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Speaker 1: Bloomberg Radio. Chief Justice John Roberts has often talked about

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Speaker 1: the collegiality among the justices and how the Supreme Court

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Speaker 1: is different from the other institutions of government. There is

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Speaker 1: a concrete expression of that collegiality in a tradition at

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Speaker 1: the Court that has prevailed for over a century. Before

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Speaker 1: we go onto the bench to hear argument in the case,

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Speaker 1: and before we go into the conference room to discuss

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Speaker 1: the case, we pause for a moment and shake each

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Speaker 1: other's hand. But the Supreme Court became like every other

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Speaker 1: DC institution in one respect. It leaked. A series of

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Speaker 1: CNN stories by Joan bis Cubic based on unidentified sources,

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Speaker 1: revealed details of the maneuvering by the justice is behind

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Speaker 1: the scenes this term, including deliberations the justice is conducted

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Speaker 1: behind closed doors with no one else present. My guest

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Speaker 1: is constitutional law professor Stephen Vladdock of the University of

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Speaker 1: Texas Law School. Steve, how surprising was this from a

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Speaker 1: usually leakproof institution. It's surprising. I think it was the

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Speaker 1: volume of the leaks June that I found really unusual.

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Speaker 1: It wasn't just you know, one or two high profile

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Speaker 1: cases where we found out about someone the behind the

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Speaker 1: scenes machinations. It was actually just a s every major

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Speaker 1: case from the term, and so that's what to me

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Speaker 1: said it apart from leaks we've seen lately. I mean,

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Speaker 1: we know, for example from Jed Proford Greenberg that too

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Speaker 1: Justice Roberts had changed his vote in the Obamacare case

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Speaker 1: back in two twelve, so it's not unheard of. I

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Speaker 1: think it's a number of different leaks about this term

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Speaker 1: that really made this run on stories. I think so unusual.

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Speaker 1: And of course we know that in the past there

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Speaker 1: have been many instances where justices themselves have leaked information.

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Speaker 1: So you can narrow the leakers down to a handful

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Speaker 1: of people, the clerks, spouses, and the justices themselves. Perhaps

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Speaker 1: it could be a justice. Oh, I wouldn't be surprised

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Speaker 1: at all, And indeed, I think it's actually least likely

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Speaker 1: that's the leaders in this case, where staff or clerks,

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Speaker 1: because they're the ones who would face the most serious

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Speaker 1: professional ramifications if it was ever found out that they

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Speaker 1: were the speakers. It wouldn't surprise me at all if

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Speaker 1: at least some of these leaks are from the justices

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Speaker 1: or from their houses, you know, from individuals who might

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Speaker 1: get a little egg on their faces if we find

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Speaker 1: out that they were the leaders who aren't going to

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Speaker 1: suffer any direct professional consequences of somehow that comes out.

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Speaker 1: So what would be the intent of leaking in this case,

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Speaker 1: what would be the benefit to a leaker? I mean,

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Speaker 1: I think the intent could be multiple things. Some of

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Speaker 1: these leaks were clearly designed to embarrass Chief Justice Roberts.

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Speaker 1: I think some of the leaks are to give come

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Speaker 1: insight into why things didn't go the way that maybe

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Speaker 1: conservatives had predicted. And I think that's why a lot

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Speaker 1: of the speculation has centered on, for example, Justice Leado,

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Speaker 1: Justice Thomas, maybe even Jimmy Thomas, because it doesn't make

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Speaker 1: sense why, for example, some of the most progressive justices

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Speaker 1: would want some of these stories out there. So all

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Speaker 1: that's just to say that I think there are lots

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Speaker 1: of folks with different agendas when it comes to the

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Speaker 1: Supreme Court, and I think in this case those agendas

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Speaker 1: probably he had something to do with making it clearly

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Speaker 1: the public that behind the scenes sort of shifts this

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Speaker 1: term and all the big moves really were by the

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Speaker 1: Chief Justice, which you know, frankly, Jane, is something we

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Speaker 1: already were fairly confident of exactly you know what I saw.

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Speaker 1: I was interesting, but nothing shocked me. What was the

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Speaker 1: most surprising thing to you? I wasn't shocked by almost

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Speaker 1: any of it, June. I was a little surprised in

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Speaker 1: the story about Justice Kavanaugh, the extent to which he

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Speaker 1: really had been pushing the Court in the Trump financial

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Speaker 1: records cases to consider this off ramp to hold these

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Speaker 1: kinds of disputes are categorically nonjusiciable, because that's at least

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Speaker 1: to something inconsistent with what then Judge Kavanaugh had written

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Speaker 1: about the political question doctrine when he was on the

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Speaker 1: TV surface, he was quite critical of the doctor and

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Speaker 1: being used and exactly the manner it sounds like he

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Speaker 1: was proposing. So that surprised me a bit. See could

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Speaker 1: seem inconsistent with priors. But the more general stories about

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Speaker 1: horse trading and about switching about majority's coalescent, as the

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Speaker 1: opinions wrote, I mean that's part the court. I think

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Speaker 1: the notion that the Court takes one very clean vote

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Speaker 1: at conference and then writes clean opinion and the votes

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Speaker 1: never moved, I think there's belied by every single piece

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Speaker 1: of historical evidence we have what's different this year is

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Speaker 1: that we're just tribute to those ships a little bit

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Speaker 1: faster and more publicly than its typical. A lot was

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Speaker 1: written about Chief Justice John Roberts maneuvering on controversial cases.

