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Speaker 1: This is Bloomberg Law. Some complicated international law issues here.

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Speaker 1: What kind of docket is Chief Justice Roberts facing interviews

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Speaker 1: with prominent attorneys and Bloomberg legal experts. Joining me is

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Speaker 1: Bloomberg New Supreme Court reporter Greg Store, Neil Devon's a

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Speaker 1: professor at William and Mary Law School, and analysis of

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Speaker 1: important legal issues cases and headlock. Is this essentially the

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Speaker 1: fifth Circuit haunting? He has presided over a so called

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Speaker 1: hot bench at the Supreme Court. Bloomberg Law with June

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Speaker 1: Grosso from Bloomberg Radio. This is Bloomberg Law. I'm Nathan Hagar,

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Speaker 1: sitting in for June Grosso this week. Today, we're devoting

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Speaker 1: the entire hour to the upcoming Supreme Court term as

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Speaker 1: the justices take up some of the hottest button issues

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Speaker 1: in American politics and policy, from abortion and Second Amendment

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Speaker 1: rights to affirmative action and national security. We'll look at

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Speaker 1: what's on the docket with Bloomberg Government Supreme Court reporter

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Speaker 1: Kimberly Strawberry Robinson, and we'll check in with our political

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Speaker 1: contributors Genie Schanzano and Rick Davis. But first, this latest

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Speaker 1: term for the High Court comes at a time when

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Speaker 1: public confidence appears to be flagging in the highest court

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Speaker 1: in the land, and concerns are building that the justices

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Speaker 1: maybe two driven by politics. So let's talk about that.

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Speaker 1: We're joined now by Bloomberg News Supreme Court reporter Greg's store. Greg.

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Speaker 1: It's good to have you with us, and I know

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Speaker 1: you've been taking a look at some of the latest

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Speaker 1: polling surrounding the High Court. It seems as though approval

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Speaker 1: is dropping pretty significantly, even over this past summer. What's

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Speaker 1: driving that? Yeah, so there's been several polls out there

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Speaker 1: show declining approval. Marquette Law School poll that came out

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Speaker 1: a few days ago showed that public approval went down

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Speaker 1: from July to just now and that drop was almost

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Speaker 1: entirely attributable to uh Democrats view of the court. Democrats

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Speaker 1: have seen some things that the Court has done over

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Speaker 1: the summer, most notably the action letting that Texas abortion

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Speaker 1: law take effect, and apparently that's having an effect, and

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Speaker 1: Democrats are very worried about what the Court is likely

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Speaker 1: to do going forward. There was some previous drop before

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Speaker 1: among Republicans on the court, but now it's both sides.

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Speaker 1: So are we seeing You've mentioned that the Democrats are

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Speaker 1: losing confidence in the court. Are we seeing uh converse

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Speaker 1: jump in support for the Court from Republicans? No, not

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Speaker 1: at all. There was a small bump in this Marquette poll,

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Speaker 1: a small bump up. What actually happened was that, uh

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Speaker 1: in an earlier round, the court dropped uh significantly basically

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Speaker 1: over the course of the last Supreme Court term up

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Speaker 1: until July of this year. And that's even though the

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Speaker 1: Court had become more conservative because Amy Coney Barrett had

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Speaker 1: joined the Court, taking the place of Ruth Bader Ginsburg.

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Speaker 1: A little harder to say exactly why that is. Charles Franklin,

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Speaker 1: who's the director of the Marquette Pole, talked about, Uh,

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Speaker 1: you know, maybe it's the Republicans and that once since

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Speaker 1: they've lost the presidency, we're kind of, you know, losing Uh.

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Speaker 1: All institutions were sort of falling from favor among Republicans,

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Speaker 1: and the Supreme Court is part of that. Um. It

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Speaker 1: may also be that that some Republicans wanted the Court

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Speaker 1: to move more strongly in a conservative direction, and it

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Speaker 1: already has. For example, the Court did not intervene to

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Speaker 1: help Donald Trump out in in his bid to overturn

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Speaker 1: the election results. And it maybe we don't know for sure.

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Speaker 1: It may be that that was one of the things

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Speaker 1: that disappointed Republicans and caused a drop in the approval rating.

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Speaker 1: You know, in recent days, we've heard publicly from Justice

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Speaker 1: Barrett as well as Justices Clarence Thomas on one side

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Speaker 1: of the spectrum and Stephen Bryer on the other, sounding

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Speaker 1: as though they really want to take pains to assure

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Speaker 1: people that the High Court isn't driven by politics. How

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Speaker 1: mindful are the justices themselves of the idea that their

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Speaker 1: decisions may be viewed through political lens. It sure seems

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Speaker 1: like they're very mindful now, at least in the case

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Speaker 1: of Justice Brier, this is something he's been talking about

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Speaker 1: for years and years. Obviously, Justice Barrett is a new justice.

