WEBVTT - A Politicized SCOTUS & Senator Menendez Corruption Trial 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.800 --> 0:00:13.480 It was another transformational term at the Supreme Court, where 0:00:13.480 --> 0:00:18.079 the Republican appointed supermajority left no doubt that its conservative 0:00:18.120 --> 0:00:22.200 revolution is pushing ahead to attain its goals without much 0:00:22.200 --> 0:00:27.120 regard for precedent. The Conservatives slashed the power of regulators, 0:00:27.480 --> 0:00:31.480 rule that Donald Trump is absolutely immune from criminal prosecution 0:00:31.720 --> 0:00:35.720 for official presidential acts, made it harder to challenge voting 0:00:35.760 --> 0:00:39.920 maps as racially gerrymandered, and found that homeless people sleeping 0:00:39.960 --> 0:00:43.400 on the streets can be jailed. In those decisions, as 0:00:43.440 --> 0:00:47.400 well as seven others. The Court was divided down ideological 0:00:47.479 --> 0:00:51.320 lines six to three, with the liberal justices in the minority. 0:00:51.720 --> 0:00:54.520 Joining me is Anthony Michael Christ, a professor at the 0:00:54.520 --> 0:00:58.959 Georgia State University College of Law. People are bemoaning how 0:00:59.000 --> 0:01:03.120 the Supreme Court had has become so political, But you 0:01:03.240 --> 0:01:06.679 write that the Supreme Court always has been political and 0:01:06.760 --> 0:01:10.280 that the Court has never been an apolitical arbiter of 0:01:10.319 --> 0:01:12.840 the constitution. Tell us why so? 0:01:13.680 --> 0:01:17.399 You know, the Supreme Court has two important features in 0:01:17.520 --> 0:01:20.960 terms of how justice think. I think the first one 0:01:21.080 --> 0:01:23.880 is that you know they're members of society, and so 0:01:24.720 --> 0:01:28.240 you know, society has kind of dominant main streame views 0:01:28.280 --> 0:01:31.720 and those that are very much on the outside, and justices, 0:01:31.959 --> 0:01:36.679 much like your average citizen, is going to internalize those views, 0:01:36.760 --> 0:01:41.000 internalize those changing dynamics in society and current events and 0:01:41.000 --> 0:01:45.200 all the like, and their jurisprudence is going to sometimes 0:01:45.360 --> 0:01:47.920 be affected by that. But then the other thing that's 0:01:47.960 --> 0:01:51.760 even more important in terms of the Supreme Court's jurisprudential 0:01:51.800 --> 0:01:55.480 outcomes is the fact that it is the byproduct of 0:01:56.080 --> 0:02:01.240 big political coalition that elected presidents and that elect majorities 0:02:01.240 --> 0:02:04.560 in the Senate. That then creates this dynamic where you 0:02:04.640 --> 0:02:08.280 get a president who appoints justice the Supreme Court who 0:02:08.440 --> 0:02:13.240 also reflects their ideological commitments. And so generally speaking, because 0:02:13.240 --> 0:02:17.400 of these two different features of how justices get picked 0:02:17.440 --> 0:02:20.360 and how they just operate as regular members of society, right, 0:02:20.360 --> 0:02:22.639 they're not for medically sealed off from the rest of us. 0:02:22.720 --> 0:02:26.520 You know, the courts tend to reflect majoritarian views. Certainly, 0:02:26.720 --> 0:02:29.400 I think there's a case to be made that this court, 0:02:29.680 --> 0:02:33.400 the Roberts Court, and as the Roberts Court is currently constituted. 0:02:33.520 --> 0:02:36.720 A lot of people may say this, well, outside of 0:02:36.800 --> 0:02:40.840 the kind of mainstream views of the average American today, 0:02:40.919 --> 0:02:43.120 And I think there was an argument made for that, 0:02:43.360 --> 0:02:47.680 for sure. But generally speaking, the Supreme Court just contrary 0:02:47.720 --> 0:02:49.399 to what most of us have been taught in law 0:02:49.440 --> 0:02:51.680 school and in college for years and years and years, 0:02:51.720 --> 0:02:54.400 it's not a counter majoritory and institution. It has typically 0:02:54.440 --> 0:02:59.200 reflected the majority view on major questions of law and politics. 