WEBVTT - How the Law Will Change with a More Conservative Court 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:07.200 --> 0:00:11.760 For the first time in history, it became possible to 0:00:11.880 --> 0:00:22.279 urge before courts successfully that equal justice under law requires 0:00:22.640 --> 0:00:28.080 all arms of government to be God women as persons 0:00:28.080 --> 0:00:33.960 equal in stature two men. Long before she became a 0:00:34.080 --> 0:00:37.800 justice at the age of sixty, Ruth Bader Ginsburg dedicated 0:00:37.800 --> 0:00:41.080 her career to advancing the rights of women. Ginsberg had 0:00:41.159 --> 0:00:44.160 argued cases before the Court as a scholar and advocate 0:00:44.200 --> 0:00:47.080 of the women's rights movement. Once on the Court, she 0:00:47.120 --> 0:00:49.680 built a record as one of the most liberal members, 0:00:49.720 --> 0:00:53.240 supporting not only women's rights, but gay rights, abortion rights, 0:00:53.280 --> 0:00:56.120 and restrictions on the death penalty. Her work as a 0:00:56.200 --> 0:00:58.880 jurist was marked by her concern for the people the 0:00:59.000 --> 0:01:02.560 law affected. As she explained at the University of Buffalo 0:01:02.600 --> 0:01:07.080 in t at RBG Day, it's important to realize that 0:01:07.280 --> 0:01:12.400 law is not some kind of abstract exercise. It affects 0:01:13.160 --> 0:01:19.880 real people and gudition. Be cognizant of how the law 0:01:19.920 --> 0:01:23.399 affects the people that law is meant to serve. So 0:01:23.480 --> 0:01:26.520 how will the court change? How will the law change 0:01:26.560 --> 0:01:30.039 if a conservative justice takes the place of Justice Ginsburg 0:01:30.720 --> 0:01:34.480 joining me as constitutional law scholar Stephen Vladdock, a professor 0:01:34.480 --> 0:01:37.959 at the University of Texas Law School. Steve how will 0:01:38.080 --> 0:01:43.640 putting another conservative on the Court affects Supreme Court jurisprudence 0:01:43.760 --> 0:01:46.800 in the years to come. There's no question that if 0:01:46.840 --> 0:01:51.000 President Trump is able to get a conservative confirmed to Succeedsburg, 0:01:51.560 --> 0:01:53.760 it's going to move the Court really as far to 0:01:53.840 --> 0:01:56.480 the right as we can remember it, certainly as far 0:01:56.560 --> 0:01:58.040 as the right as it was at the beginning of 0:01:58.080 --> 0:02:01.520 the New Deal when it constantly awarded many of President 0:02:01.560 --> 0:02:05.160 Roosevelt's initiatives. But you know, June perhaps even more conservative 0:02:05.200 --> 0:02:08.160 than that, and that's going to have obvious and participle 0:02:08.200 --> 0:02:13.920 impacts on everything from religious liberty to abortion, to the 0:02:13.960 --> 0:02:18.200 separation of powers. I mean, across the spectrum of constitutional 0:02:18.200 --> 0:02:20.520 and legal questions. We're looking at the court that's going 0:02:20.560 --> 0:02:23.960 to be very, very conservative for quite some time. Chief 0:02:24.040 --> 0:02:30.000 Justice Roberts moves in increments with another conservative justice, do 0:02:30.080 --> 0:02:33.760 you see those changes happening more swiftly? I mean, I 0:02:33.800 --> 0:02:35.639 think it's possible. You know, there's no question that Chief 0:02:35.680 --> 0:02:39.600 Justice Roberts has shown, especially in the last couple of years, 0:02:39.600 --> 0:02:43.280 that he has a real institutionalist streak that sometimes leads 0:02:43.360 --> 0:02:45.600 him to vote in ways that might be different from 0:02:45.639 --> 0:02:48.280 how he'd actually vote if it were purely about what 0:02:48.280 --> 0:02:50.480 he thinks the right answer is on the merits. With 0:02:50.600 --> 0:02:53.800 a sixth conservative justice on the court, too, that marginalizes 0:02:53.840 --> 0:02:57.400 the Chief Justice, and it means that the Conservatives can 0:02:57.440 --> 0:03:01.760 lose him or Justice Corsage or Kavanaugh and still have 0:03:01.800 --> 0:03:04.600 a majority in any one of these cases. And so 0:03:04.639 --> 0:03:07.920 it's going to take two of the Conservatives to cross 0:03:07.960 --> 0:03:10.119 over and join the professives in any of the sort 0:03:10.120 --> 0:03:13.880 of conventionally divisive cases for us to see anything other 0:03:13.919 --> 0:03:17.320 than just conservative hit gemini on the court. We saw 0:03:17.360 --> 0:03:20.079 that this term right mean the Bostock case, of course, 0:03:20.240 --> 0:03:22.720 was six to three, not five to four with Justice 0:03:22.760 --> 0:03:26.920 Course and the Chief Justice joining. So then for professive justice. 