WEBVTT - Weekend Law: Racial Profiling, SCOTUS Changes & DC Grand Juries Resist 0:00:02.759 --> 0:00:07.000 This is Bloomberg Law with June Grossel from Bloomberg Radio. 0:00:08.800 --> 0:00:13.320 We will bring justice to this issue to our community. 0:00:13.560 --> 0:00:18.120 We will not stand for this type of discrimination and racism. 0:00:18.200 --> 0:00:22.640 Los Angeles Mayor Karen Bess slammed the Supreme Court's emergency 0:00:22.800 --> 0:00:26.159 ruling this week that allows ice agents to stop and 0:00:26.239 --> 0:00:31.000 detain people based on their race, language, job, or location, 0:00:31.520 --> 0:00:36.080 factors that a federal judge had found unconstitutional. The ruling 0:00:36.240 --> 0:00:39.360 was six to three, with the conservative justices in the 0:00:39.400 --> 0:00:44.520 majority and the liberals in descent. Immigration advocates like Columbia 0:00:44.600 --> 0:00:48.280 Law School professor Alaura Mukherjee say it means the Court 0:00:48.320 --> 0:00:51.520 has essentially legalized racial profiling. 0:00:51.880 --> 0:00:55.720 What this means in practice is that immigration officers, as 0:00:55.760 --> 0:01:00.400 well as other law enforcement officers, now practically have an 0:01:00.440 --> 0:01:04.400 invitation to engage in racial profiling when they are carrying 0:01:04.400 --> 0:01:08.959 out stops. The effect of this decision is that America 0:01:09.520 --> 0:01:13.720 has become a show me your papers country for the 0:01:13.840 --> 0:01:16.160 overwhelming majority of people of color. 0:01:16.520 --> 0:01:20.440 The ruling was a one paragraph order with no explanation 0:01:20.560 --> 0:01:23.320 at all from the majority. My guest is a leading 0:01:23.360 --> 0:01:28.040 authority on racial profiling, Professor David Harris of the University 0:01:28.040 --> 0:01:31.200 of Pittsburgh Law School. David, I want to start with 0:01:31.240 --> 0:01:35.720 the basics. When can law enforcement stop someone under the 0:01:35.760 --> 0:01:36.600 Fourth Amendment. 0:01:37.200 --> 0:01:39.800 People can be stopped by the police under the Fourth 0:01:39.840 --> 0:01:43.960 Amendment when there is reasonable suspicion that a crime is 0:01:44.000 --> 0:01:46.440 afoot and they may be involved in the crime, and 0:01:46.520 --> 0:01:49.840 reasonable suspicion is less than probable cause, but it is 0:01:49.920 --> 0:01:54.760 based on facts and reasons. Now, when we transition from 0:01:55.080 --> 0:01:59.240 detecting crime to looking at immigration issues, the standard is 0:01:59.280 --> 0:02:02.680 still reasonable suspicion. There must be facts, and there must 0:02:02.720 --> 0:02:07.400 be proper inferences. But what we're looking for, of course, 0:02:07.560 --> 0:02:11.280 is whether a person is in immigration status or not. 0:02:12.040 --> 0:02:15.240 So with this ruling, the Supreme Court put on hold 0:02:15.400 --> 0:02:19.520 a federal judges order tell us about the order at stayed. 0:02:20.280 --> 0:02:23.880 The lower court in Los Angeles had decided that ICE 0:02:24.320 --> 0:02:29.440 and its law enforcement allies were using factors to stop 0:02:29.520 --> 0:02:35.880 people that inevitably led to unconstitutional stops, and the lower 0:02:35.919 --> 0:02:40.000 court had said, you may not use, either alone or 0:02:40.040 --> 0:02:46.480 in combination, the factors of somebody's Hispanic or Latino appearance, 0:02:46.800 --> 0:02:50.760 speaking Spanish or having an accent appearance, that you are 0:02:50.800 --> 0:02:55.720 engaged in low wage work, and being at a location 0:02:55.919 --> 0:02:59.800 associated with day labor, and the Court said, you can't 0:02:59.880 --> 0:03:03.640 do this anymore because I can see from the evidence 0:03:03.760 --> 0:03:06.960 that I took that this is being done in ways 0:03:07.000 --> 0:03:11.239 that violate the Constitution. And what the Supreme Court did 0:03:11.320 --> 0:03:15.760 on its emergency docket was to say, no, no, this 0:03:16.000 --> 0:03:19.560 order will not go into effect. We're holding it for 0:03:19.639 --> 0:03:21.920 now until we have more time to look at it. 0:03:22.320 --> 0:03:26.480 And Justice Kavanaugh wrote