Speaker 1: Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every
Speaker 1: day we bring you insight and analysis into the most
Speaker 1: important legal news of the day. You can find more
Speaker 1: episodes of the Bloomberg Law Podcast on Apple Podcasts, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcasts. Chief Justice John
Speaker 1: Roberts is showing a new willingness to side with the
Speaker 1: Supreme Court's liberal wing, joining the liberals and two rulings
Speaker 1: last Wednesday that left the Conservatives in dissent. The Chief
Speaker 1: has been open about his desire to protect the federal
Speaker 1: judiciaries institutional reputation from charges of partisanship. During an appearance
Speaker 1: at Belmont University in Nashville last month, Robert said the
Speaker 1: public's perception of the Court is becoming skewed after seeing
Speaker 1: confirmation battles that end up in party line votes. People
Speaker 1: need to know that we're not doing politics. They need
Speaker 1: to know that we're doing something different, um that we're
Speaker 1: applying the law. They need to know that even if
Speaker 1: they they I think that's not the case they needed.
Speaker 1: People should be able to read our opinions and we
Speaker 1: explain what we do, and if they don't think that's
Speaker 1: a fair explanation. They should be able to make that
Speaker 1: judgment that this was not you didn't sort of stick
Speaker 1: with your job. You made a political decision. Because I've
Speaker 1: looked at your opinion and that doesn't hold together. Joining
Speaker 1: us is Bloomberg. New Supreme Court reporter Greg Store tell
Speaker 1: us about those opinions. Greg. The more important of the
Speaker 1: two was one that involved a death row inmate who
Speaker 1: says he can't remember the crimes he committed, and the
Speaker 1: court's opinion by Justice Kagan take that case back to
Speaker 1: a lower court, saying they need to look more closely
Speaker 1: at whether this inmate could at least understand why he
Speaker 1: was going to be executed. It was a fairly narrow decision,
Speaker 1: but very striking that the Chief Justice abandoned the conservative
Speaker 1: wing of the court, all of whom thought this execution
Speaker 1: should be allowed to go forward, and the Chief joined
Speaker 1: the liberal block in that one. Is this a departure
Speaker 1: from his normal pattern with this issue or is it
Speaker 1: just a unique issue. So they are definitely seeing a
Speaker 1: pattern developed in the last year and a half or so,
Speaker 1: and certainly this term where the Chief Justice is increasingly
Speaker 1: joining with the liberal wing. Now most of these are
Speaker 1: either incremental steps or procedural steps. For example, when he
Speaker 1: joined with them to block some abortion restrictions in Louisiana.
Speaker 1: It remains to be seen whether that translates into a
Speaker 1: ruling on the merits, but we're certainly seeing clear evidence
Speaker 1: that the Chief Justice is at least slowing down the
Speaker 1: ship to the right for the Court now that the
Speaker 1: Justice Kavanaugh is there. A lot of legal scholars are saying,
Speaker 1: don't look for Roberts to be the next Anthony Kennedy,
Speaker 1: But is there a definite pattern swing possibility? There's a
Speaker 1: definite pattern. The difference is that John Roberts has been
Speaker 1: on the Supreme Court for more than thirteen years now,
Speaker 1: and we've had, you know, that much time to realize
Speaker 1: he's a pretty conservative guy. His instincts are to side
Speaker 1: with the conservatives to limit constitutional rights and a lot
Speaker 1: of contexts, and those instincts aren't going to go away.
