WEBVTT - SCOTUS: The Revolution is on Hold and RBG’s Return

0:00:03.520 --> 0:00:07.040
<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

0:00:07.120 --> 0:00:09.680
<v Speaker 1>day we bring you insight and analysis into the most

0:00:09.720 --> 0:00:12.200
<v Speaker 1>important legal news of the day. You can find more

0:00:12.240 --> 0:00:16.160
<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud

0:00:16.280 --> 0:00:20.360
<v Speaker 1>and on Bloomberg dot com slash podcasts. Chief Justice John

0:00:20.440 --> 0:00:23.040
<v Speaker 1>Roberts is showing a new willingness to side with the

0:00:23.079 --> 0:00:26.840
<v Speaker 1>Supreme Court's liberal wing, joining the liberals and two rulings

0:00:26.920 --> 0:00:30.400
<v Speaker 1>last Wednesday that left the Conservatives in dissent. The Chief

0:00:30.440 --> 0:00:33.120
<v Speaker 1>has been open about his desire to protect the federal

0:00:33.240 --> 0:00:38.080
<v Speaker 1>judiciaries institutional reputation from charges of partisanship. During an appearance

0:00:38.120 --> 0:00:41.879
<v Speaker 1>at Belmont University in Nashville last month, Robert said the

0:00:41.920 --> 0:00:45.880
<v Speaker 1>public's perception of the Court is becoming skewed after seeing

0:00:45.960 --> 0:00:50.080
<v Speaker 1>confirmation battles that end up in party line votes. People

0:00:50.120 --> 0:00:53.040
<v Speaker 1>need to know that we're not doing politics. They need

0:00:53.080 --> 0:00:56.200
<v Speaker 1>to know that we're doing something different, um that we're

0:00:56.240 --> 0:00:58.760
<v Speaker 1>applying the law. They need to know that even if

0:00:58.760 --> 0:01:01.600
<v Speaker 1>they they I think that's not the case they needed.

0:01:02.160 --> 0:01:04.800
<v Speaker 1>People should be able to read our opinions and we

0:01:04.840 --> 0:01:07.080
<v Speaker 1>explain what we do, and if they don't think that's

0:01:07.080 --> 0:01:10.200
<v Speaker 1>a fair explanation. They should be able to make that

0:01:10.280 --> 0:01:12.600
<v Speaker 1>judgment that this was not you didn't sort of stick

0:01:12.640 --> 0:01:15.560
<v Speaker 1>with your job. You made a political decision. Because I've

0:01:15.600 --> 0:01:18.080
<v Speaker 1>looked at your opinion and that doesn't hold together. Joining

0:01:18.120 --> 0:01:21.200
<v Speaker 1>us is Bloomberg. New Supreme Court reporter Greg Store tell

0:01:21.240 --> 0:01:24.120
<v Speaker 1>us about those opinions. Greg. The more important of the

0:01:24.120 --> 0:01:27.320
<v Speaker 1>two was one that involved a death row inmate who

0:01:27.360 --> 0:01:30.959
<v Speaker 1>says he can't remember the crimes he committed, and the

0:01:31.000 --> 0:01:35.440
<v Speaker 1>court's opinion by Justice Kagan take that case back to

0:01:35.840 --> 0:01:38.880
<v Speaker 1>a lower court, saying they need to look more closely

0:01:38.920 --> 0:01:43.520
<v Speaker 1>at whether this inmate could at least understand why he

0:01:43.600 --> 0:01:46.960
<v Speaker 1>was going to be executed. It was a fairly narrow decision,

0:01:47.080 --> 0:01:51.680
<v Speaker 1>but very striking that the Chief Justice abandoned the conservative

0:01:51.680 --> 0:01:55.040
<v Speaker 1>wing of the court, all of whom thought this execution

0:01:55.120 --> 0:01:57.680
<v Speaker 1>should be allowed to go forward, and the Chief joined

0:01:58.040 --> 0:02:01.160
<v Speaker 1>the liberal block in that one. Is this a departure