0:03:27.000 --> 0:03:29.120 But June, those cases are going to be the exception, 0:03:29.480 --> 0:03:34.960 not the rule, Bostock being a landmark decision on LGBT rights. Now, 0:03:35.040 --> 0:03:38.400 in the past term, Justice Brett Kavanaugh only joined the 0:03:38.440 --> 0:03:41.720 Court's liberals in a five to four ruling in one case, 0:03:41.760 --> 0:03:46.400 an antitrust dispute. Yet some legal observers are speculating that 0:03:46.680 --> 0:03:50.080 Kavanaugh will be at the center the swing vote in 0:03:50.080 --> 0:03:53.360 a more conservative court. Do you agree with that? I 0:03:53.440 --> 0:03:55.440 don't do not in the way that we saw it 0:03:55.440 --> 0:03:57.920 with you know, Justice Kennedy obviously for better part of 0:03:58.000 --> 0:03:59.680 twelve years, and with the Chief Justice the last couple 0:03:59.720 --> 0:04:01.480 of years. I think what we're gonna see as more 0:04:01.480 --> 0:04:04.360 akin to prior periods in the Court's history where there 0:04:04.360 --> 0:04:07.920 were two or three justices who were potentially thus twins. 0:04:08.160 --> 0:04:09.920 So you know, I think in some cases the most 0:04:09.960 --> 0:04:13.480 likely justice to perhaps join the progressives might be Justice 0:04:13.480 --> 0:04:15.680 score Stitched. In some cases it might be Justice count Moment. 0:04:15.720 --> 0:04:18.080 Some kids might be the Chief. But again, you're gonna 0:04:18.120 --> 0:04:20.359 need two of them, and that's that thinks The critical 0:04:20.360 --> 0:04:23.280 difference is it's not just a swing of justice anymore. 0:04:23.360 --> 0:04:26.520 That's for the conservative majority to actually not win cases 0:04:26.560 --> 0:04:29.039 that are going to divide along ideological lines, there's gonna 0:04:29.080 --> 0:04:32.279 need to swin justices. That's a very different calculation. It 0:04:32.360 --> 0:04:35.560 leads to very different internal politicking, and I think it's 0:04:35.560 --> 0:04:37.839 not hard to imagine how it's going to produce a 0:04:37.880 --> 0:04:41.240 heck of a lot fewer surprized crossover votes in the 0:04:41.360 --> 0:04:44.640 years to come. Justice Ginsburg was the leader of the 0:04:44.640 --> 0:04:47.880 Court's liberal block. Who will be the leader of the 0:04:47.880 --> 0:04:51.240 Court's conservative block. Yeah, I mean, I think there's gonna 0:04:51.279 --> 0:04:55.120 be some real split and perhaps even some tension among 0:04:55.279 --> 0:04:58.760 the six conservative justices. Obviously, I think the Chief is 0:04:58.760 --> 0:05:00.640 still going to have a heck of a lot of both, 0:05:00.800 --> 0:05:03.400 you know, sort of formal and informal authority. It's still 0:05:03.400 --> 0:05:05.520 going to be his call when he's in the majority, 0:05:05.560 --> 0:05:07.920 who gets the opinion assignment. He still has a lot 0:05:07.960 --> 0:05:10.960 of I think, administrative control over the Court. But I 0:05:11.000 --> 0:05:13.920 think there's going to be some buy in for control 0:05:14.000 --> 0:05:17.200 of that coalition among different justices. Does this mean that 0:05:17.240 --> 0:05:20.080 there are now five votes for some of the ideas 0:05:20.080 --> 0:05:22.279 that the Chief wasn't necessarily quick woman signed off on, 0:05:22.400 --> 0:05:25.480 for example, in garden cases? If so, you know the 0:05:25.560 --> 0:05:28.000 justice a leado who leaves as a Justice Thomas. I 0:05:28.040 --> 0:05:30.280 think it's going to be some interesting behind the scenes 0:05:30.520 --> 0:05:34.119 machinations among this new conservative majority. But you know, June, 0:05:34.160 --> 0:05:35.919 all that's really going to accept the day and today 0:05:36.040 --> 0:05:38.320 is how these opinions are written. I don't think it's 0:05:38.360 --> 0:05:40.800 going to actually affect the results. Steve, does this mean 0:05:40.880 --> 0:05:44.240 new uncertainty about the fate of Obamacare? That law has 0:05:44.279 --> 0:05:46.480 headed to the Supreme Court for the third time, with 0:05:46.720 --> 0:05:50.279 arguments scheduled the week after the election. When this case 0:05:50.320 --> 0:05:53.920 was first decided by a Texas judge, many legal experts 0:05:54.000 --> 0:05:57.280 called it an outlier and a fluke. But is Obamacare 0:05:57.320 --> 0:06:00.520 now in jeopardy? So I'm asking, you know, Justice Ginsburg. 