1
00:00:03,520 --> 00:00:07,040
Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

2
00:00:07,120 --> 00:00:09,680
Speaker 1: day we bring you insight and analysis into the most

3
00:00:09,720 --> 00:00:12,200
Speaker 1: important legal news of the day. You can find more

4
00:00:12,240 --> 00:00:16,160
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

5
00:00:16,280 --> 00:00:20,360
Speaker 1: and on Bloomberg dot com slash podcasts. Chief Justice John

6
00:00:20,440 --> 00:00:23,040
Speaker 1: Roberts is showing a new willingness to side with the

7
00:00:23,079 --> 00:00:26,840
Speaker 1: Supreme Court's liberal wing, joining the liberals and two rulings

8
00:00:26,920 --> 00:00:30,400
Speaker 1: last Wednesday that left the Conservatives in dissent. The Chief

9
00:00:30,440 --> 00:00:33,120
Speaker 1: has been open about his desire to protect the federal

10
00:00:33,240 --> 00:00:38,080
Speaker 1: judiciaries institutional reputation from charges of partisanship. During an appearance

11
00:00:38,120 --> 00:00:41,879
Speaker 1: at Belmont University in Nashville last month, Robert said the

12
00:00:41,920 --> 00:00:45,880
Speaker 1: public's perception of the Court is becoming skewed after seeing

13
00:00:45,960 --> 00:00:50,080
Speaker 1: confirmation battles that end up in party line votes. People

14
00:00:50,120 --> 00:00:53,040
Speaker 1: need to know that we're not doing politics. They need

15
00:00:53,080 --> 00:00:56,200
Speaker 1: to know that we're doing something different, um that we're

16
00:00:56,240 --> 00:00:58,760
Speaker 1: applying the law. They need to know that even if

17
00:00:58,760 --> 00:01:01,600
Speaker 1: they they I think that's not the case they needed.

18
00:01:02,160 --> 00:01:04,800
Speaker 1: People should be able to read our opinions and we

19
00:01:04,840 --> 00:01:07,080
Speaker 1: explain what we do, and if they don't think that's

20
00:01:07,080 --> 00:01:10,200
Speaker 1: a fair explanation. They should be able to make that

21
00:01:10,280 --> 00:01:12,600
Speaker 1: judgment that this was not you didn't sort of stick

22
00:01:12,640 --> 00:01:15,560
Speaker 1: with your job. You made a political decision. Because I've

23
00:01:15,600 --> 00:01:18,080
Speaker 1: looked at your opinion and that doesn't hold together. Joining

24
00:01:18,120 --> 00:01:21,200
Speaker 1: us is Bloomberg. New Supreme Court reporter Greg Store tell

25
00:01:21,240 --> 00:01:24,120
Speaker 1: us about those opinions. Greg. The more important of the

26
00:01:24,120 --> 00:01:27,320
Speaker 1: two was one that involved a death row inmate who

27
00:01:27,360 --> 00:01:30,959
Speaker 1: says he can't remember the crimes he committed, and the

28
00:01:31,000 --> 00:01:35,440
Speaker 1: court's opinion by Justice Kagan take that case back to

29
00:01:35,840 --> 00:01:38,880
Speaker 1: a lower court, saying they need to look more closely

30
00:01:38,920 --> 00:01:43,520
Speaker 1: at whether this inmate could at least understand why he

31
00:01:43,600 --> 00:01:46,960
Speaker 1: was going to be executed. It was a fairly narrow decision,

32
00:01:47,080 --> 00:01:51,680
Speaker 1: but very striking that the Chief Justice abandoned the conservative

33
00:01:51,680 --> 00:01:55,040
Speaker 1: wing of the court, all of whom thought this execution

34
00:01:55,120 --> 00:01:57,680
Speaker 1: should be allowed to go forward, and the Chief joined

35
00:01:58,040 --> 00:02:01,160
Speaker 1: the liberal block in that one. Is this a departure

