WEBVTT - Supreme Court's Next Term Could Be As Controversial 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brasso from Bloomberg Radio. 0:00:09.039 --> 0:00:12.640 It was a Supreme Court term marked by turbulence, the 0:00:12.840 --> 0:00:17.840 unprecedented leak of a draft abortion opinion, protests across the country, 0:00:17.960 --> 0:00:23.040 including at the Johnstice's homes, an alleged assassination attempt, all 0:00:23.120 --> 0:00:26.560 leading to a court surrounded by a high security fence. 0:00:27.080 --> 0:00:31.040 Justice Sonya Sotomayor sounded alarms about the court during the 0:00:31.160 --> 0:00:36.680 oral arguments in the abortion case. Will this institution survive 0:00:36.840 --> 0:00:44.199 the stench that this creates in the public perception that 0:00:44.600 --> 0:00:51.960 the Constitution and it's reading are just political acts. I 0:00:52.479 --> 0:00:56.560 don't see how it is possible. And Justice Clarence Thomas 0:00:56.760 --> 0:01:00.560 said it plainly, the court has changed. And when you 0:01:00.640 --> 0:01:06.360 lose that trust, especially in the institution that I'm in, Uh, 0:01:06.400 --> 0:01:10.560 it changes the institution fundamentally. You begin to look over 0:01:10.600 --> 0:01:14.039 your shoulder. It's like kind of an infidelity joining me 0:01:14.120 --> 0:01:17.640 is constitutional law expert Michael Dorff, a professor at Cornell 0:01:17.760 --> 0:01:20.280 Law School. Would you say this term was the most 0:01:20.360 --> 0:01:24.680 momentous in the Court's history or the most tumultuous. I 0:01:24.720 --> 0:01:28.280 don't know about in the Court's history. Certainly the term 0:01:28.360 --> 0:01:33.240 that they decided the dread Scott case was extremely tumultuous, 0:01:33.319 --> 0:01:36.400 Brown against Board of Education and so forth. But the 0:01:36.880 --> 0:01:42.679 combination of cases and what it portends about the future, 0:01:43.120 --> 0:01:47.920 I think together make this one of the most tumultuous 0:01:48.040 --> 0:01:53.200 terms we've encountered, certainly the most in the last forty years. 0:01:54.120 --> 0:01:56.760 I'm looking at the numbers, and last year with the 0:01:56.840 --> 0:02:01.000 same justices, the court issued more unanimous decisions than the 0:02:01.040 --> 0:02:05.480 previous six or seven years. But this term, unanimous decisions 0:02:05.600 --> 0:02:10.800 dropped sharply. Only cases were unanimous, and six to three 0:02:11.080 --> 0:02:14.919 was the most common alignment. Why such a big change 0:02:15.000 --> 0:02:17.440 from term to term, Well, part of that is just 0:02:17.560 --> 0:02:21.000 a product of small numbers the court. Here's fewer than 0:02:21.040 --> 0:02:25.200 a hundred cases a year. Many of them are resolving 0:02:25.240 --> 0:02:28.600 circuit splits, others involved big cases, and there's also a 0:02:28.720 --> 0:02:32.960 lag that is Justice Barrett joined the court to fall 0:02:33.000 --> 0:02:37.240 of So this concluded term it was really her first 0:02:37.320 --> 0:02:40.640 full term where they were considering cases, where she was 0:02:40.720 --> 0:02:43.480 there to vote to decide what cases to take. That 0:02:43.639 --> 0:02:46.760 is to say they had a quoted conservative supermajority the 0:02:46.840 --> 0:02:51.520 previous term, but that conservative supermajority hadn't been selecting cases 0:02:51.600 --> 0:02:54.839 with an eye towards moving the law. So I think 0:02:54.840 --> 0:02:57.680 that it takes a little while for a new court 0:02:57.840 --> 0:03:01.079 to come into its own, and various of the justices 0:03:01.200 --> 0:03:04.920 like to say, whenever there is a single change in personnel, 0:03:05.240 --> 0:03:08.120 there's a whole new court because the dynamic shifts. Chief 0:03:08.160 --> 0:03:13.120 Justice Roberts is no longer the median justice. That title 0:03:13.160 --> 0:03:16.000 I think belongs to Justice kavan On, although depending on 0:03:16.000 --> 0:03:18.560 the issue, it could be barred or core as such. 0:03:18.880 --> 0:03:22.600 But the basic answer is that this was the year 0:03:22.840 --> 0:03:27.079 in which the Conservative supermajority solidified. Doesn't mean there won't 0:03:27.120 --> 0:03:29.679 be unanimous cases going forward. There are issues that are 0:03:30.080 --> 0:03:32.680 largely a political or where the law is very clear. 