WEBVTT - Will the Liberal Justices Find New Alliances? 0:00:00.560 --> 0:00:05.360 This is Bloombird Law with June Grasso from Bloomberg Radio. 0:00:06.280 --> 0:00:11.400 Her four hundred and eighty three majority concurring and descending opinions, 0:00:12.000 --> 0:00:16.040 we'll steer the court for decades. They are written with 0:00:16.120 --> 0:00:20.959 the unaffected grace of precision. Her voice in court and 0:00:21.000 --> 0:00:24.200 in our conference room was soft, but when she spoke, 0:00:24.920 --> 0:00:28.920 people listened. For the first time in twenty seven years, 0:00:28.960 --> 0:00:32.279 Justice Ruth Bader Ginsburg's voice will not be heard at 0:00:32.280 --> 0:00:36.600 the Supreme Court. The Court's liberal wing was outmatched before 0:00:36.600 --> 0:00:39.600 her death, and it's going to get worse. How much 0:00:39.640 --> 0:00:43.839 worse that depends the courts for liberals had managed to 0:00:43.840 --> 0:00:48.080 eke out some winds in controversial cases when a conservative justice, 0:00:48.280 --> 0:00:51.560 usually the Chief Justice, crossed over to build a majority 0:00:51.680 --> 0:00:54.600 in five to four cases. Now they'll have to win 0:00:54.680 --> 0:00:58.800 over two conservatives. My guest is Andrew Crespo, a professor 0:00:58.800 --> 0:01:02.280 at Harvard Law School. He clerked for both Justices Stephen 0:01:02.320 --> 0:01:05.760 Bryer and Elena Kagan. There was only one case in 0:01:05.800 --> 0:01:09.200 the past term involving a hot button social issue in 0:01:09.200 --> 0:01:14.120 which two conservative justices, Chief Justice John Roberts and Justice 0:01:14.160 --> 0:01:18.319 Neil Gorsich, sided with the liberal justices in a landmark 0:01:18.440 --> 0:01:21.840 victory for gay rights. So what does a new solid 0:01:21.880 --> 0:01:26.120 conservative majority mean for the prospect of liberal victories in 0:01:26.120 --> 0:01:29.760 the future. So I think it is the essential question, 0:01:29.959 --> 0:01:32.520 and the short answer is, we don't know that could go. 0:01:33.040 --> 0:01:35.679 I think in sort of one of two ways. The assumption, 0:01:35.840 --> 0:01:38.880 based on some of what she's written and on her profile, 0:01:39.080 --> 0:01:43.399 is that a new Justice Coney Barrett will join Justices 0:01:43.480 --> 0:01:47.120 Thomas and Alito informing what is the sort of far 0:01:47.360 --> 0:01:50.800 right grouping on the current Supreme Court. The most conservative 0:01:50.840 --> 0:01:54.840 justices and obviously the liberal wing of the Court which 0:01:54.960 --> 0:01:57.720 used to be for justices, will now be composed of 0:01:57.760 --> 0:02:00.800 just three Stephen Bryer, Elena Kagan and only system I own. 0:02:01.720 --> 0:02:06.360 The open question is what happens with the other two 0:02:06.440 --> 0:02:09.800 or three justices on the court. Chief Justice Robertsfice breat 0:02:09.840 --> 0:02:12.800 have not in Justice Neil Coursus. Look, it's important to 0:02:12.800 --> 0:02:17.240 realize that those three justices are also strongly conservative justices. 0:02:17.480 --> 0:02:20.760 This is now going to be a six three conservative 0:02:20.840 --> 0:02:24.200 court in terms of the ways in which those justices 0:02:24.280 --> 0:02:27.480 think about some of the essential questions of legal interpretation 0:02:27.560 --> 0:02:31.079 of constitutional law. You have six justices who share a 0:02:31.160 --> 0:02:35.799 common conservative approach who have had the career trajectories and 0:02:35.960 --> 0:02:39.640 the jurisprudential philosophies that mark them all as part of 0:02:39.760 --> 0:02:44.160 a clearly identifiable conservative tradition of jurisprudence. The thing that 0:02:44.280 --> 0:02:47.920 might subdivide that group of six is how much they 0:02:48.160 --> 0:02:52.480 view themselves as institutionalists versus conservatives first and foremost. In 0:02:52.560 --> 0:02:56.600 other words, how much is their primary instinct to try 0:02:56.680 --> 0:03:00.200 to protect the Supreme Court as an institution, to try 0:03:00.240 --> 0:03:03.679 to steer it away from the