden commission. But it is a pretty straightforward response 302 00:17:18,359 --> 00:17:21,720 Speaker 1: to the concern that the Court is striking down speaking 303 00:17:21,760 --> 00:17:25,840 Speaker 1: of something that hasn't gained traction. Balanced bench was advocated 304 00:17:25,880 --> 00:17:28,560 Speaker 1: by Pete Buddha, Judge when he was running for president. 305 00:17:29,000 --> 00:17:32,359 Speaker 1: So the Court would start with ten justices, five chosen 306 00:17:32,359 --> 00:17:36,080 Speaker 1: by Democrats and five by Republicans with lifetime appointments to 307 00:17:36,080 --> 00:17:39,280 Speaker 1: the court. Then those ten justices would select an additional 308 00:17:39,320 --> 00:17:42,359 Speaker 1: five from the federal appeals courts who would join the 309 00:17:42,400 --> 00:17:45,199 Speaker 1: Supreme Court for one year terms. Do you think that 310 00:17:45,200 --> 00:17:49,760 Speaker 1: would work? That version of a partisan balance requirement was 311 00:17:50,400 --> 00:17:53,439 Speaker 1: endorsed by Mayor Pete Rong on a Lower Review article 312 00:17:53,520 --> 00:17:55,840 Speaker 1: that had come up with that idea. I want to 313 00:17:55,880 --> 00:17:58,120 Speaker 1: say that it could be done in other ways. For example, 314 00:17:58,520 --> 00:18:00,080 Speaker 1: it doesn't need to be the case that the her 315 00:18:00,160 --> 00:18:03,960 Speaker 1: injustices select some subset of justices to join them. It 316 00:18:03,960 --> 00:18:06,080 Speaker 1: could all be done through the Senate and the President. 317 00:18:06,400 --> 00:18:10,119 Speaker 1: But in principle of partisan balance requirement, strikes me as 318 00:18:10,160 --> 00:18:13,560 Speaker 1: another plausible option here, given what we were talking about earlier, 319 00:18:13,640 --> 00:18:17,280 Speaker 1: and this too could be done many different ways. For example, 320 00:18:17,840 --> 00:18:21,560 Speaker 1: who gets to select the justices from which party? Has 321 00:18:21,600 --> 00:18:25,160 Speaker 1: been a matter of some dispute. Would senators from each 322 00:18:25,200 --> 00:18:27,560 Speaker 1: party draw up a list from which the president would choose. 323 00:18:28,080 --> 00:18:30,760 Speaker 1: A lot of judges don't affiliate with one or another 324 00:18:30,800 --> 00:18:33,560 Speaker 1: party to preserve their appearance of neutrality, So how would 325 00:18:33,560 --> 00:18:37,080 Speaker 1: you classify those judges? What have judges switched parties or 326 00:18:37,119 --> 00:18:41,440 Speaker 1: became affiliated as independent so as the you know, circumvented requirements. 327 00:18:41,600 --> 00:18:44,680 Speaker 1: There are a lot of questions at the level of detail, 328 00:18:45,000 --> 00:18:46,879 Speaker 1: but in principle I could see this coming out of 329 00:18:46,880 --> 00:18:49,399 Speaker 1: a Biden commission too, because by its very nature and 330 00:18:49,480 --> 00:18:51,600 Speaker 1: by its very label, a partisan balance requirement is meant 331 00:18:51,640 --> 00:18:55,399 Speaker 1: to transcend partisan politics and therefore ought to have some 332 00:18:55,480 --> 00:18:58,840 Speaker 1: bi partisan appeal. I would think. There's also a suggestion 333 00:18:58,960 --> 00:19:01,439 Speaker 1: of a lottery system um, which seems a little odd 334 00:19:01,440 --> 00:19:04,480 Speaker 1: for the highest court in the land. The proposal calls 335 00:19:04,520 --> 00:19:07,240 Speaker 1: for every judge on the federal appeals courts to also 336 00:19:07,359 --> 00:19:10,600 Speaker 1: be appointed as an associate justice on the Supreme Court, 337 00:19:11,000 --> 00:19:13,760 Speaker 1: and then every two weeks, a panel of nine justices 338 00:19:13,800 --> 00:19:17,679 Speaker 1: would be selected randomly to hear cases, with each panel 339 00:19:17,760 --> 00:19:20,720 Speaker 1: limited to no more than five judges nominated by a 340 00:19:20,800 --> 00:19:23,800 Speaker 1: president of the same political party. This seems like there 341 00:19:23,800 --> 00:19:27,000 Speaker 1: would be no consistency on the court. I might say 342 00:19:27,040 --> 00:19:29,439 Speaker 1: that we currently have a version of a lottery system 343 00:19:29,680 --> 00:19:34,200 Speaker 1: today in that when seats open is a function of 344 00:19:34,240 --> 00:19:37,879 Speaker 1: the contingencies of when people happen to die in strategic 345 00:19:37,880 --> 00:19:40,919 Speaker 1: were timed by certain justices, and the fact, you know, 346 00:19:40,960 --> 00:19:44,520 Speaker 1: the Courts Republican does not track electoral results at all. 347 00:19:44,640 --> 00:19:46,639 Speaker 1: So I just want to know there is a somewhat 348 00:19:46,720 --> 00:19:49,720 Speaker 1: random and arbitrary character to the competition of the Court 349 00:19:49,840 --> 00:19:54,040 Speaker 1: today that doesn't justify institutionalizing a lottery method. I think 350 00:19:54,200 --> 00:19:59,120 Speaker 1: it's a very clever proposal. Academics generally like randomization as 351 00:19:59,119 --> 00:20:03,600 Speaker 1: a strategy to get around perceptions of imbalance in institutions. 352 00:20:03,600 --> 00:20:06,639 Speaker 1: But as you said, if this one seems to cut 353 00:20:06,680 --> 00:20:09,600 Speaker 1: against strong norms and instincts that the Court should have 354 00:20:09,720 --> 00:20:13,760 Speaker 1: some stability, some regular cast of justices who can develop 355 00:20:13,880 --> 00:20:18,280 Speaker 1: a coherent jurisprudence together and afford more continuity for the 356 00:20:18,320 --> 00:20:21,120 Speaker 1: Court as an institution. So I guess I always thought 357 00:20:21,119 --> 00:20:24,000 Speaker 1: of this solution as very smart and also very gimmicky, 358 00:20:24,119 --> 00:20:27,080 Speaker 1: and therefore unlikely to come out of a bipartisan commission 359 00:20:27,200 --> 00:20:30,359 Speaker 1: of any kind. But precisely for the reason you identify 360 00:20:30,520 --> 00:20:33,440 Speaker 1: that it would shake up the court, you know, routinely 361 00:20:33,920 --> 00:20:36,600 Speaker 1: it has been attractive to some people who think the 362 00:20:36,600 --> 00:20:40,000 Speaker 1: Court is far too powerful in American life, and like 363 00:20:40,119 --> 00:20:43,320 Speaker 1: the idea of kind of destabilizing the institution, at least 364 00:20:43,359 --> 00:20:46,520 Speaker 1: in the sense of not allowing the same small set 365 00:20:46,520 --> 00:20:50,120 Speaker 1: of individuals to exercise such awesome power for so long. 366 00:20:50,560 --> 00:20:54,000 Speaker 1: So if you're generally comfortable with judicial review as practiced today, 367 00:20:54,240 --> 00:20:57,399 Speaker 1: like you're uncomfortable with the extreme power wielded by a 368 00:20:57,440 --> 00:21:00,560 Speaker 1: small set of specific individuals, there's something that's feeling about 369 00:21:00,560 --> 00:21:02,880 Speaker 1: moving to a lottery system. But again, I think it's 370 00:21:03,080 --> 00:21:05,159 Speaker 1: perilous to make political predictions, but it seems to me 371 00:21:05,240 --> 00:21:07,960 Speaker 1: unlikely to come out of the common Which of these 372 00:21:08,440 --> 00:21:14,760 Speaker 1: ideas do you favor? I think term limits are basically 