Speaker 1: This is Bloomberg Law with June Bresso from Bloomberg Radio.
Speaker 1: The Supreme Court is a secretive institution, but this term
Speaker 1: the curtains seems to have been pulled back a bit
Speaker 1: with not only the leak draft abortion decision, but also
Speaker 1: signs of tension and distrust among the justices. The strains
Speaker 1: of the ideological shift in the Court seeped into the
Speaker 1: public in December from comments by Justice Sonya so to
Speaker 1: Mayor during the abortion arguments. Will this institution survive the
Speaker 1: stench that this creates in the public perception that the
Speaker 1: Constitution and it's reading are just political acts. I don't
Speaker 1: see how it is possible. And Justice Clarence Thomas posed
Speaker 1: a similar question a few weeks ago after the leak.
Speaker 1: I do think that the the what happened at the
Speaker 1: Court is tremendously bad. I think it's um I wonder
Speaker 1: how long we're going to have these institutions at the
Speaker 1: rape where undermining them. Beyond the drama, there's the question
Speaker 1: of just how productive the Roberts Court really is. When
Speaker 1: the Justice is rise for their summer recess, they'll have
Speaker 1: handed down only fifty nine decisions and argued cases. The
Speaker 1: third year in a row, they failed to reach sixty decisions.
Speaker 1: You have to go back to the Civil War to
Speaker 1: find such a small donkeet. In fact, until the Court
Speaker 1: used to decide more than a hundred fifty cases a year.
Speaker 1: So what happened? Joining me to answer that question is
Speaker 1: constitutional law experts Stephen Vladdock, a professor at the University
Speaker 1: of Texas Law School. Steve, Before we get to the
Speaker 1: number of decisions, I want to talk about the slow
Speaker 1: pace of the court this term. The Supreme Court seems
Speaker 1: to be a little off its usual schedule. For the
Speaker 1: end of the term. It's got a heavier than usual
Speaker 1: backlog of decisions to hand down. I believe that not
Speaker 1: even half the cases for the term have been decided.
Speaker 1: What's going on? Yeah, you know, can we just fit
Speaker 1: the halfway mark on Wednesday? So the Court standed down
Speaker 1: signed decisions in thirty argued cases. There are twenty nine
Speaker 1: to go. What's going on? And I think a lot
Speaker 1: of things are going on. I think, without questions, the
Speaker 1: unprecedented leak of the draft majority opinion in the Job's
Speaker 1: case in early May has, you know, had both the
Speaker 1: direct and indirect effect on the Court's ability to finish
Speaker 1: its business this term. I think the amount of high
Speaker 1: profile cases the Court has handled this term on the
Speaker 1: so called shadow doctor, these orders and applications that don't
Speaker 1: go through plinary review, you know, those take time, and
Speaker 1: I think that time comes from somewhere else. And I think,
Speaker 1: you know, June's the cases the Court is given this
Speaker 1: term are on average, more significant, more divisive, more contentionous.
Speaker 1: And so you add those three things together and you've
Speaker 1: got a court that Adam Feltman has pointed out had
Speaker 1: a greater percentage of its cases still to be decided
Speaker 1: on June one than at any point in the past,
Speaker 1: for which there's data going all the way back to.
Speaker 1: And the decisions that were handed down this week we're
Speaker 1: not the ones that most people have been waiting for.
Speaker 1: That's an understatement. You know, where's the missing in action
Speaker 1: Second Amendment case that the justices seemed all but to
Speaker 1: have decided against New York at oral arguments? Where are
Speaker 1: the big cases? Yeah, I mean June. As you know,
Speaker 1: the Court does tend to backlog the big cases that
Speaker 1: you know, It's it's not uncommon for the last cases
Speaker 1: we get the last couple of weeks of June, even
Speaker 1: early July to not necessarily be the last cases that
Speaker 1: we're arguing, right, but rather the ones are the most divisive.
Speaker 1: And I think that's a reflection at least in part
Speaker 1: of the gravity of the issues the justices are decided,
Speaker 1: and I think of the tenor of the separate opinions.