36
00:02:01,200 --> 00:02:04,880
Speaker 1: from his normal pattern with this issue or is it

37
00:02:04,960 --> 00:02:09,000
Speaker 1: just a unique issue. So they are definitely seeing a

38
00:02:09,080 --> 00:02:12,600
Speaker 1: pattern developed in the last year and a half or so,

39
00:02:12,760 --> 00:02:16,480
Speaker 1: and certainly this term where the Chief Justice is increasingly

40
00:02:16,600 --> 00:02:19,720
Speaker 1: joining with the liberal wing. Now most of these are

41
00:02:19,760 --> 00:02:25,160
Speaker 1: either incremental steps or procedural steps. For example, when he

42
00:02:25,280 --> 00:02:29,680
Speaker 1: joined with them to block some abortion restrictions in Louisiana.

43
00:02:29,960 --> 00:02:32,720
Speaker 1: It remains to be seen whether that translates into a

44
00:02:32,840 --> 00:02:36,200
Speaker 1: ruling on the merits, but we're certainly seeing clear evidence

45
00:02:36,240 --> 00:02:39,760
Speaker 1: that the Chief Justice is at least slowing down the

46
00:02:39,760 --> 00:02:42,200
Speaker 1: ship to the right for the Court now that the

47
00:02:42,360 --> 00:02:46,079
Speaker 1: Justice Kavanaugh is there. A lot of legal scholars are saying,

48
00:02:46,160 --> 00:02:49,720
Speaker 1: don't look for Roberts to be the next Anthony Kennedy,

49
00:02:49,760 --> 00:02:54,520
Speaker 1: But is there a definite pattern swing possibility? There's a

50
00:02:54,600 --> 00:02:58,280
Speaker 1: definite pattern. The difference is that John Roberts has been

51
00:02:58,320 --> 00:03:02,080
Speaker 1: on the Supreme Court for more than thirteen years now,

52
00:03:02,120 --> 00:03:05,359
Speaker 1: and we've had, you know, that much time to realize

53
00:03:05,600 --> 00:03:10,000
Speaker 1: he's a pretty conservative guy. His instincts are to side

54
00:03:10,040 --> 00:03:14,720
Speaker 1: with the conservatives to limit constitutional rights and a lot

55
00:03:14,720 --> 00:03:18,880
Speaker 1: of contexts, and those instincts aren't going to go away.

56
00:03:19,360 --> 00:03:21,680
Speaker 1: What's happening here is not so much that he is

57
00:03:21,760 --> 00:03:25,000
Speaker 1: potentially willing to side with the liberals on those huge

58
00:03:25,040 --> 00:03:28,760
Speaker 1: issues like say, same sex marriage. It's more that he

59
00:03:28,800 --> 00:03:32,480
Speaker 1: wants the Court to move slowly and not lurch dramatically

60
00:03:32,520 --> 00:03:34,600
Speaker 1: to the right. Now that the Court has a more

61
00:03:34,639 --> 00:03:39,600
Speaker 1: conservative majority. So is he just protecting the Supreme Court

62
00:03:39,640 --> 00:03:44,400
Speaker 1: as an institution from allegations that it's partisan. That is

63
00:03:44,440 --> 00:03:48,120
Speaker 1: certainly one key factor. He has spoken on a number

64
00:03:48,160 --> 00:03:51,760
Speaker 1: of occasions about how he does not want the Court

65
00:03:51,840 --> 00:03:56,600
Speaker 1: to be seen as partisan. He issued that rather striking

66
00:03:56,680 --> 00:04:00,160
Speaker 1: statement late last year saying we're not Obama judge or

67
00:04:00,200 --> 00:04:02,640
Speaker 1: Trump judges, were just judges who try to do our

68
00:04:02,680 --> 00:04:06,480
Speaker 1: our best to interpret and apply the law. As Chief Justice,

69
00:04:06,680 --> 00:04:10,760
Speaker 1: he sees part of his role as protecting the institutional

70
00:04:10,920 --> 00:04:14,839
Speaker 1: standing of the Court, and in his mind, one way

