Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: For the first time in history, it became possible to
Speaker 1: urge before courts successfully that equal justice under law requires
Speaker 1: all arms of government to be God women as persons
Speaker 1: equal in stature two men. Long before she became a
Speaker 1: justice at the age of sixty, Ruth Bader Ginsburg dedicated
Speaker 1: her career to advancing the rights of women. Ginsberg had
Speaker 1: argued cases before the Court as a scholar and advocate
Speaker 1: of the women's rights movement. Once on the Court, she
Speaker 1: built a record as one of the most liberal members,
Speaker 1: supporting not only women's rights, but gay rights, abortion rights,
Speaker 1: and restrictions on the death penalty. Her work as a
Speaker 1: jurist was marked by her concern for the people the
Speaker 1: law affected. As she explained at the University of Buffalo
Speaker 1: in t at RBG Day, it's important to realize that
Speaker 1: law is not some kind of abstract exercise. It affects
Speaker 1: real people and gudition. Be cognizant of how the law
Speaker 1: affects the people that law is meant to serve. So
Speaker 1: how will the court change? How will the law change
Speaker 1: if a conservative justice takes the place of Justice Ginsburg
Speaker 1: joining me as constitutional law scholar Stephen Vladdock, a professor
Speaker 1: at the University of Texas Law School. Steve how will
Speaker 1: putting another conservative on the Court affects Supreme Court jurisprudence
Speaker 1: in the years to come. There's no question that if
Speaker 1: President Trump is able to get a conservative confirmed to Succeedsburg,
Speaker 1: it's going to move the Court really as far to
Speaker 1: the right as we can remember it, certainly as far
Speaker 1: as the right as it was at the beginning of
Speaker 1: the New Deal when it constantly awarded many of President
Speaker 1: Roosevelt's initiatives. But you know, June perhaps even more conservative
Speaker 1: than that, and that's going to have obvious and participle
Speaker 1: impacts on everything from religious liberty to abortion, to the
Speaker 1: separation of powers. I mean, across the spectrum of constitutional
Speaker 1: and legal questions. We're looking at the court that's going
Speaker 1: to be very, very conservative for quite some time. Chief
Speaker 1: Justice Roberts moves in increments with another conservative justice, do
Speaker 1: you see those changes happening more swiftly? I mean, I
Speaker 1: think it's possible. You know, there's no question that Chief
Speaker 1: Justice Roberts has shown, especially in the last couple of years,
Speaker 1: that he has a real institutionalist streak that sometimes leads
Speaker 1: him to vote in ways that might be different from
Speaker 1: how he'd actually vote if it were purely about what
Speaker 1: he thinks the right answer is on the merits. With
Speaker 1: a sixth conservative justice on the court, too, that marginalizes
Speaker 1: the Chief Justice, and it means that the Conservatives can
Speaker 1: lose him or Justice Corsage or Kavanaugh and still have
Speaker 1: a majority in any one of these cases. And so
Speaker 1: it's going to take two of the Conservatives to cross
Speaker 1: over and join the professives in any of the sort
Speaker 1: of conventionally divisive cases for us to see anything other
Speaker 1: than just conservative hit gemini on the court. We saw
Speaker 1: that this term right mean the Bostock case, of course,
Speaker 1: was six to three, not five to four with Justice
Speaker 1: Course and the Chief Justice joining. So then for professive justice.
Speaker 1: But June, those cases are going to be the exception,
Speaker 1: not the rule, Bostock being a landmark decision on LGBT rights. Now,
Speaker 1: in the past term, Justice Brett Kavanaugh only joined the
Speaker 1: Court's liberals in a five to four ruling in one case,
Speaker 1: an antitrust dispute. Yet some legal observers are speculating that
Speaker 1: Kavanaugh will be at the center the swing vote in
Speaker 1: a more conservative court. Do you agree with that? I
Speaker 1: don't do not in the way that we saw it
Speaker 1: with you know, Justice Kennedy obviously for better part of
Speaker 1: twelve years, and with the Chief Justice the last couple
Speaker 1: of years. I think what we're gonna see as more
Speaker 1: akin to prior periods in the Court's history where there
Speaker 1: were two or three justices who were potentially thus twins.