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Speaker 1: Did it seem as if he exerted his power more

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Speaker 1: this term than in previous terms? Yes, I mean, I

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Speaker 1: think there's no question that the Chief Justice was at

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Speaker 1: the center of this term. I think in a way

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Speaker 1: on like any of his prior terms on the Court,

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Speaker 1: and frankly jud probably onlike any other justice in gosh,

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Speaker 1: maybe even a century. I think that was a subdably

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Speaker 1: though a matter of circumstance, that it was the kinds

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Speaker 1: of cases the Court had and the climate in which

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Speaker 1: they are being decided. You know, It's easy enough to

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Speaker 1: imagine a term with a different slate of cases where

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Speaker 1: the chief institutionalism wouldn't be as on display, where there

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Speaker 1: might be more weird five four majorities, where maybe a

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Speaker 1: Gorsets switching side, maybe even Kavanaugh, or fractured ones where

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Speaker 1: you have just a total mash of the justices. I

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Speaker 1: guess it was the nature of the dock at this term,

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Speaker 1: the visibility of what was going on, and you know

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Speaker 1: the fact that almost all of the big cases came

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Speaker 1: down to the chief's vote. In that context, of course,

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Speaker 1: you know he's going to be the one who controlled

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Speaker 1: all of that, added to the fact that he's of

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Speaker 1: course already administratively responsible for the court assigning opinions, running

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Speaker 1: the ship behind the scene. So I think both the

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Speaker 1: term where the chief a third himself and where any

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Speaker 1: chief of his position would have had to is there

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Speaker 1: one case where the CNN articles showed that he exerted

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Speaker 1: more influenced than others. There was an emphasis on the

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Speaker 1: Docta case. Yeah, and then here's the Doctor case. All

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Speaker 1: along really was the bell Weather and there was some

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Speaker 1: sort of speculating why court watchers as to whether there

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Speaker 1: was some behind the back nation. And one of the

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Speaker 1: things I think comes out in the stories if the

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Speaker 1: report is accurate, is that no, the Chief was actually

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Speaker 1: a reliable vote or the oulengers from the very first

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Speaker 1: time they method unlike the LGBT cases on like a

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Speaker 1: couple of other cases where thins to shift as the

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Speaker 1: opinions were writing. You know, the five four majority we

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Speaker 1: saw in the Doctor division really was consistent with the

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Speaker 1: very original voted conference and jets tell us me, because

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Speaker 1: the doctor looked so much like the sensive citizenship case

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Speaker 1: from last term, where we know the Chief actually did

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Speaker 1: have a change of heart, And so I think it's

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Speaker 1: interesting that in a very similar concept where it's really

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Speaker 1: a question of just how much you know, administration has

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Speaker 1: to turn square corner, where the year ago the Chief

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Speaker 1: really agonized over it, this year he seemed with ruling

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Speaker 1: against the president. From the get go. There was a

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Speaker 1: lot of talk that the Justices might take more Second

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Speaker 1: Amendment cases this upcoming term after the New York case

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Speaker 1: last term was found to be moved, and then when

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Speaker 1: it turned out that they didn't take any Second Amendment cases,

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Speaker 1: there was a lot of speculation that the Conservatives couldn't

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Speaker 1: find a fifth vote, and this CNN reporting confirmed that

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Speaker 1: Roberts sent signals that he wouldn't be the fifth vote

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Speaker 1: to overturn gun regulations. I think that may be, in

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Speaker 1: some respects the biggest headline and the biggest surprise out

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Speaker 1: of all of the stories that least out of the court.

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Speaker 1: We knew that the Court had basically decided not to

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Speaker 1: jump in on another big Second amendic case, but we

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Speaker 1: didn't know why. We were pretty short was because you know,

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Speaker 1: at least some of the justices were wary of whether

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Speaker 1: they have a fifth vote, but we didn't know that

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Speaker 1: the fifth vote they were wary of was the Chief.

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Speaker 1: So I don't know to the that's because he had

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Speaker 1: sought in his views on the Second Amendment. I mean,

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Speaker 1: he was in the majority in Heller, and he's the

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Speaker 1: majority of McDonald's in I think it might just be

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Speaker 1: more that those cases now are touching his institutional sensibilities

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Speaker 1: in a way that they wouldn't have ed didn't when

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Speaker 1: he wasn't the media justice. And that's why I think

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Speaker 1: it's super interesting coming up next on the Bloomberg Law Show,

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Speaker 1: how the Justice his votes changed in the Trump's subprena cases.