0:03:33.080 --> 0:03:35.800 But I do think we are likely to see a 0:03:35.920 --> 0:03:39.680 six to three division, occasionally five to four, with Roberts 0:03:39.880 --> 0:03:44.440 swinging to the Democratic appointees. But that's the basic configuration, 0:03:44.520 --> 0:03:48.600 certainly on the high profile cases, with the abortion case 0:03:48.920 --> 0:03:52.280 in particular, where we saw the leak of the draft 0:03:52.440 --> 0:03:55.600 and then we saw that nothing had changed when the 0:03:55.640 --> 0:03:59.520 opinion came out. Does that show that Justice Roberts doesn't 0:03:59.520 --> 0:04:02.200 have the influence he used to have, that he couldn't 0:04:02.200 --> 0:04:05.840 convince one of the Conservatives to not be so radical 0:04:06.120 --> 0:04:09.520 not actually do away with Roe v. Wade. I think 0:04:09.560 --> 0:04:13.920 that's basically right. I would add um some other thoughts 0:04:14.000 --> 0:04:17.000 on that. One is that the very fact of the 0:04:17.120 --> 0:04:20.919 league might have affected the dynamic. You know, there's still 0:04:21.040 --> 0:04:23.640 no good answer to the question of who leaked this 0:04:23.760 --> 0:04:27.680 and why, But one of the leading hypotheses is that 0:04:27.720 --> 0:04:31.960 it was somebody who wanted to hold the other Conservatives 0:04:32.440 --> 0:04:34.800 to justice the leader's opinion, and the thought was that 0:04:34.839 --> 0:04:37.359 if they leaked it, then there wouldn't be a defection. 0:04:37.600 --> 0:04:39.120 I don't know whether that's true or not, but but 0:04:39.160 --> 0:04:42.000 if it is, that could be part of the explanation. 0:04:42.520 --> 0:04:44.760 I think a bigger piece of the explanation is that 0:04:44.839 --> 0:04:47.719 Chief sus As Roberts didn't really offer that much of 0:04:47.760 --> 0:04:52.240 an alternative. You read his opinion and he says, well, 0:04:52.279 --> 0:04:56.960 we can uphold the Mississippi ban, but we don't need 0:04:57.040 --> 0:05:00.640 to say where the line is. We we're just going 0:05:00.680 --> 0:05:04.320 to get rid of viability and we'll do something else eventually. 0:05:05.080 --> 0:05:08.560 I think for the justices who might have been amenable 0:05:08.640 --> 0:05:11.600 to some sort of compromise, and the theory was that 0:05:11.960 --> 0:05:14.920 Justice Kavanaugh was the most likely one, he didn't really 0:05:15.000 --> 0:05:18.720 get something that looked like a real alternative. What he 0:05:18.800 --> 0:05:22.080 got was well, let's wait and see. Uh. And I 0:05:22.120 --> 0:05:25.560 think that, um, that was just not enough for him. 0:05:25.800 --> 0:05:29.599 I do realize that Chief Justice roberts basic orientation is 0:05:29.680 --> 0:05:32.080 towards wait and see, right, and it's not necessary to 0:05:32.120 --> 0:05:35.000 decide a question. It's necessary not to decide the question. 0:05:35.040 --> 0:05:38.200 He actually says that in his concurrence in the Dobb's case. 0:05:38.720 --> 0:05:44.080 But that's a sort of procedural posture, it's not an alternative, 0:05:44.120 --> 0:05:50.120 substantive compromise. Looking at the reasoning of the majority in 0:05:50.160 --> 0:05:53.480 these six to three cases, in the hot button issue cases, 0:05:54.080 --> 0:05:57.960 can you describe in general the theory that the conservative 0:05:58.000 --> 0:06:02.120 majority used to come to their conclusion? Was it TEXTUALI 0:06:02.120 --> 0:06:06.240 is um originalism? It certainly wasn't the living Constitution. Well, so, 0:06:06.360 --> 0:06:12.200 first we want to distinguish between constitutional cases and statutory cases. 0:06:12.360 --> 0:06:17.279 So the big constitutional cases are, of course the abortion decision, Bruin, 0:06:17.600 --> 0:06:23.240 the Second Amendment case, and then two of the three 0:06:23.360 --> 0:06:26.840 main religion cases, although the big ones Kennedy against Bremerton 0:06:27.279 --> 0:06:32.960 and the main case involving the subsidies for the religious schools. 0:06:33.000 --> 0:06:37.240 So those are all constitutional cases, and they all purport 0:06:38.000 --> 0:06:42.520 to use originalism. Or in Bruin they say the method 0:06:42.560 --> 0:06:48.680 of text, original understanding and history or text and tradition, history, etcetera. 