WEBVTT - Blackman Reviews Scotus Term

0:00:03.480 --> 0:00:07.560
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.640 --> 0:00:10.440
<v Speaker 1>day we bring you insight and analysis into the most

0:00:10.480 --> 0:00:13.399
<v Speaker 1>important legal news of the day. You can find more

0:00:13.480 --> 0:00:18.040
<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

0:00:18.320 --> 0:00:22.520
<v Speaker 1>and on Bloomberg dot com slash podcasts. The Supreme Court

0:00:22.600 --> 0:00:25.599
<v Speaker 1>issued sixty seven opinions this term, and twenty one of

0:00:25.600 --> 0:00:28.920
<v Speaker 1>those opinions were decided by a single vote. So one

0:00:28.960 --> 0:00:32.320
<v Speaker 1>way to describe it is the crossover term, with liberal

0:00:32.400 --> 0:00:35.640
<v Speaker 1>justices winning more often in those closely divided five to

0:00:35.720 --> 0:00:39.400
<v Speaker 1>four cases than did the conservatives. Joining me, as Constitutional

0:00:39.440 --> 0:00:44.440
<v Speaker 1>law professor Josh Blackman of the South Texas College of Law, Josh,

0:00:44.560 --> 0:00:47.519
<v Speaker 1>is there any way to describe the type of cases

0:00:47.560 --> 0:00:54.040
<v Speaker 1>where the conservatives crossed over to the liberal side? Any categories? Um,

0:00:54.080 --> 0:00:56.560
<v Speaker 1>thank you for having me on. This past term was

0:00:56.600 --> 0:00:59.960
<v Speaker 1>a bit of a surprise. Uh. Many people were expecting

0:01:00.040 --> 0:01:03.840
<v Speaker 1>this sort of dooming gloom conservative monopoly, and we didn't

0:01:03.840 --> 0:01:06.399
<v Speaker 1>really see this. In a sizeable number of the five

0:01:06.440 --> 0:01:10.640
<v Speaker 1>four cases, the four member liberal block actually garnered a

0:01:10.680 --> 0:01:15.200
<v Speaker 1>conservative vote. Um. This happened in a wide range of cases.

0:01:15.240 --> 0:01:18.480
<v Speaker 1>It didn't happen for any specific reason. But for example,

0:01:18.600 --> 0:01:23.200
<v Speaker 1>Justice Gorcich has certain sympathies in criminal cases, so he

0:01:23.240 --> 0:01:26.240
<v Speaker 1>crossed over to vote with the liberals in some federal

0:01:26.280 --> 0:01:29.640
<v Speaker 1>criminal cases. UM. In a in a huge census case,

0:01:29.760 --> 0:01:33.319
<v Speaker 1>Chief Justice Roberts also crossed over because he had some

0:01:33.360 --> 0:01:38.319
<v Speaker 1>concerns about how the Trump administration handled the census issue.

0:01:38.800 --> 0:01:42.839
<v Speaker 1>So they're each case has slightly different wrinkles in which

0:01:42.880 --> 0:01:47.600
<v Speaker 1>conservative justice was willing to break the lines, so to speak.

0:01:48.200 --> 0:01:50.640
<v Speaker 1>But I think what this term shows is that the

0:01:50.720 --> 0:01:53.440
<v Speaker 1>justices do have their own opinions. They're not just voting

0:01:53.480 --> 0:01:56.440
<v Speaker 1>by political party, and that it's not a given that

0:01:56.560 --> 0:01:59.760
<v Speaker 1>in a given case the conservative side will prevail. Now

0:02:00.040 --> 0:02:04.120
<v Speaker 1>you look beyond the numbers, the Conservatives won major sort

0:02:04.120 --> 0:02:10.239
<v Speaker 1>of game changing decisions in partisan gerrymandering, state severenity, property rights,

0:02:10.280 --> 0:02:15.160
<v Speaker 1>overturning long standing precedents twice, while the liberals seem to

0:02:15.200 --> 0:02:19.600
<v Speaker 1>have held the line and preserved longstanding precedents involving the

0:02:19.600 --> 0:02:24.560
<v Speaker 1>power of government agencies, double jeopardy, and the census. What

0:02:24.680 --> 0:02:28.239
<v Speaker 1>does that tell you? Um, it tells us that this

0:02:28.360 --> 0:02:32.000
<v Speaker 1>prom courstal figuring things out. UM. Every time a new

0:02:32.040 --> 0:02:34.920
<v Speaker 1>justice is added, the dynamics and the court change a bit.

