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Speaker 1: This is Bloombird Law with June Grasso from Bloomberg Radio.

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Speaker 1: Her four hundred and eighty three majority concurring and descending opinions,

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Speaker 1: we'll steer the court for decades. They are written with

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Speaker 1: the unaffected grace of precision. Her voice in court and

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Speaker 1: in our conference room was soft, but when she spoke,

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Speaker 1: people listened. For the first time in twenty seven years,

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Speaker 1: Justice Ruth Bader Ginsburg's voice will not be heard at

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Speaker 1: the Supreme Court. The Court's liberal wing was outmatched before

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Speaker 1: her death, and it's going to get worse. How much

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Speaker 1: worse that depends the courts for liberals had managed to

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Speaker 1: eke out some winds in controversial cases when a conservative justice,

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Speaker 1: usually the Chief Justice, crossed over to build a majority

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Speaker 1: in five to four cases. Now they'll have to win

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Speaker 1: over two conservatives. My guest is Andrew Crespo, a professor

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Speaker 1: at Harvard Law School. He clerked for both Justices Stephen

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Speaker 1: Bryer and Elena Kagan. There was only one case in

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Speaker 1: the past term involving a hot button social issue in

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Speaker 1: which two conservative justices, Chief Justice John Roberts and Justice

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Speaker 1: Neil Gorsich, sided with the liberal justices in a landmark

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Speaker 1: victory for gay rights. So what does a new solid

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Speaker 1: conservative majority mean for the prospect of liberal victories in

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Speaker 1: the future. So I think it is the essential question,

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Speaker 1: and the short answer is, we don't know that could go.

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Speaker 1: I think in sort of one of two ways. The assumption,

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Speaker 1: based on some of what she's written and on her profile,

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Speaker 1: is that a new Justice Coney Barrett will join Justices

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Speaker 1: Thomas and Alito informing what is the sort of far

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Speaker 1: right grouping on the current Supreme Court. The most conservative

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Speaker 1: justices and obviously the liberal wing of the Court which

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Speaker 1: used to be for justices, will now be composed of

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Speaker 1: just three Stephen Bryer, Elena Kagan and only system I own.

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Speaker 1: The open question is what happens with the other two

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Speaker 1: or three justices on the court. Chief Justice Robertsfice breat

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Speaker 1: have not in Justice Neil Coursus. Look, it's important to

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Speaker 1: realize that those three justices are also strongly conservative justices.

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Speaker 1: This is now going to be a six three conservative

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Speaker 1: court in terms of the ways in which those justices

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Speaker 1: think about some of the essential questions of legal interpretation

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Speaker 1: of constitutional law. You have six justices who share a

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Speaker 1: common conservative approach who have had the career trajectories and

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Speaker 1: the jurisprudential philosophies that mark them all as part of

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Speaker 1: a clearly identifiable conservative tradition of jurisprudence. The thing that

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Speaker 1: might subdivide that group of six is how much they

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Speaker 1: view themselves as institutionalists versus conservatives first and foremost. In

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Speaker 1: other words, how much is their primary instinct to try

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Speaker 1: to protect the Supreme Court as an institution, to try

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Speaker 1: to steer it away from the bumpiest, most turbulent sort

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Speaker 1: of culture war and ideological battles so that the Court

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Speaker 1: can try to maintain at least the image and potentially

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Speaker 1: the reality of being above the fray. Or how much

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Speaker 1: is their primary goal to actually win those cultural battles

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Speaker 1: and you know, full steam ahead into them. So where

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Speaker 1: do you see the conservatives falling on that spectrum? I

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Speaker 1: think that Justice is Thomas and Alito are more like

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Speaker 1: in that latter camp, more likely to prioritize winning those battles.

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Speaker 1: I think that we've seen Chief Justice Roberts, at least

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Speaker 1: for the time being, in that institutionalist position, and that's

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Speaker 1: how we've seen some five four rulings that the liberals

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Speaker 1: have won because the chiefs has sometimes sided with them.