0:06:00.920 --> 0:06:03.880 Passing and replacement I think changes the stakes a little bit. 0:06:03.920 --> 0:06:05.960 But I mean, I think keep in mind, you know what, 0:06:06.000 --> 0:06:08.040 when folks thought, okay, it's not going to go anywhere, 0:06:08.400 --> 0:06:10.440 the question in that case, which is I think mal 0:06:10.520 --> 0:06:14.359 capting what California University textis, is not really about the 0:06:14.400 --> 0:06:17.480 individual mandate. I mean, I think even California, I think, 0:06:17.520 --> 0:06:19.560 except that the court very well might strike down the 0:06:19.600 --> 0:06:23.000 usual mandate. Now the question is what happened as a result. 0:06:23.440 --> 0:06:26.680 Does the rest of the statute fall? And this is 0:06:26.680 --> 0:06:29.800 the so called severability questions? And I think, you know, 0:06:29.880 --> 0:06:33.240 the presumption before justice cans grow passed away is that 0:06:33.279 --> 0:06:36.920 there were no more than four votes for the really 0:06:37.040 --> 0:06:41.520 really wacky, to my mind, almost specious separability argument that 0:06:41.560 --> 0:06:45.039 requires the entire statute to be thrown out, including the 0:06:45.080 --> 0:06:49.640 Medicaid expansion, including coverage for preexisting conditions, including things that 0:06:49.680 --> 0:06:51.640 have nothing at all to do with the individual mandate. 0:06:52.120 --> 0:06:54.839 But the problem is, now four votes might be enough 0:06:55.000 --> 0:06:57.520 because if the court splits forward to four, if this 0:06:57.640 --> 0:07:00.839 happens before the new justice is converted, then that would 0:07:00.880 --> 0:07:03.760 affirm the lower court decision. You know, the Fifth Circuit 0:07:04.120 --> 0:07:06.600 had basically agreed with the disreport but said that back 0:07:06.640 --> 0:07:10.320 to reconsider separability analysis. So you know, I guess the 0:07:10.360 --> 0:07:12.920 short version is, I'm still not convinced that there are 0:07:13.000 --> 0:07:17.960 four votes for that wacky severability holding. But whereas before 0:07:18.120 --> 0:07:19.960 there was no scenario where four ward have been enough, 0:07:19.960 --> 0:07:22.080 now the scenario it might be, and that that's I 0:07:22.080 --> 0:07:25.520 think that's how the fix obtainion. The Court has had 0:07:25.680 --> 0:07:29.880 many rulings on social equality issues over the past decade, 0:07:30.400 --> 0:07:33.800 gay marriage being one of them. There's a more conservative 0:07:33.840 --> 0:07:39.000 court likely to extend those rulings or reverse them, for example, 0:07:39.320 --> 0:07:42.400 the gay marriage decision in No Burger Feild you know didn't. 0:07:42.480 --> 0:07:44.560 It's a good question. I think we ought to be 0:07:44.640 --> 0:07:47.920 careful about the difference between extending these rulings and not 0:07:48.080 --> 0:07:50.440 reversing them, because those are two very different responses. I 0:07:50.520 --> 0:07:55.000 certainly don't expect a new sixth Justice conservative majority to 0:07:55.120 --> 0:07:58.560 do anything to expand upon Burgo Fell or boss Stop 0:07:58.680 --> 0:08:01.280 or any of other cases. But I'm also not sure 0:08:01.360 --> 0:08:03.720 that they'll be in a hurry to overrule them to 0:08:03.880 --> 0:08:05.960 quite same degree as other cases. I mean, I think, 0:08:06.280 --> 0:08:09.440 you know, there is some danger in just sort of 0:08:09.560 --> 0:08:12.520 knee jerk overruling of cases you don't like when it 0:08:12.520 --> 0:08:14.560 comes to the public perception of the court. When it 0:08:14.600 --> 0:08:16.840 comes to course legitimacy. You know, I think the Court 0:08:16.880 --> 0:08:19.360 will still be worried about provoking too much of a 0:08:19.480 --> 0:08:23.880 backlash if as opposed to expend in their precedent, they 0:08:23.880 --> 0:08:26.840 start actually just getting rid of them very atom and 0:08:27.200 --> 0:08:28.840 you know, it's very possible to kind find how the 0:08:28.840 --> 0:08:31.680 election goes this November, that that's the kind of backlash 0:08:31.720 --> 0:08:34.520 the Court is going to be ill ill inclined to provoke. 