Speaker 1: I mean, you know, we saw just on Wednesday with
Speaker 1: Justice of myors descent in this under the Radar case
Speaker 1: about you know, a border patrol officer, some pretty sharp
Speaker 1: accusation um directed towards the majority. And I think that's
Speaker 1: only going to get more seeded as we get towards
Speaker 1: the New York gun case, as we get towards the
Speaker 1: abortion case, this really important climate change case West Virginius
Speaker 1: cp A. So you know, I think we really are
Speaker 1: in for however long it's going to be, whether it's
Speaker 1: three weeks or a month or even six weeks, we
Speaker 1: are in for a pretty rocky period of decisions from
Speaker 1: the Supreme Court. And because of this backup, those decisions
Speaker 1: are going to come right on top of each other
Speaker 1: in pretty short order. Steve. Many court watchers have pointed
Speaker 1: out that Justice is slow pace in handing down decisions
Speaker 1: this term, but in an opinion piece. You point out
Speaker 1: that for the last few years, the Court has been
Speaker 1: handing down fewer to Asians than ever before, sort of
Speaker 1: the incredible shrinking docket. Yeah, I mean, I think this
Speaker 1: is to me almost a bigger story, maybe even a
Speaker 1: bigger story than the fact that the Court just happens
Speaker 1: to be behind this particular term. I mean, when all
Speaker 1: of a sudden done, when the Court does eventually rise
Speaker 1: for summer, recess's good to have handed down probably no
Speaker 1: more than fifty nine science decisions and argued cases last
Speaker 1: term June it was fifty six. The term before it
Speaker 1: was fifty three, whereas before three years ago, the Court
Speaker 1: hadn't dip below sixty of these signed Merritt decisions since
Speaker 1: the Civil War. And this is part of a broader
Speaker 1: trend where you know, as recently as the early two thousands,
Speaker 1: the court was here to nine cases a year. In
Speaker 1: the twenty tents, it was still seventy eight cases a year.
Speaker 1: But really, since Justice Kennedy's retirement, the docket has fallen
Speaker 1: into the low sixties, now the high fifties. And you know,
Speaker 1: I think there are plenty of folks would say, great,
Speaker 1: like if this court has less to do. That's not
Speaker 1: going to bother them. But I actually think that there
Speaker 1: are some longer term problems with the Supreme Court's docket
Speaker 1: continuing to drink in disrespect in The Court used to
Speaker 1: hear more than a hundred and fifty cases a year,
Speaker 1: which seems astonishing right now. So what happened to drop
Speaker 1: the number by about fifty cases almost overnight? So by
Speaker 1: the mid eighties, there was still a large chunk of
Speaker 1: the Court's appellate jurisdiction that was mandatory, meaning there were
Speaker 1: cases that the justices had to pick up, especially appeals
Speaker 1: from state courts, and largely at the justice's own request.
Speaker 1: Congress in revisited that and gave the Supreme Court just
Speaker 1: about plenary control over its docket. Congress five had really
Speaker 1: expanded the practice of what we call sir ferrari of
Speaker 1: discretionary review when the Supreme Court was reviewing the lower
Speaker 1: federal courts in Congress expanded that to encompass most appeals
Speaker 1: from state courts as well, And overnight we saw the
Speaker 1: sharp drop off from a hundred and fifty cases a
Speaker 1: year or two about nineties. That was a direct response
Speaker 1: to what Congress had done. What I think is really interesting.