bumpiest, most turbulent sort 0:03:03.720 --> 0:03:07.160 of culture war and ideological battles so that the Court 0:03:07.240 --> 0:03:11.160 can try to maintain at least the image and potentially 0:03:11.240 --> 0:03:13.960 the reality of being above the fray. Or how much 0:03:14.040 --> 0:03:17.560 is their primary goal to actually win those cultural battles 0:03:17.560 --> 0:03:20.160 and you know, full steam ahead into them. So where 0:03:20.200 --> 0:03:24.080 do you see the conservatives falling on that spectrum? I 0:03:24.120 --> 0:03:26.800 think that Justice is Thomas and Alito are more like 0:03:27.000 --> 0:03:30.360 in that latter camp, more likely to prioritize winning those battles. 0:03:30.400 --> 0:03:33.040 I think that we've seen Chief Justice Roberts, at least 0:03:33.040 --> 0:03:36.360 for the time being, in that institutionalist position, and that's 0:03:36.400 --> 0:03:39.280 how we've seen some five four rulings that the liberals 0:03:39.280 --> 0:03:41.920 have won because the chiefs has sometimes sided with them. 0:03:42.000 --> 0:03:43.800 The key thing now is the Chief alone won't be 0:03:43.840 --> 0:03:45.920 able to do that. So the question is, will there 0:03:46.000 --> 0:03:51.640 emerge a kind of institutionalist middle block, perhaps with Justice 0:03:51.720 --> 0:03:55.120 Kavanaugh joining the Chief Justice to join with the remaining 0:03:55.200 --> 0:03:58.120 three liberals in rulings that try to just turn down 0:03:58.160 --> 0:04:01.520 the temperature, that try to air towards calmer waters. That's 0:04:01.560 --> 0:04:03.960 the big question. If that happens, then you could potentially 0:04:04.040 --> 0:04:08.320 see the emergence of some continued five four rulings where 0:04:08.560 --> 0:04:11.800 the far conservative wing still loses. If that doesn't happen, 0:04:12.040 --> 0:04:15.520 then I think you'll see a real growing and emerging 0:04:15.680 --> 0:04:20.000 chasm between the six and the three. Justice Kavanaugh only 0:04:20.040 --> 0:04:22.800 sided with the liberals in a five to four decision 0:04:23.040 --> 0:04:26.520 once this past term, and that involved anti trust. So 0:04:26.600 --> 0:04:29.720 why would he be that second vote that the liberals 0:04:29.760 --> 0:04:35.200 need besides the Chief. Well, the dynamics have changed. Right before, 0:04:35.720 --> 0:04:39.120 you didn't need his vote to allow the Court to 0:04:39.240 --> 0:04:42.800 protect its institutional reputation because the Chief was carrying that 0:04:42.839 --> 0:04:46.640 all on his shoulders. The Chief alone could sometimes vote 0:04:46.760 --> 0:04:51.600 with the four liberal justices and allow the Court to 0:04:51.839 --> 0:04:55.719 not be sort of taken sharply and aggressively all in 0:04:55.800 --> 0:04:58.000 one direction on some of these most top flighting issues. 0:04:58.120 --> 0:05:00.160 In other words, Justice Kavanaugh was off the hook for 0:05:00.400 --> 0:05:02.920 his vote. Wasn't necessary for the Court to be able 0:05:02.920 --> 0:05:05.440 to chart that type of path that tries to occasionally 0:05:05.640 --> 0:05:07.719 see are clear of some of the most divisive, the 0:05:07.839 --> 0:05:10.760 most aggressively conservative pulling. Now that won't be the case 0:05:10.880 --> 0:05:13.760 right now. The chief that most if he tried to 0:05:13.800 --> 0:05:15.760 do that by himself, would be giving a fourth vote. 0:05:16.160 --> 0:05:18.040 There needs to be a fifth vote. So the question 0:05:18.200 --> 0:05:23.680 is there's Justice Kavanaugh now seeing himself as essentially, um 0:05:23.720 --> 0:05:26.920 you know, being in the hot seat on those questions 0:05:27.000 --> 0:05:31.039 of do we go the route of you know, going 0:05:31.080 --> 0:05:34.840 hard to the right or trying to turn down the 0:05:34.880 --> 0:05:37.360 temperature and ste are clear of some of these um 0:05:37.680 --> 0:05:41.000 these most divisive issues. It's basically his decision now, or 0:05:41.000 --> 0:05:45.600 at least it's his decision and the chiefs together, whereas before, frankly, 0:05:45.640 --> 0:05:47.480 he wasn't being