1 00:00:00,480 --> 00:00:05,680 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:07,200 --> 00:00:11,760 Speaker 1: For the first time in history, it became possible to 3 00:00:11,880 --> 00:00:22,279 Speaker 1: urge before courts successfully that equal justice under law requires 4 00:00:22,640 --> 00:00:28,080 Speaker 1: all arms of government to be God women as persons 5 00:00:28,080 --> 00:00:33,960 Speaker 1: equal in stature two men. Long before she became a 6 00:00:34,080 --> 00:00:37,800 Speaker 1: justice at the age of sixty, Ruth Bader Ginsburg dedicated 7 00:00:37,800 --> 00:00:41,080 Speaker 1: her career to advancing the rights of women. Ginsberg had 8 00:00:41,159 --> 00:00:44,160 Speaker 1: argued cases before the Court as a scholar and advocate 9 00:00:44,200 --> 00:00:47,080 Speaker 1: of the women's rights movement. Once on the Court, she 10 00:00:47,120 --> 00:00:49,680 Speaker 1: built a record as one of the most liberal members, 11 00:00:49,720 --> 00:00:53,240 Speaker 1: supporting not only women's rights, but gay rights, abortion rights, 12 00:00:53,280 --> 00:00:56,120 Speaker 1: and restrictions on the death penalty. Her work as a 13 00:00:56,200 --> 00:00:58,880 Speaker 1: jurist was marked by her concern for the people the 14 00:00:59,000 --> 00:01:02,560 Speaker 1: law affected. As she explained at the University of Buffalo 15 00:01:02,600 --> 00:01:07,080 Speaker 1: in t at RBG Day, it's important to realize that 16 00:01:07,280 --> 00:01:12,400 Speaker 1: law is not some kind of abstract exercise. It affects 17 00:01:13,160 --> 00:01:19,880 Speaker 1: real people and gudition. Be cognizant of how the law 18 00:01:19,920 --> 00:01:23,399 Speaker 1: affects the people that law is meant to serve. So 19 00:01:23,480 --> 00:01:26,520 Speaker 1: how will the court change? How will the law change 20 00:01:26,560 --> 00:01:30,039 Speaker 1: if a conservative justice takes the place of Justice Ginsburg 21 00:01:30,720 --> 00:01:34,480 Speaker 1: joining me as constitutional law scholar Stephen Vladdock, a professor 22 00:01:34,480 --> 00:01:37,959 Speaker 1: at the University of Texas Law School. Steve how will 23 00:01:38,080 --> 00:01:43,640 Speaker 1: putting another conservative on the Court affects Supreme Court jurisprudence 24 00:01:43,760 --> 00:01:46,800 Speaker 1: in the years to come. There's no question that if 25 00:01:46,840 --> 00:01:51,000 Speaker 1: President Trump is able to get a conservative confirmed to Succeedsburg, 26 00:01:51,560 --> 00:01:53,760 Speaker 1: it's going to move the Court really as far to 27 00:01:53,840 --> 00:01:56,480 Speaker 1: the right as we can remember it, certainly as far 28 00:01:56,560 --> 00:01:58,040 Speaker 1: as the right as it was at the beginning of 29 00:01:58,080 --> 00:02:01,520 Speaker 1: the New Deal when it constantly awarded many of President 30 00:02:01,560 --> 00:02:05,160 Speaker 1: Roosevelt's initiatives. But you know, June perhaps even more conservative 31 00:02:05,200 --> 00:02:08,160 Speaker 1: than that, and that's going to have obvious and participle 32 00:02:08,200 --> 00:02:13,920 Speaker 1: impacts on everything from religious liberty to abortion, to the 33 00:02:13,960 --> 00:02:18,200 Speaker 1: separation of powers. I mean, across the spectrum of constitutional 34 00:02:18,200 --> 00:02:20,520 Speaker 1: and legal questions. We're looking at the court that's going 35 00:02:20,560 --> 00:02:23,960 Speaker 1: to be very, very conservative for quite some time. Chief 36 00:02:24,040 --> 00:02:30,000 Speaker 1: Justice Roberts moves in increments with another conservative justice, do 37 00:02:30,080 --> 00:02:33,760 Speaker 1: you see those changes happening more swiftly? I mean, I 38 00:02:33,800 --> 00:02:35,639 Speaker 1: think it's possible. You know, there's no question that Chief 39 00:02:35,680 --> 00:02:39,600 Speaker 1: Justice Roberts has shown, especially in the last couple of years, 40 00:02:39,600 --> 00:02:43,280 Speaker 1: that he has a real institutionalist streak that sometimes leads 41 00:02:43,360 --> 00:02:45,600 Speaker 1: him to vote in ways that might be different from 42 00:02:45,639 --> 00:02:48,280 Speaker 1: how he'd actually vote if it were purely about what 43 00:02:48,280 --> 00:02:50,480 Speaker 1: he thinks the right answer is on the merits. With 44 00:02:50,600 --> 00:02:53,800 Speaker 1: a sixth conservative justice on the court, too, that marginalizes 45 00:02:53,840 --> 00:02:57,400 Speaker 1: the Chief Justice, and it means that the Conservatives can 46 00:02:57,440 --> 00:03:01,760 Speaker 1: lose him or Justice Corsage or Kavanaugh and still have 47 00:03:01,800 --> 00:03:04,600 Speaker 1: a majority in any one of these cases. And so 48 00:03:04,639 --> 00:03:07,920 Speaker 1: it's going to take two of the Conservatives to cross 49 00:03:07,960 --> 00:03:10,119 Speaker 1: over and join the professives in any of the sort 50 00:03:10,120 --> 00:03:13,880 Speaker 1: of conventionally divisive cases for us to see anything other 51 00:03:13,919 --> 00:03:17,320 Speaker 1: than just conservative hit gemini on the court. We saw 52 00:03:17,360 --> 00:03:20,079 Speaker 1: that this term right mean the Bostock case, of course, 53 00:03:20,240 --> 00:03:22,720 Speaker 1: was six to three, not five to four with Justice 54 00:03:22,760 --> 00:03:26,920 Speaker 1: Course and the Chief Justice joining. So then for professive justice. 55 00:03:27,000 --> 00:03:29,120 Speaker 1: But June, those cases are going to be the exception, 56 00:03:29,480 --> 00:03:34,960 Speaker 1: not the rule, Bostock being a landmark decision on LGBT rights. Now, 57 00:03:35,040 --> 00:03:38,400 Speaker 1: in the past term, Justice Brett Kavanaugh only joined the 58 00:03:38,440 --> 00:03:41,720 Speaker 1: Court's liberals in a five to four ruling in one case, 59 00:03:41,760 --> 00:03:46,400 Speaker 1: an antitrust dispute. Yet some legal observers are speculating that 60 00:03:46,680 --> 00:03:50,080 Speaker 1: Kavanaugh will be at the center the swing vote in 61 00:03:50,080 --> 00:03:53,360 Speaker 1: a more conservative court. Do you agree with that? I 62 00:03:53,440 --> 00:03:55,440 Speaker 1: don't do not in the way that we saw it 63 00:03:55,440 --> 00:03:57,920 Speaker 1: with you know, Justice Kennedy obviously for better part of 64 00:03:58,000 --> 00:03:59,680 Speaker 1: twelve years, and with the Chief Justice the last couple 65 00:03:59,720 --> 00:04:01,480 Speaker 1: of years. I think what we're gonna see as more 66 00:04:01,480 --> 00:04:04,360 Speaker 1: akin to prior periods in the Court's history where there 67 00:04:04,360 --> 00:04:07,920 Speaker 1: were two or three justices who were potentially thus twins. 