WEBVTT - Politically Charged Decisions Mark Term’s End

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcasts. It's the last

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<v Speaker 1>day of decisions in the Supreme Court's term, and so

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<v Speaker 1>we have answers to those controversial cases we've been talking about.

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<v Speaker 1>Joining us as Bloomberg Supreme Court reporter of Greg's store.

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<v Speaker 1>So Greg, let's start with the decision over whether the

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<v Speaker 1>Trump administration can add a citizenship question to The justices

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<v Speaker 1>were split here in more ways than I can explain,

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<v Speaker 1>but the question is block for now. Tell us what happened. Yeah,

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<v Speaker 1>you say we have the answers. We have answers, but

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<v Speaker 1>they may not be final answers. So Chief Justice John

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<v Speaker 1>Roberts and the liberal justices said that the explanation that

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<v Speaker 1>Commerce Secretary Wilbur Ross gave for putting the citizenship question

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<v Speaker 1>on the census was contrived, and they kicked it back

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<v Speaker 1>to the Census Bureau in the Commerce Department to come

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<v Speaker 1>up with a better explanation. What's not clear is whether

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<v Speaker 1>they're going to be able to do that and have time.

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<v Speaker 1>The explanation that Ross gave was that we were trying

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<v Speaker 1>to help the Justice Department enforce the Voting Rights Act,

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<v Speaker 1>which protects minorities at the polls. But Robert said the

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<v Speaker 1>evidence indicated that Ross came into office wanting to add

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<v Speaker 1>this question, that he solicited the Justice Department to to

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<v Speaker 1>formally ask for it. And it's not clear exactly how

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<v Speaker 1>Wilburt Ross will be able to get out from under that,

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<v Speaker 1>put together an explanation and get it all done in

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<v Speaker 1>time to have the census forms printed. This will go

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<v Speaker 1>back to the federal judge Jesse Ferman in New York

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<v Speaker 1>who wrote that book practically on why the citizenship question

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<v Speaker 1>shouldn't be allowed, and he'll have to judge whether or

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<v Speaker 1>not that is an adequate explanation. If he says it's not,

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<v Speaker 1>then it would go to the Supreme Court. Almost certainly,

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<v Speaker 1>assuming the administration goes for it, there will be another

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<v Speaker 1>court fight. This one may happen on an emergency basis.

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<v Speaker 1>You know, there are actually three challenges around the country.

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<v Speaker 1>I would imagine all those plaintiffs are thinking about their

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<v Speaker 1>next steps and there will be more court challenges and

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<v Speaker 1>it will come back up to the Supreme Court. And

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<v Speaker 1>John Roberts, who who cast the deciding vote in this case,

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<v Speaker 1>is very likely to be the one who will decide

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<v Speaker 1>whether that new explanation is good enough. All the while

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<v Speaker 1>the clock is ticking. We're just gonna have to see

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<v Speaker 1>what happens over the summer. So John Roberts was the

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<v Speaker 1>deciding vote, He was the swing vote here. Does that

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<v Speaker 1>hearken back to the Obamacare decision so many years ago,

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<v Speaker 1>a highly political case where he cast the deciding vote

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<v Speaker 1>by sort of splitting it down the middle. Yes, it does,

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<v Speaker 1>and this opinion resembles that a little bit. In it.

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<v Speaker 1>It was quite hard to figure out what exactly the

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<v Speaker 1>Court had done, just like can Obamacare. It was kind

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<v Speaker 1>of challenging because there was a little this and little

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<v Speaker 1>of that. Yes, John Roberts has said publicly he cares

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<v Speaker 1>a lot about the courts institutional standing. He is very

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<v Speaker 1>protective of that. This decision came down on the same

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<v Speaker 1>day as the partisan jerrymandering decision that I think we're

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<v Speaker 1>going to talk about in a second um, where the

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<v Speaker 1>Court sided with conservatives on that Robert sided with conservatives

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<v Speaker 1>here's an opinion where, you know, Roberts is making the

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<v Speaker 1>point that we are not, even though it's a pretty

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<v Speaker 1>conservative court, we are not reflexively going to side with

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<v Speaker 1>the Trump administration or political conservatives. So let's go on

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<v Speaker 1>to the partisan jerrymandering. In five to four votes along

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<v Speaker 1>ideological lines, the Court decided that voting maps cannot be

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<v Speaker 1>challenged for being too partisan. Tell us first about the

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<v Speaker 1>majority opinion. Yeah, so this this decision was as clean

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<v Speaker 1>as the other one was messy. This was the five

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<v Speaker 1>Conservatives again with John Roberts writing it, and essentially what

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<v Speaker 1>he said was courts do not have a role in

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<v Speaker 1>this thing. This is a political process. You know. This

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<v Speaker 1>is the same Chief Justice who a year ago, when

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<v Speaker 1>the Court heard arguments and a different case, said we

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<v Speaker 1>don't want to be in the position of in each

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<v Speaker 1>case deciding the Republicans win or the Democrats win. This

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<v Speaker 1>opinion says this is a political question, that courts are

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<v Speaker 1>not competent to decide whether a voting map is two partisans.