an opinion that is not for 0:03:26.560 --> 0:03:31.239 the court, saying that he believed that the administration who 0:03:31.360 --> 0:03:35.400 want to be able to use those factors will succeed 0:03:35.520 --> 0:03:38.320 when they get to a full hearing, that they'll win, 0:03:38.920 --> 0:03:42.640 and therefore Ice and the police allies can go back 0:03:42.680 --> 0:03:46.840 to using those factors when they stop people to see 0:03:46.880 --> 0:03:50.320 if they are in violation of the immigration laws. 0:03:50.640 --> 0:03:53.760 Are they basically saying, well, racial profiling's okay. 0:03:53.800 --> 0:03:57.280 Then what they're doing is they're looking back, and this 0:03:57.360 --> 0:03:59.880 is the best we can tell. We're not really sure, because, 0:04:00.080 --> 0:04:02.320 like you said, there is no opinion, so we're having 0:04:02.360 --> 0:04:05.040 to speculate to some extent. But what they seem to 0:04:05.120 --> 0:04:07.760 be saying, based on the fact that they stopped the 0:04:07.840 --> 0:04:10.320 lower courts ruling which would have put a stop to 0:04:10.440 --> 0:04:15.000 all of this and Justice Kavanaugh's opinion for himself is 0:04:15.200 --> 0:04:20.800 it's okay to use some combination of those four factors 0:04:20.880 --> 0:04:24.960 ethnic appearance, Spanish speaking or accent, appearance of being a 0:04:24.960 --> 0:04:29.080 low wage worker in these particular locations. Now, Kavanaugh was 0:04:29.440 --> 0:04:32.520 clear on saying, you can't just say, well, this person 0:04:32.560 --> 0:04:36.080 looks Mexican and that's enough. But it's a very slippery 0:04:36.080 --> 0:04:41.040 slope down to exactly that point. Our experience with this 0:04:41.120 --> 0:04:44.080 sort of thing goes back many years now. I've been 0:04:44.120 --> 0:04:47.599 studying racial and ethnic profiling for well over thirty years, 0:04:47.600 --> 0:04:49.880 and we've seen it. We've seen exactly this kind of 0:04:49.880 --> 0:04:53.320 thing before. We saw it when Arizona enacted the show 0:04:53.360 --> 0:04:56.559 your Paper statue back in about two thousand and eight 0:04:56.800 --> 0:05:00.360 or so, and Sheriff Joe Rpio went to town on 0:05:00.400 --> 0:05:02.640 that and it was just picking up people because of 0:05:02.839 --> 0:05:07.880 how they looked in their Spanish speaking or their accent. 0:05:08.440 --> 0:05:11.240 And that is racial profiling by any other name. I mean, 0:05:11.240 --> 0:05:13.240 we don't want to call it that, fine, but that's 0:05:13.240 --> 0:05:17.039 what happened. Law enforcement begins to lean on the most 0:05:17.200 --> 0:05:20.919 obvious factors, and that's what the judge saw in Los Angeles, 0:05:20.960 --> 0:05:23.080 and that's why the judge stopped them from doing this 0:05:23.120 --> 0:05:26.440 in the first place. So all of this will move 0:05:26.800 --> 0:05:31.200 immigration enforcement efforts right up to that very same line, 0:05:31.320 --> 0:05:33.800 and we will have people getting picked up just for 0:05:34.000 --> 0:05:37.200 how they look and whether they're Spanish speaking. It's going 0:05:37.279 --> 0:05:39.159 to happen as night follows day. 0:05:39.720 --> 0:05:42.400 And the only way we'll find out what factors the 0:05:42.440 --> 0:05:47.280 immigration officers are relying on is if someone who's detained 0:05:47.760 --> 0:05:49.159 brings a lawsuit, right. 0:05:49.480 --> 0:05:52.880 Exactly, and there will be some cases broad chances there, 0:05:52.960 --> 0:05:56.360 because one of the other effects of this is going 0:05:56.440 --> 0:06:00.240 to be that lots of people will be interrogated and 0:06:00.360 --> 0:06:04.120 even picked up and arrested who are in good order 0:06:04.200 --> 0:06:08.040 as far as immigration law. That's another thing that we see. 0:06:08.080 --> 0:06:12.640 Whenever there is widespread sort of dragnet pulling people in 0:06:12.720 --> 0:06:16.360 on these very basic factors, they end up making mistakes 0:06:16.560 --> 0:06:19.599 when they're allowed to lean on those kind of factors, 0:06:20.000 --> 0:06:22.520 and we will get a few people who end up 0:06:22.720 --> 0:06:25.000 in custody, maybe for a