called on for that right you know, 0:05:48.160 --> 0:05:53.200 now now now the attention turns to him. This assumes 0:05:53.279 --> 0:05:57.240 that all three of the liberals stick together, and they 0:05:57.279 --> 0:06:00.800 haven't always. There were cases this past or where Justice 0:06:00.920 --> 0:06:04.920 is briar and Kagan sided with the conservatives. So how 0:06:04.960 --> 0:06:08.640 tied is this new liberal group. Yeah. So, you know, 0:06:09.200 --> 0:06:12.800 whenever there's an instance in which the Court is potentially 0:06:13.000 --> 0:06:17.520 um staying it's hand and not going for the most um, 0:06:17.680 --> 0:06:21.760 you know, far right interpretation on the table, you can 0:06:21.800 --> 0:06:26.640 count on the three justices Ginsburg. I'm sorry, Justice is Briar, 0:06:27.080 --> 0:06:31.160 Kagan and so of Mayor Uh to want to resist 0:06:31.279 --> 0:06:35.800 any sort of hardshift to the right. Um. But your question, 0:06:35.839 --> 0:06:38.039 I think gets that, well, what do we expect to 0:06:38.080 --> 0:06:42.120 happen when we continue to see the occasional UM rulings 0:06:42.120 --> 0:06:46.520 where Justice is Briar and Justice is Kagan sometimes vote 0:06:46.520 --> 0:06:50.520 in ways that one might not expect if one's just 0:06:50.560 --> 0:06:52.960 sort of a predicting a sort of you know, liberal 0:06:52.960 --> 0:06:56.599 conservative split. Um. I think that we have seen in 0:06:56.600 --> 0:07:00.960 the past those two justices. Um. You know, when Justice 0:07:00.960 --> 0:07:04.960 Ginsburg was on the court, the four liberal justices sometimes 0:07:05.000 --> 0:07:07.800 had two different approaches within their groups. Right, there was 0:07:07.880 --> 0:07:12.000 Justice Ginsburg and Justice so to Mayor, who would often 0:07:12.120 --> 0:07:18.360 articulate sometimes the the strong form version of of of 0:07:18.400 --> 0:07:21.280 a liberal position. And then you sometimes saw Justice A. 0:07:21.400 --> 0:07:24.520 Briar and Kagan together trying to create a climate on 0:07:24.560 --> 0:07:27.960 the court where the Chief Justice, uh where it was 0:07:28.320 --> 0:07:33.680 um he had a sort of hospitable, welcoming um environment 0:07:33.760 --> 0:07:35.840 in which he could take that decision to sort of 0:07:35.840 --> 0:07:39.080 protect the institution and try to find a sort of 0:07:39.160 --> 0:07:42.760 narrower or or um you know, an approach that would 0:07:42.760 --> 0:07:44.840 turn down the temperature. And they were they were trying 0:07:44.840 --> 0:07:46.600 to meet him and trying to help him do that. 0:07:47.120 --> 0:07:51.480 I think that if we see an institutionalist middle block 0:07:51.600 --> 0:07:56.360 emerge with Chief Justice Robberts and potentially a Justice Kavanaugh, 0:07:56.880 --> 0:07:58.560 but it would not surprise me to see Justice Is 0:07:58.640 --> 0:08:01.760 Briar and Kagan continue trying to you know, do their 0:08:01.800 --> 0:08:06.240 part and and and also create a institutionalist middle of 0:08:06.280 --> 0:08:10.160 the court. But if instead Justice is Kavanaugh, if Justice 0:08:10.240 --> 0:08:11.960 Kavanaugh does not show up for that, or if the 0:08:12.040 --> 0:08:15.000 Chief Justice decides that he can have more influence over 0:08:15.000 --> 0:08:17.280 the Court by actually voting with the six all the 0:08:17.320 --> 0:08:20.400 time and assigning those opinions, then Justice Is Brian and 0:08:20.480 --> 0:08:24.360 Kagan won't have anyone willing to join them in that 0:08:24.480 --> 0:08:28.120 effort of trying to um, you know, steer the court 0:08:28.280 --> 0:08:32.400 towards the the the the narrower and less contentious grounds. 