0:02:01.200 --> 0:02:04.880
<v Speaker 1>from his normal pattern with this issue or is it

0:02:04.960 --> 0:02:09.000
<v Speaker 1>just a unique issue. So they are definitely seeing a

0:02:09.080 --> 0:02:12.600
<v Speaker 1>pattern developed in the last year and a half or so,

0:02:12.760 --> 0:02:16.480
<v Speaker 1>and certainly this term where the Chief Justice is increasingly

0:02:16.600 --> 0:02:19.720
<v Speaker 1>joining with the liberal wing. Now most of these are

0:02:19.760 --> 0:02:25.160
<v Speaker 1>either incremental steps or procedural steps. For example, when he

0:02:25.280 --> 0:02:29.680
<v Speaker 1>joined with them to block some abortion restrictions in Louisiana.

0:02:29.960 --> 0:02:32.720
<v Speaker 1>It remains to be seen whether that translates into a

0:02:32.840 --> 0:02:36.200
<v Speaker 1>ruling on the merits, but we're certainly seeing clear evidence

0:02:36.240 --> 0:02:39.760
<v Speaker 1>that the Chief Justice is at least slowing down the

0:02:39.760 --> 0:02:42.200
<v Speaker 1>ship to the right for the Court now that the

0:02:42.360 --> 0:02:46.079
<v Speaker 1>Justice Kavanaugh is there. A lot of legal scholars are saying,

0:02:46.160 --> 0:02:49.720
<v Speaker 1>don't look for Roberts to be the next Anthony Kennedy,

0:02:49.760 --> 0:02:54.520
<v Speaker 1>But is there a definite pattern swing possibility? There's a

0:02:54.600 --> 0:02:58.280
<v Speaker 1>definite pattern. The difference is that John Roberts has been

0:02:58.320 --> 0:03:02.080
<v Speaker 1>on the Supreme Court for more than thirteen years now,

0:03:02.120 --> 0:03:05.359
<v Speaker 1>and we've had, you know, that much time to realize

0:03:05.600 --> 0:03:10.000
<v Speaker 1>he's a pretty conservative guy. His instincts are to side

0:03:10.040 --> 0:03:14.720
<v Speaker 1>with the conservatives to limit constitutional rights and a lot

0:03:14.720 --> 0:03:18.880
<v Speaker 1>of contexts, and those instincts aren't going to go away.

0:03:19.360 --> 0:03:21.680
<v Speaker 1>What's happening here is not so much that he is

0:03:21.760 --> 0:03:25.000
<v Speaker 1>potentially willing to side with the liberals on those huge

0:03:25.040 --> 0:03:28.760
<v Speaker 1>issues like say, same sex marriage. It's more that he

0:03:28.800 --> 0:03:32.480
<v Speaker 1>wants the Court to move slowly and not lurch dramatically

0:03:32.520 --> 0:03:34.600
<v Speaker 1>to the right. Now that the Court has a more

0:03:34.639 --> 0:03:39.600
<v Speaker 1>conservative majority. So is he just protecting the Supreme Court

0:03:39.640 --> 0:03:44.400
<v Speaker 1>as an institution from allegations that it's partisan. That is

0:03:44.440 --> 0:03:48.120
<v Speaker 1>certainly one key factor. He has spoken on a number

0:03:48.160 --> 0:03:51.760
<v Speaker 1>of occasions about how he does not want the Court

0:03:51.840 --> 0:03:56.600
<v Speaker 1>to be seen as partisan. He issued that rather striking

0:03:56.680 --> 0:04:00.160
<v Speaker 1>statement late last year saying we're not Obama judge or

0:04:00.200 --> 0:04:02.640
<v Speaker 1>Trump judges, were just judges who try to do our

0:04:02.680 --> 0:04:06.480
<v Speaker 1>our best to interpret and apply the law. As Chief Justice,

0:04:06.680 --> 0:04:10.760
<v Speaker 1>he sees part of his role as protecting the institutional