68 00:04:08,160 --> 00:04:09,920 Speaker 1: So you know, I think in some cases the most 69 00:04:09,960 --> 00:04:13,480 Speaker 1: likely justice to perhaps join the progressives might be Justice 70 00:04:13,480 --> 00:04:15,680 Speaker 1: score Stitched. In some cases it might be Justice count Moment. 71 00:04:15,720 --> 00:04:18,080 Speaker 1: Some kids might be the Chief. But again, you're gonna 72 00:04:18,120 --> 00:04:20,359 Speaker 1: need two of them, and that's that thinks The critical 73 00:04:20,360 --> 00:04:23,280 Speaker 1: difference is it's not just a swing of justice anymore. 74 00:04:23,360 --> 00:04:26,520 Speaker 1: That's for the conservative majority to actually not win cases 75 00:04:26,560 --> 00:04:29,039 Speaker 1: that are going to divide along ideological lines, there's gonna 76 00:04:29,080 --> 00:04:32,279 Speaker 1: need to swin justices. That's a very different calculation. It 77 00:04:32,360 --> 00:04:35,560 Speaker 1: leads to very different internal politicking, and I think it's 78 00:04:35,560 --> 00:04:37,839 Speaker 1: not hard to imagine how it's going to produce a 79 00:04:37,880 --> 00:04:41,240 Speaker 1: heck of a lot fewer surprized crossover votes in the 80 00:04:41,360 --> 00:04:44,640 Speaker 1: years to come. Justice Ginsburg was the leader of the 81 00:04:44,640 --> 00:04:47,880 Speaker 1: Court's liberal block. Who will be the leader of the 82 00:04:47,880 --> 00:04:51,240 Speaker 1: Court's conservative block. Yeah, I mean, I think there's gonna 83 00:04:51,279 --> 00:04:55,120 Speaker 1: be some real split and perhaps even some tension among 84 00:04:55,279 --> 00:04:58,760 Speaker 1: the six conservative justices. Obviously, I think the Chief is 85 00:04:58,760 --> 00:05:00,640 Speaker 1: still going to have a heck of a lot of both, 86 00:05:00,800 --> 00:05:03,400 Speaker 1: you know, sort of formal and informal authority. It's still 87 00:05:03,400 --> 00:05:05,520 Speaker 1: going to be his call when he's in the majority, 88 00:05:05,560 --> 00:05:07,920 Speaker 1: who gets the opinion assignment. He still has a lot 89 00:05:07,960 --> 00:05:10,960 Speaker 1: of I think, administrative control over the Court. But I 90 00:05:11,000 --> 00:05:13,920 Speaker 1: think there's going to be some buy in for control 91 00:05:14,000 --> 00:05:17,200 Speaker 1: of that coalition among different justices. Does this mean that 92 00:05:17,240 --> 00:05:20,080 Speaker 1: there are now five votes for some of the ideas 93 00:05:20,080 --> 00:05:22,279 Speaker 1: that the Chief wasn't necessarily quick woman signed off on, 94 00:05:22,400 --> 00:05:25,480 Speaker 1: for example, in garden cases? If so, you know the 95 00:05:25,560 --> 00:05:28,000 Speaker 1: justice a leado who leaves as a Justice Thomas. I 96 00:05:28,040 --> 00:05:30,280 Speaker 1: think it's going to be some interesting behind the scenes 97 00:05:30,520 --> 00:05:34,119 Speaker 1: machinations among this new conservative majority. But you know, June, 98 00:05:34,160 --> 00:05:35,919 Speaker 1: all that's really going to accept the day and today 99 00:05:36,040 --> 00:05:38,320 Speaker 1: is how these opinions are written. I don't think it's 100 00:05:38,360 --> 00:05:40,800 Speaker 1: going to actually affect the results. Steve, does this mean 101 00:05:40,880 --> 00:05:44,240 Speaker 1: new uncertainty about the fate of Obamacare? That law has 102 00:05:44,279 --> 00:05:46,480 Speaker 1: headed to the Supreme Court for the third time, with 103 00:05:46,720 --> 00:05:50,279 Speaker 1: arguments scheduled the week after the election. When this case 104 00:05:50,320 --> 00:05:53,920 Speaker 1: was first decided by a Texas judge, many legal experts 105 00:05:54,000 --> 00:05:57,280 Speaker 1: called it an outlier and a fluke. But is Obamacare 106 00:05:57,320 --> 00:06:00,520 Speaker 1: now in jeopardy? So I'm asking, you know, Justice Ginsburg. 107 00:06:00,920 --> 00:06:03,880 Speaker 1: Passing and replacement I think changes the stakes a little bit. 108 00:06:03,920 --> 00:06:05,960 Speaker 1: But I mean, I think keep in mind, you know what, 109 00:06:06,000 --> 00:06:08,040 Speaker 1: when folks thought, okay, it's not going to go anywhere, 110 00:06:08,400 --> 00:06:10,440 Speaker 1: the question in that case, which is I think mal 111 00:06:10,520 --> 00:06:14,359 Speaker 1: capting what California University textis, is not really about the 112 00:06:14,400 --> 00:06:17,480 Speaker 1: individual mandate. I mean, I think even California, I think, 113 00:06:17,520 --> 00:06:19,560 Speaker 1: except that the court very well might strike down the 114 00:06:19,600 --> 00:06:23,000 Speaker 1: usual mandate. Now the question is what happened as a result. 115 00:06:23,440 --> 00:06:26,680 Speaker 1: Does the rest of the statute fall? And this is 116 00:06:26,680 --> 00:06:29,800 Speaker 1: the so called severability questions? And I think, you know, 117 00:06:29,880 --> 00:06:33,240 Speaker 1: the presumption before justice cans grow passed away is that 118 00:06:33,279 --> 00:06:36,920 Speaker 1: there were no more than four votes for the really 119 00:06:37,040 --> 00:06:41,520 Speaker 1: really wacky, to my mind, almost specious separability argument that 120 00:06:41,560 --> 00:06:45,039 Speaker 1: requires the entire statute to be thrown out, including the 121 00:06:45,080 --> 00:06:49,640 Speaker 1: Medicaid expansion, including coverage for preexisting conditions, including things that 122 00:06:49,680 --> 00:06:51,640 Speaker 1: have nothing at all to do with the individual mandate. 