WEBVTT - Chief Justice Refuses to Overturn Precedent

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<v Speaker 1>Welcome to the Bloomberg Law Podcast. I'm June Grosso. Every

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<v Speaker 1>day we bring you insight and analysis into the most

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<v Speaker 1>important legal news of the day. You can find more

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<v Speaker 1>episodes of the Bloomberg Law Podcast on Apple podcast, SoundCloud

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<v Speaker 1>and on Bloomberg dot com slash podcast. The Supreme Court

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<v Speaker 1>justices are on vacation until the first Monday November, as

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<v Speaker 1>legal analysts view the last term and try to glean

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<v Speaker 1>patterns and trends. Joining me to do just that is

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<v Speaker 1>Constitutional law professor Stephen Flattock of the University of Texas

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<v Speaker 1>School of Law. So Steve, the cases that garnered the

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<v Speaker 1>headlines last week, we're about partisan Jerryman during in the

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<v Speaker 1>census citizenship question, But lurking in the shadows, so to speak,

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<v Speaker 1>was a case on administrative law, not a very sexy

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<v Speaker 1>area of law, but a case that tells a lot. Yeah.

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<v Speaker 1>So the cases called kaisar versus Welcome. Ka is actually

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<v Speaker 1>a marine veteran who was basically embroiled in this dispute

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<v Speaker 1>with v A over the denial of benefits rising out

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<v Speaker 1>of his PTSD, and the actual legal question June was

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<v Speaker 1>whether the v A was entitled to deference an interpreting

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<v Speaker 1>ambiguous language in its own regulations. The Federal Circuit, relying

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<v Speaker 1>on prior court precedent, had said yes, and the case

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<v Speaker 1>had been viewed I think pretty widely as an opportunity

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<v Speaker 1>to narrow, if not get rid of that precedent, basically

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<v Speaker 1>to reduce the amount of deference the administrative agencies provide

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<v Speaker 1>or art received from federal courts and the Supreme Court,

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<v Speaker 1>largely because of a narrow vote by Chief Justice John

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<v Speaker 1>Roberts declined to overturn the relevant precedent a case called

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<v Speaker 1>our but now did pretty sharply, so that you know

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<v Speaker 1>it's going to be a lot less likely going forward

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<v Speaker 1>that agencies like the v A will will win in

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<v Speaker 1>context in which their case turns on whether their interpretation

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<v Speaker 1>prevails over a court's interpretation. But June, I think Kaiser

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<v Speaker 1>is important not because of the result, but because I

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<v Speaker 1>think we saw from the four justices who concurred in

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<v Speaker 1>part and the sent it in part, that they really

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<v Speaker 1>would go much much further. I mean, Justice Gorsages sent

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<v Speaker 1>an opinion if it received a fifth vote, I think

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<v Speaker 1>would be a pretty radical reimagine him of exactly what

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<v Speaker 1>federal administrative agencies are allowed to do and more importantly,

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<v Speaker 1>what they're not allowed to do. So, Chief Justice John Roberts,

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<v Speaker 1>as you mentioned the deciding vote, he joined the liberal

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<v Speaker 1>justice solely on that basis of starring decisives, which is

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<v Speaker 1>precedent should be respected. Do you believe he did that

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<v Speaker 1>because he didn't want another case there are two cases

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<v Speaker 1>where they overturned precedent that he didn't want another case

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<v Speaker 1>where that happened and so the image of the court,

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<v Speaker 1>or because he believes in the fundamentals of the majority opinion.

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<v Speaker 1>It's a good question, June. I'm not sure. I'm not

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<v Speaker 1>sure I know the answer. I mean, I think, you know,

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<v Speaker 1>for the Chief, it's more likely that that was a

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<v Speaker 1>sort of a sickly something to rely upon. You know,

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<v Speaker 1>he didn't really sort of explain his own views in

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<v Speaker 1>much detail. I mean, he wrote a short, deeper statement,

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<v Speaker 1>but I think, you know, perhaps the larger point here

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<v Speaker 1>is that for the Chief, and this is what he

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<v Speaker 1>said in his separate opinion, he didn't see that much

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<v Speaker 1>daylight between Justice Kagan's opinion and the opinion to Justice

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<v Speaker 1>Course that wrote nominally in behalf of the dissenters. You know, June,

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<v Speaker 1>that that may be right when the case like that

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<v Speaker 1>guess to the Supreme Court. I think there's a lot

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<v Speaker 1>of daylight between an opinion that narrows this kind of

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<v Speaker 1>deference but still leaves it on the books and one

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<v Speaker 1>that wipes away all together when we're talking about how

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<v Speaker 1>lower court judges are supposed to deal with future cases.

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<v Speaker 1>And I think to me the important part here about

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<v Speaker 1>the Chief is, you know, yes, he sort of joined

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<v Speaker 1>the liberals here, but he also joined Justice Gorse as

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<v Speaker 1>his dissent in the gun Be case about the non

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<v Speaker 1>delegation doctrine and about Congress's power or lack thereof, to

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<v Speaker 1>delegate legislative and judicial authority to administrative agencies. You know,

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<v Speaker 1>Justice course is just desent in that case is a

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<v Speaker 1>pretty radical and fundamental assault and modern administrative law. And

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<v Speaker 1>if the Chief is fully on board with where gorsages

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<v Speaker 1>in that case, you know, I think his vote in

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<v Speaker 1>kais or becomes much less important going forward, especially if

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<v Speaker 1>they're you know, as soon a majority of Justice to

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<v Speaker 1>adopt the Gorse has just sent in Gundhi for district