0:06:48.960 --> 0:06:53.560 So they all are very historically focused. In the biggest 0:06:53.640 --> 0:06:58.640 statutory case, which is the West Virginia against E. P A. There, 0:06:58.640 --> 0:07:01.440 of course it's not about original meaning of the Constitution. 0:07:01.480 --> 0:07:05.640 It's about the scope of the delegation from Congress to 0:07:06.040 --> 0:07:10.120 the agency, and there that is purports to be textualism. 0:07:10.120 --> 0:07:12.240 Now you'll notice I said in both cases purports to 0:07:12.280 --> 0:07:15.800 be originalists, purports to be textualists. That's because I think 0:07:16.120 --> 0:07:19.520 that it's very hard to take seriously the notion that 0:07:19.640 --> 0:07:23.760 what we're seeing here is a methodological disagreement as opposed 0:07:23.760 --> 0:07:28.400 to an ideological disagreement. Long ago there were liberal originalists 0:07:28.400 --> 0:07:30.560 who Go Black was the leading one. There are some 0:07:30.640 --> 0:07:33.560 of them in the legal academy, and there have been 0:07:33.800 --> 0:07:39.120 conservative purposivests or conservative living constitutionalists. So I think that 0:07:39.400 --> 0:07:43.120 this court is keen to speak the language of text, 0:07:43.160 --> 0:07:47.000 history and tradition, but that is mostly a sort of 0:07:47.040 --> 0:07:51.240 post talk rationalization for results that are being reached on 0:07:51.400 --> 0:07:54.480 ideological grounds. And I'll say that that's largely two of 0:07:54.520 --> 0:07:59.400 the dissenters as well. The democratic appointees also have ideological drawers, 0:07:59.760 --> 0:08:03.560 and they have a preferred methodology. But in these cases 0:08:03.560 --> 0:08:07.040 in which the law is underdeterminate, that is to say, 0:08:07.240 --> 0:08:10.280 you know, there are arguments for overturning, the arguments for retaining, 0:08:10.280 --> 0:08:15.240 the arguments for extending, for cutting back right, the justices predispositions, 0:08:15.320 --> 0:08:19.240 their values are going to do the work regardless of 0:08:19.560 --> 0:08:23.040 the rhetorical register in which they write the opinion at 0:08:23.040 --> 0:08:25.760 the end of the day. I've asked this question of 0:08:26.120 --> 0:08:29.480 others because it stands out in my mind. What will 0:08:29.600 --> 0:08:32.880 oral arguments look like next term? Will the lawyers be 0:08:33.360 --> 0:08:37.880 arguing the history of the seventeen and eighteen hundreds? Does 0:08:37.920 --> 0:08:42.080 precedent matter anymore? Starry decisive? You know, it's very hard. 0:08:42.160 --> 0:08:45.400 That's a very good question. I think that in one's 0:08:45.520 --> 0:08:49.280 briefs it will be very important to load up on 0:08:49.760 --> 0:08:55.719 textual arguments, historical arguments, and then the traditional doctrinal reasons 0:08:55.720 --> 0:08:57.840 to retain precedent if that's what you want to do, 0:08:57.960 --> 0:09:00.240 or overturnative that's the way you want to go. It's 0:09:00.280 --> 0:09:05.319 harder to engage in that kind of nitty gritty historical 0:09:05.760 --> 0:09:08.400 back and forth during an oral argument, right that is 0:09:08.440 --> 0:09:10.320 to say, if you if you think about the way 0:09:10.480 --> 0:09:15.600 professional historians practice history, they don't do it through oral arguments. 0:09:15.640 --> 0:09:19.480 They do it through archival research. They publish papers, they 0:09:19.520 --> 0:09:22.720 have lengthy footnotes, they have excerpts. It's not the kind 0:09:22.760 --> 0:09:28.920 of question that is amenable to the mechanisms by which 0:09:29.000 --> 0:09:32.880 appellate courts have traditionally decided cases. And that's frankly one 0:09:32.920 --> 0:09:37.320 reason why this methodology has not traditionally been used, Right, 0:09:37.360 --> 0:09:41.240 the fact that we have typically expected justices to pose 0:09:41.320 --> 0:09:45.880 hypothetical questions and then the lawyers sort of explain why 0:09:46.040 --> 0:09:49.600 the rule for which they're arguing leads to one result 0:09:49.840 --> 0:09:52.960 or another result. All of that leads one to think 0:09:53.000 --> 0:09:56.120 that this is a kind of common law enterprise, one 0:09:56.120 --> 0:09:59.280 in which the courts build