0:04:10.920 --> 0:04:14.839
<v Speaker 1>standing of the Court, and in his mind, one way

0:04:14.880 --> 0:04:16.800
<v Speaker 1>to do that is to keep it from looking like

0:04:17.040 --> 0:04:19.880
<v Speaker 1>it is shifting just because it has new members. Do

0:04:19.880 --> 0:04:22.799
<v Speaker 1>you think back years he had these surprises, for example

0:04:22.839 --> 0:04:25.720
<v Speaker 1>the Obamacare decision, where he sought it with the liberals

0:04:25.800 --> 0:04:29.480
<v Speaker 1>that Obamacare could go forward. So he has surprised us

0:04:29.480 --> 0:04:33.599
<v Speaker 1>before and then gone back to his normal positions. Yes,

0:04:33.720 --> 0:04:37.520
<v Speaker 1>the Obamacare ruling, of course, is is a huge one,

0:04:37.560 --> 0:04:40.760
<v Speaker 1>and it's one that conservatives point to to say we

0:04:40.839 --> 0:04:44.320
<v Speaker 1>don't fully trust this guy. But one can also explain

0:04:44.400 --> 0:04:47.120
<v Speaker 1>that decision as John Roberts thinking this is how I

0:04:47.160 --> 0:04:50.560
<v Speaker 1>protect the institutional standing of this court. It would have

0:04:50.600 --> 0:04:56.000
<v Speaker 1>been very striking. If five conservative justices, five Republican appointed

0:04:56.080 --> 0:05:01.040
<v Speaker 1>justices had struck down Democratic pre as it then signature

0:05:01.120 --> 0:05:04.320
<v Speaker 1>legislative accomplishment, that would have been a major step, and

0:05:04.400 --> 0:05:07.599
<v Speaker 1>it would have, in many people's eyes, made the Court

0:05:07.640 --> 0:05:11.120
<v Speaker 1>look like it was partisan. So that instinct is probably

0:05:11.160 --> 0:05:13.200
<v Speaker 1>a big part of the reason why the Chief Justice

0:05:13.440 --> 0:05:17.280
<v Speaker 1>voted as he did. It's important, though, even in that ruling,

0:05:17.680 --> 0:05:20.599
<v Speaker 1>a lot of the language he used talked about how

0:05:20.640 --> 0:05:23.719
<v Speaker 1>the Constitution does put important limits on the power of

0:05:23.760 --> 0:05:28.400
<v Speaker 1>Congress and the power of the president. Those conservative instincts

0:05:28.560 --> 0:05:31.279
<v Speaker 1>are still there. With John Roberts. The title of your

0:05:31.440 --> 0:05:34.560
<v Speaker 1>story is hold the Revolution, And I wonder is he

0:05:34.600 --> 0:05:38.960
<v Speaker 1>getting blowback from the conservatives who, with the appointment of

0:05:39.240 --> 0:05:43.479
<v Speaker 1>Gorsage and Kavanaugh, thought it was, you know, full speed ahead. Yeah,

0:05:43.520 --> 0:05:45.680
<v Speaker 1>I'm not sure it's quite to the point of blowback,

0:05:45.800 --> 0:05:49.520
<v Speaker 1>but it is certainly to the point that some conservatives

0:05:49.600 --> 0:05:51.680
<v Speaker 1>are nervous that they are not going to get to

0:05:51.720 --> 0:05:54.599
<v Speaker 1>the kind of court that they had hoped to hear. Now,

0:05:54.760 --> 0:05:57.000
<v Speaker 1>these worries have been there for a while, as I said,

0:05:57.040 --> 0:06:00.640
<v Speaker 1>since the Obamacare decision, a lot of conservatives haven't fully

0:06:00.680 --> 0:06:03.960
<v Speaker 1>trusted John Roberts but that is why when we start

0:06:03.960 --> 0:06:06.400
<v Speaker 1>talking about say, Justice Ruth Bader Ginsburg, and you know,

