WEBVTT - Newest Justice Shows Independent Streak 0:00:00.560 --> 0:00:05.360 This is Bloomberg Law with June Grassoe from Bloomberg Radio. 0:00:06.280 --> 0:00:10.480 Justice Amy Coney Barrett, the newest Supreme Court justice, joined 0:00:10.480 --> 0:00:14.160 three liberal colleagues in an opinion that said Alabama can't 0:00:14.240 --> 0:00:17.720 execute a convicted murderer unless he can have his pastor 0:00:17.760 --> 0:00:21.279 by his side. The court's latest action blocked the state 0:00:21.360 --> 0:00:24.680 from executing Willie B. Smith, the third for a murder 0:00:24.680 --> 0:00:30.040 in the state, will need to reschedule his execution. This 0:00:30.080 --> 0:00:33.000 decision came less than a week after Barrett took a 0:00:33.080 --> 0:00:38.480 somewhat nuance stance on California's COVID nineteen restrictions on religious services, 0:00:39.400 --> 0:00:43.800 joining me as Jordan Reuben Bloomberg Law editor. So, first 0:00:43.880 --> 0:00:48.320 of all, why did Alabama want to execute an inmate 0:00:48.440 --> 0:00:53.440 without his pastor in the chamber? Prison officials claimed it 0:00:53.520 --> 0:00:56.400 was for security reasons. We've seen that in a number 0:00:56.400 --> 0:01:00.640 of states across the country, giving rise to be claims 0:01:00.640 --> 0:01:04.839 from inmates saying that those concerns shouldn't override what they're saying. 0:01:04.840 --> 0:01:09.039 Are there religious rights to have their spiritual advisors with them? 0:01:09.720 --> 0:01:14.800 And what happened at the court below. So the corporlow 0:01:14.880 --> 0:01:18.080 the US Court of Appeals for the eleventh Circuit sided 0:01:18.120 --> 0:01:21.400 with the inmates Smith, saying that the state could not 0:01:21.560 --> 0:01:24.920 execute him without having his pastors in the chamber. And 0:01:24.959 --> 0:01:27.200 that's what led the state to an appeal to the 0:01:27.240 --> 0:01:30.760 Supreme Court to try and get that injunction lifted so 0:01:30.800 --> 0:01:33.760 they could execute Smith without his pastors in the chamber. 0:01:34.440 --> 0:01:39.040 So now Justice Barrett voted with the three liberal justices 0:01:39.920 --> 0:01:43.600 who wrote the opinion in what did it say? This 0:01:43.760 --> 0:01:46.760 was an opinion by Justice Kagan, and as he mentioned, 0:01:46.760 --> 0:01:50.200 it was joined by the other two Democratic appointees as 0:01:50.240 --> 0:01:54.680 well as Justice Barrett. And it said essentially that the 0:01:54.720 --> 0:01:59.960 state's interest in security, although compelling, as Kagan acknowledged, doesn't 0:02:00.080 --> 0:02:04.000 override Smith's right on religious grounds to have his pastor 0:02:04.080 --> 0:02:07.480 with him. The state didn't do enough to prove why 0:02:07.560 --> 0:02:12.399 it's security interests should overlie that religious interest. And now 0:02:12.480 --> 0:02:17.359 who was the fifth vote to stop the execution. That's 0:02:17.400 --> 0:02:19.600 a mystery, June. And it brings up another topic that 0:02:19.639 --> 0:02:22.800 you and I have discussed, the Supreme Courts shadow docket, 0:02:22.840 --> 0:02:26.280 where the justices do not always explain how they vote, 0:02:26.320 --> 0:02:29.280 and we saw really an extreme version of that in 0:02:29.320 --> 0:02:33.880 this instance. Because we know that those four justices sided 0:02:33.880 --> 0:02:37.920 with Smith, we know that Justices Thomas, Roberts and Kavanaugh 0:02:38.160 --> 0:02:43.080 noted their dissent, and that leaves Justices Alito and Gorsage. 