case by case, they explore 0:09:59.559 --> 0:10:02.520 the implic cations of one rule versus another rule. And 0:10:02.559 --> 0:10:05.760 this idea that one is going to reach down deeply 0:10:05.800 --> 0:10:10.560 into the history and find something analogous in the eighteenth 0:10:10.679 --> 0:10:13.680 or nineteen centuries, as Justice Thomas says you ought to 0:10:13.720 --> 0:10:17.800 do in the Second Amendment case. Right, that's quite radical 0:10:17.840 --> 0:10:20.560 and quite different. So I actually don't know whether the 0:10:20.720 --> 0:10:23.440 oral arguments are going to start looking very different. I 0:10:23.520 --> 0:10:28.120 suspect they won't because the justices are not historians, their lawyers, 0:10:28.480 --> 0:10:32.160 and so while they might ultimately write opinions that, you know, 0:10:32.240 --> 0:10:35.920 tell us what Lord Hale thought and what the state 0:10:35.960 --> 0:10:38.960 of play was in the colonies, that's not going to 0:10:39.000 --> 0:10:42.079 be the driver of the decisions. When I was looking 0:10:42.080 --> 0:10:44.440 through the cases, I saw only one high profile case 0:10:44.440 --> 0:10:47.439 where the liberal justices were able to form a majority 0:10:47.520 --> 0:10:50.719 with the conservatives. The remain in Mexico case. As far 0:10:50.720 --> 0:10:53.880 as high profile, do the liberal justices have any power 0:10:53.920 --> 0:10:56.800 at all now except in dissent. But one case I 0:10:56.800 --> 0:11:00.960 would add to that is the vaccine man for healthcare workers, 0:11:00.960 --> 0:11:03.680 which was did come out five to four to uphold 0:11:04.440 --> 0:11:07.440 that that mandate. Right, they split. They heard two cases 0:11:07.480 --> 0:11:10.320 and decided them around the middle of the term. In 0:11:10.480 --> 0:11:15.920 one they upheld the vaccination mandate for healthcare workers, and 0:11:15.960 --> 0:11:21.680 in the other they invalidated the the OCEHA mandate for 0:11:22.559 --> 0:11:27.240 large private employers. And in the case upholding the mandate, 0:11:27.360 --> 0:11:30.839 they were able to swing enough justice to make to 0:11:30.880 --> 0:11:32.480 make a difference so that you could say that the 0:11:32.520 --> 0:11:36.240 liberals won that one. Well, yeah, that's just one additional case, 0:11:36.280 --> 0:11:38.960 and it was one in which the procedural posture made 0:11:38.960 --> 0:11:42.320 it relatively easy to do that. I think that there 0:11:42.400 --> 0:11:46.520 still will be cases going forward in which it's possible 0:11:46.760 --> 0:11:50.120 to peel off, you know, both Chief Justice Roberts and, 0:11:50.240 --> 0:11:54.520 depending on the issue, one of Justices Kavanaugh, Barrett or 0:11:54.559 --> 0:11:57.439 Gore such But you know, you've got to get to 0:11:57.440 --> 0:11:59.559 to do that, and that's very hard. Right. So, on 0:11:59.600 --> 0:12:02.920 a five to fourth court, it's relatively easy for the 0:12:03.000 --> 0:12:05.800 Ford occasionally to pick up a fifth vote. It's much 0:12:05.840 --> 0:12:08.439 harder for three to pick up a fourth and fifth vote. 0:12:08.760 --> 0:12:12.199 Does this term support the idea in your mind of 0:12:12.520 --> 0:12:16.640 adding justices to the court. Sure? That is to say, 0:12:16.960 --> 0:12:21.160 I think that the Supreme Court right now is both 0:12:21.240 --> 0:12:26.600 a symptom and to some extent a cause of our dysfunction. 0:12:27.200 --> 0:12:31.640 What's happened over the past, you know, ten twenty years, 0:12:32.040 --> 0:12:36.120 is that the increasing polarization we see in our politics 0:12:36.679 --> 0:12:40.160 has spread to the court right so that for the 0:12:40.240 --> 0:12:43.840 last several years and going forward, it's been true that 0:12:44.200 --> 0:12:48.640 every Democratic appointee is substantially more liberal than every Republican appointee. 