WEBVTT - Legislation Introduced to Pack the Court 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.160 --> 0:00:14.520 Here's Senator Joe Biden giving his opinion on President Roosevelt's 0:00:14.520 --> 0:00:18.560 attempt to add justices to the Supreme Court. President Roosevelt 0:00:18.640 --> 0:00:21.079 clearly had the right to send to the United States Senate, 0:00:21.120 --> 0:00:23.439 the United States Congress and proposal to pack the court. 0:00:23.960 --> 0:00:26.759 It was totally within his right to do that. He 0:00:26.960 --> 0:00:32.120 violated no law. He was legalistically absolutely correct, But it 0:00:32.200 --> 0:00:36.560 was a bone had idea. It was a terrible, terrible 0:00:36.600 --> 0:00:39.960 mistake to make as a candidate. Talking to sixty Minutes, 0:00:40.120 --> 0:00:43.159 Biden had a more measured tone. The last thing we 0:00:43.200 --> 0:00:45.680 need to do is turn the Supreme Court intogest a 0:00:45.760 --> 0:00:49.040 political football. Whoever has the most votes gets whatever they want. 0:00:49.680 --> 0:00:54.320 Presidents come and go. Supreme Court justices stay for generations. Now. 0:00:54.400 --> 0:00:58.120 President Biden has named a thirty six member bipartisan commission 0:00:58.160 --> 0:01:01.840 to study possible changes to the Supreme Court, fulfilling a 0:01:01.920 --> 0:01:05.399 promise he made on the campaign trail as progressives pushed 0:01:05.400 --> 0:01:08.600 to overhaul a court they say has been unfairly stacked. 0:01:08.640 --> 0:01:12.720 With conservatives joining me as constitutional law professor Neil Kinkoff 0:01:12.720 --> 0:01:16.000 of the Georgia State University College of Law. So Neil 0:01:16.040 --> 0:01:19.959 tell us about the stated purpose of a commission on paper. 0:01:20.040 --> 0:01:23.200 The purpose of the commission is to study all of 0:01:23.280 --> 0:01:27.200 the various Supreme Court reforms that have been proposed and 0:01:27.319 --> 0:01:31.360 to make recommendations to the President about which reforms, if 0:01:31.400 --> 0:01:35.120 any seemed like a good idea, which which seemed like 0:01:35.440 --> 0:01:38.880 they shouldn't be recommended. It sounds like they're supposed to 0:01:38.880 --> 0:01:41.319 come up with something that looks like a research paper. 0:01:41.880 --> 0:01:46.479 Are they actually going to make specific recommendations for change? Well, 0:01:46.520 --> 0:01:49.000 I think what they're going to do is mostly assess 0:01:49.120 --> 0:01:52.720 recommendations that have already been made. Not having said that, 0:01:52.800 --> 0:01:55.160 a number of the recommendations that have been made have 0:01:55.240 --> 0:01:58.000 been made by members who are on the commission, so 0:01:58.360 --> 0:02:01.040 they will at least be addressed in the report. I 0:02:01.080 --> 0:02:03.560 don't know for sure whether or not the Commission will 0:02:03.640 --> 0:02:07.160 end up making recommendations. It depends on what they think 0:02:07.240 --> 0:02:10.560 is advisable. So they certainly could they're allowed to. But 0:02:10.639 --> 0:02:13.360 whether they think that any reform to the Supreme Court 0:02:13.400 --> 0:02:16.480 is needed as a body, whether they think that that 0:02:16.639 --> 0:02:19.079 much isn't clear at all. So um, it's going to 0:02:19.160 --> 0:02:22.200 take time to tell. But having said that, I think 0:02:22.320 --> 0:02:25.680 part of the purpose of the commission is that I 0:02:25.720 --> 0:02:29.080 think President Biden really doesn't want to do much about 0:02:29.120 --> 0:02:32.400 the Supreme Court, and so you know, in politics, when 0:02:32.440 --> 0:02:34.639 you don't want to do something, you set up a 0:02:34.680 --> 0:02:37.400 commission to study it, exactly. That's