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Speaker 1: Hers was was somewhat ironic her her her statement that

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Speaker 1: the Court is uh is not a partisan institution. She

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Speaker 1: did that at an event in Kentucky with Mitch McConnell,

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Speaker 1: the Senate minority leader who made sure she got confirmed,

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Speaker 1: right alongside her. In fact, he introduced her. Uh. So

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Speaker 1: kind of an odd setting to be claiming that the

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Speaker 1: Court is not a partisan institution. Unquestionably, all the justices

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Speaker 1: see what's happening in terms of public approval, and and uh,

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Speaker 1: you know, there's also the polls also show that the

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Speaker 1: court is increasing me seeing the Court as being more

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Speaker 1: partisan and political, and the justices see that. Uh, you know,

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Speaker 1: they say over and over that's not how we do

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Speaker 1: our jobs. And they are trying to push back as

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Speaker 1: best they can, or at least to some degree, they're

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Speaker 1: trying to push back against that perception. Of course, it's

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Speaker 1: been difficult to separate politics from the Supreme Court for

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Speaker 1: quite some time. Where would you say the level of

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Speaker 1: at least public perception of politicization of the court is

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Speaker 1: compared to past high courts? It is growing. Um, the

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Speaker 1: Marquette poll only goes back a couple of years, but

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Speaker 1: it's at the highest level than it has been now.

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Speaker 1: It's still less than half. The question is, uh, does

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Speaker 1: the court the side cases on politics are on the

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Speaker 1: law and but said mainly on politics. Uh, so that's

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Speaker 1: under but still pretty high for the court. Um, you know,

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Speaker 1: the Court has had other periods where people thought of

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Speaker 1: it as being being very politic Coal Bush by Gore

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Speaker 1: is an obvious example. Here, it's more of a series

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Speaker 1: of things, A lot of which are are kind of

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Speaker 1: outside the Court's control. It is the manner in which

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Speaker 1: justices had been had been nominated to the Court, the

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Speaker 1: whole uh Mayor Garland, Republican refusal to allow a vote there,

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Speaker 1: the death of Justice Ginsburg, the push h to get

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Speaker 1: a Republican, push to get Amy Coney Barrett on the court.

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Speaker 1: Those have contributed to the perception of the Court as

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Speaker 1: being partisan. Um and and then of course you know

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Speaker 1: a number of Supreme Court cases along the way involving

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Speaker 1: election law and voting and dealing with very, very political issues.

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Speaker 1: Bloomberg New Supreme Court reporter Greg Store. Greg stay with us.

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Speaker 1: Coming up next, We're gonna be talking about maybe the

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Speaker 1: most one of the most politically freighted cases coming up

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Speaker 1: on this Supreme Court term. That would be the abortion

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Speaker 1: challenge out of Mississippi. You're listening to Bloomberg Law. I'm

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Speaker 1: Nathan Haygart sitting in for June Grosso. This week. It's

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Speaker 1: thirteen minutes past the hour, and this is Sploomberg. This

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

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Speaker 1: is Bloomberg Law. I'm Nathan Hagar, June Grosso is away

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Speaker 1: this week. We're looking ahead to the start of the

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Speaker 1: Supreme Court term coming up in just a little more

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Speaker 1: than a week, and Bloomberg News Supreme Court reporter Greg's

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Speaker 1: store is back with me now, and Greg, it's probably

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Speaker 1: safe to say the case that probably is most highly anticipated,

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Speaker 1: at least politically and maybe in every other way, is

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Speaker 1: this challenge to abortion rights out of Mississippi. Is it

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Speaker 1: safe to call this the most direct challenge to Roe v.

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Speaker 1: Wade that we've seen come before this High Court. Yeah,

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Speaker 1: certainly in a generation, certainly since Planned parent had versus

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Speaker 1: Casey decision, which was the one that really reaffirmed row

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Speaker 1: and set out that that standard of a viability that

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Speaker 1: that said that up until the point where a fetus

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Speaker 1: is capable of living outside outside the woman, it's UH

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Speaker 1: states a very little authority to UH to limit the

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Speaker 1: ability of people to to get an abortion. And I

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Speaker 1: understand that when this case does come before the High

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Speaker 1: Court on December one, it's going to be the only

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Speaker 1: set of arguments that they're going to be hearing that day,

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Speaker 1: So it could leave a little more wiggle room for

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Speaker 1: the justices to hear arguments longer than it normally would

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Speaker 1: in the time allotted. How could that potentially play into

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Speaker 1: what we hear from both sides when this case comes up.

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Speaker 1: Probably will mean we will hear an awful lot of

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Speaker 1: questions that may not get a clear picture of of

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Speaker 1: where the court is going to go. The Court is

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Speaker 1: also adopting a new hybrid argument format this term. So

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Speaker 1: if you recall the last term term and a quarter

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Speaker 1: or so, when they were hearing telephone arguments, the justices

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Speaker 1: started asking questions. Uh, they took turns one by one

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Speaker 1: in seniority order instead of kind of the free for

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Speaker 1: all that that has been the traditional format for Supreme

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Speaker 1: Court arguments. Uh. And what they're going to do this

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Speaker 1: term is first they're going to have a free for all,

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Speaker 1: and then at the end of each lawyer's argument, they're

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Speaker 1: going to have time for each justice to go one

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Speaker 1: by one. And that may lend itself, at least that

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Speaker 1: last part may lend itself to justices making sure they

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Speaker 1: ask questions of both sides and perhaps not leaving us

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Speaker 1: with as clear picture of exactly what's going to happen.

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Speaker 1: It's hard to say, because it's going to be a

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Speaker 1: brand new format and obviously, uh, just a huge case.