373 00:21:14,760 --> 00:21:17,480 Speaker 1: a no brainer at this point, and indeed I haven't 374 00:21:17,480 --> 00:21:22,320 Speaker 1: really even seen serious academic objections to the idea, except 375 00:21:22,359 --> 00:21:24,320 Speaker 1: for people saying that I have to be done by 376 00:21:24,320 --> 00:21:28,439 Speaker 1: constitutional amendment. On the merits of the proposal um, it 377 00:21:28,480 --> 00:21:32,720 Speaker 1: seems to me compelling to uh limit justices to eighteen years, 378 00:21:32,760 --> 00:21:35,400 Speaker 1: which is a very long term. Actually comparatively, most high 379 00:21:35,440 --> 00:21:38,040 Speaker 1: court judges abroad don't get that much. So we have 380 00:21:38,080 --> 00:21:41,640 Speaker 1: adequate protections for digicial independence, and we wouldn't have such 381 00:21:41,760 --> 00:21:46,080 Speaker 1: randomness uh and potential unfairness in who gets on the 382 00:21:46,080 --> 00:21:49,280 Speaker 1: court when it's still a disaster Democrats haven't recovered from that. 383 00:21:49,359 --> 00:21:53,359 Speaker 1: Jimmy Carter got no picks in his one term as president, 384 00:21:53,359 --> 00:21:56,040 Speaker 1: whereas President Trump now has three. I don't think any 385 00:21:56,040 --> 00:21:59,600 Speaker 1: system designer would allow for that. Uh. If starting a 386 00:21:59,640 --> 00:22:02,479 Speaker 1: news so term limit seemed to me, UM quite compelling, 387 00:22:02,480 --> 00:22:04,600 Speaker 1: I could go on with more and more resent Justices, 388 00:22:04,800 --> 00:22:07,720 Speaker 1: for example, are sting on the bench today much longer 389 00:22:07,720 --> 00:22:10,280 Speaker 1: than they used to in the past. Prior to nineteen seventy, 390 00:22:10,400 --> 00:22:13,800 Speaker 1: justices were on the bench for about fifteen years on average. 391 00:22:14,240 --> 00:22:16,439 Speaker 1: Since nineteen seventy, it's been over twenty five years on 392 00:22:16,480 --> 00:22:18,879 Speaker 1: average that justices have stayed on the court. So we 393 00:22:18,880 --> 00:22:21,320 Speaker 1: also have a problem in lack of lack of turnover. 394 00:22:22,119 --> 00:22:26,240 Speaker 1: That said, UM, I'm also very worried about the way 395 00:22:26,280 --> 00:22:30,000 Speaker 1: in which the Court has become unmoored from any kind 396 00:22:30,000 --> 00:22:33,919 Speaker 1: of democratic legitimacy, given how imbalanced it's become. UM. I 397 00:22:33,960 --> 00:22:37,560 Speaker 1: also worried that the Court's election lawl links are entrenching 398 00:22:38,560 --> 00:22:43,640 Speaker 1: a minority party's rule in ways that UH have profound 399 00:22:43,680 --> 00:22:47,840 Speaker 1: anti democratic potential going forward. So I think if you 400 00:22:47,880 --> 00:22:50,320 Speaker 1: were present, Biden, you have to remain open to expanding 401 00:22:50,320 --> 00:22:53,800 Speaker 1: the court or to super majority voting requirements are other 402 00:22:53,840 --> 00:22:58,199 Speaker 1: ways to get at UM this imbalance and the Court's 403 00:22:58,840 --> 00:23:01,959 Speaker 1: extreme power to weep to get in the way of 404 00:23:02,119 --> 00:23:07,160 Speaker 1: democratic majorities. UM. I would start with tournaments, and I 405 00:23:07,160 --> 00:23:10,159 Speaker 1: I feel uncomfortable about everything else, but I think, um, 406 00:23:10,160 --> 00:23:11,720 Speaker 1: it's all got to be on the table. Thanks so 407 00:23:11,800 --> 00:23:14,200 Speaker 1: much for being on the Bloomberg Law Show, David. That's 408 00:23:14,240 --> 00:23:19,680 Speaker 1: constitutional law professor David Posen of Columbia Law School. As 409 00:23:19,720 --> 00:23:23,160 Speaker 1: President Trump voted early in Florida, he continued to cast 410 00:23:23,200 --> 00:23:27,000 Speaker 1: doubt on mail in ballots. Everything was perfect, very strict, 411 00:23:27,760 --> 00:23:29,719 Speaker 1: right by the rules when you send in your ballot. 