what I was going 0:02:37.440 --> 0:02:39.800 to say. When I hear the word commission, it sounds 0:02:39.840 --> 0:02:43.120 to me like a classic Washington d c. Way of 0:02:43.160 --> 0:02:47.160 dodging the issue, exactly. And there's a lot of heat 0:02:47.240 --> 0:02:52.320 during the election, especially among the President's base, to consider 0:02:52.760 --> 0:02:56.240 reform proposals, and especially to consider adding seats to the 0:02:56.280 --> 0:02:59.520 Supreme Court. You know, people were mad about the treatment 0:02:59.520 --> 0:03:02.600 of Merrick Garland and so didn't think that seats should 0:03:02.600 --> 0:03:05.839 have gone to President Trump to fill, and thought that 0:03:06.160 --> 0:03:09.720 there shouldn't have been the rush to fill Justice Ginsburg's 0:03:09.760 --> 0:03:14.120 seat again by President Trump over her dying wishes. And 0:03:14.200 --> 0:03:19.240 so there's real movement in the Democratic base for adding 0:03:19.280 --> 0:03:22.079 seats to the Supreme Court in order to undo the 0:03:22.800 --> 0:03:27.720 large Conservative supermajority that's that's in the body now. And 0:03:27.720 --> 0:03:30.240 Biden had to do something to respond to all of that. 0:03:30.720 --> 0:03:34.239 So he proposed a commission, and I think his inclination 0:03:34.440 --> 0:03:36.840 is not to change the Supreme Court. He was on 0:03:36.880 --> 0:03:40.840 the Judiciary Committee for decades. He knows these issues pretty well, 0:03:41.240 --> 0:03:44.720 and his instinct has always been moderation. Looking at the 0:03:44.760 --> 0:03:47.680 members of the Commission, it seems as if there are 0:03:47.680 --> 0:03:52.560 a lot of academics and a lot of progressives. Do 0:03:52.600 --> 0:03:54.840 you see an imbalance on the on the committee in 0:03:54.840 --> 0:03:59.480 any respect? Well, actually, I think Biden did a good 0:03:59.560 --> 0:04:04.160 job of making sure there's conservative representation on the Commission. 0:04:04.160 --> 0:04:09.320 They're about ten identifiably conservative members of the Commission, and 0:04:09.360 --> 0:04:14.120 they're not token representatives. They are leading conservative legal scholars 0:04:14.120 --> 0:04:17.480 and leading scholars of originalism who are on the Commission. 0:04:17.839 --> 0:04:20.800 You know, I've seen a number of other conservative commentators 0:04:20.800 --> 0:04:25.039 who have actually been expressing surprise and that they're impressed 0:04:25.040 --> 0:04:28.400 that there were so many conservatives on the committee. Because 0:04:28.640 --> 0:04:31.479 a commission that's put together by a democratic president, you 0:04:31.480 --> 0:04:35.200 wouldn't think is going to necessarily have the other side 0:04:35.200 --> 0:04:39.320 well represented. They are well represented. They can't out vote 0:04:39.400 --> 0:04:42.599 the other members on the commission. But these kinds of 0:04:42.600 --> 0:04:46.320 commissions tend to try at least to work by consensus, 0:04:46.360 --> 0:04:49.560 and so if they do something that the conservative members 0:04:49.720 --> 0:04:52.479 disagree with, I'm sure there will be a sort of 0:04:52.520 --> 0:04:57.080 minority report issued by those those members. So I do 0:04:57.160 --> 0:05:00.640 think that the Commission is broadly speaking quite re presentative. 