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Speaker 1: At the start of twenty sixteen, the Supreme Court seemed

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Speaker 1: to be following a familiar pattern. The Court had a

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Speaker 1: handful of major cases, and Justice Anthony Kennedy and Chief

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Speaker 1: Justice John Roberts were expected to cast the pivole of votes.

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Speaker 1: On February, everything changed. Antonin Scalia's sudden death through the

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Speaker 1: Court into a period of uncertainty that continues to this day.

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Speaker 1: In March, President Obama nominated Judge Merrick Garland to fill

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Speaker 1: the seat and called on the Senate to act on

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Speaker 1: the nomination. I simply ask Republicans in the Senate to

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Speaker 1: give him a fair hearing and then an upper down vote.

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Speaker 1: If you don't, then it will not only be an

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Speaker 1: abdication of the Senate's constitutional duty, it will indicate a

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Speaker 1: process for nominating and confirming judges that is beyond repair.

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Speaker 1: But Senate Republicans, led by Majority Leader Mitch McConnell, weren't moved.

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Speaker 1: The American people may well elect a president who decides

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Speaker 1: to nominate Judge Garland for Senate consideration. The next president

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Speaker 1: may also nominate somebody very different. Either way, it our

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Speaker 1: view is this give the people a voice in filling

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Speaker 1: this vacancy. Republicans held out. Donald Trump won the election,

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Speaker 1: and now the Supreme Court's future looks very different than

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Speaker 1: it did a few months ago. Here to talk about

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Speaker 1: this very unusual year at the Supreme Court, one that

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Speaker 1: also included some very big liberal victories on abortion and

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Speaker 1: affirmative action, is Kimberly Robinson, who covers the Supreme Court

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Speaker 1: for Bloomberg BNA. Kimberly, thanks for being here, Thanks for

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Speaker 1: having me. So let's go back to Scaliah's death. Share

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Speaker 1: with me where you were when you heard about it

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Speaker 1: and what your immediate reaction was. Oh, no, well, this

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Speaker 1: is a little embarrassing. I was at Chuck E Cheese

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Speaker 1: with my children at a birthday party. I still don't

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Speaker 1: think they've forgiven me for dragging them out of there, um,

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Speaker 1: but I think my reaction was, like so many others,

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Speaker 1: just complete shock. I mean, Justice Scalia had been on

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Speaker 1: the Court for thirty years. He was just such a

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Speaker 1: you know, part of that institution that it was shocking

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Speaker 1: to hear that had passed aways unexpectedly, even though you know,

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Speaker 1: we were kind of anticipating that there might be some

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Speaker 1: vacancies on the court even even before that happened. Yeah,

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Speaker 1: there was so much, such a larger than life figure.

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Speaker 1: I was driving my son to basketball practice at the time,

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Speaker 1: and uh, you know, there were so many things to

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Speaker 1: think about. And I know I spent the whole weekend

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Speaker 1: writing and reporting and just trying to think about the

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Speaker 1: immediate impact of what it meant for this term, the

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Speaker 1: long term impact Scalia's legacy. Uh, you know, there was

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Speaker 1: so much to comprehend it, and I think it even

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Speaker 1: took folks on the court quite a while to do

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Speaker 1: that too. How would you describe how the court handled

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Speaker 1: those next few months after Scalia died. They they uh,

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Speaker 1: you know lost uh you know, a colleague and you know,

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Speaker 1: they also lost a vote, so they ended up with

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Speaker 1: with only eight justices for the rest of the term. Well,

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Speaker 1: I think there's really two ways to answer that question.

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Speaker 1: You know, one is personally and one is kind of legally.

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Speaker 1: And so on the personal level, you know, although Justice

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Speaker 1: Scalia was sometimes controversial to people outside of the court,

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Speaker 1: he was very well liked within the court. You know.

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Speaker 1: He he famously had good friendships with people his colleagues

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Speaker 1: on the court who were his exact ideological opposite um

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Speaker 1: and so justices themselves have said that, you know, the

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Speaker 1: Supreme Court is just more of a somber place without him. Legally,

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Speaker 1: as you mentioned, you know, the Court was kind of

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Speaker 1: left with even an even number of justices. And I

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Speaker 1: think even though the justices tried to say that they

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Speaker 1: just they deal with it and you know, the court

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Speaker 1: would go on, I think we saw them struggle a

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Speaker 1: little bit. And I think the best example of that

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Speaker 1: is the Supreme Courts sort of non decision and in

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Speaker 1: a case about Obamacare and religious freedom, and we saw

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Speaker 1: them send that case back, but it really seemed more

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Speaker 1: like a legislative fix. Yeah. That that was a very weird,

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Speaker 1: weird order. Like you know, it was essentially trying to

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Speaker 1: broke her a settlement, which is something maybe you see

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Speaker 1: a trial judge do, but but not not the Supreme Court. Yeah,

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Speaker 1: and I think, you know, that case gave me a

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Speaker 1: sense that there there was a little bit of struggling.

