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Speaker 1: This is Bloombird Law with June Brussel from Bloomberg Radio.

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Speaker 1: As President Biden signed an executive order on Friday to

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Speaker 1: protect access to abortion, he criticized the Supreme Court, as

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Speaker 1: the justice wrote in their descent and I quote the

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Speaker 1: majority has overrule rowing Casey for one and only one reason,

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Speaker 1: because it has always despised them, and now it has

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Speaker 1: the votes to discard them end of quote. So what

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Speaker 1: we're witnessing wasn't a constitutional judgment. It was an exercise

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Speaker 1: and raw political power. This term, the Supreme Court issued

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Speaker 1: sweeping decisions that will reverberate for decades, wiping out the

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Speaker 1: constitutional right to abortion, expanding gun rights, limiting the e

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Speaker 1: p a's ability to address climate change, and upending the

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Speaker 1: lawn Church and State. Each of these decisions fractured the

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Speaker 1: Court along ideological lines, with the three liberal justices in

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Speaker 1: the minority and the six conservative justices in the majority

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Speaker 1: often ignoring precedent. Joining me as constitutional law experts Stephen Vladdock,

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Speaker 1: a professor at the University of Texas Law School, how

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Speaker 1: would you describe this past term at the Supreme Court?

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Speaker 1: I mean, I think in a word, it was done

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Speaker 1: in you know, I think it was as conservative term

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Speaker 1: as wesed in their lifetimes. I think the number of

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Speaker 1: high profile precedent shifting and in some cases precedent over

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Speaker 1: ruling decisions truly not something we've ever seen in a

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Speaker 1: long time. And I think it's having already a profound

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Speaker 1: impact not just on the state of our constitutional law,

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Speaker 1: but on the state of our country and on the

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Speaker 1: state of our politics. I think this is a Supreme

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Speaker 1: Court where you clearly have a court that's increasingly reflective

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Speaker 1: of the polarization of the country, but also a conservative

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Speaker 1: majority that just there's no reason to be at all

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Speaker 1: moderate or conciliatory. And I think we're seeing the effects

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Speaker 1: of that. Nineteen cases were decided by six to three votes.

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Speaker 1: Does that show just how polarize this court has become.

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Speaker 1: When we talk about the court split in you know,

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Speaker 1: we might say ideologically the numbers used to be in

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Speaker 1: the low double figures. It's not the high single figures,

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Speaker 1: and so nineteen is quite a number. But June, keep

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Speaker 1: in mind, not only is that nineteen by itself, it's

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Speaker 1: nineteen out of the self selecting that of cases the

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Speaker 1: justices are agreeing to hear. Where this term for the

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Speaker 1: third term in a row, there were fewer than sixty

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Speaker 1: signed decisions and merits cases. You know, a total of

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Speaker 1: the court had not previously stuped two since the Civil War.

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Speaker 1: So it's not just that it's nineteen of them, it's

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Speaker 1: that it's nineteen out of a pretty small and self

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Speaker 1: selecting totals. The pretty powerful reflection of just how ideologically

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Speaker 1: divided the Court is and sort of how the old

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Speaker 1: narratives about the Court being, you know, one of strange

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Speaker 1: bedfellows and one that actually tries from moderation just doesn't

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Speaker 1: apply to the term at all, except for the decision

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Speaker 1: reversing Row the way Chief Justice Roberts has voted with

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Speaker 1: the conservative majority in those hot button cases. So is

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Speaker 1: he really trying to mitigate the courts trend towards the

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Speaker 1: right or not? I think if the answers it depends.

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Speaker 1: You know, if we take into account the high profile

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Speaker 1: rulings on the Shadow Doctor, these emergency orders, I do

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Speaker 1: think we saw more examples of Chief Justice Roberts bracing

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Speaker 1: from the Conservatives. He joined the liberals and descent him

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Speaker 1: from the Alabama redistricting decision. In February, he joined the

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Speaker 1: liberals and descent him from the Clean Water Act decision

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Speaker 1: in April. But I think what we're really seeing June

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Speaker 1: is that the difference between Chiefesses Roberts and the rest

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Speaker 1: of the Conservatives is not where he wants to end

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Speaker 1: up in these cases, it's how he thinks the Court

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Speaker 1: should get there. And more often this term than not,

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Speaker 1: that was a distinction that didn't matter in cases like

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Speaker 1: the religion cases or Western Universe's e p a versus

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Speaker 1: the handful of cases where it didn't matter where we

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Speaker 1: did see him break from the other Conservatives. There are

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Speaker 1: a lot of cases that didn't lead to as much

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Speaker 1: up evil across the country as abortion, but cases where

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Speaker 1: they reversed or ignored precedent or change the rules. Tells

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Speaker 1: about a few of them, the gun rights, the climate change,

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Speaker 1: the school prayer. Yeah, I mean, you know, we could

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Speaker 1: do an hour I think on any of them. One

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Speaker 1: of the things about the tournaments that there were at

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Speaker 1: least six or seven decisions, and any other term would

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Speaker 1: have been the defined in the decision of the term.

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Speaker 1: Since the gun rights case Bruin is going to be

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Speaker 1: enormously important, not because of the specific issue that was involved.

