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Speaker 1: Another very busy, you might even call it momentous. US

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Speaker 1: Supreme Court term is coming to a close with decisions

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Speaker 1: in a slew of cases that will have lasting repercussions.

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Speaker 2: Earlier this morning, the Supreme Court issued an opinion on

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Speaker 2: a case challenging the Biden administration's immigration policy. The justices

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Speaker 2: ruled that the states who brought the challenge did not

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Speaker 2: have the legal standing to do so.

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Speaker 3: In a six ' to three decision delivered by Chief

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Speaker 3: Justice Roberts, the Supreme Court delivered a strong rejection of

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Speaker 3: a fringe legal theory that had threatened to upend election

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Speaker 3: laws nationwide and expand the power of state Legislam.

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Speaker 4: The Supreme Court today ruled the late Andy Warhol violated

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Speaker 4: a photographer's copyright when he used water.

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Speaker 5: Act, and the Justice is ruled in the family's favor,

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Speaker 5: weakening the water pollution law, so joining US now from

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Speaker 5: one of.

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Speaker 4: The Supreme Court in the case of Alan v. Milligan,

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Speaker 4: the five to four decision, with Justices Roberts and Kavanaugh

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Speaker 4: siding with the liberal justices, the Supreme Court upheld Section

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Speaker 4: two of the Voting Rights Act.

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Speaker 1: And that's not all. In the past two days, the

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Speaker 1: Court's conservative majority struck down the use of race as

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Speaker 1: a factor in university admissions. The court said a wedding

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Speaker 1: website designer can turn away business from same sex couples,

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Speaker 1: and the Justices unanimously told a lower court to take

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Speaker 1: a new look at the case of a Christian postal

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Speaker 1: carrier who says he was forced out of his job

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Speaker 1: for refusing to work on Sundays. The court also tossed

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Speaker 1: out President Biden's student loan relief plan. So it seemed

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Speaker 1: like a good time to check in once again with

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Speaker 1: Bloomberg Legal correspondents Greg Storr and Zoe Tillman. They report

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Speaker 1: that the cases the Justices are choosing to weigh in

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Speaker 1: on show how the Court is asserting its power and

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Speaker 1: enhancing its own role among the three branches of government

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Speaker 1: in a way it has rarely done before.

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Speaker 2: So the Court is sort of allocating more power to

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Speaker 2: itself to decide exactly what agencies are able to do.

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Speaker 1: And all of this, of course, is happening as the

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Speaker 1: Justices themselves have come under intense scrutiny, with more Americans

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Speaker 1: saying the Court is political and unaccountable.

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Speaker 5: They have not convinced the public anymore that they are

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Speaker 5: above the fray.

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Speaker 1: I'm Weskasova today on the big take the Supreme Court

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Speaker 1: flexes its muscles. Greg In this big story, you write

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Speaker 1: how the Supreme Court has really taken a larger role

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Speaker 1: in American life than I think maybe we've seen before.

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Speaker 2: Yeah, very much so, and certainly a lot of that

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Speaker 2: is attributable to this six ' three conservative majority that

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Speaker 2: we have now and a court that is willing to

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Speaker 2: use it its power to do things. The abortion case

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Speaker 2: from last term obviously the biggest example, but there are

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Speaker 2: plenty of other ones. It's a very ambitious court at

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Speaker 2: this point.

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Speaker 1: Give us some other examples of what you mean, not

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Speaker 1: just about individual cases they decide, which of course we

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Speaker 1: see every year, but this kind of overall idea that

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Speaker 1: the Court itself is trying to change its place within

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Speaker 1: the three branches of government.

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Speaker 2: Well, it's clearest with regard to administrative agencies and in

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Speaker 2: particular the Environmental Protection Agency, where we've seen a case

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Speaker 2: last term, a case this term where the Supreme Court

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Speaker 2: has said, no, EPA, you don't actually have the power

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Speaker 2: to do that. We are going to decide. So the

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Speaker 2: Court is sort of allocating more power to itself to

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Speaker 2: decide exactly what agencies are able to.

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Speaker 1: Do and Zoe. That speaks to this question of whether

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Speaker 1: the president, the executive branch, has the power to issue

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Speaker 1: regulations and where that power actually lies.

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Speaker 6: That's right.