Speaker 1: So you know, I think in some cases the most
Speaker 1: likely justice to perhaps join the progressives might be Justice
Speaker 1: score Stitched. In some cases it might be Justice count Moment.
Speaker 1: Some kids might be the Chief. But again, you're gonna
Speaker 1: need two of them, and that's that thinks The critical
Speaker 1: difference is it's not just a swing of justice anymore.
Speaker 1: That's for the conservative majority to actually not win cases
Speaker 1: that are going to divide along ideological lines, there's gonna
Speaker 1: need to swin justices. That's a very different calculation. It
Speaker 1: leads to very different internal politicking, and I think it's
Speaker 1: not hard to imagine how it's going to produce a
Speaker 1: heck of a lot fewer surprized crossover votes in the
Speaker 1: years to come. Justice Ginsburg was the leader of the
Speaker 1: Court's liberal block. Who will be the leader of the
Speaker 1: Court's conservative block. Yeah, I mean, I think there's gonna
Speaker 1: be some real split and perhaps even some tension among
Speaker 1: the six conservative justices. Obviously, I think the Chief is
Speaker 1: still going to have a heck of a lot of both,
Speaker 1: you know, sort of formal and informal authority. It's still
Speaker 1: going to be his call when he's in the majority,
Speaker 1: who gets the opinion assignment. He still has a lot
Speaker 1: of I think, administrative control over the Court. But I
Speaker 1: think there's going to be some buy in for control
Speaker 1: of that coalition among different justices. Does this mean that
Speaker 1: there are now five votes for some of the ideas
Speaker 1: that the Chief wasn't necessarily quick woman signed off on,
Speaker 1: for example, in garden cases? If so, you know the
Speaker 1: justice a leado who leaves as a Justice Thomas. I
Speaker 1: think it's going to be some interesting behind the scenes
Speaker 1: machinations among this new conservative majority. But you know, June,
Speaker 1: all that's really going to accept the day and today
Speaker 1: is how these opinions are written. I don't think it's
Speaker 1: going to actually affect the results. Steve, does this mean
Speaker 1: new uncertainty about the fate of Obamacare? That law has
Speaker 1: headed to the Supreme Court for the third time, with
Speaker 1: arguments scheduled the week after the election. When this case
Speaker 1: was first decided by a Texas judge, many legal experts
Speaker 1: called it an outlier and a fluke. But is Obamacare
Speaker 1: now in jeopardy? So I'm asking, you know, Justice Ginsburg.
Speaker 1: Passing and replacement I think changes the stakes a little bit.
Speaker 1: But I mean, I think keep in mind, you know what,
Speaker 1: when folks thought, okay, it's not going to go anywhere,
Speaker 1: the question in that case, which is I think mal
Speaker 1: capting what California University textis, is not really about the
Speaker 1: individual mandate. I mean, I think even California, I think,
Speaker 1: except that the court very well might strike down the
Speaker 1: usual mandate. Now the question is what happened as a result.
Speaker 1: Does the rest of the statute fall? And this is
Speaker 1: the so called severability questions? And I think, you know,
Speaker 1: the presumption before justice cans grow passed away is that
Speaker 1: there were no more than four votes for the really
Speaker 1: really wacky, to my mind, almost specious separability argument that
Speaker 1: requires the entire statute to be thrown out, including the
Speaker 1: Medicaid expansion, including coverage for preexisting conditions, including things that
Speaker 1: have nothing at all to do with the individual mandate.