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Speaker 1: That is to say, these shall issue or may issue

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Speaker 1: regimes for public carrier of firearms. But because the majority

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Speaker 1: and out of its way to completely reconfigure the test

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Speaker 1: for how Second Amendment rights should be considered, I think

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Speaker 1: that new test is going to provoke a lot of litigation,

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Speaker 1: but a lot of litigation is going to end with

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Speaker 1: gun regulations that used to be upheld being struck down.

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Speaker 1: The majority opinion by Justice Thomas really is hostile to

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Speaker 1: any gun regulations that don't have some kind of deep

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Speaker 1: historical roots, and that's going to be a real problem

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Speaker 1: within like assault weapons band or age limits or things

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Speaker 1: like that. The religion cases, you know, I think the

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Speaker 1: Court really took a healthy bite out of it, not

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Speaker 1: altogether gutted the establishment clause, where it used to be

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Speaker 1: that governments, school districts, public actors were allowed to if

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Speaker 1: not required, to take into account the very very distinct

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Speaker 1: possibility that endorsing religious practice or funding religious schools would

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Speaker 1: actually be establishing religion because it would be preferring religion

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Speaker 1: over ir religion, and preferring some religions over others. And

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Speaker 1: we saw the Court at the end of the term

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Speaker 1: really take a healthy bite out of what the establishment

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Speaker 1: clause actually protects. We saw the Court sort of quietly

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Speaker 1: over rule Lemon versus Kurtzman this significant establishment clause precedent,

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Speaker 1: so that it's going to be a lot easier going

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Speaker 1: forward for school districts to encourage prayer. It's gonna be

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Speaker 1: a lot harder for states to avoid funding religious education.

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Speaker 1: And I think those effects are going to be felt

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Speaker 1: really across the gambit of religious liberty challenges. So I'm wondering,

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Speaker 1: for a lawyer going to argue a case next term

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Speaker 1: before the Supreme Court, do you bother to argue precedent?

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Speaker 1: Do you bother to argue the methods of interpretation that

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Speaker 1: the Court is used, because it seems like the Court's

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Speaker 1: willing to ignore them. The Scottish writer Andrew Land has

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Speaker 1: a great line about using statistics the way that the

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Speaker 1: drunk uses the lamppost for support rather than illumination, and

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Speaker 1: I think that's tour heading with precedent. I think, you know,

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Speaker 1: the reality is that this is a court that will

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Speaker 1: be perfectly happy to rely upon precedent in those cases

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Speaker 1: where the precedent points to justice towards the answer they

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Speaker 1: want to reach. But you know, June, I think the

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Speaker 1: bloom is off the road. When it comes to whether

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Speaker 1: this Court is going to follow any precedents that the

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Speaker 1: justices don't agree with simply because they're precedent. I think

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Speaker 1: the answer there is clearly no. And once you've cross

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Speaker 1: that bridge, once the Court has said there are five

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Speaker 1: those that are willing to overrule cases just because five

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Speaker 1: justice thinks they're wrong, that really opens up an incredibly

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Speaker 1: broad water front of arguments that can be made, of

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Speaker 1: precedents that can be challenged, and you know, really is

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Speaker 1: sort of no hold barred going forward. And I think

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Speaker 1: one of the questions folks should be asking themselves, even

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Speaker 1: if they like the result the court to reach in

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Speaker 1: in some of these cases, is a court in this

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Speaker 1: kind of a hurry really a healthy thing for a

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Speaker 1: constitutional system. I think, you know, there's a reason to

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Speaker 1: be a bit worried about that. Coming up, I'll continue

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Speaker 1: this conversation with Professor Stephen Vladdock and we'll talk about

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Speaker 1: whether it's originalism, textualism, or something else. This is bloomberg.

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Speaker 1: As the Supreme Court erased the constitutional right to abortion,

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Speaker 1: nullified state gun control laws, and limited the power of

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Speaker 1: the e p A to fight climate change, democratic governor

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Speaker 1: has promised to step into the void and take action.

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Speaker 1: Here are New York Governor Kathy Hokel, New Jersey Governor

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Speaker 1: Phil Murphy, and California Governor Gavin Newsom. No matter what

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Speaker 1: the Supreme Court things, they can do, New Yorkers, you

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Speaker 1: are protected. We have made sure our state law protects

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Speaker 1: a woman's right to an abortion, and today, because of

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Speaker 1: this ruling and the fallout from it, we unequivocally extend

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Speaker 1: this protection to every American woman. We've got to wake

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Speaker 1: up to what's going on in Supreme Court, and we've

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Speaker 1: got to double down, quadruple down here in California and

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Speaker 1: in blue states all across America. I've been talking to

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Speaker 1: constitutional law experts Stephen Vladdock, a professor at the University

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Speaker 1: of Texas Law School. Steve we hear the terms textualism

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Speaker 1: originalism being thrown around as a way to explain these

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Speaker 1: conservative majority opinions. Tell us what the difference is and

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Speaker 1: what methodology is being used. Well, at first, I think

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Speaker 1: that's not what we mean by originalism, since the Court

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Speaker 1: itself has applied a couple of different than the Spernament

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Speaker 1: called it originalism. You know, I think it's clear that originalism, textualism,

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Speaker 1: or not the same thing that when the Court says

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Speaker 1: the issue in, for example, the abortion case is not

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Speaker 1: simply the fact that the Constitution's text is silent about abortion,

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Speaker 1: but rather the absence of what the majority calls a

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Speaker 1: deeply rooted historical tradition for a right to proviability abortions.