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Speaker 1: Does this mean we're actually going to hear from Justice

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Speaker 1: Clarence Thomas, who's historically been silent during most arguments before

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Speaker 1: the Supreme Court, although last year during the pandemic when

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Speaker 1: it was just audio, I think we probably did hear

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Speaker 1: him speak a little bit more than once. Yeah, we

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Speaker 1: did hear him a pretty regularly last term because of

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Speaker 1: that justice by justice format. So the way it would

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Speaker 1: work would be the Chief Justice would would start first,

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Speaker 1: and he would ask his questions, and then the next

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Speaker 1: most senior justice, who was Justice Thomas, would have a turn.

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Speaker 1: And typically Justice Thomas did have questions for for both

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Speaker 1: sides um Now with this hybrid format, it's hard to say.

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Speaker 1: It may be that Justice Thomas waits until the end

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Speaker 1: of the session when it's waits till it's his turn

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Speaker 1: and then ask some questions. He's given different, uh explanations

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Speaker 1: for why he doesn't jump in, but part of it

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Speaker 1: is he's clearly less comfortable than some of his colleagues

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Speaker 1: with that free for all nature, where you're having to

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Speaker 1: jump in and interrupt and the lawyer doesn't get a

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Speaker 1: chance to to finish his or her argument. So we'll

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Speaker 1: just have to say and These will be the first

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Speaker 1: direct arguments on abortion rights for the newest Supreme Court

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Speaker 1: Justice Amy Coney Barrett, who of course has been pretty

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Speaker 1: outspoken in her views on abortion rights before joining the

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Speaker 1: High Court. Is she gonna be the one you're gonna

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Speaker 1: be watching most closely? Here? Do you think? She? And

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Speaker 1: probably Justice Kavanaugh? Uh? And and Chief Justice Roberts as well.

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Speaker 1: Those three are the ones whose whose votes seem like

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Speaker 1: they might have the most flexibility to them. Uh. Justice

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Speaker 1: as Barrett and Kavanaugh so far have seemed less willing

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Speaker 1: to have been less willing than they're more some of

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Speaker 1: their conservative colleagues to overturn precedents and issue sweeping rulings.

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Speaker 1: They have tended to be a little more case by case.

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Speaker 1: We'll see what happens in the abortion context. Um, but

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Speaker 1: she will certainly be somebody who I will be watching

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Speaker 1: very closely. Yes. And of course this case is going

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Speaker 1: to be coming on the heels of the Supreme Court

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Speaker 1: allowing the Texas law to go forward that bans most

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Speaker 1: abortions after six weeks. How could that decision play into

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Speaker 1: what we hear in the Mississippi case. Well, we have

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Speaker 1: a brand new dynamic the abortion rights groups and the

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Speaker 1: provide the clinics just filed a request for the Supreme

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Speaker 1: Court um asking them to hear a case about Texas

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Speaker 1: on the merits with the Supreme Court. They previously was

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Speaker 1: just an emergency application letting the law take effect. And

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Speaker 1: now the providers are are asking the Court to basically

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Speaker 1: bypass the federal heals Court level, which is something the

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Speaker 1: Court rarely does, and decide not so much of the

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Speaker 1: underlying abortion issue, but this whole question of Canadas. States

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Speaker 1: set up a law in a way that makes it

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Speaker 1: really really hard to challenge because there's no government official

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Speaker 1: who challenges the law. Remember the Texas law. It sets

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Speaker 1: up this private enforcement system where anybody can sue, but

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Speaker 1: the government, no government agency, has the ability to sue

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Speaker 1: over an abortion. And uh, that's sort of the thing

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Speaker 1: that has stymied abortion rights advocates. It's made it hard

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Speaker 1: for a court to know who can I enjoyin the

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Speaker 1: block enforcement of this law. And so the proprietors are

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Speaker 1: a system like that that makes it virtually impossible to

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Speaker 1: effects of previous decisions when it takes up a case

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Speaker 1: like the one in Mississippi. Some justices say absolutely, they

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Speaker 1: consider that. Justice like Stephen Bryer will say he absolutely

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Speaker 1: looks at the effects. That's part of the uh, that's

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Speaker 1: part of the role of the court to think about

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Speaker 1: those sorts of things. Other justices will say, no, our

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Speaker 1: job is to interpret the law um and let the

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Speaker 1: chips fall where they may. And so those effects are

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Speaker 1: things that you know, Congress and state legislatures and voters

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Speaker 1: on the law. That being said, they are all very

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Speaker 1: aware of what's happening. And even among those justices who

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Speaker 1: say that's not what we should consider it is, it

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Speaker 1: is certainly something that they are aware of when they

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Speaker 1: make their decision. The arguments are coming up on December

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Speaker 1: one in the Mississippi case. Of course, the Supreme Court

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Speaker 1: term runs until June. Greg, should we expect that this

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Speaker 1: is probably going to be one of the last decisions

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Speaker 1: that we hear from the Court this term. Yeah, I

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Speaker 1: would be surprised if this is a quick decision. Um,

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Speaker 1: you know, it's it's the last few years, in particular,

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Speaker 1: if they were to add that Texas case onto it

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Speaker 1: as well, because they would be no doubt working on

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Speaker 1: those opinions in tandem. All right, Well, we'll be checking

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Speaker 1: back with you often as this Supreme Court term plays out.