412 00:23:29,840 --> 00:23:32,120 Speaker 1: Could never be like that, You could never be secure 413 00:23:32,200 --> 00:23:35,439 Speaker 1: like that. A dizzing array of Supreme Court orders and 414 00:23:35,520 --> 00:23:39,280 Speaker 1: opinions has left the rules governing the presidential election in flux. 415 00:23:39,760 --> 00:23:43,080 Speaker 1: This week. In rapid succession, the Court has allowed extra 416 00:23:43,160 --> 00:23:46,040 Speaker 1: time from mail in ballots to arrive in Pennsylvania and 417 00:23:46,080 --> 00:23:50,560 Speaker 1: North Carolina, but rejected calls for a similar extension in Wisconsin, 418 00:23:50,880 --> 00:23:54,119 Speaker 1: with opinions by some of the conservative justices leading to 419 00:23:54,240 --> 00:23:56,480 Speaker 1: questions of whether there will be a Bush v. Gore 420 00:23:56,800 --> 00:23:59,840 Speaker 1: two point oh joining me as Bloomberg new Supreme Court 421 00:24:00,080 --> 00:24:04,280 Speaker 1: porter Greg's store, So Greg. Pennsylvania and North Carolina are 422 00:24:04,280 --> 00:24:08,480 Speaker 1: amongst several pivotal states with legal clashes over ballot deadlines, 423 00:24:08,800 --> 00:24:11,920 Speaker 1: and this week the Court dealt two blows two Republicans 424 00:24:11,960 --> 00:24:15,720 Speaker 1: over mail in ballots in those states. Tell us about it. Yeah, 425 00:24:15,720 --> 00:24:18,960 Speaker 1: they came back to back June. The first one had 426 00:24:19,000 --> 00:24:21,879 Speaker 1: to do with Pennsylvania, and if you recall about a 427 00:24:21,920 --> 00:24:25,320 Speaker 1: week and a half ago, the Court refused to disturb 428 00:24:25,440 --> 00:24:28,680 Speaker 1: this three day extension for ballots to arrive in Pennsylvania. 429 00:24:28,720 --> 00:24:31,040 Speaker 1: That was a four or four vote, and Republicans were 430 00:24:31,040 --> 00:24:34,399 Speaker 1: trying again the block that extension, and they're asking the 431 00:24:34,400 --> 00:24:36,480 Speaker 1: Court to take up their appeal and put it on 432 00:24:36,520 --> 00:24:38,680 Speaker 1: a fast track and they could decide before the election. 433 00:24:39,119 --> 00:24:42,320 Speaker 1: And the Court over three descents, refused to do that. 434 00:24:42,600 --> 00:24:45,879 Speaker 1: In Pennsylvania. The appeal is still pending there and the 435 00:24:45,920 --> 00:24:48,000 Speaker 1: court could take it up later just the same Melito 436 00:24:48,040 --> 00:24:51,160 Speaker 1: SAIDs but the Court's not going to decide that before 437 00:24:51,240 --> 00:24:54,040 Speaker 1: the election. Then the second thing they did just moments 438 00:24:54,080 --> 00:24:57,080 Speaker 1: after that came out of North Carolina, where there's a 439 00:24:57,240 --> 00:25:00,520 Speaker 1: sixth day extension. This one actually adds on to an 440 00:25:00,520 --> 00:25:04,400 Speaker 1: existing three day extensions for ballots to arrive, and the 441 00:25:04,440 --> 00:25:09,960 Speaker 1: Court allowed that extension to stay in place in North Carolina. 