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Speaker 1: You know, that suggested to know what we're real of

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Speaker 1: doing this history and dato the gun case, where Justice

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Speaker 1: Thomas said, gun regulations are going to be sort of

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Speaker 1: scrutinized carefully and the course is going to be skeptical

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Speaker 1: of them unless there's some historical practice for those kinds

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Speaker 1: of traditions. And I think it's worth stressing that's not

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Speaker 1: necessarily originalism. To say that we were doing something in

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Speaker 1: the eighteen fouris in eighteen fifties, is not a claim

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Speaker 1: about the founders. And yet this seems to be where

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Speaker 1: the Court is, where it's our history that's going to

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Speaker 1: define our constitutional analysis. Never mind, as the Distensers and

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Speaker 1: Dobbs point out quite powerfully, that that history and tradition

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Speaker 1: was formed at a time when only really white men

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Speaker 1: were part of forming it. So I think part of

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Speaker 1: what is though to me exasperating, and I think to

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Speaker 1: any lawyer, discombody lating about the major decisions from the

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Speaker 1: end of the term is that there was no one dominant,

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Speaker 1: consistent methodological approach in these cases. It was all just

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Speaker 1: sort of loose appeals to fairly superficial historical analyzes in

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Speaker 1: a context in which those histories are themselves can tested,

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Speaker 1: and a context in which is not clear why those

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Speaker 1: histories ought to be dispositive. In the E p A

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Speaker 1: case in Descent, Justice Elana Kagan pointed out that this

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Speaker 1: was the first time that the major Questions doctrine magically appeared,

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Speaker 1: and she called it a get out of text free card. Yeah,

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Speaker 1: it's pretty strected. So that's another bit example of, you know,

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Speaker 1: the sort of the court in a hurry problem. In

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Speaker 1: the Western verse A case, first of all, you have

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Speaker 1: a challenge to a regulation that is even on the book,

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Speaker 1: and yet the course going out of its way to

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Speaker 1: hand down a pretty significant separation of powers decision. The

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Speaker 1: other thing about Western University, I mean, yes, the court

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Speaker 1: seems not remotely interested in why it's so hard to

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Speaker 1: stab them that Congress, in a statute called the Clean

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Speaker 1: Air Act, would have given the E p A the

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Speaker 1: power to regulate greenhouse gas emission. But the larger issue,

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Speaker 1: June is what is the major question? Right? I mean,

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Speaker 1: there's very little in Chief Justice Robert's opinion that gives

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Speaker 1: an objective, easily applied definition for what is the major question?

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Speaker 1: What isn't and what that means that it's open season

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Speaker 1: on any regulation that has a significant impact, you know,

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Speaker 1: sims when the SEC hands out broadcast licenses, or when

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Speaker 1: the SEC hands out new you know, investor guidance, or

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Speaker 1: when the centers for Medicare and Medicaid services that new

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Speaker 1: reimbursement rates for pharmaceuticals that apply to every single state.

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Speaker 1: You know, are those major questions at the end of

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Speaker 1: the day, that's going to be answered, not by Congress

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Speaker 1: and not by US. It's gonna be answered by district judges.

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Speaker 1: And I think the litigation is all going to provoke

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Speaker 1: is going to be a jobs program for lawyers, But

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Speaker 1: the result is not going to be as the Court

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Speaker 1: I think wants us to believe, you know, more democratic

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Speaker 1: accountability for the executive branch. It's going to be more

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Speaker 1: judicial power and less regulation. And I think that's part

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Speaker 1: of why these decisions are so problematic. That's my next question.

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Speaker 1: In many of these cases, the Court would say, well,

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Speaker 1: this is up to Congress, or Congress has to say

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Speaker 1: this more exactly, knowing that Congress has gridlocked and is

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Speaker 1: not going to address this. Is the Court now more

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Speaker 1: powerful than the other branches? More powerful than it should be?

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Speaker 1: So the first I don't know how anyone could set

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Speaker 1: the answer is no. You know, the Supreme Court today

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Speaker 1: has power the life of which I don't think that's

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Speaker 1: how at any point in history, and someone that's because

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Speaker 1: of power that the Court has claimed for itself. But

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Speaker 1: we ought to be Franks some and that's because we

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Speaker 1: are in a period of political deadlock in Washington. Is

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Speaker 1: it more powerful than it should be? I mean again,

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Speaker 1: I think it's worth stress him that. In the feneralist right,

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Speaker 1: Madison's argument for why the people of New York who

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Speaker 1: ratify the Constitution with the power separated the way they

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Speaker 1: were was that ambition ought to be made to counteract ambition.

