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

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Speaker 1: After the Supreme Court term, come the statistics, which circuit

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Speaker 1: was reversed the most, which justice was in the majority

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Speaker 1: the most, how many closely divided cases were there. You

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Speaker 1: get the idea, and it's the Fourth Circuit that's drawing

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Speaker 1: attention this year. The Virginia based Court of Appeals used

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Speaker 1: to have the lowest rate of being reversed among the circuits,

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Speaker 1: but this term it had the dubious distinction of a

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Speaker 1: one hundred percent reversal rate. The Supreme Court overturned its

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Speaker 1: decisions in eight out of eight cases, and some of

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Speaker 1: those were high profile cases like Mahmood versus Taylor, where

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Speaker 1: the Court allowed religious parents to opt their children out

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Speaker 1: of classes where LGBTQ friendly books are read. My guest

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Speaker 1: is constitutional law expert Harold Krant, a professor at the

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Speaker 1: Chicago Kent College of Law. So how scotis blog has

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Speaker 1: come out with its annual stats for the last term

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Speaker 1: now from two thousand and seven through twenty twenty three,

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Speaker 1: the Supreme Court reversed decisions from the Fourth Circuit in

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Speaker 1: thirty six out of fifty eight cases. That's a sixty

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Speaker 1: two point one percent reversal rate, so it had the

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Speaker 1: lowest rate of being overturned among the circuits, and now

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Speaker 1: in this term it went to one hundred percent reversal rate.

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Speaker 1: Any idea why.

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Speaker 2: I think a little bit is just uplip. These variances

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Speaker 2: occur from time to time. But I also think that

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Speaker 2: given the location of Fourth Circuit, they are centered where

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Speaker 2: so many federal government employees are centered, where there's a

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Speaker 2: lot of grants in terms of HHS offices, Social Security Administration,

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Speaker 2: and so forth, that there's a lot of current litigation

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Speaker 2: against the tough administration which is just centered geographically in

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Speaker 2: that district. So it's not surprising that there's a higher

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Speaker 2: percentage of cases from the Fourth Circuit that are reaching

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Speaker 2: the Supreme Court. And of course it's a little bit

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Speaker 2: of a blip, but it's understandable that there's going to

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Speaker 2: be more cases that the Supreme Court is going to

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Speaker 2: resolve against the Fourth Circuit. Fourth Circuit is relatively ideologically balanced,

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Speaker 2: so it's not considered to be either a very liberal

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Speaker 2: or a very republican very conservative court. But nonetheless there's

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Speaker 2: a lot of these cases that have arisen there and

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Speaker 2: so we're seeing intention between the Fourth Circuit and the

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Speaker 2: Supreme Court.

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Speaker 1: The reversals included some of the blockbusters of the term,

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Speaker 1: cases where the Court made it harder for judges to

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Speaker 1: issue nationwide injunctions, the case where the Court allowed parents

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Speaker 1: to up their children out of lessons where LGBTQ friendly

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Speaker 1: books were read, and the case paving the way for

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Speaker 1: South Carolina to exclude a planned parented affiliate from its

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Speaker 1: medicaid program. And all those cases were six to three

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Speaker 1: with the liberals dissenting. So I'm wondering if the Fourth

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Speaker 1: Circuit is more in line with the liberals and less

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Speaker 1: in line with the conservatives. Is there a certain partisanship there.

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Speaker 2: I would frame it that the Fourth Circuit is aligned

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Speaker 2: with traditional conservative judicial principles. That this Court has veered

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Speaker 2: from those traditional conservative judicial principles, which is why we're

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Speaker 2: seeing the gap. I think that that Fourth Circuit is

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Speaker 2: cautious and it's trying to adhere to the sort of

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Speaker 2: judicial principles or judicial customs perspectives the way they've understood

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Speaker 2: them for a generation. And that's running against the current

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Speaker 2: Supreme Court's position, which seems to be far more solicitous

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Speaker 2: of both judicial power as well as presidential power.