0:02:43.080 --> 0:02:45.240 And so what we know is that in order to 0:02:45.320 --> 0:02:48.399 form a majority, the four justices Barrett and the three 0:02:48.440 --> 0:02:52.480 Democratic appointees would have needed at least Aldo or Gorsage 0:02:52.760 --> 0:02:54.200 to be with them. So we know that it was 0:02:54.240 --> 0:02:57.280 at least one of them. It was possibly both, but 0:02:57.360 --> 0:02:59.880 we just don't know because those two justices did not 0:03:00.160 --> 0:03:04.440 indicate one way or the other. And those two justices 0:03:04.520 --> 0:03:09.160 have been strong supporters of the death penalty. Could it 0:03:09.240 --> 0:03:12.160 be that they didn't want anyone to know their position here? 0:03:13.440 --> 0:03:16.840 It's possible that they have been two of the strongest 0:03:17.680 --> 0:03:20.360 justices to rule against in these and for the government 0:03:20.360 --> 0:03:22.920 and death penalty cases. There there are also two justices 0:03:23.240 --> 0:03:27.239 who voted strongly in favor of religious rights against other 0:03:27.360 --> 0:03:30.720 rights that have come into play, And so we just 0:03:30.960 --> 0:03:33.920 don't know. And so I don't necessarily assume that it 0:03:34.040 --> 0:03:36.920 was not both of them that voted with the majority. 0:03:37.480 --> 0:03:40.560 But because they didn't tell us, that just leaves really 0:03:40.640 --> 0:03:44.880 unnecessary speculation. There's no reason why they can't just tell 0:03:45.000 --> 0:03:47.680 us how they voted, Like the other justices did so 0:03:47.840 --> 0:03:52.840 tell us about the dissenters. Sure, so we had Justice 0:03:52.880 --> 0:03:55.640 Thomas who merely noted the fact that he would have 0:03:55.680 --> 0:03:58.720 granted the state's applications. We didn't say more than that, 0:03:59.000 --> 0:04:03.680 while Justice is Kavanaugh and Roberts, they would have listed 0:04:03.920 --> 0:04:07.280 the state's injunction. And it's interesting because all of this 0:04:07.360 --> 0:04:10.400 in some ways traces back to an idea that Justice 0:04:10.440 --> 0:04:14.440 Kavanaugh had when this religious advisor issue was previously before 0:04:14.480 --> 0:04:17.440 the Court. It was actually Justice Kavanaugh who said the 0:04:17.560 --> 0:04:21.600 states wanted to avoid any issues of favoring one religion 0:04:21.680 --> 0:04:25.040 over another, they could just simply bar ministers of all 0:04:25.080 --> 0:04:28.520 faiths from the chamber. And so Texas and Alabama in 0:04:28.520 --> 0:04:31.120 this case took him up on that offer. That led 0:04:31.160 --> 0:04:33.440 to this wave of litigation. And so that's a long 0:04:33.440 --> 0:04:37.080 way of saying that while Kavanaugh and Roberts would have 0:04:37.120 --> 0:04:39.039 gone along with what the state wanted to do in 0:04:39.080 --> 0:04:42.560 this instance, the takeaway they said is that states should 0:04:42.600 --> 0:04:46.160 really find a way to let these executions go forward 0:04:46.200 --> 0:04:49.120 with spiritual advisors, just so it's not giving rise to 0:04:49.200 --> 0:04:53.800 this eleventh our litigation coming from either side. And so 0:04:54.200 --> 0:04:57.839 Kavanaugh Roberts, even though they disagreed. I think Kavanaugh and 0:04:57.960 --> 0:05:01.040 Roberts understand the interest here, and so I think the 0:05:01.160 --> 0:05:03.400 point is they just don't want to see any more 0:05:03.440 --> 0:05:07.840 of this litigation, which they deem to be unnecessary. So 0:05:07.880 --> 0:05:11.160 now it appears that there are at least five votes, 0:05:11.720 --> 0:05:15.159 so that people on death row who want a spiritual 0:05:15.200 --> 0:05:19.600 advisor have to get a spiritual advisor. I think that's right, 0:05:19.640 --> 0:05:22.040 and possibly more than five votes. I should say that 0:05:22.360 --> 0:05:26.760 there's potentially nuanced depending on what grounds of religious freedom 0:05:26.800 --> 0:05:29.000 inmates are reason they're playing. There are different parts of 0:05:29.000 --> 0:05:31.640 the First Amendment. There's a statute that was relevant in 0:05:31.680 --> 0:05:34.919 this case, which different justices could have different opinions on. 0:05:35.000 --> 0:05:37.560 But broadly speaking, what we've seen in the last few 0:05:37.640 --> 0:05:41.360 years from a court that really has declined to side 0:05:41.400 --> 0:05:44.440 with death row inmates on pretty much any ground, this 0:05:44.560 --> 0:05:48.280 ground of religious advisor is really the only one that's 0:05:48.320 --> 0:05:51.440 been winning as far as it goes for inmates, and 0:05:51.480 --> 0:05:54.279 so I think that's safe to say that it's unlikely 0:05:54.360 --> 0:05:57.000 that an inmate is going to be executed without their 0:05:57.520 --> 0:06:00.919 religious advisor, barring some type of circumstances that we haven't 0:06:00.920 --> 0:06:04.040 seen yet over the last few years. Jordan's so There 0:06:04.080 --> 0:06:09.840 have been several controversial cases involving death row inmates having 0:06:09.839 --> 0:06:13.880 a religious advisor with them in the chamber when they're executed. 