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

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Speaker 1: Last October, when Johnstice any Coney Barrett was sworn into

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Speaker 1: the highest court in the land, she said politics would

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Speaker 1: not play a part in her decisions. The oath that

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Speaker 1: I have solemnly taken tonight means at its core that

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Speaker 1: I will do my job without any fear or favor,

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Speaker 1: and that I will do so independently of both the

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Speaker 1: political branches and of my own preferences. As the first

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Speaker 1: term where the newly established sixth Johnstice conservative majority ends,

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Speaker 1: the analysis of its decisions begins joining me as Constitutional

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Speaker 1: law professor Josh Blackman of the South Texas College of Law. So, Josh,

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Speaker 1: did the Court shift to the right this term? Without question?

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Speaker 1: The Court shifted to the right, but not nearly as

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Speaker 1: far as some critics expected or prep speared. I think

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Speaker 1: on certain types of hot bunding issues, the court is

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Speaker 1: definitely more conservative. I think the Voting Right Act decision

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Speaker 1: is one case where, unquestionably Justice Ginsbord would have voted

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Speaker 1: one way and Justice Amy Colney Barrett Vie the other way.

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Speaker 1: There's been some other cases on the rights of unions

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Speaker 1: to help organize on disclosure laws for tax donation cases

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Speaker 1: where the court definitely reach results that were more conservative,

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Speaker 1: but this wasn't a sharp turn to the right. The

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Speaker 1: Court didn't reach a sweeping ruling in a case involving

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Speaker 1: adoption agencies and whether the Catholic Church can decline for

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Speaker 1: with gay parents. The Court did not reach any casts

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Speaker 1: swooping ruling on the Obamacare case. In many cases, the

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Speaker 1: court was stuck in the middle, and you had Justice Thomas,

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Speaker 1: course the Enneldo sort of screaming, what are you doing?

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Speaker 1: Why are you stopping so sure? Why are you being

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Speaker 1: such cowards? Let's go further. But at present you have

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Speaker 1: three judges in the middle, Robert, Barrett and Kavanaugh, who

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Speaker 1: seemed content to pump the brakes and drag your feet.

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Speaker 1: There were some unusual vote alignments, notably in the Obamacare case.

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Speaker 1: Is there a coalition among the conservative justices. I think

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Speaker 1: the court has six conservatives, but they are not all

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Speaker 1: the same strife. I see this kind of a three

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Speaker 1: three three split. Not always, but in many cases on

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Speaker 1: the left you have Kagan, Mayor and Briar, and they

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Speaker 1: will vote in lockstep and just but every important case,

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Speaker 1: on important cases, they were allowed to break up, but

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Speaker 1: the things that actually matter, they should vote together. And

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Speaker 1: then you have the three super Conservatives. You have Ledo,

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Speaker 1: Thomas and Gorsas, and they tend to vote together quite often,

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Speaker 1: not always, but in certain high profile cases they seem

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Speaker 1: to see things the same way. But then you have

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Speaker 1: the Chief Justice, and you have Justice Barrett and Justice Kavanaugh,

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Speaker 1: and they often will vote with the three Conservatives, but

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Speaker 1: in other cases they don't, and they aligne with the

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Speaker 1: course three liberals, and they make him more moderate ruling.

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Speaker 1: I think the Chief Justice has shown his moderate bona

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Speaker 1: fides now for nearly a decade. I think Just Havanaugh

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Speaker 1: shown us splashes of it, and at least in her

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Speaker 1: first term, Justice Derrett seems to have similar conceptions. Do

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Speaker 1: you think that it's that Justice Barrett is like Chief

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Speaker 1: Justice John Roberts, interested in incremental changes or do you

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Speaker 1: think it's the so called freshman effect where it's her

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Speaker 1: first term on the bench and she's not going to

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Speaker 1: go boldly. You know, I don't buy this freshman effect.