123 00:06:52,120 --> 00:06:54,839 Speaker 1: But the problem is, now four votes might be enough 124 00:06:55,000 --> 00:06:57,520 Speaker 1: because if the court splits forward to four, if this 125 00:06:57,640 --> 00:07:00,839 Speaker 1: happens before the new justice is converted, then that would 126 00:07:00,880 --> 00:07:03,760 Speaker 1: affirm the lower court decision. You know, the Fifth Circuit 127 00:07:04,120 --> 00:07:06,600 Speaker 1: had basically agreed with the disreport but said that back 128 00:07:06,640 --> 00:07:10,320 Speaker 1: to reconsider separability analysis. So you know, I guess the 129 00:07:10,360 --> 00:07:12,920 Speaker 1: short version is, I'm still not convinced that there are 130 00:07:13,000 --> 00:07:17,960 Speaker 1: four votes for that wacky severability holding. But whereas before 131 00:07:18,120 --> 00:07:19,960 Speaker 1: there was no scenario where four ward have been enough, 132 00:07:19,960 --> 00:07:22,080 Speaker 1: now the scenario it might be, and that that's I 133 00:07:22,080 --> 00:07:25,520 Speaker 1: think that's how the fix obtainion. The Court has had 134 00:07:25,680 --> 00:07:29,880 Speaker 1: many rulings on social equality issues over the past decade, 135 00:07:30,400 --> 00:07:33,800 Speaker 1: gay marriage being one of them. There's a more conservative 136 00:07:33,840 --> 00:07:39,000 Speaker 1: court likely to extend those rulings or reverse them, for example, 137 00:07:39,320 --> 00:07:42,400 Speaker 1: the gay marriage decision in No Burger Feild you know didn't. 138 00:07:42,480 --> 00:07:44,560 Speaker 1: It's a good question. I think we ought to be 139 00:07:44,640 --> 00:07:47,920 Speaker 1: careful about the difference between extending these rulings and not 140 00:07:48,080 --> 00:07:50,440 Speaker 1: reversing them, because those are two very different responses. I 141 00:07:50,520 --> 00:07:55,000 Speaker 1: certainly don't expect a new sixth Justice conservative majority to 142 00:07:55,120 --> 00:07:58,560 Speaker 1: do anything to expand upon Burgo Fell or boss Stop 143 00:07:58,680 --> 00:08:01,280 Speaker 1: or any of other cases. But I'm also not sure 144 00:08:01,360 --> 00:08:03,720 Speaker 1: that they'll be in a hurry to overrule them to 145 00:08:03,880 --> 00:08:05,960 Speaker 1: quite same degree as other cases. I mean, I think, 146 00:08:06,280 --> 00:08:09,440 Speaker 1: you know, there is some danger in just sort of 147 00:08:09,560 --> 00:08:12,520 Speaker 1: knee jerk overruling of cases you don't like when it 148 00:08:12,520 --> 00:08:14,560 Speaker 1: comes to the public perception of the court. When it 149 00:08:14,600 --> 00:08:16,840 Speaker 1: comes to course legitimacy. You know, I think the Court 150 00:08:16,880 --> 00:08:19,360 Speaker 1: will still be worried about provoking too much of a 151 00:08:19,480 --> 00:08:23,880 Speaker 1: backlash if as opposed to expend in their precedent, they 152 00:08:23,880 --> 00:08:26,840 Speaker 1: start actually just getting rid of them very atom and 153 00:08:27,200 --> 00:08:28,840 Speaker 1: you know, it's very possible to kind find how the 154 00:08:28,840 --> 00:08:31,680 Speaker 1: election goes this November, that that's the kind of backlash 155 00:08:31,720 --> 00:08:34,520 Speaker 1: the Court is going to be ill ill inclined to provoke. 156 00:08:35,520 --> 00:08:39,240 Speaker 1: Is abortion Is Roe v. Wade included in that? No, 157 00:08:39,520 --> 00:08:41,280 Speaker 1: I mean, I think Row, You know, I think Row 158 00:08:41,440 --> 00:08:43,920 Speaker 1: is trickier because I think Row is first of all, 159 00:08:44,240 --> 00:08:46,720 Speaker 1: Rowe has been so controversial for so long, and the 160 00:08:46,800 --> 00:08:50,080 Speaker 1: Court has shipped away so thoroughly at it already, and 161 00:08:50,120 --> 00:08:53,880 Speaker 1: it's clearly such a critical part of what's motivating the conservatives, 162 00:08:54,160 --> 00:08:56,559 Speaker 1: you know, to get this pick through now is to 163 00:08:56,640 --> 00:08:59,240 Speaker 1: finally get rid of Row. So but June, the price 164 00:08:59,320 --> 00:09:02,240 Speaker 1: they might pay for overturning Row, or at least reducing 165 00:09:02,240 --> 00:09:05,080 Speaker 1: it to the normal is not there is an inability 166 00:09:05,080 --> 00:09:07,200 Speaker 1: to do that multiple other times. I mean, I think 167 00:09:07,440 --> 00:09:10,240 Speaker 1: a court that spends next five years it's overturning one 168 00:09:10,240 --> 00:09:13,200 Speaker 1: progressive president after another, It's going to be a court 169 00:09:13,240 --> 00:09:16,720 Speaker 1: that I think really starts to lose some legitimacy in 170 00:09:16,760 --> 00:09:19,119 Speaker 1: the eyes of a large chunk of the American population. 171 00:09:19,679 --> 00:09:22,040 Speaker 1: President Trump says he's going to a point to a woman, 172 00:09:22,480 --> 00:09:27,480 Speaker 1: and he has a list of very conservative juris. Does 173 00:09:27,520 --> 00:09:31,480 Speaker 1: it matter which woman on that list he chooses. Is 174 00:09:31,600 --> 00:09:35,200 Speaker 1: one more conservative than the other? Is one likely to 175 00:09:35,240 --> 00:09:37,680 Speaker 1: affect the court more than the other? I think that 176 00:09:37,760 --> 00:09:40,760 Speaker 1: the difference between them will probably cash out in you know, 177 00:09:40,800 --> 00:09:43,640 Speaker 1: a small number of cases over time where just like 178 00:09:43,720 --> 00:09:46,520 Speaker 1: Seis Kavanaugh in the Apple antitrust case, like, there are 179 00:09:46,559 --> 00:09:50,559 Speaker 1: gonna be idiosyncratic areas where any one of the conservatives 180 00:09:50,640 --> 00:09:53,400 Speaker 1: might be inclined anyone is the progressive um. And that's 181 00:09:53,400 --> 00:09:54,720 Speaker 1: true I think for any of the folks on the 182 00:09:54,720 --> 00:09:58,640 Speaker 1: President's shortlist. I think the the larger point, though, is 183 00:09:58,679 --> 00:10:01,160 Speaker 1: that those cases are all gonna the outliers June, and 184 00:10:01,240 --> 00:10:04,199 Speaker 1: that you know there's going to be a solid six 185 00:10:04,320 --> 00:10:07,319 Speaker 1: justice block in most cases, and a block that can 186 00:10:07,360 --> 00:10:10,960 Speaker 1: afford to lose one of them in all cases, and 187 00:10:11,000 --> 00:10:12,840 Speaker 1: that the only cases where we're really going to see 188 00:10:12,840 --> 00:10:16,120 Speaker 1: something weird happened is where you actually lose two of 189 00:10:16,160 --> 00:10:18,920 Speaker 1: those six Conservatives. And again, I mean, just looking back 190 00:10:18,920 --> 00:10:21,480 Speaker 1: at the last couple of terms, the only high profile 191 00:10:21,559 --> 00:10:24,080 Speaker 1: example of that where you know too, but only two 192 00:10:24,120 --> 00:10:26,600 Speaker 1: of the Conservatives crossed over in a high profile case 193 00:10:27,120 --> 00:10:30,000 Speaker 1: was the boss Stock Title seven case. So now a 194 00:10:30,040 --> 00:10:34,360 Speaker 1: lot of the talk from Democrats and progressive has been, well, 195 00:10:34,600 --> 00:10:37,040 Speaker 1: if we get the White House, if we take over 196 00:10:37,080 --> 00:10:41,400 Speaker 1: the Senate, then let's expand the court. It's not surprising 197 00:10:41,520 --> 