0:06:14.440 --> 0:06:18.240 One involved a Muslim inmate, another a Buddhist inmate. Tell 0:06:18.320 --> 0:06:22.120 us about them sure, And so in Alabama, this was 0:06:22.160 --> 0:06:25.080 another case from Alabama that really set all these this off. 0:06:25.160 --> 0:06:27.080 There was a death row inmate. This was back in 0:06:27.920 --> 0:06:31.400 a man named Dominique Gray, and he was executed without 0:06:31.520 --> 0:06:34.680 his mom in the chamber. And this was after the 0:06:34.720 --> 0:06:38.880 Supreme Court said that he was not entitled to that, 0:06:38.920 --> 0:06:42.560 and that really caused an outrage and a bipartisan outrage 0:06:42.560 --> 0:06:44.280 at that. And I think in some ways the court 0:06:44.400 --> 0:06:46.919 might have thought that had had some egg on its face, 0:06:47.000 --> 0:06:49.760 and then it reversed course in a sense. And so 0:06:50.120 --> 0:06:52.960 that's still lends itself to criticism from some circles that 0:06:53.080 --> 0:06:56.039 it only ruled against that man because he was Muslim, 0:06:56.080 --> 0:06:58.040 when the court had gone on to a world more 0:06:58.120 --> 0:07:04.080 favorably in favor of other religions. And so regardless of that, 0:07:04.120 --> 0:07:07.320 what we've seen since that Alabama case and the outrage 0:07:07.320 --> 0:07:10.120 that it sparked, is that the Court has changed course 0:07:10.240 --> 0:07:13.280 and has decided on different grounds in different cases with 0:07:13.360 --> 0:07:16.640 different justices indicating that they're voting one way or the other, 0:07:16.720 --> 0:07:19.280 but that on the whole, the court is saying, we 0:07:19.320 --> 0:07:23.080 don't want these executing inmates without religious advisors with them. 0:07:23.720 --> 0:07:27.160 So now Justice Barrett is getting some attention because of 0:07:27.200 --> 0:07:30.000 this decision, because she joined with the liberals, and it's 0:07:30.000 --> 0:07:32.160 the second time in less than a week that she 0:07:32.280 --> 0:07:37.560 has not joined with her most conservative colleagues. That's right, 0:07:37.640 --> 0:07:40.360 and so I think in some ways it's tough to 0:07:40.400 --> 0:07:42.720 tell a lot from just a couple of data points. 0:07:42.760 --> 0:07:44.880 But one thing that it does show is that for 0:07:44.960 --> 0:07:47.680 people heading into Justice Barrett's confirmation who were worried this 0:07:47.760 --> 0:07:50.400 is going to be a six three lockstep court on 0:07:50.480 --> 0:07:52.760 every issue, what we learned is that at least that's 0:07:52.760 --> 0:07:56.400 not the case now. In these recent cases, these have 0:07:56.440 --> 0:07:59.840 been decisions that aren't necessarily going to change the course 0:07:59.840 --> 0:08:02.360 of a law. Take this death row case that we're 0:08:02.360 --> 0:08:05.280 talking about. All that's happening here is that this man 0:08:05.400 --> 0:08:07.880 can have his pastor with him when he's executed. There's 0:08:07.880 --> 0:08:10.840 no question of whether he's still going to be executed. 0:08:10.880 --> 0:08:14.200 In a recent case on COVID nineteen where Barrett didn't 0:08:14.280 --> 0:08:17.440 join with all of the other Republican appointees. It was 0:08:17.480 --> 0:08:19.960 to take sort of a more not moderate approach in 0:08:20.040 --> 0:08:23.280 terms of how a church could reopen, but to be 0:08:23.320 --> 0:08:26.000 clear that it could reopen and allow people in. And 0:08:26.080 --> 0:08:30.720 so it's certainly no way of saying that Justice Barrett 0:08:30.800 --> 0:08:33.560 is emerging as some type of liberal. Really all saying 0:08:33.640 --> 0:08:35.600 is that the Court is not going to be a 0:08:35.640 --> 