few days, maybe for a 0:06:25.040 --> 0:06:28.159 long time, maybe even getting deported before it can be 0:06:28.240 --> 0:06:32.000 reversed and they can bring a case. Justice Kavanaugh says 0:06:32.080 --> 0:06:35.239 in his opinion, well, look, if everything's in order, they'll 0:06:35.279 --> 0:06:38.360 just let you go and He says it's an important 0:06:38.400 --> 0:06:41.320 problem in Los Angeles because there's an estimate of stake 0:06:41.400 --> 0:06:46.000 two million people who are undocumented in Los Angeles. But 0:06:46.080 --> 0:06:49.960 what he doesn't say is that there are millions more 0:06:50.279 --> 0:06:54.400 who share those characteristics, who have ethnic features of people 0:06:54.480 --> 0:06:57.760 from Latin America, who speak Spanish, who have a Spanish accent, 0:06:58.040 --> 0:06:59.839 and they're going to be swept up in this two 0:07:00.240 --> 0:07:02.839 and that's where the cases will probably come from. 0:07:03.360 --> 0:07:06.719 Just as Kavanaugh said, as for stops of those individuals 0:07:06.720 --> 0:07:09.800 who are legally in the country, the questioning in those 0:07:09.840 --> 0:07:14.280 circumstances is typically brief, and those individuals may promptly go 0:07:14.480 --> 0:07:17.680 free after making clear of the immigration officers that they 0:07:17.680 --> 0:07:21.440 are US citizens or otherwise legally in the United States. 0:07:21.680 --> 0:07:24.520 He doesn't mention that one of the plaintiffs here, Jason 0:07:24.600 --> 0:07:29.680 Brian Gavidia, who's an American citizen, was stopped by immigration agents, 0:07:30.200 --> 0:07:34.000 shoved into a metal fence and his arm was twisted 0:07:34.240 --> 0:07:37.360 behind his back, all the while that he's shouting, I'm American, 0:07:37.560 --> 0:07:40.320 I was born in East LA And there's video of 0:07:40.360 --> 0:07:46.480 it that anyone can see on the internet. 0:07:47.960 --> 0:07:48.360 Literally. 0:07:52.440 --> 0:07:55.560 Gavidia says that he was frightened and the agents took 0:07:55.560 --> 0:07:58.680 his phone and ID. He was released, but he never 0:07:58.760 --> 0:08:00.240 did get his ID card back. 0:08:00.640 --> 0:08:04.200 Yeah, this is going to happen. This is going to 0:08:04.280 --> 0:08:09.119 happen more now that everybody can see, including the ICE 0:08:09.200 --> 0:08:11.960 agents and the police are helping them, that they've been 0:08:12.000 --> 0:08:15.400 given the green light. We will have that happen. It's 0:08:15.400 --> 0:08:19.080 a certainty. And for Justice Cavanaugh to say, hey, it's 0:08:19.120 --> 0:08:21.680 all fine as long as you carrying your papers with it, well, 0:08:21.760 --> 0:08:23.920 I mean, do you carry your birth certificate to work? 0:08:24.080 --> 0:08:26.480 I mean does everybody do that? And even if you do, 0:08:26.840 --> 0:08:29.240 you might not get those things back. You can be 0:08:29.440 --> 0:08:33.240 in big trouble even if you have crushed every t 0:08:33.400 --> 0:08:36.000 and dited every eye and you were born here. So 0:08:36.480 --> 0:08:38.960 I just really took offense at that. I think it's 0:08:39.000 --> 0:08:42.600 somebody who never has to confront these problems making a 0:08:42.640 --> 0:08:44.360 pronouncement he knows nothing about. 0:08:44.960 --> 0:08:49.160 So Justice Sodomayo wrote a stinging descent quote, we should 0:08:49.160 --> 0:08:51.160 not have to live in a country where the government 0:08:51.200 --> 0:08:55.480 can seize anyone who looks Latino, speaks Spanish, and appears 0:08:55.520 --> 0:08:59.160 to work a low wage job. She quoted in nineteen 0:08:59.240 --> 0:09:02.920 seventy five case that said it was unconstitutional for the 0:09:02.960 --> 0:09:06.400 border patrol to stop a car and question its occupants 0:09:06.840 --> 0:09:09.280 when the only ground for suspicion was that they appeared 0:09:09.320 --> 0:09:13.920 to be of Mexican ancestry. Does this shadow docket decision 0:09:14.200 --> 0:09:17.920 contradict that decision or is it broader? 