00:10:43,560 Speaker 1: that that's where these folks are. But I think, you know, 198 00:10:43,840 --> 00:10:46,600 Speaker 1: that's a very short term reaction as opposed to long 199 00:10:46,679 --> 00:10:49,600 Speaker 1: term right that that it seems to me that we 200 00:10:49,640 --> 00:10:51,480 Speaker 1: should be thinking about both the short term. In the 201 00:10:51,520 --> 00:10:55,520 Speaker 1: long term, expand the Supreme Court maybe emotionally satisfying in 202 00:10:55,600 --> 00:10:57,840 Speaker 1: the short term. The problem is is that you know, 203 00:10:57,920 --> 00:11:00,880 Speaker 1: once you cross that group of con then the next 204 00:11:00,880 --> 00:11:03,400 Speaker 1: time the Republicans are in power, they expand the court, 205 00:11:03,679 --> 00:11:06,440 Speaker 1: and then the Democrats expand the court in response, and 206 00:11:06,480 --> 00:11:08,920 Speaker 1: so like fifty years from now, the court has thirty 207 00:11:08,960 --> 00:11:12,160 Speaker 1: seven justices and no legitimacy. And so since that, the 208 00:11:12,280 --> 00:11:15,520 Speaker 1: much more significant conversation has is, you know, how do 209 00:11:15,600 --> 00:11:19,720 Speaker 1: we sort of think long term about ways of having 210 00:11:19,920 --> 00:11:24,160 Speaker 1: less turn on the actuarial tables and on the fact 211 00:11:24,200 --> 00:11:28,120 Speaker 1: that you know, people pass away at different and unfrifcable times. 212 00:11:28,400 --> 00:11:31,320 Speaker 1: You know, should we scale back some of the Court's jurisdiction. 213 00:11:31,360 --> 00:11:34,160 Speaker 1: Should there be cases that the Court has traditionally heard 214 00:11:34,200 --> 00:11:35,880 Speaker 1: that we don't want to hear anymore. And I think 215 00:11:35,880 --> 00:11:38,080 Speaker 1: there's there are a lot of court reforms that we 216 00:11:38,120 --> 00:11:40,360 Speaker 1: ought to be discussed in the notion that we should 217 00:11:40,400 --> 00:11:43,800 Speaker 1: expand the court just because Democrats can you know, I 218 00:11:43,920 --> 00:11:46,520 Speaker 1: understand the impulse, and I just think it's very shortsighted. 219 00:11:47,280 --> 00:11:51,960 Speaker 1: What about the Democrats argument that the Republicans haven't been 220 00:11:52,000 --> 00:11:56,800 Speaker 1: playing by traditional rules. First, they stopped Merrick Garland from 221 00:11:56,880 --> 00:12:00,760 Speaker 1: even getting an up or down vote. Now are changing 222 00:12:00,840 --> 00:12:04,079 Speaker 1: the rules that they said were in place for Merrick Garland. 223 00:12:04,600 --> 00:12:08,880 Speaker 1: So the Democratic argument is the Republicans have already messed 224 00:12:08,880 --> 00:12:12,360 Speaker 1: with the process and made this political. It sounds tried 225 00:12:12,440 --> 00:12:14,600 Speaker 1: to say two wrongs don't make a right, but I 226 00:12:14,600 --> 00:12:17,160 Speaker 1: mean i'shing to day is just again, I think we 227 00:12:17,240 --> 00:12:19,520 Speaker 1: have to keep you know, we have to sort of 228 00:12:19,640 --> 00:12:23,840 Speaker 1: carefully think through the long term implications of such a move. 229 00:12:24,000 --> 00:12:27,120 Speaker 1: And you know, if the Democrats say today we're justifying 230 00:12:27,160 --> 00:12:29,520 Speaker 1: the stay on the court to eleven or thirteen justices, 231 00:12:29,960 --> 00:12:32,120 Speaker 1: of course the Republicans will say tomorrow and then we're 232 00:12:32,160 --> 00:12:35,760 Speaker 1: justified and standing of the seventeen. And you know, once again, 233 00:12:35,800 --> 00:12:37,400 Speaker 1: this is why I think, you know, we have to 234 00:12:37,400 --> 00:12:39,640 Speaker 1: think both shorts from and long term. You know, there 235 00:12:39,640 --> 00:12:43,559 Speaker 1: are ways, I think, to respond to the norm destructive 236 00:12:43,640 --> 00:12:46,040 Speaker 1: behavior of Republicans when it's come to the Supreme Court 237 00:12:46,080 --> 00:12:48,720 Speaker 1: in the last four years. There are ways to respond 238 00:12:48,760 --> 00:12:52,400 Speaker 1: to the hypocrisy of Republican senators who swore on a 239 00:12:52,520 --> 00:12:56,280 Speaker 1: stack in tween that their opposition to fill in the 240 00:12:56,600 --> 00:12:59,360 Speaker 1: Scalia seat was categorical and it was not just because 241 00:12:59,400 --> 00:13:01,680 Speaker 1: it was President Obama who was nominating him. But I 242 00:13:01,679 --> 00:13:03,000 Speaker 1: don't think that's the way to do that, June is 243 00:13:03,080 --> 00:13:05,679 Speaker 1: to open the door to destroying the court. So one 244 00:13:05,720 --> 00:13:09,480 Speaker 1: suggestion for changing the court is to put in term 245 00:13:09,559 --> 00:13:13,480 Speaker 1: limits for the justices. In fact, House Democrats are planning 246 00:13:13,600 --> 00:13:17,719 Speaker 1: to introduce legislation next week to limit justice's terms to 247 00:13:17,840 --> 00:13:21,200 Speaker 1: eighteen years. There are other ideas, but tell us about 248 00:13:21,280 --> 00:13:25,440 Speaker 1: limiting the jurisdiction of the court. How would that work? Yeah, 249 00:13:25,440 --> 00:13:27,080 Speaker 1: I mean, you know, Congress has a heck of a 250 00:13:27,080 --> 00:13:30,520 Speaker 1: lot of control over much of what the Supreme Court does. 251 00:13:30,600 --> 00:13:33,000 Speaker 1: Coldress control the size of the court. Coloss controls when 252 00:13:33,040 --> 00:13:36,520 Speaker 1: it sits Colgress controls what cases it hears, and so 253 00:13:36,559 --> 00:13:38,520 Speaker 1: I think, you know, one of the thames Congress could 254 00:13:38,520 --> 00:13:41,400 Speaker 1: consider is whether there are categories of cases that should 255 00:13:41,400 --> 00:13:44,199 Speaker 1: now you know, perhaps be taken away from the Supreme Court. 256 00:13:44,480 --> 00:13:46,800 Speaker 1: Are there? We want the Supreme courtside in more cases 257 00:13:46,800 --> 00:13:50,480 Speaker 1: the courts'sie in different cases. You know, Congress, since really 258 00:13:50,520 --> 00:13:54,800 Speaker 1: thees June has largely gotten out of the business of 259 00:13:55,480 --> 00:13:59,559 Speaker 1: playing that sort of ongoing roles in tailoring and to 260 00:13:59,640 --> 00:14:02,640 Speaker 1: finding the Supreme Court's jurisdiction, maybe it's time for Congress 261 00:14:02,679 --> 00:14:04,200 Speaker 1: to get back into that business. I mean, I think, 262 00:14:04,440 --> 00:14:06,560 Speaker 1: you know, the bottom line is that there's a heck 263 00:14:06,559 --> 00:14:09,520 Speaker 1: of a lot Congress could do to, you know, try 264 00:14:09,520 --> 00:14:11,320 Speaker 1: to sort of curb some of the excess of the 265 00:14:11,320 --> 00:14:14,960 Speaker 1: Supreme Court before it starts, Adam, and that's you know, 266 00:14:15,280 --> 00:14:18,719 Speaker 1: the notion that that it's at But I think is 267 00:14:18,760 --> 00:14:21,680 Speaker 1: what's misleading here. There's actually a bunch of structural court 268 00:14:21,680 --> 00:14:24,760 Speaker 1: reforms that I think we can should consider before we start. 