0:08:39.440 six three monolith in every case. And it's interesting that 0:08:39.600 --> 0:08:44.720 both these cases that we're talking about involved religious rights, 0:08:46.240 --> 0:08:48.480 for sure, and so one way to look at it 0:08:48.600 --> 0:08:52.400 is that this definitalty case isn't really a defenseity case. 0:08:52.559 --> 0:08:56.720 It's a religion case. And so it's really a consistency 0:08:56.920 --> 0:08:59.760 on Justice Barrett's part. Arguably if you look at her decisions, 0:09:00.080 --> 0:09:03.720 that she's consistently citing in favor of religion, whereas perhaps 0:09:03.960 --> 0:09:07.760 other justices have been inconsistent on those grounds. And so 0:09:07.840 --> 0:09:11.000 that is another takeaway that we have from these recent 0:09:11.040 --> 0:09:14.720 decisions from Justice Barrett, and maybe other justices like Alito 0:09:14.800 --> 0:09:17.720 and Gorseitch are doing the same, but they did not 0:09:17.840 --> 0:09:19.840 find it fit to tell us how they voted in 0:09:19.880 --> 0:09:23.319 this case. We're less speculating as to them. In a 0:09:23.320 --> 0:09:27.000 normal case, you get to see how all the justices vote. 0:09:27.559 --> 0:09:30.440 But in this case, you didn't explain again why they're 0:09:30.440 --> 0:09:34.599 allowed to sort of conceal their opinions. Well as with 0:09:34.679 --> 0:09:37.120 pretty much everything else about the Supreme Court, they're allowed 0:09:37.160 --> 0:09:39.240 to do it because they're in charge and there's no 0:09:39.800 --> 0:09:43.440 interglactic Supreme Court that people can appeal to. This is 0:09:43.440 --> 0:09:47.440 simply how the Justices have decided is a reasonable way 0:09:47.480 --> 0:09:51.240 to operate when these emergency applications come up. They have 0:09:51.360 --> 0:09:53.080 to rule one way or the other. They have to 0:09:53.920 --> 0:09:56.400 make an order one way or the other. But they've 0:09:56.400 --> 0:09:58.959 seen it fit to say that it's not vowed to 0:09:59.000 --> 0:10:01.560 the public to say how they voted in a given case. 0:10:01.600 --> 0:10:04.240 And these are cases that can be just as important, 0:10:04.280 --> 0:10:07.640 if not sometimes more important, than cases that are argued 0:10:07.720 --> 0:10:12.360 injustice is right, lengthy decisions on the merits. And so, 0:10:12.679 --> 0:10:14.800 just to be clear, a reason that's been brought up 0:10:14.960 --> 0:10:16.640 to why they don't do that, it's because this is 0:10:16.640 --> 0:10:19.280 happening in a very rush nature, and it's happening at 0:10:19.280 --> 0:10:21.640 the eleventh hour. Ands some have said that that's the 0:10:21.679 --> 0:10:25.320 reason why they don't do it. Of course, there's a 0:10:25.360 --> 0:10:27.440 reason in their head when they make a decision one 0:10:27.440 --> 0:10:29.400 way or the other. And so I don't think it 0:10:29.400 --> 0:10:31.719 would necessarily have to be a lengthy decision, but it 0:10:31.760 --> 0:10:34.679 would be helpful if there was some even short decision 0:10:34.800 --> 0:10:37.480 or at least say which way you voted. That seems 0:10:37.520 --> 0:10:39.680 like it would be a reasonable course to me. I 0:10:39.800 --> 0:10:43.000 like the intergalactic Supreme Court, and they have to borrow that. 0:10:45.400 --> 0:10:49.719 So there's a very controversial case involving religious rights that 0:10:49.880 --> 0:10:52.679 the Supreme Court heard arguments on but hasn't made a 0:10:52.679 --> 0:10:57.720 decision in that case might be illuminating, and it involves 0:10:57.760 --> 0:11:00.960 a clash between religious rights and gay rights. Tell us 0:11:00.960 --> 0:11:03.840 a little bit about it. Sure that case is bolted 0:11:03.880 --> 0:11:06.400 against City of Philadelphia. As you mentioned, it is in 0:11:06.440 --> 0:11:10.960 some ways a clash between religious rights and gay rights. 