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Speaker 1: You know, most of the Supreme Court cases don't down

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Speaker 1: five to four, so they were able to come to

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Speaker 1: a consensus on most of the cases. But on the

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Speaker 1: really tight cases, we did see some really big um

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Speaker 1: for four decisions. So so tell me what there were

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Speaker 1: some significant decisions. What what would you say of the

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Speaker 1: decisions was for you the biggest surprise? Well, I mean,

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Speaker 1: there are a lot of cases at the Supreme Court

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Speaker 1: that are really surprising. I think, you know, the Supreme Court,

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Speaker 1: as far as Washington goes pretty calm um. But the

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Speaker 1: one that did have me scratching my head was the

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Speaker 1: Court's decision on affirmative action, upholding the University of Texas

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Speaker 1: at Austin's affirmative action program. You know, the case had

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Speaker 1: been before the Court before, it didn't really seem like

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Speaker 1: a lot had changed, and yet we saw Anthony Kennedy,

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Speaker 1: who was and now seems like will continue to be

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Speaker 1: the swing justice vote in favor of the program. To me,

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Speaker 1: that was surprising. I think it was even surprising to

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Speaker 1: the attorneys who represented uh the university in that case. Yeah,

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Speaker 1: I would certainly agree on the one other case I

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Speaker 1: would put up there. Interested in your reaction to it

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Speaker 1: is is for a different reason. I was surprised by

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Speaker 1: the immigration case. This is a challenge to the President's

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Speaker 1: program of differing deportation for a large number of people,

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Speaker 1: and the Court split four four on that. And the

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Speaker 1: reason I was surprised was not so much that that's

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Speaker 1: where the justices came down, but that they couldn't find

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Speaker 1: a way to avoid that four four split because essentially

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Speaker 1: what you had was was, uh, you know, the president

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Speaker 1: is a big presidential initiative being struck down because the

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Speaker 1: lower court had had said the president over overstepped his authority,

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Speaker 1: and the Supreme Court then couldn't reach it reach any decisions.

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Speaker 1: So I thought they were going to come up with

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Speaker 1: something that would uh, you know, let that case, you know,

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Speaker 1: say something in that case. Yeah, I don't know if

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Speaker 1: it was as important for them to get to a

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Speaker 1: consensus in that case because they're the lower court had

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Speaker 1: already made a ruling that was going to be applicable nationally,

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Speaker 1: and so it wasn't as if the decisions at the

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Speaker 1: Supreme Court, you know, or the non decision that they made,

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Speaker 1: where it's going to create these you know, different laws

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Speaker 1: and different parts of the country. Um. So, I mean

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Speaker 1: I wasn't as surprised by the immigration decision as I

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Speaker 1: was by affirmative action, but you know, this term was

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Speaker 1: was strange. So so we have just about a minute left,

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Speaker 1: But let's try to look ahead a little bit. First,

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Speaker 1: When when do you think we're going to get in

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Speaker 1: the next justice. The last round of arguments is in

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Speaker 1: late April. You think we're going to see a new

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Speaker 1: justice before then? Well, Donald Trump said on December one

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Speaker 1: he was going to release a nominee. Uh the name

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Speaker 1: of the nominees soon. We're a month out. We haven't

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Speaker 1: gotten it. I think it would be hard to get

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Speaker 1: somebody on the court before then. We still have to

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Speaker 1: go through confirmation hearings. Uh. It's certainly is possible because

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Speaker 1: many of these people are already federal judges. They've been

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Speaker 1: through the confirmation process before. But I think it depends

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Speaker 1: on who Donald Trump ultimately picks. And if you're right

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Speaker 1: on that, does that mean we're we're sort of different?

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Speaker 1: Right now? The court doesn't have any real blockbuster cases.

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Speaker 1: Are we just kind of punting for for a while,

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Speaker 1: not going to have any major cases before the court

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Speaker 1: until until the next term. Well, there are some big

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Speaker 1: cases on the spring court stocket. Whether or not they'll

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Speaker 1: go ahead and hear them, I will have to see.

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Speaker 1: There's still some chance of that, But it does seem

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Speaker 1: like we're putting off a lot of the the bigger

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Speaker 1: decisions that that That is certainly the case. One of

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Speaker 1: those potential cases they have has to do with the

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Speaker 1: Texas voter I D requirement. We're going to talk about

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Speaker 1: that in a few minutes here. On Bloomberg Law. Coming up,

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Speaker 1: we'll talk about another area where the Supreme Court has

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Speaker 1: made a difference, environmental law. Talk about what's what's ahead there,

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Speaker 1: including what's going to happen with President Obama's Clean Power Plan,

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Speaker 1: which is the centerpiece of his environmental agenda. That's coming

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Speaker 1: up on Bloomberg Law. This is Bloomberg