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Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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Speaker 1: day we bring you insight and analysis into the most

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Speaker 1: important legal news of the day. You can find more

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Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

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Speaker 1: and on Bloomberg dot com slash podcasts. As soon as

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Speaker 1: Justice Anthony Kennedy retired, women's rights advocates became concerned that

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Speaker 1: his successor would be the fifth vote to reverse the

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Speaker 1: landmark case of Roe v. Wade that made abortion legal nationwide.

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Speaker 1: At his confirmation hearings to succeed Kennedy, Brett Kavanaugh was

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Speaker 1: pressed over and over again about his views on the

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Speaker 1: landmark case. It's settled as a precedent of the Supreme

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Speaker 1: Court entitled the Respect under Principles of Starry Decisis, and

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Speaker 1: one of the important things to keep in mind about

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Speaker 1: Roe v. Wade is that it has been reaffirmed many

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Speaker 1: times over the past years, but precedents are reversed at

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Speaker 1: the Supreme Court all the time. In fact, Justice year,

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Speaker 1: the Justice is overturned a forty year old landmark ruling

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Speaker 1: on union fees. So many pro choice advocates were encouraged

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Speaker 1: when now Justice Kavanaugh cast the deciding vote not to

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Speaker 1: hear the appeals of two cases from states that want

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Speaker 1: to cut off Medicaid payments to Planned Parenthood, effectively giving

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Speaker 1: Planned Parenthood a win. But were they too quick to

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Speaker 1: draw any conclusions? Joining me is Stephen Vladdock, a constitutional

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Speaker 1: law professor at the University of Texas Law School. So

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Speaker 1: it takes four justices for the Court to agree to

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Speaker 1: hear a case, and these cases got only three votes

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Speaker 1: from conservative Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

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Speaker 1: What does it tell you that the newest conservative Justice,

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Speaker 1: Brett Kavanaugh and the Chief Justice John Roberts voted not

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Speaker 1: to take the case. Well, I think it's important to

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Speaker 1: put this in the contest. I mean, the actual question

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Speaker 1: presented in these two cases, which come from really three

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Speaker 1: different states, from Missouri, Kansas, and Louisiana, is whether these

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Speaker 1: Medicaid providers Planned Parenthood and these other healthcare providers are

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Speaker 1: allowed to even bring a lawsuit in the first place,

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Speaker 1: challenging the fact that the states have withdrawn Medicaid funding

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Speaker 1: for non abortion related services solely on the ground that

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Speaker 1: these providers also performed non Medicaid funded abortion services. So

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Speaker 1: the actual legal issue is about whether there's a private

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Speaker 1: right of action, and the reason why that's important, June

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Speaker 1: is because both Chief Justice Roberts and Justice Kavanaugh have

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Speaker 1: been on the record over and over again as being

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Speaker 1: pretty skeptical of private rights of action in any context

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Speaker 1: in which Congress has not expressly provided for one. That

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Speaker 1: is to say, they should have been pretty sympathetic to

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Speaker 1: the petitions in these cases, which claim that the lower

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Speaker 1: course had aired allowing planned Parenthood and the other plaintiffs

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Speaker 1: to sue. So the fact that they denied certain I

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Speaker 1: think in this case is not in any way a

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Speaker 1: reflection of how they feel about the merit. I don't

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Speaker 1: think that they've all of a sudden woken up and

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Speaker 1: changed their minds about private rights of action. I think

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Speaker 1: it's really much more interesting as a sign that they

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Speaker 1: just didn't want these cases, and that for really I

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Speaker 1: think political and optical reasons. Even though they probably thought

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Speaker 1: the lower court rulings in these cases were incorrect from

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Speaker 1: the perspective of what's good for the Supreme Court as

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Speaker 1: an institution, they both thought it was better for the

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Speaker 1: Court to sit this one out. So our Lettle analysts

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Speaker 1: mistaken when they take that extra step and say this

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Speaker 1: means that those two justices are not ready to confront

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Speaker 1: controversial abortion cases. Yeah, I think we have to be careful.