0:08:32.960 --> 0:08:35.760 And I don't know that you know, they would keep 0:08:35.760 --> 0:08:38.680 showing up for that, if they keep trying to be 0:08:38.800 --> 0:08:41.800 there and meet some of their colleagues uh in that 0:08:41.840 --> 0:08:44.120 middle spot. If they're constantly showing up in there alone, 0:08:44.760 --> 0:08:47.520 then I'm not sure that there's much reason for them 0:08:47.559 --> 0:08:50.400 to continue doing that. And you may see a more 0:08:51.480 --> 0:08:56.200 permanent and entrenched and kind of almost um uh separated 0:08:56.200 --> 0:08:58.920 wings of the court where it really is the three 0:08:59.240 --> 0:09:04.120 um liberals, this is very much together holding up as 0:09:04.160 --> 0:09:08.000 the the firm dissenting wing of the court, as opposed 0:09:08.000 --> 0:09:12.440 to trying to find a kind of institutional center. Justice 0:09:12.520 --> 0:09:15.160 Kay again, whom you clerked for, is seen as this 0:09:15.200 --> 0:09:20.040 sort of go between moderator, negotiator. What will her role 0:09:20.120 --> 0:09:25.080 be like on this new court? A lot harder, a 0:09:25.080 --> 0:09:28.960 lot harder, and uh, you know, she is uh an 0:09:28.960 --> 0:09:33.840 incredibly talented both jurist but also someone who understands these 0:09:33.920 --> 0:09:37.240 dynamics better than probably you know as well. It's not 0:09:37.280 --> 0:09:40.240 better than anybody. There's you know, maybe a couple of 0:09:40.240 --> 0:09:42.720 people who are also on the Supreme Court who understand 0:09:42.760 --> 0:09:44.920 these dynamics as well as she does. But you know, 0:09:44.960 --> 0:09:47.679 if if I've been describing this right, her job has 0:09:47.720 --> 0:09:51.280 gotten in some sense, I guess twice as hard right, 0:09:51.440 --> 0:09:55.439 She now needs to try to find ways to persuade 0:09:55.480 --> 0:09:58.960 two people who might not be inclined to agree with 0:09:59.000 --> 0:10:01.960 her on the sort of merit of some of these 0:10:02.000 --> 0:10:05.560 issues that it is to the good of the Court 0:10:05.600 --> 0:10:07.560 and to the good of the country for them to 0:10:07.600 --> 0:10:10.800 come together and try to find ways to steer the 0:10:10.840 --> 0:10:15.360 Court away from all of the troubled waters that come 0:10:15.440 --> 0:10:19.040 from going just full steam ahead into you know, all 0:10:19.080 --> 0:10:23.000 of the the the the the rocks and strolls of 0:10:23.400 --> 0:10:27.160 divisive culture wars. Or she had to persuade the Chief Justice, 0:10:27.200 --> 0:10:29.040 or she had to work with the Chief Justice, or 0:10:29.840 --> 0:10:33.080 try to find common ground in that shared desire for 0:10:33.160 --> 0:10:37.640 that institutionalist middle position. Now she needs to persuade him 0:10:37.679 --> 0:10:41.760 and at least one other person. Finally, Justice Brier is 0:10:41.840 --> 0:10:45.240 now the leader of the liberal block. Do you see 0:10:45.280 --> 0:10:49.360 his role being in any way different from Justice Ginsburg's. 0:10:50.520 --> 0:10:58.000 Justice Brier is an incredibly thoughtful and also pragmatic justice, 0:10:58.240 --> 0:11:01.240 So I think that he is someone well suited to 0:11:01.400 --> 0:11:07.280 now being the the leader of and increasingly of a 0:11:07.320 --> 0:11:11.360 shrinking liberal wing of the Court. UM he is someone 0:11:11.400 --> 0:11:14.000 who I think will be trying very hard to find 0:11:14.040 --> 0:11:20.720 ways to UM try to build or try to assemble 0:11:20.840 --> 0:11:24.600 that type of institutionalist metal position, in part because that's 0:11:24.640 --> 0:11:26.640 the way he thinks, I think about the court, and 0:11:26.679 --> 0:11:28.520 also because he's someone who is going to be trying 0:11:28.559 --> 0:11:32.439 to find solutions. Uh. And so I think that he's 0:11:32.120 --> 0:11:35.760 he's he's able and and a depth and in some 0:11:35.800 --> 0:11:39.000 ways the sort of um fortuitous person to have in 0:11:39.040 --> 0:11:41.840 the senior position of the liberal wing of the court, 0:11:42.440 --> 0:11:48.160 you know, in in in um. In many ways, as 0:11:48.200 --> 0:11:52.880 your wing gets smaller, uh, the role of the leader 0:11:53.520 --> 0:11:56.040 changes also. Right, There's now really just three of them, 0:11:56.080 --> 0:12:00.000 and I expect that the three of them will recognize 0:12:00.880 --> 0:12:04.480 that they are more isolated than they were last term, 0:12:04.640 --> 0:12:07.480 that they have a harder job than they have had 0:12:07.520 --> 0:12:09.800 at any point in time at which any of them 0:12:09.800 --> 0:12:11.200 have been on the court. And that's the type of 0:12:11.240 --> 0:12:15.000 thing that I would expect draws colleagues together, uh, And 0:12:15.120 --> 0:12:18.200 that he will be the leader of that of that 0:12:18.480 --> 0:12:21.760 um component of the court, but that the three of 0:12:21.800 --> 0:12:25.160 them also, I think, will just be constantly checking in 0:12:25.200 --> 0:12:29.240 with each other and recognizing, um, how much they are 0:12:29.280 --> 0:12:34.920 now in a really a shared position trying to articulate 0:12:35.480 --> 0:12:38.240 a vision of the Constitution and of the law that 0:12:38.600 --> 0:12:41.920 is much harder for them to prevail on than was 0:12:42.000 --> 0:12:45.520 true just a few months ago. That's professor Andrew Crespo 0:12:45.640 --> 0:12:50.439 of Harvard Law School. As the Supreme Court began its term, 0:12:50.559 --> 0:12:54.400 it also announced some cases that it rejected in legal speak, 0:12:54.640 --> 0:12:57.840 cases in which the Court denied Sir serri. One of 0:12:57.840 --> 0:13:01.200 those cases involved an incident that gain national attention. In 0:13:01.240 --> 0:13:05.720 t Kim Davis, the former Kentucky clerk who refused to 0:13:05.720 --> 0:13:09.160 issue marriage licenses to same sex couples because of her 0:13:09.160 --> 0:13:12.720 religious beliefs, is being sued by two gay couples. Of 0:13:12.800 --> 0:13:16.959 Federal Appeals Court rejected her claims of qualified immunity. What's 0:13:16.960 --> 0:13:20.080 most interesting is not that the Justice is refused to 0:13:20.120 --> 0:13:23.960 hear Davis's appeal. That happens to thousands of cases every year. 0:13:24.320 --> 0:13:26.959 It's the statements made by two of the justice is 0:13:27.000 --> 0:13:30.360 about gay marriage in rejecting that appeal. Joining me is 0:13:30.400 --> 0:13:34.480 Steve Sanders, a professor at Indiana University's Maras School of Law. 0:13:34.960 --> 0:13:37.840 Steve first tell us what the basis of the lawsuits 0:13:37.840 --> 0:13:41.360 against Davis is. So we all remember, in the wake 0:13:41.440 --> 0:13:44.200 of the Supreme Courts of Bergothell decision, there was this 0:13:44.320 --> 0:13:47.960 drama where you had a county clerk in Kentucky who 0:13:48.000 --> 0:13:52.360 refused to issue marriage licenses uh to gay couples because 0:13:52.360 --> 0:13:55.880 she said it was a violation of her personal religious beliefs. 0:13:55.880 --> 0:13:59.559 And so this lawsuit has been through various iterations in 0:13:59.800 --> 0:14:02.480 in the federal courts, but basically what it boils down 0:14:02.480 --> 0:14:06.679 to is that the couples are seeking damages. They are 0:14:06.480 --> 0:14:10.880 they are saying that, um, they were injured, that their 0:14:10.960 --> 0:14:15.400 constitutional rights were violated by the fact the clerk refused 0:14:15.400 --> 0:14:18.800 to give them a marriage license, and so they're actually, uh, 0:14:19.000 --> 0:14:22.160 there's no injunctive relief that they can seek any longer, 0:14:22.200 --> 0:14:25.560 because of course, you know, they're married and marriage equality 0:14:25.640 --> 0:14:28.720 is now the law. But they're saying that, um, you know, 0:14:28.840 --> 0:14:33.200 a government official violated our constitutional rights and that is 0:14:33.240 --> 0:14:37.400 actionable for damages. Jim Davis's defense is that she was 0:14:37.600 --> 0:14:41.840 entitled to qualified immunity. More commonly, we've heard it recently 0:14:42.080 --> 0:14:46.200 used by police officers. Explain what her defense is there? 