Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. The Supreme Court
Speaker 1: issued sixty seven opinions this term, and twenty one of
Speaker 1: those opinions were decided by a single vote. So one
Speaker 1: way to describe it is the crossover term, with liberal
Speaker 1: justices winning more often in those closely divided five to
Speaker 1: four cases than did the conservatives. Joining me, as Constitutional
Speaker 1: law professor Josh Blackman of the South Texas College of Law, Josh,
Speaker 1: is there any way to describe the type of cases
Speaker 1: where the conservatives crossed over to the liberal side? Any categories? Um,
Speaker 1: thank you for having me on. This past term was
Speaker 1: a bit of a surprise. Uh. Many people were expecting
Speaker 1: this sort of dooming gloom conservative monopoly, and we didn't
Speaker 1: really see this. In a sizeable number of the five
Speaker 1: four cases, the four member liberal block actually garnered a
Speaker 1: conservative vote. Um. This happened in a wide range of cases.
Speaker 1: It didn't happen for any specific reason. But for example,
Speaker 1: Justice Gorcich has certain sympathies in criminal cases, so he
Speaker 1: crossed over to vote with the liberals in some federal
Speaker 1: criminal cases. UM. In a in a huge census case,
Speaker 1: Chief Justice Roberts also crossed over because he had some
Speaker 1: concerns about how the Trump administration handled the census issue.
Speaker 1: So they're each case has slightly different wrinkles in which
Speaker 1: conservative justice was willing to break the lines, so to speak.
Speaker 1: But I think what this term shows is that the
Speaker 1: justices do have their own opinions. They're not just voting
Speaker 1: by political party, and that it's not a given that
Speaker 1: in a given case the conservative side will prevail. Now
Speaker 1: you look beyond the numbers, the Conservatives won major sort
Speaker 1: of game changing decisions in partisan gerrymandering, state severenity, property rights,
Speaker 1: overturning long standing precedents twice, while the liberals seem to
Speaker 1: have held the line and preserved longstanding precedents involving the
Speaker 1: power of government agencies, double jeopardy, and the census. What
Speaker 1: does that tell you? Um, it tells us that this
Speaker 1: prom courstal figuring things out. UM. Every time a new
Speaker 1: justice is added, the dynamics and the court change a bit.
Speaker 1: In the span of two years, we had two branded justices.
Speaker 1: Justice Skalil is replaced by Justice Gorcich, and Justice Kennedy,
Speaker 1: the swing vote was replaced by Justice Kavanaugh. So we
Speaker 1: had this significant change in how the court is diverging,
Speaker 1: and I don't think we quite yet know where it's
Speaker 1: going to go. Indeed, we may have another appointment sometime
Speaker 1: in the near future. So this is very much court
Speaker 1: influx the court and change. Many constitutional experts look at
Speaker 1: this court and say, well, Chief Justice Roberts is becoming
Speaker 1: the swing vote. But as you mentioned, Neil Gorzich actually
Speaker 1: joined the liberals in five to four decisions four times,
Speaker 1: whereas Roberts joined them three times. Can you read anything
Speaker 1: into those numbers or is it the kind of cases
Speaker 1: Justice Scalia whom gors has replaced. Scalia had a very
Speaker 1: strong concern for the rights of criminal defendants. It was
Speaker 1: somewhat at odds with his sort of gruff law and
Speaker 1: order personality, and I think in some regards Justice Gortch
Speaker 1: has steps into Scala shoes and also has a skepticism
Speaker 1: of these sorts of overbearing federal criminal prosecutions. He wants
Speaker 1: juries had questions of law that their jurious decide questions
Speaker 1: of fact. Gorsich wants to make sure that we read
Speaker 1: criminal laws narrowly. I think he has this strong libertarian
Speaker 1: streak that Justice Scalia also had in some criminal cases.
Speaker 1: Um is Chief Justice Roberts a swing vote. I think
Speaker 1: that's a bit of a misnomer. Um. I think Roberts
Speaker 1: is deeply conservative, but in some cases where he thinks
Speaker 1: that a conservative ruling might not play well in certain circles, Uh,
Speaker 1: he sort of flips and meets people halfway. I don't
Speaker 1: think that makes him much of a swing quote. I
Speaker 1: think that makes him more of a politician. And how
Speaker 1: he manages manages these disputes. I'm not a fan of
Speaker 1: this approach, but he seems to be doing this sort
Speaker 1: of middle of the road approach more and more recently.