0:09:18.559 --> 0:09:21.440 It's a little broader, But again we're less to speculate 0:09:21.559 --> 0:09:24.360 because it's just on the shadow docket. But that's a 0:09:24.440 --> 0:09:28.040 live question. For sure. There is an older case that 0:09:28.120 --> 0:09:31.760 says things like that you have to go beyond just 0:09:32.160 --> 0:09:36.480 ethnic appearance, But certainly it does also say that same case, 0:09:36.800 --> 0:09:40.520 ethnic appearance counts. And my experience, in the experience of 0:09:40.559 --> 0:09:43.560 those who study this as I have, is that when 0:09:43.679 --> 0:09:48.479 that's a factor that is relied on, even with others 0:09:48.600 --> 0:09:52.600 in the mix, law enforcement leans heavily on. It discounts 0:09:52.640 --> 0:09:54.840 the other factors that may go in the other direction, 0:09:55.320 --> 0:09:56.439 and you get mistakes. 0:09:56.840 --> 0:10:00.960 Immigration advocates fear that this decision will open the door 0:10:01.080 --> 0:10:06.000 to racial profiling across the United States. Do you think 0:10:06.040 --> 0:10:09.680 that now that the Supreme Court has found this is 0:10:10.040 --> 0:10:13.920 okay in Los Angeles, that it will also be okay 0:10:14.160 --> 0:10:17.360 in Chicago or New York or other cities. 0:10:17.600 --> 0:10:21.040 Well, again, we're left without full knowledge of what the 0:10:21.080 --> 0:10:23.560 Supreme Court has done or will do. We don't know 0:10:23.600 --> 0:10:25.760 how far they will go or what they will say 0:10:25.760 --> 0:10:30.679 in the end. But people who know just the headline, 0:10:31.120 --> 0:10:33.320 if they're in the enforcement business, that's how they're going 0:10:33.400 --> 0:10:37.400 to take it. Supreme Court says it's okay to use 0:10:37.840 --> 0:10:41.080 racial or ethnic appearance. They're not even going to make 0:10:41.120 --> 0:10:46.280 the distinction that Justice Kavanaugh does, which is that wouldn't 0:10:46.320 --> 0:10:49.240 be enough by itself. They're going to take it as 0:10:49.480 --> 0:10:52.199 racial profiling is okay. And if it's okay in LA, 0:10:52.280 --> 0:10:55.319 why wouldn't it be okay in Chicago or New York. 0:10:55.480 --> 0:10:57.959 And when they say blood his own, they mean lots 0:10:57.960 --> 0:11:00.360 and lots of people from our force will be out 0:11:00.440 --> 0:11:04.280 there doing this and long range. What you care about 0:11:04.320 --> 0:11:08.000 is public safety. You are doing the wrong things because 0:11:08.000 --> 0:11:11.680 public safety depends on public support. You need the public 0:11:12.000 --> 0:11:15.480 to give the police information about what's what in the neighborhoods. 0:11:15.800 --> 0:11:19.000 If this is happening not just to people who might 0:11:19.040 --> 0:11:23.959 be deported legitimately, let's say, but to people born here 0:11:24.280 --> 0:11:26.760 because they look a certain way. That is going to 0:11:26.880 --> 0:11:30.880 alienate people not just from ice, but from police generally, 0:11:31.040 --> 0:11:33.880 and it makes them less likely to cooperate with any 0:11:33.920 --> 0:11:37.760 policing of any type. So this immigration policy of flooding 0:11:37.800 --> 0:11:42.600 the zone with forces with these low accuracy factors, this 0:11:42.760 --> 0:11:45.720 is going to make it more dangerous for US just 0:11:45.920 --> 0:11:47.720 on the level of regular crime. 0:11:48.240 --> 0:11:51.280 Thanks so much, David. That's Professor David Harris of the 0:11:51.360 --> 0:11:55.240 University of Pittsburgh Law School. Coming up next. How the 0:11:55.320 --> 0:11:58.559 Roberts Court has changed the law. I'm June gross when 0:11:58.559 --> 0:12:03.800 you're listening to Bloomberg. Chief Justice John Roberts famously compared 0:12:03.920 --> 0:12:08.320 judges to umpires during his confirmation hearings in twenty ten. 0:12:08.880 --> 0:12:12.720 Judges are like umpires. Umpires don't make the rules, they 0:12:12.760 --> 0:12:16.520 apply them. The role of an umpire and a judge 0:12:16.920 --> 0:12:20.440 is critical. They make sure everybody plays by the rules. 0:12:21.200 --> 0:12:22.480 But it is a limited role. 0:12:23.440 --> 0:12:27.400 But many legal experts say the Roberts Court has changed 0:12:27.440 --> 0:12:31.400 the rules playing anything but the limited role of an umpire. 