Speaker 1: This is Bloombird Law with June Grasso from Bloomberg Radio.
Speaker 1: Her four hundred and eighty three majority concurring and descending opinions,
Speaker 1: we'll steer the court for decades. They are written with
Speaker 1: the unaffected grace of precision. Her voice in court and
Speaker 1: in our conference room was soft, but when she spoke,
Speaker 1: people listened. For the first time in twenty seven years,
Speaker 1: Justice Ruth Bader Ginsburg's voice will not be heard at
Speaker 1: the Supreme Court. The Court's liberal wing was outmatched before
Speaker 1: her death, and it's going to get worse. How much
Speaker 1: worse that depends the courts for liberals had managed to
Speaker 1: eke out some winds in controversial cases when a conservative justice,
Speaker 1: usually the Chief Justice, crossed over to build a majority
Speaker 1: in five to four cases. Now they'll have to win
Speaker 1: over two conservatives. My guest is Andrew Crespo, a professor
Speaker 1: at Harvard Law School. He clerked for both Justices Stephen
Speaker 1: Bryer and Elena Kagan. There was only one case in
Speaker 1: the past term involving a hot button social issue in
Speaker 1: which two conservative justices, Chief Justice John Roberts and Justice
Speaker 1: Neil Gorsich, sided with the liberal justices in a landmark
Speaker 1: victory for gay rights. So what does a new solid
Speaker 1: conservative majority mean for the prospect of liberal victories in
Speaker 1: the future. So I think it is the essential question,
Speaker 1: and the short answer is, we don't know that could go.
Speaker 1: I think in sort of one of two ways. The assumption,
Speaker 1: based on some of what she's written and on her profile,
Speaker 1: is that a new Justice Coney Barrett will join Justices
Speaker 1: Thomas and Alito informing what is the sort of far
Speaker 1: right grouping on the current Supreme Court. The most conservative
Speaker 1: justices and obviously the liberal wing of the Court which
Speaker 1: used to be for justices, will now be composed of
Speaker 1: just three Stephen Bryer, Elena Kagan and only system I own.
Speaker 1: The open question is what happens with the other two
Speaker 1: or three justices on the court. Chief Justice Robertsfice breat
Speaker 1: have not in Justice Neil Coursus. Look, it's important to
Speaker 1: realize that those three justices are also strongly conservative justices.
Speaker 1: This is now going to be a six three conservative
Speaker 1: court in terms of the ways in which those justices
Speaker 1: think about some of the essential questions of legal interpretation
Speaker 1: of constitutional law. You have six justices who share a
Speaker 1: common conservative approach who have had the career trajectories and
Speaker 1: the jurisprudential philosophies that mark them all as part of
Speaker 1: a clearly identifiable conservative tradition of jurisprudence. The thing that
Speaker 1: might subdivide that group of six is how much they
Speaker 1: view themselves as institutionalists versus conservatives first and foremost. In
Speaker 1: other words, how much is their primary instinct to try
Speaker 1: to protect the Supreme Court as an institution, to try
Speaker 1: to steer it away from the bumpiest, most turbulent sort
Speaker 1: of culture war and ideological battles so that the Court
Speaker 1: can try to maintain at least the image and potentially
Speaker 1: the reality of being above the fray. Or how much
Speaker 1: is their primary goal to actually win those cultural battles
Speaker 1: and you know, full steam ahead into them. So where
Speaker 1: do you see the conservatives falling on that spectrum? I
Speaker 1: think that Justice is Thomas and Alito are more like
Speaker 1: in that latter camp, more likely to prioritize winning those battles.
Speaker 1: I think that we've seen Chief Justice Roberts, at least
Speaker 1: for the time being, in that institutionalist position, and that's
Speaker 1: how we've seen some five four rulings that the liberals
Speaker 1: have won because the chiefs has sometimes sided with them.
