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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. Justice Anthony Kennedy

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Speaker 1: has been the swing vote on the Supreme Court for

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Speaker 1: the past dozen years. His retirement after more than thirty

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Speaker 1: years on the bench gives President Trump the opportunity to

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Speaker 1: appoint a successor that could create the most conservative court

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Speaker 1: in generations. Here's Trump speaking at a rally in Fargo,

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Speaker 1: North Dakota, yesterday. We have a pick to come up.

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Speaker 1: We have to pick a great one. We have to

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Speaker 1: pick one that's going to be there for forty years,

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Speaker 1: forty five years. My guest is Michael Dorriff, a professor

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Speaker 1: at Cornell Law School who clerk for Justice Kennedy. Mike,

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Speaker 1: describe Justice Kennedy's legacy. I think the first thing you

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Speaker 1: have to point to our is majority opinions for the

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Speaker 1: court in four rights cases recognizing the rights of gain

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Speaker 1: lesbian Americans initially not to be intruded upon in the bedroom,

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Speaker 1: and then the right to marriage. UH. In addition, he

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Speaker 1: was a very strong supporter of freedom of speech that

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Speaker 1: sometimes swung liberal, it sometimes swung what we would call

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Speaker 1: conservative in a case like Citizens United, which he authored.

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Speaker 1: And he was a staunch believer in federalism and limits

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Speaker 1: on the federal government in favor of state power. I

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Speaker 1: think all of those aspects of his legacy will likely survive. UH.

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Speaker 1: There are other decisions where he cast a decisive vote

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Speaker 1: where I think it's less clear tell us about those.

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Speaker 1: So he uh cast the fifth vote, joining the more

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Speaker 1: liberal justices. UH. In an abortion case recently out of Texas,

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Speaker 1: of course, in which was the r I clerk, he

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Speaker 1: joined fellow Republican appointees Sandra Day O'Connor and David Suitor

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Speaker 1: to uphold the central holding of Roe versus Wade, as

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Speaker 1: a court called it. So, I think the the abortion

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Speaker 1: right is very much potentially in jeopardy based on, you know,

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Speaker 1: the assumption that UH President Trump named somebody UH considerably

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Speaker 1: more conservative on that issue than Justice Kennedy was. UH.

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Speaker 1: He was generally skeptical of race based affirmative action, but

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Speaker 1: he didn't rule it out. And in a case from Texas,

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Speaker 1: a couple of years ago, he actually approved a University

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Speaker 1: of Texas, uh, from an action program. I think that's

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Speaker 1: quite likely to be overruled at some point in the

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Speaker 1: not too distant future. Uh. And then he was not

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Speaker 1: a categorical opponent of the death penalty, but he did

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Speaker 1: rule it unconstitutional and a variety of circumstances, including the

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Speaker 1: juvenile death penalty. And I think those those decisions are vulnerable.

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Speaker 1: Do you think that gay rights is not vulnerable? Well,

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Speaker 1: I think it's technically vulnerable, but I don't see a

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Speaker 1: lot of appetite on the current court to revisit that,

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Speaker 1: partly because unlike abortion, which has remained divisive since the

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Speaker 1: Supreme Court recognized the right in ninety three, the country

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Speaker 1: has moved substantially. Even in the few years since the

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Speaker 1: Supreme Court recognized right to same sex marriage. I believe

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Speaker 1: that UM, in every state except Alabama now more people

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Speaker 1: favor than oppose legal same sex marriage, and nationally it's

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Speaker 1: something like so now, of course, the Supreme Court is

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Speaker 1: not simply a reflection of public opinion polls. And uh,

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Speaker 1: you know they're uh this possibility they could they could

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Speaker 1: reverse the result. It was after all, five to four.