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Speaker 1: There was a remarkable breach of the Supreme Courts rules

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Speaker 1: of confidentiality as a series of CNN stories based on

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Speaker 1: unidentified sources revealed the inner workings of the court. Will

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Speaker 1: it affect that justice is deliberations in the future deliberations

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Speaker 1: Chief Justice John Roberts has described as almost sacrosanct. I

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Speaker 1: am instead talking about a shared commitment to a genuine

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Speaker 1: exchange of ideas and views through each step of the decision. Process.

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Speaker 1: We need to know at each step that we are

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Speaker 1: in this together. I've been talking to Professor Stephen Vladdock

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Speaker 1: of the University of Texas Law School. Steve one instance

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Speaker 1: that I thought really illustrates what can happen during the

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Speaker 1: drafting process and circulating of opinions was the Georgia copyright case.

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Speaker 1: Justice Thomas lost the majority opinion in that case. Tell

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Speaker 1: us what happened? Yeah, I mean, so this is you know,

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Speaker 1: court watchers are always looking at the sort of distribution

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Speaker 1: of opinions over the course of a sit in. Until

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Speaker 1: in December of last year, the court for twelve cases

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Speaker 1: and Chief this Roberts has two opinions, Justice Ginsbrook had

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Speaker 1: to Justice Briar had too, and Justice Thomas had none.

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Speaker 1: And I think everyone assumed that that meant that one

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Speaker 1: of the opinions written by the Chief Organsburg or Briar

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Speaker 1: had been originally assigned to Justice Thomas, Because the Chief

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Speaker 1: tries to assign evenly and says sort of, the working

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Speaker 1: theory was that Thomas had lost a majority along the way.

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Speaker 1: That's not unusual, I mean, right, it happens that, you know,

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Speaker 1: the original voted conference is a little tentative and that

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Speaker 1: once the Justice assigns to write the majority opinions that

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Speaker 1: doubt to work. Maybe folks get a little bit sort

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Speaker 1: of pushed away from the position that they had tentatively

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Speaker 1: endorsed the conference. I think it was a bit of

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Speaker 1: a surprise that it was the Georgia copyright paste, because

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Speaker 1: I didn't seem to be quite as high profile and

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Speaker 1: some of the other big pastes. There was a Wall

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Speaker 1: Street Journal editorial that painted Justice Elana Kagan as the

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Speaker 1: sort of secret power on the court, you know, the

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Speaker 1: one who could sway Roberts. What did these articles show

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Speaker 1: about her role? Folks have assumed for some time now

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Speaker 1: that the Chief and Justice Kagan are pretty close. They

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Speaker 1: always talk reverently about each other in public. They seem

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Speaker 1: to not be quite as sharp in their criticisms of

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Speaker 1: each other when they're on opposite size off the case,

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Speaker 1: and so I think this is a lot of sort

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Speaker 1: of assumption and premise. But it does seem that the

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Speaker 1: Chief in general was sympathetic at least in more cases

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Speaker 1: than we might have expected to the positions being embraced

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Speaker 1: by the more progressive justice. It wouldn't surprise me at

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Speaker 1: all as Justice Cagan was the ambassador from that coalition.

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Speaker 1: I think she and the Chief speak the same language

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Speaker 1: in a way that perhaps the Chief and say Justice

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Speaker 1: said of I, or don't tell us about the change

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Speaker 1: in votes. In the case involving LGBT rights, we learned

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Speaker 1: that there had initially been some discussion that perhaps even

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Speaker 1: a tendant to vote a conference for the Court to

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Speaker 1: split the difference and for the Court to actually hold

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Speaker 1: that yes, Title seven applied to discrimination on the basis

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Speaker 1: of sexual orientation, but actually they did not apply to

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Speaker 1: discrimination on the basis of transgender status, and that there

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Speaker 1: was originally a five four majorities that way, and that

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Speaker 1: as Jefice course, that's sort of set to work on

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Speaker 1: the opinion, a majority really coalesced around extended entitle sevens

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Speaker 1: of both of those categories. One of the things that

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Speaker 1: probably happened there, if these stories are right, is that

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Speaker 1: it was very hard to actually write an opinion that

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Speaker 1: drew the distinction that might have made sense when it

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Speaker 1: was first discussed. And this is why the opinion writing

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Speaker 1: process is such an important part of the Court's work,

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Speaker 1: because you know, there's an old expression that sometimes an

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Speaker 1: argument just won't write because it might sound good when

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Speaker 1: you sort of make the elevator pitch version of the

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Speaker 1: June But when you actually have to put it to

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Speaker 1: paper and send pages defending the analysis, that oftentimes might

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Speaker 1: be the biggest clue that the analysis doesn't work. In

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Speaker 1: some cases, things change not because the justices have wildly

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Speaker 1: switched or because they've been persuaded by some public pressure,

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Speaker 1: but simply because the opinion they thought they were writing.