0:02:59.520 --> 0:03:03.120 Do you think that this is becoming more pronounced because 0:03:03.160 --> 0:03:06.800 the Court has moved so fast to overrule precedent and 0:03:06.960 --> 0:03:08.200 to change the law. 0:03:08.720 --> 0:03:11.840 Yeah, So I think maybe a good app comparison maybe 0:03:12.639 --> 0:03:15.880 the Warren Court from the nineteen fifties and nineteen sixties 0:03:16.040 --> 0:03:19.160 and the current Robbers Court as it existed we'll say 0:03:19.200 --> 0:03:23.000 since the Trump administration, so around twenty sixteen, and certainly 0:03:23.040 --> 0:03:26.320 there's similar dynamics in that both courts overturned a lot 0:03:26.320 --> 0:03:30.240 of precedent. People generally don't see the Warren Court as 0:03:30.400 --> 0:03:34.040 being at a step with the average Americans view during 0:03:34.080 --> 0:03:37.200 that period because the New Deal coalition was dominant and 0:03:37.280 --> 0:03:42.000 they won outright majorities both in Congress and substantial majorities 0:03:42.080 --> 0:03:44.840 time and again in terms of sending a president to 0:03:44.880 --> 0:03:48.720 the White app and even Republicans who were more conservative 0:03:48.920 --> 0:03:52.000 than the average Democrat at the time tends to be 0:03:52.040 --> 0:03:55.600 more liberal, and so the views of the average politicians 0:03:55.840 --> 0:03:58.720 who was electable in that time period was very much 0:03:58.760 --> 0:04:02.240 in sync with the appsview of the typical Supreme Court 0:04:02.320 --> 0:04:05.960 justice at the time. Why I think people seem more 0:04:06.680 --> 0:04:10.400 skeptical of this court is because unlike the War in Court, 0:04:10.400 --> 0:04:13.520 for example, you know, Donald Trump when he was first elected, 0:04:13.800 --> 0:04:17.719 never cured a popular vote majority, and I think, you know, 0:04:17.839 --> 0:04:21.200 in terms of public opinion pulling really never cracked a 0:04:21.320 --> 0:04:25.440 majority of Americans supporting his presidency. And at the same time, 0:04:25.640 --> 0:04:28.320 there was a dynamic that occurred in the Senate where 0:04:28.640 --> 0:04:32.040 Donald Trump's Supreme Court nominees, unlike every nominee in the 0:04:32.120 --> 0:04:37.120 years past, was unable to secure a majority of Senators 0:04:37.160 --> 0:04:40.360 to confirm the nomination that he put forward for the 0:04:40.360 --> 0:04:44.960 Supreme Court, who also represented a majority of Americans, because 0:04:45.279 --> 0:04:49.480 the Senate has become so malaportioned based on population. And 0:04:49.600 --> 0:04:52.560 so I think part of the anxiety that you see, 0:04:52.600 --> 0:04:56.120 particularly from the center, center, left and left of the 0:04:56.120 --> 0:04:58.880 political spectrum here in the United States, that is a 0:04:58.960 --> 0:05:02.480 byproduct of the feeling that the Supreme Court is representing 0:05:02.640 --> 0:05:08.000 minoritarian on minoritarian on minoritarian interests and not in step 0:05:08.120 --> 0:05:11.760 with kind of the general flow and trajectory of the 0:05:11.760 --> 0:05:14.760 American body politics, as was the case perhaps in the 0:05:14.839 --> 0:05:17.960 nineteen fifties and nineteen sixties. So there are similarities in 0:05:18.040 --> 0:05:21.960 terms of the court reflecting winning coalitions to a certain extent, 0:05:22.040 --> 0:05:24.120 both between the Warren Court and the Roberts Court. But 0:05:24.200 --> 0:05:27.320 I think there are also very significant qualitated differences in 0:05:27.400 --> 0:05:29.200 terms of where we are in the kind of a 0:05:29.240 --> 0:05:31.840 longer term trajectory in American politics. 