Speaker 1: Another very busy, you might even call it momentous. US
Speaker 1: Supreme Court term is coming to a close with decisions
Speaker 1: in a slew of cases that will have lasting repercussions.
Speaker 2: Earlier this morning, the Supreme Court issued an opinion on
Speaker 2: a case challenging the Biden administration's immigration policy. The justices
Speaker 2: ruled that the states who brought the challenge did not
Speaker 2: have the legal standing to do so.
Speaker 3: In a six ' to three decision delivered by Chief
Speaker 3: Justice Roberts, the Supreme Court delivered a strong rejection of
Speaker 3: a fringe legal theory that had threatened to upend election
Speaker 3: laws nationwide and expand the power of state Legislam.
Speaker 4: The Supreme Court today ruled the late Andy Warhol violated
Speaker 4: a photographer's copyright when he used water.
Speaker 5: Act, and the Justice is ruled in the family's favor,
Speaker 5: weakening the water pollution law, so joining US now from
Speaker 5: one of.
Speaker 4: The Supreme Court in the case of Alan v. Milligan,
Speaker 4: the five to four decision, with Justices Roberts and Kavanaugh
Speaker 4: siding with the liberal justices, the Supreme Court upheld Section
Speaker 4: two of the Voting Rights Act.
Speaker 1: And that's not all. In the past two days, the
Speaker 1: Court's conservative majority struck down the use of race as
Speaker 1: a factor in university admissions. The court said a wedding
Speaker 1: website designer can turn away business from same sex couples,
Speaker 1: and the Justices unanimously told a lower court to take
Speaker 1: a new look at the case of a Christian postal
Speaker 1: carrier who says he was forced out of his job
Speaker 1: for refusing to work on Sundays. The court also tossed
Speaker 1: out President Biden's student loan relief plan. So it seemed
Speaker 1: like a good time to check in once again with
Speaker 1: Bloomberg Legal correspondents Greg Storr and Zoe Tillman. They report
Speaker 1: that the cases the Justices are choosing to weigh in
Speaker 1: on show how the Court is asserting its power and
Speaker 1: enhancing its own role among the three branches of government
Speaker 1: in a way it has rarely done before.
Speaker 2: So the Court is sort of allocating more power to
Speaker 2: itself to decide exactly what agencies are able to do.
Speaker 1: And all of this, of course, is happening as the
Speaker 1: Justices themselves have come under intense scrutiny, with more Americans
Speaker 1: saying the Court is political and unaccountable.
Speaker 5: They have not convinced the public anymore that they are
Speaker 5: above the fray.
Speaker 1: I'm Weskasova today on the big take the Supreme Court
Speaker 1: flexes its muscles. Greg In this big story, you write
Speaker 1: how the Supreme Court has really taken a larger role
Speaker 1: in American life than I think maybe we've seen before.
Speaker 2: Yeah, very much so, and certainly a lot of that
Speaker 2: is attributable to this six ' three conservative majority that
Speaker 2: we have now and a court that is willing to
Speaker 2: use it its power to do things. The abortion case
Speaker 2: from last term obviously the biggest example, but there are
Speaker 2: plenty of other ones. It's a very ambitious court at
Speaker 2: this point.
Speaker 1: Give us some other examples of what you mean, not
Speaker 1: just about individual cases they decide, which of course we
Speaker 1: see every year, but this kind of overall idea that
Speaker 1: the Court itself is trying to change its place within
Speaker 1: the three branches of government.
Speaker 2: Well, it's clearest with regard to administrative agencies and in
Speaker 2: particular the Environmental Protection Agency, where we've seen a case
Speaker 2: last term, a case this term where the Supreme Court
Speaker 2: has said, no, EPA, you don't actually have the power
Speaker 2: to do that. We are going to decide. So the
Speaker 2: Court is sort of allocating more power to itself to
Speaker 2: decide exactly what agencies are able to.
Speaker 1: Do and Zoe. That speaks to this question of whether
Speaker 1: the president, the executive branch, has the power to issue
Speaker 1: regulations and where that power actually lies.
Speaker 6: That's right.