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Speaker 1: It used to be that the Ninth Circuit was the

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Speaker 1: most reviewed this term. The Ninth Circuit had fewer than

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Speaker 1: a third of the cases that the Court reviewed from

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Speaker 1: the Fifth Circuit, the most conservative pellet court in the country,

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Speaker 1: and it's sort of taken the place of the Ninth

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Speaker 1: in the last couple of terms. Of the sixty two

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Speaker 1: cases the Supreme Court decided this term, thirteen came from

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Speaker 1: the Fifth Circuit, more than from any other circuit, and

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Speaker 1: it was reversed in ten of the thirteen cases. The

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Speaker 1: last term, it was reversed in six of the nine cases.

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Speaker 2: Well, the Fifth Circuit is known as the most conservative

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Speaker 2: but an activist conservative court. The Ninth Circuit has been

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Speaker 2: historically known as the most activist of progressive or liberal courts.

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Speaker 2: So it's not surprising that decisions from those two circuits

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Speaker 2: disproportionately go to the Supreme Court. And indeed, we've seen

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Speaker 2: an interesting switch now in the Fifth Circuit because the

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Speaker 2: Fifth Circuit led the charge against the Biden administration in

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Speaker 2: some very surprising cases, including two delegation cases in which

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Speaker 2: the Supreme Court struck them down. This term and the

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Speaker 2: question is will they be as anti administration when it

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Speaker 2: comes time to review that which the Trump administration is doing.

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Speaker 2: And early records are mixed, so that's something to look too.

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Speaker 2: I think that some of the ardor of the Fifth

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Speaker 2: Circuit in terms of being anti administration will be damp.

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Speaker 2: And now with the switch politically at the top of

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Speaker 2: the helm.

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Speaker 1: Has the Fifth Circuit been trying to push the envelope,

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Speaker 1: so to speak, and be more aggressive in terms of

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Speaker 1: conservative policies or jurisprudence.

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Speaker 2: Well FITSIRKA has been at the cusp in terms of

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Speaker 2: pushing against administrative power, power of the agencies to rule.

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Speaker 2: I mean, for instance, in the telecommunications case, they had

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Speaker 2: sought to curb the power of the Communications Commission to

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Speaker 2: impose attacks on telecoms, and that of course was upheld.

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Speaker 2: I mean, the Biden administration pursued that plan, but so

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Speaker 2: did the Trump administration. And so the question is will

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Speaker 2: the fith Circuit continue its sort of skepticism about administrative

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Speaker 2: power given that President Trump is now a top of

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Speaker 2: the executive branch. So time will tell whether they'll continue,

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Speaker 2: But clearly they have marked in case after case, particularly

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Speaker 2: during the bidennistration, they challenged the legitimacy of the this

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Speaker 2: rap agencies, you know, in terms of the vaccine policies,

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Speaker 2: in terms of the student loans and more.

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Speaker 1: When the justices take cases, they usually take them to reverse,

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Speaker 1: don't they. I mean, forty four out of the fifty

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Speaker 1: nine cases they took this term were reversed.

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Speaker 2: That's generally the case. But obviously more generally they take

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Speaker 2: cases when there's a split and the Court needs to

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Speaker 2: resolve a split in the circuits. So sometimes it's just

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Speaker 2: the matter which of the two cases they take, because

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Speaker 2: one case goes one way and one case goes the other.

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Speaker 2: So sometimes those figures are a tad misleading.

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Speaker 1: Chief Justice John Roberts, when he talks about the Court

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Speaker 1: loves to talk about the number of unanimous opinions forty

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Speaker 1: two percent this term. But all of the controversial cases

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Speaker 1: involving social issues like religious rights, lgbt Q rights, they

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Speaker 1: all fall down ideological lines. So why does unanimity in

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Speaker 1: less than half the cases matter?

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Speaker 2: Well, begive and me, I think as a reminder to

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Speaker 2: us that it's still a court, and yet members of

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Speaker 2: the Court can't agree with each other in questions in

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Speaker 2: terms of you know, air review, in terms of the

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Speaker 2: courts with appeals making mistake, which is in terms of

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Speaker 2: reconciling a split in the circuits. And I think it's

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Speaker 2: a good reminder that the court is a court, but

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Speaker 2: that shouldn't obscure the fact that, as you said, in

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Speaker 2: socially divisive cases, there's almost inevitably a six' three split

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Speaker 2: with some changes around the.