71
00:04:14,880 --> 00:04:16,800
Speaker 1: to do that is to keep it from looking like

72
00:04:17,040 --> 00:04:19,880
Speaker 1: it is shifting just because it has new members. Do

73
00:04:19,880 --> 00:04:22,799
Speaker 1: you think back years he had these surprises, for example

74
00:04:22,839 --> 00:04:25,720
Speaker 1: the Obamacare decision, where he sought it with the liberals

75
00:04:25,800 --> 00:04:29,480
Speaker 1: that Obamacare could go forward. So he has surprised us

76
00:04:29,480 --> 00:04:33,599
Speaker 1: before and then gone back to his normal positions. Yes,

77
00:04:33,720 --> 00:04:37,520
Speaker 1: the Obamacare ruling, of course, is is a huge one,

78
00:04:37,560 --> 00:04:40,760
Speaker 1: and it's one that conservatives point to to say we

79
00:04:40,839 --> 00:04:44,320
Speaker 1: don't fully trust this guy. But one can also explain

80
00:04:44,400 --> 00:04:47,120
Speaker 1: that decision as John Roberts thinking this is how I

81
00:04:47,160 --> 00:04:50,560
Speaker 1: protect the institutional standing of this court. It would have

82
00:04:50,600 --> 00:04:56,000
Speaker 1: been very striking. If five conservative justices, five Republican appointed

83
00:04:56,080 --> 00:05:01,040
Speaker 1: justices had struck down Democratic pre as it then signature

84
00:05:01,120 --> 00:05:04,320
Speaker 1: legislative accomplishment, that would have been a major step, and

85
00:05:04,400 --> 00:05:07,599
Speaker 1: it would have, in many people's eyes, made the Court

86
00:05:07,640 --> 00:05:11,120
Speaker 1: look like it was partisan. So that instinct is probably

87
00:05:11,160 --> 00:05:13,200
Speaker 1: a big part of the reason why the Chief Justice

88
00:05:13,440 --> 00:05:17,280
Speaker 1: voted as he did. It's important, though, even in that ruling,

89
00:05:17,680 --> 00:05:20,599
Speaker 1: a lot of the language he used talked about how

90
00:05:20,640 --> 00:05:23,719
Speaker 1: the Constitution does put important limits on the power of

91
00:05:23,760 --> 00:05:28,400
Speaker 1: Congress and the power of the president. Those conservative instincts

92
00:05:28,560 --> 00:05:31,279
Speaker 1: are still there. With John Roberts. The title of your

93
00:05:31,440 --> 00:05:34,560
Speaker 1: story is hold the Revolution, And I wonder is he

94
00:05:34,600 --> 00:05:38,960
Speaker 1: getting blowback from the conservatives who, with the appointment of

95
00:05:39,240 --> 00:05:43,479
Speaker 1: Gorsage and Kavanaugh, thought it was, you know, full speed ahead. Yeah,

96
00:05:43,520 --> 00:05:45,680
Speaker 1: I'm not sure it's quite to the point of blowback,

97
00:05:45,800 --> 00:05:49,520
Speaker 1: but it is certainly to the point that some conservatives

98
00:05:49,600 --> 00:05:51,680
Speaker 1: are nervous that they are not going to get to

99
00:05:51,720 --> 00:05:54,599
Speaker 1: the kind of court that they had hoped to hear. Now,

100
00:05:54,760 --> 00:05:57,000
Speaker 1: these worries have been there for a while, as I said,

101
00:05:57,040 --> 00:06:00,640
Speaker 1: since the Obamacare decision, a lot of conservatives haven't fully

102
00:06:00,680 --> 00:06:03,960
Speaker 1: trusted John Roberts but that is why when we start

103
00:06:03,960 --> 00:06:06,400
Speaker 1: talking about say, Justice Ruth Bader Ginsburg, and you know,

104
00:06:06,480 --> 00:06:09,080
Speaker 1: her health, there's a lot of talk on the conservative