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Speaker 1: You know, it doesn't turn out to be that convinced.

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Speaker 1: The cases that got the most attention from the media

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Speaker 1: and the public, where the Trump subpoena cases, those were

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Speaker 1: seven to two votes, and apparently the first vote was close.

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Speaker 1: Tell us what happened behind the scenes after the first close.

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Speaker 1: So apparently there was some discussion of sort of splitting

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Speaker 1: the difference and having the Vance case, the case about

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Speaker 1: the New York c A have the Court come out

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Speaker 1: pretty aggressively in favor of Vance and against Trump. But

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Speaker 1: then the congressional case would have gone five four the

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Speaker 1: other way, where the Chief Justice and the other conservative

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Speaker 1: justices would have actually been much more critical of the

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Speaker 1: congressional copis. And the report doesn't surprise me that in

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Speaker 1: both cases the court sort of moved away from such

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Speaker 1: a sharply divided opinions and toward more of a consensus results.

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Speaker 1: So we got a pair of seven to two opinions

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Speaker 1: where there's a little bit for everybody. I think that's

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Speaker 1: again probably the role of the chief where if it

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Speaker 1: would have been very clear to the justices the importance

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Speaker 1: of not coming down with two five four sharply divided

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Speaker 1: conservative versus progressive splits in those cases, but rather to

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Speaker 1: even if it meant sacrificing some of the analysis, having

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Speaker 1: the court speak with one voice as much as possible.

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Speaker 1: If anything, in the long term, that may be the

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Speaker 1: same we remember most about the Chief Justice and this

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Speaker 1: term was that in the cases that matter, not only

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Speaker 1: did he tend, with a couple of exceptions to put

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Speaker 1: his institutional concerns ahead of his own preferences, but that

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Speaker 1: he also tried as best as possible to keep the

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Speaker 1: court not out of politics student because that's never gonna happen,

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Speaker 1: but at least out of the naked tribalism of contemporary

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Speaker 1: politics as much as possible. Yeah, there wasn't a perfect success,

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Speaker 1: but I think it was a lot more successful than

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Speaker 1: we might have predicted at the start of the ERN right,

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Speaker 1: because the president the Nixon and Clinton cases were unanimous decisions,

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Speaker 1: so it really would have look it would have looked

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Speaker 1: bad if they had a five to four decisions exactly right.

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Speaker 1: And I think it's not just you know, the sort

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Speaker 1: of the shadow of the precedent of the Nixon and

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Speaker 1: versus Jones case. I think it was also just you know,

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Speaker 1: understanding the moment we are in in American history and

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Speaker 1: understanding the importance of trying to show that the courts

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Speaker 1: have a function that is not just about you know,

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Speaker 1: who has more votes, um, and that's not simply a

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Speaker 1: question of who appointed the most judges, that there actually

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Speaker 1: are some you know, over arching, neutral legal principles that

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Speaker 1: control even if you might not like the result. Now

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Speaker 1: more than ever, June, I think that's a message we

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Speaker 1: all need to hear. And I think it's pretty important

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Speaker 1: that the court you know, consciously tried to send it.

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Speaker 1: There wasn't a lot of dirt, so to speak. There

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Speaker 1: wasn't a lot of dirt um the liberal justices. Yeah,

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Speaker 1: I mean, I think you know, that's I think that's

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Speaker 1: probably because on the one hand, you know, I don't

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Speaker 1: think it was necessarily the progressives who were released in

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Speaker 1: UM so another hand, because I think you know the sort.

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Speaker 1: It's not a surprise to anyone that in the major cases,

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Speaker 1: you know, most of the of the progressive justices voted

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Speaker 1: the way they did. I mean there a couple of exceptions.

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Speaker 1: Justice Brier had a couple of strange votes. UM in

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Speaker 1: some of the religion cases, for example, Friar and Kagan,

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Speaker 1: you know, join more conservative majorities. UM. But I think

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Speaker 1: you know that the intrigue of the term June wasn't

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Speaker 1: really so much about what was happening with the four

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Speaker 1: more progressive justices. It was about the cases where they

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Speaker 1: somehow found a fit or even a six vote, And

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Speaker 1: I think that was much less about them, and it

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Speaker 1: was about the conservative justices who switched over. And I

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Speaker 1: think that's why the stories have been focused there. You know,

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Speaker 1: I don't think anyone's surprised that justice so to my order,

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Speaker 1: does the Skinsburg where is the way they did in

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Speaker 1: boss Stuck in the abortion case, in the Trump financial

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Speaker 1: records cases. You know, the dirt is always going to

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Speaker 1: be about the surprises. Do you think there'll be any

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Speaker 1: consequences to these leaks? Will they be the justices be

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Speaker 1: less communicative. Will there be a search for the leaks?