0:12:31.960 --> 0:12:35.000 During the twenty years since he's been chief, the Court, 0:12:35.120 --> 0:12:40.880 with its conservative majority and now conservative supermajority, has dramatically 0:12:41.120 --> 0:12:46.960 changed the law on abortion, gun rights, race, religion, federal agencies, 0:12:47.120 --> 0:12:51.360 and presidential power, overturning precedents that got in the way 0:12:51.720 --> 0:12:54.800 and moving the court further and further to the right. 0:12:55.400 --> 0:12:59.120 My guest is constitutional law professor Eric Siegel of Georgia 0:12:59.160 --> 0:13:03.120 State Universal. Eric, what do you think of Robert's comparison 0:13:03.480 --> 0:13:06.160 of justices to umpires. 0:13:06.480 --> 0:13:10.360 Well, Justice Kavanaugh repeated that years later as well, despite 0:13:10.440 --> 0:13:13.920 the mockery of virtually all court watchers pungents across the 0:13:13.960 --> 0:13:17.600 political spectrum on that statement by Justice Roberts, they're not umpires. 0:13:17.640 --> 0:13:21.600 They've never been umpires. In eighteen fifty seven, Congress wanted 0:13:21.640 --> 0:13:24.559 to end slavery in the territories. Congress had the power 0:13:24.640 --> 0:13:27.280 to do that under the Constitution. The Court made up 0:13:27.280 --> 0:13:29.760 a new rule and said no, And from nineteen hundred 0:13:29.800 --> 0:13:32.199 to nineteen thirty six the Court struck down hundreds of 0:13:32.280 --> 0:13:36.200 laws about minimum wages, overtime rules, and labor conditions. The 0:13:36.240 --> 0:13:39.120 Constitution allows Congress to do that. The Court wasn't playing 0:13:39.200 --> 0:13:42.120 like an umpire, And I think conservatives would fairly say 0:13:42.240 --> 0:13:45.280 that cases like rovers Wait were not the justices acting 0:13:45.320 --> 0:13:47.719 like umpires. So no, it was a silly statement when 0:13:47.760 --> 0:13:50.319 he made it. It was even sillier for Justice Kavanaugh 0:13:50.440 --> 0:13:53.439 to repeat it during this confirmation airing. The Constitution is 0:13:53.480 --> 0:13:56.679 a very vague document when it comes to litigation, there 0:13:56.679 --> 0:13:59.640 are some specific things. The president has to be thirty 0:13:59.640 --> 0:14:03.960 five to centers from every state. Inauguration day is January twentieth. 0:14:04.040 --> 0:14:07.239 But we don't litigate those clauses. We litigate due process, 0:14:07.360 --> 0:14:11.560 equal protection, cruel and usual punishment, unreasonable searchers and seizures, 0:14:11.559 --> 0:14:13.920 and so on. It'd be a thing to an umpire 0:14:14.440 --> 0:14:16.680 you get to decide what's fair in a baseball game. 0:14:16.840 --> 0:14:19.400 That's not what umpires do in baseball. They have some discretion. 0:14:19.560 --> 0:14:22.720 Of course, we've told the Supreme Court in effect make 0:14:22.880 --> 0:14:26.080 the constitutional rules for America, and that has nothing to 0:14:26.120 --> 0:14:26.640 do with sports. 0:14:26.640 --> 0:14:27.240 Someone. 0:14:27.280 --> 0:14:29.320 There are a lot of areas where the Roberts Court 0:14:29.360 --> 0:14:33.760 has changed or reshaped the law. Some changes seem dramatic, 0:14:33.920 --> 0:14:37.880 like abortion and gun rights. Other changes, like the laws 0:14:37.880 --> 0:14:42.800 around race, seem slower in coming. Tell us about Robert's role. 0:14:42.680 --> 0:14:47.680 There other than the presidential immunity decision in Trump versus 0:14:47.720 --> 0:14:50.200 the United States, one of the worst opinions in Supreme 0:14:50.200 --> 0:14:53.400 Court history. In my opinion and many others, leaving aside 0:14:53.440 --> 0:14:56.440 that opinion written by Justice Roberts, I think he's done 0:14:56.480 --> 0:14:59.280 the most damage to America when it comes to race, 0:14:59.400 --> 0:15:01.920 and it started in his very first term, when the 0:15:01.920 --> 0:15:05.880 cities of Seattle and Louisville. Let's take Louisville for a minute. 