Speaker 1: The key thing now is the Chief alone won't be
Speaker 1: able to do that. So the question is, will there
Speaker 1: emerge a kind of institutionalist middle block, perhaps with Justice
Speaker 1: Kavanaugh joining the Chief Justice to join with the remaining
Speaker 1: three liberals in rulings that try to just turn down
Speaker 1: the temperature, that try to air towards calmer waters. That's
Speaker 1: the big question. If that happens, then you could potentially
Speaker 1: see the emergence of some continued five four rulings where
Speaker 1: the far conservative wing still loses. If that doesn't happen,
Speaker 1: then I think you'll see a real growing and emerging
Speaker 1: chasm between the six and the three. Justice Kavanaugh only
Speaker 1: sided with the liberals in a five to four decision
Speaker 1: once this past term, and that involved anti trust. So
Speaker 1: why would he be that second vote that the liberals
Speaker 1: need besides the Chief. Well, the dynamics have changed. Right before,
Speaker 1: you didn't need his vote to allow the Court to
Speaker 1: protect its institutional reputation because the Chief was carrying that
Speaker 1: all on his shoulders. The Chief alone could sometimes vote
Speaker 1: with the four liberal justices and allow the Court to
Speaker 1: not be sort of taken sharply and aggressively all in
Speaker 1: one direction on some of these most top flighting issues.
Speaker 1: In other words, Justice Kavanaugh was off the hook for
Speaker 1: his vote. Wasn't necessary for the Court to be able
Speaker 1: to chart that type of path that tries to occasionally
Speaker 1: see are clear of some of the most divisive, the
Speaker 1: most aggressively conservative pulling. Now that won't be the case
Speaker 1: right now. The chief that most if he tried to
Speaker 1: do that by himself, would be giving a fourth vote.
Speaker 1: There needs to be a fifth vote. So the question
Speaker 1: is there's Justice Kavanaugh now seeing himself as essentially, um
Speaker 1: you know, being in the hot seat on those questions
Speaker 1: of do we go the route of you know, going
Speaker 1: hard to the right or trying to turn down the
Speaker 1: temperature and ste are clear of some of these um
Speaker 1: these most divisive issues. It's basically his decision now, or
Speaker 1: at least it's his decision and the chiefs together, whereas before, frankly,
Speaker 1: he wasn't being called on for that right you know,
Speaker 1: now now now the attention turns to him. This assumes
Speaker 1: that all three of the liberals stick together, and they
Speaker 1: haven't always. There were cases this past or where Justice
Speaker 1: is briar and Kagan sided with the conservatives. So how
Speaker 1: tied is this new liberal group. Yeah. So, you know,
Speaker 1: whenever there's an instance in which the Court is potentially
Speaker 1: um staying it's hand and not going for the most um,
Speaker 1: you know, far right interpretation on the table, you can
Speaker 1: count on the three justices Ginsburg. I'm sorry, Justice is Briar,
Speaker 1: Kagan and so of Mayor Uh to want to resist
Speaker 1: any sort of hardshift to the right. Um. But your question,
Speaker 1: I think gets that, well, what do we expect to
Speaker 1: happen when we continue to see the occasional UM rulings
Speaker 1: where Justice is Briar and Justice is Kagan sometimes vote
Speaker 1: in ways that one might not expect if one's just
Speaker 1: sort of a predicting a sort of you know, liberal
Speaker 1: conservative split. Um. I think that we have seen in
Speaker 1: the past those two justices. Um. You know, when Justice
Speaker 1: Ginsburg was on the court, the four liberal justices sometimes
Speaker 1: had two different approaches within their groups. Right, there was
Speaker 1: Justice Ginsburg and Justice so to Mayor, who would often
Speaker 1: articulate sometimes the the strong form version of of of
Speaker 1: a liberal position. And then you sometimes saw Justice A.
Speaker 1: Briar and Kagan together trying to create a climate on
Speaker 1: the court where the Chief Justice, uh where it was
Speaker 1: um he had a sort of hospitable, welcoming um environment
Speaker 1: in which he could take that decision to sort of
Speaker 1: protect the institution and try to find a sort of
Speaker 1: narrower or or um you know, an approach that would
Speaker 1: turn down the temperature. And they were they were trying
Speaker 1: to meet him and trying to help him do that.