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Speaker 1: Bloomberg News Supreme Court reporter Greg's store and coming up

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Speaker 1: on this High Court edition of Bloomberg Law. We look

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Speaker 1: at the rest of the Supreme Court stock at this

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Speaker 1: term with Kimberly straw Bridge Robinson of Bloomberg Government. I'm

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Speaker 1: Nathan Hagar, sitting in for June Grosso this week. It's

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Speaker 1: twenty five minutes past the hour, and this is Bloomberg.

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

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Speaker 1: You're listening to Bloomberg Law. I'm Nathan Hagar in for

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Speaker 1: June Grosso. This week, we're looking ahead to the start

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Speaker 1: of a new Supreme Court term, and while abortion rights

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Speaker 1: maybe the hottest button issue the justices are taking up

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Speaker 1: in this next few months, it is far from the

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Speaker 1: only contentious case on the docket. And for a look

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Speaker 1: at what else is on the High Court slate. We're

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Speaker 1: very pleased to be joined by Bloomberg Government Supreme Court

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Speaker 1: reporter Kimberly Strabage Robinson. Kimberly, it's great to have you

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Speaker 1: with us. And of course it's not just abortion rights.

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Speaker 1: There's also a high profile Second Amendment matter coming up

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Speaker 1: this term. You know, this is gonna be a really

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Speaker 1: big term with abortion and Second Amendment rights. This case

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Speaker 1: comes out of New York and really challenges UH New

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Speaker 1: York schemes for providing concealed carry permit. Obviously New York

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Speaker 1: What kind of an impact could this case have. Well,

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Speaker 1: this is you know, really a question that's been left

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Speaker 1: a decade ago in a case called Heller, and this

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Speaker 1: will be a follow up on that. You know, this

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Speaker 1: case will affect kind of concealed carry schemes throughout the country.

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Speaker 1: They kind of very quite a bit, as you can imagine,

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Speaker 1: depending on you know, the politics and the state there.

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Speaker 1: But there are a number of states like New York

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Speaker 1: that have very strict concealed carry permits. And in these states,

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Speaker 1: the reason why we see officials say that they are

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Speaker 1: very strict with hating out these permits is because they

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Speaker 1: feel like it it's a matter of public safety. And so,

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Speaker 1: you know, how the Supreme Court comes out in this case,

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Speaker 1: a specific ruling it has could really, you know, not

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Speaker 1: just affect these these concealed carey schemes, but you could

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Speaker 1: affect gun rights more broadly. Yeah, it's interesting that you

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Speaker 1: cast this as sort of a follow up to the

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Speaker 1: Heller case, which, for people who might not recall it was,

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Speaker 1: as far as I understand it, the case that essentially

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Speaker 1: set the idea that the Second Amendment does apply individual

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Speaker 1: right to keep and bear arms. So how could this

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Speaker 1: case potentially expand that? How does that Heller case a

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Speaker 1: sort of set a precedent for what we could see

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Speaker 1: from the justices on this case, Well, you're absolutely right

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Speaker 1: that Heller really took this broader view of the Second Amendment.

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Speaker 1: Then courts had been willing to give it in the past,

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Speaker 1: you know. But in saying that there was this right,

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Speaker 1: the court didn't really say a lot about how, you know,

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Speaker 1: lower courts should look at other gun restrictions. And so

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Speaker 1: this case could very well set the standard, you know,

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Speaker 1: for how courts should analyze challenges to other gun restrictions. So,

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Speaker 1: should it take a really skeptical look whenever governments try

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Speaker 1: to put limits not just on concealed carry permits, but

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Speaker 1: things like bump stock band or assault rifle bands, um

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Speaker 1: or should they allow the legislature more leeway? You know,

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Speaker 1: That's something that I think a lot of people are

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Speaker 1: really hoping to get an answer to. It's not just

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Speaker 1: the Second Amendment that the High Court is going to

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Speaker 1: be taking up, of course, I see that they're also

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Speaker 1: going to be looking at affirmative action in college admissions. Again.

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Speaker 1: Is this something that they've ruled on pretty recently? It is.

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Speaker 1: There were a couple of cases out of Texas UM

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Speaker 1: involving the University of Austin, where you know, it looked

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Speaker 1: like the Court was on the verge of cutting back

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Speaker 1: on you know, how universities could use race in their

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Speaker 1: admissions process, but they stopped short um with a vote

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Speaker 1: by then Justice Anthony and Kennedy. Now, of course, the

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Speaker 1: composition of the Court is much much different, and there's

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Speaker 1: you know, a fear among those in the university setting

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Speaker 1: that the Supreme Court is really going to restrict that

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Speaker 1: if they do end up taking this case. Now that

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Speaker 1: we do have this six three majority of conservatives in

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Speaker 1: the High Court, what's the expectation or is there a

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Speaker 1: kind of an expectation of how the justices might view

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Speaker 1: this matter, the idea of race being a factor in

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Speaker 1: college admissions. Well, it's a really interesting question because even

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Speaker 1: though we know a lot about you know, some of

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Speaker 1: the new justices, we don't know a lot about what

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Speaker 1: they think about affirmative action. So I'm talking specifically here

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Speaker 1: about the Trump appointees, of which there were three. But

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Speaker 1: I will say that, you know, in the past, when

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Speaker 1: conservatives and liberal issues have been up at the Court,

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Speaker 1: lobbals have really relied, um, most recently on Chief Justice

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Speaker 1: Roberts to kind of pull the courts conservatives back and