0:15:05.960 --> 0:15:09.520 You know, Louisville had segregation under the law for many, 0:15:09.560 --> 0:15:13.080 many years. Those schools were still segregated. So at the 0:15:13.200 --> 0:15:17.560 very local level, students and teachers and parents and school 0:15:17.560 --> 0:15:20.680 board members and voters got together and came up with 0:15:20.760 --> 0:15:24.000 a very limited plan to make sure that the public 0:15:24.040 --> 0:15:28.840 schools in Louisville had some minimal degree of desegregation so 0:15:28.880 --> 0:15:31.560 that white kids and black kids in Louisville could go 0:15:31.600 --> 0:15:34.120 to school together. And no judge ordered this. This was 0:15:34.240 --> 0:15:37.320 volunteer and in his very first term, the Roberts Court 0:15:37.360 --> 0:15:40.200 struck that down. And that's when Justice Roberts said the 0:15:40.240 --> 0:15:43.440 famous line, the way to stop discrimination based on race 0:15:43.520 --> 0:15:46.200 is to stop discriminating based on race. In the context 0:15:46.240 --> 0:15:49.520 of Louisville, Kentucky, which discriminated in the basis of race 0:15:49.640 --> 0:15:53.200 legally for a century, that's, in my opinion, a very 0:15:53.200 --> 0:15:56.000 bizarre statement. And even Justice Kennedy, who was a fifth 0:15:56.080 --> 0:15:58.760 vote in that case, disagreed with that statement. So it 0:15:58.800 --> 0:16:02.240 started there. Everybody knows that Justice Roberts does not like 0:16:02.360 --> 0:16:05.160 voting rights as a young attorney in the Reagan administration 0:16:05.200 --> 0:16:08.560 in nineteen eighty one, he wrote some scathing things about 0:16:08.600 --> 0:16:10.880 the Voting Rights Act, and then, of course, in Shelby 0:16:10.920 --> 0:16:14.560 County versus Holder, he was able to concoct a new 0:16:14.680 --> 0:16:17.800 rule that Congress can't treat different states differently without a 0:16:17.800 --> 0:16:21.240 strong reason and struck down a law that was passed 0:16:21.240 --> 0:16:24.800 by a unanimous Senate and signed by a Republican president. 0:16:24.960 --> 0:16:27.920 That law was struck down, and then the very next 0:16:28.000 --> 0:16:31.160 day Texas and North Carolina passed the voting rules they 0:16:31.160 --> 0:16:33.920 could not have passed prior to that law being struck down. 0:16:34.280 --> 0:16:37.400 They've also interpreted the Voting Rights Act very narrowly, and 0:16:37.440 --> 0:16:40.840 I think this next year even more narrowly again. And then, 0:16:40.880 --> 0:16:43.960 of course there's the Affirmative Action case, which overturned fifty 0:16:44.080 --> 0:16:47.040 years of president and said colleges and universities are not 0:16:47.120 --> 0:16:50.120 allowed to use race at all in their admissions process. 0:16:50.280 --> 0:16:53.400 It says, if Justice Roberts thinks race was never a 0:16:53.480 --> 0:16:55.880 problem in this country, it's as if he thinks we 0:16:55.920 --> 0:16:58.280 can just snap our fingers and all of our racial 0:16:58.360 --> 0:17:02.280 divisions will go away. And Justice Roberts has really turned 0:17:02.600 --> 0:17:05.680 a cold shoulder to dealing with those problems. 0:17:06.080 --> 0:17:09.040 There was a time when Roberts seemed I guess you 0:17:09.080 --> 0:17:12.080 could describe it as more middle of the road. He 0:17:12.119 --> 0:17:16.200 did write the opinion saving Obamacare, and in the Dobbs decision, 0:17:16.240 --> 0:17:20.800 he wouldn't have gone so far as to actually overturn Roe. 0:17:21.359 --> 0:17:23.480 So is it Roberts that's moving the court to the 0:17:23.560 --> 0:17:27.720 right or is it the three Trump appointees that gave 0:17:27.800 --> 0:17:30.040 the court a conservative supermajority. 0:17:30.760 --> 0:17:34.800 There's no question those three Trump appointees have played and 0:17:34.840 --> 0:17:38.480 will continue to play a significant role in moving the 0:17:38.480 --> 0:17:41.520 court far to the right. But it's also a little 0:17:41.520 --> 0:17:45.200 bit of a myth that Justice Roberts was ever anything 0:17:45.320 --> 0:17:50.359 less than an extremely conservative justice. Yes, he did save 0:17:50.680 --> 0:17:54.560 part of Obamacare. Remember he did not save the medicaid 0:17:54.600 --> 0:17:57.320 part of Obamacare, which was actually a key part of 0:17:57.359 --> 0:18:00.440 that law, and by striking down that part of law, 