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<v Speaker 1>court judges. How has this term changed administrative law if

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<v Speaker 1>at all the interpretations? Well, I mean, I think the

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<v Speaker 1>short answer is it's changed it a little bit, but

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<v Speaker 1>it is portending massive changes coming down the pike. And

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<v Speaker 1>so I think in the short term, the circuit judges

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<v Speaker 1>who are the ones who most often grapple with these

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<v Speaker 1>hard questions of administrative law and sort of trying to

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<v Speaker 1>figure out what to do with vague or ambiguous language

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<v Speaker 1>and agency regulations and agency statutes. I think the circuit

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<v Speaker 1>judges are for the moment, you know, going to be

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<v Speaker 1>taking their queue front Chief Justice Roberts and basically given

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<v Speaker 1>agencies less but not zero difference in these matters, taking

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<v Speaker 1>a little more seriously the idea that they have an

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<v Speaker 1>independent obligation even when the language is ambigious. But you know, June,

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<v Speaker 1>that's just in the short term. I think the real

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<v Speaker 1>question is whether there's going to be a fifth vote

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<v Speaker 1>in the long term for the position Justice Gorsuch espoused

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<v Speaker 1>in Gundhi. In that case, Justice Kavanaugh did not participate

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<v Speaker 1>because it was argued right before he was confirmed, and

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<v Speaker 1>Justice Aldo, who cast the fifth vote in favor of

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<v Speaker 1>the judgment, that he was only doing that because there

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<v Speaker 1>wasn't a full court. So if we assume a leado

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<v Speaker 1>would join Gorsuch as the scent in the future case,

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<v Speaker 1>and if we assume that, I think we can that

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<v Speaker 1>Justice Kavanaugh would be deeply sympathetic to that as well.

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<v Speaker 1>I think the real story of this term from an

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<v Speaker 1>administrative law perspective is that the writing is on the

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<v Speaker 1>wall for a pretty stunning change and shift in the

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<v Speaker 1>relationship between federal courts and federal administrative agencies. It's not

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<v Speaker 1>going to happen tomorrow, but I think it could happen

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<v Speaker 1>pretty soon. This is the first term since Kavanaugh succeeded

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<v Speaker 1>swing vote Justice Anthony Kennedy. There were only two decisions

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<v Speaker 1>that explicitly overturned press since But did Conservatives gain with

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<v Speaker 1>that change in justices? Well, I don't think there's any question.

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<v Speaker 1>I mean, I think we could point to a lot

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<v Speaker 1>of examples June, but the one that really jumps out

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<v Speaker 1>to me is the partisan gerry Mandarin case the Supreme

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<v Speaker 1>Court decided last Thursday. So in root O versus common Cause,

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<v Speaker 1>you have Chief Justice Roberts writing for a five four

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<v Speaker 1>majority that challenges to severe partisan jerry mandarin. Even if

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<v Speaker 1>we think that the severe partisan gerryman is unconstitutional, are

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<v Speaker 1>not justiciabal, They're not the kinds of disputes that the

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<v Speaker 1>federal courts have the power and ability to resolve. And

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<v Speaker 1>this is a huge deal because previously the Court had

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<v Speaker 1>actually split on whether these disputes could go ahead, on

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<v Speaker 1>whether federal courts could hear them, with four justices saying no,

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<v Speaker 1>four justician yes, and Justice Kennedy basically hanging out in

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<v Speaker 1>the middle and saying, I'm not yet convinced. He wrote

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<v Speaker 1>in two thousand and four that we can handle these cases,

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<v Speaker 1>but I'm not yet convinced that we can't. And what

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<v Speaker 1>we see in the ruling from last Thursday is the

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<v Speaker 1>difference that Kavanaugh makes, where, you know, without writing separately,

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<v Speaker 1>he signs on in full to to Justice roberts opinion,

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<v Speaker 1>basically saying the federal courts have nothing to do with

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<v Speaker 1>partisan gerrymander and going forward June, that's an enormous decision

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<v Speaker 1>with regard to what it's going to mean for redrawing

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<v Speaker 1>of district maps in the coming years, and it's one

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<v Speaker 1>that I think would not have been possible if Anthony

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<v Speaker 1>Kennedy were still on the court. Is Chief Justice John

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<v Speaker 1>Roberts the new swing vote? Oh, I don't think there's

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<v Speaker 1>any question looking at this term that with the exception

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<v Speaker 1>of maybe criminal cases where it looks more and more

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<v Speaker 1>like Justice Gorse, which is going to be the most

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<v Speaker 1>likely possibility for a stiff vote for criminal defendants on

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<v Speaker 1>the big hot button socially divisive cases. To Justice Roberts

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<v Speaker 1>is absolutely the swing vote. Now that doesn't make him

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<v Speaker 1>a moderate. I mean, I think there's a difference between,

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<v Speaker 1>you know, being the swing vote and being as Justice

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<v Speaker 1>Kennedy was often a moderate. But it does mean that

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<v Speaker 1>a lot of these doctrines, our rights and liberties, all

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<v Speaker 1>of this it is going. It's forn on where chiefs

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<v Speaker 1>defice Roberts comes down. Thank you so much, Steve that

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<v Speaker 1>Stephen Bladdock, Professor at the Universe of Texas School of Law.

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<v Speaker 1>Thanks for listening to the Bloomberg Law Podcast. You can

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<v Speaker 1>subscribe and listen to the show on Apple Podcasts, SoundCloud,

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

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<v Speaker 1>This is Bloomberg