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Speaker 1: take a gho slow approach. What are some of the

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Speaker 1: less heralded cases that you're looking at this term. Well,

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Speaker 1: I think one case that would be a blockbuster if

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Speaker 1: there weren't any other term is the case of the

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Speaker 1: Boston Marathon bomber um Um. This is United States versus

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Speaker 1: or nay Off. The Supreme Court is getting here it

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Speaker 1: pretty early in its term, and you know, listeners may

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Speaker 1: recall that, you know, the one of the brothers there

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Speaker 1: um received a capital sentence, but it was overturned, and

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Speaker 1: here we see the Biden administration is trying to reinstate

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Speaker 1: that at the Supreme Court. The issue isn't really one

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Speaker 1: of capital sentencing, but it's a really interesting issue for

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Speaker 1: the Biden administration, which has said that it is against

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Speaker 1: the death penalty, and yet we see it in this

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Speaker 1: case trying to reinstate it. So that'll be something to watch. Um.

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Speaker 1: Of course, as you know, the administration tries to figure

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Speaker 1: out how it's going to deal with some of you know,

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Speaker 1: what it considers the worst of the worst criminals. A

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Speaker 1: very busy term on the way Bloomberg Government Supreme Court

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Speaker 1: reporter Kimberly Strawbridge Robinson, thanks for being with us ahead

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Speaker 1: of it and coming up on this Supreme Court pre

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Speaker 1: term edition of Bloomberg Law, we look deeper into an

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Speaker 1: issue the justices say they try to avoid, that would

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Speaker 1: be politics. Will be speaking with Bloomberg political contributors Rick

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Speaker 1: Davis and Jeannie Schanzano. I'm Nathan Hagar in for June

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Speaker 1: Grosso this week. It's thirty nine minutes past the hour

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Speaker 1: and this is Bloomberg. This is Bloomberg Law with June

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Speaker 1: Brusso from Bloomberg Radio. You're listening to a special Supreme

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Speaker 1: Court edition of Bloomberg Law as we look ahead to

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Speaker 1: the High Court's upcoming term. I'm Nathan hagar in for

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Speaker 1: June Grosso this week. Well, much as the Justices say

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Speaker 1: they try to stay above the political fray, it can

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Speaker 1: be difficult to separate politics from the decisions that those

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Speaker 1: nine men and women robed in black hand down on

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Speaker 1: some of the most contentious issues in this deeply divided country.

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Speaker 1: So as we get set for this new term, we

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Speaker 1: do want to take a closer look at the politics

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Speaker 1: of the Supreme Court. For that, We're joined by Bloomberg

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Speaker 1: Political contributors Jeanie Schanzano, professor of political science at i

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Speaker 1: own A College and author of the new book American

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Speaker 1: Democrat See in Crisis. And Rick Davis is with us

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Speaker 1: as well, former campaign manager for John McCain's presidential campaigns.

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Speaker 1: It's good to have you both with us on this

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Speaker 1: edition of Bloomberg Law. And it does seem like the

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Speaker 1: justices have gone out of their way, particularly lately, to

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Speaker 1: say that they really aren't political. Genie, I'll start with you,

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Speaker 1: what about this slate of cases that is coming up

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Speaker 1: in the new term. What does that say about just

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Speaker 1: how political? Well, to your point, it has been striking,

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Speaker 1: and we've heard Justice Amy Coney Barrett out at the

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Speaker 1: University of Louisville making the case that, you know, we

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Speaker 1: are not a political institution. Justice Brier has this book

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Speaker 1: out in just the last couple of weeks saying essentially

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Speaker 1: the same thing. And I think what they're responding to

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Speaker 1: is this sort of crisis of legitimacy that they're feeling.

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Speaker 1: We've got a president who has set up a presidential

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Speaker 1: commission via executive order in April looking at the makeup

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Speaker 1: of the court and asking questions about court packing, about

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Speaker 1: mandatory retired ages, all those kinds of structural changes to

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Speaker 1: the court. So I do think the Court is feeling

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Speaker 1: some pressure, and this upcoming term they have a bevy

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Speaker 1: of cases that are you know, going to be politically fraught,

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Speaker 1: and number one on the list is, of course, the

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Speaker 1: case out of Mississippi challenging Roe v. Wade, which is

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Speaker 1: docketed for a hearing on December one. But that is

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Speaker 1: really just the start of what is going to be

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Speaker 1: I think a fairly potentially contentious year as the Court

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Speaker 1: returns from it's you know, it's pandemic um lockdown where

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Speaker 1: they were all online and remote. They are now coming

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Speaker 1: back in person in the fall, although the public can't

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Speaker 1: be there to watch them, um, but they're going to

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Speaker 1: be in person for the first time since March. And

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Speaker 1: they are coming out of a term in which they

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Speaker 1: had a remarkable number of unanimous opinions and yet the

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Speaker 1: last day of the term you had these two cases

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Speaker 1: that really so showed this stark sort of partisan divide

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Speaker 1: in the voting rights case, particularly out of Arizona that

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Speaker 1: Rick knows so well. So you know, there's a lot

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Speaker 1: to contend with, and I think a lot of questions

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Speaker 1: going forward this term is how the Court contends with

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Speaker 1: this sort of crisis of legitimacy that it's facing. Yeah,

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Speaker 1: I'm glad you mentioned the last few days of the

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Speaker 1: previous term where it did seem as though there was

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Speaker 1: that pivot toward a lot more politically fraught decisions, Rick Davis.