0:08:35.520 --> 0:08:39.240 Is abortion Is Roe v. Wade included in that? No, 0:08:39.520 --> 0:08:41.280 I mean, I think Row, You know, I think Row 0:08:41.440 --> 0:08:43.920 is trickier because I think Row is first of all, 0:08:44.240 --> 0:08:46.720 Rowe has been so controversial for so long, and the 0:08:46.800 --> 0:08:50.080 Court has shipped away so thoroughly at it already, and 0:08:50.120 --> 0:08:53.880 it's clearly such a critical part of what's motivating the conservatives, 0:08:54.160 --> 0:08:56.559 you know, to get this pick through now is to 0:08:56.640 --> 0:08:59.240 finally get rid of Row. So but June, the price 0:08:59.320 --> 0:09:02.240 they might pay for overturning Row, or at least reducing 0:09:02.240 --> 0:09:05.080 it to the normal is not there is an inability 0:09:05.080 --> 0:09:07.200 to do that multiple other times. I mean, I think 0:09:07.440 --> 0:09:10.240 a court that spends next five years it's overturning one 0:09:10.240 --> 0:09:13.200 progressive president after another, It's going to be a court 0:09:13.240 --> 0:09:16.720 that I think really starts to lose some legitimacy in 0:09:16.760 --> 0:09:19.119 the eyes of a large chunk of the American population. 0:09:19.679 --> 0:09:22.040 President Trump says he's going to a point to a woman, 0:09:22.480 --> 0:09:27.480 and he has a list of very conservative juris. Does 0:09:27.520 --> 0:09:31.480 it matter which woman on that list he chooses. Is 0:09:31.600 --> 0:09:35.200 one more conservative than the other? Is one likely to 0:09:35.240 --> 0:09:37.680 affect the court more than the other? I think that 0:09:37.760 --> 0:09:40.760 the difference between them will probably cash out in you know, 0:09:40.800 --> 0:09:43.640 a small number of cases over time where just like 0:09:43.720 --> 0:09:46.520 Seis Kavanaugh in the Apple antitrust case, like, there are 0:09:46.559 --> 0:09:50.559 gonna be idiosyncratic areas where any one of the conservatives 0:09:50.640 --> 0:09:53.400 might be inclined anyone is the progressive um. And that's 0:09:53.400 --> 0:09:54.720 true I think for any of the folks on the 0:09:54.720 --> 0:09:58.640 President's shortlist. I think the the larger point, though, is 0:09:58.679 --> 0:10:01.160 that those cases are all gonna the outliers June, and 0:10:01.240 --> 0:10:04.199 that you know there's going to be a solid six 0:10:04.320 --> 0:10:07.319 justice block in most cases, and a block that can 0:10:07.360 --> 0:10:10.960 afford to lose one of them in all cases, and 0:10:11.000 --> 0:10:12.840 that the only cases where we're really going to see 0:10:12.840 --> 0:10:16.120 something weird happened is where you actually lose two of 0:10:16.160 --> 0:10:18.920 those six Conservatives. And again, I mean, just looking back 0:10:18.920 --> 0:10:21.480 at the last couple of terms, the only high profile 0:10:21.559 --> 0:10:24.080 example of that where you know too, but only two 0:10:24.120 --> 0:10:26.600 of the Conservatives crossed over in a high profile case 0:10:27.120 --> 0:10:30.000 was the boss Stock Title seven case. So now a 0:10:30.040 --> 0:10:34.360 lot of the talk from Democrats and progressive has been, well, 0:10:34.600 --> 0:10:37.040 if we get the White House, if we take over 0:10:37.080 --> 0:10:41.400 the Senate, then let's expand the court. It's not surprising 0:10:41.520 --> 0:10:43.560 that that's where these folks are. But I think, you know, 0:10:43.840 --> 0:10:46.600 that's a very short term reaction as opposed to long 0:10:46.679 --> 0:10:49.600 term right that that it seems to me that we 0:10:49.640 --> 0:10:51.480 should be thinking about both the short term. In