0:06:06.480 --> 0:06:09.080
<v Speaker 1>her health, there's a lot of talk on the conservative

0:06:09.120 --> 0:06:11.400
<v Speaker 1>side kind of wondering, you know, will she not be

0:06:11.520 --> 0:06:14.599
<v Speaker 1>able to to stay on the court. There's no evidence

0:06:14.600 --> 0:06:16.960
<v Speaker 1>of that, but conservatives know that if she were to

0:06:17.000 --> 0:06:19.360
<v Speaker 1>have to leave the court, that would be the time

0:06:19.400 --> 0:06:22.560
<v Speaker 1>they could get another justice and really have a reliable

0:06:22.600 --> 0:06:25.960
<v Speaker 1>conservative majority that they don't yet have with John Roberts.

0:06:26.520 --> 0:06:30.640
<v Speaker 1>Is the Court still ducking or deferring contentious issues as

0:06:30.640 --> 0:06:34.440
<v Speaker 1>it did when Kavanaugh first joined. They are. This term

0:06:34.480 --> 0:06:36.679
<v Speaker 1>looks like it's going to be one where the biggest

0:06:36.720 --> 0:06:39.919
<v Speaker 1>cases are ones that the Court really couldn't avoid taking it.

0:06:39.960 --> 0:06:42.880
<v Speaker 1>In the case involving the citizenship question on the census

0:06:42.920 --> 0:06:46.240
<v Speaker 1>and the case involving partisan gerrymandering for various reasons, they

0:06:46.279 --> 0:06:49.080
<v Speaker 1>really had to take those cases. Almost everything else that

0:06:49.200 --> 0:06:51.440
<v Speaker 1>was somewhat optional the Court has either said no, we're

0:06:51.440 --> 0:06:53.880
<v Speaker 1>not going to take it, or they've kept deferring acting

0:06:54.000 --> 0:06:56.400
<v Speaker 1>so long that if they take it it'll be next term.

0:06:56.560 --> 0:06:59.120
<v Speaker 1>So there is a gun case that they're here next term.

0:06:59.360 --> 0:07:02.599
<v Speaker 1>There could be various other things. A case involving whether

0:07:02.839 --> 0:07:05.800
<v Speaker 1>a federal job discrimination law protects people on the basis

0:07:05.839 --> 0:07:08.719
<v Speaker 1>of sexual orientation. That could be an abortion case. But

0:07:08.839 --> 0:07:11.080
<v Speaker 1>for the most part, the Court has managed to defer

0:07:11.160 --> 0:07:13.880
<v Speaker 1>all those issues so that they're not dealing with them.

0:07:13.920 --> 0:07:17.040
<v Speaker 1>In Brett Cavanaugh's first term, well, they are dealing with

0:07:17.800 --> 0:07:22.720
<v Speaker 1>church state issue, and last Wednesday there were oral arguments.

0:07:23.120 --> 0:07:26.720
<v Speaker 1>Why would they take an issue like that at this

0:07:26.760 --> 0:07:30.720
<v Speaker 1>point if they're avoiding contentious cases. This might have been

0:07:30.720 --> 0:07:33.360
<v Speaker 1>a case where enough justice is thought that the lower

0:07:33.360 --> 0:07:36.560
<v Speaker 1>court ruling was pretty clearly wrong. So this is a

0:07:36.560 --> 0:07:39.040
<v Speaker 1>cross that was built as a World War One memorial

0:07:39.520 --> 0:07:41.720
<v Speaker 1>in Bladensburg, Maryland, and it's now in the middle of

0:07:41.720 --> 0:07:45.520
<v Speaker 1>an intersection there, and a federal appeals court said that

0:07:45.560 --> 0:07:48.440
<v Speaker 1>the cross was unconstitutional and might have to be taken

0:07:48.440 --> 0:07:51.600
<v Speaker 1>down or at least reshaped or moved or something. So

0:07:51.640 --> 0:07:53.680
<v Speaker 1>that the Court did agree to take that up. And

0:07:54.000 --> 0:07:56.440
<v Speaker 1>it was interesting at the argument it didn't seem like

0:07:56.520 --> 0:08:00.280
<v Speaker 1>there was a massive division among the justices. This not

0:08:00.640 --> 0:08:02.480
<v Speaker 1>look like it's going to be one of these cases

0:08:02.480 --> 0:08:05.600
<v Speaker 1>that very sharply divides the Court on a five four basis.

