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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. The Supreme Court

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Speaker 1: issued sixty seven opinions this term, and twenty one of

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Speaker 1: those opinions were decided by a single vote. So one

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Speaker 1: way to describe it is the crossover term, with liberal

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Speaker 1: justices winning more often in those closely divided five to

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Speaker 1: four cases than did the conservatives. Joining me, as Constitutional

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

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Speaker 1: is there any way to describe the type of cases

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Speaker 1: where the conservatives crossed over to the liberal side? Any categories? Um,

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Speaker 1: thank you for having me on. This past term was

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Speaker 1: a bit of a surprise. Uh. Many people were expecting

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Speaker 1: this sort of dooming gloom conservative monopoly, and we didn't

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Speaker 1: really see this. In a sizeable number of the five

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Speaker 1: four cases, the four member liberal block actually garnered a

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Speaker 1: conservative vote. Um. This happened in a wide range of cases.

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Speaker 1: It didn't happen for any specific reason. But for example,

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Speaker 1: Justice Gorcich has certain sympathies in criminal cases, so he

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Speaker 1: crossed over to vote with the liberals in some federal

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Speaker 1: criminal cases. UM. In a in a huge census case,

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Speaker 1: Chief Justice Roberts also crossed over because he had some

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Speaker 1: concerns about how the Trump administration handled the census issue.

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Speaker 1: So they're each case has slightly different wrinkles in which

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Speaker 1: conservative justice was willing to break the lines, so to speak.

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Speaker 1: But I think what this term shows is that the

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Speaker 1: justices do have their own opinions. They're not just voting

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Speaker 1: by political party, and that it's not a given that

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Speaker 1: in a given case the conservative side will prevail. Now

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Speaker 1: you look beyond the numbers, the Conservatives won major sort

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Speaker 1: of game changing decisions in partisan gerrymandering, state severenity, property rights,

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Speaker 1: overturning long standing precedents twice, while the liberals seem to

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Speaker 1: have held the line and preserved longstanding precedents involving the

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Speaker 1: power of government agencies, double jeopardy, and the census. What

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Speaker 1: does that tell you? Um, it tells us that this

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Speaker 1: prom courstal figuring things out. UM. Every time a new

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Speaker 1: justice is added, the dynamics and the court change a bit.

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Speaker 1: In the span of two years, we had two branded justices.

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Speaker 1: Justice Skalil is replaced by Justice Gorcich, and Justice Kennedy,

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Speaker 1: the swing vote was replaced by Justice Kavanaugh. So we

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Speaker 1: had this significant change in how the court is diverging,

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Speaker 1: and I don't think we quite yet know where it's

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Speaker 1: going to go. Indeed, we may have another appointment sometime

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Speaker 1: in the near future. So this is very much court

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Speaker 1: influx the court and change. Many constitutional experts look at

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Speaker 1: this court and say, well, Chief Justice Roberts is becoming

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Speaker 1: the swing vote. But as you mentioned, Neil Gorzich actually

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Speaker 1: joined the liberals in five to four decisions four times,

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Speaker 1: whereas Roberts joined them three times. Can you read anything

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Speaker 1: into those numbers or is it the kind of cases

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Speaker 1: Justice Scalia whom gors has replaced. Scalia had a very

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Speaker 1: strong concern for the rights of criminal defendants. It was

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Speaker 1: somewhat at odds with his sort of gruff law and

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Speaker 1: order personality, and I think in some regards Justice Gortch

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Speaker 1: has steps into Scala shoes and also has a skepticism

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Speaker 1: of these sorts of overbearing federal criminal prosecutions. He wants

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Speaker 1: juries had questions of law that their jurious decide questions

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Speaker 1: of fact. Gorsich wants to make sure that we read

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Speaker 1: criminal laws narrowly. I think he has this strong libertarian

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Speaker 1: streak that Justice Scalia also had in some criminal cases.

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Speaker 1: Um is Chief Justice Roberts a swing vote. I think

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Speaker 1: that's a bit of a misnomer. Um. I think Roberts

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Speaker 1: is deeply conservative, but in some cases where he thinks

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Speaker 1: that a conservative ruling might not play well in certain circles, Uh,

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Speaker 1: he sort of flips and meets people halfway. I don't

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Speaker 1: think that makes him much of a swing quote. I

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Speaker 1: think that makes him more of a politician. And how

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Speaker 1: he manages manages these disputes. I'm not a fan of

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Speaker 1: this approach, but he seems to be doing this sort

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Speaker 1: of middle of the road approach more and more recently.