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Speaker 5: I mean a common refrain that we've heard from conservatives

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Speaker 5: in the law has been for a number of years

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Speaker 5: a concern that sort of this idea of quote unquote

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Speaker 5: unelected bureaucrats are making policy and speaking of the balance

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Speaker 5: of powers. You know, in their mind, you know, usurping

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Speaker 5: power from Congress. So in the minds of some academics,

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Speaker 5: you know, this is the court right sizing the way

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Speaker 5: that policy making should happen. That it shouldn't be career

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Speaker 5: staff in ex agency deciding how policy is enacted. That

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Speaker 5: it should really be up to Congress to make that call.

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Speaker 5: But that is happening at a time when Congress is

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Speaker 5: gridlocked and less.

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Speaker 6: Able to do that kind of work.

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Speaker 5: So it manifests in reality as judges stepping in and

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Speaker 5: the justices stepping in to ultimately be the arbiter of

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Speaker 5: these questions. And I think that's where the disconnect of

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Speaker 5: the at least the perception of imbalance has come from.

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Speaker 1: Greg, why are we having these arguments about this now,

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Speaker 1: in the case of the EPA, these go all the

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Speaker 1: way back to Richard Nixon's administration. He was a Republican

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Speaker 1: after all.

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Speaker 2: Yeah, that's a good question. And if you ask, say

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Speaker 2: the conservative members of the Court or their supporters, they

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Speaker 2: will say it's because the agencies are trying to do

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Speaker 2: more than they've done previously. Obviously, the EPA wasn't regulating

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Speaker 2: climate change or trying to regulate climate change back in

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Speaker 2: Richard Nixon's era, and so what those folks would say

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Speaker 2: is it's agency overreach. Folks on the other side will say,

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Speaker 2: the reason this is happening is that you have this

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Speaker 2: broadly worded statute. Courts have always kind of understood that

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Speaker 2: the EPA and other agencies have some flexibility within this

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Speaker 2: broadly worded statute. And it's only now that we have

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Speaker 2: this court that doesn't like what it's doing with those

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Speaker 2: that they're coming in and saying no, you can't actually

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Speaker 2: do those things.

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Speaker 1: So that's government regulation, which is a big one. What

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Speaker 1: are some other ways in which the Court is asserting

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Speaker 1: itself in a way that it hadn't previously.

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Speaker 2: One big way is with the gun ruling last year,

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Speaker 2: and the gun ruling from the Heller decision from a

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Speaker 2: little more than a decade ago, where the Court for

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Speaker 2: the first time said the Second Amendment protects an individual right,

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Speaker 2: and then the Court last term, in a case involving

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Speaker 2: the right to carry a handgun in public, said the

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Speaker 2: way we determine whether a gun restriction is constitutional is

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Speaker 2: we try to find some historical analog We try to

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Speaker 2: find laws that were in place around the time of

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Speaker 2: the founding so that we know whether or not that

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Speaker 2: is in keeping with our history and tradition. And that

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Speaker 2: framework has meant that courts have an awful lot of

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Speaker 2: power to go back and figure out what their interpretation

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Speaker 2: of history is and whether or not that supports some

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Speaker 2: current gun regulation. So we're in an era where lower

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Speaker 2: courts are striking down a lot of gun regulations. We

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Speaker 2: are very likely going to have a series of Supreme

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Speaker 2: Court cases in future years where it will be the Court,

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Speaker 2: not Congress, not state legislatures, that decide whether or not

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Speaker 2: a particular gun restriction is constitutional.

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Speaker 5: And what's been interesting about the aftermath of that decision

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Speaker 5: is that some of the pushback we've seen has come

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Speaker 5: from lower court judges who have tried to indicate in

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Speaker 5: their decisions or dissents that they feel that the Supreme

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Speaker 5: Court has given them too much power now to make

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Speaker 5: these kinds of calls and has put authority and responsibility

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Speaker 5: on them to be historians in a way that they

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Speaker 5: don't feel as appropriate. And it's sort of extraordinary to

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Speaker 5: see lower court judges articulating that kind of criticism of

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Speaker 5: the Justices and saying, you know, this is not power

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Speaker 5: that we want that you have now given us, and

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Speaker 5: advocating for the justices or the circuit courts to set

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Speaker 5: precedent reigning some of that in. It's unusual to see

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Speaker 5: that kind of pushback after the Supreme Court takes on

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Speaker 5: more authority for the judiciary to make decisions.