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Speaker 1: Like I do think we can read something important into

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Speaker 1: the fact that neither Chief Justice Roberts nor Justice Kavanaugh

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Speaker 1: voted to grant these cases. I'm not sure that's what

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Speaker 1: I would take away. That's say, I don't know that

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Speaker 1: this means that if the right kind of abortion related

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Speaker 1: case were to come to the Supreme Court, they wouldn't

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Speaker 1: grant review. I think it was that in this specific context,

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Speaker 1: they didn't see any need for the Court to jump

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Speaker 1: into this. And I think the reason why that's so

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Speaker 1: interesting to me is because they probably figured out that

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Speaker 1: if the Court had granted these cases, they were going

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Speaker 1: to divide five to four on the marriage and they

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Speaker 1: were probably gonna divide five to four along partisan lines.

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Speaker 1: And so I don't know that this is a statement

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Speaker 1: about abortion cases nearly as much as it's a statement

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Speaker 1: that for these two justices, at least for now, where

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Speaker 1: it's possible to avoid visible politically charged cases, they're likely

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Speaker 1: going to split the court along partisan ideological lines. They're

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Speaker 1: inclined to do so that basically, this is about keeping

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Speaker 1: their heads down and not about abortion, per se. Steve,

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Speaker 1: let's talk about the dissent Justice Thomas at the descent,

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Speaker 1: and he speculated about the motives of the six justices

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Speaker 1: who turned the cases down. He concluded that it was

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Speaker 1: because Planned Parenthood was involved. What's your take on his conclusion.

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Speaker 1: I think it's a little bit um how should I

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Speaker 1: put this? I think that's a little bit unfair on

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Speaker 1: Justice Thomas's part to level all of the blame for

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Speaker 1: that with the justices who voted to deny certain I mean,

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Speaker 1: these cases would not exist if these plaintiffs weren't named

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Speaker 1: Planned Parenthood. That is to say, this issue has only

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Speaker 1: arisen because you know, these states Missouri, Kansas, Louisiana and

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Speaker 1: a handful of others have singled out Planned Parenthood and

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Speaker 1: other providers of abortion related services for really discriminatory treatment

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Speaker 1: in their non abortion service capacities. And so I guess

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Speaker 1: you know, when the whole case starts because the planiffs

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Speaker 1: are Planned Parenthood. I'm not sure it's really fair for

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Speaker 1: Justice Thomas to point the finger at his colleagues for

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Speaker 1: basic keeping their heads down because the case about Planned Parenthood.

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Speaker 1: This case would never have happened if it weren't about

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Speaker 1: the very optics that Justice Thomas is suggesting his colleagues

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Speaker 1: are trying to avoid. Republican Senator Susan Collins, who of

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Speaker 1: course was criticized for voting for Kavanaugh, said she felt

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Speaker 1: vindicated by Kavanaugh's refusal to take these cases because it

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Speaker 1: shows that he's impartial and wasn't holding anything against planned

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Speaker 1: parenthood for opposing his confirmation. Is she right? No, I'm

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Speaker 1: not sure she's wrong, But you know, I certainly don't

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Speaker 1: think that this proves anything about that controversial series of

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Speaker 1: exchanges during the confirmation process. I think the real question

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Speaker 1: remains whether the new conservative majority on the Court, in

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Speaker 1: cases that properly presenting the question and this was not

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Speaker 1: one of them, um are going to uphold state laws

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Speaker 1: that increasingly chip away at the right to choose that

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Speaker 1: the Court recognized in oh And I just don't know

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Speaker 1: how anyone could stay with any degree of certainty based

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Speaker 1: upon the fact that Justice Havanan Justice Roberts voted to

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Speaker 1: deny certain in these two cases that even though they

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Speaker 1: have abortion in the background, are not actually about abortion,

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Speaker 1: that that vindicates any previously held notion about how they're

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Speaker 1: going to rule if and when cases that really are

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Speaker 1: a much more direct challenge to row into casey come

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Speaker 1: back before the court, Steve, Can you read anything into

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Speaker 1: the fact that the justices deferred acting on these appeals

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Speaker 1: for months, they kept on the Court's list through nine

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Speaker 1: weekly conferences. Were the conservative justices looking for a fourth vote? Yeah?