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Speaker 1: You know, I I don't know. There's a news Week

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Speaker 1: column out this week, Um arguing that, you know, this

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Speaker 1: is a really big problem, that the Chief has let

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Speaker 1: it get out of control, and that if you can't

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Speaker 1: kind of under control, he should resign. Um. I don't

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Speaker 1: think we're anywhere close to that kind of dramatic Danu Mathia.

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Speaker 1: I mean, the Court has leaked before, and it will

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Speaker 1: leak again, you know. I think the real question is

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Speaker 1: whether the Court thinks that these kinds of leaks are

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Speaker 1: actually damaging to the institution. And you know, my sort

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Speaker 1: of gut reaction is that people like you and I

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Speaker 1: care a lot about these leaks. Um, And maybe you

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Speaker 1: know it's the advocates before the Court and the Supreme

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Speaker 1: Court pressed Carol about these leaves. I'm not sure that

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Speaker 1: there's any real traction, you know, among the sort of

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Speaker 1: society at large more broadly, who are shocked to discover

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Speaker 1: that every once in a while, someone in Washington. I'd

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Speaker 1: be surprised if anything formal comes out of this in response.

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Speaker 1: You know, maybe there's a little bit more of an

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Speaker 1: effort behind the scenes to discourage this kind of wee

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Speaker 1: can buy the justices, but of course if that effort successful,

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Speaker 1: we'd never hear about it. Thanks for being on the

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Speaker 1: Bloomberg Law Show, Steve. That's Steven Vladdock, professor at the

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Speaker 1: University of Texas Law School. This week, the Supreme Court

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Speaker 1: blocked a lower court order that required four California jail

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Speaker 1: facilities to take specific steps to curb COVID nineteen. The

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Speaker 1: five to four decision is in line with about two

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Speaker 1: dozen emergency requests received by the Justices challenging federal, state,

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Speaker 1: or local orders during the pandemic. The Court hasn't shown

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Speaker 1: much willingness to second guess emergency orders issued by public

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Speaker 1: officials on COVID nineteen, rejecting churches challenging shutdown order, and

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Speaker 1: voters seeking more options for casting ballots safely. Joining me

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Speaker 1: is Neil Kincaugher, professor at the Georgia State University College

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Speaker 1: of Law. Neil, is there a single legal principle that's

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Speaker 1: common to all these emergency rulings. Well, I think it's

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Speaker 1: dangerous to think of it as falling under a single

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Speaker 1: legal principle. The cases involved different regulations and involve different

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Speaker 1: regal challenges, so it's hard to draw any kind of

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Speaker 1: general conclusions from them, but there are a few points

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Speaker 1: that you can make it, I think of a broad

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Speaker 1: level of generality. One of those points is that the Court,

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Speaker 1: I think, would like to defer to the decisions of

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Speaker 1: local public health officials. And that's something that is sort

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Speaker 1: of deep in the Court. D n A. There's a

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Speaker 1: line of cases from the late eighteen hundreds and early

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Speaker 1: nineteen hundreds dealing with quarantines, generally not dealing with people

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Speaker 1: being quarantined, but with quarantine of things like germ infected

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Speaker 1: rags or diseased animal carcasses. And in that line of cases,

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Speaker 1: the Supreme Court was extremely deferential to the judgments of

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Speaker 1: local officials that particular safety measures needed to be undertaken

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Speaker 1: to protect the public health. And I think that you

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Speaker 1: see that reflected in the Court's opinions from that time.

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Speaker 1: But all the way up to the present, the Court

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Speaker 1: knows that it doesn't know what is best for public health,

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Speaker 1: and so it's going to be strongly inclined to defer

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Speaker 1: to legitimate public health determinations of local officials. They seem

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Speaker 1: to have consistently refused to exempt religious services from crowd

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Speaker 1: sized limitations imposed by state officials. But in many of

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Speaker 1: those cases, if not all, it was five to four

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Speaker 1: the liberals versus the conservatives, and it really was the

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Speaker 1: Chief Justice who ended up making the decision. So if

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Speaker 1: there were strong cases, well what is the sent say

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Speaker 1: in those cases? Right? So, at some point public health

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Speaker 1: regulations can run into fundamental constitutional protections, and religious liberty

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Speaker 1: would be one of those. Another of those would be

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Speaker 1: fundamental voting rights components of the Constitution. So if you

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Speaker 1: think about the religious liberty situation, I think the Court

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Speaker 1: is going to tend to be deferential to local determinations

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Speaker 1: as long as their science based and as long as

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Speaker 1: they're neutrally applied. The most prominent of the religion challenges

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Speaker 1: that's reached the Court so far as the one out

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Speaker 1: of California, and in that one, California treated religion better

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Speaker 1: than it treated similar businesses, and so the religion argument

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Speaker 1: against what California had done was remarkably weak. And it

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Speaker 1: really tells you just how strongly the Court has swung

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Speaker 1: in fa favor of protecting religion that four members nevertheless

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Speaker 1: would have struck down California's regulation. The other way that

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Speaker 1: this can come up is if you think of the

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Speaker 1: Wisconsin situation with respect to their primary election. Wisconsin decided,

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Speaker 1: and I wouldn't say this was because of public health considerations,

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Speaker 1: but the Wisconsin state legislature decided to stick with its

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Speaker 1: existing election laws. And when that is introduced in the

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Speaker 1: time of a pandemic, it creates real infringements, real and

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Speaker 1: practical infringements on the ability of people to exercise the franchise.