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Speaker 1: The key thing now is the Chief alone won't be

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Speaker 1: able to do that. So the question is, will there

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Speaker 1: emerge a kind of institutionalist middle block, perhaps with Justice

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Speaker 1: Kavanaugh joining the Chief Justice to join with the remaining

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Speaker 1: three liberals in rulings that try to just turn down

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Speaker 1: the temperature, that try to air towards calmer waters. That's

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Speaker 1: the big question. If that happens, then you could potentially

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Speaker 1: see the emergence of some continued five four rulings where

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Speaker 1: the far conservative wing still loses. If that doesn't happen,

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Speaker 1: then I think you'll see a real growing and emerging

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Speaker 1: chasm between the six and the three. Justice Kavanaugh only

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Speaker 1: sided with the liberals in a five to four decision

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Speaker 1: once this past term, and that involved anti trust. So

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Speaker 1: why would he be that second vote that the liberals

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Speaker 1: need besides the Chief. Well, the dynamics have changed. Right before,

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Speaker 1: you didn't need his vote to allow the Court to

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Speaker 1: protect its institutional reputation because the Chief was carrying that

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Speaker 1: all on his shoulders. The Chief alone could sometimes vote

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Speaker 1: with the four liberal justices and allow the Court to

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Speaker 1: not be sort of taken sharply and aggressively all in

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Speaker 1: one direction on some of these most top flighting issues.

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Speaker 1: In other words, Justice Kavanaugh was off the hook for

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Speaker 1: his vote. Wasn't necessary for the Court to be able

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Speaker 1: to chart that type of path that tries to occasionally

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Speaker 1: see are clear of some of the most divisive, the

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Speaker 1: most aggressively conservative pulling. Now that won't be the case

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Speaker 1: right now. The chief that most if he tried to

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Speaker 1: do that by himself, would be giving a fourth vote.

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Speaker 1: There needs to be a fifth vote. So the question

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Speaker 1: is there's Justice Kavanaugh now seeing himself as essentially, um

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Speaker 1: you know, being in the hot seat on those questions

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Speaker 1: of do we go the route of you know, going

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Speaker 1: hard to the right or trying to turn down the

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Speaker 1: temperature and ste are clear of some of these um

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Speaker 1: these most divisive issues. It's basically his decision now, or

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Speaker 1: at least it's his decision and the chiefs together, whereas before, frankly,

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Speaker 1: he wasn't being called on for that right you know,

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Speaker 1: now now now the attention turns to him. This assumes

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Speaker 1: that all three of the liberals stick together, and they

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Speaker 1: haven't always. There were cases this past or where Justice

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Speaker 1: is briar and Kagan sided with the conservatives. So how

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Speaker 1: tied is this new liberal group. Yeah. So, you know,

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Speaker 1: whenever there's an instance in which the Court is potentially

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Speaker 1: um staying it's hand and not going for the most um,

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Speaker 1: you know, far right interpretation on the table, you can

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Speaker 1: count on the three justices Ginsburg. I'm sorry, Justice is Briar,

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Speaker 1: Kagan and so of Mayor Uh to want to resist

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Speaker 1: any sort of hardshift to the right. Um. But your question,

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Speaker 1: I think gets that, well, what do we expect to

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Speaker 1: happen when we continue to see the occasional UM rulings

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Speaker 1: where Justice is Briar and Justice is Kagan sometimes vote

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Speaker 1: in ways that one might not expect if one's just

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Speaker 1: sort of a predicting a sort of you know, liberal

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Speaker 1: conservative split. Um. I think that we have seen in

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Speaker 1: the past those two justices. Um. You know, when Justice

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Speaker 1: Ginsburg was on the court, the four liberal justices sometimes

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Speaker 1: had two different approaches within their groups. Right, there was

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Speaker 1: Justice Ginsburg and Justice so to Mayor, who would often

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Speaker 1: articulate sometimes the the strong form version of of of

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Speaker 1: a liberal position. And then you sometimes saw Justice A.

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Speaker 1: Briar and Kagan together trying to create a climate on

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Speaker 1: the court where the Chief Justice, uh where it was

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Speaker 1: um he had a sort of hospitable, welcoming um environment

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Speaker 1: in which he could take that decision to sort of

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Speaker 1: protect the institution and try to find a sort of

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Speaker 1: narrower or or um you know, an approach that would

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Speaker 1: turn down the temperature. And they were they were trying

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Speaker 1: to meet him and trying to help him do that.