Speaker 1: I think that if we see an institutionalist middle block
Speaker 1: emerge with Chief Justice Robberts and potentially a Justice Kavanaugh,
Speaker 1: but it would not surprise me to see Justice Is
Speaker 1: Briar and Kagan continue trying to you know, do their
Speaker 1: part and and and also create a institutionalist middle of
Speaker 1: the court. But if instead Justice is Kavanaugh, if Justice
Speaker 1: Kavanaugh does not show up for that, or if the
Speaker 1: Chief Justice decides that he can have more influence over
Speaker 1: the Court by actually voting with the six all the
Speaker 1: time and assigning those opinions, then Justice Is Brian and
Speaker 1: Kagan won't have anyone willing to join them in that
Speaker 1: effort of trying to um, you know, steer the court
Speaker 1: towards the the the the narrower and less contentious grounds.
Speaker 1: And I don't know that you know, they would keep
Speaker 1: showing up for that, if they keep trying to be
Speaker 1: there and meet some of their colleagues uh in that
Speaker 1: middle spot. If they're constantly showing up in there alone,
Speaker 1: then I'm not sure that there's much reason for them
Speaker 1: to continue doing that. And you may see a more
Speaker 1: permanent and entrenched and kind of almost um uh separated
Speaker 1: wings of the court where it really is the three
Speaker 1: um liberals, this is very much together holding up as
Speaker 1: the the firm dissenting wing of the court, as opposed
Speaker 1: to trying to find a kind of institutional center. Justice
Speaker 1: Kay again, whom you clerked for, is seen as this
Speaker 1: sort of go between moderator, negotiator. What will her role
Speaker 1: be like on this new court? A lot harder, a
Speaker 1: lot harder, and uh, you know, she is uh an
Speaker 1: incredibly talented both jurist but also someone who understands these
Speaker 1: dynamics better than probably you know as well. It's not
Speaker 1: better than anybody. There's you know, maybe a couple of
Speaker 1: people who are also on the Supreme Court who understand
Speaker 1: these dynamics as well as she does. But you know,
Speaker 1: if if I've been describing this right, her job has
Speaker 1: gotten in some sense, I guess twice as hard right,
Speaker 1: She now needs to try to find ways to persuade
Speaker 1: two people who might not be inclined to agree with
Speaker 1: her on the sort of merit of some of these
Speaker 1: issues that it is to the good of the Court
Speaker 1: and to the good of the country for them to
Speaker 1: come together and try to find ways to steer the
Speaker 1: Court away from all of the troubled waters that come
Speaker 1: from going just full steam ahead into you know, all
Speaker 1: of the the the the the rocks and strolls of
Speaker 1: divisive culture wars. Or she had to persuade the Chief Justice,
Speaker 1: or she had to work with the Chief Justice, or
Speaker 1: try to find common ground in that shared desire for
Speaker 1: that institutionalist middle position. Now she needs to persuade him
Speaker 1: and at least one other person. Finally, Justice Brier is
Speaker 1: now the leader of the liberal block. Do you see
Speaker 1: his role being in any way different from Justice Ginsburg's.