0:05:01.160 --> 0:05:04.520 It's not very representative of practitioners. I think that's a 0:05:04.520 --> 0:05:08.320 fair point. Even some of the practitioners are really academics 0:05:08.360 --> 0:05:11.400 and thinking there of Walter Tallinger who now as a 0:05:11.440 --> 0:05:15.720 partner and a practitioner at the Supreme Court practice of Washington, 0:05:15.839 --> 0:05:19.080 d c. Law firm, but for thirty years or more 0:05:19.120 --> 0:05:23.039 he was a law professor at too. Some liberals have 0:05:23.360 --> 0:05:27.560 complained that what's missing on the Commission are some of 0:05:27.600 --> 0:05:32.080 the liberals who have done studies and recommended so called 0:05:32.160 --> 0:05:35.599 court packing. Because even some of the liberals on the Commission, 0:05:35.640 --> 0:05:40.039 like Harvard professor Larry Tribe, has come out against court packing. 0:05:40.440 --> 0:05:43.960 So is that element missing? I think that element will 0:05:44.000 --> 0:05:48.200 be represented. Um, it could have been represented much more robustly. 0:05:48.520 --> 0:05:52.760 But again, I think President Biden's inclination is to not 0:05:52.920 --> 0:05:55.680 add seats to the Supreme Court, and so I think 0:05:55.720 --> 0:05:59.599 you see that reflected in the composition of the Commission. 0:06:00.120 --> 0:06:03.040 So one of the co chairs is Bob Bauer, who 0:06:03.120 --> 0:06:06.200 is White House counsel to Barack Obama. Now he teaches 0:06:06.200 --> 0:06:09.000 at n y U. But Bob Bower is also on 0:06:09.040 --> 0:06:12.080 the record as opposing adding seats to the Supreme Court, 0:06:12.520 --> 0:06:15.920 so the perspective is there, but I think the momentum 0:06:15.920 --> 0:06:19.520 on the Commission will be strongly against it. The Commission 0:06:19.560 --> 0:06:23.080 is also going to study term limits and jurisdictions stripping. 0:06:23.560 --> 0:06:25.960 Might either of those turn out to be a less 0:06:26.080 --> 0:06:30.360 drastic way of affecting change at the Court, so I'm 0:06:30.400 --> 0:06:33.000 sure there will be support. A number of members of 0:06:33.040 --> 0:06:37.680 the Commission have supported publicly those sorts of less drastic 0:06:37.760 --> 0:06:40.280 measures in the past, so there will be at least 0:06:40.279 --> 0:06:43.599 some support on the Commission for it. I don't expect 0:06:43.640 --> 0:06:46.760 that the Commission is likely to adopt any of those, 0:06:47.240 --> 0:06:50.960 and even if it does, I think it's remarkably unlikely 0:06:51.120 --> 0:06:54.520 that any kind of meaningful court reform would get enacted 0:06:54.560 --> 0:06:57.800 by Congress. For one thing, there is serious doubt about 0:06:57.800 --> 0:07:01.119 the constitutionality of something like term limits, that that would 0:07:01.120 --> 0:07:05.839 require a constitutional amendment, which is virtually impossible in this setting. 0:07:05.960 --> 0:07:10.960 The jurisdiction stripping proposals can be done by a regular statute, 0:07:11.160 --> 0:07:16.480 but Congress has considered jurisdiction stripping statutes frequently over the decades, 0:07:16.960 --> 0:07:21.160 and very often with very strong political support for them, 0:07:21.240 --> 0:07:24.280 and yet none of them has actually been enacted. So 0:07:24.560 --> 0:07:27.680 I'm really doubtful that any of those, even if they 0:07:27.680 --> 0:07:30.920 were to get through the Commission, could possibly be enacted 0:07:30.960 --> 0:07:34.360 by Congress. So we don't expect that there's going to 0:07:34.400 --> 0:07:39.080 be any kind of court packing recommendation. But if there were, 0:07:39.200 --> 0:07:44.040 would that just require legislation or that require more So 0:07:44.080 --> 0:07:46.600 to add seats to the Supreme Court just requires a 0:07:46.680 --> 0:07:50.720 simple statute. It doesn't require a constitutional amendment. There's nothing 0:07:50.760 --> 0:07:53.920 in the Constitution about how many justices there have to be. 0:07:54.200 --> 0:07:56.840 It's left entirely to Congress. So there could be one, 0:07:56.920 --> 0:08:00.920 there could be fifty one. It's entirely entirely up to Congress. 