WEBVTT - Roberts Joins Liberal Wing in Abortion Case

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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. A divided Supreme

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<v Speaker 1>Court has blocked at least temporarily, a Louisiana law that

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<v Speaker 1>puts restrictions on abortion doctors. The vote was five to four,

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<v Speaker 1>the liberal justices in the majority and the conservative justices

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<v Speaker 1>in the minority, with Chief Justice John Roberts voting with

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<v Speaker 1>the liberal wing of the court joining me is Neil Kinkoff,

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<v Speaker 1>a professor at Georgia State University College of Law. Neil

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<v Speaker 1>tell us a little about the Louisiana law and what

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<v Speaker 1>the court did here. Well. The main provision that's an

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<v Speaker 1>issue is a provision that requires doctors who perform abortions

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<v Speaker 1>to have admitting privileges at a hospital within thirty miles.

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<v Speaker 1>The state of Texas adopted the same requirement, and in

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<v Speaker 1>a case the Supreme Court decided just two years ago,

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<v Speaker 1>the Supreme Court struck that requirement down because it didn't

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<v Speaker 1>advance any legitimate purpose. On the state's part and would

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<v Speaker 1>have the consequence of strictly limiting the availability of abortions

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<v Speaker 1>in Texas. So the Louisiana case involves a substantively identical

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<v Speaker 1>law that would have had the consequence if it applied,

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<v Speaker 1>of putting all but one doctor out of business, so

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<v Speaker 1>that the entire state would have been served only by

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<v Speaker 1>one doctor. And the five justices who voted the way

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<v Speaker 1>they did yesterday, I saw that as reversing in effect

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<v Speaker 1>the earlier um the case they decided just two terms ago,

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<v Speaker 1>and so they put in place an injunction to prevent

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<v Speaker 1>the Louisiana law from taking effect. This vote was a

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<v Speaker 1>bit of a departure for the Chief because in the

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<v Speaker 1>case you were talking about where the Supreme Court struck

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<v Speaker 1>down the Texas law and twenty sixteen Robert's dissented in

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<v Speaker 1>that case. Any inkling as to why the change here, well,

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<v Speaker 1>I think when the court gets the case on the merits,

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<v Speaker 1>there won't be a change in his position. What he's

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<v Speaker 1>doing is, I think, asserting the Supreme Court's exclusive power

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<v Speaker 1>to overrule its own precedence. Right. So in this instance

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<v Speaker 1>what happened is the lower court, the Fifth Circuit Court

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<v Speaker 1>of Appeals, in essence overruled the Supreme Courts precedent, and

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<v Speaker 1>Justice robertson part is voting the way he did because

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<v Speaker 1>he wants to make it clear that that's the Supreme

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<v Speaker 1>Court's job, not a lower courts job. So you think

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<v Speaker 1>that it's assumed that the Court will take up this case,

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<v Speaker 1>So it's a high probability that it will take up

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<v Speaker 1>this case. And you feel that he will vote with

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<v Speaker 1>the Conservatives, then so likely they will reverse their position

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<v Speaker 1>from I think that's overwhelmingly likely. Yes, when you look

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<v Speaker 1>at Justice roberts voting record in recent months, though he

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<v Speaker 1>has started with the liberals several times, hasn't he He's

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<v Speaker 1>been very careful lately. So yes, what you say is right,

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<v Speaker 1>and I think this case is a good example of that.

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<v Speaker 1>I think Justice Roberts did not want the Court to

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<v Speaker 1>be viewed as just a political entity, and so that

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<v Speaker 1>changing Justice Kennedy for Justice Kavanaugh would have an immediate

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<v Speaker 1>effect of overruling high profile precedents, especially in hot buttonary

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<v Speaker 1>is like abortion. So he wants to be much more

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<v Speaker 1>measured and careful in the way the Court proceeds because

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<v Speaker 1>he needs to protect the public perception that the Court

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<v Speaker 1>is being neutral and independent, whereas I think the other

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<v Speaker 1>conservatives in in his block really are getting impatient and

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<v Speaker 1>just want to move forward and start overruling a portion precedents.