Speaker 1: What's happening here is not so much that he is
Speaker 1: potentially willing to side with the liberals on those huge
Speaker 1: issues like say, same sex marriage. It's more that he
Speaker 1: wants the Court to move slowly and not lurch dramatically
Speaker 1: to the right. Now that the Court has a more
Speaker 1: conservative majority. So is he just protecting the Supreme Court
Speaker 1: as an institution from allegations that it's partisan. That is
Speaker 1: certainly one key factor. He has spoken on a number
Speaker 1: of occasions about how he does not want the Court
Speaker 1: to be seen as partisan. He issued that rather striking
Speaker 1: statement late last year saying we're not Obama judge or
Speaker 1: Trump judges, were just judges who try to do our
Speaker 1: our best to interpret and apply the law. As Chief Justice,
Speaker 1: he sees part of his role as protecting the institutional
Speaker 1: standing of the Court, and in his mind, one way
Speaker 1: to do that is to keep it from looking like
Speaker 1: it is shifting just because it has new members. Do
Speaker 1: you think back years he had these surprises, for example
Speaker 1: the Obamacare decision, where he sought it with the liberals
Speaker 1: that Obamacare could go forward. So he has surprised us
Speaker 1: before and then gone back to his normal positions. Yes,
Speaker 1: the Obamacare ruling, of course, is is a huge one,
Speaker 1: and it's one that conservatives point to to say we
Speaker 1: don't fully trust this guy. But one can also explain
Speaker 1: that decision as John Roberts thinking this is how I
Speaker 1: protect the institutional standing of this court. It would have
Speaker 1: been very striking. If five conservative justices, five Republican appointed
Speaker 1: justices had struck down Democratic pre as it then signature
Speaker 1: legislative accomplishment, that would have been a major step, and
Speaker 1: it would have, in many people's eyes, made the Court
Speaker 1: look like it was partisan. So that instinct is probably
Speaker 1: a big part of the reason why the Chief Justice
Speaker 1: voted as he did. It's important, though, even in that ruling,
Speaker 1: a lot of the language he used talked about how
Speaker 1: the Constitution does put important limits on the power of
Speaker 1: Congress and the power of the president. Those conservative instincts
Speaker 1: are still there. With John Roberts. The title of your
Speaker 1: story is hold the Revolution, And I wonder is he
Speaker 1: getting blowback from the conservatives who, with the appointment of
Speaker 1: Gorsage and Kavanaugh, thought it was, you know, full speed ahead. Yeah,
Speaker 1: I'm not sure it's quite to the point of blowback,
Speaker 1: but it is certainly to the point that some conservatives
Speaker 1: are nervous that they are not going to get to
Speaker 1: the kind of court that they had hoped to hear. Now,
Speaker 1: these worries have been there for a while, as I said,
Speaker 1: since the Obamacare decision, a lot of conservatives haven't fully
Speaker 1: trusted John Roberts but that is why when we start
Speaker 1: talking about say, Justice Ruth Bader Ginsburg, and you know,
Speaker 1: her health, there's a lot of talk on the conservative
Speaker 1: side kind of wondering, you know, will she not be
Speaker 1: able to to stay on the court. There's no evidence
Speaker 1: of that, but conservatives know that if she were to
Speaker 1: have to leave the court, that would be the time
Speaker 1: they could get another justice and really have a reliable
Speaker 1: conservative majority that they don't yet have with John Roberts.
Speaker 1: Is the Court still ducking or deferring contentious issues as
Speaker 1: it did when Kavanaugh first joined. They are. This term
Speaker 1: looks like it's going to be one where the biggest
Speaker 1: cases are ones that the Court really couldn't avoid taking it.
Speaker 1: In the case involving the citizenship question on the census
Speaker 1: and the case involving partisan gerrymandering for various reasons, they
Speaker 1: really had to take those cases. Almost everything else that
Speaker 1: was somewhat optional the Court has either said no, we're
Speaker 1: not going to take it, or they've kept deferring acting
Speaker 1: so long that if they take it it'll be next term.
Speaker 1: So there is a gun case that they're here next term.
Speaker 1: There could be various other things. A case involving whether
Speaker 1: a federal job discrimination law protects people on the basis
Speaker 1: of sexual orientation. That could be an abortion case. But
Speaker 1: for the most part, the Court has managed to defer
Speaker 1: all those issues so that they're not dealing with them.
Speaker 1: In Brett Cavanaugh's first term, well, they are dealing with
Speaker 1: church state issue, and last Wednesday there were oral arguments.
Speaker 1: Why would they take an issue like that at this
Speaker 1: point if they're avoiding contentious cases. This might have been
Speaker 1: a case where enough justice is thought that the lower
Speaker 1: court ruling was pretty clearly wrong. So this is a
Speaker 1: cross that was built as a World War One memorial
Speaker 1: in Bladensburg, Maryland, and it's now in the middle of
Speaker 1: an intersection there, and a federal appeals court said that
Speaker 1: the cross was unconstitutional and might have to be taken
Speaker 1: down or at least reshaped or moved or something. So
Speaker 1: that the Court did agree to take that up. And
Speaker 1: it was interesting at the argument it didn't seem like
Speaker 1: there was a massive division among the justices. This not
Speaker 1: look like it's going to be one of these cases
Speaker 1: that very sharply divides the Court on a five four basis.