Speaker 1: And he's the justice who always maintains there are no
Speaker 1: politics on the Supreme Court. Yeah, he says there are
Speaker 1: no Obama judges or no Trump judges. But the sort
Speaker 1: of split the baby approach that Roberts uses, UM becomes
Speaker 1: harder and hard to justify each each year. Now some
Speaker 1: as you mentioned, some liberals feared there would be this
Speaker 1: immediate shift to the right with the addition of Brett
Speaker 1: Kavanaugh to the court. Does it now seem as if
Speaker 1: there will not be a shift to the right, or
Speaker 1: or that there will be a shift, but it will
Speaker 1: be incremental. I think the magic word is the eye
Speaker 1: word incremental. The streame Court never changes quite as quickly
Speaker 1: as people fear or people hope for um. They usually
Speaker 1: move very slowly. Indeed, the sort of mascot of the
Speaker 1: Supreme Court is a turtle. To go at the stream court,
Speaker 1: they have these turtles everywhere. Um, Why a turtle. It's
Speaker 1: a sort of slow plotting animal that eventually gets the
Speaker 1: end of the race, doesn't get there in a hurry,
Speaker 1: and it gets a good way of looking at the court.
Speaker 1: They're not rabbits. They're they're they're tortoises. They're the most
Speaker 1: common voting lineup was in unanimous cases by far. Does
Speaker 1: it but does it seem as if the unanimous cases
Speaker 1: are the cases that we're not really talking about? You know?
Speaker 1: I think this is an important point. Um. The majority
Speaker 1: of cases decided by the Court, right, they're the most
Speaker 1: common voting lineup is nine zero unanimous. On most questions
Speaker 1: of law. There's not much disagreement that and Clarence Thomas
Speaker 1: on the exact same page. Um, there are small number
Speaker 1: of cases that go five to four, but the bulk
Speaker 1: of them are a zero nine, zero to one, seven
Speaker 1: to two, where there's a fairly wide consensus. And I
Speaker 1: think this is how most courts operate in the United States.
Speaker 1: Most courts don't have these a liberal conservative divides, except
Speaker 1: in the rare cases where philosophy makes a difference. So
Speaker 1: I think it's reassuring to have these sort of nine
Speaker 1: O cases come up to the come to the court.
Speaker 1: And so this is Justice bread Kavanaugh's first term on
Speaker 1: the court. What's your take on him? Um, you know
Speaker 1: it's always it's always premature to judge a justice after
Speaker 1: one term. Um, but I think we can make a
Speaker 1: couple observations. Um, First, he's going to be more conservative
Speaker 1: than the man he replaced, Anthony Kennedy, So that question,
Speaker 1: the court moves a little bit to the right. Um.
Speaker 1: I think Kavanaugh has also shown a willingness to explain
Speaker 1: himself and explain how why he's going the way he's voting.
Speaker 1: So to give you an example, there's a cases term
Speaker 1: involving a peace cross in Maryland, it was a World
Speaker 1: War One memorial that tall Cross and Kavana had this
Speaker 1: opinion where he says he recognizes that this this display
Speaker 1: maybe harmful or her hurtful to, for example, Jewish veterans
Speaker 1: who don't we don't like the Cross, and he went
Speaker 1: out of his way to show lack of better word,
Speaker 1: empathy for the people who are harmed by his ruling. Um,
Speaker 1: that's something Justice Kennedy did, and it seems something Cavna
Speaker 1: was doing as well. It is sure as heck not
Speaker 1: what Justice Lee would have done. It wouldn't care how
Speaker 1: people were reaffected by his ruling because he's focusing on
Speaker 1: the law. So Kavanaugh is already starting to merge in
Speaker 1: these sort of extra legal considerations, which uh gives him
Speaker 1: a Kennedy flair or maybe just O'Connor flair that as
Speaker 1: the scale as the world don't really really write about. Well,
Speaker 1: I think the liberals of the world would be happy
Speaker 1: to hear that from you. Thank you so much for
Speaker 1: joining us, Josh. That's Josh Blackman. He's a cons odditional
Speaker 1: law professor at the South Texas College of Law. Thanks
Speaker 1: for listening to the Bloomberg Law podcast. You can subscribe
Speaker 1: and listen to the show on Apple Podcasts, SoundCloud, and
Speaker 1: on bloomberg dot com slash podcast. I'm June Grosso. This
Speaker 1: is Bloomberg