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<v Speaker 1>Now there are cases coming up that would bring the

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<v Speaker 1>abortion issue into more of a focus. Are they likely

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<v Speaker 1>to take up those cases? Do they have the four

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<v Speaker 1>votes there to take them up? I think they clearly

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<v Speaker 1>have the four votes to take them up. In this

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<v Speaker 1>case is one that's a good example. So four votes

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<v Speaker 1>isn't enough to win, but it's enough to get the

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<v Speaker 1>court to review. And I think when this one comes

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<v Speaker 1>to the court, the court is going to reverse the

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<v Speaker 1>case from two years ago. But I think what that

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<v Speaker 1>shows is the Court is unlikely to ever actually come

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<v Speaker 1>out and directly over rule Roe versus Weight itself, because

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<v Speaker 1>if states can impose these kinds of restrictions on abortion,

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<v Speaker 1>they can, as a practical matter, make it unavailable and

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<v Speaker 1>make it effectively illegal, and then the Court doesn't have

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<v Speaker 1>to take that dramatic step of actually saying that Roe

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<v Speaker 1>versus Weight is overruled. And in that way, Justice raw

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<v Speaker 1>Bert's sort of gets what he wants, which is he

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<v Speaker 1>preserves the idea that the Court isn't just changing its

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<v Speaker 1>position because there are new members on the court that

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<v Speaker 1>it's independent and neutral. And yet as a practical matter,

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<v Speaker 1>ro versus Wade becomes meaningless except that in certain states,

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<v Speaker 1>certain Blue states, abortion would be available and it's unlikely

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<v Speaker 1>that state legislatures in those states would put restrictions on it. Right,

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<v Speaker 1>But if roversus Wade were overruled, those Blue states would

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<v Speaker 1>continue to make abortions legal, right, and overruling Road directly

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<v Speaker 1>wouldn't wouldn't require states to make abortion illegal. So if

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<v Speaker 1>Row were overruled, the result would be that in blue states,

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<v Speaker 1>presumably protections would remain in place, and in red states

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<v Speaker 1>abortion would be illegal. Allowing Red states to regulate abortion

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<v Speaker 1>out of existence without overruling Row comes to the same

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<v Speaker 1>d Now, let's just go back to this case for

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<v Speaker 1>a moment. Only the newest Justice, Brett Kavanaugh, published a descent.

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<v Speaker 1>Why and what did he say? So? His descent is

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<v Speaker 1>very technical. Um, you read it through. It doesn't say

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<v Speaker 1>anything about Roe versus Wade. It's very much based on

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<v Speaker 1>the his reading of the facts of the case. He

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<v Speaker 1>says it's possible for Louisiana's law to go into effect

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<v Speaker 1>in a way that wouldn't be disruptive to abortion providers.

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<v Speaker 1>You know, that's a that's a very selective reading of

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<v Speaker 1>the facts. The briefs on the other side, I think

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<v Speaker 1>demonstrated pretty convincingly that in fact, it would put all

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<v Speaker 1>of the abortion providers save for one doctor, out of

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<v Speaker 1>business right away. Looking forward from Justice Robert's record, can

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<v Speaker 1>you see what areas he might break with the Conservatives

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<v Speaker 1>or is that too hard to tell? Yeah, I don't

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<v Speaker 1>think he's going to break with the Conservatives in any

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<v Speaker 1>he is. What he might try to do is to

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<v Speaker 1>temper what the Conservatives are doing. So the other four

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<v Speaker 1>Conservatives seem like they want to make a full frontal

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<v Speaker 1>assault on liberal decisions like Row versus Wade, and I

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<v Speaker 1>think Justice Roberts wants to get to the same results

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<v Speaker 1>that they're trying to get to, but to do it

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<v Speaker 1>in a way that's not so dramatic and confrontational, so

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<v Speaker 1>that as a practical matter, Row will be meaningless. But

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<v Speaker 1>we don't have the rather dramatic headlines that say the

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<v Speaker 1>Supreme Court has overruled Row. Because if the Court goes

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<v Speaker 1>down that road, I think they lose the public perception

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<v Speaker 1>of their independence and justice. Roberts has been very eager

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<v Speaker 1>to promote and support that. That's Neil Kincoppa, Professor at

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<v Speaker 1>Georgia State University College of Law. Thanks for listening to

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<v Speaker 1>the Bloomberg Law Podcast. You can subscribe and listen to

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<v Speaker 1>the show on Apple podcast, SoundCloud out, and on Bloomberg

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

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<v Speaker 1>h