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Speaker 1: How do they decide when to stick to precedent and

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Speaker 1: when to toss it aside and review the law?

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Speaker 2: Well, there are guideposts that the Court has traditionally looked at.

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Speaker 2: So you know, one is just how wrong was that

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Speaker 2: previous decision? Was it egregiously wrong? They look at the

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Speaker 2: extent to which society has relied on that precedent. They

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Speaker 2: look at the extent to which factors have changed that

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Speaker 2: make the precedent no longer as valid as it was

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Speaker 2: at the time. That being said, a lot of folks

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Speaker 2: would say, it's a pretty darn subjective process. And in

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Speaker 2: the abortion case, for example, it was pretty clear that

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Speaker 2: a really big factor in that case was they just

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Speaker 2: really thought that the roy View Wad decision was wrong.

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Speaker 2: The Court has traditionally been less willing to overturn a

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Speaker 2: precedent that involves interpreting a statute, and the rationale is, hey,

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Speaker 2: if we got that wrong, Congress has the ability to

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Speaker 2: pass a new statute and put it back, you know,

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Speaker 2: the way they.

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Speaker 1: Want it, Zoe. One other way that you write that

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Speaker 1: the court seems to be taking on more power is

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Speaker 1: using something called the shadow docket. What exactly is it

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Speaker 1: and how does it work?

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Speaker 5: Right? So, the shadow docket happens when litigation is moving

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Speaker 5: up in the lower courts and a decision happens that

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Speaker 5: is going to have such a dramatic impact on what

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Speaker 5: happens next that there is room to sort of immediately

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Speaker 5: appeal even though there's not a final decision on the

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Speaker 5: merits of the case. So we might be talking about

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Speaker 5: some kind of preliminary injunction to stop something happening in

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Speaker 5: two days that will be irreversible once it happens, And

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Speaker 5: so there is sort of this race. You've lost at

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Speaker 5: the district court, you immediately go to your circuit court

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Speaker 5: to seek a stay of that order that you don't like,

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Speaker 5: and if you lose, you then file an emergency application

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Speaker 5: at the Supreme Court saying, hey, we're not asking for

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Speaker 5: a final ruling on these legal issues, but we think

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Speaker 5: there's a reparable harm that's going to happen here. So

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Speaker 5: you justices need to preserve the status quo. That's in

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Speaker 5: theory how it's supposed to work. More often it ends

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Speaker 5: up being the case that this is the final ruling

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Speaker 5: on the issue. That you know, what the justices do

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Speaker 5: with these applications sort of signals what they will do ultimately,

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Speaker 5: and that kind of guides the rest of the litigation

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Speaker 5: going forward in the lower courts.

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Speaker 1: And so it's a way of short circuiting the usual

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Speaker 1: method of bringing a case to the Supreme Court.

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Speaker 6: That's right.

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Speaker 2: One big example, or a series of big examples, happened

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Speaker 2: during the pandemic when states and cities were imposing these

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Speaker 2: capacity limits and houses of worship would sue saying it's

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Speaker 2: violating our religious rights under the Constitution, because you're keeping

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Speaker 2: us from having the in person services that we think

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Speaker 2: are so important. And in a series of decisions, the

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Speaker 2: Court blocked those capacity limits, and by the end of it,

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Speaker 2: the Court itself was sort of talking about those like

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Speaker 2: they were merits determinations, in other words, as if this

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Speaker 2: was a case that came up in the normal process.

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Speaker 2: We had full briefing, we had arguments, and we made

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Speaker 2: a decision that is binding. And as Zoe said, that's

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Speaker 2: not the way the shadow docket is supposed to work.

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Speaker 2: The idea is that we're going to keep the status

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Speaker 2: quo while the litigation goes forward, or at least that's

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Speaker 2: a very important principle in that. And instead the Court

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Speaker 2: was seeming to get upset with lower courts that they

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Speaker 2: weren't heeding the Court's guidance from previous shadow docket orders.

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Speaker 1: And Zoe, when they issued ruling from a shadow docket,

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Speaker 1: do we know how each of the individual justices voted.

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Speaker 6: We don't always know that.

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Speaker 5: We know if there's a written opinion that goes along

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Speaker 5: with it that's authored by a particular justice.

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Speaker 6: We know if justices want to note.

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Speaker 5: A dissent or write to explain their descent, but they

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Speaker 5: don't have to put how the vote goes.