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<v Speaker 1>Justice Elena Kagan wrote a rather biting dissent, and she

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<v Speaker 1>started with, for the first time ever, this Court refuses

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<v Speaker 1>to remedy a constitutional violation because it thinks the task

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<v Speaker 1>beyond judicial capabilities. Yeah, it was a very strongly worded

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<v Speaker 1>descent from Justice Kagan. She read a summary of it

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<v Speaker 1>from the bench. She actually broke up a little bit

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<v Speaker 1>at the end of her descent when she said, with

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<v Speaker 1>respect but great sadness, we descent, which is a really

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<v Speaker 1>remarkable thing to hear. You know, this was a hard

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<v Speaker 1>fraud case. Over the course of two terms, several justices

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<v Speaker 1>in arguments this year, several of the Conservative justices acknowledged

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<v Speaker 1>that this is a real big problem, you know, voting

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<v Speaker 1>maps that are designed primarily to help the party that's

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<v Speaker 1>in power. And up until now there has been at

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<v Speaker 1>least the possibility that the courts would step in and

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<v Speaker 1>police that. But now that possibility has gone. If Justice

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<v Speaker 1>Kennedy was on the court still whether the decision might

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<v Speaker 1>be different because he left the door open to the

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<v Speaker 1>possibility that some kinds of partisan gerrymandering might be too

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<v Speaker 1>extreme in a concurring opinion years ago he did, and

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<v Speaker 1>a lot of people last term thought that Justice Kennedy

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<v Speaker 1>might finally be ready to say, Okay, here's a test

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<v Speaker 1>that courts can use to decide whether partisanship has gone

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<v Speaker 1>too far that the challengers to these maps put a

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<v Speaker 1>lot of time and effort into sociological tests, statistical tests

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<v Speaker 1>that could distinguish the really bad maps that courts, they

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<v Speaker 1>say courts should strike dout. But Kennedy wasn't satisfied last term,

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<v Speaker 1>and he didn't really delve into it. The Court ended

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<v Speaker 1>up resolving that case on very narrow grounds by saying

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<v Speaker 1>these particular plaintiffs hadn't shown that they had the right

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<v Speaker 1>to sue in this case. So that takes the big

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<v Speaker 1>question over to this term when Kennedy's no longer on

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<v Speaker 1>the court and Brett Kavanaugh, who was one of those

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<v Speaker 1>justices who said this is a really big problem for

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<v Speaker 1>a democracy, but he joined the majority in saying there's

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<v Speaker 1>nothing that federal courts can do about it. Is it

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<v Speaker 1>just happenstance that you have two very political decisions on

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<v Speaker 1>the same day that both sort of cancel each other

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<v Speaker 1>out one in one the liberals one and the other

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<v Speaker 1>the conservatives one. Well, on one hand, it could be

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<v Speaker 1>these were obviously very big cases, hard fought, and they

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<v Speaker 1>were argued near the end of the term, so it's

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<v Speaker 1>not surprising they are among the last ones to come out.

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<v Speaker 1>But the fact that they both came out on the

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<v Speaker 1>same day and and the Chief Justice wrote them both,

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<v Speaker 1>it's hard not to think that he was very aware

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<v Speaker 1>of the message that this will send, which is that

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<v Speaker 1>this is not a reflective court that is always going

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<v Speaker 1>to side with conservatives, especially on these big political issues.

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<v Speaker 1>John Roberts saved himself from a day of news that

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<v Speaker 1>said he wrote the decision that barred any challenges the

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<v Speaker 1>partisan jerrymanders. Now that is, you know, just one of

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<v Speaker 1>two major decisions, and any other one. We have to

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<v Speaker 1>leave it there, Greg, but we'll be checking back with

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<v Speaker 1>you tomorrow and the court will discuss new orders. Thanks

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<v Speaker 1>for listening to the Bloomberg Law podcast. You can subscribe

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<v Speaker 1>and listen to the show on Apple Podcasts, SoundCloud, and

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<v Speaker 1>on Bloomberg dot com slash podcasts. I'm June Brosso. This

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<v Speaker 1>is Bloomberg. Yeah, yeah,