0:08:05.640 --> 0:08:08.280
<v Speaker 1>It may well end up being a narrower decision that

0:08:08.360 --> 0:08:11.320
<v Speaker 1>can get more than five justices. How so what would

0:08:11.360 --> 0:08:13.640
<v Speaker 1>make it a narrow decision? It did seem like the

0:08:13.760 --> 0:08:17.440
<v Speaker 1>justices were inclined to say that this memorial could stay there,

0:08:17.640 --> 0:08:20.240
<v Speaker 1>and they might get a couple of the more liberal

0:08:20.320 --> 0:08:23.160
<v Speaker 1>justices on board with that decision if it's a narrow one.

0:08:23.200 --> 0:08:27.320
<v Speaker 1>So Justice Stephen Bryer throughout the idea that maybe because

0:08:27.400 --> 0:08:30.240
<v Speaker 1>this memorial has been there for almost a hundred years

0:08:30.760 --> 0:08:33.199
<v Speaker 1>makes it different from something that was just built last

0:08:33.240 --> 0:08:36.760
<v Speaker 1>week in court might eventually say something like old monuments

0:08:36.840 --> 0:08:39.880
<v Speaker 1>like this can stay, but you can't erect new ones.

0:08:40.360 --> 0:08:43.400
<v Speaker 1>And then Justice Elena Kagan's thought that World War One

0:08:43.440 --> 0:08:48.240
<v Speaker 1>memorials might be different from other ones because the cross

0:08:48.280 --> 0:08:52.040
<v Speaker 1>became such a symbol of World War One, the cemeteries

0:08:52.080 --> 0:08:55.440
<v Speaker 1>in Europe's with all the crosses lined up, Perhaps that

0:08:55.520 --> 0:08:59.840
<v Speaker 1>World War One memorial is perceived differently than across might

0:08:59.880 --> 0:09:03.200
<v Speaker 1>be in some other context. Greg Some might say, I'm

0:09:03.240 --> 0:09:05.600
<v Speaker 1>not saying I would say it, but the Court has

0:09:05.640 --> 0:09:09.520
<v Speaker 1>taken up so many of these kinds of cases with

0:09:09.640 --> 0:09:13.160
<v Speaker 1>different kinds of religious displays. Why haven't they gotten it

0:09:13.240 --> 0:09:16.760
<v Speaker 1>down to a clear kind of line yet? Well, in

0:09:16.840 --> 0:09:20.439
<v Speaker 1>part because they disagree So if you call when when

0:09:20.480 --> 0:09:22.760
<v Speaker 1>Justice sand Did O'Connor was on the court and she

0:09:22.880 --> 0:09:25.240
<v Speaker 1>was a swing justice on these issues, she came up

0:09:25.240 --> 0:09:28.080
<v Speaker 1>with a test that said, the key question is whether

0:09:28.280 --> 0:09:31.760
<v Speaker 1>it would appear to an objective observer that the government

0:09:31.800 --> 0:09:34.520
<v Speaker 1>is endorsing religion. Well, that was a test that sort

0:09:34.559 --> 0:09:37.000
<v Speaker 1>of carried the day for the time she was on

0:09:37.040 --> 0:09:39.280
<v Speaker 1>the court. But now that she's gone, the court may

0:09:39.280 --> 0:09:41.760
<v Speaker 1>will abandon that test, that might even do it explicitly

0:09:42.080 --> 0:09:45.880
<v Speaker 1>in this case, and they would have to articulate some

0:09:45.920 --> 0:09:49.320
<v Speaker 1>sort of different tests. So these are tricky issues and

0:09:49.400 --> 0:09:53.839
<v Speaker 1>it matters an awful lot who is the justice deciding them.