269 00:14:24,880 --> 00:14:27,480 Speaker 1: Adam chairs to the bench. Thanks for being on the 270 00:14:27,480 --> 00:14:31,880 Speaker 1: Bloomberg Law Show, Steve. That's constitutional law Professor Stephen Vladdock 271 00:14:32,000 --> 00:14:36,800 Speaker 1: of the University of Texas Law School. As testament to 272 00:14:36,840 --> 00:14:43,280 Speaker 1: one Asia's promise, the daughter and granddaughter of immigrants, SIT's 273 00:14:43,320 --> 00:14:47,160 Speaker 1: a lihest court in the land. Justice Ruth Bader Ginsburg 274 00:14:47,240 --> 00:14:51,080 Speaker 1: wrote landmark opinions that advanced gender equality and rights were 275 00:14:51,080 --> 00:14:55,040 Speaker 1: disabled Americans and immigrants. She was proud of her background 276 00:14:55,120 --> 00:14:57,080 Speaker 1: and spoke about it when she was honored by the 277 00:14:57,120 --> 00:15:01,040 Speaker 1: American Law Institute. What is it differ minutes between a 278 00:15:01,120 --> 00:15:05,760 Speaker 1: bookkeeper in New York City's Comment District and the Supreme 279 00:15:05,800 --> 00:15:12,800 Speaker 1: Court Justice? One generation? My life bears witness the difference 280 00:15:12,880 --> 00:15:17,240 Speaker 1: between the opportunities open to my mother and those open 281 00:15:17,360 --> 00:15:20,800 Speaker 1: to me. The late Supreme Court justice made history and 282 00:15:20,920 --> 00:15:23,400 Speaker 1: death as she did in life. When she was honored 283 00:15:23,400 --> 00:15:26,040 Speaker 1: on Friday as the first woman to lie in state 284 00:15:26,120 --> 00:15:30,600 Speaker 1: at the US Capitol. Here's how Speaker Nancy Pelosi, it 285 00:15:30,760 --> 00:15:35,840 Speaker 1: is with profound sorrow and deep sympathy to the Ginsburg 286 00:15:35,960 --> 00:15:41,560 Speaker 1: family that I have the high honor to welcome Justice 287 00:15:41,720 --> 00:15:46,680 Speaker 1: Ruth Bader Ginsburg to lie in state and the capital 288 00:15:46,880 --> 00:15:52,160 Speaker 1: of the United States. Will conservatives legal fantasies soon become realities? 289 00:15:52,640 --> 00:15:56,560 Speaker 1: How will another conservative justice on the Supreme Court change 290 00:15:56,600 --> 00:15:59,320 Speaker 1: the law? Joining me? As Neil Kinkoff, a professor at 291 00:15:59,320 --> 00:16:02,880 Speaker 1: the Georgia's Day University College of Law, Neil in general, 292 00:16:02,920 --> 00:16:08,120 Speaker 1: how would adding another conservative justice change the court? Well, 293 00:16:08,120 --> 00:16:11,560 Speaker 1: the general impact will be to move the court dramatically 294 00:16:11,680 --> 00:16:16,400 Speaker 1: to the right. So for the last about ten years, 295 00:16:16,480 --> 00:16:20,000 Speaker 1: before Anthony Kennedy retired, the court was really known as 296 00:16:20,040 --> 00:16:22,960 Speaker 1: the Kennedy Court because he was the swing vote and 297 00:16:23,000 --> 00:16:25,440 Speaker 1: in all of the pivotal cases he would cast the 298 00:16:25,480 --> 00:16:30,120 Speaker 1: deciding vote, so he pretty well determined the direction of 299 00:16:30,160 --> 00:16:34,320 Speaker 1: the court. After his retirement, there was concerned that him 300 00:16:34,360 --> 00:16:39,440 Speaker 1: being replaced by Justice Gorsuch would really cement the hold 301 00:16:39,800 --> 00:16:43,640 Speaker 1: of the right wing on the court. But then Justice 302 00:16:43,760 --> 00:16:47,920 Speaker 1: Roberts played the role of the swing vote and the 303 00:16:48,480 --> 00:16:52,320 Speaker 1: turn to the right wasn't nearly so decisive. So right 304 00:16:52,360 --> 00:16:56,360 Speaker 1: now there's a five to four conservative majority on the Court, 305 00:16:57,200 --> 00:17:00,840 Speaker 1: but it's not as solid as I think people assumed 306 00:17:00,880 --> 00:17:04,159 Speaker 1: it would be because Roberts has in a number of 307 00:17:04,240 --> 00:17:09,160 Speaker 1: high profile cases UM sided with the liberal wing. UM. 308 00:17:09,240 --> 00:17:13,440 Speaker 1: But with Ginsburg leaving, that makes it five to three. 309 00:17:13,680 --> 00:17:17,439 Speaker 1: And if she's replaced by a very conservative judge, and 310 00:17:17,480 --> 00:17:20,800 Speaker 1: all of those on the short list are very conservative, 311 00:17:21,400 --> 00:17:24,520 Speaker 1: that makes the majority six to three. And even if 312 00:17:24,600 --> 00:17:29,760 Speaker 1: Chief Justice Roberts continues to occasionally side with the liberal wing, 313 00:17:30,640 --> 00:17:33,040 Speaker 1: that side would still lose by a vote of five 314 00:17:33,119 --> 00:17:36,320 Speaker 1: to four UM. So that the Court would become very 315 00:17:36,440 --> 00:17:41,720 Speaker 1: solidly very conservative. When we look at how a more 316 00:17:41,800 --> 00:17:45,399 Speaker 1: conservative court would change the law, the first thing that 317 00:17:45,520 --> 00:17:48,800 Speaker 1: seems to be at risk is Obamacare because the Supreme 318 00:17:48,840 --> 00:17:52,359 Speaker 1: Court is holding oral arguments the week after the election 319 00:17:52,560 --> 00:17:56,360 Speaker 1: on the Trump administration trying to have the Court declared 320 00:17:56,440 --> 00:17:58,960 Speaker 1: the law invalid. What do you think the fate of 321 00:17:59,000 --> 00:18:02,639 Speaker 1: Obamacare would have been with RBG on the court and 322 00:18:02,720 --> 00:18:06,520 Speaker 1: now without RBG on the court? Sure, so her her 323 00:18:06,640 --> 00:18:13,600 Speaker 1: vote was crucial to upholding Obamacare. UM that she wasn't 324 00:18:13,680 --> 00:18:18,080 Speaker 1: the swing vote, right, That was really Chief Justice Roberts 325 00:18:18,080 --> 00:18:22,440 Speaker 1: who added his vote to the four liberals, but now 326 00:18:23,160 --> 00:18:28,000 Speaker 1: without Justice ginsburg Um, if if she is replaced by 327 00:18:28,040 --> 00:18:33,280 