Speaker 1: But the problem is, now four votes might be enough
Speaker 1: because if the court splits forward to four, if this
Speaker 1: happens before the new justice is converted, then that would
Speaker 1: affirm the lower court decision. You know, the Fifth Circuit
Speaker 1: had basically agreed with the disreport but said that back
Speaker 1: to reconsider separability analysis. So you know, I guess the
Speaker 1: short version is, I'm still not convinced that there are
Speaker 1: four votes for that wacky severability holding. But whereas before
Speaker 1: there was no scenario where four ward have been enough,
Speaker 1: now the scenario it might be, and that that's I
Speaker 1: think that's how the fix obtainion. The Court has had
Speaker 1: many rulings on social equality issues over the past decade,
Speaker 1: gay marriage being one of them. There's a more conservative
Speaker 1: court likely to extend those rulings or reverse them, for example,
Speaker 1: the gay marriage decision in No Burger Feild you know didn't.
Speaker 1: It's a good question. I think we ought to be
Speaker 1: careful about the difference between extending these rulings and not
Speaker 1: reversing them, because those are two very different responses. I
Speaker 1: certainly don't expect a new sixth Justice conservative majority to
Speaker 1: do anything to expand upon Burgo Fell or boss Stop
Speaker 1: or any of other cases. But I'm also not sure
Speaker 1: that they'll be in a hurry to overrule them to
Speaker 1: quite same degree as other cases. I mean, I think,
Speaker 1: you know, there is some danger in just sort of
Speaker 1: knee jerk overruling of cases you don't like when it
Speaker 1: comes to the public perception of the court. When it
Speaker 1: comes to course legitimacy. You know, I think the Court
Speaker 1: will still be worried about provoking too much of a
Speaker 1: backlash if as opposed to expend in their precedent, they
Speaker 1: start actually just getting rid of them very atom and
Speaker 1: you know, it's very possible to kind find how the
Speaker 1: election goes this November, that that's the kind of backlash
Speaker 1: the Court is going to be ill ill inclined to provoke.
Speaker 1: Is abortion Is Roe v. Wade included in that? No,
Speaker 1: I mean, I think Row, You know, I think Row
Speaker 1: is trickier because I think Row is first of all,
Speaker 1: Rowe has been so controversial for so long, and the
Speaker 1: Court has shipped away so thoroughly at it already, and
Speaker 1: it's clearly such a critical part of what's motivating the conservatives,
Speaker 1: you know, to get this pick through now is to
Speaker 1: finally get rid of Row. So but June, the price
Speaker 1: they might pay for overturning Row, or at least reducing
Speaker 1: it to the normal is not there is an inability
Speaker 1: to do that multiple other times. I mean, I think
Speaker 1: a court that spends next five years it's overturning one
Speaker 1: progressive president after another, It's going to be a court
Speaker 1: that I think really starts to lose some legitimacy in
Speaker 1: the eyes of a large chunk of the American population.
Speaker 1: President Trump says he's going to a point to a woman,
Speaker 1: and he has a list of very conservative juris. Does
Speaker 1: it matter which woman on that list he chooses. Is
Speaker 1: one more conservative than the other? Is one likely to
Speaker 1: affect the court more than the other? I think that
Speaker 1: the difference between them will probably cash out in you know,
Speaker 1: a small number of cases over time where just like
Speaker 1: Seis Kavanaugh in the Apple antitrust case, like, there are
Speaker 1: gonna be idiosyncratic areas where any one of the conservatives
Speaker 1: might be inclined anyone is the progressive um. And that's
Speaker 1: true I think for any of the folks on the
Speaker 1: President's shortlist. I think the the larger point, though, is
Speaker 1: that those cases are all gonna the outliers June, and
Speaker 1: that you know there's going to be a solid six
Speaker 1: justice block in most cases, and a block that can
Speaker 1: afford to lose one of them in all cases, and
Speaker 1: that the only cases where we're really going to see
Speaker 1: something weird happened is where you actually lose two of
Speaker 1: those six Conservatives. And again, I mean, just looking back
Speaker 1: at the last couple of terms, the only high profile
Speaker 1: example of that where you know too, but only two
Speaker 1: of the Conservatives crossed over in a high profile case
Speaker 1: was the boss Stock Title seven case. So now a
Speaker 1: lot of the talk from Democrats and progressive has been, well,
Speaker 1: if we get the White House, if we take over
Speaker 1: the Senate, then let's expand the court. It's not surprising
Speaker 1: that that's where these folks are. But I think, you know,
Speaker 1: that's a very short term reaction as opposed to long
Speaker 1: term right that that it seems to me that we
Speaker 1: should be thinking about both the short term. In the
Speaker 1: long term, expand the Supreme Court maybe emotionally satisfying in
Speaker 1: the short term. The problem is is that you know,
Speaker 1: once you cross that group of con then the next
Speaker 1: time the Republicans are in power, they expand the court,
Speaker 1: and then the Democrats expand the court in response, and
Speaker 1: so like fifty years from now, the court has thirty
Speaker 1: seven justices and no legitimacy. And so since that, the
Speaker 1: much more significant conversation has is, you know, how do
Speaker 1: we sort of think long term about ways of having
Speaker 1: less turn on the actuarial tables and on the fact
Speaker 1: that you know, people pass away at different and unfrifcable times.