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Speaker 1: Margins Adam felman has come out with his stat pack

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Speaker 1: for this past. Term roberts was in the majority ninety

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Speaker 1: five percent of the, time the most of any of the,

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Speaker 1: justices followed By Brett kavanaugh eighty six, percent In Amy

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Speaker 1: Cony barrett at eighty one. Percent do any of those

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Speaker 1: numbers surprise you or just to tell you that the

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Speaker 1: middle of the court.

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Speaker 2: Is, Ruling, no it doesn't surprise me at. All they

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Speaker 2: obviously those three justices do wield a lot of the

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Speaker 2: power on this current, court and they will do so

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Speaker 2: for the foreseeable. Future obviously there's some changes around the.

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Speaker 2: MARGIN i, mean Sometimes Justice corsic sides with majority or the,

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Speaker 2: minority same thing With Justice, barrett AND i think we've

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Speaker 2: even Seen Justice kagan occasionally trying to side with the

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Speaker 2: more conservative wing of the court in order TO i,

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Speaker 2: think in her view probably try to establish more than middle.

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Speaker 1: Ground, yeah what's gotten a lot of tension in the

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Speaker 1: legal press was That Justice kagan came in. Fourth she

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Speaker 1: was in the majority of seventy percent of the terms

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Speaker 1: non unanimous. Outcomes there was a thirteen percent drop in

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Speaker 1: agreement Between kagan And Justice Sonya Soto, mayor and the

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Speaker 1: agreements Between kagan and conservative justices up twenty two points

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Speaker 1: With Justice alito and up twenty nine points With Justice.

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Speaker 1: Thomas some people, say, oh, well she's getting more, Conservative

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Speaker 1: but is that really the case?

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Speaker 2: NOW i think she tries to find common ground when she,

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Speaker 2: can and maybe that can be criticized as bet she's

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Speaker 2: sort of tempering her own views to that of trying

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Speaker 2: to help the institution gain a middle. Ground BUT i

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Speaker 2: think it is perhaps a positive institution. Development is she

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Speaker 2: is lease in my, view and some of her decisions

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Speaker 2: trying to establish that there is common ground amongst the

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Speaker 2: so called conservatives so called liberal, justices and not in all,

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Speaker 2: cases but in some ways she. Can't AND i don't

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Speaker 2: know if that'll have any kind of long lasting impact

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Speaker 2: or if it will change the trajectory of the. Court

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Speaker 2: BUT i think that's her.

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Speaker 1: Goal Justice Katanji Brown jackson had the honor of being

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Speaker 1: in the, majority the least of all the justices at

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Speaker 1: seventy two, percent and she's written some biting.

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Speaker 2: Descents, again she is carving out her role as being

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Speaker 2: the most progressive justice and the one least willing to

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Speaker 2: compromise with the rest of the. Court voices like that

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Speaker 2: are important to, hear but they're not necessarily positive ways

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Speaker 2: to galvanize a majority of The.

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Speaker 1: Court Although Justice Antonin scalia was known for his brilliant,

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Speaker 1: descents and now the ideas he advanced about originalism and

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Speaker 1: textualism are all the rage on The.

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Speaker 2: COURT i, Mean scolia's legacy has been most powerful in

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Speaker 2: terms of raising the level of understanding about the, text

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Speaker 2: because all the court are, texts far more now than

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Speaker 2: they used to. Be but the question about originalism, STILL i,

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Speaker 2: think fractures The, court and we've seen that both in

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Speaker 2: terms of the importance of originalism but also the methodology of.

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Speaker 2: Originalism and so there's a lot of work to be

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Speaker 2: done before there's any kind of unified voice in The

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Speaker 2: court on that.