Speaker 1: a reliable conservative, then that means that Obamacare can be 328 00:18:33,320 --> 00:18:36,879 Speaker 1: struck down on any number of different grounds. When this 329 00:18:37,040 --> 00:18:40,399 Speaker 1: first came out, this Obamacare lawsuit, it was considered almost 330 00:18:40,440 --> 00:18:44,120 Speaker 1: a silly lawsuit. Most you know, legal experts were saying 331 00:18:44,160 --> 00:18:47,040 Speaker 1: that it would never stand up. How did we get 332 00:18:47,080 --> 00:18:52,040 Speaker 1: to the Supreme Court in this point? Right? Because conservative 333 00:18:52,119 --> 00:18:56,080 Speaker 1: jurists have been committed to the destruction of Obamacare, and 334 00:18:56,280 --> 00:18:59,679 Speaker 1: no argument is too frivolous to that end um. And 335 00:18:59,760 --> 00:19:02,600 Speaker 1: so this is an example of it. Had this case 336 00:19:02,680 --> 00:19:06,159 Speaker 1: come to the Supreme Court back when the Supreme Court 337 00:19:06,280 --> 00:19:10,080 Speaker 1: first ruled on Obamacare, I would not have been surprised 338 00:19:10,080 --> 00:19:13,240 Speaker 1: if it had gotten zero votes. Um. But now I 339 00:19:13,240 --> 00:19:15,600 Speaker 1: wouldn't be at all surprised to see it kept five. 340 00:19:16,280 --> 00:19:19,800 Speaker 1: A lot of legal articles are talking about Kavanaugh as 341 00:19:19,840 --> 00:19:24,320 Speaker 1: now the swing vote on this particular topic. In other contexts, 342 00:19:24,359 --> 00:19:28,480 Speaker 1: he has been reluctant to throw out the entire law. 343 00:19:28,560 --> 00:19:31,480 Speaker 1: So is it possible that the Justices might agree to 344 00:19:31,600 --> 00:19:34,080 Speaker 1: sever that portion of the law and leave the law 345 00:19:34,119 --> 00:19:39,199 Speaker 1: in place. I think that's really unlikely. I understand Justice 346 00:19:39,320 --> 00:19:44,000 Speaker 1: Kavanaugh may not want, given the controversy around his appointment, 347 00:19:44,440 --> 00:19:47,960 Speaker 1: may not want to be the decisive vote to strike 348 00:19:48,040 --> 00:19:51,600 Speaker 1: down Obamacare. Um, but that's the only thing I can 349 00:19:51,640 --> 00:19:55,679 Speaker 1: think that would incline him towards keeping it in place. 350 00:19:56,720 --> 00:20:00,160 Speaker 1: And now, abortion rights, this is what comes up every 351 00:20:00,160 --> 00:20:03,800 Speaker 1: time there is a court appointment, and it seems as 352 00:20:03,840 --> 00:20:08,240 Speaker 1: if abortion rights were in jeopardy even before the death 353 00:20:08,280 --> 00:20:12,000 Speaker 1: of RBG. It seems as if there's been an incremental 354 00:20:12,040 --> 00:20:17,160 Speaker 1: approach to abortion rights. No one is saying, let's reverse 355 00:20:17,280 --> 00:20:22,480 Speaker 1: Roe v. Wade. Might that change with a more conservative court? Yes, 356 00:20:22,640 --> 00:20:24,960 Speaker 1: I think it will change with a more conservative court. 357 00:20:25,119 --> 00:20:28,919 Speaker 1: The incremental changes have been all from the time of 358 00:20:29,040 --> 00:20:33,359 Speaker 1: Rope forward have all been towards reducing the scope of 359 00:20:33,400 --> 00:20:37,600 Speaker 1: the right to an abortion. So um. The really operative 360 00:20:37,640 --> 00:20:40,520 Speaker 1: decision was the decision in the early nineties in a 361 00:20:40,560 --> 00:20:45,639 Speaker 1: case called Casey, where the Supreme Court formally upheld Rowe 362 00:20:45,640 --> 00:20:49,600 Speaker 1: but replaced it with an undue burden standard. And since 363 00:20:49,680 --> 00:20:53,639 Speaker 1: that case was decided now nearly thirty years ago, the 364 00:20:53,720 --> 00:20:57,800 Speaker 1: Court has accepted all kinds of different regulations of abortion 365 00:20:58,000 --> 00:21:01,639 Speaker 1: that make it virtually impossible bull in some states to 366 00:21:02,040 --> 00:21:05,680 Speaker 1: access an abortion. But the Supreme Court has upheld those 367 00:21:05,720 --> 00:21:09,680 Speaker 1: saying they're not an undue burden um. The the loan 368 00:21:09,800 --> 00:21:12,879 Speaker 1: exception to that is a case from a few years 369 00:21:12,880 --> 00:21:17,320 Speaker 1: ago from Texas, where Texas imposed regulations that are so 370 00:21:17,440 --> 00:21:21,399 Speaker 1: burdensome that it would become impossible for abortion clinics to 371 00:21:21,440 --> 00:21:24,760 Speaker 1: operate in Texas. In that case, the Supreme Court, with 372 00:21:24,880 --> 00:21:28,800 Speaker 1: Justice Kennedy casting the swing and deciding vote, struck down 373 00:21:28,840 --> 00:21:33,560 Speaker 1: Texas law. That set of laws was also adopted by Louisiana, 374 00:21:33,680 --> 00:21:36,600 Speaker 1: and in the case that the Court decided last year, 375 00:21:37,200 --> 00:21:40,600 Speaker 1: the Court stuck with its precedent um, and that time 376 00:21:40,640 --> 00:21:44,119 Speaker 1: it was Justice Roberts who provided the swing vote only 377 00:21:44,200 --> 00:21:47,119 Speaker 1: on the ground that he thought, by Starry decisive, he 378 00:21:47,119 --> 00:21:50,119 Speaker 1: should stick with the president, and no one had asked 379 00:21:50,119 --> 00:21:54,200 Speaker 1: them to reconsider Row versus Way. Now. That case then 380 00:21:54,600 --> 00:21:58,280 Speaker 1: sort of amounted to an invitation to parties that directly 381 00:21:58,359 --> 00:22:02,360 Speaker 1: ask for the Court to overrule Row. And if there 382 00:22:02,520 --> 00:22:06,399 Speaker 1: is now a sixth conservative justice on the Court, it 383 00:22:06,560 --> 00:22:10,240 Speaker 1: is all but a foregone conclusion that the Supreme Court 384 00:22:10,280 --> 00:22:13,359 Speaker 1: will over rule Row versus Way. Just I want to 385 00:22:13,359 --> 00:22:17,280 Speaker 1: clarify one thing. That doesn't mean that states can't have 386 00:22:17,640 --> 00:22:21,000 Speaker 1: laws that allow abortions. It just means that states have 387 00:22:21,080 --> 00:22:25,439 Speaker 1: decision up to them. That's right. Um. It allows the 388 00:22:25,440 --> 00:22:29,760 Speaker 1: states to make their own determination. Now, gun rights, The 389 00:22:29,800 --> 00:22:33,360 Speaker 1: Court attempted to take up a gun rights case last term, 390 00:22:33,440 --> 00:22:36,040 Speaker 1: but it turned out to be moot. They haven't decided 391 00:22:36,040 --> 00:22:40,199 Speaker 1: a gun case in a decade. What kind of rights 392 00:22:40,240 --> 00:22:45,480 Speaker 1: are on the table here now? So the