Speaker 1: You know, should we scale back some of the Court's jurisdiction.
Speaker 1: Should there be cases that the Court has traditionally heard
Speaker 1: that we don't want to hear anymore. And I think
Speaker 1: there's there are a lot of court reforms that we
Speaker 1: ought to be discussed in the notion that we should
Speaker 1: expand the court just because Democrats can you know, I
Speaker 1: understand the impulse, and I just think it's very shortsighted.
Speaker 1: What about the Democrats argument that the Republicans haven't been
Speaker 1: playing by traditional rules. First, they stopped Merrick Garland from
Speaker 1: even getting an up or down vote. Now are changing
Speaker 1: the rules that they said were in place for Merrick Garland.
Speaker 1: So the Democratic argument is the Republicans have already messed
Speaker 1: with the process and made this political. It sounds tried
Speaker 1: to say two wrongs don't make a right, but I
Speaker 1: mean i'shing to day is just again, I think we
Speaker 1: have to keep you know, we have to sort of
Speaker 1: carefully think through the long term implications of such a move.
Speaker 1: And you know, if the Democrats say today we're justifying
Speaker 1: the stay on the court to eleven or thirteen justices,
Speaker 1: of course the Republicans will say tomorrow and then we're
Speaker 1: justified and standing of the seventeen. And you know, once again,
Speaker 1: this is why I think, you know, we have to
Speaker 1: think both shorts from and long term. You know, there
Speaker 1: are ways, I think, to respond to the norm destructive
Speaker 1: behavior of Republicans when it's come to the Supreme Court
Speaker 1: in the last four years. There are ways to respond
Speaker 1: to the hypocrisy of Republican senators who swore on a
Speaker 1: stack in tween that their opposition to fill in the
Speaker 1: Scalia seat was categorical and it was not just because
Speaker 1: it was President Obama who was nominating him. But I
Speaker 1: don't think that's the way to do that, June is
Speaker 1: to open the door to destroying the court. So one
Speaker 1: suggestion for changing the court is to put in term
Speaker 1: limits for the justices. In fact, House Democrats are planning
Speaker 1: to introduce legislation next week to limit justice's terms to
Speaker 1: eighteen years. There are other ideas, but tell us about
Speaker 1: limiting the jurisdiction of the court. How would that work? Yeah,
Speaker 1: I mean, you know, Congress has a heck of a
Speaker 1: lot of control over much of what the Supreme Court does.
Speaker 1: Coldress control the size of the court. Coloss controls when
Speaker 1: it sits Colgress controls what cases it hears, and so
Speaker 1: I think, you know, one of the thames Congress could
Speaker 1: consider is whether there are categories of cases that should
Speaker 1: now you know, perhaps be taken away from the Supreme Court.
Speaker 1: Are there? We want the Supreme courtside in more cases
Speaker 1: the courts'sie in different cases. You know, Congress, since really
Speaker 1: thees June has largely gotten out of the business of
Speaker 1: playing that sort of ongoing roles in tailoring and to
Speaker 1: finding the Supreme Court's jurisdiction, maybe it's time for Congress
Speaker 1: to get back into that business. I mean, I think,
Speaker 1: you know, the bottom line is that there's a heck
Speaker 1: of a lot Congress could do to, you know, try
Speaker 1: to sort of curb some of the excess of the
Speaker 1: Supreme Court before it starts, Adam, and that's you know,
Speaker 1: the notion that that it's at But I think is
Speaker 1: what's misleading here. There's actually a bunch of structural court
Speaker 1: reforms that I think we can should consider before we start.