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Speaker 1: Respect coming up next on The Bloomberg Lawn, Show i'll

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Speaker 1: continue this conversation With Professor Harold krant Other Chicago Kent

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Speaker 1: college Of. Law in another order on the emergency, docket

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Speaker 1: The Supreme court is Allowing President trump to move ahead

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Speaker 1: with plans to drastically reduce the size of the federal,

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Speaker 1: government lifting a court order that had blocked nineteen federal

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Speaker 1: departments and agencies from slashing their. Workforces I'm June, grosso

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Speaker 1: and you're listening To. Bloomberg last, Month Chief Justice John,

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Speaker 1: roberts in a discussion of his time on the, bench

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Speaker 1: explained how he views criticism of The court's. Decisions what

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Speaker 1: they're angry about or upset about is probably not that

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Speaker 1: you applied the principle Of euston generous in a context

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Speaker 1: in which it had not been applied. Before it's that

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Speaker 1: they lost whatever they were looking. FOR i, mean and

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Speaker 1: in a sense, again it's not it would be good

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Speaker 1: if people appreciate. It it's not the judge's fault that

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Speaker 1: a correct interpretation of the law meant, that, no you

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Speaker 1: don't get to do. This i've been talking To Professor

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Speaker 1: Harold krant of The Chicago Kent college Of. Law get

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Speaker 1: your reaction to The chief's critique of criticism of the.

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Speaker 1: Court is he overlooking the fact that those six to

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Speaker 1: three decisions mean that interpretations of the law can be

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Speaker 1: different depending on whether you take a conservative or a liberal.

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Speaker 2: Approach, YEAH i mean there is no one. Way there's

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Speaker 2: no perfect way to understand Whether PARTY a Or PARTY

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Speaker 2: b should. Prevail it's based upon a judge's view of

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Speaker 2: things like, originalism things like how the best to interpret a,

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Speaker 2: statute as well as whether there is a living constitution or.

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Speaker 2: Not so a party can be upset because they end

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Speaker 2: up with the case before justices that have a different

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Speaker 2: worldview in terms of interpreting The constitution more statutes than they.

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Speaker 2: Do so it's not a matter of venting against. Judges

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Speaker 2: it's a matter of feeling that it's just too bad

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Speaker 2: that you don't have justices who think the way you

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Speaker 2: do deciding your.

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Speaker 1: CASE a lot of the action this term has been

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Speaker 1: on the emergency, docket and yesterday The court ruled That

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Speaker 1: President trump can move ahead with plans to dramatically reduce

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Speaker 1: the size of the federal. Government it lifted a court

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Speaker 1: order that had blocked nineteen federal departments and agencies from

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Speaker 1: slashing their, workforce so hundreds of thousands of federal workers

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Speaker 1: could lose their. Jobs is this just part of the

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Speaker 1: trend of The court on the emergency docket lifting lower

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Speaker 1: court orders that blocked The trump. Agenda, Well i'm of two.

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Speaker 2: Minds about the most recent. DECISION i, mean what The

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Speaker 2: court did is removed as an injunction on the administration

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Speaker 2: from trying to carry out the, Rift but it did

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Speaker 2: not say that the riff was appropriate or consistent With congressional.

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Speaker 2: Direction AND i think that was made clear as well

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Speaker 2: because the fact That Justice kagan went along with the

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Speaker 2: majority in terms of allowing theministration's action to, proceed and

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Speaker 2: the executive order says that the ref for the Reduction

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Speaker 2: force must proceed according to applicable, law and the applicable,

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Speaker 2: law of, course Is congress's very detailed instructions for how

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Speaker 2: agencies should. Proceed AND i think the reason Why Justice

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Speaker 2: kaikin did join the majority was because we have yet

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Speaker 2: to see whether the administration will conform to the congressional

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Speaker 2: blueprint for shiding out The Reduction force or. Not and so,

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Speaker 2: yes The court is giving the benefit of the doubt

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Speaker 2: the administration and the spending would think that the administration

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Speaker 2: doesn't deserve the benefit of the. Doubt BUT i think

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Speaker 2: what the court's action is, saying, well let's wait until

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Speaker 2: there's a merit's decision as to whether the applicable congressional

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Speaker 2: rules were followed before we actually tell the administration they

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Speaker 2: can't move forward in that.

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Speaker 1: Way, well all, along The court has been letting The

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Speaker 1: trump administration go ahead for. Now but the problem is

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Speaker 1: that getting to the merits of these cases take so,

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Speaker 1: long and by that time the damage is. Done people

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Speaker 1: have been.

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Speaker 2: Fired, sometimes the Art reing, stated and we've had instances

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Speaker 2: already this term where there have been governmental employees who

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Speaker 2: have been. Reinstated there's also questions of back pay that

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Speaker 2: can at least partially. Address BUT i, mean, yes from

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Speaker 2: a matter of the employees who have been riffed and

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Speaker 2: perhaps illegally, riffed there is, dislocation financial, privation and obviously

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Speaker 2: a lot of hardship on their side in that.