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Speaker 1: Is that sort of a wave that's going to carry

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Speaker 1: this Supreme Court into this new term, We're gonna see

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Speaker 1: a lot more politically fraught cases coming our way. Yeah.

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Speaker 1: I think that the courts usually reflect, you know, what's

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Speaker 1: currently happening in society and trends that are happening. But

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Speaker 1: this Court really does go out of its way right

434
00:24:45,320 --> 00:24:47,080
Speaker 1: now to say, you know, hey, we're not trying to

435
00:24:47,119 --> 00:24:50,080
Speaker 1: be political. Uh. In in in politics, we have a

436
00:24:50,080 --> 00:24:54,399
Speaker 1: technical term for that, saying the guilty dog barks the loudest. Um.

437
00:24:54,760 --> 00:24:57,800
Speaker 1: I really think that they're they're they're they're already there.

438
00:24:58,320 --> 00:25:01,840
Speaker 1: If you look at the what's called the shadow docket,

439
00:25:01,880 --> 00:25:04,399
Speaker 1: by some of what they did when they weren't in

440
00:25:04,480 --> 00:25:07,280
Speaker 1: session this summer, I mean, they got into some really

441
00:25:07,320 --> 00:25:13,000
Speaker 1: hairy issues free speech and evictions, immigration. Uh, this recent

442
00:25:13,400 --> 00:25:17,000
Speaker 1: rejection of the Texas case that everybody was looking for

443
00:25:17,080 --> 00:25:19,600
Speaker 1: guidance from so I think that when you when you

444
00:25:19,640 --> 00:25:22,119
Speaker 1: start looking at what they're doing versus what they're saying,

445
00:25:22,480 --> 00:25:25,720
Speaker 1: this is going to be an intensely political UH Court

446
00:25:25,800 --> 00:25:30,680
Speaker 1: this year. The shadow docket genie is something that Justice

447
00:25:30,720 --> 00:25:35,880
Speaker 1: Brier has talked about in particular heading into this new term.

448
00:25:35,960 --> 00:25:39,600
Speaker 1: What does that say about the politicization the fact that

449
00:25:39,640 --> 00:25:44,399
Speaker 1: we have seen the justices make a lot more rapid

450
00:25:44,440 --> 00:25:48,199
Speaker 1: decisions without a whole lot of public argument. So it

451
00:25:48,320 --> 00:25:50,439
Speaker 1: is I think one of the stunning developments of the

452
00:25:50,560 --> 00:25:52,960
Speaker 1: Roberts Court in the last couple of years, the last

453
00:25:53,000 --> 00:25:56,920
Speaker 1: few years. Number One, they're sort of traditional docket where

454
00:25:56,920 --> 00:25:59,560
Speaker 1: they have a full hearing and we get signed opinions

455
00:25:59,560 --> 00:26:02,320
Speaker 1: and oral arguments and all of that have shrunk two

456
00:26:02,359 --> 00:26:05,240
Speaker 1: levels we haven't seen since the Civil War. I think

457
00:26:05,320 --> 00:26:08,240
Speaker 1: last term they were about fifty three fifty four traditionally

458
00:26:08,359 --> 00:26:12,240
Speaker 1: docketed cases, and yet the shadow docket that you're mentioning.

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00:26:12,600 --> 00:26:17,000
Speaker 1: They were deeply engaged in the shadow docket, and they

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00:26:17,080 --> 00:26:22,400
Speaker 1: were essentially dealing with these very contentious issues, you know, involving,

461
00:26:22,440 --> 00:26:25,919
Speaker 1: for instance, religious protections in the face of the COVID

462
00:26:26,000 --> 00:26:29,280
Speaker 1: restrictions coming out of the States. Um as Rick just

463
00:26:29,440 --> 00:26:31,919
Speaker 1: mentioned you know, this abortion case out of Texas and

464
00:26:32,080 --> 00:26:34,399
Speaker 1: so many other things. And I think one of the

465
00:26:34,440 --> 00:26:37,399
Speaker 1: big things to watch for in this upcoming term is

466
00:26:37,480 --> 00:26:40,639
Speaker 1: does the rise of the shadow docket continue to play

467
00:26:40,800 --> 00:26:45,239
Speaker 1: such a big role going forward? I think for any institutionalist,

468
00:26:45,359 --> 00:26:48,399
Speaker 1: like say a Chief Justice John Roberts or you know,

469
00:26:48,520 --> 00:26:52,199
Speaker 1: even a Brett Kavanaugh or Justice Bryer, that is a

470
00:26:52,320 --> 00:26:55,400
Speaker 1: real concern. And so I think one of the things

471
00:26:55,400 --> 00:26:57,760
Speaker 1: to watch for, and it looks now like we are

472
00:26:57,760 --> 00:27:01,040
Speaker 1: going to have a fairly shrunk traditional docket is does

473
00:27:01,080 --> 00:27:04,000
Speaker 1: that docket size increase at all? And does the shadow

474
00:27:04,040 --> 00:27:07,359
Speaker 1: dockets start to diminish. If that doesn't happen, all of

475
00:27:07,400 --> 00:27:09,879
Speaker 1: these questions about the role of politics and the court