Speaker 1: Justice Brier is an incredibly thoughtful and also pragmatic justice,
Speaker 1: So I think that he is someone well suited to
Speaker 1: now being the the leader of and increasingly of a
Speaker 1: shrinking liberal wing of the Court. UM he is someone
Speaker 1: who I think will be trying very hard to find
Speaker 1: ways to UM try to build or try to assemble
Speaker 1: that type of institutionalist metal position, in part because that's
Speaker 1: the way he thinks, I think about the court, and
Speaker 1: also because he's someone who is going to be trying
Speaker 1: to find solutions. Uh. And so I think that he's
Speaker 1: he's he's able and and a depth and in some
Speaker 1: ways the sort of um fortuitous person to have in
Speaker 1: the senior position of the liberal wing of the court,
Speaker 1: you know, in in in um. In many ways, as
Speaker 1: your wing gets smaller, uh, the role of the leader
Speaker 1: changes also. Right, There's now really just three of them,
Speaker 1: and I expect that the three of them will recognize
Speaker 1: that they are more isolated than they were last term,
Speaker 1: that they have a harder job than they have had
Speaker 1: at any point in time at which any of them
Speaker 1: have been on the court. And that's the type of
Speaker 1: thing that I would expect draws colleagues together, uh, And
Speaker 1: that he will be the leader of that of that
Speaker 1: um component of the court, but that the three of
Speaker 1: them also, I think, will just be constantly checking in
Speaker 1: with each other and recognizing, um, how much they are
Speaker 1: now in a really a shared position trying to articulate
Speaker 1: a vision of the Constitution and of the law that
Speaker 1: is much harder for them to prevail on than was
Speaker 1: true just a few months ago. That's professor Andrew Crespo
Speaker 1: of Harvard Law School. As the Supreme Court began its term,
Speaker 1: it also announced some cases that it rejected in legal speak,
Speaker 1: cases in which the Court denied Sir serri. One of
Speaker 1: those cases involved an incident that gain national attention. In
Speaker 1: t Kim Davis, the former Kentucky clerk who refused to
Speaker 1: issue marriage licenses to same sex couples because of her
Speaker 1: religious beliefs, is being sued by two gay couples. Of
Speaker 1: Federal Appeals Court rejected her claims of qualified immunity. What's
Speaker 1: most interesting is not that the Justice is refused to
Speaker 1: hear Davis's appeal. That happens to thousands of cases every year.
Speaker 1: It's the statements made by two of the justice is
Speaker 1: about gay marriage in rejecting that appeal. Joining me is
Speaker 1: Steve Sanders, a professor at Indiana University's Maras School of Law.
Speaker 1: Steve first tell us what the basis of the lawsuits
Speaker 1: against Davis is. So we all remember, in the wake
Speaker 1: of the Supreme Courts of Bergothell decision, there was this
Speaker 1: drama where you had a county clerk in Kentucky who
Speaker 1: refused to issue marriage licenses uh to gay couples because
Speaker 1: she said it was a violation of her personal religious beliefs.
Speaker 1: And so this lawsuit has been through various iterations in
Speaker 1: in the federal courts, but basically what it boils down
Speaker 1: to is that the couples are seeking damages. They are
Speaker 1: they are saying that, um, they were injured, that their
Speaker 1: constitutional rights were violated by the fact the clerk refused
Speaker 1: to give them a marriage license, and so they're actually, uh,
Speaker 1: there's no injunctive relief that they can seek any longer,
Speaker 1: because of course, you know, they're married and marriage equality
Speaker 1: is now the law. But they're saying that, um, you know,
Speaker 1: a government official violated our constitutional rights and that is
Speaker 1: actionable for damages. Jim Davis's defense is that she was
Speaker 1: entitled to qualified immunity. More commonly, we've heard it recently
Speaker 1: used by police officers. Explain what her defense is there?
Speaker 1: Sure they the rule of qualified immunity is something the
Speaker 1: Supreme Court has developed in order to balance the idea that, yes,
Speaker 1: when people have their constitutional rights violated, they should be
Speaker 1: entitled to compass station for those uh, for those damages,
Speaker 1: for those injured, rights for the emotional distress and other
Speaker 1: things that they suffer, which are real and compensable injuries
Speaker 1: that are long recognized in the law. But qualified immunity
Speaker 1: says that needs to be balanced with the idea that
Speaker 1: we don't want to hold a government actor personally aliable,
Speaker 1: personally accountable unless they were not acting in good faith,
Speaker 1: and you know, unless the law that they violated was
Speaker 1: clearly established that they didn't make a reasonable mistake. And
Speaker 1: so often what we see in these police cases is
Speaker 1: courts will say, well, that particular kind of excessive use
Speaker 1: of force that the police are alleged to have used
Speaker 1: that had not been clearly established previously as a violation
Speaker 1: of the Fourth Amendment rule against excessive use of force,
Speaker 1: and so we're going to get the police officer a pass. Here.