442 00:25:10,000 --> 00:25:14,040 Speaker 1: They rejected a Republican to stop at three conservative justices 443 00:25:14,160 --> 00:25:16,680 Speaker 1: that they would have blocked that extension, which was ordered 444 00:25:16,680 --> 00:25:20,960 Speaker 1: by a state elections board. For now, it appears as 445 00:25:20,960 --> 00:25:24,560 Speaker 1: though ballots that arrived as late as signings after the 446 00:25:24,560 --> 00:25:28,040 Speaker 1: election in North Carolina will count tell us about jealous 447 00:25:28,040 --> 00:25:32,200 Speaker 1: as Aldo's statement in the Pennsylvania case and who joined him. 448 00:25:32,400 --> 00:25:35,280 Speaker 1: He was joined by two of the other very conservative justices, 449 00:25:35,359 --> 00:25:39,560 Speaker 1: Thomas and Gorset. He said essentially that he's really troubled 450 00:25:39,560 --> 00:25:42,920 Speaker 1: by this extent and ordered by the Pennsylvania Supreme Court, 451 00:25:42,920 --> 00:25:46,719 Speaker 1: which was interpreting at state constitution. And he pointed, as 452 00:25:46,760 --> 00:25:50,560 Speaker 1: other justices had to a constitutional provision that says that 453 00:25:50,640 --> 00:25:53,600 Speaker 1: the state legislature gets the primary, at least the primary 454 00:25:53,720 --> 00:25:58,119 Speaker 1: role in setting the rules for presidential elections. And he 455 00:25:58,440 --> 00:26:02,159 Speaker 1: strongly suggested he would vote to reverse that ruling, but 456 00:26:02,440 --> 00:26:05,480 Speaker 1: conceded there's not enough time to do it before the election, 457 00:26:05,720 --> 00:26:09,000 Speaker 1: said there will be time another opportunity after the election, 458 00:26:09,040 --> 00:26:12,760 Speaker 1: and he noted that the state has agreed to segregate 459 00:26:12,800 --> 00:26:16,160 Speaker 1: those ballots that arrived late, put them in a different pile, 460 00:26:16,760 --> 00:26:19,760 Speaker 1: so that if the court after the fact decides that 461 00:26:19,880 --> 00:26:23,720 Speaker 1: those ballots shouldn't count, there would be an easy way 462 00:26:23,760 --> 00:26:25,800 Speaker 1: to just subtract them from the total, or at least 463 00:26:25,840 --> 00:26:28,359 Speaker 1: not add them to the total. So if we have 464 00:26:28,400 --> 00:26:32,199 Speaker 1: a really close election where penciling is this swing and 465 00:26:32,240 --> 00:26:35,359 Speaker 1: it's decided by only a few votes, this issue absolutely 466 00:26:35,359 --> 00:26:38,480 Speaker 1: will come back again. So, Greg, where was Justice Amy 467 00:26:38,520 --> 00:26:42,280 Speaker 1: Coney Barrett. She'd been sworn in on Tuesday. Why didn't 468 00:26:42,280 --> 00:26:46,840 Speaker 1: she participate in these cases? Well, according to a statement 469 00:26:46,960 --> 00:26:50,119 Speaker 1: that the court put out, she didn't participate because I'm 470 00:26:50,119 --> 00:26:52,479 Speaker 1: going to quote here of the need for a prompt 471 00:26:52,520 --> 00:26:55,840 Speaker 1: resolution because she has not had time to fully review 472 00:26:55,920 --> 00:26:59,199 Speaker 1: the party's filing. The Republicans rushed to confirm her. The 473 00:26:59,240 --> 00:27:02,840 Speaker 1: president pushper confirmation so that she could be in place 474 00:27:02,880 --> 00:27:06,560 Speaker 1: to decide things like this, and she didn't hear. It's 475 00:27:06,600 --> 00:27:09,680 Speaker 1: not clear at what point she will decide to engage 476 00:27:09,680 --> 00:27:12,600 Speaker 1: in deciding these questions or of course calls for her 477 00:27:12,680 --> 00:27:16,840 Speaker 1: to refuse from these cases. And it's possible, I'm just 478 00:27:16,880 --> 00:27:20,280 Speaker 1: speculating here that she is trying to work through that, 479 00:27:20,400 --> 00:27:22,879 Speaker 1: maybe say something about what she's going to do on 480 00:27:23,080 --> 00:27:25,720 Speaker 1: that question. And that