0:11:11.120 --> 0:11:14.760 There's Catholic Social Services which is seeking to not have 0:11:14.920 --> 0:11:18.400 to work with same sex couples on the grounds that 0:11:18.440 --> 0:11:21.480 it would violate its religious rights. And so this is 0:11:21.480 --> 0:11:24.160 another example of the case similar in some ways going 0:11:24.200 --> 0:11:27.400 back to the Court's Masterpiece cake Shop case that some 0:11:27.480 --> 0:11:29.439 of us may remember about the baker who did not 0:11:29.559 --> 0:11:32.200 want to bake a cake for a same sex couple. 0:11:32.679 --> 0:11:36.360 That is being argued on religious grounds, people saying they 0:11:36.360 --> 0:11:38.520 shouldn't have to do things because of their religion. But 0:11:38.920 --> 0:11:42.040 an effect of the decision if it does go in 0:11:42.080 --> 0:11:45.960 the religious grounds favors that it could have potential adverse 0:11:45.960 --> 0:11:49.719 effects for lgbt Q rights. Thanks for being on the 0:11:49.720 --> 0:11:53.760 Bloomberg Law Show. Jordan's that's Jordan Reuben, Bloomberg Law Editor. 0:11:55.400 --> 0:11:59.400 Progressives want bold steps like expanding the Supreme Court, but 0:11:59.480 --> 0:12:02.800 a Bible Horris and commission appointed by President Joe Biden 0:12:03.280 --> 0:12:06.800 is more likely to recommend changes like allowing cameras in 0:12:06.800 --> 0:12:11.240 the courts, establishing term limits for Supreme Court justices, or 0:12:11.320 --> 0:12:15.360 slowly adding lower Court judges. Joining me as Madison Alder 0:12:15.400 --> 0:12:19.040 Bloomberg Law reporter, so medisine tell us about this commission. 0:12:19.800 --> 0:12:23.559 So this by person commission was something that Biden suggested 0:12:23.760 --> 0:12:28.960 on the campaign trail amid really intense pressure from progressive 0:12:28.960 --> 0:12:32.440 groups to expand size the Supreme Court. And those calls came, 0:12:32.920 --> 0:12:36.800 of course, after the passing of Justice was Lader Ginsberg 0:12:37.120 --> 0:12:40.400 and Trump's nomination of Amy Coney Garrett to the High Court. 0:12:40.840 --> 0:12:43.640 You know, progressive said that Trump had had too much 0:12:43.640 --> 0:12:47.920 influence over the Supreme Court, uh and they wanted to 0:12:48.000 --> 0:12:50.480 have some kind of a response in kind, so packing 0:12:50.520 --> 0:12:54.800 the court has kind of been progressive rallying cry to, 0:12:55.240 --> 0:12:58.560 you know, have some kind of court reform. Biden suggested 0:12:58.600 --> 0:13:01.560 this on the campaign for kind of what some people 0:13:01.600 --> 0:13:04.840 saw as the dodge of answering the question directly of 0:13:04.960 --> 0:13:08.760 would he expand the size of the Supreme Court. He 0:13:08.800 --> 0:13:12.480 said he would study court reforms. He even mentioned that there, 0:13:12.480 --> 0:13:15.199 you know, this isn't necessarily about court packing, it's it 0:13:15.240 --> 0:13:17.760 could go beyond that. So he kind of gave an 0:13:17.760 --> 0:13:21.160 indication there that it wouldn't be about court packing. But 0:13:21.200 --> 0:13:24.439 now that that commission is is starting to take shape 0:13:24.960 --> 0:13:28.760 and ideas are swirling as far as what the commission 0:13:28.800 --> 0:13:32.640 could actually address tell us who has already been appointed 0:13:33.120 --> 0:13:36.600 to the commission. So there's been a couple of people 0:13:36.600 --> 0:13:40.320 that the White House is confirmed UM that have been 0:13:40.520 --> 0:13:43.280 added to the commission. So Bob Bowler, who is a 0:13:43.280 --> 0:13:46.679 buiding campaign lawyer who served as White House counsel for 0:13:46.800 --> 0:13:50.680 President Barack Obama, and Christina Rodriguez to the Yale Law 0:13:50.720 --> 0:13:56.720 professor and was senior Justice Department official under Obama UM. 0:13:56.760 --> 0:14:00.200 And then two others have been reported by Politico that 0:14:00.559 --> 0:14:05.440 is the American Constitution Society's former President Caroline Patterson and 0:14:05.840 --> 0:14:11.640 a Bush Justice part beneficial Jack Oldsmith. So those are 0:14:11.880 --> 0:14:13.800 some of the names that are floating out there right now. 0:14:14.160 --> 0:14:16.840 It's not the end of the line for how many 0:14:16.840 --> 0:14:21.400 people would be appointed this commission. Probably see more soon, 0:14:21.760 --> 0:14:25.000 but it is kind of what started this conversation again 0:14:25.160 --> 0:14:28.320 around the commission now that we have some of its membership. 