105
00:06:09,120 --> 00:06:11,400
Speaker 1: side kind of wondering, you know, will she not be

106
00:06:11,520 --> 00:06:14,599
Speaker 1: able to to stay on the court. There's no evidence

107
00:06:14,600 --> 00:06:16,960
Speaker 1: of that, but conservatives know that if she were to

108
00:06:17,000 --> 00:06:19,360
Speaker 1: have to leave the court, that would be the time

109
00:06:19,400 --> 00:06:22,560
Speaker 1: they could get another justice and really have a reliable

110
00:06:22,600 --> 00:06:25,960
Speaker 1: conservative majority that they don't yet have with John Roberts.

111
00:06:26,520 --> 00:06:30,640
Speaker 1: Is the Court still ducking or deferring contentious issues as

112
00:06:30,640 --> 00:06:34,440
Speaker 1: it did when Kavanaugh first joined. They are. This term

113
00:06:34,480 --> 00:06:36,679
Speaker 1: looks like it's going to be one where the biggest

114
00:06:36,720 --> 00:06:39,919
Speaker 1: cases are ones that the Court really couldn't avoid taking it.

115
00:06:39,960 --> 00:06:42,880
Speaker 1: In the case involving the citizenship question on the census

116
00:06:42,920 --> 00:06:46,240
Speaker 1: and the case involving partisan gerrymandering for various reasons, they

117
00:06:46,279 --> 00:06:49,080
Speaker 1: really had to take those cases. Almost everything else that

118
00:06:49,200 --> 00:06:51,440
Speaker 1: was somewhat optional the Court has either said no, we're

119
00:06:51,440 --> 00:06:53,880
Speaker 1: not going to take it, or they've kept deferring acting

120
00:06:54,000 --> 00:06:56,400
Speaker 1: so long that if they take it it'll be next term.

121
00:06:56,560 --> 00:06:59,120
Speaker 1: So there is a gun case that they're here next term.

122
00:06:59,360 --> 00:07:02,599
Speaker 1: There could be various other things. A case involving whether

123
00:07:02,839 --> 00:07:05,800
Speaker 1: a federal job discrimination law protects people on the basis

124
00:07:05,839 --> 00:07:08,719
Speaker 1: of sexual orientation. That could be an abortion case. But

125
00:07:08,839 --> 00:07:11,080
Speaker 1: for the most part, the Court has managed to defer

126
00:07:11,160 --> 00:07:13,880
Speaker 1: all those issues so that they're not dealing with them.

127
00:07:13,920 --> 00:07:17,040
Speaker 1: In Brett Cavanaugh's first term, well, they are dealing with

128
00:07:17,800 --> 00:07:22,720
Speaker 1: church state issue, and last Wednesday there were oral arguments.

129
00:07:23,120 --> 00:07:26,720
Speaker 1: Why would they take an issue like that at this

130
00:07:26,760 --> 00:07:30,720
Speaker 1: point if they're avoiding contentious cases. This might have been

131
00:07:30,720 --> 00:07:33,360
Speaker 1: a case where enough justice is thought that the lower

132
00:07:33,360 --> 00:07:36,560
Speaker 1: court ruling was pretty clearly wrong. So this is a

133
00:07:36,560 --> 00:07:39,040
Speaker 1: cross that was built as a World War One memorial

134
00:07:39,520 --> 00:07:41,720
Speaker 1: in Bladensburg, Maryland, and it's now in the middle of

135
00:07:41,720 --> 00:07:45,520
Speaker 1: an intersection there, and a federal appeals court said that

136
00:07:45,560 --> 00:07:48,440
Speaker 1: the cross was unconstitutional and might have to be taken

137
00:07:48,440 --> 00:07:51,600
Speaker 1: down or at least reshaped or moved or something. So

138
00:07:51,640 --> 00:07:53,680
Speaker 1: that the Court did agree to take that up. And

139
00:07:54,000 --> 00:07:56,440
Speaker 1: it was interesting at the argument it didn't seem like

140
00:07:56,520 --> 00:08:00,280
Speaker 1: there was a massive division among the justices. This not

141
00:08:00,640 --> 00:08:02,480
Speaker 1: look like it's going to be one of these cases

142
00:08:02,480 --> 00:08:05,600
Speaker 1: that very sharply divides the Court on a five four basis.