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Speaker 1: I mean, I think there's no question that any time

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Speaker 1: you have a transition at the Supreme Court and you

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Speaker 1: have a pending petition that has three votes in favor,

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Speaker 1: as these clearly did, you're going to see that kind

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Speaker 1: of awkward scheduling maneuver where the cases kept around for

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Speaker 1: a while to see if you know, the new justice

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Speaker 1: wants to become the fourth vote, or if someone else

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Speaker 1: wants to change their mind. This is not that unusual

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Speaker 1: in the you know, in the sort of weird context

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Speaker 1: of a new justice, because you know, when you know

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Speaker 1: there are three votes for certain, and you know that

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Speaker 1: there's a new justice coming along, I don't think it's

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Speaker 1: unrealistic on the part of those three justices to to

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Speaker 1: try to figure out if they can find a fourth

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Speaker 1: Can women's rights advocates take any comfort from this denial

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Speaker 1: of sert. Is it at least a signal that abortion rights,

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Speaker 1: as controversial as they are, are safe for now. I

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Speaker 1: don't think anyone should sort of think that this is

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Speaker 1: a sign that the Court is staying out of abortion

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Speaker 1: cases large I think it's a much more specific message

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Speaker 1: from the Chief Justice and Justice Kavanaugh that at least

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Speaker 1: where possible and at least in the short term, they're

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Speaker 1: going to try to keep the Court out of any

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Speaker 1: high profile dispute that looks like it's going to split

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Speaker 1: the Court along partisan lines, and that that's not necessarily

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Speaker 1: abortion specific. That maybe we'll see some of that in

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Speaker 1: the coming weeks and months as the Court starts ruling

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Speaker 1: on some of the government's applications with regard to Dhaka

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Speaker 1: and the transgender ban and the census case. I think

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Speaker 1: the real caveat here is that this is almost certainly

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Speaker 1: a temporary arrangement. That you know, this is largely at

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Speaker 1: least from the Chief's perspective, about diffusing some of the

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Speaker 1: bad feeling that was left in I think in many

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Speaker 1: folks minds after the Cavanat confirmation process, and I think

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Speaker 1: it's only a matter of time before we are far

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Speaker 1: enough removed from those headlines where the Court is gonna

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Speaker 1: retreat to it's it's normal self engine frankly, where they're

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Speaker 1: going to be cases that are screaming out for the

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Speaker 1: Court to intervene, either because there's an intractable division among

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Speaker 1: the lower courts, or because the lower courts have called

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Speaker 1: them to question a prior Supreme Court precedent, or because

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Speaker 1: the lower courts have invalidated some state or federal law

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Speaker 1: on grounds that are, you know, not really ones we

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Speaker 1: want to leave to the lower courts. Are people looking

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Speaker 1: at John Roberts incorrectly as the next Justice Anthony Kennedy

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Speaker 1: the swing vote on these issues, when in point of fact,

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Speaker 1: he is a conservative and he has shown a tendency to,

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Speaker 1: as you say, want to chip away at abortion rights. Yeah,

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Speaker 1: you know, I think that the reality is that we

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Speaker 1: ought to be able to distinguish between whether Chief Justice

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Speaker 1: Roberts is going to become an increasingly moderate vote and

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Speaker 1: whether he's going to become the median vote. Um. I

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Speaker 1: think there's no question that on the new Supreme Court,

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Speaker 1: with this new alignment, in the cases that tend to

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Speaker 1: divide the justices along partisan ideological lines, the Chief Justice

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Speaker 1: is now the median, and so the justice who is

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Speaker 1: most likely to crossover and join with the four progressives

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Speaker 1: in cases raising these kinds of issues is the Chief. Now,

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Speaker 1: I think that's not sossarily true in all contests. I

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Speaker 1: think there are some cases involving maybe libertarian interests where

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Speaker 1: Justice Gorstch might be the fifth vote. But I wouldn't

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Speaker 1: expect that that means that Chief Justice Roberts is going

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Speaker 1: to change, or that he's going to somehow moderate his

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Speaker 1: strongly held views. I just look, it means that the

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Speaker 1: Court's gonna move to the place where now it's the

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Speaker 1: chief whose views are really driving these alignments from these

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Speaker 1: coalitions as opposed to Justice Kennedy. That doesn't make the

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Speaker 1: Chief more moderate, It just makes him more important. Thanks Steve.

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Speaker 1: That's Steve Latti, a professor at the University of Texas

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Speaker 1: Law School. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple Podcasts, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg. Yeah,