0:08:01.600 --> 0:08:04.880 Having said that, you know, Congress has considered these kinds 0:08:04.920 --> 0:08:09.560 of proposals over the years and has almost never responded 0:08:09.600 --> 0:08:11.679 to them. There was a brief period when the Court 0:08:11.720 --> 0:08:14.960 went to ten justices around the time of the Civil War, 0:08:15.480 --> 0:08:19.040 but since then it's been back to its um complement 0:08:19.080 --> 0:08:22.760 of nine justices, and it's been there pretty stably. Franklin 0:08:22.840 --> 0:08:25.960 Roosevelt very famously proposed what was known as the court 0:08:26.000 --> 0:08:30.040 packing plan. When the Supreme Court kept striking down his 0:08:30.120 --> 0:08:35.800 new deal legislation, and that was voted down pretty overwhelmingly 0:08:36.040 --> 0:08:40.520 by a Congress that was overwhelmingly democratic and supportive of 0:08:40.600 --> 0:08:44.120 Roosevelt and the New Deal. So that's often thought of 0:08:44.360 --> 0:08:48.000 as kind of a precedent for the proposals to add 0:08:48.000 --> 0:08:52.200 seats today and as sort of a harbinger of just 0:08:52.280 --> 0:08:56.120 how unlikely they are to be enacted. But having said that, 0:08:56.200 --> 0:08:59.360 I think it's also important to remember that simply by 0:08:59.440 --> 0:09:03.040 proposal in the Court Packing Plan FDR had a real 0:09:03.120 --> 0:09:07.320 impact on the Court itself that the Court shortly thereafter 0:09:08.040 --> 0:09:11.760 changed its its view on the scope of federal power 0:09:11.800 --> 0:09:16.160 to regulate commerce and started upholding New Deal statutes. And 0:09:16.200 --> 0:09:20.360 I think it is fair to imagine that the current 0:09:20.640 --> 0:09:23.720 climate and the current discussion of adding seats to the 0:09:23.760 --> 0:09:28.480 Supreme Court has a kind of moderating influence on the 0:09:28.520 --> 0:09:32.880 Supreme Court. That is, justices like Justice Roberts, who carell 0:09:32.880 --> 0:09:36.960 out about the legitimacy and integrity of the institution, I 0:09:37.000 --> 0:09:40.680 think fear those kinds of proposals, and I think it 0:09:40.760 --> 0:09:45.120 tends to make them moderate their positions on issues. So 0:09:45.240 --> 0:09:48.520 it's not surprising that, for example, over this past weekend, 0:09:48.600 --> 0:09:51.959 we've seen headlines talking about how the Supreme Court is 0:09:52.080 --> 0:09:55.120 dodging a lot of the hot button issues that you 0:09:55.200 --> 0:09:58.440 might have expected them to be taking up. Issues on guns, 0:09:58.480 --> 0:10:01.960 on abortion, on a bit of action, they're pretty well 0:10:02.000 --> 0:10:06.080 staying away from. And I think these court packing proposals 0:10:06.120 --> 0:10:09.320 may maybe playing a role now. On Thursday, a group 0:10:09.400 --> 0:10:12.760 of Democrats unveiled legislation in both the House and the 0:10:12.800 --> 0:10:15.920 Senate that would expand the number of justices on the 0:10:15.960 --> 0:10:19.040 Court from the current nine to thirteen. Here's one of 0:10:19.040 --> 0:10:23.080 the sponsors. House Judiciary Committee Chairman Jerry Nadler. Some people 0:10:23.080 --> 0:10:24.920 will say we're packing the court. We're not packing, we're 0:10:24.960 --> 0:10:28.320 unpacking it. Why I introduced this bill before the Commission 0:10:28.400 --> 0:10:32.199 has a chance to make its recommendations. I think it's 0:10:32.280 --> 0:10:35.080 just a response to some of the interest groups that 0:10:35.200 --> 0:10:38.240 have been demanding that the Court be expanded and to 0:10:38.360 --> 0:10:41.880 show sort of a commitment to that. I imagine it's 0:10:41.920 --> 0:10:46.079 also aimed at putting some pressure on the Commission, because, 0:10:46.200 --> 0:10:49.800 as we were