143
00:08:05,640 --> 00:08:08,280
Speaker 1: It may well end up being a narrower decision that

144
00:08:08,360 --> 00:08:11,320
Speaker 1: can get more than five justices. How so what would

145
00:08:11,360 --> 00:08:13,640
Speaker 1: make it a narrow decision? It did seem like the

146
00:08:13,760 --> 00:08:17,440
Speaker 1: justices were inclined to say that this memorial could stay there,

147
00:08:17,640 --> 00:08:20,240
Speaker 1: and they might get a couple of the more liberal

148
00:08:20,320 --> 00:08:23,160
Speaker 1: justices on board with that decision if it's a narrow one.

149
00:08:23,200 --> 00:08:27,320
Speaker 1: So Justice Stephen Bryer throughout the idea that maybe because

150
00:08:27,400 --> 00:08:30,240
Speaker 1: this memorial has been there for almost a hundred years

151
00:08:30,760 --> 00:08:33,199
Speaker 1: makes it different from something that was just built last

152
00:08:33,240 --> 00:08:36,760
Speaker 1: week in court might eventually say something like old monuments

153
00:08:36,840 --> 00:08:39,880
Speaker 1: like this can stay, but you can't erect new ones.

154
00:08:40,360 --> 00:08:43,400
Speaker 1: And then Justice Elena Kagan's thought that World War One

155
00:08:43,440 --> 00:08:48,240
Speaker 1: memorials might be different from other ones because the cross

156
00:08:48,280 --> 00:08:52,040
Speaker 1: became such a symbol of World War One, the cemeteries

157
00:08:52,080 --> 00:08:55,440
Speaker 1: in Europe's with all the crosses lined up, Perhaps that

158
00:08:55,520 --> 00:08:59,840
Speaker 1: World War One memorial is perceived differently than across might

159
00:08:59,880 --> 00:09:03,200
Speaker 1: be in some other context. Greg Some might say, I'm

160
00:09:03,240 --> 00:09:05,600
Speaker 1: not saying I would say it, but the Court has

161
00:09:05,640 --> 00:09:09,520
Speaker 1: taken up so many of these kinds of cases with

162
00:09:09,640 --> 00:09:13,160
Speaker 1: different kinds of religious displays. Why haven't they gotten it

163
00:09:13,240 --> 00:09:16,760
Speaker 1: down to a clear kind of line yet? Well, in

164
00:09:16,840 --> 00:09:20,439
Speaker 1: part because they disagree So if you call when when

165
00:09:20,480 --> 00:09:22,760
Speaker 1: Justice sand Did O'Connor was on the court and she

166
00:09:22,880 --> 00:09:25,240
Speaker 1: was a swing justice on these issues, she came up

167
00:09:25,240 --> 00:09:28,080
Speaker 1: with a test that said, the key question is whether

168
00:09:28,280 --> 00:09:31,760
Speaker 1: it would appear to an objective observer that the government

169
00:09:31,800 --> 00:09:34,520
Speaker 1: is endorsing religion. Well, that was a test that sort

170
00:09:34,559 --> 00:09:37,000
Speaker 1: of carried the day for the time she was on

171
00:09:37,040 --> 00:09:39,280
Speaker 1: the court. But now that she's gone, the court may

172
00:09:39,280 --> 00:09:41,760
Speaker 1: will abandon that test, that might even do it explicitly

173
00:09:42,080 --> 00:09:45,880
Speaker 1: in this case, and they would have to articulate some

174
00:09:45,920 --> 00:09:49,320
Speaker 1: sort of different tests. So these are tricky issues and

175
00:09:49,400 --> 00:09:53,839
Speaker 1: it matters an awful lot who is the justice deciding them.