0:14:28.880 --> 0:14:32.680 So these are sort of moderate voices. Are there any 0:14:33.120 --> 0:14:36.680 more intense voices, let's say from Demand Justice or one 0:14:36.720 --> 0:14:41.760 of the progressive court organizations, So they haven't been added 0:14:41.800 --> 0:14:44.640 to the commission yet, but those groups are are certainly 0:14:44.680 --> 0:14:48.360 looking at this list. And you know, smographics see the 0:14:48.520 --> 0:14:51.800 edition of someone like Jack Goldsmith, who who you know 0:14:51.960 --> 0:14:55.040 was part of the Bush administration. Um, you know, as 0:14:56.440 --> 0:14:58.560 really not great for their cause for adding seat to 0:14:58.600 --> 0:15:02.000 deciffient court. Um. You know. I I spoke to a 0:15:02.040 --> 0:15:06.040 professor who told me that this really will be more 0:15:06.040 --> 0:15:08.040 of a moderate commission be seen that if they come 0:15:08.120 --> 0:15:10.400 up with well, we'll kind of have to be moderate. 0:15:10.480 --> 0:15:14.160 And uh, you know, many of the professors that I 0:15:14.200 --> 0:15:17.120 spoke to for for my story that look at this 0:15:17.240 --> 0:15:21.080 area said that it really won't be about court packing, 0:15:21.080 --> 0:15:24.200 and they're going to have to look at different issues 0:15:24.240 --> 0:15:26.520 where they might be able to get you know, someone 0:15:26.600 --> 0:15:30.280 like a former American Constitution Society president and someone like 0:15:30.440 --> 0:15:33.800 Jack Gold's best on board. Even from the start, it 0:15:33.840 --> 0:15:35.760 seems like this is not going to be something that 0:15:35.800 --> 0:15:41.520 will satisfy the progressive that are trying to push Biden right. 0:15:41.800 --> 0:15:44.440 You know, I suppoke to Noah Sealman, who is a 0:15:44.480 --> 0:15:47.040 professor at Harvard Law School, and he said it was 0:15:47.080 --> 0:15:49.760 really designed that way. Um, if you're going to make 0:15:49.760 --> 0:15:53.000 a bipartisan commission, he said that, you know, by definition, 0:15:53.080 --> 0:15:56.920 it really can't recommend something that fits the progressive agenda. 0:15:57.400 --> 0:15:59.720 But that doesn't mean there aren't other issues that that 0:15:59.800 --> 0:16:03.240 can mentioned could look at. They do have bipartisan support. 0:16:03.680 --> 0:16:08.320 One of those issues is lower court expansion, which is 0:16:08.680 --> 0:16:12.520 something that has been talked about but really Congress is 0:16:12.600 --> 0:16:16.600 not addressed for uh, you know, the last several years, 0:16:16.720 --> 0:16:20.320 last time of Pelot courts. Uh, we're you know expanded 0:16:20.320 --> 0:16:22.960 and seeper added to the Pelt courts within nineteen nine, 0:16:23.680 --> 0:16:27.760 and the Judicial Conference in twenty nineteen requested sixty five 0:16:27.840 --> 0:16:32.240 neutral court judges. Um and in several additions to the 0:16:32.360 --> 0:16:36.120 Ninth Circuit as well. Um, they're they're expected to updade 0:16:36.120 --> 0:16:40.400 those recommendations soon. UM. It's something that you know, there 0:16:40.440 --> 0:16:43.960 have been by Veterican bills introducing congressivis but just really 0:16:43.960 --> 0:16:47.200 hasn't gained traction. So that is something that the Commission 0:16:47.200 --> 0:16:50.840 could potentially look at that could have some bipartisan interests, 0:16:50.920 --> 0:16:55.320 though it should that it wouldn't expand the lower courts immediately. UM. 0:16:55.360 --> 0:17:00.880 Typically these bills will uh add seats throughout different presidential administration. 0:17:01.120 --> 0:17:04.240 So UM, I think we can expect a bill in 0:17:04.280 --> 0:17:07.560 this Congress especially to do the same, to to really 0:17:08.200 --> 0:17:12.000 uh add the seats over each four year cycle for 0:17:12.200 --> 0:17:14.399 you know, the next several years. I was going to 0:17:14.560 --> 0:17:18.959 say that will Republicans oppose it if all of a 0:17:18.960 --> 0:17:22.240 sudden Joe Biden gets a chance to appoint so many 0:17:22.240 --> 0:17:26.520 appellate judges on the Ninth Circuit for example, and trial judges. 