0:05:32.080 --> 0:05:35.080 So let's talk about some of the cases. One of 0:05:35.160 --> 0:05:37.440 the cases where it seemed to me that politics was 0:05:37.720 --> 0:05:41.279 blatantly at play was the Idaho abortion case. There were 0:05:41.400 --> 0:05:45.039 enough justices to place a stay on the district court 0:05:45.240 --> 0:05:49.760 order so that Idaho could enforce its ban before the decision, 0:05:49.839 --> 0:05:51.960 but then some of them must have had a change 0:05:51.960 --> 0:05:54.880 of heart backed off, and in the dissent, Justice Alito 0:05:55.000 --> 0:05:59.240 seemed to question why, and is the obvious answer the 0:05:59.320 --> 0:06:00.000 upcoming alone. 0:06:01.839 --> 0:06:04.799 I think the answer is it was absolutely the election, 0:06:04.920 --> 0:06:07.919 and it was a feeling by a number of justices 0:06:07.960 --> 0:06:11.040 on the Court that coming down with a ruling that 0:06:11.160 --> 0:06:17.760 restricted abortion access further would be electorally damaging to conservatives 0:06:17.800 --> 0:06:21.720 and Republicans across the country in a very important election cycle. 0:06:22.040 --> 0:06:25.080 And I think one of the key dynamics here that 0:06:25.120 --> 0:06:27.799 it's important to note is that this was of course 0:06:27.960 --> 0:06:30.960 a dig right, so it was dismissed and providently granted, 0:06:31.080 --> 0:06:34.400 which basically means that at least one of the members 0:06:34.520 --> 0:06:37.520 who voted to hear the case in the first place 0:06:37.560 --> 0:06:41.600 so voted to hear, sir, decided that no, they had 0:06:41.600 --> 0:06:43.599 coal feet and they just didn't want to touch this, 0:06:43.880 --> 0:06:46.039 And that to me suggests, you know, it was probably 0:06:46.040 --> 0:06:48.200 not one of the liberals right who would get cold feet, 0:06:48.240 --> 0:06:50.320 because they would not vote for curt unless they thought 0:06:50.320 --> 0:06:52.800 they would certainly win, which with this court being as 0:06:52.839 --> 0:06:56.000 conservative as it is, an anti abortion as it is, 0:06:56.120 --> 0:06:58.760 you know, that wouldn't be a really safe bet. So 0:06:59.360 --> 0:07:04.440 it's very like, if not absolutely certainty, that either Justice Barrett, 0:07:04.800 --> 0:07:08.960 Chief Justice Roberts, or Justice Kavanaugh or in that group 0:07:08.960 --> 0:07:11.800 who initially decided to hear this case and realize that 0:07:11.840 --> 0:07:13.600 it was going to go in a way they didn't 0:07:13.640 --> 0:07:17.559 particularly like, likely for political reasons, and they backed off. 0:07:17.680 --> 0:07:21.120 And so I think the core disposition here at least 0:07:21.160 --> 0:07:25.400 among the three more I would say more moderate conservatives. 0:07:25.440 --> 0:07:28.680 I wouldn't call them moderates, but they're certainly less conservative 0:07:28.960 --> 0:07:36.720 than say Justice Alito or Justice Thomas. But those three Kavanaugh, Roberts, Barrett, 0:07:36.960 --> 0:07:39.640 I think hope that either they could pump this off 0:07:39.680 --> 0:07:42.679 for another time and decide against the federal government during 0:07:42.920 --> 0:07:45.920 a year that is not an election year, or they 0:07:45.920 --> 0:07:48.440 could just sit back and hope Donald Trump wins the 0:07:48.480 --> 0:07:52.480 presidency in November, wait for the Trump administration to reverse 0:07:52.600 --> 0:07:57.360 course on this policy that bid an administration promulgated, and 0:07:57.440 --> 0:07:59.160 then they won't have to touch it at all. So 0:07:59.240 --> 0:08:01.520 this was really politics all the way down. 0:08:02.400 --> 0:08:05.680 Now, the Eighth Amendment, we don't talk about it all 0:08:05.680 --> 0:08:08.080 that much in the news, and the ban on cruel 0:08:08.120 --> 0:08:12.440 and unusual punishment. The Supreme Court seems to often ignore 0:08:12.560 --> 0:08:15.520 its protections and a lot of times the case is 0:08:15.880 --> 0:08:18.679 involve criminal laws. But this term there was a case 0:08:18.760 --> 0:08:22.040 involving homelessness. Tell us about that and what the court 0:08:22.080 --> 0:08:22.559 did there. 