176
00:09:54,160 --> 00:09:56,920
Speaker 1: That I think explains a lot of the variation over

177
00:09:56,960 --> 00:09:59,920
Speaker 1: the years about how the Court has resolved these cases.

178
00:10:00,040 --> 00:10:03,000
Speaker 1: And speaking of variation, does it seem as if Justice

179
00:10:03,040 --> 00:10:06,640
Speaker 1: Neil Gorstch is sort of off by himself with an

180
00:10:06,720 --> 00:10:10,600
Speaker 1: idea of restricting the ability to even sue over religious displays.

181
00:10:10,720 --> 00:10:13,120
Speaker 1: I don't know he's off by himself. The Chief Justice

182
00:10:13,280 --> 00:10:15,640
Speaker 1: also raised the idea that maybe that's the way to

183
00:10:15,720 --> 00:10:18,160
Speaker 1: resolve this case is to to restrict the ability of

184
00:10:18,200 --> 00:10:22,360
Speaker 1: people to sue. You know, Justice Grocer has certainly begun

185
00:10:22,440 --> 00:10:25,840
Speaker 1: to establish himself as somebody willing to think differently than

186
00:10:26,280 --> 00:10:28,680
Speaker 1: some of his colleagues. That is one way the Court

187
00:10:28,679 --> 00:10:31,240
Speaker 1: could resolve this case is to limit the ability of

188
00:10:31,240 --> 00:10:33,760
Speaker 1: people to bring lawsuits in the first place. Wouldn't that

189
00:10:33,840 --> 00:10:37,960
Speaker 1: be a very expansive way to settle this It could be.

190
00:10:38,200 --> 00:10:41,680
Speaker 1: It kind of depends on what they say. It's maybe

191
00:10:41,720 --> 00:10:44,720
Speaker 1: that the devil is in the details. That is probably, yes,

192
00:10:44,840 --> 00:10:48,240
Speaker 1: more expansive than it would be if the Court did

193
00:10:48,280 --> 00:10:51,000
Speaker 1: something that could bring on Justice Brier, Justice Cagan to

194
00:10:51,120 --> 00:10:54,760
Speaker 1: say this monument is different than most other displays because

195
00:10:54,800 --> 00:10:56,559
Speaker 1: it's a World War two memorial or because it's a

196
00:10:56,640 --> 00:10:58,760
Speaker 1: hundred years old. Before I let you go, I have

197
00:10:58,880 --> 00:11:02,719
Speaker 1: to ask you mentioned Justice Ginsburg. She's come back, and

198
00:11:02,800 --> 00:11:06,320
Speaker 1: she seems to come back with a vengeance. Yeah, it's remarkable.

199
00:11:06,440 --> 00:11:09,920
Speaker 1: On one opinion day on Monday, in the courts shoot

200
00:11:09,960 --> 00:11:12,840
Speaker 1: three opinions and she wrote two of them. She's written

201
00:11:12,920 --> 00:11:15,040
Speaker 1: three of the courts of nine opinions since she came

202
00:11:15,080 --> 00:11:18,360
Speaker 1: back from her cancer surgery. It is if she is

203
00:11:18,400 --> 00:11:21,800
Speaker 1: trying to send a message that she is fully able

204
00:11:21,840 --> 00:11:25,160
Speaker 1: to do her job and people are starting to take notice.

205
00:11:25,520 --> 00:11:29,240
Speaker 1: Thanks Greg, That's Bloomberg News Supreme Court reporter Greg Store.

206
00:11:30,280 --> 00:11:33,160
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can

207
00:11:33,240 --> 00:11:37,000
Speaker 1: subscribe and listen to the show on Apple podcast, SoundCloud,

208
00:11:37,080 --> 00:11:40,960
Speaker 1: and on bloomberg dot com slash podcast. I'm June Brasso.

209
00:11:41,440 --> 00:11:42,720
Speaker 1: This is Bloomberg