is an explanation for why there's 481 00:27:25,840 --> 00:27:28,719 Speaker 1: a delay, why she didn't take part so far. It's 482 00:27:28,760 --> 00:27:30,960 Speaker 1: a bit of a mystery. It's very much a stay 483 00:27:31,000 --> 00:27:36,159 Speaker 1: tuned and we'll see. You had the conservatives Alito, Gorsech, 484 00:27:36,440 --> 00:27:41,359 Speaker 1: and Thomas joining that statement, but Kavanaugh did not join 485 00:27:41,440 --> 00:27:45,639 Speaker 1: that statement, even though his concurring opinion in Wisconsin case 486 00:27:45,760 --> 00:27:48,520 Speaker 1: has drawn a lot of publicity. So is there any 487 00:27:48,520 --> 00:27:52,840 Speaker 1: indication where Justice Kavanaugh was in the Pennsylvania and North 488 00:27:52,840 --> 00:27:57,800 Speaker 1: Carolina cases? Justice Kavanaugh maybe an even bigger mystery than 489 00:27:58,040 --> 00:28:01,919 Speaker 1: Justice Barrett. So in neither of the case was his 490 00:28:02,000 --> 00:28:04,840 Speaker 1: name mentioned at all. In both cases, the Court put 491 00:28:04,840 --> 00:28:07,360 Speaker 1: out the order for the Court as a whole, and 492 00:28:07,560 --> 00:28:10,760 Speaker 1: some justices that three conservatives chose to say something about 493 00:28:10,800 --> 00:28:14,440 Speaker 1: their views on the case. Kavanaugh did not. It's pretty hard, 494 00:28:14,560 --> 00:28:19,600 Speaker 1: although perhaps not impossible, to swear allowing the North Carolina 495 00:28:19,720 --> 00:28:23,480 Speaker 1: extension while doing what he did on Monday night saying 496 00:28:23,600 --> 00:28:28,080 Speaker 1: he would block the extension in Wisconsin. But there might 497 00:28:28,119 --> 00:28:30,840 Speaker 1: be an explanation that we find out later. There's a 498 00:28:30,880 --> 00:28:32,720 Speaker 1: really good chance that he is going to be the 499 00:28:32,800 --> 00:28:35,879 Speaker 1: deciding voting whatever we have here. We're seeing Chief Justice 500 00:28:36,000 --> 00:28:39,600 Speaker 1: roberts See a lot more reluctant to second guest state 501 00:28:39,680 --> 00:28:42,520 Speaker 1: decisions on election law, a lot less willing to intervene. 502 00:28:42,600 --> 00:28:44,880 Speaker 1: We put them on the side of the Court of Liberals, 503 00:28:44,960 --> 00:28:48,760 Speaker 1: and we're speculating about Justice Barrett. But this may come 504 00:28:48,800 --> 00:28:53,160 Speaker 1: down to the extent to which Justice Kavanaugh is willing 505 00:28:53,200 --> 00:28:56,120 Speaker 1: to overturn something that a state court or a state 506 00:28:56,120 --> 00:29:00,240 Speaker 1: official did and instead to defer to say, every book 507 00:29:00,240 --> 00:29:03,480 Speaker 1: in state legislature. And there's commundications he would die with 508 00:29:03,520 --> 00:29:06,600 Speaker 1: the Republican state legislature. But there's a little more mystery here. 509 00:29:06,880 --> 00:29:11,240 Speaker 1: So let's talk about that Wisconsin case five to three 510 00:29:11,280 --> 00:29:16,560 Speaker 1: decision that rejected Democratic calls to reinstate a six day 511 00:29:16,560 --> 00:29:20,040 Speaker 1: extension for the receipt of mail ballots. Tell us about 512 00:29:20,120 --> 00:29:25,360 Speaker 1: Justice Kavanaugh's concurrence there that drew so much attention. Yeah, 513 00:29:25,640 --> 00:29:28,920 Speaker 1: he wrote a really strong concurrence there, and once he 514 00:29:28,960 --> 00:29:30,840 Speaker 1: said a couple of things. So, first of all, that 515 00:29:31,080 --> 00:29:34,840 Speaker 1: case involved a federal judge, not a state supreme court 516 00:29:34,920 --> 00:29:38,480 Speaker 1: like in Pennsylvania, a federal judge ordering an extension because 517 00:29:38,480 --> 00:29:43,040 Speaker 1: of COVID mail delays, and even Chief Justice Roberts agreed 518 00:29:43,080 --> 00:29:46,400 Speaker 1: with the Conservatives that a federal judge does not have 519 00:29:46,480 --> 00:29:48,880 Speaker 1: the authorities to do that when there's a clear that 520 00:29:49,040 --> 00:29:53,160 Speaker 1: story command, and especially when it's happening right before an election. 