Speaker 1: What I think is something has stopped being attention to,
Speaker 1: is that since Congress hasn't listed a finger to touch
Speaker 1: the courts docket, and yet it is this term going
Speaker 1: to be probably around the size of the Court's docket
Speaker 1: in the first years after Act. And so, you know,
Speaker 1: I since there's a question worth asking about whether it's
Speaker 1: healthy not just for the Court as an institution, but
Speaker 1: for the court system, for the Supreme Court to be
Speaker 1: decided in so few cases. So besides that congressional action
Speaker 1: or inaction, what else is causing the Court to take
Speaker 1: so many fewer cases? We don't know. I mean, as
Speaker 1: part of the problem here is that becauses is all discretionary,
Speaker 1: and becauses, you know, the court never tells us why
Speaker 1: it is taken. We're not taking cases, you know, We're
Speaker 1: less to speculate. But I do think there are a
Speaker 1: couple of fairly obvious, at least circumstantial explanations. One is,
Speaker 1: as we've discussed before, the Court is doing more and
Speaker 1: more stuff through these unsigned, unexplained emergency orders on the
Speaker 1: shadow doctors. That that's tacking up more of the Court's
Speaker 1: attend in each term. I think also, since it takes
Speaker 1: four votes to grant sir SERRAI, well, you know, since
Speaker 1: Justice Kennedy retired in I think the Conservatives now can
Speaker 1: be more confident about which cases they do and don't
Speaker 1: want to take. Since Justice Ginsburg died, the Liberals now
Speaker 1: don't have enough vote to force the granted sir sari
Speaker 1: on their own. And you know, I think what I
Speaker 1: do as the negative implications of the court here and
Speaker 1: fewer cases, that there are fewer cases articulating a new
Speaker 1: legal principles, that there are fewer cases establishing law that
Speaker 1: can then be used in damages suits are inhavior's petition. Frankly,
Speaker 1: I think the current majority probably isn't much bothered by So,
Speaker 1: you know, if you add all these things together, I
Speaker 1: think it's just some of the pressures that used to
Speaker 1: lead the Court to take more cases have evaporated at
Speaker 1: the same time as there are more and more demands
Speaker 1: on the justices time from other parts of their caseload.
Speaker 1: I found it very interesting when you pointed out that
Speaker 1: when Justice Ruth Bader Ginsburg died there's no longer a
Speaker 1: fourth vote for cases that the liberal members might want
Speaker 1: to hear that might be important to them. Does that
Speaker 1: mean it's making it easier for the Conservative members to
Speaker 1: push any agenda they might have. Oh, I don't think
Speaker 1: there's any doubt about that. And I think that's been true,
Speaker 1: not just since eighteen. And I think you know, when
Speaker 1: Justice Kennedy was the median vote on the Court from
Speaker 1: two thousand six to two thou eighteen, there were any
Speaker 1: number of cases where the Conservative justices, or at LEAs
Speaker 1: some of them, would vote to deny certain even though
Speaker 1: they disagreed with the lower courts. A really famous example
Speaker 1: of this June is the marriage cases before Olburga fell.
Speaker 1: There were this trench of early marriage cases where federal
Speaker 1: Courts of Appeals had struck down state marriage bands, and
Speaker 1: Chief Justice Roberts refused to provide a force of vote
Speaker 1: to grant certain even though Aldo, Thomas and Scalia wanted to.
Speaker 1: And you know, I think the wise pread assumption that
Speaker 1: he didn't want to provide a force vote to grant
Speaker 1: serve because he wasn't confident that Justice Kennedy would join
Speaker 1: the Conservative So multiply that by you know, a hundred
Speaker 1: cases a year, and we see how Justice Kennedy's mere
Speaker 1: presence on the Court lad the Justice to be much
Speaker 1: more careful abou which cases you wanted to hear, whereas
Speaker 1: if Kennedy wanted to hear a case, then all of
Speaker 1: a sudden was open season. During that moderating influence has gone.
Speaker 1: And so if the Conservatives want an issue, they now
Speaker 1: know that they have the vote, and so they can
Speaker 1: grant the cases they want, they can ignore the cases
Speaker 1: they don't want, and they don't have to worry about
Speaker 1: alienating any justice in the middle, because there isn't one.
Speaker 1: You point out that the drop into the sixties sixty
Speaker 1: cases a term and now the fifties is a phenomenon
Speaker 1: entirely of the last decade. So since Chief Justice Roberts
Speaker 1: has been Chief Justice for longer than that, can we
Speaker 1: place the blame in any respect on him? I mean,
Speaker 1: I think that's the temptation these days to blame every day.
Speaker 1: But I think on this particular one, the answer is no.