Speaker 5: I mean a common refrain that we've heard from conservatives
Speaker 5: in the law has been for a number of years
Speaker 5: a concern that sort of this idea of quote unquote
Speaker 5: unelected bureaucrats are making policy and speaking of the balance
Speaker 5: of powers. You know, in their mind, you know, usurping
Speaker 5: power from Congress. So in the minds of some academics,
Speaker 5: you know, this is the court right sizing the way
Speaker 5: that policy making should happen. That it shouldn't be career
Speaker 5: staff in ex agency deciding how policy is enacted. That
Speaker 5: it should really be up to Congress to make that call.
Speaker 5: But that is happening at a time when Congress is
Speaker 5: gridlocked and less.
Speaker 6: Able to do that kind of work.
Speaker 5: So it manifests in reality as judges stepping in and
Speaker 5: the justices stepping in to ultimately be the arbiter of
Speaker 5: these questions. And I think that's where the disconnect of
Speaker 5: the at least the perception of imbalance has come from.
Speaker 1: Greg, why are we having these arguments about this now,
Speaker 1: in the case of the EPA, these go all the
Speaker 1: way back to Richard Nixon's administration. He was a Republican
Speaker 1: after all.
Speaker 2: Yeah, that's a good question. And if you ask, say
Speaker 2: the conservative members of the Court or their supporters, they
Speaker 2: will say it's because the agencies are trying to do
Speaker 2: more than they've done previously. Obviously, the EPA wasn't regulating
Speaker 2: climate change or trying to regulate climate change back in
Speaker 2: Richard Nixon's era, and so what those folks would say
Speaker 2: is it's agency overreach. Folks on the other side will say,
Speaker 2: the reason this is happening is that you have this
Speaker 2: broadly worded statute. Courts have always kind of understood that
Speaker 2: the EPA and other agencies have some flexibility within this
Speaker 2: broadly worded statute. And it's only now that we have
Speaker 2: this court that doesn't like what it's doing with those
Speaker 2: that they're coming in and saying no, you can't actually
Speaker 2: do those things.
Speaker 1: So that's government regulation, which is a big one. What
Speaker 1: are some other ways in which the Court is asserting
Speaker 1: itself in a way that it hadn't previously.
Speaker 2: One big way is with the gun ruling last year,
Speaker 2: and the gun ruling from the Heller decision from a
Speaker 2: little more than a decade ago, where the Court for
Speaker 2: the first time said the Second Amendment protects an individual right,
Speaker 2: and then the Court last term, in a case involving
Speaker 2: the right to carry a handgun in public, said the
Speaker 2: way we determine whether a gun restriction is constitutional is
Speaker 2: we try to find some historical analog We try to
Speaker 2: find laws that were in place around the time of
Speaker 2: the founding so that we know whether or not that
Speaker 2: is in keeping with our history and tradition. And that
Speaker 2: framework has meant that courts have an awful lot of
Speaker 2: power to go back and figure out what their interpretation
Speaker 2: of history is and whether or not that supports some
Speaker 2: current gun regulation. So we're in an era where lower
Speaker 2: courts are striking down a lot of gun regulations. We
Speaker 2: are very likely going to have a series of Supreme
Speaker 2: Court cases in future years where it will be the Court,
Speaker 2: not Congress, not state legislatures, that decide whether or not
Speaker 2: a particular gun restriction is constitutional.
Speaker 5: And what's been interesting about the aftermath of that decision
Speaker 5: is that some of the pushback we've seen has come
Speaker 5: from lower court judges who have tried to indicate in
Speaker 5: their decisions or dissents that they feel that the Supreme
Speaker 5: Court has given them too much power now to make
Speaker 5: these kinds of calls and has put authority and responsibility
Speaker 5: on them to be historians in a way that they
Speaker 5: don't feel as appropriate. And it's sort of extraordinary to
Speaker 5: see lower court judges articulating that kind of criticism of
Speaker 5: the Justices and saying, you know, this is not power
Speaker 5: that we want that you have now given us, and
Speaker 5: advocating for the justices or the circuit courts to set
Speaker 5: precedent reigning some of that in. It's unusual to see
Speaker 5: that kind of pushback after the Supreme Court takes on
Speaker 5: more authority for the judiciary to make decisions.