discussing earlier, the personnel on the Commission 0:10:49.840 --> 0:10:53.440 I think are largely opposed to court packing, and so 0:10:53.559 --> 0:10:56.680 I think the people who want to pursue court packing 0:10:57.200 --> 0:11:00.120 want instead of being in the position of responding to 0:11:00.160 --> 0:11:03.320 the Commission to actually put pressure on the Commission and 0:11:03.360 --> 0:11:06.080 to say this has been their position even before the 0:11:06.080 --> 0:11:10.079 Commission issued any kind of report. Congressman Nadler said that 0:11:10.240 --> 0:11:12.679 in light of the fact that there were thirteen federal 0:11:12.720 --> 0:11:16.840 appeals courts, it makes sense to have thirteen justices to 0:11:16.920 --> 0:11:21.000 oversee them, as was the previous tradition. Does that make 0:11:21.040 --> 0:11:24.000 sense to you, Well, I don't for a minute believe 0:11:24.080 --> 0:11:27.480 that's actually the reason. And when FDR proposed his court 0:11:27.520 --> 0:11:30.600 expansion plan, the proposal was to add one seat for 0:11:30.679 --> 0:11:33.280 every justice over the age of seventies, and the reason 0:11:33.320 --> 0:11:37.640 he gave was because judges at that advanced age needed help. 0:11:38.000 --> 0:11:41.080 No one believed that was his reason, and I don't 0:11:41.120 --> 0:11:43.800 think anyone's going to believe that the reason is to 0:11:43.840 --> 0:11:47.400 have one justice for every circuit. It is true that 0:11:47.559 --> 0:11:50.920 there are some justices who are sort of the circuit 0:11:51.040 --> 0:11:54.280 justice for two circuits and others who are circuit justice 0:11:54.320 --> 0:11:56.720 for only one, but I don't think there's any real 0:11:56.800 --> 0:12:01.120 concern that they're overburdened by having to oversee two circuits. 0:12:01.160 --> 0:12:03.880 So I really don't for a minute believe that that's 0:12:03.960 --> 0:12:07.520 the actual reason for making it thirteen Justices. I think 0:12:07.520 --> 0:12:10.760 the reason is the six to three conservative majority on 0:12:10.840 --> 0:12:14.680 the Court, and adding four seats gives a democratic president 0:12:14.760 --> 0:12:19.200 an opportunity to realign that balance. How Speaker Nancy Pelosi 0:12:19.280 --> 0:12:22.440 says she won't even be bringing the bill to the 0:12:22.480 --> 0:12:27.400 floor for a vote, so's it's just dead as it's introduced, right, 0:12:27.640 --> 0:12:31.560 It's dead anyway as a as a practical matter, um, 0:12:31.679 --> 0:12:36.480 the Senate wouldn't pass it because unless the Senate goes 0:12:36.520 --> 0:12:39.320 to the nuclear option, there wouldn't be enough votes to 0:12:39.400 --> 0:12:42.480 defeat a filibuster um. And even if you went to 0:12:42.520 --> 0:12:45.560 the nuclear option, there are enough moderate Democrats in the 0:12:45.600 --> 0:12:49.000 Senate that the bill couldn't pass anyway. Even on a 0:12:49.040 --> 0:12:53.080 bare majority vote, um, the bill wouldn't pass. I think 0:12:53.080 --> 0:12:57.160 it's probably better to understand this as an attempt to 0:12:57.200 --> 0:13:00.640 build momentum and to start reaching out of the public 0:13:00.840 --> 0:13:03.760 and making the case for expanding the court, and to 0:13:03.840 --> 0:13:07.760 do that in advance of the Commission coming out, presumably 0:13:08.240 --> 0:13:10.920 the Commission coming out and saying that we shouldn't expand 0:13:10.920 --> 0:13:13.640 the court. I think really the court that this plays 0:13:13.720 --> 0:13:16.520 to is the court of public opinion, rather than being 0:13:16.640 --> 0:13:21.120 kind of a legitimate with a chance to pass legislative 0:13:21.120 --> 0:13:25.240 proposal that fits in with what one of the sponsors, 0:13:25.280 --> 