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Speaker 1: The branches should be made to check each other. And

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Speaker 1: I think what we're seeing is a Supreme Court that's

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Speaker 1: not worried about being checked by anybody. And that's easy

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Speaker 1: for folks who like what the current Supreme Court is

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Speaker 1: doing to not be all that troubled by. But in

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Speaker 1: the long term, I don't know how it's healthy for

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Speaker 1: our system when the Court is basically claiming the power

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Speaker 1: for itself, not just to decide where rights are it's

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Speaker 1: always been its power, but to decide what Congress must

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Speaker 1: have meant in statutes that wrote a long time ago,

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Speaker 1: and how Congress couldn't possibly have meant to delegate asword

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Speaker 1: of the agencies that clearly meant to delegate. And you know,

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Speaker 1: there's an argument that the Court makes all the time

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Speaker 1: and in this context is simply being pro democracy. And

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Speaker 1: I think the more we step back and look at

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Speaker 1: the Court's work in the aggregate, the more we look

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Speaker 1: at this term in the advocate, it's not pros pro

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Speaker 1: judicial power. And for those who like the current court,

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Speaker 1: that's going to be a good fing. For those who

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Speaker 1: don't is going to be a bad thing. But the

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Speaker 1: long term of this country in history, I don't know

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Speaker 1: how we're all better off being run by five or

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Speaker 1: six on elected justices versus you know, fivety six elected politicians.

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Speaker 1: You mentioned this before. The justices don't even seem to

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Speaker 1: be trying to present a united front anymore. Only of

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Speaker 1: cases were unanimous. That's the lowest rate since Scotus Blog

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Speaker 1: began compiling statistics two decades ago. You know, usually at

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Speaker 1: the end of the term, we say, well, it wasn't

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Speaker 1: as divisive as we thought, But now we look at

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Speaker 1: these numbers and it was. Listen, I think there's a

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Speaker 1: reason why conservatives are celebrating the tournament progressives or to trying.

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Speaker 1: I mean, this was as dominant a term for one

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Speaker 1: side of the political aisle in American politics as we've seen, really, frankly,

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Speaker 1: in as long as I can remember. And I don't

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Speaker 1: think that by itself as an indictment of the Court.

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Speaker 1: I mean, I think the problem is it's about the

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Speaker 1: cases the justices are taking. It's about the lens they're

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Speaker 1: going to decide these issues. It's about the inconsistent rationales

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Speaker 1: they're relying upon. It's about the tubrisk inflecting some of

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Speaker 1: the decisions. And frankly, it's about the complete lack of

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Speaker 1: effort to suggest that the other size positions are reasonable

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Speaker 1: or worth taking seriously. And in that regard, I think

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Speaker 1: the best them it can be said about the Supreme

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Speaker 1: Court term is that the Supreme Court is doing its

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Speaker 1: best to look like the country. We ought to expect

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Speaker 1: more from the Court, and it ought to be above that.

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Speaker 1: We've heard about friction on the court and we see

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Speaker 1: some of the sense. Is their friction among all the

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Speaker 1: justices or is the friction between the liberal justices and

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Speaker 1: the conservatives? Who knows? This is the kind of thing

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Speaker 1: where people like us, They're probably in the worst position

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Speaker 1: to speculate. I will just say, I mean, the opinions,

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Speaker 1: of course did not pull their punches in the Justice

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Speaker 1: fighting with each other, and that was not limited to

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Speaker 1: you know, conservatives versus for restless. I mean, there's a

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Speaker 1: pretty significant case about tribal sovereignty from the amage from

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Speaker 1: called Castroza, where Justice Gorse goes out of his way

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Speaker 1: in his defense to really mock in various places Justice

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Speaker 1: Kavana's majority opinions. So, you know, I think it's hard

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Speaker 1: to look at the written products of the Justice and

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Speaker 1: thinks that you know, everything that's hunky dory at one

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Speaker 1: first three. The most we can say is that this

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Speaker 1: is clearly not a court that hasnt getting along as

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Speaker 1: well as its predecessors. Whether that's actually getting in the

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Speaker 1: way of the court's ability to get its work done.

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Speaker 1: You know, I think the best entence we have for

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Speaker 1: that is what the Justice and Bells are staying in.

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Speaker 1: At least Justice Thomas in public remarks he made in May,

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Speaker 1: remarks that I thought were actually fairly ill advide, you know,

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Speaker 1: certainly seem to be suggesting that all is not well

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Speaker 1: in Camelot. And you know, I think that at the

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Speaker 1: end of the day, I I don't know that anyone's

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Speaker 1: gonna lose sleep over the fact that the justices aren't

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Speaker 1: necessarily getting along, except that it's yet another symptom of

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Speaker 1: how the polarization of the court is increasingly reflective of

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Speaker 1: the polarization of the country in a way that's really

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Speaker 1: unhealthy for both. Justice Katangi Brown Jackson was sworn in

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Speaker 1: last week. I was thinking, well, I wonder what's in

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Speaker 1: her mind, because she's joining a court where she basically

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Speaker 1: has no power at all, because the liberal justices don't

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Speaker 1: seem to have any power. It will be influte to

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Speaker 1: see what we see it here from Justice Jackson as

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Speaker 1: she you know, acclaimates to the new position. I mean,

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Speaker 1: I think obviously her confirmation her swearing in is not

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Speaker 1: going to move the center of gravity on the court.