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Speaker 1: I think that if we see an institutionalist middle block

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Speaker 1: emerge with Chief Justice Robberts and potentially a Justice Kavanaugh,

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Speaker 1: but it would not surprise me to see Justice Is

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Speaker 1: Briar and Kagan continue trying to you know, do their

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Speaker 1: part and and and also create a institutionalist middle of

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Speaker 1: the court. But if instead Justice is Kavanaugh, if Justice

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Speaker 1: Kavanaugh does not show up for that, or if the

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Speaker 1: Chief Justice decides that he can have more influence over

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Speaker 1: the Court by actually voting with the six all the

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Speaker 1: time and assigning those opinions, then Justice Is Brian and

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Speaker 1: Kagan won't have anyone willing to join them in that

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Speaker 1: effort of trying to um, you know, steer the court

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Speaker 1: towards the the the the narrower and less contentious grounds.

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Speaker 1: And I don't know that you know, they would keep

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Speaker 1: showing up for that, if they keep trying to be

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Speaker 1: there and meet some of their colleagues uh in that

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Speaker 1: middle spot. If they're constantly showing up in there alone,

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Speaker 1: then I'm not sure that there's much reason for them

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Speaker 1: to continue doing that. And you may see a more

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Speaker 1: permanent and entrenched and kind of almost um uh separated

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Speaker 1: wings of the court where it really is the three

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Speaker 1: um liberals, this is very much together holding up as

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Speaker 1: the the firm dissenting wing of the court, as opposed

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Speaker 1: to trying to find a kind of institutional center. Justice

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Speaker 1: Kay again, whom you clerked for, is seen as this

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Speaker 1: sort of go between moderator, negotiator. What will her role

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Speaker 1: be like on this new court? A lot harder, a

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Speaker 1: lot harder, and uh, you know, she is uh an

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Speaker 1: incredibly talented both jurist but also someone who understands these

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Speaker 1: dynamics better than probably you know as well. It's not

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Speaker 1: better than anybody. There's you know, maybe a couple of

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Speaker 1: people who are also on the Supreme Court who understand

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Speaker 1: these dynamics as well as she does. But you know,

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Speaker 1: if if I've been describing this right, her job has

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Speaker 1: gotten in some sense, I guess twice as hard right,

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Speaker 1: She now needs to try to find ways to persuade

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Speaker 1: two people who might not be inclined to agree with

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Speaker 1: her on the sort of merit of some of these

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Speaker 1: issues that it is to the good of the Court

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Speaker 1: and to the good of the country for them to

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Speaker 1: come together and try to find ways to steer the

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Speaker 1: Court away from all of the troubled waters that come

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Speaker 1: from going just full steam ahead into you know, all

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Speaker 1: of the the the the the rocks and strolls of

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Speaker 1: divisive culture wars. Or she had to persuade the Chief Justice,

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Speaker 1: or she had to work with the Chief Justice, or

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Speaker 1: try to find common ground in that shared desire for

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Speaker 1: that institutionalist middle position. Now she needs to persuade him

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Speaker 1: and at least one other person. Finally, Justice Brier is

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Speaker 1: now the leader of the liberal block. Do you see

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Speaker 1: his role being in any way different from Justice Ginsburg's.

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Speaker 1: Justice Brier is an incredibly thoughtful and also pragmatic justice,

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Speaker 1: So I think that he is someone well suited to

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Speaker 1: now being the the leader of and increasingly of a

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Speaker 1: shrinking liberal wing of the Court. UM he is someone

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Speaker 1: who I think will be trying very hard to find

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Speaker 1: ways to UM try to build or try to assemble

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Speaker 1: that type of institutionalist metal position, in part because that's

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Speaker 1: the way he thinks, I think about the court, and

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Speaker 1: also because he's someone who is going to be trying

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Speaker 1: to find solutions. Uh. And so I think that he's

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Speaker 1: he's he's able and and a depth and in some

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Speaker 1: ways the sort of um fortuitous person to have in

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Speaker 1: the senior position of the liberal wing of the court,

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Speaker 1: you know, in in in um. In many ways, as

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Speaker 1: your wing gets smaller, uh, the role of the leader

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Speaker 1: changes also. Right, There's now really just three of them,

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Speaker 1: and I expect that the three of them will recognize

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Speaker 1: that they are more isolated than they were last term,