476
00:27:10,160 --> 00:27:13,439
Speaker 1: will continue to play a role. Jennie Schanzano of Iona

477
00:27:13,520 --> 00:27:17,240
Speaker 1: colleges with us along with former McCain campaign manager Rick

478
00:27:17,359 --> 00:27:21,080
Speaker 1: Davis Rick. The Supreme Court is heading into this new

479
00:27:21,160 --> 00:27:25,520
Speaker 1: term once again with a six three conservative majority. How

480
00:27:25,560 --> 00:27:28,960
Speaker 1: does that play into the politics here? Is Justice Barrett

481
00:27:29,080 --> 00:27:32,400
Speaker 1: going to be at the center of what what court

482
00:27:32,440 --> 00:27:35,440
Speaker 1: watchers are gonna be looking at. Is it possible still

483
00:27:35,520 --> 00:27:39,040
Speaker 1: to have a swing vote in a Supreme Court like this? Well,

484
00:27:39,359 --> 00:27:43,359
Speaker 1: certainly Amy Comey Ammy Cony. Barrett is one of the

485
00:27:43,359 --> 00:27:47,200
Speaker 1: more controversial justices and and going into a docket full

486
00:27:47,240 --> 00:27:53,440
Speaker 1: of abortion cases. So her outspoken uh opposition to abortion

487
00:27:53,840 --> 00:27:56,080
Speaker 1: prior to becoming a judge is going to be something

488
00:27:56,119 --> 00:27:58,639
Speaker 1: that people are gonna be watching significantly. And of course

489
00:27:59,640 --> 00:28:03,040
Speaker 1: her new position on the Court could be part of

490
00:28:03,040 --> 00:28:06,920
Speaker 1: the balance shift on very important issues related to abortion.

491
00:28:07,359 --> 00:28:11,560
Speaker 1: That being said, even Chief Justice Roberts has been willing

492
00:28:11,600 --> 00:28:16,200
Speaker 1: to cross that ideological aisle, not so much a political aisle.

493
00:28:16,800 --> 00:28:20,399
Speaker 1: Appointed by George W. Bush, he has sided with the

494
00:28:20,440 --> 00:28:25,000
Speaker 1: minority recently on cases where people would have thought he

495
00:28:25,080 --> 00:28:27,399
Speaker 1: might have gone straight down the line, you know, along

496
00:28:27,440 --> 00:28:32,600
Speaker 1: with the other Republican appointed justices. So sure people are

497
00:28:32,600 --> 00:28:36,520
Speaker 1: gonna be watching that significantly, especially because when the chief

498
00:28:36,800 --> 00:28:43,240
Speaker 1: Judge moves outside his political sort of uh legacy. Uh,

499
00:28:43,280 --> 00:28:46,760
Speaker 1: that's something people have a tendency to watch intently for

500
00:28:46,840 --> 00:28:48,640
Speaker 1: clues as to what's going to happen in the future.

501
00:28:48,920 --> 00:28:51,880
Speaker 1: In the previous term, Genie, there was a lot of

502
00:28:51,880 --> 00:28:56,600
Speaker 1: talk about Justice Brett Kavanaugh as a possible swing vote.

503
00:28:56,680 --> 00:28:59,520
Speaker 1: How could he play into this next term? That's right.

504
00:28:59,600 --> 00:29:03,640
Speaker 1: Another they're really important development last term is that Brett Kavanaugh,

505
00:29:03,640 --> 00:29:07,440
Speaker 1: and we all lived through his very contentious confirmation hearing,

506
00:29:07,760 --> 00:29:10,480
Speaker 1: he ended up being the justice that was the most

507
00:29:10,520 --> 00:29:12,720
Speaker 1: in the majority. He was in the majority on all

508
00:29:12,760 --> 00:29:15,600
Speaker 1: but two cases. He was followed by Roberts, who was

509
00:29:15,640 --> 00:29:18,080
Speaker 1: in the majority and all but four, which leads you

510
00:29:18,200 --> 00:29:21,880
Speaker 1: to suspect that perhaps Kavanaugh is bucking Roberts for that

511
00:29:22,120 --> 00:29:24,800
Speaker 1: all important role of the swing vote on the court,

512
00:29:25,120 --> 00:29:26,800
Speaker 1: which would be a lot more in keeping with what

513
00:29:26,840 --> 00:29:30,080
Speaker 1: we've seen historically because it's not usually the case that

514
00:29:30,120 --> 00:29:33,920
Speaker 1: the chief Justice is the swing vote. So you've got Kavanan, Roberts,

515
00:29:33,920 --> 00:29:36,120
Speaker 1: but got to keep an eye on Amy Coney Barrett.

516
00:29:36,200 --> 00:29:39,240
Speaker 1: She was not far behind those two last term, but

517
00:29:39,440 --> 00:29:42,000
Speaker 1: it's a little difficult to tell because she wasn't there

518
00:29:42,080 --> 00:29:44,960
Speaker 1: for ten of the merited signed cases that were hurt

519
00:29:45,000 --> 00:29:47,800
Speaker 1: on the docket. So sort of watching to see this

520
00:29:48,000 --> 00:29:51,760
Speaker 1: term who ends up in that all important swing vote role.