Speaker 1: Adam chairs to the bench. Thanks for being on the
Speaker 1: Bloomberg Law Show, Steve. That's constitutional law Professor Stephen Vladdock
Speaker 1: of the University of Texas Law School. As testament to
Speaker 1: one Asia's promise, the daughter and granddaughter of immigrants, SIT's
Speaker 1: a lihest court in the land. Justice Ruth Bader Ginsburg
Speaker 1: wrote landmark opinions that advanced gender equality and rights were
Speaker 1: disabled Americans and immigrants. She was proud of her background
Speaker 1: and spoke about it when she was honored by the
Speaker 1: American Law Institute. What is it differ minutes between a
Speaker 1: bookkeeper in New York City's Comment District and the Supreme
Speaker 1: Court Justice? One generation? My life bears witness the difference
Speaker 1: between the opportunities open to my mother and those open
Speaker 1: to me. The late Supreme Court justice made history and
Speaker 1: death as she did in life. When she was honored
Speaker 1: on Friday as the first woman to lie in state
Speaker 1: at the US Capitol. Here's how Speaker Nancy Pelosi, it
Speaker 1: is with profound sorrow and deep sympathy to the Ginsburg
Speaker 1: family that I have the high honor to welcome Justice
Speaker 1: Ruth Bader Ginsburg to lie in state and the capital
Speaker 1: of the United States. Will conservatives legal fantasies soon become realities?
Speaker 1: How will another conservative justice on the Supreme Court change
Speaker 1: the law? Joining me? As Neil Kinkoff, a professor at
Speaker 1: the Georgia's Day University College of Law, Neil in general,
Speaker 1: how would adding another conservative justice change the court? Well,
Speaker 1: the general impact will be to move the court dramatically
Speaker 1: to the right. So for the last about ten years,
Speaker 1: before Anthony Kennedy retired, the court was really known as
Speaker 1: the Kennedy Court because he was the swing vote and
Speaker 1: in all of the pivotal cases he would cast the
Speaker 1: deciding vote, so he pretty well determined the direction of
Speaker 1: the court. After his retirement, there was concerned that him
Speaker 1: being replaced by Justice Gorsuch would really cement the hold
Speaker 1: of the right wing on the court. But then Justice
Speaker 1: Roberts played the role of the swing vote and the
Speaker 1: turn to the right wasn't nearly so decisive. So right
Speaker 1: now there's a five to four conservative majority on the Court,
Speaker 1: but it's not as solid as I think people assumed
Speaker 1: it would be because Roberts has in a number of
Speaker 1: high profile cases UM sided with the liberal wing. UM.
Speaker 1: But with Ginsburg leaving, that makes it five to three.
Speaker 1: And if she's replaced by a very conservative judge, and
Speaker 1: all of those on the short list are very conservative,
Speaker 1: that makes the majority six to three. And even if
Speaker 1: Chief Justice Roberts continues to occasionally side with the liberal wing,
Speaker 1: that side would still lose by a vote of five
Speaker 1: to four UM. So that the Court would become very
Speaker 1: solidly very conservative. When we look at how a more
Speaker 1: conservative court would change the law, the first thing that
Speaker 1: seems to be at risk is Obamacare because the Supreme
Speaker 1: Court is holding oral arguments the week after the election
Speaker 1: on the Trump administration trying to have the Court declared
Speaker 1: the law invalid. What do you think the fate of
Speaker 1: Obamacare would have been with RBG on the court and
Speaker 1: now without RBG on the court? Sure, so her her
Speaker 1: vote was crucial to upholding Obamacare. UM that she wasn't
Speaker 1: the swing vote, right, That was really Chief Justice Roberts
Speaker 1: who added his vote to the four liberals, but now
Speaker 1: without Justice ginsburg Um, if if she is replaced by
Speaker 1: a reliable conservative, then that means that Obamacare can be
Speaker 1: struck down on any number of different grounds. When this
Speaker 1: first came out, this Obamacare lawsuit, it was considered almost
Speaker 1: a silly lawsuit. Most you know, legal experts were saying
Speaker 1: that it would never stand up. How did we get
Speaker 1: to the Supreme Court in this point? Right? Because conservative
Speaker 1: jurists have been committed to the destruction of Obamacare, and
Speaker 1: no argument is too frivolous to that end um. And
Speaker 1: so this is an example of it. Had this case
Speaker 1: come to the Supreme Court back when the Supreme Court
Speaker 1: first ruled on Obamacare, I would not have been surprised
Speaker 1: if it had gotten zero votes. Um. But now I
Speaker 1: wouldn't be at all surprised to see it kept five.