Speaker 1: By contrast, the couples argue, Look, the Supreme Court decided
Speaker 1: the Berga Fell case quite clearly um At that point,
Speaker 1: the rule of marriage equality became clearly established law. It
Speaker 1: became clearly established that states and their functionaries like Kim
Speaker 1: Davis could not deny the constitutional right to marry to
Speaker 1: same sex couples and and so that's where we are
Speaker 1: right now. The Sixth Circuit, the Federal Court of Appeals
Speaker 1: for that that covers Kentucky, said that the suit may
Speaker 1: proceed now. It hasn't been to trial yet, but it
Speaker 1: says the plaintiffs have stated a claim and Kim Davis
Speaker 1: does not have immunity to prevent that case from going
Speaker 1: forward because she is alleged to have violated a right
Speaker 1: that was not in a gray area that was not
Speaker 1: yet undecided. Um, it was clearly established the right to marry.
Speaker 1: Is she also being sued in her official capacity as clerk.
Speaker 1: So it gets slightly complicated because it gets into the
Speaker 1: difference of whether she is acting as a county official
Speaker 1: or as a state official. UM. On its surface, it
Speaker 1: would seem as though she's a county official. She's a
Speaker 1: county clerk. She's elected by the citizens of the county.
Speaker 1: Her salary is paid by the county. But what the
Speaker 1: Federal Court of Appeals said in issuing marriage licenses, she
Speaker 1: is acting as a state official. She is she is
Speaker 1: exercising power that she has under state law. It is
Speaker 1: state law that regulates marriage licenses. So that being the case,
Speaker 1: she can't be sued for damages in her official capacity.
Speaker 1: Because states have sovereign immunity from lawsuits or damages. UM,
Speaker 1: most state employees and state government actors, when they're sued
Speaker 1: for constitutional violations, must be sued in their individual capacity.
Speaker 1: That gets around the state's sovereign immunity, the sort of
Speaker 1: ancient protection that states have against being sued. Now that
Speaker 1: ends up not being terribly consequential because although technically she
Speaker 1: is being sued individually, she is personally on the hook. Um.
Speaker 1: It's almost always the case, and I assume it's the
Speaker 1: case here that she is indemnified and defended by um,
Speaker 1: the government lawyers. The government voluntarily makes the decision to
Speaker 1: indemnify and defend its employees, and so UM. This gets
Speaker 1: into a bit of a technicality that has uh kind
Speaker 1: of lurks in constitutional law, where you can't sue a
Speaker 1: state or a state official in their own in the
Speaker 1: state's name for damages. You have to sue them individually. Steve,
Speaker 1: do we know why the court turned down Davis's appeal? Well, no,
Speaker 1: we never really know for sure. So the Court of
Speaker 1: Appeals has said she does not have qualified immunity. She
Speaker 1: must face this lawsuit as a defendant. Going forward, a
Speaker 1: trial may take place, and in the end she may
Speaker 1: or may not be accountable for damages to the gay couple.
Speaker 1: She and her lawyers from a group called Liberty Counsel,
Speaker 1: which is really, I think to be candid among the
Speaker 1: most our right conservative religious liberty organizations that exist right now.
Speaker 1: She sought to have the Supreme Court review that qualified
Speaker 1: immunity determination, and the Supreme Court denied it. In the
Speaker 1: parlance they denied, Sir serrari, the Supreme Court rejects the
Speaker 1: vast majority of certain petitions that it received. So, as
Speaker 1: you say, we don't necessarily know why the court denied this,
Speaker 1: I mean, presumably they simply think this does not present
Speaker 1: a substantial question, or they do not think that there
Speaker 1: is a strong enough risk that the lower court aired
Speaker 1: here that four justices, which is what it takes to
Speaker 1: grant a certain petition, decided that it was worth the
Speaker 1: court's attention. Justice Thomas agree with the decision itself, but
Speaker 1: he wrote a scathing statement in which he can damn
Speaker 1: the O. Burger failed decision which legalized gay marriage and
Speaker 1: the Court's alteration of the Constitution. How unusual is a statement,
Speaker 1: This is a little unusual. In the vast majority of
Speaker 1: times the Supreme Court denies a petition for sir Gerar.
Speaker 1: You just get a one sentence order petition denied, and
Speaker 1: none of the justices speak to it. The Court doesn't
Speaker 1: explain itself. It just has decided not to hear that case.