0:17:26.640 --> 0:17:30.440 But so you're saying it would be sort of spaced in, right, 0:17:30.520 --> 0:17:33.359 This would be something that would likely be faced in 0:17:33.480 --> 0:17:36.920 Biden might get a few judges in a proposal like that. 0:17:37.040 --> 0:17:41.480 But UM, bills that have added judges to the lower 0:17:41.520 --> 0:17:44.840 courts in the past have done that kind of uh 0:17:45.080 --> 0:17:48.919 format where they will add judge ships, uh for different 0:17:48.920 --> 0:17:52.440 presidential administrations, and even you know former some of Judiciary 0:17:52.440 --> 0:17:57.080 Committee Cheirman Lindsay Graham during the last Congress suggested adding 0:17:57.280 --> 0:18:02.080 judge ships to the lower court before the elections, you know, 0:18:02.200 --> 0:18:06.360 so it wouldn't be political obviously that that ship is sailed, 0:18:06.520 --> 0:18:10.160 and Congress will need to consider maybe adding more judge 0:18:10.160 --> 0:18:13.639 ships in four years. UM, maybe adding a few in 0:18:13.680 --> 0:18:16.000 the meantime, But that is something that the Commission could 0:18:16.040 --> 0:18:18.439 definitely look at that It is an issue to have 0:18:18.560 --> 0:18:21.280 gotten bipartisan and jos in the past. Might they consider 0:18:21.440 --> 0:18:25.320 term limits for Supreme Court justices if not packing the court? 0:18:26.119 --> 0:18:31.000 Some term limits are another issue that has had bipartisan interests, 0:18:31.560 --> 0:18:34.720 including from some pretty prominent folks on on on both 0:18:34.720 --> 0:18:38.159 sides of this issue. So UM. Stephen Calbrusi, who is 0:18:38.200 --> 0:18:41.080 one of the founders of the Federal Society, has written 0:18:41.080 --> 0:18:44.200 about this over the years and into justed eighteen year 0:18:44.400 --> 0:18:47.320 term limits for Supreme Court justices to kind of get 0:18:47.359 --> 0:18:51.520 away from the political nature of of the court and 0:18:51.640 --> 0:18:53.840 also having to worry about the health issues of the 0:18:53.920 --> 0:18:56.160 justices and whether or not they're going to step down 0:18:56.280 --> 0:19:00.480 or or or pass away. UM and that's thing that 0:19:00.560 --> 0:19:03.280 that people on the left have also looked at, including 0:19:03.640 --> 0:19:06.800 m one of the potential members of this committee, Caroline Frederickson, 0:19:07.160 --> 0:19:11.320 who seemed to support this and in August of last year, UM, 0:19:11.440 --> 0:19:13.600 and she was on a panel for the Center for 0:19:13.680 --> 0:19:17.159 American Progress and talking about term limits and said that 0:19:17.200 --> 0:19:20.639 she was inclined to agree with with cal Greasy and UM, 0:19:20.680 --> 0:19:24.440 there are benefits to the term limits. So it's definitely 0:19:24.480 --> 0:19:28.160 something that that the Commission could take a look at. UM, 0:19:28.240 --> 0:19:30.440 though it remains to be seen if if Biden would 0:19:30.440 --> 0:19:32.920 be on board. As you know, he has kind of 0:19:33.480 --> 0:19:38.320 UM it seems to seem to oppose the idea of 0:19:38.960 --> 0:19:42.320 turn limits for for Supreme Court justices, so UM, they 0:19:42.440 --> 0:19:44.159 have to convince him to get on board with that 0:19:44.240 --> 0:19:48.440 idea as well. Now, cameras in the courts. Almost every 0:19:48.440 --> 0:19:52.240 time that I can recall Supreme Court justice confirmation hearings, 0:19:52.240 --> 0:19:55.280 there ask questions about cameras at the Supreme Court, and 0:19:55.280 --> 0:19:58.159 they seem open to it until they get on the bench. 0:19:58.840 --> 0:20:02.160 What about cameras in the courts outside of the Supreme Court. 0:20:03.480 --> 0:20:05.560 The last things the Commission could do would be to 0:20:05.560 --> 0:20:07.320 look at some of these issues like cameras in the 0:20:07.359 --> 0:20:10.760 court that uh, you know, are kind of around the margins. 