Speaker 1: How do they decide when to stick to precedent and
Speaker 1: when to toss it aside and review the law?
Speaker 2: Well, there are guideposts that the Court has traditionally looked at.
Speaker 2: So you know, one is just how wrong was that
Speaker 2: previous decision? Was it egregiously wrong? They look at the
Speaker 2: extent to which society has relied on that precedent. They
Speaker 2: look at the extent to which factors have changed that
Speaker 2: make the precedent no longer as valid as it was
Speaker 2: at the time. That being said, a lot of folks
Speaker 2: would say, it's a pretty darn subjective process. And in
Speaker 2: the abortion case, for example, it was pretty clear that
Speaker 2: a really big factor in that case was they just
Speaker 2: really thought that the roy View Wad decision was wrong.
Speaker 2: The Court has traditionally been less willing to overturn a
Speaker 2: precedent that involves interpreting a statute, and the rationale is, hey,
Speaker 2: if we got that wrong, Congress has the ability to
Speaker 2: pass a new statute and put it back, you know,
Speaker 2: the way they.
Speaker 1: Want it, Zoe. One other way that you write that
Speaker 1: the court seems to be taking on more power is
Speaker 1: using something called the shadow docket. What exactly is it
Speaker 1: and how does it work?
Speaker 5: Right? So, the shadow docket happens when litigation is moving
Speaker 5: up in the lower courts and a decision happens that
Speaker 5: is going to have such a dramatic impact on what
Speaker 5: happens next that there is room to sort of immediately
Speaker 5: appeal even though there's not a final decision on the
Speaker 5: merits of the case. So we might be talking about
Speaker 5: some kind of preliminary injunction to stop something happening in
Speaker 5: two days that will be irreversible once it happens, And
Speaker 5: so there is sort of this race. You've lost at
Speaker 5: the district court, you immediately go to your circuit court
Speaker 5: to seek a stay of that order that you don't like,
Speaker 5: and if you lose, you then file an emergency application
Speaker 5: at the Supreme Court saying, hey, we're not asking for
Speaker 5: a final ruling on these legal issues, but we think
Speaker 5: there's a reparable harm that's going to happen here. So
Speaker 5: you justices need to preserve the status quo. That's in
Speaker 5: theory how it's supposed to work. More often it ends
Speaker 5: up being the case that this is the final ruling
Speaker 5: on the issue. That you know, what the justices do
Speaker 5: with these applications sort of signals what they will do ultimately,
Speaker 5: and that kind of guides the rest of the litigation
Speaker 5: going forward in the lower courts.
Speaker 1: And so it's a way of short circuiting the usual
Speaker 1: method of bringing a case to the Supreme Court.
Speaker 6: That's right.
Speaker 2: One big example, or a series of big examples, happened
Speaker 2: during the pandemic when states and cities were imposing these
Speaker 2: capacity limits and houses of worship would sue saying it's
Speaker 2: violating our religious rights under the Constitution, because you're keeping
Speaker 2: us from having the in person services that we think
Speaker 2: are so important. And in a series of decisions, the
Speaker 2: Court blocked those capacity limits, and by the end of it,
Speaker 2: the Court itself was sort of talking about those like
Speaker 2: they were merits determinations, in other words, as if this
Speaker 2: was a case that came up in the normal process.
Speaker 2: We had full briefing, we had arguments, and we made
Speaker 2: a decision that is binding. And as Zoe said, that's
Speaker 2: not the way the shadow docket is supposed to work.
Speaker 2: The idea is that we're going to keep the status
Speaker 2: quo while the litigation goes forward, or at least that's
Speaker 2: a very important principle in that. And instead the Court
Speaker 2: was seeming to get upset with lower courts that they
Speaker 2: weren't heeding the Court's guidance from previous shadow docket orders.
Speaker 1: And Zoe, when they issued ruling from a shadow docket,
Speaker 1: do we know how each of the individual justices voted.
Speaker 6: We don't always know that.
Speaker 5: We know if there's a written opinion that goes along
Speaker 5: with it that's authored by a particular justice.
Speaker 6: We know if justices want to note.
Speaker 5: A dissent or write to explain their descent, but they
Speaker 5: don't have to put how the vote goes.