0:13:29.359 Senator Ed Markey said that the first stage is education 0:13:29.640 --> 0:13:33.920 and that this is the education of the public. Right, um, 0:13:34.000 --> 0:13:37.400 And and frankly, I imagine at this point the public 0:13:37.480 --> 0:13:43.439 is not really attending class. I mean, I think if 0:13:43.440 --> 0:13:45.640 you want to get the public to pay attention and 0:13:45.720 --> 0:13:49.880 be educated, or perhaps better yet, to be engaged on 0:13:49.920 --> 0:13:53.160 the issue, Um, the Supreme Court is going to have to, 0:13:53.360 --> 0:13:56.360 as we discussed before, it's going to have to overstep 0:13:56.640 --> 0:14:00.520 its mandate in a number of significant cases. So if 0:14:00.559 --> 0:14:05.200 Congress passes important campaign finance reform and the Court strikes that, doubt, 0:14:05.720 --> 0:14:09.520 if Congress passes common sense gun reform and the Court 0:14:09.600 --> 0:14:14.240 strikes that. Now, if the Court keeps striking down sort 0:14:14.240 --> 0:14:19.560 of sensible public health requirements on religious freedom ground, and 0:14:19.600 --> 0:14:23.120 I think most significantly, if the Court overrules Row versus Way. 0:14:23.360 --> 0:14:26.520 If those things happen, then I think the public will 0:14:26.560 --> 0:14:29.480 really engage with this issue. But right now it just 0:14:29.560 --> 0:14:32.080 looks like a partners an attempt to gain control of 0:14:32.120 --> 0:14:35.600 the third branch. Coming up next, I'll continue this conversation 0:14:35.640 --> 0:14:38.880 with Professor Neil Kinkoff and we'll talk about Justice Stephen 0:14:38.960 --> 0:14:42.920 Bryer's comments on court packing at a Harvard Law School 0:14:42.920 --> 0:14:46.280 event last week, just as Stephen Bryer spoke out against 0:14:46.320 --> 0:14:49.840 liberal calls to add justices to the Supreme Court, saying 0:14:49.880 --> 0:14:53.000 that step could undermine public trust that the Court is 0:14:53.040 --> 0:14:57.840 guided by legal principles, not politics. I hope and expect 0:14:57.880 --> 0:15:01.640 that the Court will retain its authority, but that authority, 0:15:02.360 --> 0:15:07.640 like the rule of law, depends on trust. A trust 0:15:07.800 --> 0:15:12.920 that the Court is guided by legal principle not politics. 0:15:14.040 --> 0:15:18.480 Structural alteration motivated by the perception of political influence can 0:15:18.520 --> 0:15:22.640 only feed that matter perception. I've been talking to Professor 0:15:22.680 --> 0:15:25.960 Neil Kincoff of the Georgia State University College of Law. 0:15:26.760 --> 0:15:31.400 So Neil Justice Brier painted this ominous picture of court packing. 0:15:32.040 --> 0:15:34.720 So I think it's not at all surprising. The current 0:15:34.760 --> 0:15:38.160 members of the Court don't love the idea. They are 0:15:38.320 --> 0:15:41.600 very committed to the institution and the institution as it is, 0:15:42.360 --> 0:15:48.479 and they see the potential for adding seats to politicize 0:15:48.520 --> 0:15:51.080 the Supreme Court. For some people, you would say, well, 0:15:51.120 --> 0:15:54.800 it's already thoroughly politicized, and so what's the problem. I 0:15:54.880 --> 0:15:57.480 just think current members of the Court don't see it 0:15:57.520 --> 0:16:00.400 that way. They don't see it as thoroughly politic size. 0:16:00.440 --> 0:16:03.080 They disagree with one another, but they don't see the 0:16:03.120 --> 0:16:06.120 Court as politicized. But if you start adding seats in 0:16:06.240 --> 0:16:11.000 order to either gain or prevent particular outcomes, then the 0:16:11.120 --> 0:16:14.840 legitimacy of the institution is really in jeopardy. And I 0:16:14.880 --> 0:16:18.120 think that's what Briar is responding