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Speaker 1: that they have a harder job than they have had

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Speaker 1: at any point in time at which any of them

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Speaker 1: have been on the court. And that's the type of

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Speaker 1: thing that I would expect draws colleagues together, uh, And

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Speaker 1: that he will be the leader of that of that

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Speaker 1: um component of the court, but that the three of

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Speaker 1: them also, I think, will just be constantly checking in

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Speaker 1: with each other and recognizing, um, how much they are

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Speaker 1: now in a really a shared position trying to articulate

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Speaker 1: a vision of the Constitution and of the law that

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Speaker 1: is much harder for them to prevail on than was

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Speaker 1: true just a few months ago. That's professor Andrew Crespo

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Speaker 1: of Harvard Law School. As the Supreme Court began its term,

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Speaker 1: it also announced some cases that it rejected in legal speak,

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Speaker 1: cases in which the Court denied Sir serri. One of

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Speaker 1: those cases involved an incident that gain national attention. In

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Speaker 1: t Kim Davis, the former Kentucky clerk who refused to

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Speaker 1: issue marriage licenses to same sex couples because of her

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Speaker 1: religious beliefs, is being sued by two gay couples. Of

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Speaker 1: Federal Appeals Court rejected her claims of qualified immunity. What's

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Speaker 1: most interesting is not that the Justice is refused to

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Speaker 1: hear Davis's appeal. That happens to thousands of cases every year.

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Speaker 1: It's the statements made by two of the justice is

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Speaker 1: about gay marriage in rejecting that appeal. Joining me is

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Speaker 1: Steve Sanders, a professor at Indiana University's Maras School of Law.

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Speaker 1: Steve first tell us what the basis of the lawsuits

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Speaker 1: against Davis is. So we all remember, in the wake

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Speaker 1: of the Supreme Courts of Bergothell decision, there was this

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Speaker 1: drama where you had a county clerk in Kentucky who

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Speaker 1: refused to issue marriage licenses uh to gay couples because

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Speaker 1: she said it was a violation of her personal religious beliefs.

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Speaker 1: And so this lawsuit has been through various iterations in

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Speaker 1: in the federal courts, but basically what it boils down

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Speaker 1: to is that the couples are seeking damages. They are

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Speaker 1: they are saying that, um, they were injured, that their

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Speaker 1: constitutional rights were violated by the fact the clerk refused

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Speaker 1: to give them a marriage license, and so they're actually, uh,

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Speaker 1: there's no injunctive relief that they can seek any longer,

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Speaker 1: because of course, you know, they're married and marriage equality

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Speaker 1: is now the law. But they're saying that, um, you know,

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Speaker 1: a government official violated our constitutional rights and that is

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Speaker 1: actionable for damages. Jim Davis's defense is that she was

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Speaker 1: entitled to qualified immunity. More commonly, we've heard it recently

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Speaker 1: used by police officers. Explain what her defense is there?

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Speaker 1: Sure they the rule of qualified immunity is something the

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Speaker 1: Supreme Court has developed in order to balance the idea that, yes,

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Speaker 1: when people have their constitutional rights violated, they should be

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Speaker 1: entitled to compass station for those uh, for those damages,

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Speaker 1: for those injured, rights for the emotional distress and other

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Speaker 1: things that they suffer, which are real and compensable injuries

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Speaker 1: that are long recognized in the law. But qualified immunity

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Speaker 1: says that needs to be balanced with the idea that

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Speaker 1: we don't want to hold a government actor personally aliable,

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Speaker 1: personally accountable unless they were not acting in good faith,

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Speaker 1: and you know, unless the law that they violated was

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Speaker 1: clearly established that they didn't make a reasonable mistake. And

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Speaker 1: so often what we see in these police cases is

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Speaker 1: courts will say, well, that particular kind of excessive use

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Speaker 1: of force that the police are alleged to have used

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Speaker 1: that had not been clearly established previously as a violation

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Speaker 1: of the Fourth Amendment rule against excessive use of force,

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Speaker 1: and so we're going to get the police officer a pass. Here.