Speaker 6: Like they do in regular published opinions.
Speaker 1: Which I suppose adds to this feeling of a lack
Speaker 1: of accountability sometimes on big decisions that affect everybody's lives
Speaker 1: very much.
Speaker 2: So I should say there are at least some signs
Speaker 2: that the Court is pulling back from using the shadow
Speaker 2: dockets so aggressively. So in this Voting Rights Act case
Speaker 2: that they decided this term involving redistricting in Alabama on
Speaker 2: the creation of a second majority Black district, Justice Cavanaugh
Speaker 2: voted at the shadow docket stage not to require Alabama
Speaker 2: to do that, and he indicated it was because it
Speaker 2: was too close to the election. We weren't going to force
Speaker 2: Alabama to change everything this close to an election. And
Speaker 2: some of us, I'll confess, including me, thought that by
Speaker 2: doing that he was signaling that ultimately he was going
Speaker 2: to be on Alabama's side. Well, when the Court eventually
Speaker 2: decided the case, it was a bit of a surprise.
Speaker 2: The Court said, actually, Alabama does have to create the
Speaker 2: second majority black district, and Justice Kavanaugh was in the
Speaker 2: majority there, so he is at least one justice who
Speaker 2: in that circumstance did not treat the shadow docket as
Speaker 2: the ultimate merits determination. He was just keeping the status
Speaker 2: quo as he understood it, and so reserving for himself
Speaker 2: the ability to decide either way once he actually heard arguments.
Speaker 1: In the case after the break. They call it the
Speaker 1: high Court, but American's opinion of it not so high, Zoe.
Speaker 1: How does the public feel about the Supreme Court's willingness
Speaker 1: to take on some of these big cases?
Speaker 5: Overall? The public is not thrilled with the direction of
Speaker 5: the Supreme Court, And I think tied up in that
Speaker 5: is not just how the justices have exercised authority in
Speaker 5: the courtroom and in their decisions, but the perception of
Speaker 5: them as public officials, you know, answering.
Speaker 6: To the public. There seems to be a general.
Speaker 5: Erosion of trust in how they're operating in both of
Speaker 5: those spheres. And we've seen polls come out showing steady
Speaker 5: dips in public confidence in the Court and showing, you know,
Speaker 5: a steady rise in the perception of the justices as
Speaker 5: political you know, and this word that they hate, but
Speaker 5: you know, partisan actors in our political system, and you know,
Speaker 5: historically the justices and all federal judges will say, the
Speaker 5: whole point of life tenure is that we are not
Speaker 5: beholden to the president who appointed us, and even the
Speaker 5: party that perhaps put us on a path to getting
Speaker 5: to the bench. That has come under scrutiny and been
Speaker 5: a harder line to hold, as everyone else around the
Speaker 5: Court has made quite clear that they see it as
Speaker 5: a very important political actor in our system, whether or
Speaker 5: not it's true. In fact, the perception is this is
Speaker 5: as important as reality at this point, so they have
Speaker 5: not convinced the public anymore that they are above the fray.
Speaker 2: You know, one dynamic that has really changed in the
Speaker 2: past fifteen years or so, starting in twenty ten when
Speaker 2: Justice Kagan was confirmed to succeed Justice Stevens. At that point,
Speaker 2: all the most conservative members of the Court were Republican appointees,
Speaker 2: and all the most liberal members of the Court were
Speaker 2: Democratic appointees. Up until twenty ten, that had not been
Speaker 2: the case. Now these justices really do operate kind of
Speaker 2: as extensions of the party that nominated them. In terms
Speaker 2: of the bottom line results, the vast majority of the
Speaker 2: time the Republican appointed justices get to the result that
Speaker 2: kids would like same thing with the democratic appointed justices,
Speaker 2: and that makes it much much harder to escape what
Speaker 2: Zoe was just talking about, this perception that these justices
Speaker 2: really aren't that different from elected officials who run under
Speaker 2: a party label.
Speaker 1: I suppose another thing along those lines that has undermined
Speaker 1: public confidence in the court has to do with the
Speaker 1: own ethics and behavior of the justices. Over the last
Speaker 1: several months, we've seen stories come out that detail the
Speaker 1: justices in apparent conflicts of interest that they don't particularly
Speaker 1: seem to be bothered by.