521
00:29:52,000 --> 00:29:54,360
Speaker 1: And of course, if you put those three together, they

522
00:29:54,400 --> 00:29:59,160
Speaker 1: formed quite a potential moderating force on the court. If

523
00:29:59,240 --> 00:30:01,640
Speaker 1: they hang together, they're in some of these key cases,

524
00:30:01,680 --> 00:30:04,320
Speaker 1: and that's a big if. Of course we're going to

525
00:30:04,400 --> 00:30:07,960
Speaker 1: be watching. I would think for developments from this panel

526
00:30:08,120 --> 00:30:11,960
Speaker 1: on court reform that President Biden enacted through an executive

527
00:30:12,040 --> 00:30:14,240
Speaker 1: order just a couple of months back. We haven't heard

528
00:30:14,320 --> 00:30:18,120
Speaker 1: much from them heading into this term, Rick Davis, what

529
00:30:18,240 --> 00:30:21,240
Speaker 1: kind of developments could we expect there? Well, I think

530
00:30:21,240 --> 00:30:24,520
Speaker 1: that runs sort of parallel with this this court session,

531
00:30:24,680 --> 00:30:26,920
Speaker 1: and I think you're gonna hear quite a bit of

532
00:30:27,360 --> 00:30:30,680
Speaker 1: discussion about this on Capitol Hill, because, of course, UH,

533
00:30:30,720 --> 00:30:35,040
Speaker 1: anything that's close to court packing, as Genie had mentioned earlier,

534
00:30:35,440 --> 00:30:39,520
Speaker 1: is going to have incredible political opposition by Republicans, And

535
00:30:39,600 --> 00:30:42,600
Speaker 1: so I think that that you're going to have an

536
00:30:42,720 --> 00:30:46,800
Speaker 1: enormous amount of reporting this year on on issues relevant

537
00:30:46,800 --> 00:30:50,920
Speaker 1: to the Supreme Court, not just the cases that are

538
00:30:50,960 --> 00:30:53,680
Speaker 1: historic in nature for this court and what they will

539
00:30:53,720 --> 00:30:56,680
Speaker 1: hear uh in the Supreme Court, but also the political

540
00:30:56,720 --> 00:31:00,360
Speaker 1: debate around whether or not this court UH and and

541
00:31:00,480 --> 00:31:04,400
Speaker 1: really the federal judiciary UH is equipped for the future

542
00:31:04,880 --> 00:31:07,840
Speaker 1: and UH in what some of those reforms may be,

543
00:31:08,400 --> 00:31:11,480
Speaker 1: including increasing the size of the Supreme Court. What about

544
00:31:11,520 --> 00:31:15,760
Speaker 1: that debate? Gen just the idea that panel like this

545
00:31:16,160 --> 00:31:20,240
Speaker 1: is meeting discussing potential changes to the Supreme Court, does

546
00:31:20,320 --> 00:31:23,880
Speaker 1: that add even more to the idea that this court

547
00:31:23,960 --> 00:31:27,960
Speaker 1: has become overly politicized. I think it doesn't. I think

548
00:31:28,000 --> 00:31:31,600
Speaker 1: that's what we are hearing Justice Brier, Justice Coney, Barrett

549
00:31:31,640 --> 00:31:35,560
Speaker 1: and others respond to. And certainly Chief Justice John Robertson

550
00:31:35,600 --> 00:31:38,560
Speaker 1: knows this, you know, fully well and has has you know,

551
00:31:38,720 --> 00:31:41,280
Speaker 1: really taken a lead on this um. You know, this

552
00:31:41,360 --> 00:31:45,360
Speaker 1: commission is a number of experts in constitutional law and

553
00:31:45,480 --> 00:31:48,200
Speaker 1: history and political science who are getting together at the

554
00:31:48,240 --> 00:31:50,880
Speaker 1: behest of the president to look at critical issues like

555
00:31:51,440 --> 00:31:54,640
Speaker 1: the length of service, should there be a mandatory retirement,

556
00:31:54,960 --> 00:31:57,600
Speaker 1: you know, court packing. One of the important things that

557
00:31:57,680 --> 00:32:00,440
Speaker 1: Justice Brier has been saying while he's been his book

558
00:32:00,480 --> 00:32:03,280
Speaker 1: tour is something I think worth reflecting on, and that

559
00:32:03,480 --> 00:32:06,720
Speaker 1: is Democrats have to be very, very careful because what

560
00:32:06,840 --> 00:32:11,680
Speaker 1: comes around goes around an enormous amount of power concentrated

561
00:32:11,680 --> 00:32:16,240
Speaker 1: in nine men and women in a very interesting term

562
00:32:16,240 --> 00:32:20,040
Speaker 1: coming up. Jeanie Schanzano of Iona College, Rick Davis, Bloomberg

563
00:32:20,080 --> 00:32:22,840
Speaker 1: News Political contributors, both, thanks to both of you for

564
00:32:22,880 --> 00:32:25,120
Speaker 1: being with us, and thank you for tuning into this

565
00:32:25,200 --> 00:32:27,840
Speaker 1: special edition of Bloomberg Law as we look ahead to

566
00:32:27,880 --> 00:32:31,479
Speaker 1: the Supreme Court term that begins October four. June Grosso

567
00:32:31,560 --> 00:32:34,360
Speaker 1: will be back next week. I'm Nathan Hagar. It's fifty

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00:32:34,440 --> 00:32:37,680
Speaker 1: seven minutes past the hour, and this is Bloomberg