0:09:54.160 --> 0:09:56.920
<v Speaker 1>That I think explains a lot of the variation over

0:09:56.960 --> 0:09:59.920
<v Speaker 1>the years about how the Court has resolved these cases.

0:10:00.040 --> 0:10:03.000
<v Speaker 1>And speaking of variation, does it seem as if Justice

0:10:03.040 --> 0:10:06.640
<v Speaker 1>Neil Gorstch is sort of off by himself with an

0:10:06.720 --> 0:10:10.600
<v Speaker 1>idea of restricting the ability to even sue over religious displays.

0:10:10.720 --> 0:10:13.120
<v Speaker 1>I don't know he's off by himself. The Chief Justice

0:10:13.280 --> 0:10:15.640
<v Speaker 1>also raised the idea that maybe that's the way to

0:10:15.720 --> 0:10:18.160
<v Speaker 1>resolve this case is to to restrict the ability of

0:10:18.200 --> 0:10:22.360
<v Speaker 1>people to sue. You know, Justice Grocer has certainly begun

0:10:22.440 --> 0:10:25.840
<v Speaker 1>to establish himself as somebody willing to think differently than

0:10:26.280 --> 0:10:28.680
<v Speaker 1>some of his colleagues. That is one way the Court

0:10:28.679 --> 0:10:31.240
<v Speaker 1>could resolve this case is to limit the ability of

0:10:31.240 --> 0:10:33.760
<v Speaker 1>people to bring lawsuits in the first place. Wouldn't that

0:10:33.840 --> 0:10:37.960
<v Speaker 1>be a very expansive way to settle this It could be.

0:10:38.200 --> 0:10:41.680
<v Speaker 1>It kind of depends on what they say. It's maybe

0:10:41.720 --> 0:10:44.720
<v Speaker 1>that the devil is in the details. That is probably, yes,

0:10:44.840 --> 0:10:48.240
<v Speaker 1>more expansive than it would be if the Court did

0:10:48.280 --> 0:10:51.000
<v Speaker 1>something that could bring on Justice Brier, Justice Cagan to

0:10:51.120 --> 0:10:54.760
<v Speaker 1>say this monument is different than most other displays because

0:10:54.800 --> 0:10:56.559
<v Speaker 1>it's a World War two memorial or because it's a

0:10:56.640 --> 0:10:58.760
<v Speaker 1>hundred years old. Before I let you go, I have

0:10:58.880 --> 0:11:02.719
<v Speaker 1>to ask you mentioned Justice Ginsburg. She's come back, and

0:11:02.800 --> 0:11:06.320
<v Speaker 1>she seems to come back with a vengeance. Yeah, it's remarkable.

0:11:06.440 --> 0:11:09.920
<v Speaker 1>On one opinion day on Monday, in the courts shoot

0:11:09.960 --> 0:11:12.840
<v Speaker 1>three opinions and she wrote two of them. She's written

0:11:12.920 --> 0:11:15.040
<v Speaker 1>three of the courts of nine opinions since she came

0:11:15.080 --> 0:11:18.360
<v Speaker 1>back from her cancer surgery. It is if she is

0:11:18.400 --> 0:11:21.800
<v Speaker 1>trying to send a message that she is fully able

0:11:21.840 --> 0:11:25.160
<v Speaker 1>to do her job and people are starting to take notice.

0:11:25.520 --> 0:11:29.240
<v Speaker 1>Thanks Greg, That's Bloomberg News Supreme Court reporter Greg Store.

0:11:30.280 --> 0:11:33.160
<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

0:11:33.240 --> 0:11:37.000
<v Speaker 1>subscribe and listen to the show on Apple podcast, SoundCloud,

0:11:37.080 --> 0:11:40.960
<v Speaker 1>and on bloomberg dot com slash podcast. I'm June Brasso.

0:11:41.440 --> 0:11:42.720
<v Speaker 1>This is Bloomberg