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Speaker 1: But are there opportunities that a new justice has, you know,

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Speaker 1: to build friendships, to forge alliances, to add a voice

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Speaker 1: to the Court's deliberations and decision making that we haven't

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Speaker 1: seen before. And you know, I think there we'll just

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Speaker 1: have to see a lot to see, you know, how

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Speaker 1: she votes, allot to see what she writes, and we'll

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Speaker 1: have to see, you know what, where we are this

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Speaker 1: time next year. Thanks so much for those inside. Steve.

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Speaker 1: That's Professor Stephen Platic of the University of Texas Law School.

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Speaker 1: The Supreme Court has agreed to use a North Carolina

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Speaker 1: redistricting case to consider adopting a far reaching legal doctrine

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Speaker 1: that would shift more federal election power to the state

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Speaker 1: legislatures that are now disproportionately controlled by Republicans. Joining me

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Speaker 1: as elections law expert Richard Brafalt, a professor at Columbia

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Speaker 1: Law School, what's this North Carolina case about? This North

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Speaker 1: Carolina case grows out of a challenge to the state legislature.

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Speaker 1: Is redistricting of North Carolina's congressional delegation. State legislature is

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Speaker 1: overwhelmingly Republican. There was a Democratic governor that he can

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Speaker 1: be outvoted for his videtors can be overturned. The legislature

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Speaker 1: adopted a very pro Republican plan. North Carolina is a

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Speaker 1: pretty close state, but I think if produced something like

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Speaker 1: their team Republican a three Democratic districts. Here's where it

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Speaker 1: gets interesting. The North Carolina Supreme Court, interpreting the state's constitution,

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Speaker 1: concluded that that was an unconstitutional under the state constitution's

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Speaker 1: partisan gerry matter and that it violated not a particular

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Speaker 1: provision of North Carolina Constitution aimed at jerrymandering, but it's

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Speaker 1: general provision dealing with free and faerial elections. And so

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Speaker 1: they struck it down and ordered a new plan that

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Speaker 1: has been challenged by the Republican legislature. And indeed, the

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Speaker 1: Supreme Court just upheld the idea that the Republican legislators

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Speaker 1: could actually sue independently because the Democratic Attorney General is

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Speaker 1: not supporting this argument on the theory of what has

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Speaker 1: come to be known as the independent state legislature doctrine.

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Speaker 1: What does that mean? Well, the provision of the constitution

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Speaker 1: that deals with elections for Congress to Article one basically

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Speaker 1: says that the state legislatures shall determine the time, place,

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Speaker 1: and manner of elections for Congress. Congress can override that,

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Speaker 1: but in the first instance, it's the state legislature. The

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Speaker 1: word is legislature. Now, until fairly recently, no one thought

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Speaker 1: that meant a legislature in particular, as opposed to kind

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Speaker 1: of let's call it the state legislative process. But the

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Speaker 1: question has come up as to whether or not the

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Speaker 1: legislature in some sense is independent of its state constitution,

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Speaker 1: independent state Supreme court, so that when the state Supreme

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Speaker 1: Court interprets the state constitution to set aside what the

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Speaker 1: state legislature has done, that triggers an Article one question,

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Speaker 1: and maybe it's an Article one violation, And that's what's

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Speaker 1: picked up this idea of the independent state legislature doction,

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Speaker 1: that's not the legislature is actually independent of its own constitution,

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Speaker 1: independent of its own state Supreme Court. This doction has

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Speaker 1: been kicking around for about twenty years, and a number

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Speaker 1: of Supreme Court justices have indicated some support for it,

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Speaker 1: primarily in the context of presidential elections, because there's a

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Speaker 1: similar provision in Article too that deals with the selection

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Speaker 1: of presidential electors. So If the state courts don't have

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Speaker 1: the authority to look at these maps, who does Who

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Speaker 1: has the authority? Well, at this point, since the Supreme

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Speaker 1: Court has renounced a federal gerrymandarin claim, it's not clear

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Speaker 1: anybody really does. I mean, in theory with the U. S.

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Speaker 1: Supreme Court apply in the US Constitution could review state

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Speaker 1: legislative plans if they've had racial discrimination, for example, But

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Speaker 1: the U. S. Supreme Court has said they're not going

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Speaker 1: to look at plans for partisan gerry mannering. When they

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Speaker 1: said that in the rout A case a couple of

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Speaker 1: years ago, they pointed to the role of the states

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Speaker 1: in becoming more active in policing partisan gerry mannering. But

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Speaker 1: this could undo that, depending on exactly what the Court does,

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Speaker 1: how far it reads the US Constitution as a constraint

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Speaker 1: on the ability of state courts to review and undo

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Speaker 1: the decisions of state legislatures. So, as you mentioned, the

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Speaker 1: Republicans have been pushing this theory for decades. Is this

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Speaker 1: the theory they advanced in the dissent in Bush Fee Gore? Right?

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Speaker 1: It was a theory embraced by three of the justices

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Speaker 1: in Bush Fee Gore, led by Chief Justice ran Quist.

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Speaker 1: It was not embraced by the majority. It was also

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Speaker 1: a theory that has been alluded to uh in various

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Speaker 1: concurring and dissenting opinions by I think at least three

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Speaker 1: justices of the Court during a lot of the fighting

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Speaker 1: over presidential election, in which a number of them Aldo, Thomas,

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Speaker 1: maybe even for Gorsus Kavanaugh indicated some sympathy, and Aldo

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Speaker 1: in fact said that that even if presidential election was over,

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Speaker 1: there was a case they came out of Pennsylvania challenging

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Speaker 1: these Pennsylvania Supreme Court's decision interpreting Pennsylvania law to give

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Speaker 1: more time for absentee ballots to be counted. In the end,

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Speaker 1: it didn't make any difference, and the Court dismissed the case.