0:02:35.680 --> 0:02:38.320
<v Speaker 1>In the span of two years, we had two branded justices.

0:02:38.680 --> 0:02:42.640
<v Speaker 1>Justice Skalil is replaced by Justice Gorcich, and Justice Kennedy,

0:02:42.639 --> 0:02:46.239
<v Speaker 1>the swing vote was replaced by Justice Kavanaugh. So we

0:02:46.280 --> 0:02:49.919
<v Speaker 1>had this significant change in how the court is diverging,

0:02:50.440 --> 0:02:52.200
<v Speaker 1>and I don't think we quite yet know where it's

0:02:52.200 --> 0:02:55.239
<v Speaker 1>going to go. Indeed, we may have another appointment sometime

0:02:55.280 --> 0:02:57.680
<v Speaker 1>in the near future. So this is very much court

0:02:57.760 --> 0:03:02.400
<v Speaker 1>influx the court and change. Many constitutional experts look at

0:03:02.400 --> 0:03:05.560
<v Speaker 1>this court and say, well, Chief Justice Roberts is becoming

0:03:05.600 --> 0:03:09.200
<v Speaker 1>the swing vote. But as you mentioned, Neil Gorzich actually

0:03:09.280 --> 0:03:13.320
<v Speaker 1>joined the liberals in five to four decisions four times,

0:03:13.440 --> 0:03:17.000
<v Speaker 1>whereas Roberts joined them three times. Can you read anything

0:03:17.040 --> 0:03:19.400
<v Speaker 1>into those numbers or is it the kind of cases

0:03:20.160 --> 0:03:24.440
<v Speaker 1>Justice Scalia whom gors has replaced. Scalia had a very

0:03:24.440 --> 0:03:28.000
<v Speaker 1>strong concern for the rights of criminal defendants. It was

0:03:28.080 --> 0:03:30.919
<v Speaker 1>somewhat at odds with his sort of gruff law and

0:03:31.080 --> 0:03:34.840
<v Speaker 1>order personality, and I think in some regards Justice Gortch

0:03:34.920 --> 0:03:38.600
<v Speaker 1>has steps into Scala shoes and also has a skepticism

0:03:38.640 --> 0:03:42.160
<v Speaker 1>of these sorts of overbearing federal criminal prosecutions. He wants

0:03:42.800 --> 0:03:46.960
<v Speaker 1>juries had questions of law that their jurious decide questions

0:03:46.960 --> 0:03:50.040
<v Speaker 1>of fact. Gorsich wants to make sure that we read

0:03:50.080 --> 0:03:55.080
<v Speaker 1>criminal laws narrowly. I think he has this strong libertarian

0:03:55.120 --> 0:03:58.600
<v Speaker 1>streak that Justice Scalia also had in some criminal cases.

0:03:59.240 --> 0:04:02.600
<v Speaker 1>Um is Chief Justice Roberts a swing vote. I think

0:04:02.640 --> 0:04:05.120
<v Speaker 1>that's a bit of a misnomer. Um. I think Roberts

0:04:05.160 --> 0:04:09.040
<v Speaker 1>is deeply conservative, but in some cases where he thinks

0:04:09.120 --> 0:04:14.040
<v Speaker 1>that a conservative ruling might not play well in certain circles, Uh,

0:04:14.080 --> 0:04:17.360
<v Speaker 1>he sort of flips and meets people halfway. I don't

0:04:17.400 --> 0:04:18.920
<v Speaker 1>think that makes him much of a swing quote. I

0:04:18.960 --> 0:04:21.320
<v Speaker 1>think that makes him more of a politician. And how

0:04:21.320 --> 0:04:24.400
<v Speaker 1>he manages manages these disputes. I'm not a fan of

0:04:24.400 --> 0:04:27.159
<v Speaker 1>this approach, but he seems to be doing this sort

0:04:27.160 --> 0:04:29.719
<v Speaker 1>of middle of the road approach more and more recently.