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Speaker 1: And so in a case like that, it's well within

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Speaker 1: the Court's per view and in fact, well within what

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Speaker 1: the Court has historically always done to say that while

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Speaker 1: we defer to the science judgments of of the local officials,

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Speaker 1: if they in inge people's right to vote, then the

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Speaker 1: Constitution has something to say about that. And so the

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Speaker 1: Court's unwillingness to apply those kinds of considerations in the

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Speaker 1: Wisconsin situation that was a real break with what the

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Speaker 1: Court typically does in voting kinds of cases. And and

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Speaker 1: the case it most clearly flew in the face of

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Speaker 1: was Bush versus Gore. The Supreme Court in that case

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Speaker 1: did not simply defer to Florida and how it wanted

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Speaker 1: to run its election. It said, we think that how

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Speaker 1: you want to run your election runs contrary to the

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Speaker 1: constitutional principle of one person, one vote. Even though it

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Speaker 1: was rather a stretch to say that that was the case,

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Speaker 1: that's what the court held in that case. Well, if

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Speaker 1: that's true, it's equally possible that Wisconsin's rules violate all

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Speaker 1: kinds of constitutional protections relating to the ability of individuals

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Speaker 1: to exercise their vote. Was that a five to four decision,

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Speaker 1: it was, and again Justice Roberts was in the majority.

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Speaker 1: And the way he could reconcile those votes by saying

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Speaker 1: that he consistently deferred to local law, although I don't

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Speaker 1: think that really explains what he was doing in those cases.

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Speaker 1: In the California case, I don't think he was particularly

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Speaker 1: deferential to California. He just realized what any reasonable person

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Speaker 1: would realize, and that is that California wasn't discriminating against religion.

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Speaker 1: In fact, they were treating religion better. Houses of worship

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Speaker 1: were not categorized with what you might otherwise have thought

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Speaker 1: of as similar businesses. And then in the Wisconsin case,

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Speaker 1: instead of saying he simply deferred, he said that the

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Speaker 1: court was addressing a very narrow technical question about the

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Speaker 1: meaning of Wisconsin law and so he claimed he didn't

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Speaker 1: have to get to the constitutional questions. Of course, the

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Speaker 1: technical application of Wisconsin's law was the very thing that

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Speaker 1: implicated the constitutional right to vote, and the dissenters at

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Speaker 1: that point quite forcefully. So it's possible to say he's

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Speaker 1: simply deferring to the states. But if you really get

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Speaker 1: into what he's deciding, that doesn't actually explain his votes.

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Speaker 1: The court reinstating Idaho's rules for ballot initiatives, does that

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Speaker 1: fit under that reasoning that could be put under the

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Speaker 1: reasoning of the court deferring to the state's regulations. Yeah,

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Speaker 1: you could describe it that way. Again. I'm troubled though,

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00:23:27,320 --> 00:23:31,840
Speaker 1: by a court simply deferring to those kinds of local

436
00:23:31,920 --> 00:23:37,040
Speaker 1: election laws, because they're not really public health determinations, and

437
00:23:37,080 --> 00:23:41,800
Speaker 1: they're not public health determinations being made by public health officials.

438
00:23:41,840 --> 00:23:47,320
Speaker 1: They are, in fact, political determinations being made by political actors,

439
00:23:47,440 --> 00:23:51,560
Speaker 1: and they're not even sort of disinterested political actors. These

440
00:23:51,600 --> 00:23:55,640
Speaker 1: are elections that those political figures themselves. These are elections

441
00:23:55,640 --> 00:23:59,479
Speaker 1: they're running it. We anticipate that in the run up

442
00:23:59,520 --> 00:24:01,400
Speaker 1: to the election there are going to be a lot

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00:24:01,440 --> 00:24:05,800
Speaker 1: of emergency petitions for the court based on voting in

444
00:24:05,880 --> 00:24:10,000
Speaker 1: person voting versus voting by mail. There are all kinds

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00:24:10,000 --> 00:24:12,439
Speaker 1: of issues percolating through the lower courts. It seems like

446
00:24:12,440 --> 00:24:15,840
Speaker 1: there's another case every day. Do these rulings indicate what

447
00:24:15,920 --> 00:24:19,119
Speaker 1: the Roberts Court is likely to do with regard to

448
00:24:19,240 --> 00:24:22,880
Speaker 1: future emergency election issues that may come up. I don't

449
00:24:22,920 --> 00:24:25,040
Speaker 1: think it tells us very much. And I think it

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00:24:25,240 --> 00:24:28,560
Speaker 1: may tell us that there is some preference on the

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00:24:28,600 --> 00:24:35,520
Speaker 1: part of the Chief himself not to reverse local election laws.