Speaker 1: I mean, I think insofar as anyone agrees with me
Speaker 1: that it's a problem that the Court is hearing so
Speaker 1: many fewer cases, and thence that responsibility lies with all
Speaker 1: of the justice is equally, and I think especially with
Speaker 1: justices who repeatedly have the majority. I either conservatives. But
Speaker 1: I think the larger problem here is not one of
Speaker 1: the Court's own making, but rather of Congress's application that
Speaker 1: what the statute was an example of was this long standing, consistent,
Speaker 1: historical pattern where there was this ongoing dialogue between the
Speaker 1: Supreme Court, lower federal courts, and Congress, where Congress was
Speaker 1: regularly invested in studying the dockets of the federal courts
Speaker 1: and figuring out where there was too much, where there
Speaker 1: was too little, in tweaking things here and there. And
Speaker 1: since nine, Congress has basically left all of that alone,
Speaker 1: so much so that you know, there are a lot
Speaker 1: of folks today who don't think it's appropriate for Congress
Speaker 1: to be having conversations about regulating the Supreme Court's docket,
Speaker 1: which would be quite a shock to the two years
Speaker 1: of judges, justices and Congress members who had exactly that conversation.
Speaker 1: So the key to me is, if folks agree that
Speaker 1: there's something problematic about not just the drop in the
Speaker 1: Court's caseload, but the control it leaves with the justices,
Speaker 1: the answer is not for the justice to change their behavior.
Speaker 1: The answers for Congress to think about whether there are
Speaker 1: categories of case in which the Supreme courts jurisdiction really
Speaker 1: should be mandatory, where the course you have to take
Speaker 1: up appeal. It is hard to see Congress stepping in
Speaker 1: and telling the Supreme Court what to do these days.
Speaker 1: It seems just alien to this Congress. Well, and this
Speaker 1: is the exact mindset that I think I'm you know
Speaker 1: that I'm hoping to push back against, which is it
Speaker 1: seems that way only because you know, Congress hasn't done
Speaker 1: it recently, but you know, historically from the founding um
Speaker 1: after the Civil War in the nineteen twenties, you know
Speaker 1: that this was a conversation where Congress was not just
Speaker 1: doing the Court's bidden but was a certain its own
Speaker 1: authority as an independent institutional actor. I mean. The other
Speaker 1: piece of the second Folks to Find Surprising Act, which
Speaker 1: is very quietly the real turning point in the story
Speaker 1: of the Supreme Court's rise to power. Act June is
Speaker 1: known informally as the Judges Bill because it was basically
Speaker 1: written and lobbied for by the Supreme Court, I mean
Speaker 1: by then Chief Justice William Howard Taffs. So you know,
Speaker 1: I think if we sort of take a slightly longer
Speaker 1: look at the history here, we shouldn't be nearly as
Speaker 1: troubled by the specter of Congress having more control over
Speaker 1: the Court stock it, and we shouldn't be alarmed at
Speaker 1: the notion that this is a conversation that the Court
Speaker 1: and Congress should be having together. I want to divert
Speaker 1: for a moment. As you know, Justice Clarence Thomas talked
Speaker 1: about since the League mistrust at the Court having to
Speaker 1: look over your shoulder, and now you have the arrest
Speaker 1: of a man for trying to kill Justice Brett Kavanaugh.
Speaker 1: Has the Court changed forever? And I think there's no
Speaker 1: question that the events of the last few months um
Speaker 1: have been a really significant inflection point in the Court's history.
Speaker 1: I think the tricky part, as with any inflection point,
Speaker 1: is you know, in an inflection point in which confection um,
Speaker 1: has the Court changed forever? I don't doubt it had
Speaker 1: the change in ways that are probably not for the better.
Speaker 1: I suspect the answer is going to be yes. But
Speaker 1: I also think that it's too early to tell, you know,
Speaker 1: for now. One of the symptoms of that change is
Speaker 1: how far behind the justices are and how frankly June unlikely.
Speaker 1: I think it is that By the end of June,
Speaker 1: they will wrapped up their business with thanks so much
Speaker 1: for your insights as always, Steve. That's Professor Stephen Flattock
Speaker 1: of the University of Texas Law School. And that's it
Speaker 1: for this edition of The Bloomberg Law Show. Remember you
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Speaker 1: June Grosso and you're listening to Bloomberg