0:04:29.920 --> 0:04:32.719
<v Speaker 1>And he's the justice who always maintains there are no

0:04:32.880 --> 0:04:36.839
<v Speaker 1>politics on the Supreme Court. Yeah, he says there are

0:04:36.839 --> 0:04:40.000
<v Speaker 1>no Obama judges or no Trump judges. But the sort

0:04:40.040 --> 0:04:44.479
<v Speaker 1>of split the baby approach that Roberts uses, UM becomes

0:04:44.520 --> 0:04:48.440
<v Speaker 1>harder and hard to justify each each year. Now some

0:04:48.600 --> 0:04:51.000
<v Speaker 1>as you mentioned, some liberals feared there would be this

0:04:51.040 --> 0:04:54.800
<v Speaker 1>immediate shift to the right with the addition of Brett

0:04:54.839 --> 0:04:57.680
<v Speaker 1>Kavanaugh to the court. Does it now seem as if

0:04:57.760 --> 0:05:00.000
<v Speaker 1>there will not be a shift to the right, or

0:05:00.080 --> 0:05:01.960
<v Speaker 1>or that there will be a shift, but it will

0:05:02.000 --> 0:05:05.520
<v Speaker 1>be incremental. I think the magic word is the eye

0:05:05.520 --> 0:05:09.640
<v Speaker 1>word incremental. The streame Court never changes quite as quickly

0:05:09.640 --> 0:05:12.880
<v Speaker 1>as people fear or people hope for um. They usually

0:05:12.920 --> 0:05:15.919
<v Speaker 1>move very slowly. Indeed, the sort of mascot of the

0:05:15.920 --> 0:05:18.080
<v Speaker 1>Supreme Court is a turtle. To go at the stream court,

0:05:18.120 --> 0:05:20.840
<v Speaker 1>they have these turtles everywhere. Um, Why a turtle. It's

0:05:20.839 --> 0:05:24.039
<v Speaker 1>a sort of slow plotting animal that eventually gets the

0:05:24.080 --> 0:05:26.640
<v Speaker 1>end of the race, doesn't get there in a hurry,

0:05:26.920 --> 0:05:28.440
<v Speaker 1>and it gets a good way of looking at the court.

0:05:28.480 --> 0:05:33.000
<v Speaker 1>They're not rabbits. They're they're they're tortoises. They're the most

0:05:33.040 --> 0:05:37.479
<v Speaker 1>common voting lineup was in unanimous cases by far. Does

0:05:37.520 --> 0:05:40.000
<v Speaker 1>it but does it seem as if the unanimous cases

0:05:40.000 --> 0:05:44.360
<v Speaker 1>are the cases that we're not really talking about? You know?

0:05:44.640 --> 0:05:48.120
<v Speaker 1>I think this is an important point. Um. The majority

0:05:48.400 --> 0:05:50.839
<v Speaker 1>of cases decided by the Court, right, they're the most

0:05:50.880 --> 0:05:55.360
<v Speaker 1>common voting lineup is nine zero unanimous. On most questions

0:05:55.400 --> 0:05:59.960
<v Speaker 1>of law. There's not much disagreement that and Clarence Thomas

0:06:00.040 --> 0:06:03.200
<v Speaker 1>on the exact same page. Um, there are small number

0:06:03.200 --> 0:06:05.880
<v Speaker 1>of cases that go five to four, but the bulk

0:06:05.920 --> 0:06:09.920
<v Speaker 1>of them are a zero nine, zero to one, seven

0:06:09.920 --> 0:06:13.080
<v Speaker 1>to two, where there's a fairly wide consensus. And I

0:06:13.120 --> 0:06:15.760
<v Speaker 1>think this is how most courts operate in the United States.