Supreme Court held, 393 00:22:45,840 --> 00:22:50,679 Speaker 1: um that the Second Amendment protects an individual's right to 394 00:22:50,800 --> 00:22:54,560 Speaker 1: possess a gun in their home for purposes of self protection, 395 00:22:55,119 --> 00:22:58,400 Speaker 1: that that is something that cannot be forbidden to them. 396 00:22:59,240 --> 00:23:02,680 Speaker 1: But it didn't hold anything beyond that right. So that 397 00:23:02,760 --> 00:23:04,800 Speaker 1: it decided, I think it was in two thousand and 398 00:23:04,880 --> 00:23:09,320 Speaker 1: five UM. And then the the subsequent case was a 399 00:23:09,320 --> 00:23:13,560 Speaker 1: case that held that that right applies not only against 400 00:23:14,000 --> 00:23:17,840 Speaker 1: the federal government and federal regulation, but against state governments 401 00:23:17,840 --> 00:23:22,239 Speaker 1: and state regulations as well. They have not told us 402 00:23:22,359 --> 00:23:25,560 Speaker 1: sort of any more than that, just what the Second 403 00:23:25,600 --> 00:23:28,760 Speaker 1: Amendment protects? So does it protect the right to possess 404 00:23:29,760 --> 00:23:32,879 Speaker 1: a handgun outside the house when you're walking down the street. 405 00:23:33,280 --> 00:23:35,320 Speaker 1: Does it protect your right to have one when you're 406 00:23:35,359 --> 00:23:37,840 Speaker 1: at work? Does it protect your right to have one 407 00:23:37,880 --> 00:23:41,040 Speaker 1: if you're on an airplane or in an airport? Does 408 00:23:41,080 --> 00:23:45,520 Speaker 1: it protect weapons other than handguns? Right? So, the Court 409 00:23:45,600 --> 00:23:50,119 Speaker 1: in its original decision emphasized that handguns are in fact 410 00:23:50,160 --> 00:23:55,400 Speaker 1: the most common weapon chosen for self protection. So would 411 00:23:55,440 --> 00:24:01,400 Speaker 1: it apply to other weapons, to semi automatic um um firearms? 412 00:24:01,680 --> 00:24:07,480 Speaker 1: Does it apply to restrictions on magazines and magazine capacity, 413 00:24:07,640 --> 00:24:10,639 Speaker 1: or to the nature of of of the bullets right, 414 00:24:10,800 --> 00:24:14,000 Speaker 1: hollow tip bullets and so called cop killer bullets and 415 00:24:14,280 --> 00:24:20,040 Speaker 1: and things like that, um? Right? And where does it apply? Right? 416 00:24:20,160 --> 00:24:23,439 Speaker 1: Does it apply in national parks? Does it apply? So? 417 00:24:23,480 --> 00:24:28,000 Speaker 1: There are many, many questions that have been left unanswered, 418 00:24:28,800 --> 00:24:33,080 Speaker 1: and one of the principal legal questions to answer that 419 00:24:33,359 --> 00:24:37,520 Speaker 1: will help the court resolve those those more specific disputes 420 00:24:37,560 --> 00:24:40,639 Speaker 1: I've just been talking about, is what standard of review 421 00:24:40,680 --> 00:24:44,560 Speaker 1: to apply? Right? What level of protection is going to 422 00:24:44,640 --> 00:24:48,920 Speaker 1: be given to the right to possess um, to possess 423 00:24:49,160 --> 00:24:52,919 Speaker 1: arms for purposes of self defense? Is that subject to 424 00:24:52,960 --> 00:24:57,560 Speaker 1: merely rational basis scrutiny? Does the court apply strict scrutiny? 425 00:24:57,680 --> 00:25:00,240 Speaker 1: Should the Court come up with some different level of 426 00:25:00,280 --> 00:25:05,720 Speaker 1: scrutiny that's in between rational basis and strict scrutiny? Um? 427 00:25:05,920 --> 00:25:09,360 Speaker 1: And so those are all really important legal questions that 428 00:25:09,359 --> 00:25:12,880 Speaker 1: that first case left open and the Court hasn't returned 429 00:25:12,920 --> 00:25:18,359 Speaker 1: to since. Um. You know, had the court addressed those 430 00:25:18,480 --> 00:25:21,400 Speaker 1: questions early on, I think it would have been much 431 00:25:21,440 --> 00:25:26,240 Speaker 1: more restrictive with respect to the rights protected under the 432 00:25:26,280 --> 00:25:30,600 Speaker 1: Second Amendment. But because the field has been left wide open, 433 00:25:30,880 --> 00:25:34,560 Speaker 1: this much more conservative court taking up those questions is 434 00:25:34,800 --> 00:25:38,159 Speaker 1: likely to be much more expansive in terms of what's 435 00:25:38,200 --> 00:25:43,760 Speaker 1: protected under the Second Amendment. Affirmative action, it's another area 436 00:25:43,880 --> 00:25:49,080 Speaker 1: that's under assault. You have this conservative group suing Harvard 437 00:25:49,320 --> 00:25:52,879 Speaker 1: that's before the Federal Court of Appeals. You have the 438 00:25:52,880 --> 00:25:59,200 Speaker 1: Trump administration sending letters to Yale University. What's at stake 439 00:25:59,400 --> 00:26:02,320 Speaker 1: as far as if afirmative action is concerned, Well, I 440 00:26:02,359 --> 00:26:07,200 Speaker 1: think what's at stake is the ability of universities to 441 00:26:07,240 --> 00:26:12,480 Speaker 1: be truly committed to racial diversity in their classes. Um. 442 00:26:12,520 --> 00:26:17,720 Speaker 1: And I say that because partly because many universities are 443 00:26:17,760 --> 00:26:21,200 Speaker 1: in fact state owned. The university where I teaches a 444 00:26:21,359 --> 00:26:27,879 Speaker 1: state institution, but even private universities receive government funds, and 445 00:26:27,960 --> 00:26:31,920 Speaker 1: so they're subject to limitations on their ability to engage 446 00:26:32,000 --> 00:26:35,320 Speaker 1: in in fact, prohibitions on their ability to engage in 447 00:26:35,880 --> 00:26:40,639 Speaker 1: discrimination on account of race and so if the Court 448 00:26:40,760 --> 00:26:45,080 Speaker 1: thinks of affirmative action as a form of race discrimination, 449 00:26:45,400 --> 00:26:50,240 Speaker 1: then that's prohibited. And it has long been a central 450 00:26:50,320 --> 00:26:56,000 Speaker 1: tenet of the conservative legal movement that any distinction based 451 00:26:56,080 --> 00:27:02,760 Speaker 1: upon race is discrimination, and so affirmative action is categorically unconstitutional. 