521 00:29:53,480 --> 00:29:56,720 Speaker 1: Justice Kavanaugh wrote an opinion explaining that he also went 522 00:29:56,880 --> 00:30:00,920 Speaker 1: further and cited the bushby Gore this visions from two 523 00:30:00,960 --> 00:30:04,160 Speaker 1: thousand and in particular concurrence in that case by conservative 524 00:30:04,200 --> 00:30:07,400 Speaker 1: justice where he argued for the ability of the Supreme 525 00:30:07,400 --> 00:30:10,680 Speaker 1: Court to overturned decisions by state supreme courts and not 526 00:30:10,880 --> 00:30:13,240 Speaker 1: just federal, which of course is what happened in Whish 527 00:30:13,400 --> 00:30:16,600 Speaker 1: versus Score. And along the way, Justice Kavanaugh said a 528 00:30:16,600 --> 00:30:19,160 Speaker 1: few things that how did a bit like Donald Trump. 529 00:30:19,360 --> 00:30:21,920 Speaker 1: He talked about how if there were late ballots that 530 00:30:22,000 --> 00:30:25,840 Speaker 1: could be charges of ringed election. He talked about chaos, 531 00:30:25,880 --> 00:30:29,400 Speaker 1: the suspicions of impropriety. He talked about states wanting to 532 00:30:29,440 --> 00:30:31,480 Speaker 1: be able to announce the results of an election on 533 00:30:31,600 --> 00:30:35,480 Speaker 1: election night, there were some errors in the opinion, and 534 00:30:35,960 --> 00:30:41,400 Speaker 1: Justice Elena Kagan in her dissent, was pretty critical of Kavanaugh. 535 00:30:42,000 --> 00:30:43,840 Speaker 1: She sure was. She took on a lot of those 536 00:30:43,880 --> 00:30:46,600 Speaker 1: things I just described, including one other things you said, 537 00:30:46,600 --> 00:30:48,680 Speaker 1: which is that there would be a perception that the 538 00:30:48,720 --> 00:30:51,080 Speaker 1: results of an election which flipped He used that were 539 00:30:51,240 --> 00:30:54,720 Speaker 1: slipped a later arriving ballot overturned the earlier results, and 540 00:30:54,960 --> 00:30:57,280 Speaker 1: she shot back that there are no results to flip 541 00:30:57,320 --> 00:30:59,600 Speaker 1: into all the valid those are counted, because she said 542 00:30:59,600 --> 00:31:02,640 Speaker 1: nothing could be more suspicious or improper than refusing the 543 00:31:02,760 --> 00:31:06,080 Speaker 1: talent vote just because the clock struck twelve on election night. 544 00:31:06,320 --> 00:31:09,800 Speaker 1: Thanks Greg, That's Bloomberg New Supreme Court Reporter Greg Store 545 00:31:10,120 --> 00:31:12,360 Speaker 1: And that's it for this edition of the Bloomberg Law Show. 546 00:31:12,640 --> 00:31:14,800 Speaker 1: Remember you can always get the latest legal news on 547 00:31:14,840 --> 00:31:18,760 Speaker 1: our Bloomberg Lawn Podcast. You can find them on iTunes, SoundCloud, 548 00:31:18,840 --> 00:31:22,600 Speaker 1: or a Bloomberg dot com slash podcast Slash Law. I'm 549 00:31:22,680 --> 00:31:25,600 Speaker 1: June Grasso. Thanks so much for listening, and remember to 550 00:31:25,680 --> 00:31:28,160 Speaker 1: tune to The Bloomberg Lawn Show every week night at 551 00:31:28,160 --> 00:31:30,840 Speaker 1: ten pm Eastern right here on Bloomberg Radio.