the 0:10:51.520 --> 0:10:55.520 long term, expand the Supreme Court maybe emotionally satisfying in 0:10:55.600 --> 0:10:57.840 the short term. The problem is is that you know, 0:10:57.920 --> 0:11:00.880 once you cross that group of con then the next 0:11:00.880 --> 0:11:03.400 time the Republicans are in power, they expand the court, 0:11:03.679 --> 0:11:06.440 and then the Democrats expand the court in response, and 0:11:06.480 --> 0:11:08.920 so like fifty years from now, the court has thirty 0:11:08.960 --> 0:11:12.160 seven justices and no legitimacy. And so since that, the 0:11:12.280 --> 0:11:15.520 much more significant conversation has is, you know, how do 0:11:15.600 --> 0:11:19.720 we sort of think long term about ways of having 0:11:19.920 --> 0:11:24.160 less turn on the actuarial tables and on the fact 0:11:24.200 --> 0:11:28.120 that you know, people pass away at different and unfrifcable times. 0:11:28.400 --> 0:11:31.320 You know, should we scale back some of the Court's jurisdiction. 0:11:31.360 --> 0:11:34.160 Should there be cases that the Court has traditionally heard 0:11:34.200 --> 0:11:35.880 that we don't want to hear anymore. And I think 0:11:35.880 --> 0:11:38.080 there's there are a lot of court reforms that we 0:11:38.120 --> 0:11:40.360 ought to be discussed in the notion that we should 0:11:40.400 --> 0:11:43.800 expand the court just because Democrats can you know, I 0:11:43.920 --> 0:11:46.520 understand the impulse, and I just think it's very shortsighted. 0:11:47.280 --> 0:11:51.960 What about the Democrats argument that the Republicans haven't been 0:11:52.000 --> 0:11:56.800 playing by traditional rules. First, they stopped Merrick Garland from 0:11:56.880 --> 0:12:00.760 even getting an up or down vote. Now are changing 0:12:00.840 --> 0:12:04.079 the rules that they said were in place for Merrick Garland. 0:12:04.600 --> 0:12:08.880 So the Democratic argument is the Republicans have already messed 0:12:08.880 --> 0:12:12.360 with the process and made this political. It sounds tried 0:12:12.440 --> 0:12:14.600 to say two wrongs don't make a right, but I 0:12:14.600 --> 0:12:17.160 mean i'shing to day is just again, I think we 0:12:17.240 --> 0:12:19.520 have to keep you know, we have to sort of 0:12:19.640 --> 0:12:23.840 carefully think through the long term implications of such a move. 0:12:24.000 --> 0:12:27.120 And you know, if the Democrats say today we're justifying 0:12:27.160 --> 0:12:29.520 the stay on the court to eleven or thirteen justices, 0:12:29.960 --> 0:12:32.120 of course the Republicans will say tomorrow and then we're 0:12:32.160 --> 0:12:35.760 justified and standing of the seventeen. And you know, once again, 0:12:35.800 --> 0:12:37.400 this is why I think, you know, we have to 0:12:37.400 --> 0:12:39.640 think both shorts from and long term. You know, there 0:12:39.640 --> 0:12:43.559 are ways, I think, to respond to the norm destructive 0:12:43.640 --> 0:12:46.040 behavior of Republicans when it's come to the Supreme Court 0:12:46.080 --> 0:12:48.720 in the last four years. There are ways to respond 0:12:48.760 --> 0:12:52.400 to the hypocrisy of Republican senators who swore on a 0:12:52.520 --> 0:12:56.280 stack in tween that their opposition to fill in the 0:12:56.600 --> 0:12:59.360 Scalia seat was categorical and it was not just because 0:12:59.400 --> 0:13:01.680 it was President Obama who was nominating him. But I 0:13:01.679 --> 0:13:03.000 don't think that's the way to do that, June is 0:13:03.080 --> 0:13:05.679 to open the door to destroying the court. So one 0:13:05.720 --> 0:13:09.480 suggestion for changing the court is to put in term 0:13:09.559 --> 0:13:13.480 limits for the justices. In fact, House Democrats are planning 0:13:13.600 --> 0:13:17.719 to introduce legislation next week to limit justice's terms to 0:13:17.840 --> 0:13:21.200 eighteen years. There are other ideas, but tell us about 0:13:21.280 --> 0:13:25.440 limiting the jurisdiction of the court. How would that work? Yeah, 0:13:25.440 --> 0:13:27.080 I mean, you know, Congress has a heck of a 0:13:27.080 --> 0:13:30.520 lot of control over much of what the Supreme Court does. 0:13:30.600 --> 0:13:33.000 Coldress control the size of the court. Coloss controls when 0:13:33.040 --> 0:13:36.520 it sits Colgress controls what cases it hears, and so 0:13:36.559 --> 0:13:38.520 I think, you know, one of the thames Congress could 0:13:38.520 --> 0:13:41.400 consider is whether there are categories of cases that should 0:13:41.400 --> 0:13:44.199 now you know, perhaps be taken away from the Supreme Court. 