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Speaker 6: Like they do in regular published opinions.

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Speaker 1: Which I suppose adds to this feeling of a lack

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Speaker 1: of accountability sometimes on big decisions that affect everybody's lives

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Speaker 1: very much.

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Speaker 2: So I should say there are at least some signs

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Speaker 2: that the Court is pulling back from using the shadow

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Speaker 2: dockets so aggressively. So in this Voting Rights Act case

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Speaker 2: that they decided this term involving redistricting in Alabama on

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Speaker 2: the creation of a second majority Black district, Justice Cavanaugh

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Speaker 2: voted at the shadow docket stage not to require Alabama

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Speaker 2: to do that, and he indicated it was because it

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Speaker 2: was too close to the election. We weren't going to force

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Speaker 2: Alabama to change everything this close to an election. And

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Speaker 2: some of us, I'll confess, including me, thought that by

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Speaker 2: doing that he was signaling that ultimately he was going

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Speaker 2: to be on Alabama's side. Well, when the Court eventually

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Speaker 2: decided the case, it was a bit of a surprise.

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Speaker 2: The Court said, actually, Alabama does have to create the

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Speaker 2: second majority black district, and Justice Kavanaugh was in the

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Speaker 2: majority there, so he is at least one justice who

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Speaker 2: in that circumstance did not treat the shadow docket as

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Speaker 2: the ultimate merits determination. He was just keeping the status

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Speaker 2: quo as he understood it, and so reserving for himself

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Speaker 2: the ability to decide either way once he actually heard arguments.

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Speaker 1: In the case after the break. They call it the

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Speaker 1: high Court, but American's opinion of it not so high, Zoe.

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Speaker 1: How does the public feel about the Supreme Court's willingness

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Speaker 1: to take on some of these big cases?

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Speaker 5: Overall? The public is not thrilled with the direction of

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Speaker 5: the Supreme Court, And I think tied up in that

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Speaker 5: is not just how the justices have exercised authority in

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Speaker 5: the courtroom and in their decisions, but the perception of

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Speaker 5: them as public officials, you know, answering.

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Speaker 6: To the public. There seems to be a general.

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Speaker 5: Erosion of trust in how they're operating in both of

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Speaker 5: those spheres. And we've seen polls come out showing steady

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Speaker 5: dips in public confidence in the Court and showing, you know,

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Speaker 5: a steady rise in the perception of the justices as

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Speaker 5: political you know, and this word that they hate, but

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Speaker 5: you know, partisan actors in our political system, and you know,

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Speaker 5: historically the justices and all federal judges will say, the

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Speaker 5: whole point of life tenure is that we are not

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Speaker 5: beholden to the president who appointed us, and even the

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Speaker 5: party that perhaps put us on a path to getting

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Speaker 5: to the bench. That has come under scrutiny and been

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Speaker 5: a harder line to hold, as everyone else around the

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Speaker 5: Court has made quite clear that they see it as

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Speaker 5: a very important political actor in our system, whether or

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Speaker 5: not it's true. In fact, the perception is this is

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Speaker 5: as important as reality at this point, so they have

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Speaker 5: not convinced the public anymore that they are above the fray.

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Speaker 2: You know, one dynamic that has really changed in the

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Speaker 2: past fifteen years or so, starting in twenty ten when

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Speaker 2: Justice Kagan was confirmed to succeed Justice Stevens. At that point,

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Speaker 2: all the most conservative members of the Court were Republican appointees,

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Speaker 2: and all the most liberal members of the Court were

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Speaker 2: Democratic appointees. Up until twenty ten, that had not been

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Speaker 2: the case. Now these justices really do operate kind of

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Speaker 2: as extensions of the party that nominated them. In terms

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Speaker 2: of the bottom line results, the vast majority of the

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Speaker 2: time the Republican appointed justices get to the result that

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Speaker 2: kids would like same thing with the democratic appointed justices,

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Speaker 2: and that makes it much much harder to escape what

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Speaker 2: Zoe was just talking about, this perception that these justices

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Speaker 2: really aren't that different from elected officials who run under

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Speaker 2: a party label.

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Speaker 1: I suppose another thing along those lines that has undermined

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Speaker 1: public confidence in the court has to do with the

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Speaker 1: own ethics and behavior of the justices. Over the last

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Speaker 1: several months, we've seen stories come out that detail the

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Speaker 1: justices in apparent conflicts of interest that they don't particularly

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Speaker 1: seem to be bothered by.