0:18:00.760 --> 0:18:04.720 the Court did serious damage to Obamacare in complicated ways 0:18:04.720 --> 0:18:08.480 that health policy experts could explain. Before twenty twelve, in 0:18:08.520 --> 0:18:11.600 a seven years preceding that case, he had never joined 0:18:11.600 --> 0:18:13.919 with the liberals in a five to four opinion. Since then, 0:18:14.000 --> 0:18:16.360 he's joined the liberals a few times. And you're right 0:18:16.400 --> 0:18:19.240 about Dobbs but there is no question that he would 0:18:19.280 --> 0:18:23.160 have eventually voted to overturn Row. Justice Roberts' formula has 0:18:23.200 --> 0:18:27.600 been consistently in voting rights, race cases, abortion cases, and 0:18:27.720 --> 0:18:31.200 separation of powers cases. Punch holes in the precedent, punch 0:18:31.200 --> 0:18:34.439 holes in the precedent, then reverse the president. There is 0:18:34.520 --> 0:18:37.359 no doubt he would have eventually voted to overturn Roe 0:18:37.440 --> 0:18:40.440 versus Way. So I think even a five to four 0:18:40.640 --> 0:18:45.280 court run by Justice Roberts would be an extremely conservative court, 0:18:45.560 --> 0:18:48.440 and with the exception of Justice Kennedy's votes on affirmative 0:18:48.480 --> 0:18:51.760 action in gay rights, was an extremely conservative court for 0:18:51.920 --> 0:18:53.400 most of Justice Roberts's court. 0:18:53.680 --> 0:18:56.280 There seems to be a lot of movement lately in 0:18:56.359 --> 0:19:01.600 the area of federal agency authority, and likely more changes 0:19:01.640 --> 0:19:04.600 to come. Tell us what's been happening there. 0:19:05.240 --> 0:19:10.160 Most of the laws that govern American private conduct and companies, 0:19:10.680 --> 0:19:14.399 environmental regulations, food and drug regulations, they all come from 0:19:14.440 --> 0:19:17.920 the executive branch. Congress passes a very broad law saying 0:19:17.920 --> 0:19:21.520 pollution is bad. President, go fix it. Congress passes the 0:19:21.600 --> 0:19:24.080 law saying we want to have to stay food. Executive branch, 0:19:24.160 --> 0:19:26.560 you go ahead and fix that. Well. Donald Trump's a 0:19:26.560 --> 0:19:30.159 businessman who doesn't like regulations. He appointed three justices who 0:19:30.200 --> 0:19:33.320 don't like regulations, and they are doing everything they can 0:19:33.440 --> 0:19:37.040 to make it harder for the executive branch to pass 0:19:37.119 --> 0:19:41.280 regulations such as environmental and food and drug laws. And 0:19:41.320 --> 0:19:43.639 it's very hard for Congress to do it because they 0:19:43.680 --> 0:19:46.080 don't want to politically take the hit. So it's not 0:19:46.119 --> 0:19:49.440 a surprise that this Supreme Court is trying to really 0:19:49.480 --> 0:19:54.200 go back to a nineteen thirty's pre New Deal understanding 0:19:54.760 --> 0:19:58.600 of federal power over the economy because these are people 0:19:58.640 --> 0:20:01.439 who believe, you know, in a tur free marketplace, not 0:20:01.600 --> 0:20:05.520 burdened by government regulation. And of course not just in 0:20:05.560 --> 0:20:08.320 the court, but this is filtering down all through the 0:20:08.359 --> 0:20:13.280 Trump administration. But the justices share that political goal, and 0:20:13.320 --> 0:20:14.320 that's what we're seeing. 0:20:14.800 --> 0:20:18.080 Roberts is the Chief Justice, but his vote is just 0:20:18.560 --> 0:20:22.600 one of nine votes, So how much power does he wield? 0:20:23.680 --> 0:20:27.440 So a very famous lower court judge, maybe the most 0:20:27.480 --> 0:20:30.480 famous lower court judge of our lifetimes, Judge Richard Posner, 0:20:31.119 --> 0:20:33.600 used to say that the Chief Justice really has no 0:20:33.720 --> 0:20:36.680 power except you know, to decide who writes the opinion 0:20:36.800 --> 0:20:40.080 when he's in the majority, and maybe some administrative rules. 