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Speaker 1: Justice followed a step when they don't. Justice Gorses came

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Speaker 1: out and guns blazing his first term, Justice Kagan and

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Speaker 1: Justice of the Mayor came out blazing their first terms

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Speaker 1: of vicious descent. I just don't buy this theory. I

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Speaker 1: think it justice is who they are and how they

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Speaker 1: vote is how they vote. If there is such a

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Speaker 1: thing as a freshman effect, it's self inflicted. Right. If

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Speaker 1: you started doing something one way, he fall into habits

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Speaker 1: and pattern to the heart to break out of. So

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Speaker 1: I just I don't buy this theory. Did you see

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Speaker 1: the Chief Justice's hand in the unanimous results with narrow

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Speaker 1: rulings that sort of kicked the can down the road

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Speaker 1: as far as the main issue is concerned. One of

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Speaker 1: my biggest grievances the Chief Justice is refuses to decide

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Speaker 1: issues he's consent to let the lower courts sort of

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Speaker 1: wiggle and drift and float in the wind. Clarifying law

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Speaker 1: doesn't matter as much as reaching result that's seems politically palatable.

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Speaker 1: As a result, issues get kicked down the road and

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Speaker 1: the resolved and incomplete fashions and Roberts hopefully als will

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Speaker 1: take care of it. And that's not good if you're

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Speaker 1: practicing attorney, and it's not good if you're a lower

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Speaker 1: court judge, because you don't know what to do. And

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Speaker 1: that's what Roberts prefers. Is that what happened in the

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Speaker 1: unanimous decision in the Fulton County case where a Catholic

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Speaker 1: social services agency excluded same sex couples from foster care. Well, yeah,

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Speaker 1: the Philadelphia case was unanimous, but it didn't actually resolve

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Speaker 1: the issue. All it's said is, at a president Philadelphia

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Speaker 1: grants exemption to some people but not to the Catholic services.

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Speaker 1: Bill Elfis come back to, Okay, we won't grant any exemption,

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Speaker 1: and that simply reanimates the issue, and then you have

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Speaker 1: to go back to was their violation the first amment?

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Speaker 1: So these are the super narrow rulings that don't really

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Speaker 1: resolve the debate. Did you see cases where the liberal

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Speaker 1: justices were able to find their way into the majority

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Speaker 1: by pulling some of the conservatives in yes. I think

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Speaker 1: the Phildelfi's Options cases perhaps the greatest example. There's some

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Speaker 1: evidence that originally Justice the Leado may have the majority

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Speaker 1: opinion and he could have lost it, and perhaps Chief

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Speaker 1: Justice Roberts would have very narrow opinion that attracts over

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Speaker 1: some of the conservatives and they flipped. And that's entirely

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Speaker 1: possible that the majority opinion. The Killdelphi case was so

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Speaker 1: super narrow that I think that munch of the liberal

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Speaker 1: judges were able to move across and inside, and the

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Speaker 1: concurrence was scathing right Justice Aldo, he was not happy,

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Speaker 1: and I think that bitterness reflects the fact that this

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Speaker 1: was not from me expected. He thought, my putting Justice

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Speaker 1: Starrett in the court because we'll get some ws, some wins,

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Speaker 1: and this actually got a bunch of l SCUS losses.

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Speaker 1: Coming up next, Professor Josh Blackman and I will discuss

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Speaker 1: those six to three decisions that went right down ideological lines.

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Speaker 1: The nine months Supreme Court term took place entirely behind

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Speaker 1: closed doors because of the coronavirus pandemic, something Chief Justice

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Speaker 1: John Roberts joked about in his virtual commencement address at

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Speaker 1: his son's high school. As for working remotely, I was

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Speaker 1: asked whether the justices participating in arguments from their homes

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Speaker 1: would wear robes. I didn't know if the person was

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Speaker 1: asking judicial or bath. So how did the new six

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Speaker 1: to three conservative majority play out? In some cases like

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Speaker 1: the Obamacare decision, The Justice has formed unusual alignments. In others,

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Speaker 1: for example, involving gay rights versus religious rights, They reached

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Speaker 1: narrow but unanimous decisions, and still others the Justice has

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Speaker 1: split right down audiological lines on issues like voting rights

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Speaker 1: and union rights. I've been talking to constitutional law professor

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Speaker 1: Josh Blackman of the South Texas College of Law. Josh,

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Speaker 1: I want to get your take on why the Justice

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Speaker 1: Is ended the term with two six to three decisions

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Speaker 1: down ideological lines, one limiting the landmark Voting Rights Act.

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Speaker 1: Why do you think that Justice is couldn't reach a

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Speaker 1: consensus in that case, which will be critical in the

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Speaker 1: coming challenges to restrictive voting laws that are being passed.