0:08:23.040 --> 0:08:26.080 So, in a case called City of Grant's Past, the 0:08:26.120 --> 0:08:30.040 Supreme Court said that it does not violate the Eighth 0:08:30.040 --> 0:08:35.479 Amendments ban on Cruel and Unusual punishment to essentially criminalize 0:08:35.800 --> 0:08:39.959 people from camping in public spaces. And the hard part 0:08:40.000 --> 0:08:42.839 here is that, you know, there's a couple of dynamics 0:08:42.880 --> 0:08:47.040 that really make this situation agonizing, I think for people 0:08:47.040 --> 0:08:51.880 who particularly are concerned about unhoused persons. And how you know, 0:08:52.000 --> 0:08:54.520 we treat homelessness in the United States, which is, you know, 0:08:54.600 --> 0:08:58.120 a lot of cities create policies and adopt public policies 0:08:58.280 --> 0:09:03.760 that are not particularly friendly to affordable housing or density 0:09:03.840 --> 0:09:07.640 which can make housing more available and cheaper and whatnot, 0:09:07.800 --> 0:09:10.840 which could help ease some of these pressures. And you know, 0:09:10.880 --> 0:09:14.680 cities also seem to be really resistant in many respects 0:09:14.720 --> 0:09:18.360 to provide adequate services. And so you know, cities make 0:09:18.440 --> 0:09:21.920 these deliberate policies which make it harder for people to 0:09:22.040 --> 0:09:26.040 secure housing or to seek temporary shelter. But then at 0:09:26.040 --> 0:09:29.240 the same time, say you can't just sleep outside, you 0:09:29.280 --> 0:09:31.800 can't put up a tent, or we're going to basically 0:09:31.840 --> 0:09:36.880 criminalize your essential existence as an unhoused person. And so 0:09:37.320 --> 0:09:40.240 in this respect, the policy choices of cities is really 0:09:40.240 --> 0:09:42.280 a way to kind of crown people and push them 0:09:42.320 --> 0:09:45.960 out of their jurisdiction and say you're someone else's problem now, 0:09:46.120 --> 0:09:49.360 and that puts people in a really tough bind and 0:09:49.400 --> 0:09:52.000 it's really hard to get out, and so you know, 0:09:52.360 --> 0:09:54.280 the majority basically said, well, you know, this is not 0:09:54.320 --> 0:09:57.880 a problem, like you essentially have choices here as a person, 0:09:58.080 --> 0:10:03.040 and that's that there's no constitutional refuge or shield here 0:10:03.360 --> 0:10:05.760 under the Eighth Amendment. Whereas I think that the centers 0:10:06.120 --> 0:10:10.479 understood the bind that people face in these very tough situations. 0:10:10.800 --> 0:10:12.920 I think what's telling in some respects, at least for 0:10:13.040 --> 0:10:17.400 me as a scholar of political history and particularly somebody 0:10:17.480 --> 0:10:20.480 who is focused on reconstruction. You know, so much of 0:10:20.520 --> 0:10:24.280 this court is hell bent on originalist principles. And it's 0:10:24.360 --> 0:10:27.120 kind of ironic because, you know, if you look back 0:10:27.200 --> 0:10:31.320 to the eighteen sixties when zoadical Republicans were running the 0:10:31.360 --> 0:10:34.880 show and reconstruction was on their mind, and the Fourteenth 0:10:34.880 --> 0:10:38.240 Amendment came into play, as did the forerunner to the 0:10:38.280 --> 0:10:41.400 Fourteenth Amendment, the Civil Rights Act of eighteen sixty six. 0:10:41.640 --> 0:10:44.320 These lost many respects for us to push back on 0:10:44.440 --> 0:10:47.640 seven states which use vacancy walls, which were very similar 0:10:47.800 --> 0:10:49.480 right to what is that play here in the City 0:10:49.480 --> 0:10:53.960 of Grant Pass case, and basically track people either you know, 0:10:54.040 --> 0:10:57.559 working on certain plantations or working in certain conditions kind 