0:20:40.240 --> 0:20:43.640 So I have a theory about Chief Justice Roberts's vote 0:20:43.760 --> 0:20:46.719 in the Obamacare case, which is that from two thousand 0:20:46.760 --> 0:20:51.120 and five, when Justice Roberts became the chief to twenty twelve, 0:20:51.200 --> 0:20:53.960 he had no power at all because Justice Kennedy held 0:20:54.000 --> 0:20:57.480 all the power. In that first term, Justice Kennedy was 0:20:57.520 --> 0:20:59.880 in the majority of one hundred percent of five votes, 0:21:00.160 --> 0:21:02.399 and for the next seven years the court went the 0:21:02.440 --> 0:21:06.359 way Justice Kennedy went. Supreme Court justice is a human beings. 0:21:06.520 --> 0:21:08.840 They are people like us. Now they have better jobs 0:21:08.880 --> 0:21:11.400 than most of us, but they aren't like us. And 0:21:11.760 --> 0:21:14.199 you know, Chief Justice Roberts, I think always wanted to 0:21:14.240 --> 0:21:16.679 be on the Supreme Court and always wanted to be 0:21:16.840 --> 0:21:18.679 Chief Justice. I'm not saying he thought he would ever 0:21:18.760 --> 0:21:20.480 get that, but you can't go any higher in the 0:21:20.520 --> 0:21:23.520 law than he went. And he had no power because 0:21:23.640 --> 0:21:27.280 Justice Kennedy had all the power. I think psychologically that 0:21:27.440 --> 0:21:30.840 was a factor in his decision in twenty twelve in 0:21:30.880 --> 0:21:35.040 the Obamacare case. So the story after twenty twelve became, oh, 0:21:35.520 --> 0:21:38.720 Justice Roberts is a swing vote also wasn't really true. 0:21:38.880 --> 0:21:42.119 Today he has very very little power. He has to 0:21:42.160 --> 0:21:45.920 get either Justice Barrett or Justice Kavanaugh or Justice Gorsich 0:21:46.040 --> 0:21:48.679 to agree with him when he doesn't want to rule 0:21:48.920 --> 0:21:51.440 in a conservative fashion, because he's never getting the Leado 0:21:51.520 --> 0:21:54.320 and Thomas to rule with him. So I would say 0:21:54.359 --> 0:21:57.960 he has no more power than Gorsic, Kavanaugh, and Barrett. 0:21:58.320 --> 0:22:00.000 And I'm not even sure he's more power than Justice 0:22:00.200 --> 0:22:03.280 Barrett with the exception. And it's a big deal. When 0:22:03.359 --> 0:22:06.000 he's in the majority, he gets to assign the opinion. 0:22:06.520 --> 0:22:10.240 But other than that, his vote counts the same. And frankly, 0:22:10.480 --> 0:22:13.639 I think he was a little bit scarred in the 0:22:13.680 --> 0:22:16.800 first seven years on the bench when his vote counted 0:22:17.080 --> 0:22:19.320 much less than Justice Kennedy's vote. 0:22:19.960 --> 0:22:23.080 So how do you think he ranks as far as 0:22:23.200 --> 0:22:26.000 chief justices who've led the court? 0:22:26.440 --> 0:22:28.560 My guess is he's going to go down as one 0:22:28.600 --> 0:22:31.480 of the worst chief Justices. And I say this for 0:22:31.520 --> 0:22:36.240 the following reason. History has shown that when the Supreme 0:22:36.320 --> 0:22:39.760 Court lurches far to the left or to the right, 0:22:40.119 --> 0:22:43.600 eventually the political system goes the other direction. So when 0:22:43.600 --> 0:22:46.200 the war In Court went too far to the left, 0:22:46.280 --> 0:22:49.080 and I'm a liberal progressive who will say I think 0:22:49.080 --> 0:22:51.320 the Warren Court went too far to the left, then 0:22:51.440 --> 0:22:54.560 Richard Nixon runs on a law an order campaign run 0:22:54.560 --> 0:22:57.119 a Reagan runs on Roe versus Wade, you know, and 0:22:57.200 --> 0:22:59.639 Republicans hold power for most of that time period. In 0:22:59.680 --> 0:23:03.480 the this Supreme Court, I think, and I think political 0:23:03.480 --> 0:23:06.880 scientists think, is far to the right of the median 0:23:07.160 --> 0:23:11.119 Republican voter, leaving aside the median Democrat voter. So my 0:23:11.200 --> 0:23:14.919 guess is eventually there will be a cycle where the 0:23:14.920 --> 0:23:17.879 political system lurches in the other direction, and then we 0:23:17.960 --> 0:23:22.359 will see just how conservative his court has been. It 0:23:22.400 --> 0:23:28.120 has been very, very conservative, and there are even conservatives today, scholars, 0:23:28.320 --> 0:23:32.440 even from federalist society folks, who are saying things like this, 0:23:33.080 --> 0:23:37.320 respect for precedent is not a conservative value. Right Conservatives 0:23:37.359 --> 0:23:40.640