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 podcast, SoundCloud
Speaker 1: and on Bloomberg dot com slash podcast. The Supreme Court
Speaker 1: justices are on vacation until the first Monday November, as
Speaker 1: legal analysts view the last term and try to glean
Speaker 1: patterns and trends. Joining me to do just that is
Speaker 1: Constitutional law professor Stephen Flattock of the University of Texas
Speaker 1: School of Law. So Steve, the cases that garnered the
Speaker 1: headlines last week, we're about partisan Jerryman during in the
Speaker 1: census citizenship question, But lurking in the shadows, so to speak,
Speaker 1: was a case on administrative law, not a very sexy
Speaker 1: area of law, but a case that tells a lot. Yeah.
Speaker 1: So the cases called kaisar versus Welcome. Ka is actually
Speaker 1: a marine veteran who was basically embroiled in this dispute
Speaker 1: with v A over the denial of benefits rising out
Speaker 1: of his PTSD, and the actual legal question June was
Speaker 1: whether the v A was entitled to deference an interpreting
Speaker 1: ambiguous language in its own regulations. The Federal Circuit, relying
Speaker 1: on prior court precedent, had said yes, and the case
Speaker 1: had been viewed I think pretty widely as an opportunity
Speaker 1: to narrow, if not get rid of that precedent, basically
Speaker 1: to reduce the amount of deference the administrative agencies provide
Speaker 1: or art received from federal courts and the Supreme Court,
Speaker 1: largely because of a narrow vote by Chief Justice John
Speaker 1: Roberts declined to overturn the relevant precedent a case called
Speaker 1: our but now did pretty sharply, so that you know
Speaker 1: it's going to be a lot less likely going forward
Speaker 1: that agencies like the v A will will win in
Speaker 1: context in which their case turns on whether their interpretation
Speaker 1: prevails over a court's interpretation. But June, I think Kaiser
Speaker 1: is important not because of the result, but because I
Speaker 1: think we saw from the four justices who concurred in
Speaker 1: part and the sent it in part, that they really
Speaker 1: would go much much further. I mean, Justice Gorsages sent
Speaker 1: an opinion if it received a fifth vote, I think
Speaker 1: would be a pretty radical reimagine him of exactly what
Speaker 1: federal administrative agencies are allowed to do and more importantly,
Speaker 1: what they're not allowed to do. So, Chief Justice John Roberts,
Speaker 1: as you mentioned the deciding vote, he joined the liberal
Speaker 1: justice solely on that basis of starring decisives, which is
Speaker 1: precedent should be respected. Do you believe he did that
Speaker 1: because he didn't want another case there are two cases
Speaker 1: where they overturned precedent that he didn't want another case
Speaker 1: where that happened and so the image of the court,
Speaker 1: or because he believes in the fundamentals of the majority opinion.
Speaker 1: It's a good question, June. I'm not sure. I'm not
Speaker 1: sure I know the answer. I mean, I think, you know,
Speaker 1: for the Chief, it's more likely that that was a
Speaker 1: sort of a sickly something to rely upon. You know,
Speaker 1: he didn't really sort of explain his own views in
Speaker 1: much detail. I mean, he wrote a short, deeper statement,
Speaker 1: but I think, you know, perhaps the larger point here
Speaker 1: is that for the Chief, and this is what he
Speaker 1: said in his separate opinion, he didn't see that much
Speaker 1: daylight between Justice Kagan's opinion and the opinion to Justice
Speaker 1: Course that wrote nominally in behalf of the dissenters. You know, June,
Speaker 1: that that may be right when the case like that
Speaker 1: guess to the Supreme Court. I think there's a lot
Speaker 1: of daylight between an opinion that narrows this kind of
Speaker 1: deference but still leaves it on the books and one
Speaker 1: that wipes away all together when we're talking about how
Speaker 1: lower court judges are supposed to deal with future cases.