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Speaker 1: But I don't think they're going to move aggressively in

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Speaker 1: that direction. You clerk for Justice Kennedy tell us a

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Speaker 1: little bit about what he's like. He's a extremely professional

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Speaker 1: person in his public setting. So he's always very courteous

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Speaker 1: to lawyer as he asks tough questions, but always um

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Speaker 1: in a in a fair manner. Back in chambers. He's

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Speaker 1: you know, was a terrific boss to work for. He

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Speaker 1: has a wonderful sense of humor. Um, he works hard,

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Speaker 1: but you know, it's uh, it's always clear that he

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Speaker 1: wants people to have their family lives. He was very

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Speaker 1: devoted to his his own family, his wife, his adult children,

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Speaker 1: his grandchildren. Uh. So he was just a kind of

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Speaker 1: all around UM, you know, stand up guy. Why I

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Speaker 1: would put it, you mentioned his family, and I believe

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Speaker 1: he mentioned his family to to some people about one

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Speaker 1: of the reasons why he might be retiring. Now, do

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Speaker 1: you have any insight into why he chose this moment

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Speaker 1: to retire? Um? Not in particular. I mean, you know,

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Speaker 1: if we were talking about um, virtually anybody else in

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Speaker 1: their early eighties and any other line of work, you

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Speaker 1: wouldn't even think to ask the question why you're retiring?

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Speaker 1: Is what that makes sense? Uh, this is an appropriate

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Speaker 1: point in your career. Most people want to step down

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Speaker 1: while they can still do the job, before their faculties declined,

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Speaker 1: while they have some time to spend with their family.

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Speaker 1: So I think for Supreme Court justices at the reasons

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Speaker 1: to retire when they do are pretty much like those

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Speaker 1: for anybody else. Now, we heard President Trump say that

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Speaker 1: he asked Justice Kennedy for some advice or for whom

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Speaker 1: he would like to see on the court. Do you

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Speaker 1: have any suspicions about who that might be, well, about

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Speaker 1: who who we might want to see replace him? Well,

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Speaker 1: I think Justice Kennedy would want to be replaced by

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Speaker 1: somebody who shares his views to the extent possible. I

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Speaker 1: think that's probably not going to happen with respect to

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Speaker 1: Justice Kennedy's uh broad views about social issues. That is,

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Speaker 1: I think the President is made clear he wants to

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Speaker 1: nominate somebody who's more of a down the line social conservative. Um.

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Speaker 1: I think foremost of course, just as Kennedy would wants

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Speaker 1: somebody who respects the traditions and integrity of the Court.

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Speaker 1: And I think you're likely to see someone like that.

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Speaker 1: That is, you know, I, UM, I think someone like

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Speaker 1: Justice Gorsuch, who is professionally extremely qualified, person of intellect

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Speaker 1: and integrity, but very very conservative. Well, so what names

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Speaker 1: are you hearing? Well, I see the same list as

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Speaker 1: everybody else. I'm hoping for more insight. Well let me so,

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Speaker 1: I'll give you one one little piece of insight, not

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Speaker 1: based on any kind of insight information, but just a

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Speaker 1: little bit of arithmetic. So you've heard the President say

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Speaker 1: that he wanted to pick somebody who's going to be

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Speaker 1: on the court, uh for forty or forty five years. Uh.

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Speaker 1: Some of the names on his list are people in

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Speaker 1: their sixties, and quite a few are in their fifties.

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Speaker 1: I'm in my fifties myself. I would think anybody who's

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Speaker 1: at least as old as I am, or or older

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Speaker 1: has got to be ruled out. I mean, I can't

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Speaker 1: imagine serving until I would be nine. Uh. So I

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Speaker 1: think that that means he's going to try to skew

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Speaker 1: it towards one of the younger people on that list,

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Speaker 1: your professor of constitutional law. Has the Court become more

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Speaker 1: polarized in recent years, despite what Chief Justice John Roberts

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Speaker 1: says that he prefers to avoid those stark divides. Yes,

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Speaker 1: then no, So you know a lot of very important

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Speaker 1: landmark decisions from the past. We're five to four. You

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Speaker 1: can see that going back, uh earlier in the twentieth