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Speaker 1: But just as Elder said, they should have taken the

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Speaker 1: case in order to resolve this question of the independence

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Speaker 1: the legislature doctrine. It could be significant both for congressional

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Speaker 1: redistricting and potentially for presidential elections. Did it look like

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Speaker 1: they have four votes already? They said, we had the

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Speaker 1: four boats to take certain The question is will they

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Speaker 1: have five? And even when they agree that there's some review,

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Speaker 1: this is not completely clear how much they would read

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Speaker 1: state courts out of this. It's it's very unclear what

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Speaker 1: this doctrine will do. I mean, it's hard to believe

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Speaker 1: that state legislatures exist outside their constitution, but that's sort

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Speaker 1: of part of the argument. Some have argued that it

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Speaker 1: might make a difference if the state constitution has a

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Speaker 1: very clear provision that deals with partisan gerrymandering, as opposed

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Speaker 1: to situations where state supreme courts are alging on very

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Speaker 1: very general provisions about the right to vote. But we

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Speaker 1: just don't know what the Supreme Court will do if

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Speaker 1: this court concludes that state legislatures are either unbound by

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Speaker 1: their state constitutions or unbound by state supreme court interpretations,

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Speaker 1: Whether somehow the U. S. Supreme Court could review state

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Speaker 1: Supreme court interpretations of state constitutions or something they have

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Speaker 1: either never are hardly ever done in modern times. It

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Speaker 1: seems like adopting this independent state legislature doctrine would upbend

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Speaker 1: elections across the count trade. It would certainly do that

432
00:23:01,840 --> 00:23:06,040
Speaker 1: in situations where state courts have made some decisions, but

433
00:23:06,200 --> 00:23:09,520
Speaker 1: especially really interpreting state laws, let alone striking down I mean,

434
00:23:09,520 --> 00:23:13,280
Speaker 1: it would apply also, not just to these gerrymandering decisions.

435
00:23:13,320 --> 00:23:16,040
Speaker 1: But he could conceivably apply to like a state Supreme

436
00:23:16,080 --> 00:23:20,040
Speaker 1: court interpreting the state's mail in ballot law in a

437
00:23:20,160 --> 00:23:24,440
Speaker 1: generous way, which says some members they legature a post.

438
00:23:24,720 --> 00:23:27,600
Speaker 1: It could also lead to the really odd result that

439
00:23:27,640 --> 00:23:31,680
Speaker 1: you would have different laws applying to different elections held

440
00:23:31,760 --> 00:23:33,919
Speaker 1: at the same time. I mean, there would be no

441
00:23:34,000 --> 00:23:37,040
Speaker 1: basis for using this doction for striking down the state

442
00:23:37,080 --> 00:23:41,000
Speaker 1: supreme courts interpretation or an application of the state mail

443
00:23:41,040 --> 00:23:44,119
Speaker 1: in ballot law or some other locate election law applied

444
00:23:44,160 --> 00:23:47,560
Speaker 1: to state elections. So you could conceivably have two different

445
00:23:47,640 --> 00:23:51,600
Speaker 1: rules applying to say, voter registration or mail in ballot,

446
00:23:52,040 --> 00:23:54,919
Speaker 1: one applying to federal elections, one applying to state elections.

447
00:23:55,040 --> 00:23:57,440
Speaker 1: When both elections are held at the same time. It

448
00:23:57,480 --> 00:24:00,199
Speaker 1: could be quite chaotic. I mean, this could apply to

449
00:24:00,280 --> 00:24:04,399
Speaker 1: all kinds of voting measures. Then absentee voting voter I D.

450
00:24:04,760 --> 00:24:10,639
Speaker 1: Curbside could apply to anything involving the election of Congress

451
00:24:10,800 --> 00:24:15,120
Speaker 1: and the Electoral College. Do you read the article as

452
00:24:15,840 --> 00:24:19,320
Speaker 1: you know, allowing this. I read it saying the state

453
00:24:19,400 --> 00:24:23,440
Speaker 1: legislature is part of the state government and it's a

454
00:24:23,480 --> 00:24:26,880
Speaker 1: creature of the state constitution, the state constitution gets interpreted

455
00:24:26,920 --> 00:24:30,400
Speaker 1: by the state Supreme Court, so that the state legislature

456
00:24:31,119 --> 00:24:34,080
Speaker 1: is not a free standing entity, not part of a

457
00:24:34,200 --> 00:24:37,879
Speaker 1: voter state government. There's some support for my position only

458
00:24:37,920 --> 00:24:41,440
Speaker 1: in that the Supreme Court, in earlier cases that are

459
00:24:41,480 --> 00:24:45,320
Speaker 1: not literally on point, has agreed that state legislature also

460
00:24:45,359 --> 00:24:47,879
Speaker 1: includes the governor because it's the way in which states

461
00:24:47,960 --> 00:24:51,680
Speaker 1: make laws, and in every state you need the governor's

462
00:24:51,680 --> 00:24:54,439
Speaker 1: approval unless unless the vito is overturned by two thirds.