Speaker 1: And I think to me the important part here about
Speaker 1: the Chief is, you know, yes, he sort of joined
Speaker 1: the liberals here, but he also joined Justice Gorse as
Speaker 1: his dissent in the gun Be case about the non
Speaker 1: delegation doctrine and about Congress's power or lack thereof, to
Speaker 1: delegate legislative and judicial authority to administrative agencies. You know,
Speaker 1: Justice course is just desent in that case is a
Speaker 1: pretty radical and fundamental assault and modern administrative law. And
Speaker 1: if the Chief is fully on board with where gorsages
Speaker 1: in that case, you know, I think his vote in
Speaker 1: kais or becomes much less important going forward, especially if
Speaker 1: they're you know, as soon a majority of Justice to
Speaker 1: adopt the Gorse has just sent in Gundhi for district
Speaker 1: court judges. How has this term changed administrative law if
Speaker 1: at all the interpretations? Well, I mean, I think the
Speaker 1: short answer is it's changed it a little bit, but
Speaker 1: it is portending massive changes coming down the pike. And
Speaker 1: so I think in the short term, the circuit judges
Speaker 1: who are the ones who most often grapple with these
Speaker 1: hard questions of administrative law and sort of trying to
Speaker 1: figure out what to do with vague or ambiguous language
Speaker 1: and agency regulations and agency statutes. I think the circuit
Speaker 1: judges are for the moment, you know, going to be
Speaker 1: taking their queue front Chief Justice Roberts and basically given
Speaker 1: agencies less but not zero difference in these matters, taking
Speaker 1: a little more seriously the idea that they have an
Speaker 1: independent obligation even when the language is ambigious. But you know, June,
Speaker 1: that's just in the short term. I think the real
Speaker 1: question is whether there's going to be a fifth vote
Speaker 1: in the long term for the position Justice Gorsuch espoused
Speaker 1: in Gundhi. In that case, Justice Kavanaugh did not participate
Speaker 1: because it was argued right before he was confirmed, and
Speaker 1: Justice Aldo, who cast the fifth vote in favor of
Speaker 1: the judgment, that he was only doing that because there
Speaker 1: wasn't a full court. So if we assume a leado
Speaker 1: would join Gorsuch as the scent in the future case,
Speaker 1: and if we assume that, I think we can that
Speaker 1: Justice Kavanaugh would be deeply sympathetic to that as well.
Speaker 1: I think the real story of this term from an
Speaker 1: administrative law perspective is that the writing is on the
Speaker 1: wall for a pretty stunning change and shift in the
Speaker 1: relationship between federal courts and federal administrative agencies. It's not
Speaker 1: going to happen tomorrow, but I think it could happen
Speaker 1: pretty soon. This is the first term since Kavanaugh succeeded
Speaker 1: swing vote Justice Anthony Kennedy. There were only two decisions
Speaker 1: that explicitly overturned press since But did Conservatives gain with
Speaker 1: that change in justices? Well, I don't think there's any question.
Speaker 1: I mean, I think we could point to a lot
Speaker 1: of examples June, but the one that really jumps out
Speaker 1: to me is the partisan gerry Mandarin case the Supreme
Speaker 1: Court decided last Thursday. So in root O versus common Cause,
Speaker 1: you have Chief Justice Roberts writing for a five four
Speaker 1: majority that challenges to severe partisan jerry mandarin. Even if
Speaker 1: we think that the severe partisan gerryman is unconstitutional, are
Speaker 1: not justiciabal, They're not the kinds of disputes that the
Speaker 1: federal courts have the power and ability to resolve. And
Speaker 1: this is a huge deal because previously the Court had
Speaker 1: actually split on whether these disputes could go ahead, on
Speaker 1: whether federal courts could hear them, with four justices saying no,
Speaker 1: four justician yes, and Justice Kennedy basically hanging out in
Speaker 1: the middle and saying, I'm not yet convinced. He wrote
Speaker 1: in two thousand and four that we can handle these cases,
Speaker 1: but I'm not yet convinced that we can't. And what
Speaker 1: we see in the ruling from last Thursday is the
Speaker 1: difference that Kavanaugh makes, where, you know, without writing separately,
Speaker 1: he signs on in full to to Justice roberts opinion,
Speaker 1: basically saying the federal courts have nothing to do with
Speaker 1: partisan gerrymander and going forward June, that's an enormous decision
Speaker 1: with regard to what it's going to mean for redrawing
Speaker 1: of district maps in the coming years, and it's one
Speaker 1: that I think would not have been possible if Anthony
Speaker 1: Kennedy were still on the court. Is Chief Justice John
Speaker 1: Roberts the new swing vote? Oh, I don't think there's
Speaker 1: any question looking at this term that with the exception
Speaker 1: of maybe criminal cases where it looks more and more
Speaker 1: like Justice Gorse, which is going to be the most
Speaker 1: likely possibility for a stiff vote for criminal defendants on
Speaker 1: the big hot button socially divisive cases. To Justice Roberts
Speaker 1: is absolutely the swing vote. Now that doesn't make him
Speaker 1: a moderate. I mean, I think there's a difference between,
Speaker 1: you know, being the swing vote and being as Justice
Speaker 1: Kennedy was often a moderate. But it does mean that
Speaker 1: a lot of these doctrines, our rights and liberties, all
Speaker 1: of this it is going. It's forn on where chiefs
Speaker 1: defice Roberts comes down. Thank you so much, Steve that
Speaker 1: Stephen Bladdock, Professor at the Universe of Texas School of Law.
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 Brosso.
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