to. I think Justice 0:16:18.200 --> 0:16:21.280 Ginsberg took the same position before her death. I think 0:16:21.360 --> 0:16:25.000 Justice Roberts others in the conservative camp see that, and 0:16:25.080 --> 0:16:28.840 so I think there would be broad opposition among members 0:16:28.920 --> 0:16:33.200 of the current Supreme Court to adding seats. Ryan also 0:16:33.360 --> 0:16:38.400 rejected the characterization of the Supreme Court as conservative now, 0:16:38.880 --> 0:16:43.280 even though legal experts widely describe a six to three 0:16:43.280 --> 0:16:46.600 conservative majority on the Court. I can see why he 0:16:46.640 --> 0:16:50.120 says that, because even you know, just a year ago, 0:16:50.600 --> 0:16:53.800 the Supreme Court, by a six to three vote, ruled 0:16:53.880 --> 0:16:59.040 that Title seven protects individuals based on sexual identity and 0:16:59.080 --> 0:17:04.080 sexual orient patian right, so transgender and and homosexual protections 0:17:04.119 --> 0:17:06.600 that we're certainly not in the mind of the Congress 0:17:06.640 --> 0:17:09.840 that enacted that law. So you find cases like that 0:17:09.880 --> 0:17:14.360 where the Court doesn't come to the expected conservative conclusion 0:17:14.720 --> 0:17:18.679 and it allows somebody like Justice Bryer to say, you know, 0:17:18.760 --> 0:17:22.119 the Court's not conservative, or as Justice Roberts puts it, 0:17:22.400 --> 0:17:26.560 there aren't Obama judges and Trump judges or Clinton judges 0:17:26.680 --> 0:17:30.000 or Bush judges. They are just judges. And that's really 0:17:30.119 --> 0:17:34.080 vital to the legitimacy of the institution. Having said that, 0:17:34.200 --> 0:17:37.080 I mean, I think it really kind of blinkers reality 0:17:37.119 --> 0:17:42.680 to not recognize the very conservative tenor of the overwhelming 0:17:42.800 --> 0:17:46.480 number of cases that the Supreme Court decides. And I 0:17:46.520 --> 0:17:50.800 think it's unrealistic not to expect that conservative bent to 0:17:51.000 --> 0:17:54.159 deepen with the addition of Justice Barrett, which is a 0:17:54.200 --> 0:17:59.320 new phenomenon and one that really hasn't liquidated in actual rulings, 0:17:59.440 --> 0:18:02.440 but I think that's coming, and we see the harbinger 0:18:02.520 --> 0:18:05.760 of it with the Court continuing to strike down California's 0:18:05.840 --> 0:18:10.879 response to COVID on religious freedom grounds. When Justice Ginsburg died, 0:18:11.040 --> 0:18:14.600 Briar became the leader of the minority on the Court. 0:18:15.000 --> 0:18:17.120 So how can he not acknowledge that there's some sort 0:18:17.119 --> 0:18:20.720 of split. Yeah, I think it's vital to his position 0:18:20.760 --> 0:18:23.639 and for him to be effective that he hold to 0:18:23.680 --> 0:18:27.359 that position, because in order for him to be able 0:18:27.400 --> 0:18:31.280 to write majority opinions. I think he's not interested in 0:18:31.280 --> 0:18:35.359 writing dissents. He's interested in writing majority opinions. He needs 0:18:35.400 --> 0:18:39.919 to be able to appeal to at least two conservative justices, 0:18:40.640 --> 0:18:46.160 and he's had some success doing that, mostly in cases 0:18:46.200 --> 0:18:49.840 that people don't pay attention to, personal jurisdiction cases and 0:18:49.880 --> 0:18:52.480 the like. But in order for him to be able 0:18:52.520 --> 0:18:55.679 to do that, he needs to be on record that 0:18:55.760 --> 0:18:59.280 he doesn't regard the Court as conservative, but rather as 0:18:59.400 --> 0:19:01.720 sort of doing its best to figure out what the 0:19:01.800 --> 0:19:04.959 law requires. And as long as that's the position that 0:19:05.040 --> 0:19:09.040 he's taking, he can appeal to justices like Corsuch or 0:19:09.080 --> 0:19:13.000 Aledo or Kavanaugh to see things differently than their colleagues 0:19:13.040 --> 0:19:16.000 in a particular case and most of the issues that 0:19:16.040 --> 0:19:18.960 people really care about. I don't think there's very much 0:19:19.000 --> 0:19:22.080 hope of doing that, but in if you look at 0:19:22.080 --> 0:19:25.560 the mind run of the courts cases, UM, he's had 0:19:25.680 --> 0:19:32.280 some successes. He also called for more compromise and fewer dissents. 