452 00:27:03,920 --> 00:27:06,960 Speaker 1: Is the affirmative action hanging in the balance anyway? Would 453 00:27:07,040 --> 00:27:10,240 Speaker 1: Chief Justice Roberts have been a swing vote there? Or 454 00:27:10,960 --> 00:27:12,720 Speaker 1: is it likely that if it reached the court it 455 00:27:12,720 --> 00:27:17,720 Speaker 1: would be stricken down or it would be limited anyway? Yes, 456 00:27:17,840 --> 00:27:21,760 Speaker 1: this is the case that much like abortion UM, the 457 00:27:21,840 --> 00:27:27,520 Speaker 1: conservative majority was was really UM cutting back on the 458 00:27:27,560 --> 00:27:36,359 Speaker 1: ability of universities to make race conscious decisions about admissions UM. So, 459 00:27:36,359 --> 00:27:40,840 Speaker 1: so in a sense that this outcome was as was 460 00:27:40,920 --> 00:27:45,119 Speaker 1: already possible. I think adding a sixth vote, though, to 461 00:27:45,240 --> 00:27:49,199 Speaker 1: the conservative majority, just makes it all the more likely 462 00:27:49,720 --> 00:27:52,800 Speaker 1: that the Court will cut back in a dramatic and 463 00:27:52,920 --> 00:27:59,160 Speaker 1: sweeping fashion that makes it virtually impossible for any university 464 00:27:59,240 --> 00:28:04,679 Speaker 1: to engage in race conscious admissions decisions. And I I 465 00:28:04,800 --> 00:28:07,800 Speaker 1: just have to note how out of step that is 466 00:28:07,880 --> 00:28:10,440 Speaker 1: with where the country seems to be right now. And 467 00:28:10,600 --> 00:28:16,520 Speaker 1: this just ended summer of of upheaval over issues of 468 00:28:16,680 --> 00:28:20,439 Speaker 1: racial justice. For the Court to step in and take 469 00:28:20,920 --> 00:28:25,600 Speaker 1: this entirely off the table affirmative action as a remedy, 470 00:28:25,920 --> 00:28:29,560 Speaker 1: entirely off the table. UM. It would apply not just 471 00:28:29,720 --> 00:28:33,920 Speaker 1: in the context of university admitted admissions, but to any 472 00:28:33,960 --> 00:28:38,200 Speaker 1: government action, and so potentially to a range of government 473 00:28:38,240 --> 00:28:43,040 Speaker 1: actions that are aimed at trying to respond to the 474 00:28:43,200 --> 00:28:49,760 Speaker 1: very legitimate calls for racial equity and justice. Finally, let's 475 00:28:49,920 --> 00:28:53,760 Speaker 1: talk about religious rights. And it seems that the Court 476 00:28:53,840 --> 00:28:58,360 Speaker 1: has been expanding religious rights for some time. Certainly in 477 00:28:58,360 --> 00:29:01,600 Speaker 1: the cases that came up this this term, they expanded 478 00:29:01,640 --> 00:29:05,719 Speaker 1: religious rights. So how would having another conservative on the 479 00:29:05,760 --> 00:29:10,920 Speaker 1: court change that or amplify what they're doing. Well, I 480 00:29:10,960 --> 00:29:14,680 Speaker 1: think you're right to suggest it would amplify rather than change. 481 00:29:15,000 --> 00:29:17,560 Speaker 1: So the Court had been moving in a direction that 482 00:29:17,760 --> 00:29:23,600 Speaker 1: was expansively protective of free exercise rights asserted not just 483 00:29:23,720 --> 00:29:30,320 Speaker 1: by individuals but even strangely enough by corporations. UM, and 484 00:29:30,440 --> 00:29:34,520 Speaker 1: those moves are still at a very kind of early stage. 485 00:29:35,040 --> 00:29:41,240 Speaker 1: So I think adding a sixth conservative just amplifies, UM, 486 00:29:41,400 --> 00:29:47,640 Speaker 1: amplifies that voice, and makes possible down the road UM, 487 00:29:47,640 --> 00:29:50,720 Speaker 1: extensions of these principles that I think might not have 488 00:29:50,840 --> 00:29:54,840 Speaker 1: been available if there were only five Conservatives, with one 489 00:29:55,160 --> 00:29:58,920 Speaker 1: occasionally willing to swing to the other side. Are there 490 00:29:58,960 --> 00:30:04,200 Speaker 1: any area is where people are not expecting changes where 491 00:30:04,680 --> 00:30:09,200 Speaker 1: a conservative court might change things. Yeah, well, at least 492 00:30:09,240 --> 00:30:13,040 Speaker 1: one sort of immediately suggests itself, And that's the Supreme 493 00:30:13,040 --> 00:30:16,520 Speaker 1: Court's decision in Alberta Fell versus Hodges, the case that 494 00:30:17,040 --> 00:30:22,120 Speaker 1: legalized same sex marriage, or more accurately, forbid states to 495 00:30:22,240 --> 00:30:26,840 Speaker 1: prohibit same sex marriages. Um. That case was decided by 496 00:30:26,880 --> 00:30:30,520 Speaker 1: a five to four majority, with Justice Kennedy swinging to 497 00:30:30,600 --> 00:30:35,480 Speaker 1: the liberals and providing the decisive vote. With him having 498 00:30:35,520 --> 00:30:41,760 Speaker 1: been replaced by Justice core Such and adding a new 499 00:30:41,800 --> 00:30:47,400 Speaker 1: Conservative justice to replace Justice Ginsburg, there are potentially six 500 00:30:47,920 --> 00:30:52,960 Speaker 1: votes to overrule Alberta Fell versus Hodges. So, while there's 501 00:30:52,960 --> 00:30:56,400 Speaker 1: been a real spotlight on Roe versus Wade, and justly so, 502 00:30:56,480 --> 00:30:59,640 Speaker 1: I think, um, once this confirmation goes through, if it 503 00:30:59,720 --> 00:31:04,640 Speaker 1: does is ro versus Wade, is is is toast um. 504 00:31:05,200 --> 00:31:08,880 Speaker 1: But I think attention can quickly turn from that to 505 00:31:09,200 --> 00:31:14,040 Speaker 1: overruling the same sex marriage case. Um, the votes are 506 00:31:15,680 --> 00:31:21,080 Speaker 1: potentially there. I say not just potentially, but it would 507 00:31:21,080 --> 00:31:25,080 Speaker 1: appear that the votes are there. Um unless there's something 508 00:31:25,600 --> 00:31:29,840 Speaker 1: that makes the Court uneasy about overruling its precedents, But 509 00:31:29,920 --> 00:31:33,120 Speaker 1: if they're willing to overrule Row, why wouldn't they be 510 00:31:33,160 --> 00:31:36,440 Speaker 1: willing to overrule Burga Fell. Thanks for being on the 511 00:31:36,480 --> 00:31:40,000 Speaker 1: Bloomberg Law Show, Neil. That's Neil Kincaugh, a professor at 512 00:31:40,000 --> 00:31:43,520 Speaker 1: the Georgia State University College of Law. And that's it 513 00:31:43,600 --> 00:31:46,320 Speaker 1: for this edition of the Bloomberg Law Show. Remember you 514 00:31:46,320 --> 00:31:48,640 Speaker 1: can always get the latest legal news on our Bloomberg 515 00:31:48,720 --> 00:31:52,240 Speaker 1: Law Podcast. You can find them on iTunes, SoundCloud, or 516 00:31:52,280 --> 00:31:56,840 Speaker 1: at Bloomberg dot com slash podcast Slash Law. I'm June Grasso. 517 00:31:57,120 --> 00:31:59,520 Speaker 1: Thanks so much for listening, and remember to tune to 518 00:31:59,520 --> 00:32:02,320 Speaker 1: The Bloomberg Blow Show every weeknight at ten pm Eastern 519 00:32:02,520 --> 00:32:03,760 Speaker 1: right here on Bloomberg Radio.