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Speaker 1: By contrast, the couples argue, Look, the Supreme Court decided

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Speaker 1: the Berga Fell case quite clearly um At that point,

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Speaker 1: the rule of marriage equality became clearly established law. It

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Speaker 1: became clearly established that states and their functionaries like Kim

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Speaker 1: Davis could not deny the constitutional right to marry to

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Speaker 1: same sex couples and and so that's where we are

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Speaker 1: right now. The Sixth Circuit, the Federal Court of Appeals

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Speaker 1: for that that covers Kentucky, said that the suit may

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Speaker 1: proceed now. It hasn't been to trial yet, but it

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Speaker 1: says the plaintiffs have stated a claim and Kim Davis

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Speaker 1: does not have immunity to prevent that case from going

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Speaker 1: forward because she is alleged to have violated a right

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Speaker 1: that was not in a gray area that was not

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Speaker 1: yet undecided. Um, it was clearly established the right to marry.

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Speaker 1: Is she also being sued in her official capacity as clerk.

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Speaker 1: So it gets slightly complicated because it gets into the

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Speaker 1: difference of whether she is acting as a county official

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Speaker 1: or as a state official. UM. On its surface, it

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Speaker 1: would seem as though she's a county official. She's a

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Speaker 1: county clerk. She's elected by the citizens of the county.

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Speaker 1: Her salary is paid by the county. But what the

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Speaker 1: Federal Court of Appeals said in issuing marriage licenses, she

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Speaker 1: is acting as a state official. She is she is

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Speaker 1: exercising power that she has under state law. It is

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Speaker 1: state law that regulates marriage licenses. So that being the case,

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Speaker 1: she can't be sued for damages in her official capacity.

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Speaker 1: Because states have sovereign immunity from lawsuits or damages. UM,

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Speaker 1: most state employees and state government actors, when they're sued

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Speaker 1: for constitutional violations, must be sued in their individual capacity.

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Speaker 1: That gets around the state's sovereign immunity, the sort of

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Speaker 1: ancient protection that states have against being sued. Now that

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Speaker 1: ends up not being terribly consequential because although technically she

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Speaker 1: is being sued individually, she is personally on the hook. Um.

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Speaker 1: It's almost always the case, and I assume it's the

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Speaker 1: case here that she is indemnified and defended by um,

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Speaker 1: the government lawyers. The government voluntarily makes the decision to

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Speaker 1: indemnify and defend its employees, and so UM. This gets

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Speaker 1: into a bit of a technicality that has uh kind

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Speaker 1: of lurks in constitutional law, where you can't sue a

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Speaker 1: state or a state official in their own in the

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Speaker 1: state's name for damages. You have to sue them individually. Steve,

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Speaker 1: do we know why the court turned down Davis's appeal? Well, no,

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Speaker 1: we never really know for sure. So the Court of

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Speaker 1: Appeals has said she does not have qualified immunity. She

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Speaker 1: must face this lawsuit as a defendant. Going forward, a

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Speaker 1: trial may take place, and in the end she may

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Speaker 1: or may not be accountable for damages to the gay couple.

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Speaker 1: She and her lawyers from a group called Liberty Counsel,

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Speaker 1: which is really, I think to be candid among the

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Speaker 1: most our right conservative religious liberty organizations that exist right now.

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Speaker 1: She sought to have the Supreme Court review that qualified

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Speaker 1: immunity determination, and the Supreme Court denied it. In the

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Speaker 1: parlance they denied, Sir serrari, the Supreme Court rejects the

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Speaker 1: vast majority of certain petitions that it received. So, as

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Speaker 1: you say, we don't necessarily know why the court denied this,

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Speaker 1: I mean, presumably they simply think this does not present

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Speaker 1: a substantial question, or they do not think that there

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Speaker 1: is a strong enough risk that the lower court aired

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Speaker 1: here that four justices, which is what it takes to

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Speaker 1: grant a certain petition, decided that it was worth the

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Speaker 1: court's attention. Justice Thomas agree with the decision itself, but

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Speaker 1: he wrote a scathing statement in which he can damn

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Speaker 1: the O. Burger failed decision which legalized gay marriage and

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Speaker 1: the Court's alteration of the Constitution. How unusual is a statement,

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Speaker 1: This is a little unusual. In the vast majority of

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Speaker 1: times the Supreme Court denies a petition for sir Gerar.

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Speaker 1: You just get a one sentence order petition denied, and

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Speaker 1: none of the justices speak to it. The Court doesn't

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Speaker 1: explain itself. It just has decided not to hear that case.