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Speaker 1: Case Justice Sonya, sotomayor who usually does not go along

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Speaker 1: with the majority Involving trump administration, actions so she joined

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Speaker 1: the majority in that. Case why do you think she

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Speaker 1: went along with? Them?

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Speaker 2: There, again part of the reason may have been that

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Speaker 2: there is no review on the marriagchat of the, rift

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Speaker 2: but part of the issue may be one of. Jurisdictions

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Speaker 2: The court did not address the jurisdictional, issue but there's

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Speaker 2: been a simmering dispute about whether or not federal employees

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Speaker 2: can go to federal court to raise Their constitutional And

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Speaker 2: Administrative Procedure act, claims or whether they should go to the.

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Speaker 2: Tribunals The congress itself has set up to hear employee,

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Speaker 2: disputes such as THE Neuri Assistance Protection board and The

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Speaker 2: Federal Labor Relations. Authority so it may be that that,

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Speaker 2: question which there is no definitive answer about when employees

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Speaker 2: can bypass those administrative. Tribunals but it may be that

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Speaker 2: she has doubts about whether The court even had proper

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Speaker 2: jurisdiction over this, case because instead those claims should have

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Speaker 2: followed the congressional course and been vetted first in these specialized.

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Speaker 2: Tribunals The court has.

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Speaker 1: Been making so many important decisions on the emergency.

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Speaker 2: Docket you're certainly right that the shadow docket has become

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Speaker 2: more and more, important and the number of so called

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Speaker 2: wins of The trump administration certainly exceed their. Losses and you,

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Speaker 2: know one hopes that a lot of these cases will

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Speaker 2: get to final judgment and so The Supreme court be

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Speaker 2: forced to actually weigh in on the merits of the,

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Speaker 2: case as opposed to just stopping the lower courts from

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Speaker 2: enjoining the government's actions prior to a final.

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Speaker 1: Decision and you, know to The trump, administration everything's in

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Speaker 1: emergency at some, point shouldn't The court, say, no this

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Speaker 1: is not an.

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Speaker 2: Emergency, yeah The court has been very, cavalier if you,

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Speaker 2: will in terms of balancing the. HARMS i think the

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Speaker 2: reduction in forced case that we talked about is a

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Speaker 2: good illustration of, that, because, yes the government wants to

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Speaker 2: save money and restructure the federal, government and there is

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Speaker 2: a loss if they can't do that to what they

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Speaker 2: consider to be the public. Good but on the other,

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Speaker 2: hand the dislocation and financial deprivations that these employees may

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Speaker 2: face should be, counted perhaps even more, greatly and the

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Speaker 2: court's not doing that.

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Speaker 1: ALSO i, mean they're doing this on the emergency, docket

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Speaker 1: without full, briefing without oral, arguments and then sometimes you,

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Speaker 1: know there's not even an opinion to explain what they.

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Speaker 1: Decided it doesn't leave much guidance for the lower. Courts.

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Speaker 2: No in a greed illustration of that is the birthright citizenship,

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Speaker 2: case because The court ignored the very question of birthright.

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Speaker 2: Citizenship both in terms of the balance of hardships somebody

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Speaker 2: who might be supported who otherwise could claim birthright citizenship is,

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Speaker 2: enormous and in terms of the merits of the. Question

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Speaker 2: it seems like it's almost a well god conclusion that

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Speaker 2: The trump position will be. Reversed and yet The court

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Speaker 2: chose not even to address those kinds of harms in

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Speaker 2: deciding that the universal injunction was. Inappropriate so what the

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Speaker 2: court picks and chooses in the shadow docket to ADDRESS

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Speaker 2: i think should be open to.

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Speaker 1: Criticism it certainly has been, criticized even by some of

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Speaker 1: the justices. Themselves thanks so, Much. Hal That's Professor Harold

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Speaker 1: krent of The Chicago Kent college Of. Law and that's

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Speaker 1: it for this edition Of The Bloomberg Law. Show remember

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Speaker 1: you can always get the latest legal news on Our

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