0:12:48.640 --> 0:12:53.520 That wasn't true prior to Justices Suitor and Stevens leaving 0:12:53.559 --> 0:12:55.319 the court, and even when Justice Kennedy was still on 0:12:55.360 --> 0:12:58.000 the Court, he would occasionally be more liberal than one 0:12:58.000 --> 0:13:01.160 of the Democratic appointees. So the Court has become a 0:13:01.240 --> 0:13:06.199 highly part of an institution, and question is would adding 0:13:06.280 --> 0:13:10.560 justices stop that? My answer is probably not, probably continue that. 0:13:11.160 --> 0:13:13.880 But you know, if the country is on fire, as 0:13:13.960 --> 0:13:16.000 it appears to be, you do whatever you can to 0:13:16.000 --> 0:13:19.120 put out the fire. My view is sort of that, Yeah, 0:13:19.160 --> 0:13:22.800 I'm not against it. I'm not actively proposing it though, 0:13:23.000 --> 0:13:26.199 because it seems dead on arrival in the Senate. I mean, 0:13:26.280 --> 0:13:30.679 Senators Mansion in Cinema can't even be moved to end 0:13:30.720 --> 0:13:34.640 the filibuster for the purpose of adopting election law rules 0:13:34.720 --> 0:13:38.480 to preserve the rudiments of democracy. I don't see that 0:13:38.520 --> 0:13:40.920 they would do that to expand the Supreme Court, which 0:13:41.000 --> 0:13:44.760 is a position that even President Biden doesn't seem to support. 0:13:44.840 --> 0:13:48.000 So yeah, in a different political world, I might say 0:13:48.160 --> 0:13:50.800 that's something worth doing. But in that different political world, 0:13:50.840 --> 0:13:53.600 you might not need to. Coming up, Professor Michael Dorf 0:13:53.640 --> 0:13:55.120 and I are going to talk about some of the 0:13:55.200 --> 0:13:58.120 high profile cases coming up next term at the Court, 0:13:58.480 --> 0:14:02.520 including affirmative action. You're listening to Bloomberg, please raise your 0:14:02.640 --> 0:14:07.280 right hand and repeat after me, I Katanji Brown Jackson, 0:14:07.320 --> 0:14:12.080 do solemnly swear, I, Katanji Brown Jackson, do solemnly swear 0:14:12.520 --> 0:14:15.199 that I will support and defend the Constitution of the 0:14:15.280 --> 0:14:19.240 United States against all enemies, foreign and domestic. That I 0:14:19.240 --> 0:14:22.480 will support and defend the Constitution of the United States 0:14:22.520 --> 0:14:26.280 against all enemies, foreign and domestic. On the last day 0:14:26.280 --> 0:14:29.880 of the term, Katangi Brown Jackson was sworn in as 0:14:29.920 --> 0:14:33.600 the one hundred sixteenth Associate Justice of the Supreme Court, 0:14:34.000 --> 0:14:36.720 the first black woman to serve on the Court, and 0:14:36.800 --> 0:14:41.160 her first term will include divisive cases on affirmative action, 0:14:41.400 --> 0:14:44.840 gay rights, the environment, and election law. I've been talking 0:14:44.880 --> 0:14:48.720 to constitutional law expert Michael Dorff, a professor at Cornell 0:14:48.800 --> 0:14:51.800 Law School. It's always said that when a new justice 0:14:51.840 --> 0:14:54.560 comes on the Court, there's a change in the dynamic. 0:14:54.920 --> 0:14:57.720 But with this court, do you think that Justice Katanji 0:14:57.760 --> 0:15:01.840 Brown Jackson will make a difference. I think yes. I 0:15:01.880 --> 0:15:05.640 think that her presence will affect the dynamic at oral argument. 0:15:05.960 --> 0:15:09.600 I think it will affect the dynamic of how descents 0:15:09.680 --> 0:15:13.120 get written. I think it's significant now that all of 0:15:13.240 --> 0:15:17.600 the justices likely to be in the minority in these 0:15:17.680 --> 0:15:22.360 divided cases are women, and so all of that effects 0:15:22.440 --> 0:15:24.800 the way in which cases are argued, the way in 0:15:24.840 --> 0:15:27.320 which opinions and descents are written. The fact that we 0:15:27.360 --> 0:15:29.160 now have to African Americans sitting on the court at 0:15:29.160 --> 0:15:32.400 the same time, I think that takes away a little 0:15:32.440 --> 0:15:37.160 bit of the rhetorical power that Justice Thomas might have had. 0:15:37.360 --> 0:15:40.160 But the bottom line, of course, is that you're just 0:15:40.280 --> 0:15:44.160 substituting Justice Jackson for the justice for whom she clerked, 0:15:44.240 --> 0:15:48.160 Justice Brier, and that doesn't affect outcomes in you know, 0:15:48.280 --> 0:15:51.960 more than a handful of probably low profile cases. Let's 0:15:51.960 --> 0:15:55.320 discuss some of the cases for next term. There's one 0:15:55.360 --> 0:16:00.240 involving gay rights where a website designer in Colorado used 0:16:00.280 --> 0:16:03.400 to start creating pages for same sex weddings because it 0:16:03.400 --> 0:16:06.200 would be at odds with her faith. So in principle, 0:16:06.240 --> 0:16:08.520 this isn't a gay rights case. In principle, this is 0:16:08.520 --> 0:16:14.280 a case about exemptions from anti discrimination law. And if 0:16:14.320 --> 0:16:19.000 I were arguing this to defend the Colorado Anti discrimination Provision, 0:16:19.480 --> 0:16:22.600 I would emphasize that this is not about gay rights. 