0:13:44.480 --> 0:13:46.800 Are there? We want the Supreme courtside in more cases 0:13:46.800 --> 0:13:50.480 the courts'sie in different cases. You know, Congress, since really 0:13:50.520 --> 0:13:54.800 thees June has largely gotten out of the business of 0:13:55.480 --> 0:13:59.559 playing that sort of ongoing roles in tailoring and to 0:13:59.640 --> 0:14:02.640 finding the Supreme Court's jurisdiction, maybe it's time for Congress 0:14:02.679 --> 0:14:04.200 to get back into that business. I mean, I think, 0:14:04.440 --> 0:14:06.560 you know, the bottom line is that there's a heck 0:14:06.559 --> 0:14:09.520 of a lot Congress could do to, you know, try 0:14:09.520 --> 0:14:11.320 to sort of curb some of the excess of the 0:14:11.320 --> 0:14:14.960 Supreme Court before it starts, Adam, and that's you know, 0:14:15.280 --> 0:14:18.719 the notion that that it's at But I think is 0:14:18.760 --> 0:14:21.680 what's misleading here. There's actually a bunch of structural court 0:14:21.680 --> 0:14:24.760 reforms that I think we can should consider before we start. 0:14:24.880 --> 0:14:27.480 Adam chairs to the bench. Thanks for being on the 0:14:27.480 --> 0:14:31.880 Bloomberg Law Show, Steve. That's constitutional law Professor Stephen Vladdock 0:14:32.000 --> 0:14:36.800 of the University of Texas Law School. As testament to 0:14:36.840 --> 0:14:43.280 one Asia's promise, the daughter and granddaughter of immigrants, SIT's 0:14:43.320 --> 0:14:47.160 a lihest court in the land. Justice Ruth Bader Ginsburg 0:14:47.240 --> 0:14:51.080 wrote landmark opinions that advanced gender equality and rights were 0:14:51.080 --> 0:14:55.040 disabled Americans and immigrants. She was proud of her background 0:14:55.120 --> 0:14:57.080 and spoke about it when she was honored by the 0:14:57.120 --> 0:15:01.040 American Law Institute. What is it differ minutes between a 0:15:01.120 --> 0:15:05.760 bookkeeper in New York City's Comment District and the Supreme 0:15:05.800 --> 0:15:12.800 Court Justice? One generation? My life bears witness the difference 0:15:12.880 --> 0:15:17.240 between the opportunities open to my mother and those open 0:15:17.360 --> 0:15:20.800 to me. The late Supreme Court justice made history and 0:15:20.920 --> 0:15:23.400 death as she did in life. When she was honored 0:15:23.400 --> 0:15:26.040 on Friday as the first woman to lie in state 0:15:26.120 --> 0:15:30.600 at the US Capitol. Here's how Speaker Nancy Pelosi, it 0:15:30.760 --> 0:15:35.840 is with profound sorrow and deep sympathy to the Ginsburg 0:15:35.960 --> 0:15:41.560 family that I have the high honor to welcome Justice 0:15:41.720 --> 0:15:46.680 Ruth Bader Ginsburg to lie in state and the capital 0:15:46.880 --> 0:15:52.160 of the United States. Will conservatives legal fantasies soon become realities? 0:15:52.640 --> 0:15:56.560 How will another conservative justice on the Supreme Court change 0:15:56.600 --> 0:15:59.320 the law? Joining me? As Neil Kinkoff, a professor at 0:15:59.320 --> 0:16:02.880 the Georgia's Day University College of Law, Neil in general, 0:16:02.920 --> 0:16:08.120 how would adding another conservative justice change the court? Well, 0:16:08.120 --> 0:16:11.560 the general impact will be to move the court dramatically 0:16:11.680 --> 0:16:16.400 to the right. So for the last about ten years, 0:16:16.480 --> 0:16:20.000 before Anthony Kennedy retired, the court was really known as 0:16:20.040 --> 0:16:22.960 the Kennedy Court because he was the swing vote and 0:16:23.000 --> 0:16:25.440 in all of the pivotal cases he would cast the 0:16:25.480 --> 0:16:30.120 deciding vote, so he pretty well determined the direction of 0:16:30.160 --> 0:16:34.320 the court. After his retirement, there was concerned that him 0:16:34.360 --> 0:16:39.440 