463
00:24:54,880 --> 00:24:56,920
Speaker 1: So I don't think anyone you can argue that the

464
00:24:56,960 --> 00:25:00,960
Speaker 1: state legislature all by itself once he starts saying that

465
00:25:01,000 --> 00:25:04,560
Speaker 1: the state legislature is part of a broader legislative process

466
00:25:04,640 --> 00:25:07,040
Speaker 1: that includes the governor, and it's hard to say why

467
00:25:07,080 --> 00:25:09,240
Speaker 1: it isn't part of a process that's constrained by the

468
00:25:09,240 --> 00:25:12,879
Speaker 1: state constitution. And why if the state Constitution is normally

469
00:25:12,960 --> 00:25:16,160
Speaker 1: interpreted by the state Supreme Court, why that shouldn't happen

470
00:25:16,160 --> 00:25:19,240
Speaker 1: in the setting too, And what does would do because

471
00:25:19,280 --> 00:25:23,840
Speaker 1: Republicans control what is it thirty out of fifty two

472
00:25:23,920 --> 00:25:27,720
Speaker 1: state legislatures. Yeah, I don't have the number, but it's

473
00:25:27,720 --> 00:25:31,600
Speaker 1: not an inherently pro Republican doctrine, but just right now,

474
00:25:32,160 --> 00:25:34,800
Speaker 1: especially if you look at so many of the so

475
00:25:34,880 --> 00:25:40,800
Speaker 1: called battleground states like Georgia and Arizona, Pennsylvania, Ohio, Michigan,

476
00:25:41,280 --> 00:25:46,080
Speaker 1: Wisconsin all have Republican legislatures North Carolina, even though many

477
00:25:46,119 --> 00:25:48,800
Speaker 1: of them have democratic governors, but often as a result

478
00:25:48,840 --> 00:25:53,080
Speaker 1: of state legislative gerrymandering, the state legislative majority is so

479
00:25:53,200 --> 00:25:57,040
Speaker 1: lopsided that the democratic governor can be overruled. Now some

480
00:25:57,160 --> 00:26:00,760
Speaker 1: of the most republican governors, but you know, really it

481
00:26:00,880 --> 00:26:04,960
Speaker 1: could matter a lot in places like North Carolina and

482
00:26:05,160 --> 00:26:08,800
Speaker 1: Ohio and Pennsylvania, UM and also some of these states

483
00:26:08,800 --> 00:26:11,479
Speaker 1: have Republican court but in what you get in places

484
00:26:11,480 --> 00:26:14,760
Speaker 1: like North Carolina and Pennsylvania, the majority of the current

485
00:26:14,800 --> 00:26:18,280
Speaker 1: justices of the states screen courter Democrats. Majority the legislature

486
00:26:18,320 --> 00:26:25,120
Speaker 1: is a strongly Republican. Republican state legislatures in some states

487
00:26:25,119 --> 00:26:29,080
Speaker 1: have been trying to take authority over the administration of

488
00:26:29,200 --> 00:26:35,280
Speaker 1: elections from the nonpartisan election officials, the secretaries of state.

489
00:26:35,760 --> 00:26:37,680
Speaker 1: Does this fit in with that? Is this one more

490
00:26:37,760 --> 00:26:40,679
Speaker 1: move that way? In a way, it is. In some

491
00:26:40,760 --> 00:26:45,040
Speaker 1: way it's a more i'd say constitutional movers. The others

492
00:26:45,080 --> 00:26:48,680
Speaker 1: are more raw politics in the sense that they're literally

493
00:26:48,720 --> 00:26:52,120
Speaker 1: taking power from one institution giving it to another because

494
00:26:52,320 --> 00:26:55,240
Speaker 1: one of them is democratic and once republican, or one's

495
00:26:55,280 --> 00:26:58,399
Speaker 1: month artisan and one would be republican. Um. So in

496
00:26:58,520 --> 00:27:01,840
Speaker 1: some sense that's even roar, but it's of a piece

497
00:27:01,880 --> 00:27:06,280
Speaker 1: of trying to control the rules that determine elections as

498
00:27:06,280 --> 00:27:09,600
Speaker 1: a way of winning elections, not just persuading the public,

499
00:27:10,080 --> 00:27:14,480
Speaker 1: but you know, running the rules. A similar provision governs

500
00:27:14,520 --> 00:27:18,680
Speaker 1: the appointment of presidential electors. So could this also open

501
00:27:18,760 --> 00:27:22,520
Speaker 1: the door if it's accepted to state legislatures sending their

502
00:27:22,520 --> 00:27:26,399
Speaker 1: own slates of electors. It could? I mean again, I

503
00:27:26,440 --> 00:27:29,080
Speaker 1: think people see it more in the context of the

504
00:27:29,200 --> 00:27:32,840
Speaker 1: laws governing presidential elections, and there's lots of questions about

505
00:27:32,880 --> 00:27:35,840
Speaker 1: what the state legislatures could do about the electors, particularly

506
00:27:35,880 --> 00:27:38,040
Speaker 1: if they're making it, if they were to make a

507
00:27:38,040 --> 00:27:42,879
Speaker 1: decision after election day. But it certainly affects how state

508
00:27:42,960 --> 00:27:46,720
Speaker 1: legislatures can write the rules that govern the election of

509
00:27:46,760 --> 00:27:50,280
Speaker 1: presidential electors. If anything, it's stronger because the one for

510
00:27:50,440 --> 00:27:55,159
Speaker 1: Congress for the House and Senate constitution allows Congress to

511
00:27:55,240 --> 00:27:59,000
Speaker 1: override that, although our current Congress is unlikely to do that,

512
00:27:59,520 --> 00:28:02,880
Speaker 1: but actually Article two doesn't even have that that escape patch.