Speaker 1: And if justices do speak, it's usually because they're dissenting
Speaker 1: from the decision. They believe the Court should have heard
Speaker 1: the case. This was not a dissent, it was merely
Speaker 1: labeled as a statement. So Justice Thomas, joined by Justice Alito,
Speaker 1: basically says, look, I agree we shouldn't hear this case.
Speaker 1: You know, we shouldn't take up this issue of qualified immunity.
Speaker 1: But now let me get something off my chest. You know,
Speaker 1: I predicted five years ago that the Oberger Felt decision
Speaker 1: would cause a lot of harm to religious liberty, that
Speaker 1: states should have been allowed to resolve the through legislation,
Speaker 1: not through a court decision, because they could craft religious accommodations.
Speaker 1: He refers to it as the court's alteration of the Constitution,
Speaker 1: which is tendentious language. I mean, the Court interpreted the Constitution.
Speaker 1: When you don't like the result, you say the Court
Speaker 1: has altered the Constitution. So again it's sort of Justice Thomas,
Speaker 1: joined by Justice Alito, seemed to think he had to
Speaker 1: get this off his chest. You know, everything I predicted
Speaker 1: about the harmful religious liberty consequences of obergh Fell had
Speaker 1: come through. Nonetheless, in the end, I agree we shouldn't
Speaker 1: hear this petition that Kim Davis should have to go
Speaker 1: to trial and potentially faced damages. So what can you
Speaker 1: read into this about the future of gay marriage? What
Speaker 1: I read into this is that the fact that only
Speaker 1: two justices he issued this statement. I interpret the fact
Speaker 1: that the Court's other three current conservative Chief Justice Roberts,
Speaker 1: who voted against the oberg a Fell decision, plus Justice
Speaker 1: core Such and Justice Kavanaugh didn't join this statement as
Speaker 1: a strong signal that a majority of the Court going
Speaker 1: forward has no appetite to revisit the core holding of
Speaker 1: the oberg a Fell decision. This is really Justice Thomas
Speaker 1: and Justice Alito fighting the last war, and they have
Speaker 1: not gotten anyone else to join them. Even though if
Speaker 1: we were deciding to question today for the first time,
Speaker 1: some of the Court's conservatives might feel the same way.
Speaker 1: We know how Justice Roberts felt back in he voted
Speaker 1: against the olberg A Felt decision. Nonetheless, it's law. Tens
Speaker 1: of thousands of people are getting married, have gotten married.
Speaker 1: They've relied on the decision. I take the fact that
Speaker 1: Thomas and Alito alone issued this statement as a strong
Speaker 1: indication that the other conservatives on the Court, not to mention,
Speaker 1: the more liberal justices, have no appetite for relitigating the
Speaker 1: basic soundness of the oberg A Fell marriage equality decision.
Speaker 1: Do you read from this that Thomas and Alito, if
Speaker 1: they could, if they had the votes, would reverse A
Speaker 1: Burger Felt. It certainly seems that way. I think that's
Speaker 1: a fair implication, because again, for them, the consequences of
Speaker 1: the decision for religious liberties seemed to be paramount. Couple
Speaker 1: that with their basic view that this is a question
Speaker 1: that should be resolved through the democratic process, through state
Speaker 1: by state legislation, not by a court decree. So I
Speaker 1: think it is a fair indication that if the issue
Speaker 1: were teed up somehow again for the Court's decision, they
Speaker 1: would overturn O Burga Felt. But again, that's two justices
Speaker 1: out of nine, and I just don't foresee any reasonable
Speaker 1: possibility that this is going to come back to the quarter.
Speaker 1: If it did that, you would find a majority of
Speaker 1: the Court willing to relitigate this question. Thanks Steve. That
Speaker 1: Steve Sanders of Indiana University's Mars School of Law. Coming
Speaker 1: up next on the Bloomberg Law Show. With a new
Speaker 1: conservative justice on the court, the liberal justices will be
Speaker 1: looking for new alliances. I'm June graw So, and you're
Speaker 1: listening to Bloomberg