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Speaker 1: On some issues the Conservatives are willing to be moderate

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Speaker 1: and other issues or not. I think on this voting

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Speaker 1: rights issues they think are unequivocally correct that the Voter

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Speaker 1: Rights Act is much more narrow than it is, and

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Speaker 1: they have autonomy. I think there's one of these issues

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Speaker 1: where there's no daylife. Conservatives fails in this one. Even

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Speaker 1: She's just as Roberts, who has issue quite moderate, has

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Speaker 1: a long history of the Voting Rights Act. He was

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Speaker 1: a young lawyer in the Reague administration who urged this

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Speaker 1: narrow construction back in the early eighties. He's had his

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Speaker 1: view for a very long time. I often think, if

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Speaker 1: you want to know what's important on Robert's look at

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Speaker 1: what was on the Reagan administration's agenda thirty years ago.

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Speaker 1: It wasn't I care about it, But you know, parent

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Speaker 1: of action Voting Rights Act, he seems really matter to

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Speaker 1: him and he will push for them. What about the

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Speaker 1: labor union case, because labor unions lost once again at

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Speaker 1: the Court. There have been several decisions limiting the power

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Speaker 1: of unions, including the Janice case in ten that reversed

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Speaker 1: a forty year old precedent. I think labor unions turned

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Speaker 1: the same vote as a Voting Rights Act. This is

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Speaker 1: an issue that's been a longstanding thought to the public,

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Speaker 1: sectory union. I see no daylife conservatives on this being

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Speaker 1: eis are going to lose. So Justice Barrett, we talked

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Speaker 1: about how she made favor incremental changes, but that doesn't

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Speaker 1: appear to be true in religious cases and in the

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Speaker 1: so called shadow docket, which is the emergency orders and

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Speaker 1: request that occur outside of the court's usual docket. In

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Speaker 1: those cases, she appeared to flip the court on COVID

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Speaker 1: restrictions on houses of worship. Do you agree, Oh? I do?

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Speaker 1: I had a piece of news Week discussing the three

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Speaker 1: three three alliance, and one of the point I make

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Speaker 1: is that the biggest evidence of this break is actually

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Speaker 1: the shadow docket. It's not the regular docket. If you

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Speaker 1: look at the regular docket, Barrett and Gorcers who are

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Speaker 1: on the same page ninety something per seven a time.

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Speaker 1: We look at the shadow doctors, there are many cases

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Speaker 1: where they disagree. Perhaps one of the most glaring examples

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Speaker 1: of the case called Lombardo versus CD of Philadelphia. In

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Speaker 1: this case, police officers put pressure on a man's back

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Speaker 1: for several minutes as a prisoner, and he stopped breathing

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Speaker 1: and he died. And this is probably the posest analyze

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Speaker 1: the court has had where George Floyd like case, the

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Speaker 1: prisoner's family brought an excessive force case and they lost

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Speaker 1: in the lower courts, but once in the Supreme Court,

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Speaker 1: it was pending for nearly ten months to keep kind

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Speaker 1: of floating around, which tells us those associations of foot.

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Speaker 1: The court could have granted a review to say, let's

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Speaker 1: hear the case like normal, or they could have just

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Speaker 1: denied review. And so this case is not worthy of

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Speaker 1: our review, that it's such a fact bound issue that

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Speaker 1: we're not going to touch it. And I said, the

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Speaker 1: courts something weird. They basically said, well, lower court, take

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Speaker 1: another look at it. If you applied your standard correctly.

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Speaker 1: We think you may have, but we're not sure, which

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Speaker 1: is very weird. The court doesn't usually getting involves a

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Speaker 1: sort of micromanagement the lower courts on a very factual issue,

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Speaker 1: but there's no sort of circuit split. Alito, Corser, and

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Speaker 1: Thomas dissented and they basically said, this is such a

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Speaker 1: bizarre ruling the court of the coward. They said, the

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Speaker 1: court is unwilling to bear the criticism that would come

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Speaker 1: from running against the prisoner, in other words, and they

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Speaker 1: denied the position a right. People say, oh, they're insensitive

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Speaker 1: to Black lives matter. They to sort of middle the

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Speaker 1: road position. And that's a big charge to say that