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Speaker 1: century for example. UM. I think what's happened in recent

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Speaker 1: years that was not the case previously is that the

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Speaker 1: five four divisions tract not only differences in jurisprudential philosophy,

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Speaker 1: but the party affiliation of the president who appointed the justices,

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Speaker 1: so that even before Justice Kennedy announced he was stepping down,

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Speaker 1: the four uh most liberal justices were all appointed by Democrats,

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Speaker 1: and the five most conservative justice this is a role

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Speaker 1: appointed by Republicans uh, and that I think has tended

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Speaker 1: to UH emphasize a point that the Chief Justice would

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Speaker 1: like to de emphasize, which is the role of political considerations,

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Speaker 1: not in the sense of narrow part as an advantage necessarily,

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Speaker 1: but political in the sense of people having ideologies and

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Speaker 1: values that differ by party in the consideration of their cases.

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Speaker 1: Thank you so much, Michael for those insights. That's Michael Dorp.

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Speaker 1: He's a professor at Cornell Law School teachers constitutional law.

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Speaker 1: On the last day of the Supreme Court's term yesterday

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Speaker 1: in a five to four decision with the conservative justices

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Speaker 1: in the majority and the liberal justices in the minority.

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Speaker 1: The Supreme Court rule that government employees have a constitutional

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Speaker 1: right not to pay union fees. The Court overturned a

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Speaker 1: forty year old precedent that had let public sector unions

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Speaker 1: collect so called agency fees from non members to help

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Speaker 1: cover the cost of collective bargaining. Here's Democratic House Minority

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Speaker 1: Leader ce Pelosi. Shame on this court for this decision,

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Speaker 1: especially on top of the Citizens United decision under Mine's

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Speaker 1: First Amendment. Under my stared discisive undermines our democracy. Joining

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Speaker 1: us is the named plaintiff in the case, Mark Janis.

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Speaker 1: He's an Illinois state government employee who is not a

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Speaker 1: union member. Thanks for being here, Mark, Oh, you're welcome.

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Speaker 1: Thank you for having me. You weren't the original plaintiff

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Speaker 1: in the case, which was brought by the Illinois governor.

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Speaker 1: I believe how did you join the case and get involved? Well?

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Speaker 1: I got involved because I got fed up with pain

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Speaker 1: of fee to a union just to keep my job,

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Speaker 1: and because without paying the fee, I wouldn't have a job,

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Speaker 1: and I just felt that was totally wrong. Um, So,

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Speaker 1: how much how much was the fee you paid. It's

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Speaker 1: approximately six a year. And UM, there are major costs

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Speaker 1: involved um with bringing a case to the Supreme Court.

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Speaker 1: How did you managed to bring the case? Who was

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Speaker 1: your support? Well, my support was the Liberty Justice Center,

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Speaker 1: who I approached and was able to find out about,

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Speaker 1: you know, through a variety of sources, and we began

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Speaker 1: a discussion and they were willing to take on the case,

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Speaker 1: and and then it went on from there, uh to

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Speaker 1: yesterday's decision. So explain this for us UM. As UH,

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Speaker 1: an employee of public employee, you get take advantage of

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Speaker 1: the unions negotiated pay raises, health benefits, pension. Why should

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Speaker 1: you not have to pay some kind of fee for

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Speaker 1: the advantages that you get. Well, because it's not my choice. UH,

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Speaker 1: And I don't have any ability to say yes to

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Speaker 1: the union versus no to the union. UM. It's in Illinois.