452
00:24:35,560 --> 00:24:39,159
Speaker 1: But the election in November is going to be a

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00:24:39,280 --> 00:24:42,760
Speaker 1: federal election in addition to a state election, and so

454
00:24:42,800 --> 00:24:46,359
Speaker 1: it's going to implicate federal laws as well as state laws,

455
00:24:46,520 --> 00:24:49,359
Speaker 1: and so the idea of deferring to the state won't

456
00:24:49,400 --> 00:24:52,879
Speaker 1: apply with the same force that it does in these

457
00:24:52,920 --> 00:24:57,560
Speaker 1: primary situations where there aren't federal laws dictating what happens,

458
00:24:57,600 --> 00:25:02,000
Speaker 1: right federal statute dictating what happened? What about past decisions

459
00:25:02,040 --> 00:25:06,080
Speaker 1: of the court as far as voting rights. Does that

460
00:25:06,200 --> 00:25:10,000
Speaker 1: indicate that the Court will tend to be conservative when

461
00:25:10,040 --> 00:25:14,159
Speaker 1: it comes to the questions that arise in regard to

462
00:25:14,440 --> 00:25:18,040
Speaker 1: voting by mail? That would be the indication. We don't

463
00:25:18,080 --> 00:25:23,200
Speaker 1: have cases directly on vote by mail. But certainly the

464
00:25:23,280 --> 00:25:28,240
Speaker 1: trend in election related cases has been that the Republican

465
00:25:28,280 --> 00:25:31,600
Speaker 1: Party wins. That's been the trend in the Supreme Court,

466
00:25:31,880 --> 00:25:35,439
Speaker 1: and so I would expect for the Supreme Court to

467
00:25:35,480 --> 00:25:39,159
Speaker 1: continue that trend this fall. And do you see in

468
00:25:39,160 --> 00:25:42,160
Speaker 1: in all these cases, is it really up to Justice

469
00:25:42,280 --> 00:25:46,720
Speaker 1: Roberts in the end? Right? He has positioned himself that way, Um,

470
00:25:46,840 --> 00:25:50,040
Speaker 1: And he seems to have sought that role, and that

471
00:25:50,200 --> 00:25:53,840
Speaker 1: is absolutely one that he has embraced. This term shows it.

472
00:25:53,960 --> 00:25:57,280
Speaker 1: But we've seen it over the past years, and cases

473
00:25:57,359 --> 00:26:02,840
Speaker 1: like well, the Obamacare cases come very quickly to mind. Um,

474
00:26:02,920 --> 00:26:05,359
Speaker 1: he is to the extent there is a swing vote

475
00:26:05,359 --> 00:26:08,560
Speaker 1: on the Supreme Court, he is it. And so all

476
00:26:08,600 --> 00:26:10,840
Speaker 1: of the arguments in those cases are going to be

477
00:26:10,920 --> 00:26:14,440
Speaker 1: pitched to him. What do you see in his jurisprudence

478
00:26:14,480 --> 00:26:18,439
Speaker 1: this this past term, for example, the abortion case, the

479
00:26:18,520 --> 00:26:22,520
Speaker 1: DOCTA case, the lgbt Q case. Do you see him

480
00:26:22,560 --> 00:26:26,879
Speaker 1: trying to sort of mollify the public or present this

481
00:26:26,960 --> 00:26:30,880
Speaker 1: image of the court as not being one sided? Oh?

482
00:26:30,960 --> 00:26:33,800
Speaker 1: I think he has been. He has been adamant about

483
00:26:33,960 --> 00:26:40,040
Speaker 1: presenting the court as not one sided and as not partisan. Um,

484
00:26:40,160 --> 00:26:43,520
Speaker 1: you'll recall when he rebuked President Trump for talking about

485
00:26:44,240 --> 00:26:48,880
Speaker 1: UM judges by reference to which President has pointed them UM.