513
00:28:03,480 --> 00:28:10,120
Speaker 1: What about independent redistricting commissions with this theory also cause

514
00:28:10,240 --> 00:28:14,320
Speaker 1: problems there? I mean, that's a challenge. In the Supreme

515
00:28:14,320 --> 00:28:18,840
Speaker 1: Court upheld an independent redistricting commission against the challenge they

516
00:28:18,840 --> 00:28:22,680
Speaker 1: had violated Article ones uh commitment of time, place, and

517
00:28:22,720 --> 00:28:25,280
Speaker 1: manner of elections to the legislature. But it was a

518
00:28:25,320 --> 00:28:29,640
Speaker 1: five four decision, and Justice Kinsburg grew with the majority

519
00:28:29,680 --> 00:28:33,320
Speaker 1: opinion is now gone, so the five are no longer

520
00:28:33,359 --> 00:28:38,080
Speaker 1: there uh and Chief Justice Roberts dissented in that case. Now, Roberts,

521
00:28:38,160 --> 00:28:41,760
Speaker 1: when he wrote the Supreme Court's opinion in Rouco saying

522
00:28:41,760 --> 00:28:45,400
Speaker 1: that that there's no federal constitutional claim on jerrymandering, actually

523
00:28:45,440 --> 00:28:49,680
Speaker 1: cited that independent redistricting cases as support for the idea

524
00:28:50,120 --> 00:28:54,440
Speaker 1: that state that states might have alternative ways of delutory mandering.

525
00:28:54,600 --> 00:28:57,600
Speaker 1: So he's kind of in a funny position. Again, it

526
00:28:57,680 --> 00:29:01,040
Speaker 1: might depend on exactly what the independent commission do, if

527
00:29:01,080 --> 00:29:05,120
Speaker 1: they're totally independent and entirely cut the legislature out of

528
00:29:05,120 --> 00:29:09,240
Speaker 1: the process, or if they create recommendations that's a legislate

529
00:29:09,280 --> 00:29:13,200
Speaker 1: tries to consider. Um. Much would depend on exactly the

530
00:29:13,240 --> 00:29:17,920
Speaker 1: connection between them and those and the state legislature. But yeah,

531
00:29:17,960 --> 00:29:20,720
Speaker 1: it's quite possible that this would be a basis for

532
00:29:20,840 --> 00:29:24,840
Speaker 1: holding that it would be unconstitutional, even if a state

533
00:29:24,880 --> 00:29:28,560
Speaker 1: that des by state constitutional amendment, that would be unconstitutional

534
00:29:28,640 --> 00:29:32,560
Speaker 1: for the state to delegate redistricting of congressional seat to

535
00:29:32,640 --> 00:29:36,040
Speaker 1: an independary district commission. That's the real challenge. It's the

536
00:29:36,120 --> 00:29:40,040
Speaker 1: idea that that somehow the state legislature is supreme over

537
00:29:40,080 --> 00:29:43,240
Speaker 1: its own state constitution. That's what's so perplexing about this,

538
00:29:43,240 --> 00:29:47,360
Speaker 1: this doctrine. And we've seen this term of this past term,

539
00:29:47,520 --> 00:29:51,640
Speaker 1: the Supreme Court change course and on doctrine in the

540
00:29:51,680 --> 00:29:55,280
Speaker 1: E p A case, in the Religion in Schools case.

541
00:29:55,840 --> 00:29:58,440
Speaker 1: So I mean, it seems like a court that's willing

542
00:29:58,560 --> 00:30:04,640
Speaker 1: to adopt you doctrine. It's certainly his. Thanks rich that's

543
00:30:04,640 --> 00:30:08,360
Speaker 1: Professor Richard Braffault of Columbia Law School. And that's it

544
00:30:08,440 --> 00:30:11,000
Speaker 1: for this edition of the Bloomberg Law Show. Remember you

545
00:30:11,040 --> 00:30:13,520
Speaker 1: can always get the latest legal news on our Bloomberg

546
00:30:13,600 --> 00:30:17,120
Speaker 1: Law Podcast. You can find them on Apple Podcasts, Spotify,

547
00:30:17,400 --> 00:30:22,400
Speaker 1: and at www dot Bloomberg dot com, Slash podcast Slash Law,

548
00:30:22,840 --> 00:30:25,440
Speaker 1: and remember to tune into the Bloomberg Law show every

549
00:30:25,480 --> 00:30:28,880
Speaker 1: week night at ten pm Wall Street Time. I'm June

550
00:30:28,920 --> 00:30:31,120
Speaker 1: Grosso and you're listening to Bloomberg