Speaker 1: A lot of legal articles are talking about Kavanaugh as
Speaker 1: now the swing vote on this particular topic. In other contexts,
Speaker 1: he has been reluctant to throw out the entire law.
Speaker 1: So is it possible that the Justices might agree to
Speaker 1: sever that portion of the law and leave the law
Speaker 1: in place. I think that's really unlikely. I understand Justice
Speaker 1: Kavanaugh may not want, given the controversy around his appointment,
Speaker 1: may not want to be the decisive vote to strike
Speaker 1: down Obamacare. Um, but that's the only thing I can
Speaker 1: think that would incline him towards keeping it in place.
Speaker 1: And now, abortion rights, this is what comes up every
Speaker 1: time there is a court appointment, and it seems as
Speaker 1: if abortion rights were in jeopardy even before the death
Speaker 1: of RBG. It seems as if there's been an incremental
Speaker 1: approach to abortion rights. No one is saying, let's reverse
Speaker 1: Roe v. Wade. Might that change with a more conservative court? Yes,
Speaker 1: I think it will change with a more conservative court.
Speaker 1: The incremental changes have been all from the time of
Speaker 1: Rope forward have all been towards reducing the scope of
Speaker 1: the right to an abortion. So um. The really operative
Speaker 1: decision was the decision in the early nineties in a
Speaker 1: case called Casey, where the Supreme Court formally upheld Rowe
Speaker 1: but replaced it with an undue burden standard. And since
Speaker 1: that case was decided now nearly thirty years ago, the
Speaker 1: Court has accepted all kinds of different regulations of abortion
Speaker 1: that make it virtually impossible bull in some states to
Speaker 1: access an abortion. But the Supreme Court has upheld those
Speaker 1: saying they're not an undue burden um. The the loan
Speaker 1: exception to that is a case from a few years
Speaker 1: ago from Texas, where Texas imposed regulations that are so
Speaker 1: burdensome that it would become impossible for abortion clinics to
Speaker 1: operate in Texas. In that case, the Supreme Court, with
Speaker 1: Justice Kennedy casting the swing and deciding vote, struck down
Speaker 1: Texas law. That set of laws was also adopted by Louisiana,
Speaker 1: and in the case that the Court decided last year,
Speaker 1: the Court stuck with its precedent um, and that time
Speaker 1: it was Justice Roberts who provided the swing vote only
Speaker 1: on the ground that he thought, by Starry decisive, he
Speaker 1: should stick with the president, and no one had asked
Speaker 1: them to reconsider Row versus Way. Now. That case then
Speaker 1: sort of amounted to an invitation to parties that directly
Speaker 1: ask for the Court to overrule Row. And if there
Speaker 1: is now a sixth conservative justice on the Court, it
Speaker 1: is all but a foregone conclusion that the Supreme Court
Speaker 1: will over rule Row versus Way. Just I want to
Speaker 1: clarify one thing. That doesn't mean that states can't have
Speaker 1: laws that allow abortions. It just means that states have
Speaker 1: decision up to them. That's right. Um. It allows the
Speaker 1: states to make their own determination. Now, gun rights, The
Speaker 1: Court attempted to take up a gun rights case last term,
Speaker 1: but it turned out to be moot. They haven't decided
Speaker 1: a gun case in a decade. What kind of rights
Speaker 1: are on the table here now? So the Supreme Court held,
Speaker 1: um that the Second Amendment protects an individual's right to
Speaker 1: possess a gun in their home for purposes of self protection,
Speaker 1: that that is something that cannot be forbidden to them.