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Speaker 1: And if justices do speak, it's usually because they're dissenting

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Speaker 1: from the decision. They believe the Court should have heard

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Speaker 1: the case. This was not a dissent, it was merely

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Speaker 1: labeled as a statement. So Justice Thomas, joined by Justice Alito,

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Speaker 1: basically says, look, I agree we shouldn't hear this case.

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Speaker 1: You know, we shouldn't take up this issue of qualified immunity.

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Speaker 1: But now let me get something off my chest. You know,

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Speaker 1: I predicted five years ago that the Oberger Felt decision

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Speaker 1: would cause a lot of harm to religious liberty, that

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Speaker 1: states should have been allowed to resolve the through legislation,

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Speaker 1: not through a court decision, because they could craft religious accommodations.

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Speaker 1: He refers to it as the court's alteration of the Constitution,

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Speaker 1: which is tendentious language. I mean, the Court interpreted the Constitution.

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Speaker 1: When you don't like the result, you say the Court

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Speaker 1: has altered the Constitution. So again it's sort of Justice Thomas,

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Speaker 1: joined by Justice Alito, seemed to think he had to

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Speaker 1: get this off his chest. You know, everything I predicted

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Speaker 1: about the harmful religious liberty consequences of obergh Fell had

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Speaker 1: come through. Nonetheless, in the end, I agree we shouldn't

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Speaker 1: hear this petition that Kim Davis should have to go

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Speaker 1: to trial and potentially faced damages. So what can you

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Speaker 1: read into this about the future of gay marriage? What

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Speaker 1: I read into this is that the fact that only

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Speaker 1: two justices he issued this statement. I interpret the fact

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Speaker 1: that the Court's other three current conservative Chief Justice Roberts,

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Speaker 1: who voted against the oberg a Fell decision, plus Justice

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Speaker 1: core Such and Justice Kavanaugh didn't join this statement as

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Speaker 1: a strong signal that a majority of the Court going

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Speaker 1: forward has no appetite to revisit the core holding of

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Speaker 1: the oberg a Fell decision. This is really Justice Thomas

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Speaker 1: and Justice Alito fighting the last war, and they have

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Speaker 1: not gotten anyone else to join them. Even though if

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Speaker 1: we were deciding to question today for the first time,

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Speaker 1: some of the Court's conservatives might feel the same way.

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Speaker 1: We know how Justice Roberts felt back in he voted

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Speaker 1: against the olberg A Felt decision. Nonetheless, it's law. Tens

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Speaker 1: of thousands of people are getting married, have gotten married.

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Speaker 1: They've relied on the decision. I take the fact that

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Speaker 1: Thomas and Alito alone issued this statement as a strong

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Speaker 1: indication that the other conservatives on the Court, not to mention,

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Speaker 1: the more liberal justices, have no appetite for relitigating the

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Speaker 1: basic soundness of the oberg A Fell marriage equality decision.

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Speaker 1: Do you read from this that Thomas and Alito, if

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Speaker 1: they could, if they had the votes, would reverse A

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Speaker 1: Burger Felt. It certainly seems that way. I think that's

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Speaker 1: a fair implication, because again, for them, the consequences of

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Speaker 1: the decision for religious liberties seemed to be paramount. Couple

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Speaker 1: that with their basic view that this is a question

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Speaker 1: that should be resolved through the democratic process, through state

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Speaker 1: by state legislation, not by a court decree. So I

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Speaker 1: think it is a fair indication that if the issue

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Speaker 1: were teed up somehow again for the Court's decision, they

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Speaker 1: would overturn O Burga Felt. But again, that's two justices

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Speaker 1: out of nine, and I just don't foresee any reasonable

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Speaker 1: possibility that this is going to come back to the quarter.

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Speaker 1: If it did that, you would find a majority of

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Speaker 1: the Court willing to relitigate this question. Thanks Steve. That

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Speaker 1: Steve Sanders of Indiana University's Mars School of Law. Coming

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Speaker 1: up next on the Bloomberg Law Show. With a new

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Speaker 1: conservative justice on the court, the liberal justices will be

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Speaker 1: looking for new alliances. I'm June graw So, and you're

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Speaker 1: listening to Bloomberg