0:14:46.960 --> 0:14:50.000 Sure they the rule of qualified immunity is something the 0:14:50.040 --> 0:14:54.200 Supreme Court has developed in order to balance the idea that, yes, 0:14:54.640 --> 0:14:58.680 when people have their constitutional rights violated, they should be 0:14:58.800 --> 0:15:03.000 entitled to compass station for those uh, for those damages, 0:15:03.040 --> 0:15:06.640 for those injured, rights for the emotional distress and other 0:15:06.720 --> 0:15:10.360 things that they suffer, which are real and compensable injuries 0:15:10.400 --> 0:15:13.480 that are long recognized in the law. But qualified immunity 0:15:13.520 --> 0:15:15.960 says that needs to be balanced with the idea that 0:15:16.280 --> 0:15:20.160 we don't want to hold a government actor personally aliable, 0:15:20.320 --> 0:15:25.120 personally accountable unless they were not acting in good faith, 0:15:25.200 --> 0:15:28.920 and you know, unless the law that they violated was 0:15:29.120 --> 0:15:33.400 clearly established that they didn't make a reasonable mistake. And 0:15:33.680 --> 0:15:37.200 so often what we see in these police cases is 0:15:37.600 --> 0:15:42.360 courts will say, well, that particular kind of excessive use 0:15:42.400 --> 0:15:45.400 of force that the police are alleged to have used 0:15:45.760 --> 0:15:49.440 that had not been clearly established previously as a violation 0:15:49.640 --> 0:15:52.640 of the Fourth Amendment rule against excessive use of force, 0:15:52.680 --> 0:15:55.080 and so we're going to get the police officer a pass. Here. 0:15:55.080 --> 0:15:59.320 By contrast, the couples argue, Look, the Supreme Court decided 0:15:59.800 --> 0:16:04.960 the Berga Fell case quite clearly um At that point, 0:16:05.480 --> 0:16:09.720 the rule of marriage equality became clearly established law. It 0:16:09.800 --> 0:16:14.360 became clearly established that states and their functionaries like Kim 0:16:14.400 --> 0:16:18.480 Davis could not deny the constitutional right to marry to 0:16:18.760 --> 0:16:21.880 same sex couples and and so that's where we are 0:16:22.000 --> 0:16:25.960 right now. The Sixth Circuit, the Federal Court of Appeals 0:16:26.000 --> 0:16:30.360 for that that covers Kentucky, said that the suit may 0:16:30.480 --> 0:16:32.960 proceed now. It hasn't been to trial yet, but it 0:16:33.000 --> 0:16:36.200 says the plaintiffs have stated a claim and Kim Davis 0:16:36.240 --> 0:16:39.160 does not have immunity to prevent that case from going 0:16:39.240 --> 0:16:42.840 forward because she is alleged to have violated a right 0:16:43.280 --> 0:16:45.440 that was not in a gray area that was not 0:16:45.600 --> 0:16:51.000 yet undecided. Um, it was clearly established the right to marry. 0:16:51.040 --> 0:16:55.040 Is she also being sued in her official capacity as clerk. 0:16:56.120 --> 0:16:58.960 So it gets slightly complicated because it gets into the 0:16:59.000 --> 0:17:03.240 difference of whether she is acting as a county official 0:17:03.480 --> 0:17:08.000 or as a state official. UM. On its surface, it 0:17:08.000 --> 0:17:10.000 would seem as though she's a county official. She's a 0:17:10.040 --> 0:17:13.320 county clerk. She's elected by the citizens of the county. 0:17:13.359 --> 0:17:16.200 Her salary is paid by the county. But what the 0:17:16.280 --> 0:17:20.560 Federal Court of Appeals said in issuing marriage licenses, she 0:17:20.800 --> 0:17:23.480 is acting as a state official. She is she is 0:17:23.600 --> 0:17:27.399 exercising power that she has under state law. It is 0:17:27.520 --> 0:17:32.359 state law that regulates marriage licenses. So that being the case, 0:17:32.880 --> 0:17:36.640 she can't be sued for damages in her official capacity. 0:17:36.760 --> 0:17:42.560 Because states have sovereign immunity from lawsuits or damages. UM, 0:17:43.119 --> 0:17:47.560 most state employees and state government actors, when they're sued 0:17:47.600 --> 0:17:52.560 for constitutional violations, must be sued in their individual capacity. 