0:16:22.600 --> 0:16:26.720 But if you allow exceptions franti discrimination law for people 0:16:26.720 --> 0:16:29.240 who are opposed to gay rights or same sex marriage 0:16:29.320 --> 0:16:32.320 or whatever it is. Then you need some good reason 0:16:32.360 --> 0:16:35.520 why you're not going to allow exceptions from race discrimination, 0:16:35.640 --> 0:16:39.880 sex discrimination, veteran status discrimination. That in that sense, this 0:16:40.080 --> 0:16:43.120 really isn't a gay rights case at all. It's a 0:16:43.160 --> 0:16:47.720 case about whether people get to say that they don't 0:16:47.760 --> 0:16:51.360 like complying with some law because it violates either their 0:16:51.400 --> 0:16:55.560 religious principles or their expressive principles, and whether you're going 0:16:55.640 --> 0:16:59.360 to allow that to undercut anti discrimination law. The last 0:16:59.400 --> 0:17:01.680 time this issue was up before them, they ducked it 0:17:02.000 --> 0:17:05.520 in the Masterpiece cake Shop case by finding that there 0:17:05.640 --> 0:17:09.560 was subjective illicit motive to discriminate against religion. Here, I 0:17:09.560 --> 0:17:11.879 don't think it will be so easy to duck the case, 0:17:12.200 --> 0:17:14.960 but I do think that the case's main implications will 0:17:15.000 --> 0:17:17.920 go well beyond gay rights, and in that sense, I 0:17:17.960 --> 0:17:21.119 would think of it as a question more about the 0:17:21.200 --> 0:17:24.040 scope of free speech and pre exercise of religion and 0:17:24.200 --> 0:17:27.560 less about gay rights, although of course you could imagine 0:17:27.800 --> 0:17:31.920 the justices. Certainly, Justice Alito has hinted at this, saying, well, 0:17:31.960 --> 0:17:33.680 it would be different if this were a race case, 0:17:33.680 --> 0:17:37.359 because there's a compelling interest in overcoming race discrimination, and 0:17:37.400 --> 0:17:40.400 maybe there isn't such an interest in overcoming bias against 0:17:40.480 --> 0:17:43.040 lgbt Q plus individuals. I think that would be a 0:17:43.160 --> 0:17:45.879 terrible mistake, but I could see them doing that, and 0:17:45.920 --> 0:17:47.840 in that case, I would say, well, then they've turned 0:17:47.840 --> 0:17:50.359 it into a gay rights case. There are two affirmative 0:17:50.359 --> 0:17:54.720 action cases coming before the Justices challenging admission policies at 0:17:54.760 --> 0:17:58.560 Harvard College and the University of North Carolina, and several 0:17:58.600 --> 0:18:03.159 of the justices have ex rest distrust or disapproval of 0:18:03.240 --> 0:18:06.960 the theory of affirmative action, not just express distrust. I 0:18:07.000 --> 0:18:10.359 think that there are probably six votes on this Court 0:18:10.640 --> 0:18:13.600 that includes Chief Justice Roberts, who has been pretty strong 0:18:13.640 --> 0:18:17.600 on this, to say that the Constitution in the University 0:18:17.600 --> 0:18:21.320 of North Carolina case, because that's a state actor, and 0:18:21.720 --> 0:18:26.320 the federal statute in the Harvard case simply forbid any 0:18:26.960 --> 0:18:31.160 use of race in university admissions, and then maybe by 0:18:31.160 --> 0:18:35.920 extension in later cases in employment and other contexts. Their 0:18:36.040 --> 0:18:40.600 view is that the Constitution and federal anti inscrimination law 0:18:40.800 --> 0:18:45.120 require color blindness, meaning you can't take race into account 0:18:45.440 --> 0:18:48.520 even as a so called plus factor, which has been 0:18:48.520 --> 0:18:51.239 the way that colleges and universities have been doing it 0:18:51.480 --> 0:18:54.360 under the approval of the Supreme Court since at least 0:18:55.160 --> 0:18:59.359 eight in the Hockey case. The Roberts Court has in 0:18:59.760 --> 0:19:04.440 the hasked purported to apply the University of Michigan decision 0:19:04.480 --> 0:19:07.720 for the Grooder case from early in the two thousands, 0:19:07.720 --> 0:19:10.240 but they haven't had a case that presented that since 0:19:10.280 --> 0:19:13.960 Justice Kennedy retired. So now I think the dynamic shifts. 