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Speaker 1: the majority is unwilling to bear criticism. That says that

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Speaker 1: they are responsed to the public pressure. And that's the

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Speaker 1: theme that I think the Conserves are trying to push

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Speaker 1: that Breck Kavanaugh are like Robertson that they are responsive

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Speaker 1: to public pressure. And that's a very science of conservatives

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Speaker 1: and very good sign for liberals. Does no matter how

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Speaker 1: many Republican justice you have, there's always pressure from the

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Speaker 1: media to go to the left, and this pressure may

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Speaker 1: be working already on the two news justices. Let's look

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Speaker 1: some stats. Justice Kavanaugh was in the majority the most

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Speaker 1: of the time, The Chief Justice was next of the

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Speaker 1: time in the majority. Justices Barrett and Gorse Thatch were

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Speaker 1: in the majority eighty nine percent and eight percent, respectively,

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Speaker 1: and the rest of the justice is varied from a

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Speaker 1: low of seventy pent for Justice Soto Mayor to a

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Speaker 1: high of eighty percent for Justice Thomas. So Kavanaugh replaced Roberts,

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Speaker 1: who was in the majority of the time last term.

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Speaker 1: So is that the new center of the court. Yeah,

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Speaker 1: Kavanaugh is the center of the court. You know. I

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Speaker 1: think he likes you like and he will stay in

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Speaker 1: that center. I think he wants to be again. I

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Speaker 1: think the Barrett Gorcer's Clients of business leading because it

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Speaker 1: ignores the fact that there are lots of cases that

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Speaker 1: aren't being granted, that Barrett is not going with the conservatives.

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Speaker 1: There was another case called Arlene's Flowers, this case of

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Speaker 1: the flowers in Washington State, and she declined to make

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Speaker 1: a floor arranging for a day Union. I think it

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Speaker 1: was in twenty thirteen. It's almost a death date already.

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Speaker 1: This case was floating forever. Three justices have taken a

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Speaker 1: case to say that there's a free exercise and free

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Speaker 1: speech right to decline to make the flowers. Baron and

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Speaker 1: Tava were not willing to take face, and the three

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Speaker 1: conservatives signaled their detent, which lets you count and know

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Speaker 1: that the others were unwilling to take it. So Barrett's

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Speaker 1: also showing this restraints on what cases they put on

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Speaker 1: the docket, and they'll put a casement docket. There's less disagreement.

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Speaker 1: So is it still the Robert's court or I think

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Speaker 1: the Chief is thrilled. I'm sure he worried that he

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Speaker 1: would lose his power. If Barrett had just gone with Aldo,

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Speaker 1: then Roberts have been meaningless. They're not five votes. The

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Speaker 1: fact that Barrett's sidled up to Roberts means that he

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Speaker 1: still the king and he'll still have the power for

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Speaker 1: the people's future. There are a lot more controversial cases

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Speaker 1: coming up next term, including cases on hot button issues

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Speaker 1: like abortion rights and gun rights. Is that perhaps a

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Speaker 1: signal that the Court's conservatives might be ready to move

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Speaker 1: farther to the right. I don't know if I really

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Speaker 1: don't um. I think that the Chief if committed to

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Speaker 1: this way of life. I don't know that Justice Kavanaughs degrees,

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Speaker 1: and that may just go along. But what I think

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Speaker 1: we're going to see is a court that's probably more

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Speaker 1: conservative but doesn't want to make any swooping ruling. The

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Speaker 1: two cases you mentioned, abortion and guns, the court granted

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Speaker 1: what are called limited questions, right, They didn't ask should

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Speaker 1: we rule row? The question is very narrow, which on

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Speaker 1: face may not even disturb any other precedent. In the

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Speaker 1: gun case, they narrow the question as well. So I

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Speaker 1: don't know that either of these cases make serious shifts

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Speaker 1: in the law. I think that may be more restrained

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Speaker 1: and we think Thanks Josh. That's Josh Blackman of the

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Speaker 1: South Texas College of Law. Remember you can always get

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Speaker 1: the latest legal news on our Bloomberg Law podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify and at www

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Speaker 1: dot Bloomberg dot com, slash podcast Slash Law. I'm June Grosso,

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Speaker 1: and you're listening to Bloomberg