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Speaker 5: This year is not the first time that ethics controversies

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Speaker 5: have come up involving the justices, but because of a

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Speaker 5: confluence of events and just more attention being paid to

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Speaker 5: the court, these seem to have hit harder and had

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Speaker 5: more longevity, perhaps than other controversies that have come up before.

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Speaker 5: And it's more this sort of bigger question of are

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Speaker 5: the justices behaving in a way that instills confidence among

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Speaker 5: the public that the decisions they make are free from

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Speaker 5: any outside influence and free from their own affiliations and beliefs.

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Speaker 1: You know, Greg, we think about the justices as being,

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Speaker 1: you know, these kind of figures who stand above and

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Speaker 1: yet they have to be aware of the public's perception.

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Speaker 1: Given all the things that Zoe's talking about, Now, why

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Speaker 1: haven't they been more active in trying to restore confidence

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Speaker 1: in the court. The confidence in the court seems to

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Speaker 1: be their most important asset.

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Speaker 2: Yeah, that's a really good and in many ways unanswerable question.

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Speaker 2: The fact of the matter is that they've done very

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Speaker 2: very little. Even Chief Justice Roberts, who we talk about

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Speaker 2: as somebody who cares deeply about the legitimacy of the

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Speaker 2: Supreme Court, it's institutional standing, and of course he's the

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Speaker 2: Chief Justice. If anybody you'd think would be addressing these

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Speaker 2: issues and sort of makeing sure that holes are plugged

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Speaker 2: up and the public understands that justices take their responsibilities

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Speaker 2: and these ethics issues seriously, you'd think it would be him.

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Speaker 2: But he has said very very little. So when Dick Durbin,

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Speaker 2: who's the Democratic chairman of the Senate Judiciary, asked John

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Speaker 2: Roberts to come testify, not only did John Roberts say, no,

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Speaker 2: I'm not going to come testify about these ethics issues,

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Speaker 2: he sent him a letter that didn't even acknowledge. We

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Speaker 2: understand that there's some public concern about some of these issues.

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Speaker 2: It was a rather kurt letter that just said, Chief Justices,

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Speaker 2: don't come testify. Here's all my historical evidence of that.

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Speaker 2: And the Court did attach this statement of ethical practices

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Speaker 2: and principles that they say they followed. All nine of

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Speaker 2: them sign that, which was an accomplishment of sorts. But

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Speaker 2: there has not been any kind of public acknowledgment beyond

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Speaker 2: that and maybe one little statement that he made about,

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Speaker 2: you know, we take our ethical duties seriously.

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Speaker 5: The ethics controversies have raised questions, you know, not just

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Speaker 5: of whether the justices are too close with some of

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Speaker 5: the partisan actors who are trying to advocate for issues

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Speaker 5: that move through the courts, but have also raised questions

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Speaker 5: of whether the justices are perhaps not being cautious enough

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Speaker 5: in affiliating with people and getting into some kind of

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Speaker 5: financial relationship, whether it's a gift or something else, with

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Speaker 5: specific individuals who may have actual business before the court,

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Speaker 5: you know.

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Speaker 6: And just recently.

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Speaker 5: Another story coming out about Justice Samuel Alido taking a

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Speaker 5: trip on a private jet of a billionaire who is

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Speaker 5: also you know, active in Republican politics and causes to

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Speaker 5: take a fishing trip to Alaska, you know, and the

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Speaker 5: justices coming out and.

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Speaker 6: Saying, if you look at the rules, I.

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Speaker 5: Insist you know I did everything correctly. I didn't have

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Speaker 5: to disclose these There was no need to recuse. But

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Speaker 5: I think you know it is certainly not helping convince

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Speaker 5: the public that they are not affiliated.

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Speaker 6: It shows the.

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Speaker 5: Risks and also just how much is self policed by

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Speaker 5: the Court when it comes to ethics.

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Speaker 1: When we come back, what if anything, can the Court

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Speaker 1: do to restore trust? So, given all of this, what

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Speaker 1: can the Court do to restore confidence among the public

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Speaker 1: that they're not political, that they're not constantly in conflicts

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Speaker 1: of interest with rich people, that their decisions are based

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Speaker 1: on the law and not other things that we can't see.