0:19:13.960 --> 0:19:16.639 So I would be very surprised to see the Court 0:19:16.960 --> 0:19:20.879 uphold the current standard under which race is permitted as 0:19:20.880 --> 0:19:23.000 a so called plus factor but not as a quota. 0:19:23.359 --> 0:19:26.480 I expect them to say something like it's absolutely forbidden 0:19:26.520 --> 0:19:32.199 except to remedy specific instances of identified unconstitutional Now, the 0:19:32.240 --> 0:19:34.560 only way they could avoid doing that is they could 0:19:34.720 --> 0:19:38.080 strike down either the Harvard or the University of North 0:19:38.080 --> 0:19:41.880 Carolina admissions program, or I guess both on some narrower basis. 0:19:41.920 --> 0:19:45.919 There are allegations and some evidence in the record that 0:19:46.200 --> 0:19:50.720 the colleges are just engaged in sort of open discrimination 0:19:50.800 --> 0:19:54.160 against Asian Americans, and you could say that that's illegal 0:19:54.200 --> 0:19:57.239 without saying anything about it firmative action more broadly. So 0:19:57.280 --> 0:19:59.720 that's a possibility, but again you would need a court 0:19:59.760 --> 0:20:02.760 that inclined to want to find a narrow ground and 0:20:02.800 --> 0:20:04.760 I don't think they took these cases to find a 0:20:04.880 --> 0:20:09.199 narrow ground. There's a North Carolina redistricting case where the 0:20:09.240 --> 0:20:12.840 Court is going to consider adopting this theory called the 0:20:12.960 --> 0:20:18.560 independent state legislature theory, and three or four justices, depending 0:20:18.600 --> 0:20:22.040 on how you look at it, have already expressed some 0:20:22.080 --> 0:20:25.280 approval for this. But this could throw a real ranch 0:20:25.320 --> 0:20:28.919 into elections in some states. Right, So the spaces for 0:20:28.960 --> 0:20:32.639 this theory is that the Constitution, both in Article one 0:20:32.760 --> 0:20:36.600 with respect to congressional elections and an Article two and 0:20:36.920 --> 0:20:40.480 by extension the twelfth Amendment with respect to presidential elections, 0:20:40.640 --> 0:20:46.080 gives to state legislatures the power to set the rules 0:20:46.160 --> 0:20:51.120 governing elections. Now, up until a little over twenty years ago, 0:20:51.920 --> 0:20:57.400 everybody understood that legislature meant well the state legislative process, 0:20:57.480 --> 0:21:01.879 which includes the governor's signature, and it includes judicial review 0:21:01.960 --> 0:21:05.119 by the state courts pursuing too the state constitutions. But 0:21:06.040 --> 0:21:10.800 beginning in two thousand, in a concurrence by three justices 0:21:10.800 --> 0:21:13.520 in bush Bee Gore, we have had this idea that 0:21:13.920 --> 0:21:18.200 when exercising its role to set election rules with respect 0:21:18.200 --> 0:21:23.359 to federal elections, state legislatures have some independent authorities and 0:21:23.400 --> 0:21:25.800 I should say, although none of the justices except for 0:21:25.880 --> 0:21:28.560 Justice Thomas, who were part of that concurrence, the other 0:21:28.600 --> 0:21:32.920 two Justices Ran Kishins Clere have passed away, Justice Thomas remains, 0:21:33.000 --> 0:21:36.920 and the architects of that theory were the Bush lawyers, 0:21:37.040 --> 0:21:41.440 including Chief Justice Robert and I believe Justices Kavanaugh and Barrett, 0:21:41.440 --> 0:21:44.640 as relatively young attorneys, worked on that case as well. 0:21:44.840 --> 0:21:47.440 And so there is reason to think that there will 0:21:47.480 --> 0:21:51.119 be five votes for some version of this theory that 0:21:51.240 --> 0:21:54.440 says that the state legislature acts in a way that's 0:21:54.560 --> 0:21:59.720 independent of the state constitution, state judicial review. And so 0:22:00.040 --> 0:22:02.399 with so, do you think it's a lot that the 0:22:02.480 --> 0:22:06.879 Court will adopt this theory. I have some hope that 0:22:07.000 --> 0:22:11.399 they won't endorse the most aggressive view of that, based 0:22:11.400 --> 0:22:13.840 in part on the fact that there has been considerable 