Speaker 5: This year is not the first time that ethics controversies
Speaker 5: have come up involving the justices, but because of a
Speaker 5: confluence of events and just more attention being paid to
Speaker 5: the court, these seem to have hit harder and had
Speaker 5: more longevity, perhaps than other controversies that have come up before.
Speaker 5: And it's more this sort of bigger question of are
Speaker 5: the justices behaving in a way that instills confidence among
Speaker 5: the public that the decisions they make are free from
Speaker 5: any outside influence and free from their own affiliations and beliefs.
Speaker 1: You know, Greg, we think about the justices as being,
Speaker 1: you know, these kind of figures who stand above and
Speaker 1: yet they have to be aware of the public's perception.
Speaker 1: Given all the things that Zoe's talking about, Now, why
Speaker 1: haven't they been more active in trying to restore confidence
Speaker 1: in the court. The confidence in the court seems to
Speaker 1: be their most important asset.
Speaker 2: Yeah, that's a really good and in many ways unanswerable question.
Speaker 2: The fact of the matter is that they've done very
Speaker 2: very little. Even Chief Justice Roberts, who we talk about
Speaker 2: as somebody who cares deeply about the legitimacy of the
Speaker 2: Supreme Court, it's institutional standing, and of course he's the
Speaker 2: Chief Justice. If anybody you'd think would be addressing these
Speaker 2: issues and sort of makeing sure that holes are plugged
Speaker 2: up and the public understands that justices take their responsibilities
Speaker 2: and these ethics issues seriously, you'd think it would be him.
Speaker 2: But he has said very very little. So when Dick Durbin,
Speaker 2: who's the Democratic chairman of the Senate Judiciary, asked John
Speaker 2: Roberts to come testify, not only did John Roberts say, no,
Speaker 2: I'm not going to come testify about these ethics issues,
Speaker 2: he sent him a letter that didn't even acknowledge. We
Speaker 2: understand that there's some public concern about some of these issues.
Speaker 2: It was a rather kurt letter that just said, Chief Justices,
Speaker 2: don't come testify. Here's all my historical evidence of that.
Speaker 2: And the Court did attach this statement of ethical practices
Speaker 2: and principles that they say they followed. All nine of
Speaker 2: them sign that, which was an accomplishment of sorts. But
Speaker 2: there has not been any kind of public acknowledgment beyond
Speaker 2: that and maybe one little statement that he made about,
Speaker 2: you know, we take our ethical duties seriously.
Speaker 5: The ethics controversies have raised questions, you know, not just
Speaker 5: of whether the justices are too close with some of
Speaker 5: the partisan actors who are trying to advocate for issues
Speaker 5: that move through the courts, but have also raised questions
Speaker 5: of whether the justices are perhaps not being cautious enough
Speaker 5: in affiliating with people and getting into some kind of
Speaker 5: financial relationship, whether it's a gift or something else, with
Speaker 5: specific individuals who may have actual business before the court,
Speaker 5: you know.
Speaker 6: And just recently.
Speaker 5: Another story coming out about Justice Samuel Alido taking a
Speaker 5: trip on a private jet of a billionaire who is
Speaker 5: also you know, active in Republican politics and causes to
Speaker 5: take a fishing trip to Alaska, you know, and the
Speaker 5: justices coming out and.
Speaker 6: Saying, if you look at the rules, I.
Speaker 5: Insist you know I did everything correctly. I didn't have
Speaker 5: to disclose these There was no need to recuse. But
Speaker 5: I think you know it is certainly not helping convince
Speaker 5: the public that they are not affiliated.
Speaker 6: It shows the.
Speaker 5: Risks and also just how much is self policed by
Speaker 5: the Court when it comes to ethics.
Speaker 1: When we come back, what if anything, can the Court
Speaker 1: do to restore trust? So, given all of this, what
Speaker 1: can the Court do to restore confidence among the public
Speaker 1: that they're not political, that they're not constantly in conflicts
Speaker 1: of interest with rich people, that their decisions are based
Speaker 1: on the law and not other things that we can't see.