0:06:15.920 --> 0:06:19.800
<v Speaker 1>Most courts don't have these a liberal conservative divides, except

0:06:19.839 --> 0:06:22.599
<v Speaker 1>in the rare cases where philosophy makes a difference. So

0:06:22.640 --> 0:06:24.760
<v Speaker 1>I think it's reassuring to have these sort of nine

0:06:24.800 --> 0:06:27.559
<v Speaker 1>O cases come up to the come to the court.

0:06:29.040 --> 0:06:33.000
<v Speaker 1>And so this is Justice bread Kavanaugh's first term on

0:06:33.080 --> 0:06:37.440
<v Speaker 1>the court. What's your take on him? Um, you know

0:06:37.480 --> 0:06:42.440
<v Speaker 1>it's always it's always premature to judge a justice after

0:06:42.520 --> 0:06:44.960
<v Speaker 1>one term. Um, but I think we can make a

0:06:45.000 --> 0:06:49.120
<v Speaker 1>couple observations. Um, First, he's going to be more conservative

0:06:49.120 --> 0:06:52.280
<v Speaker 1>than the man he replaced, Anthony Kennedy, So that question,

0:06:52.320 --> 0:06:54.720
<v Speaker 1>the court moves a little bit to the right. Um.

0:06:54.720 --> 0:06:58.719
<v Speaker 1>I think Kavanaugh has also shown a willingness to explain

0:06:58.800 --> 0:07:03.320
<v Speaker 1>himself and explain how why he's going the way he's voting.

0:07:03.520 --> 0:07:05.680
<v Speaker 1>So to give you an example, there's a cases term

0:07:05.680 --> 0:07:08.520
<v Speaker 1>involving a peace cross in Maryland, it was a World

0:07:08.600 --> 0:07:12.880
<v Speaker 1>War One memorial that tall Cross and Kavana had this

0:07:12.920 --> 0:07:15.680
<v Speaker 1>opinion where he says he recognizes that this this display

0:07:15.760 --> 0:07:18.960
<v Speaker 1>maybe harmful or her hurtful to, for example, Jewish veterans

0:07:18.960 --> 0:07:21.800
<v Speaker 1>who don't we don't like the Cross, and he went

0:07:21.840 --> 0:07:24.520
<v Speaker 1>out of his way to show lack of better word,

0:07:24.520 --> 0:07:28.160
<v Speaker 1>empathy for the people who are harmed by his ruling. Um,

0:07:28.240 --> 0:07:31.200
<v Speaker 1>that's something Justice Kennedy did, and it seems something Cavna

0:07:31.320 --> 0:07:33.760
<v Speaker 1>was doing as well. It is sure as heck not

0:07:33.800 --> 0:07:36.560
<v Speaker 1>what Justice Lee would have done. It wouldn't care how

0:07:36.560 --> 0:07:38.920
<v Speaker 1>people were reaffected by his ruling because he's focusing on

0:07:38.960 --> 0:07:42.160
<v Speaker 1>the law. So Kavanaugh is already starting to merge in

0:07:42.200 --> 0:07:46.160
<v Speaker 1>these sort of extra legal considerations, which uh gives him

0:07:46.200 --> 0:07:49.480
<v Speaker 1>a Kennedy flair or maybe just O'Connor flair that as

0:07:49.480 --> 0:07:52.880
<v Speaker 1>the scale as the world don't really really write about. Well,

0:07:52.920 --> 0:07:54.840
<v Speaker 1>I think the liberals of the world would be happy

0:07:54.880 --> 0:07:56.880
<v Speaker 1>to hear that from you. Thank you so much for

0:07:57.000 --> 0:08:00.320
<v Speaker 1>joining us, Josh. That's Josh Blackman. He's a cons odditional

0:08:00.400 --> 0:08:05.040
<v Speaker 1>law professor at the South Texas College of Law. Thanks

0:08:05.040 --> 0:08:08.320
<v Speaker 1>for listening to the Bloomberg Law podcast. You can subscribe

0:08:08.360 --> 0:08:11.600
<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

0:08:11.640 --> 0:08:16.120
<v Speaker 1>on bloomberg dot com slash podcast. I'm June Grosso. This

0:08:16.480 --> 0:08:17.200
<v Speaker 1>is Bloomberg