0:20:10.760 --> 0:20:15.000 They're not major, major court reforms, but there are issues 0:20:15.080 --> 0:20:18.960 that have had by partisan interest in Congress and and 0:20:19.119 --> 0:20:22.120 just you know, really haven't gotten any traction. They haven't 0:20:22.119 --> 0:20:26.120 gone anywhere. UM. One of those obviously cameras in the courts. UM. 0:20:26.400 --> 0:20:29.520 Senators Patrick Lahey and Chuck Rasslie, who are both former 0:20:29.880 --> 0:20:33.800 chairman of the Senate Judiciary Committee, have supported this issue 0:20:33.880 --> 0:20:37.280 over the years, adding cameras in the courts, adding access 0:20:37.400 --> 0:20:41.280 UM so the public can can engage in in UM 0:20:41.320 --> 0:20:45.680 some of these really important oral arguments. And UM. Then 0:20:45.760 --> 0:20:49.880 there are other issues like, uh, you know, ethics reforms 0:20:49.920 --> 0:20:54.520 for for the Supreme Court, uh and you know, potentially 0:20:55.240 --> 0:20:58.760 updating things like the Code of Conduct to to make 0:20:58.760 --> 0:21:02.560 sure that that justice is have the same kind of 0:21:02.640 --> 0:21:05.440 ethics requirements as as the other two pranchitions of government. 0:21:05.480 --> 0:21:07.879 And those the things that UM continue to get by 0:21:07.880 --> 0:21:10.440 partners in support. So those are some of the other 0:21:10.480 --> 0:21:12.800 things around the margins. I think that the that the 0:21:12.920 --> 0:21:15.440 Commission could look at, UM if it if it is 0:21:15.440 --> 0:21:19.840 by partisans. We've discussed so many times how Trump transformed 0:21:19.880 --> 0:21:24.160 the judiciary making it much more conservative what does Biden 0:21:24.240 --> 0:21:29.080 intend to do? What's his intention as far as judicial appointments. 0:21:29.160 --> 0:21:33.119 So Biden has really grown up with judicial appointments as 0:21:33.160 --> 0:21:35.560 a lawmaker. I mean, he was a chairman of the 0:21:35.600 --> 0:21:38.720 Senate Juiciary Committee and a member for many years. So 0:21:39.040 --> 0:21:40.600 a lot of his work and a lot of what 0:21:40.720 --> 0:21:44.640 he did in Congress involved the confirmation of Supreme Court 0:21:44.680 --> 0:21:48.320 justices and liver Court judges. Is he he's very familiar 0:21:48.359 --> 0:21:50.080 with this issue in a way that a lot of 0:21:50.240 --> 0:21:53.359 previous presidents aren't, and that also has has drawn a 0:21:53.359 --> 0:21:55.679 lot of attention to what he might do on this issue. 0:21:56.240 --> 0:22:00.119 He has so far indicated kind of an aggressive is 0:22:00.520 --> 0:22:05.560 push for adding judges and nominating judges. His White House 0:22:05.600 --> 0:22:09.200 Chief Council of Data remis and a letter to Democratic 0:22:09.280 --> 0:22:13.320 senators during the transition asking them to send in their 0:22:13.359 --> 0:22:17.880 recommendations for federal judge ships. Within things was just over 0:22:17.960 --> 0:22:20.560 a month of a federal judge ship becoming vacant, or 0:22:20.600 --> 0:22:22.560 if they already had vacancy, if they wanted them the 0:22:22.680 --> 0:22:27.040 day before in noguration, So they're they're kind of signaling 0:22:27.080 --> 0:22:28.600 that they're going to be looking at this issue. We 0:22:28.600 --> 0:22:32.639 haven't seen any nominations from Biden yet, but it seems 0:22:32.640 --> 0:22:36.480 to be pretty standard to focus on things like cabinet 0:22:36.520 --> 0:22:40.120 appointments first and then to move on to judges. It's 0:22:40.160 --> 0:22:44.000 definitely something that that I'm watching, and I know many 0:22:44.040 --> 0:22:49.000 others are watching to see exactly how aggressive this administration 0:22:49.200 --> 0:22:54.120 is on on judicial nomination. Thanks Madison. That's Bloomberg Law 0:22:54.160 --> 0:22:57.280 reporter Madison Alder, And that's it for this edition of 0:22:57.280 --> 0:23:00.040 the Bloomberg Law Show. Remember you can always get to 0:23:00.119 --> 0:23:03.200 late its legal news on our Bloomberg Lamp podcast. I'm 0:23:03.280 --> 0:23:05.480 June Grosso, and you're listening to Bloomberg