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Speaker 1: And he's the justice who always maintains there are no

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Speaker 1: politics on the Supreme Court. Yeah, he says there are

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Speaker 1: no Obama judges or no Trump judges. But the sort

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Speaker 1: of split the baby approach that Roberts uses, UM becomes

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Speaker 1: harder and hard to justify each each year. Now some

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Speaker 1: as you mentioned, some liberals feared there would be this

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Speaker 1: immediate shift to the right with the addition of Brett

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Speaker 1: Kavanaugh to the court. Does it now seem as if

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Speaker 1: there will not be a shift to the right, or

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Speaker 1: or that there will be a shift, but it will

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Speaker 1: be incremental. I think the magic word is the eye

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Speaker 1: word incremental. The streame Court never changes quite as quickly

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Speaker 1: as people fear or people hope for um. They usually

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Speaker 1: move very slowly. Indeed, the sort of mascot of the

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Speaker 1: Supreme Court is a turtle. To go at the stream court,

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Speaker 1: they have these turtles everywhere. Um, Why a turtle. It's

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Speaker 1: a sort of slow plotting animal that eventually gets the

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Speaker 1: end of the race, doesn't get there in a hurry,

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Speaker 1: and it gets a good way of looking at the court.

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Speaker 1: They're not rabbits. They're they're they're tortoises. They're the most

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Speaker 1: common voting lineup was in unanimous cases by far. Does

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Speaker 1: it but does it seem as if the unanimous cases

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Speaker 1: are the cases that we're not really talking about? You know?

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Speaker 1: I think this is an important point. Um. The majority

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Speaker 1: of cases decided by the Court, right, they're the most

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Speaker 1: common voting lineup is nine zero unanimous. On most questions

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Speaker 1: of law. There's not much disagreement that and Clarence Thomas

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Speaker 1: on the exact same page. Um, there are small number

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Speaker 1: of cases that go five to four, but the bulk

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Speaker 1: of them are a zero nine, zero to one, seven

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Speaker 1: to two, where there's a fairly wide consensus. And I

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Speaker 1: think this is how most courts operate in the United States.

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Speaker 1: Most courts don't have these a liberal conservative divides, except

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Speaker 1: in the rare cases where philosophy makes a difference. So

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Speaker 1: I think it's reassuring to have these sort of nine

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Speaker 1: O cases come up to the come to the court.

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Speaker 1: And so this is Justice bread Kavanaugh's first term on

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Speaker 1: the court. What's your take on him? Um, you know

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Speaker 1: it's always it's always premature to judge a justice after

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Speaker 1: one term. Um, but I think we can make a

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Speaker 1: couple observations. Um, First, he's going to be more conservative

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Speaker 1: than the man he replaced, Anthony Kennedy, So that question,

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Speaker 1: the court moves a little bit to the right. Um.

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Speaker 1: I think Kavanaugh has also shown a willingness to explain

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Speaker 1: himself and explain how why he's going the way he's voting.

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Speaker 1: So to give you an example, there's a cases term

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Speaker 1: involving a peace cross in Maryland, it was a World

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Speaker 1: War One memorial that tall Cross and Kavana had this

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Speaker 1: opinion where he says he recognizes that this this display

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Speaker 1: maybe harmful or her hurtful to, for example, Jewish veterans

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Speaker 1: who don't we don't like the Cross, and he went

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Speaker 1: out of his way to show lack of better word,

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Speaker 1: empathy for the people who are harmed by his ruling. Um,

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Speaker 1: that's something Justice Kennedy did, and it seems something Cavna

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Speaker 1: was doing as well. It is sure as heck not

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Speaker 1: what Justice Lee would have done. It wouldn't care how

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Speaker 1: people were reaffected by his ruling because he's focusing on

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Speaker 1: the law. So Kavanaugh is already starting to merge in

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Speaker 1: these sort of extra legal considerations, which uh gives him

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Speaker 1: a Kennedy flair or maybe just O'Connor flair that as

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Speaker 1: the scale as the world don't really really write about. Well,

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Speaker 1: I think the liberals of the world would be happy

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Speaker 1: to hear that from you. Thank you so much for

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Speaker 1: joining us, Josh. That's Josh Blackman. He's a cons odditional

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Speaker 1: law professor at the South Texas College of Law. Thanks

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Speaker 1: for listening to the Bloomberg Law podcast. You can subscribe

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Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and

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Speaker 1: on bloomberg dot com slash podcast. I'm June Grosso. This

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Speaker 1: is Bloomberg