486
00:26:48,960 --> 00:26:51,600
Speaker 1: And he came back and said, there aren't Clinton judges

487
00:26:51,640 --> 00:26:55,280
Speaker 1: and Obama judges. There are just judges, and that is

488
00:26:55,359 --> 00:26:58,520
Speaker 1: crucial to the legitimacy of the Court and ultimately to

489
00:26:58,600 --> 00:27:03,320
Speaker 1: the Court's power. And Chief Justice Roberts understands that, I

490
00:27:03,359 --> 00:27:07,480
Speaker 1: think at a very fundamental level, UM, and so everything

491
00:27:07,560 --> 00:27:12,800
Speaker 1: he does is calculated to preserve the public perception that

492
00:27:12,920 --> 00:27:16,640
Speaker 1: the Court is not partisan. Along this line, I wanted

493
00:27:16,680 --> 00:27:20,640
Speaker 1: to get your take on the Center for American Progress

494
00:27:20,760 --> 00:27:25,080
Speaker 1: is the latest progressive group to back term limits for justices.

495
00:27:25,840 --> 00:27:28,240
Speaker 1: Do you think this will ever come to be? No,

496
00:27:28,600 --> 00:27:33,920
Speaker 1: it requires a constitutional amendment. UM, and so to impose

497
00:27:34,200 --> 00:27:39,600
Speaker 1: a set term on Supreme Court or federal judges would

498
00:27:39,640 --> 00:27:44,600
Speaker 1: require something that virtually never happens. The Constitution has been

499
00:27:44,640 --> 00:27:49,080
Speaker 1: amended at most twenty seven times, right, There's some debate

500
00:27:49,119 --> 00:27:54,800
Speaker 1: about what the legitimacy of but assuming it's twenty seven times,

501
00:27:55,160 --> 00:27:58,600
Speaker 1: ten of those came in the first Congress. So in

502
00:27:58,640 --> 00:28:02,000
Speaker 1: the more than two ThReD years since then, it's only

503
00:28:02,040 --> 00:28:07,879
Speaker 1: been amended seventeen times. It's extraordinarily difficult to do um,

504
00:28:08,320 --> 00:28:13,040
Speaker 1: and it has never been the case that an amendment

505
00:28:13,080 --> 00:28:17,440
Speaker 1: has been adopted in order to reform the federal courts.

506
00:28:18,080 --> 00:28:22,240
Speaker 1: Some Democrats are advancing the idea of court packing. The

507
00:28:22,280 --> 00:28:24,720
Speaker 1: Democrats would have to win I I take it the

508
00:28:25,040 --> 00:28:28,160
Speaker 1: House and the Senate in order for that to even

509
00:28:28,200 --> 00:28:32,880
Speaker 1: be thought of as a possibility. That's right, But unlike

510
00:28:33,119 --> 00:28:37,119
Speaker 1: a term limit, the idea of adding seats to the

511
00:28:37,160 --> 00:28:41,120
Speaker 1: Supreme Court is something that Congress can do by ordinary legislation.

512
00:28:41,240 --> 00:28:45,760
Speaker 1: So simply passing a statute and so that is that

513
00:28:45,960 --> 00:28:50,320
Speaker 1: is a perfectly legitimate thing for Congress to contemplate and

514
00:28:50,600 --> 00:28:53,760
Speaker 1: ultimately to do if they if they see fit um.

515
00:28:53,760 --> 00:28:56,600
Speaker 1: There was a time in the mid nineteenth century when

516
00:28:56,640 --> 00:28:59,680
Speaker 1: there were ten seats on the Supreme Court, so adding

517
00:28:59,680 --> 00:29:03,719
Speaker 1: another their seat wouldn't be unprecedented even um. But the

518
00:29:03,760 --> 00:29:07,640
Speaker 1: size of the Supreme Court is left entirely to Congress's discretion,

519
00:29:08,000 --> 00:29:11,160
Speaker 1: and they can add seats as they see fit um.

520
00:29:11,200 --> 00:29:15,400
Speaker 1: To characterize adding seats as court packing is it strikes

521
00:29:15,480 --> 00:29:19,920
Speaker 1: me ten benches um, because it's just as easy to

522
00:29:19,960 --> 00:29:24,880
Speaker 1: say that well. The Senate's manipulation of justice, Scalia's vacancy,

523
00:29:25,080 --> 00:29:29,040
Speaker 1: refusing to even allow a hearing from Mark Garland was

524
00:29:29,080 --> 00:29:33,000
Speaker 1: itself court packing, and that adding a seat and adding

525
00:29:33,040 --> 00:29:37,520
Speaker 1: a replacement justice um unpacks the court. Thanks for being

526
00:29:37,520 --> 00:29:40,360
Speaker 1: on the Bloomberg Law Show, Neil. That's Neil Kinkoff, a

527
00:29:40,400 --> 00:29:44,160
Speaker 1: professor at the Georgia State University College of Law. And

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00:29:44,200 --> 00:29:47,280
Speaker 1: that's it for this addition of Bloomberg Law. I'm June Grasso.

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00:29:47,480 --> 00:29:49,880
Speaker 1: Thanks so much for listening, and remember to change the

530
00:29:49,880 --> 00:29:53,160
Speaker 1: Bloomberg Law Show every week night, attend m Eastern right

531
00:29:53,200 --> 00:29:54,520
Speaker 1: here on Bloomberg Radio.