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Speaker 5: There are several steps that the Court could take to

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Speaker 5: institute reforms that take a stricter approach to ethics and form.

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Speaker 5: And there are also some steps that Congress could take.

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Speaker 5: And before I described them all, it's worth saying that

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Speaker 5: there is very little chance of any of these happening,

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Speaker 5: given sort of the climate around and inside the Court

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Speaker 5: and around and inside Congress. But in theory, the justices

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Speaker 5: could come together and decide to adopt a code of

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Speaker 5: conduct that is binding on them similar to the code

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Speaker 5: of conduct that is binding on lower court judges.

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Speaker 6: You know, the.

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Speaker 5: Justices are required to follow the law, and federal law

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Speaker 5: does spell out broad ethics principles that they have to

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Speaker 5: adhere to, but sort of the nitty gritty, day to

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Speaker 5: day guidance of what is and is not allowed. Chief

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Speaker 5: Justice Roberts has said that they follow it voluntarily, that

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Speaker 5: that there's no need for this.

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Speaker 6: Binding code of conduct.

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Speaker 5: And you know, Congress, on the other hand, could pass

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Speaker 5: legislation that imposes more stringent reporting or recusal requirements on

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Speaker 5: the Court. You know, seeing the Chief Justice bristle at

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Speaker 5: the idea of congressional oversight or intervention, citing separation of powers.

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Speaker 5: But you know, we spoke to experts for our story

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Speaker 5: who said that at.

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Speaker 6: A minimum, there's a lot of gray area.

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Speaker 5: And when it comes to Congress's ability to legislate sort

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Speaker 5: of not how the court rules, but how it operates

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Speaker 5: and you know, how it enforces ethics, that there is

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Speaker 5: room for Congress to do that. Congress has kicked around

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Speaker 5: occasionally the idea of an inspector general for the judiciary,

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Speaker 5: which does not exist right now, The idea that the

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Speaker 5: justices cannot come before Congress to testify sort of another

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Speaker 5: area where experts.

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Speaker 6: Have said, well, you know, they could.

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Speaker 5: Some of these are judgment calls and they don't want

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Speaker 5: to and they don't think it's appropriate, But that doesn't

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Speaker 5: mean that they can't and in the future could come

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Speaker 5: and sort of more publicly talk about not how they rule,

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Speaker 5: but how they conduct themselves as public officials. The other

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Speaker 5: legislative intervention that we've heard about, well, there are a couple.

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Speaker 5: One is expanding the number of seats on the Court,

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Speaker 5: which is something that has grown in popularity on the

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Speaker 5: left as the conservative supermajority has taken root. Academics have

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Speaker 5: also looked at this question of Congress's ability to decide

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Speaker 5: what the court has jurisdiction to rule on, and that

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Speaker 5: gets a little more into the realm of substance, where

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Speaker 5: things are perhaps a little more squishy when it comes.

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Speaker 6: To separation of powers.

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Speaker 5: But we have seen Congress enact legislation and say there

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Speaker 5: is not jurisdiction for courts to rule on X, so

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Speaker 5: a way of kind of reclaiming power at least for

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Speaker 5: the legislative branch from the court.

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Speaker 2: The other thing they can do, and I want to

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Speaker 2: make it clear I'm not saying they should do this

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Speaker 2: because we don't want our judges following public opinion polls

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Speaker 2: in their rulings. But one of the biggest factors in

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Speaker 2: declining public confidence in the Court has been the aggressiveness

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Speaker 2: of its rulings. The ruling overturning Roe v. Wade, whether

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Speaker 2: you think that was right or wrong, that hit the

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Speaker 2: Court's credibility very hard among a certain segment of the public.

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Speaker 2: And to the extent the Court is issuing polarizing rulings,

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Speaker 2: and to the extent all those polarizing rulings are most

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Speaker 2: of them are going in one direction. It's only natural

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Speaker 2: that a big segment of the public is going to

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Speaker 2: be very unhappy with the Court. Again, that's not to

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Speaker 2: say it's right or wrong, but that's going to be

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Speaker 2: a factor in terms of how the public views the

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Speaker 2: Court going forward, given the six ' three conservative majority

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Speaker 2: that they have.

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Speaker 1: Greg Zoe, thanks so much for coming on the show.

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Speaker 1: Sure thing, Thanks for having us, Thanks for listening to

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Speaker 1: us here at the Big Take. It's a daily podcast

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