0:22:13.840 --> 0:22:18.400 research in the last several years by scholars going back 0:22:18.440 --> 0:22:21.120 at to look at the history to say that this 0:22:21.240 --> 0:22:25.359 idea just is made up. That is, it's pretty clear 0:22:25.400 --> 0:22:28.760 that the original meaning of state legislature was state legislature 0:22:28.960 --> 0:22:33.239 within the context of the state constitutional systems. Because if 0:22:33.280 --> 0:22:35.199 it doesn't mean that, then you have all sorts of 0:22:35.240 --> 0:22:39.320 weird paradoxes like what happens if the governor of the 0:22:39.359 --> 0:22:43.080 state vetos a bill. Does that mean that that bill 0:22:43.160 --> 0:22:45.960 is now law with respect to federal elections but not 0:22:46.119 --> 0:22:51.040 with respect to the state elections that are conducted simultaneously. 0:22:51.240 --> 0:22:53.480 How does that affect voto qualifications, etcetera. So there are 0:22:53.520 --> 0:22:56.440 all sorts of problems with the sort of most robust 0:22:56.600 --> 0:23:00.399 version of the independent state legislature theory. And of course 0:23:00.720 --> 0:23:06.000 it's that theory that President Trump, aided by the likes 0:23:06.040 --> 0:23:11.480 of John Eastman and others, were pushing as the excuse 0:23:11.800 --> 0:23:16.119 for overturning the results of election. If it's endorsed by 0:23:16.119 --> 0:23:19.480 the Supreme Court, then they could do it potentially in 0:23:19.560 --> 0:23:22.760 a way that's legal in the next election. Approval of 0:23:22.800 --> 0:23:26.640 the Court is at the lowest in modern history. Yet, 0:23:26.720 --> 0:23:29.000 just as a leader in the abortion decision said, the 0:23:29.040 --> 0:23:33.920 Court isn't concern with public opinion, but should they be? 0:23:33.920 --> 0:23:36.359 Does the public have to have confidence in the Court 0:23:36.400 --> 0:23:42.480 as an institution. So over the long run, whatever they say, 0:23:42.720 --> 0:23:46.919 the justices do in fact act in a way that 0:23:47.040 --> 0:23:51.120 shows that they almost certainly care about public opinion. Right, 0:23:51.160 --> 0:23:54.680 there's this famous line, and Mr Dooley, you know whether 0:23:54.720 --> 0:23:57.600 the Constitution follows the flag. The Supreme Court follows the 0:23:57.600 --> 0:24:01.280 election return. That was at the turn of the nineteen 0:24:01.520 --> 0:24:05.320 twenty centuries, and so that's been true throughout our history. Right, 0:24:05.359 --> 0:24:10.960 the Court has been a political and politicized institution forever. 0:24:11.160 --> 0:24:15.440 It was true at the end of the Adams administration, 0:24:15.520 --> 0:24:18.840 going into the Jefferson administration. It was certainly true leading 0:24:18.880 --> 0:24:21.600 up to the Civil War, it was true leading up 0:24:21.600 --> 0:24:24.840 to enduring the New Deal, and it's true today. It's 0:24:24.920 --> 0:24:30.520 also the case that we have an ideal of blind justice. Right, 0:24:30.640 --> 0:24:33.840 the judges and justices are not supposed to be swayed 0:24:34.040 --> 0:24:37.240 by public opinion, and I think everybody who believes in 0:24:37.280 --> 0:24:40.160 the rule of law believes that that's true to some extent. 0:24:40.440 --> 0:24:44.679 So they shouldn't vow to pressure, they shouldn't vow to threat. 0:24:44.840 --> 0:24:47.560 We can all agree on that. At the same time, 0:24:48.600 --> 0:24:54.160 their role in interpreting the Constitution is one that constrains 0:24:54.440 --> 0:24:58.439 and to some extent defines the democratic process, and so 0:24:58.560 --> 0:25:03.119 it's inevitable that the democratic process is going to push back, 0:25:03.680 --> 0:25:06.600 and that gets us to a sort of basic debate 0:25:06.600 --> 0:25:09.040 about what it is that they're doing. Right, So, the 0:25:09.160 --> 0:25:13.679 justices who purport to be originalists say, well, they're just 0:25:13.760 --> 0:25:18.119 preserving the Constitution. Uh. And so modern public opinion is 0:25:18.359 --> 0:25:21.800 completely irrelevant because it didn't affect what people met in 0:25:21.880 --> 0:25:25.879 seventeen eight or sev or eighteen sixty eight, whenever the 0:25:25.880 --> 0:25:29.920 relevant provision came into effect. Um. But if you think 0:25:30.000 --> 0:25:33.480