Speaker 1: But it didn't hold anything beyond that right. So that
Speaker 1: it decided, I think it was in two thousand and
Speaker 1: five UM. And then the the subsequent case was a
Speaker 1: case that held that that right applies not only against
Speaker 1: the federal government and federal regulation, but against state governments
Speaker 1: and state regulations as well. They have not told us
Speaker 1: sort of any more than that, just what the Second
Speaker 1: Amendment protects? So does it protect the right to possess
Speaker 1: a handgun outside the house when you're walking down the street.
Speaker 1: Does it protect your right to have one when you're
Speaker 1: at work? Does it protect your right to have one
Speaker 1: if you're on an airplane or in an airport? Does
Speaker 1: it protect weapons other than handguns? Right? So, the Court
Speaker 1: in its original decision emphasized that handguns are in fact
Speaker 1: the most common weapon chosen for self protection. So would
Speaker 1: it apply to other weapons, to semi automatic um um firearms?
Speaker 1: Does it apply to restrictions on magazines and magazine capacity,
Speaker 1: or to the nature of of of the bullets right,
Speaker 1: hollow tip bullets and so called cop killer bullets and
Speaker 1: and things like that, um? Right? And where does it apply? Right?
Speaker 1: Does it apply in national parks? Does it apply? So?
Speaker 1: There are many, many questions that have been left unanswered,
Speaker 1: and one of the principal legal questions to answer that
Speaker 1: will help the court resolve those those more specific disputes
Speaker 1: I've just been talking about, is what standard of review
Speaker 1: to apply? Right? What level of protection is going to
Speaker 1: be given to the right to possess um, to possess
Speaker 1: arms for purposes of self defense? Is that subject to
Speaker 1: merely rational basis scrutiny? Does the court apply strict scrutiny?
Speaker 1: Should the Court come up with some different level of
Speaker 1: scrutiny that's in between rational basis and strict scrutiny? Um?
Speaker 1: And so those are all really important legal questions that
Speaker 1: that first case left open and the Court hasn't returned
Speaker 1: to since. Um. You know, had the court addressed those
Speaker 1: questions early on, I think it would have been much
Speaker 1: more restrictive with respect to the rights protected under the
Speaker 1: Second Amendment. But because the field has been left wide open,
Speaker 1: this much more conservative court taking up those questions is
Speaker 1: likely to be much more expansive in terms of what's
Speaker 1: protected under the Second Amendment. Affirmative action, it's another area
Speaker 1: that's under assault. You have this conservative group suing Harvard
Speaker 1: that's before the Federal Court of Appeals. You have the
Speaker 1: Trump administration sending letters to Yale University. What's at stake
Speaker 1: as far as if afirmative action is concerned, Well, I
Speaker 1: think what's at stake is the ability of universities to
Speaker 1: be truly committed to racial diversity in their classes. Um.
Speaker 1: And I say that because partly because many universities are
Speaker 1: in fact state owned. The university where I teaches a
Speaker 1: state institution, but even private universities receive government funds, and
Speaker 1: so they're subject to limitations on their ability to engage
Speaker 1: in in fact, prohibitions on their ability to engage in
Speaker 1: discrimination on account of race and so if the Court
Speaker 1: thinks of affirmative action as a form of race discrimination,
Speaker 1: then that's prohibited. And it has long been a central
Speaker 1: tenet of the conservative legal movement that any distinction based
Speaker 1: upon race is discrimination, and so affirmative action is categorically unconstitutional.