0:17:52.760 --> 0:17:56.800 That gets around the state's sovereign immunity, the sort of 0:17:56.880 --> 0:18:02.040 ancient protection that states have against being sued. Now that 0:18:02.160 --> 0:18:07.159 ends up not being terribly consequential because although technically she 0:18:07.280 --> 0:18:12.359 is being sued individually, she is personally on the hook. Um. 0:18:12.760 --> 0:18:15.119 It's almost always the case, and I assume it's the 0:18:15.160 --> 0:18:21.000 case here that she is indemnified and defended by um, 0:18:21.560 --> 0:18:25.560 the government lawyers. The government voluntarily makes the decision to 0:18:25.640 --> 0:18:30.600 indemnify and defend its employees, and so UM. This gets 0:18:30.600 --> 0:18:33.520 into a bit of a technicality that has uh kind 0:18:33.560 --> 0:18:36.919 of lurks in constitutional law, where you can't sue a 0:18:37.000 --> 0:18:39.520 state or a state official in their own in the 0:18:39.560 --> 0:18:44.160 state's name for damages. You have to sue them individually. Steve, 0:18:44.240 --> 0:18:47.879 do we know why the court turned down Davis's appeal? Well, no, 0:18:48.160 --> 0:18:50.600 we never really know for sure. So the Court of 0:18:50.600 --> 0:18:53.919 Appeals has said she does not have qualified immunity. She 0:18:54.000 --> 0:18:58.280 must face this lawsuit as a defendant. Going forward, a 0:18:58.359 --> 0:19:01.240 trial may take place, and in the end she may 0:19:01.359 --> 0:19:04.720 or may not be accountable for damages to the gay couple. 0:19:05.080 --> 0:19:08.040 She and her lawyers from a group called Liberty Counsel, 0:19:08.080 --> 0:19:10.840 which is really, I think to be candid among the 0:19:10.960 --> 0:19:16.880 most our right conservative religious liberty organizations that exist right now. 0:19:17.359 --> 0:19:20.000 She sought to have the Supreme Court review that qualified 0:19:20.040 --> 0:19:23.960 immunity determination, and the Supreme Court denied it. In the 0:19:24.000 --> 0:19:27.760 parlance they denied, Sir serrari, the Supreme Court rejects the 0:19:27.840 --> 0:19:31.040 vast majority of certain petitions that it received. So, as 0:19:31.080 --> 0:19:34.000 you say, we don't necessarily know why the court denied this, 0:19:34.119 --> 0:19:37.840 I mean, presumably they simply think this does not present 0:19:37.920 --> 0:19:40.880 a substantial question, or they do not think that there 0:19:41.000 --> 0:19:44.560 is a strong enough risk that the lower court aired 0:19:44.640 --> 0:19:47.639 here that four justices, which is what it takes to 0:19:47.680 --> 0:19:50.919 grant a certain petition, decided that it was worth the 0:19:51.000 --> 0:19:56.040 court's attention. Justice Thomas agree with the decision itself, but 0:19:56.119 --> 0:20:00.399 he wrote a scathing statement in which he can damn 0:20:00.480 --> 0:20:04.560 the O. Burger failed decision which legalized gay marriage and 0:20:04.640 --> 0:20:09.560 the Court's alteration of the Constitution. How unusual is a statement, 0:20:10.440 --> 0:20:13.080 This is a little unusual. In the vast majority of 0:20:13.160 --> 0:20:16.480 times the Supreme Court denies a petition for sir Gerar. 0:20:16.680 --> 0:20:19.399 You just get a one sentence order petition denied, and 0:20:19.640 --> 0:20:21.879 none of the justices speak to it. The Court doesn't 0:20:21.920 --> 0:20:24.520 explain itself. It just has decided not to hear that case. 0:20:24.880 --> 0:20:28.719 And if justices do speak, it's usually because they're dissenting 0:20:29.040 --> 0:20:31.960 from the decision. They believe the Court should have heard 0:20:32.000 --> 0:20:34.760 the case. This was not a dissent, it was merely 0:20:34.840 --> 0:20:39.200 labeled as a statement. So Justice Thomas, joined by Justice Alito, 0:20:39.359 --> 0:20:43.040 basically says, look, I agree we shouldn't hear this case. 0:20:43.280 --> 0:20:46.719 You know, we shouldn't take up this issue of qualified immunity. 0:20:46.880 --> 0:20:50.080 But now let me get something off my chest. You know, 0:20:50.200 --> 0:20:53.560 I predicted five years ago that the Oberger Felt decision 0:20:53.600 --> 0:20:57.439 would cause a lot of harm to religious liberty, that 0:20:57.600 --> 0:21:01.320 states should have been allowed to resolve the through legislation, 0:21:01.480 --> 0:21:05.560 not through a court decision, because they could craft religious accommodations. 0:21:05.760 --> 0:21:09.320 He refers to it as the court's alteration of the Constitution, 0:21:09.400 --> 0:21:13.200 which is tendentious language. I mean, the Court interpreted the Constitution. 