0:10:57.600 --> 0:11:00.439 of fleeing the jurisdiction. And the huge part one of 0:11:00.440 --> 0:11:02.880 the pushback against that was that people should have freedom 0:11:02.880 --> 0:11:06.120 of movement. And you know, there were certainly people who 0:11:06.160 --> 0:11:09.400 also thought that there was a requirement and an obligation 0:11:09.520 --> 0:11:12.800 on government to provide some kind of basic social safety net. 0:11:13.000 --> 0:11:17.480 And this is a particularly important point that reconstruction legislators 0:11:17.520 --> 0:11:20.040 in South Carolina made in the late eighteen sixties and 0:11:20.080 --> 0:11:23.040 or only eighteen seventies. But there's no originalism here, right, 0:11:23.080 --> 0:11:25.720 There's kind of no originalism for folks who are poor. 0:11:25.960 --> 0:11:28.400 And I think that's really kind of telling in some 0:11:28.480 --> 0:11:32.080 respects about what this court is doing. It's not some 0:11:32.200 --> 0:11:36.600 kind of neutral jurisprudential decision making. They make decisions on 0:11:36.640 --> 0:11:40.480 an ad hoc basis, implementing whatever kind of constitutional tools 0:11:40.480 --> 0:11:43.560 of interpretation they want as they see fit. There's really 0:11:43.600 --> 0:11:45.880 no rhyme or reason to it other than they see 0:11:45.880 --> 0:11:49.400 an issue and they craft a rule based on what 0:11:49.480 --> 0:11:52.840 they viscerally and politically feel is the right outcome. 0:11:53.000 --> 0:11:55.800 Coming up next on the Bloomberg Lawn Show, what happened 0:11:55.840 --> 0:11:59.880 to the Chief Justice being an institutionalist who believed in 0:12:00.120 --> 0:12:03.760 judges only calling balls and strikes. I'm June Grosso and 0:12:03.800 --> 0:12:09.000 you're listening to Bloomberg. The Supreme Court's fractured decision in 0:12:09.040 --> 0:12:12.680 an important gun rights case. This term shows the justices 0:12:12.800 --> 0:12:16.000 can't quite agree on how to use history and tradition 0:12:16.240 --> 0:12:21.000 to analyze the constitutionality of firearm restrictions. The eight to 0:12:21.080 --> 0:12:24.160 one ruling in the Rahemi case, which upheld a federal 0:12:24.240 --> 0:12:28.360 law that bans people's subject to domestic violence restraining orders 0:12:28.600 --> 0:12:32.800 from possessing a gun, elicited separate writings from seven of 0:12:32.840 --> 0:12:37.400 the nine justices. Concurrences on both sides of the ideological 0:12:37.480 --> 0:12:40.800 line show there's a rigorous debate going on over the 0:12:40.880 --> 0:12:46.040 legal theory of originalism, which the Court's conservative majority has embraced. 0:12:46.559 --> 0:12:49.320 I've been talking to Anthony Michael Christ, a professor at 0:12:49.320 --> 0:12:52.720 the Georgia State University College of Law. Do you think, 0:12:52.760 --> 0:12:55.440 not only in this case, but in other cases, it's 0:12:55.480 --> 0:12:59.640 sort of exposed the problems with originalism and riffs among 0:12:59.679 --> 0:13:06.240 the conservatives about originalism especially. I think it showed in 0:13:06.280 --> 0:13:09.320 the Raheemi case. I think, where you know, what is it? 0:13:09.360 --> 0:13:11.560 Everyone has a different you know, not everyone, but there 0:13:11.559 --> 0:13:13.920 are so many different opinions what is originalism? 0:13:14.440 --> 0:13:17.359 I think the Rahemi case is really telling in some respects. 