Speaker 1: Is the affirmative action hanging in the balance anyway? Would
Speaker 1: Chief Justice Roberts have been a swing vote there? Or
Speaker 1: is it likely that if it reached the court it
Speaker 1: would be stricken down or it would be limited anyway? Yes,
Speaker 1: this is the case that much like abortion UM, the
Speaker 1: conservative majority was was really UM cutting back on the
Speaker 1: ability of universities to make race conscious decisions about admissions UM. So,
Speaker 1: so in a sense that this outcome was as was
Speaker 1: already possible. I think adding a sixth vote, though, to
Speaker 1: the conservative majority, just makes it all the more likely
Speaker 1: that the Court will cut back in a dramatic and
Speaker 1: sweeping fashion that makes it virtually impossible for any university
Speaker 1: to engage in race conscious admissions decisions. And I I
Speaker 1: just have to note how out of step that is
Speaker 1: with where the country seems to be right now. And
Speaker 1: this just ended summer of of upheaval over issues of
Speaker 1: racial justice. For the Court to step in and take
Speaker 1: this entirely off the table affirmative action as a remedy,
Speaker 1: entirely off the table. UM. It would apply not just
Speaker 1: in the context of university admitted admissions, but to any
Speaker 1: government action, and so potentially to a range of government
Speaker 1: actions that are aimed at trying to respond to the
Speaker 1: very legitimate calls for racial equity and justice. Finally, let's
Speaker 1: talk about religious rights. And it seems that the Court
Speaker 1: has been expanding religious rights for some time. Certainly in
Speaker 1: the cases that came up this this term, they expanded
Speaker 1: religious rights. So how would having another conservative on the
Speaker 1: court change that or amplify what they're doing. Well, I
Speaker 1: think you're right to suggest it would amplify rather than change.
Speaker 1: So the Court had been moving in a direction that
Speaker 1: was expansively protective of free exercise rights asserted not just
Speaker 1: by individuals but even strangely enough by corporations. UM, and
Speaker 1: those moves are still at a very kind of early stage.
Speaker 1: So I think adding a sixth conservative just amplifies, UM,
Speaker 1: amplifies that voice, and makes possible down the road UM,
Speaker 1: extensions of these principles that I think might not have
Speaker 1: been available if there were only five Conservatives, with one
Speaker 1: occasionally willing to swing to the other side. Are there
Speaker 1: any area is where people are not expecting changes where
Speaker 1: a conservative court might change things. Yeah, well, at least
Speaker 1: one sort of immediately suggests itself, And that's the Supreme
Speaker 1: Court's decision in Alberta Fell versus Hodges, the case that
Speaker 1: legalized same sex marriage, or more accurately, forbid states to
Speaker 1: prohibit same sex marriages. Um. That case was decided by
Speaker 1: a five to four majority, with Justice Kennedy swinging to
Speaker 1: the liberals and providing the decisive vote. With him having
Speaker 1: been replaced by Justice core Such and adding a new
Speaker 1: Conservative justice to replace Justice Ginsburg, there are potentially six
Speaker 1: votes to overrule Alberta Fell versus Hodges. So, while there's
Speaker 1: been a real spotlight on Roe versus Wade, and justly so,
Speaker 1: I think, um, once this confirmation goes through, if it
Speaker 1: does is ro versus Wade, is is is toast um.
Speaker 1: But I think attention can quickly turn from that to
Speaker 1: overruling the same sex marriage case. Um, the votes are
Speaker 1: potentially there. I say not just potentially, but it would
Speaker 1: appear that the votes are there. Um unless there's something
Speaker 1: that makes the Court uneasy about overruling its precedents, But
Speaker 1: if they're willing to overrule Row, why wouldn't they be
Speaker 1: willing to overrule Burga Fell. Thanks for being on the
Speaker 1: Bloomberg Law Show, Neil. That's Neil Kincaugh, a professor at
Speaker 1: the Georgia State University College of Law. And that's it
Speaker 1: for this edition of the Bloomberg Law Show. Remember you
Speaker 1: can always get the latest legal news on our Bloomberg
Speaker 1: Law Podcast. You can find them on iTunes, SoundCloud, or
Speaker 1: at Bloomberg dot com slash podcast Slash Law. I'm June Grasso.
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