being replaced by Justice Gorsuch would really cement the hold 0:16:39.800 --> 0:16:43.640 of the right wing on the court. But then Justice 0:16:43.760 --> 0:16:47.920 Roberts played the role of the swing vote and the 0:16:48.480 --> 0:16:52.320 turn to the right wasn't nearly so decisive. So right 0:16:52.360 --> 0:16:56.360 now there's a five to four conservative majority on the Court, 0:16:57.200 --> 0:17:00.840 but it's not as solid as I think people assumed 0:17:00.880 --> 0:17:04.159 it would be because Roberts has in a number of 0:17:04.240 --> 0:17:09.160 high profile cases UM sided with the liberal wing. UM. 0:17:09.240 --> 0:17:13.440 But with Ginsburg leaving, that makes it five to three. 0:17:13.680 --> 0:17:17.439 And if she's replaced by a very conservative judge, and 0:17:17.480 --> 0:17:20.800 all of those on the short list are very conservative, 0:17:21.400 --> 0:17:24.520 that makes the majority six to three. And even if 0:17:24.600 --> 0:17:29.760 Chief Justice Roberts continues to occasionally side with the liberal wing, 0:17:30.640 --> 0:17:33.040 that side would still lose by a vote of five 0:17:33.119 --> 0:17:36.320 to four UM. So that the Court would become very 0:17:36.440 --> 0:17:41.720 solidly very conservative. When we look at how a more 0:17:41.800 --> 0:17:45.399 conservative court would change the law, the first thing that 0:17:45.520 --> 0:17:48.800 seems to be at risk is Obamacare because the Supreme 0:17:48.840 --> 0:17:52.359 Court is holding oral arguments the week after the election 0:17:52.560 --> 0:17:56.360 on the Trump administration trying to have the Court declared 0:17:56.440 --> 0:17:58.960 the law invalid. What do you think the fate of 0:17:59.000 --> 0:18:02.639 Obamacare would have been with RBG on the court and 0:18:02.720 --> 0:18:06.520 now without RBG on the court? Sure, so her her 0:18:06.640 --> 0:18:13.600 vote was crucial to upholding Obamacare. UM that she wasn't 0:18:13.680 --> 0:18:18.080 the swing vote, right, That was really Chief Justice Roberts 0:18:18.080 --> 0:18:22.440 who added his vote to the four liberals, but now 0:18:23.160 --> 0:18:28.000 without Justice ginsburg Um, if if she is replaced by 0:18:28.040 --> 0:18:33.280 a reliable conservative, then that means that Obamacare can be 0:18:33.320 --> 0:18:36.879 struck down on any number of different grounds. When this 0:18:37.040 --> 0:18:40.399 first came out, this Obamacare lawsuit, it was considered almost 0:18:40.440 --> 0:18:44.120 a silly lawsuit. Most you know, legal experts were saying 0:18:44.160 --> 0:18:47.040 that it would never stand up. How did we get 0:18:47.080 --> 0:18:52.040 to the Supreme Court in this point? Right? Because conservative 0:18:52.119 --> 0:18:56.080 jurists have been committed to the destruction of Obamacare, and 0:18:56.280 --> 0:18:59.679 no argument is too frivolous to that end um. And 0:18:59.760 --> 0:19:02.600 so this is an example of it. Had this case 0:19:02.680 --> 0:19:06.159 come to the Supreme Court back when the Supreme Court 0:19:06.280 --> 0:19:10.080 first ruled on Obamacare, I would not have been surprised 0:19:10.080 --> 0:19:13.240 if it had gotten zero votes. Um. But now I 0:19:13.240 --> 0:19:15.600 wouldn't be at all surprised to see it kept five. 0:19:16.280 --> 0:19:19.800 A lot of legal articles are talking about Kavanaugh as 0:19:19.840 --> 0:19:24.320 now the swing vote on this particular topic. In other contexts, 0:19:24.359 --> 0:19:28.480 he has been reluctant to throw out the entire law. 0:19:28.560 --> 0:19:31.480 So is it possible that the Justices might agree to 0:19:31.600 --> 0:19:34.080 sever that portion of the law and leave the law 0:19:34.119 --> 0:19:39.199 in place. I think that's really unlikely. I understand Justice 0:19:39.320 --> 0:19:44.000 Kavanaugh may not want, given the controversy around his appointment, 0:19:44.440 --> 0:19:47.960 may not want to be the decisive vote to strike 0:19:48.040 --> 0:19:51.600 down Obamacare. Um, but that's the only thing I can 0:19:51.640 --> 0:19:55.679 think that would incline him towards keeping it in place. 