Speaker 5: There are several steps that the Court could take to
Speaker 5: institute reforms that take a stricter approach to ethics and form.
Speaker 5: And there are also some steps that Congress could take.
Speaker 5: And before I described them all, it's worth saying that
Speaker 5: there is very little chance of any of these happening,
Speaker 5: given sort of the climate around and inside the Court
Speaker 5: and around and inside Congress. But in theory, the justices
Speaker 5: could come together and decide to adopt a code of
Speaker 5: conduct that is binding on them similar to the code
Speaker 5: of conduct that is binding on lower court judges.
Speaker 6: You know, the.
Speaker 5: Justices are required to follow the law, and federal law
Speaker 5: does spell out broad ethics principles that they have to
Speaker 5: adhere to, but sort of the nitty gritty, day to
Speaker 5: day guidance of what is and is not allowed. Chief
Speaker 5: Justice Roberts has said that they follow it voluntarily, that
Speaker 5: that there's no need for this.
Speaker 6: Binding code of conduct.
Speaker 5: And you know, Congress, on the other hand, could pass
Speaker 5: legislation that imposes more stringent reporting or recusal requirements on
Speaker 5: the Court. You know, seeing the Chief Justice bristle at
Speaker 5: the idea of congressional oversight or intervention, citing separation of powers.
Speaker 5: But you know, we spoke to experts for our story
Speaker 5: who said that at.
Speaker 6: A minimum, there's a lot of gray area.
Speaker 5: And when it comes to Congress's ability to legislate sort
Speaker 5: of not how the court rules, but how it operates
Speaker 5: and you know, how it enforces ethics, that there is
Speaker 5: room for Congress to do that. Congress has kicked around
Speaker 5: occasionally the idea of an inspector general for the judiciary,
Speaker 5: which does not exist right now, The idea that the
Speaker 5: justices cannot come before Congress to testify sort of another
Speaker 5: area where experts.
Speaker 6: Have said, well, you know, they could.
Speaker 5: Some of these are judgment calls and they don't want
Speaker 5: to and they don't think it's appropriate, But that doesn't
Speaker 5: mean that they can't and in the future could come
Speaker 5: and sort of more publicly talk about not how they rule,
Speaker 5: but how they conduct themselves as public officials. The other
Speaker 5: legislative intervention that we've heard about, well, there are a couple.
Speaker 5: One is expanding the number of seats on the Court,
Speaker 5: which is something that has grown in popularity on the
Speaker 5: left as the conservative supermajority has taken root. Academics have
Speaker 5: also looked at this question of Congress's ability to decide
Speaker 5: what the court has jurisdiction to rule on, and that
Speaker 5: gets a little more into the realm of substance, where
Speaker 5: things are perhaps a little more squishy when it comes.
Speaker 6: To separation of powers.
Speaker 5: But we have seen Congress enact legislation and say there
Speaker 5: is not jurisdiction for courts to rule on X, so
Speaker 5: a way of kind of reclaiming power at least for
Speaker 5: the legislative branch from the court.
Speaker 2: The other thing they can do, and I want to
Speaker 2: make it clear I'm not saying they should do this
Speaker 2: because we don't want our judges following public opinion polls
Speaker 2: in their rulings. But one of the biggest factors in
Speaker 2: declining public confidence in the Court has been the aggressiveness
Speaker 2: of its rulings. The ruling overturning Roe v. Wade, whether
Speaker 2: you think that was right or wrong, that hit the
Speaker 2: Court's credibility very hard among a certain segment of the public.
Speaker 2: And to the extent the Court is issuing polarizing rulings,
Speaker 2: and to the extent all those polarizing rulings are most
Speaker 2: of them are going in one direction. It's only natural
Speaker 2: that a big segment of the public is going to
Speaker 2: be very unhappy with the Court. Again, that's not to
Speaker 2: say it's right or wrong, but that's going to be
Speaker 2: a factor in terms of how the public views the
Speaker 2: Court going forward, given the six ' three conservative majority
Speaker 2: that they have.
Speaker 1: Greg Zoe, thanks so much for coming on the show.
Speaker 1: Sure thing, Thanks for having us, Thanks for listening to
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Speaker 5: Raphael M.
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