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Speaker 1: It's a state law that if if I work for

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Speaker 1: the state of Illinois, m I'm covered under this inclusive

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Speaker 1: collective bargaining agreement. UH, something the unions asked for and

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Speaker 1: received quite a years ago. And the people like myself

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Speaker 1: that may not agree with everything that the union does

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Speaker 1: and what it says, we don't have a choice and

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Speaker 1: we don't have a voice in that matter. So we're

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Speaker 1: you know, this case is about that work or freedom

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Speaker 1: and the like. Um. I find it quite interesting with

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Speaker 1: you know, Nancy's uh remarks that you played at the

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Speaker 1: at the beginning of this uh you know, is that

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Speaker 1: so my First Amendment rights should be trampled on, just

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Speaker 1: you know, in order to keep a union and keep

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Speaker 1: what it wants to do. But you still have an

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Speaker 1: answer then, but why then take advantage of the negotiation.

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Speaker 1: I'm not talking about the union, uh, you know, going

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Speaker 1: out and endorsing people or anything like that. But your

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Speaker 1: cost was just for equivalent of what the union was

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Speaker 1: allegedly getting you by its negotiations. Well, let's let's look

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Speaker 1: at the at the facts. Yes, they say it's for

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Speaker 1: collective bargaining, but when we asked for an accounting of

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Speaker 1: it as part of or due diligence, we could never

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Speaker 1: really get a good solid accounting of where all this

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Speaker 1: money went. And I would also have to say that

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Speaker 1: if you have a bargaining committee that goes to negotiate

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Speaker 1: a contract, and let's say you have ten people in

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Speaker 1: that bargaining committee, is there such an increased cost to

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Speaker 1: bargain for five thousand people versus ten thousand people, I

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Speaker 1: would say, you've still got the same amount of costs,

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Speaker 1: and you know there's there's no reason to for the

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Speaker 1: extra fees. Your your your basis cost is already covered.

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Speaker 1: Many people say that this is a severe blow for unions.

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Speaker 1: Do you agree with that? Absolutely not. Unions are still

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Speaker 1: going to exist. Uh. They still will be able to

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Speaker 1: collect a bargain. They can still go out and represent

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Speaker 1: the people that they want to represent and the people

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Speaker 1: that voluntarily, you know, want to join the union and

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Speaker 1: pay the fee. That has not changed at all. And

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Speaker 1: it's up to the union, whichever union it might be

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Speaker 1: in the public sector, you know, to make that case

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Speaker 1: to the membership and you know, produce a product if

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Speaker 1: you will, that says, you know, we have something that

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Speaker 1: that I think you ought to buy into and give

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Speaker 1: us that choice as to whether to buy into it

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Speaker 1: or not. What specifically did you object to that the

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Speaker 1: union did that you said, was you know you disagreed

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Speaker 1: with Well, it was it was a number of issues.

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Speaker 1: It was a way they negotiated. There wasn't a what

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Speaker 1: I felt a lot of transparency. Uh, there were issues

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Speaker 1: of seniority, there was issues of overtime, and a number

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Speaker 1: of other issues that, um, you know, I just I

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Speaker 1: just couldn't abide by and and understand. In the state

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Speaker 1: of Illinois, which is in terrible financial position, yet they

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Speaker 1: kept going out, you know, trying to get more money,

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Speaker 1: and when they couldn't get it, they would go out

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Speaker 1: and have protests in the streets. And I'm thinking, you

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Speaker 1: know that this isn't right. They say there for the

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Speaker 1: middle class. But in Illinois, we about a year ago

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Speaker 1: we had a thirty two pc income tax increases. So

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Speaker 1: you didn't want the raises and the pay hikes anything

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Speaker 1: like that. No, I think I can negotiate on my own,

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Speaker 1: but at the same time, I also have to look

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Speaker 1: at the reality of what the state budget is and

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Speaker 1: what taxpayers can afford and and what is happening within

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Speaker 1: the state. Alright, and this and this also goes across

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Speaker 1: the whole United States and twenty two other states too.

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Speaker 1: All right, Well, thanks for being with us. That is

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Speaker 1: Mark Janice. He is the name plaintiff in the case

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Speaker 1: at Supreme Court decided yesterday overturning mandatory union fees. Thanks

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Speaker 1: for listening to the Bloomberg Law Podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Brosso. This

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Speaker 1: is Bloomberg