0:19:56.720 --> 0:20:00.160 And now, abortion rights, this is what comes up every 0:20:00.160 --> 0:20:03.800 time there is a court appointment, and it seems as 0:20:03.840 --> 0:20:08.240 if abortion rights were in jeopardy even before the death 0:20:08.280 --> 0:20:12.000 of RBG. It seems as if there's been an incremental 0:20:12.040 --> 0:20:17.160 approach to abortion rights. No one is saying, let's reverse 0:20:17.280 --> 0:20:22.480 Roe v. Wade. Might that change with a more conservative court? Yes, 0:20:22.640 --> 0:20:24.960 I think it will change with a more conservative court. 0:20:25.119 --> 0:20:28.919 The incremental changes have been all from the time of 0:20:29.040 --> 0:20:33.359 Rope forward have all been towards reducing the scope of 0:20:33.400 --> 0:20:37.600 the right to an abortion. So um. The really operative 0:20:37.640 --> 0:20:40.520 decision was the decision in the early nineties in a 0:20:40.560 --> 0:20:45.639 case called Casey, where the Supreme Court formally upheld Rowe 0:20:45.640 --> 0:20:49.600 but replaced it with an undue burden standard. And since 0:20:49.680 --> 0:20:53.639 that case was decided now nearly thirty years ago, the 0:20:53.720 --> 0:20:57.800 Court has accepted all kinds of different regulations of abortion 0:20:58.000 --> 0:21:01.639 that make it virtually impossible bull in some states to 0:21:02.040 --> 0:21:05.680 access an abortion. But the Supreme Court has upheld those 0:21:05.720 --> 0:21:09.680 saying they're not an undue burden um. The the loan 0:21:09.800 --> 0:21:12.879 exception to that is a case from a few years 0:21:12.880 --> 0:21:17.320 ago from Texas, where Texas imposed regulations that are so 0:21:17.440 --> 0:21:21.399 burdensome that it would become impossible for abortion clinics to 0:21:21.440 --> 0:21:24.760 operate in Texas. In that case, the Supreme Court, with 0:21:24.880 --> 0:21:28.800 Justice Kennedy casting the swing and deciding vote, struck down 0:21:28.840 --> 0:21:33.560 Texas law. That set of laws was also adopted by Louisiana, 0:21:33.680 --> 0:21:36.600 and in the case that the Court decided last year, 0:21:37.200 --> 0:21:40.600 the Court stuck with its precedent um, and that time 0:21:40.640 --> 0:21:44.119 it was Justice Roberts who provided the swing vote only 0:21:44.200 --> 0:21:47.119 on the ground that he thought, by Starry decisive, he 0:21:47.119 --> 0:21:50.119 should stick with the president, and no one had asked 0:21:50.119 --> 0:21:54.200 them to reconsider Row versus Way. Now. That case then 0:21:54.600 --> 0:21:58.280 sort of amounted to an invitation to parties that directly 0:21:58.359 --> 0:22:02.360 ask for the Court to overrule Row. And if there 0:22:02.520 --> 0:22:06.399 is now a sixth conservative justice on the Court, it 0:22:06.560 --> 0:22:10.240 is all but a foregone conclusion that the Supreme Court 0:22:10.280 --> 0:22:13.359 will over rule Row versus Way. Just I want to 0:22:13.359 --> 0:22:17.280 clarify one thing. That doesn't mean that states can't have 0:22:17.640 --> 0:22:21.000 laws that allow abortions. It just means that states have 0:22:21.080 --> 0:22:25.439 decision up to them. That's right. Um. It allows the 0:22:25.440 --> 0:22:29.760 states to make their own determination. Now, gun rights, The 0:22:29.800 --> 0:22:33.360 Court attempted to take up a gun rights case last term, 0:22:33.440 --> 0:22:36.040 but it turned out to be moot. They haven't decided 0:22:36.040 --> 0:22:40.199 a gun case in a decade. What kind of rights 0:22:40.240 --> 0:22:45.480 are on the table here now? So the Supreme Court held, 0:22:45.840 --> 0:22:50.679 um that the Second Amendment protects an individual's right to 0:22:50.800 --> 0:22:54.560 possess a gun in their home for purposes of self protection, 0:22:55.119 --> 0:22:58.400 that that is something that cannot be forbidden to them. 0:22:59.240 --> 0:23:02.680 But it didn't hold anything beyond that right. So that 0:23:02.760 --> 0:23:04.800 it decided, I think it was in two thousand and 0:23:04.880 --> 0:23:09.320 five UM. And then the the subsequent case was a 0:23:09.320 --> 0:23:13.560 case that held that that right applies not only against 0:23:14.000 --> 0:23:17.840 the federal government and federal regulation, but against state governments 0:23:17.840 --> 0:23:22.239