0:19:32.440 --> 0:19:36.400 Is he sending a message to his colleagues on the bench. Yeah, 0:19:36.520 --> 0:19:40.399 So that used to be the way the court operated, um, 0:19:40.520 --> 0:19:46.359 and things changed, particularly with Justice Scalia, who was rather 0:19:46.560 --> 0:19:51.080 adamant about the way he saw things. So I think 0:19:51.080 --> 0:19:53.560 the way he would put it is he stuck by 0:19:53.600 --> 0:19:56.320 his principles and he wouldn't agree to anything in an 0:19:56.320 --> 0:20:00.960 opinion that he disagreed with. Whereas I think through most 0:20:01.000 --> 0:20:05.320 of the Court's history, justices may not agree really with 0:20:05.440 --> 0:20:08.919 every word of the opinion, but if it comes to 0:20:09.000 --> 0:20:12.240 the conclusion that you know, they think is the right one, 0:20:12.760 --> 0:20:16.400 they're willing to go along and compromise about the language 0:20:16.400 --> 0:20:21.080 that goes into the opinion. And so during Justice Scaliah's 0:20:21.160 --> 0:20:24.919 time on the Court, there was a real flourishing of 0:20:25.200 --> 0:20:29.040 separate opinions that either concurred with the majority but were 0:20:29.080 --> 0:20:32.480 written in order to point out some fine point of 0:20:32.640 --> 0:20:37.159 disagreement or dissenting opinions right. And so I think what 0:20:37.320 --> 0:20:42.679 Justice Brier is calling for is compromise and collegiality um. 0:20:43.200 --> 0:20:45.879 And those were not the hallmarks of the Court during 0:20:45.960 --> 0:20:50.320 the years Justice Scalia was on there. The reaction of 0:20:50.600 --> 0:20:56.040 some liberals to his speech was Riyer retired billboards. He's 0:20:56.080 --> 0:20:59.119 eighty two, the oldest justice on the court. Do you 0:20:59.119 --> 0:21:03.040 think he's likely to retire soon? So, I think it's 0:21:03.080 --> 0:21:05.879 always unlikely that they will retire. We've seen it with 0:21:06.000 --> 0:21:09.720 Justice Ginsburg. We saw it with Justice Renquest. They think 0:21:09.800 --> 0:21:13.400 they can continue, even when they're in terrible health. They 0:21:13.440 --> 0:21:17.719 think they can continue, and so justices do not lightly 0:21:17.800 --> 0:21:20.560 give up that position. You know, I think a lot 0:21:20.600 --> 0:21:24.200 of the calls for Justice Brior to retire were being 0:21:24.240 --> 0:21:28.280 made before he gave the speech, just based on his age, 0:21:28.280 --> 0:21:31.639 and based on the recent experience with Justice Ginsburg, and 0:21:31.960 --> 0:21:35.520 based on just how thin the majority and the Senate is, 0:21:35.880 --> 0:21:40.320 and how any vacancy and vacancies do happen in the 0:21:40.359 --> 0:21:44.040 Senate could flip control of the Senate. And so it's 0:21:44.080 --> 0:21:47.440 such a precarious position in the Senate that a lot 0:21:47.480 --> 0:21:51.160 of people would like Justice Bryor to retire now while 0:21:51.200 --> 0:21:54.280 a successor could be confirmed, instead of waiting to a 0:21:54.359 --> 0:21:57.760 later date. Thanks Neil. That'th Neil Kinkoff of the Georgia 0:21:57.800 --> 0:22:00.879 State University College of Law. I am June Lso, and 0:22:00.880 --> 0:22:02.240 you're listening to Bloomberg.