Speaker 1: It may well end up being a narrower decision that
Speaker 1: can get more than five justices. How so what would
Speaker 1: make it a narrow decision? It did seem like the
Speaker 1: justices were inclined to say that this memorial could stay there,
Speaker 1: and they might get a couple of the more liberal
Speaker 1: justices on board with that decision if it's a narrow one.
Speaker 1: So Justice Stephen Bryer throughout the idea that maybe because
Speaker 1: this memorial has been there for almost a hundred years
Speaker 1: makes it different from something that was just built last
Speaker 1: week in court might eventually say something like old monuments
Speaker 1: like this can stay, but you can't erect new ones.
Speaker 1: And then Justice Elena Kagan's thought that World War One
Speaker 1: memorials might be different from other ones because the cross
Speaker 1: became such a symbol of World War One, the cemeteries
Speaker 1: in Europe's with all the crosses lined up, Perhaps that
Speaker 1: World War One memorial is perceived differently than across might
Speaker 1: be in some other context. Greg Some might say, I'm
Speaker 1: not saying I would say it, but the Court has
Speaker 1: taken up so many of these kinds of cases with
Speaker 1: different kinds of religious displays. Why haven't they gotten it
Speaker 1: down to a clear kind of line yet? Well, in
Speaker 1: part because they disagree So if you call when when
Speaker 1: Justice sand Did O'Connor was on the court and she
Speaker 1: was a swing justice on these issues, she came up
Speaker 1: with a test that said, the key question is whether
Speaker 1: it would appear to an objective observer that the government
Speaker 1: is endorsing religion. Well, that was a test that sort
Speaker 1: of carried the day for the time she was on
Speaker 1: the court. But now that she's gone, the court may
Speaker 1: will abandon that test, that might even do it explicitly
Speaker 1: in this case, and they would have to articulate some
Speaker 1: sort of different tests. So these are tricky issues and
Speaker 1: it matters an awful lot who is the justice deciding them.
Speaker 1: That I think explains a lot of the variation over
Speaker 1: the years about how the Court has resolved these cases.
Speaker 1: And speaking of variation, does it seem as if Justice
Speaker 1: Neil Gorstch is sort of off by himself with an
Speaker 1: idea of restricting the ability to even sue over religious displays.
Speaker 1: I don't know he's off by himself. The Chief Justice
Speaker 1: also raised the idea that maybe that's the way to
Speaker 1: resolve this case is to to restrict the ability of
Speaker 1: people to sue. You know, Justice Grocer has certainly begun
Speaker 1: to establish himself as somebody willing to think differently than
Speaker 1: some of his colleagues. That is one way the Court
Speaker 1: could resolve this case is to limit the ability of
Speaker 1: people to bring lawsuits in the first place. Wouldn't that
Speaker 1: be a very expansive way to settle this It could be.
Speaker 1: It kind of depends on what they say. It's maybe
Speaker 1: that the devil is in the details. That is probably, yes,
Speaker 1: more expansive than it would be if the Court did
Speaker 1: something that could bring on Justice Brier, Justice Cagan to
Speaker 1: say this monument is different than most other displays because
Speaker 1: it's a World War two memorial or because it's a
Speaker 1: hundred years old. Before I let you go, I have
Speaker 1: to ask you mentioned Justice Ginsburg. She's come back, and
Speaker 1: she seems to come back with a vengeance. Yeah, it's remarkable.
Speaker 1: On one opinion day on Monday, in the courts shoot
Speaker 1: three opinions and she wrote two of them. She's written
Speaker 1: three of the courts of nine opinions since she came
Speaker 1: back from her cancer surgery. It is if she is
Speaker 1: trying to send a message that she is fully able
Speaker 1: to do her job and people are starting to take notice.
Speaker 1: Thanks Greg, That's Bloomberg News Supreme Court reporter Greg Store.
Speaker 1: Thanks for listening to the Bloomberg Law Podcast. You can
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Speaker 1: and on bloomberg dot com slash podcast. I'm June Brasso.
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