0:21:13.400 --> 0:21:15.480 When you don't like the result, you say the Court 0:21:15.480 --> 0:21:18.879 has altered the Constitution. So again it's sort of Justice Thomas, 0:21:19.040 --> 0:21:21.639 joined by Justice Alito, seemed to think he had to 0:21:21.680 --> 0:21:24.400 get this off his chest. You know, everything I predicted 0:21:24.440 --> 0:21:28.960 about the harmful religious liberty consequences of obergh Fell had 0:21:29.040 --> 0:21:32.520 come through. Nonetheless, in the end, I agree we shouldn't 0:21:32.560 --> 0:21:34.879 hear this petition that Kim Davis should have to go 0:21:34.920 --> 0:21:38.000 to trial and potentially faced damages. So what can you 0:21:38.040 --> 0:21:41.639 read into this about the future of gay marriage? What 0:21:41.920 --> 0:21:45.479 I read into this is that the fact that only 0:21:45.640 --> 0:21:50.040 two justices he issued this statement. I interpret the fact 0:21:50.080 --> 0:21:54.160 that the Court's other three current conservative Chief Justice Roberts, 0:21:54.160 --> 0:21:57.760 who voted against the oberg a Fell decision, plus Justice 0:21:57.760 --> 0:22:02.000 core Such and Justice Kavanaugh didn't join this statement as 0:22:02.040 --> 0:22:05.840 a strong signal that a majority of the Court going 0:22:05.880 --> 0:22:10.280 forward has no appetite to revisit the core holding of 0:22:10.320 --> 0:22:13.480 the oberg a Fell decision. This is really Justice Thomas 0:22:13.520 --> 0:22:16.960 and Justice Alito fighting the last war, and they have 0:22:17.080 --> 0:22:20.600 not gotten anyone else to join them. Even though if 0:22:20.600 --> 0:22:23.200 we were deciding to question today for the first time, 0:22:23.480 --> 0:22:26.640 some of the Court's conservatives might feel the same way. 0:22:26.800 --> 0:22:29.720 We know how Justice Roberts felt back in he voted 0:22:29.760 --> 0:22:33.240 against the olberg A Felt decision. Nonetheless, it's law. Tens 0:22:33.240 --> 0:22:36.159 of thousands of people are getting married, have gotten married. 0:22:36.160 --> 0:22:39.080 They've relied on the decision. I take the fact that 0:22:39.200 --> 0:22:43.720 Thomas and Alito alone issued this statement as a strong 0:22:43.720 --> 0:22:46.919 indication that the other conservatives on the Court, not to mention, 0:22:46.960 --> 0:22:51.600 the more liberal justices, have no appetite for relitigating the 0:22:51.640 --> 0:22:55.760 basic soundness of the oberg A Fell marriage equality decision. 0:22:56.200 --> 0:22:59.760 Do you read from this that Thomas and Alito, if 0:22:59.800 --> 0:23:02.560 they could, if they had the votes, would reverse A 0:23:02.640 --> 0:23:05.840 Burger Felt. It certainly seems that way. I think that's 0:23:05.840 --> 0:23:10.159 a fair implication, because again, for them, the consequences of 0:23:10.200 --> 0:23:14.200 the decision for religious liberties seemed to be paramount. Couple 0:23:14.280 --> 0:23:16.680 that with their basic view that this is a question 0:23:16.720 --> 0:23:20.439 that should be resolved through the democratic process, through state 0:23:20.560 --> 0:23:24.680 by state legislation, not by a court decree. So I 0:23:24.720 --> 0:23:27.600 think it is a fair indication that if the issue 0:23:27.600 --> 0:23:30.720 were teed up somehow again for the Court's decision, they 0:23:30.760 --> 0:23:34.119 would overturn O Burga Felt. But again, that's two justices 0:23:34.240 --> 0:23:37.400 out of nine, and I just don't foresee any reasonable 0:23:37.480 --> 0:23:39.840 possibility that this is going to come back to the quarter. 0:23:39.960 --> 0:23:42.399 If it did that, you would find a majority of 0:23:42.400 --> 0:23:46.439 the Court willing to relitigate this question. Thanks Steve. That 0:23:46.560 --> 0:23:50.920 Steve Sanders of Indiana University's Mars School of Law. Coming 0:23:51.000 --> 0:23:53.680 up next on the Bloomberg Law Show. With a new 0:23:53.720 --> 0:23:57.240 conservative justice on the court, the liberal justices will be 0:23:57.280 --> 0:24:00.680 looking for new alliances. I'm June graw So, and you're 0:24:00.760 --> 0:24:01.719 listening to Bloomberg