0:13:17.480 --> 0:13:21.360 It's ironic to me that Justice Tummas, who wrote the 0:13:21.400 --> 0:13:23.680 decision a couple of years ago in Bruin which was 0:13:23.800 --> 0:13:27.920 this right revolutionary Second Amendment case, basically was a loan 0:13:28.000 --> 0:13:31.240 to center in Rahimi and said, well, you don't really 0:13:31.320 --> 0:13:35.000 understand what I wrote. And so you know that that 0:13:35.080 --> 0:13:37.280 kind of undercuts the whole point of originalism, right when 0:13:37.320 --> 0:13:41.280 you have the author of an opinion that received majority 0:13:41.400 --> 0:13:44.880 vote by members of the United States Supreme Court saying 0:13:45.280 --> 0:13:47.800 to other people in the Supreme Court you don't understand 0:13:47.840 --> 0:13:49.640 just a couple of years later what I actually meant 0:13:49.960 --> 0:13:54.959 kind of ironically undercuts originalism and its alleged integrity as 0:13:55.000 --> 0:13:57.880 a tool of interpretation. But I think the other thing 0:13:57.960 --> 0:14:00.920 is that it has shown some crack in that people 0:14:01.200 --> 0:14:05.720 have understood that originalism has applied in a very strict 0:14:05.840 --> 0:14:11.600 and narrow sense, had unworkable and untenable outcome. And I think, frankly, 0:14:11.920 --> 0:14:15.640 the fact that the justices all raandly rejected this idea 0:14:15.920 --> 0:14:20.400 that the Second Amendment should somehow protect domestic abusers and 0:14:20.520 --> 0:14:23.080 allow them to have weapons. You know, most people in 0:14:23.080 --> 0:14:25.240 the United States, I think, would say they agree that 0:14:25.240 --> 0:14:28.200 that should not be the case. But if you applied 0:14:28.560 --> 0:14:31.120 just to Thomas's tests that he articulated a couple of 0:14:31.160 --> 0:14:34.920 years ago in a truly faithful way, the outcome would 0:14:34.920 --> 0:14:38.280 have been different. And so I think the Rashini case 0:14:38.320 --> 0:14:42.880 in some respects illustrates how there's this kind of roving 0:14:43.480 --> 0:14:45.760 attempt by a number of the members of the Court 0:14:45.920 --> 0:14:48.720 to apply originalism where it works for them, and to 0:14:49.360 --> 0:14:52.520 kind of push back a bit where it doesn't. And that, again, 0:14:52.640 --> 0:14:57.880 I think truly is astonishing for a group of people 0:14:58.040 --> 0:15:02.640 who suggest that originalism is the one, only and true 0:15:02.680 --> 0:15:04.160 way to interpret the Constitution. 0:15:04.920 --> 0:15:08.280 And you point out that there were cases where the 0:15:08.320 --> 0:15:15.000 Court sort of applied lenient statutory interpretations to benefit, for example, 0:15:15.040 --> 0:15:18.560 the January sixth defendants and white collar criminals. 0:15:19.080 --> 0:15:22.880 Yeah, so to me, one of the interesting cases that 0:15:22.920 --> 0:15:26.760 the Supreme Court decided was a case dealing with January 0:15:26.840 --> 0:15:31.160 sixth defendants called Fisher. And in Fisher, there was again 0:15:31.200 --> 0:15:34.120 it can just catch all phrase that if you apply 0:15:34.200 --> 0:15:36.840 it a very strict form of textualism that somebody like 0:15:36.920 --> 0:15:41.800 Neil Gorsuch would often propose as being his preferred way 0:15:41.840 --> 0:15:44.440 of statutory interpretation, he makes sure have come out with 0:15:44.480 --> 0:15:48.280 a different outcome that didn't favor the January sixth defendants. 0:15:48.480 --> 0:15:50.680 And so I think there are a lot of people, 0:15:50.800 --> 0:15:54.000 myself included, who may say that that decision of Fisher, 0:15:54.000 --> 0:15:56.880 as a matter of statutory interpretation, it might make sense, 0:15:56.920 --> 0:16:00.360 it might not. There might be some reasonable disagreement about 0:16:00.400 --> 0:16:04.160 what that decision should have looked like. But the decision itself, 0:16:04.560 --> 0:16:09.040 here's kind of the veil of legislative intent and legislative 0:16:09.200 --> 0:16:13.360 history in order to reach an outcome, and there are 0:16:13.360 --> 0:16:16.280 a number of justices who sign onto the opinion who 0:16:16.440 --> 0:16:20.200 generally reject that as an approach to interpreting a statute. 0:16:20.200 --> 0:16:22.680 And so I think one of the things that is 0:16:22.840 --> 0:16:26.080 something we should debate perhaps is whether or not these 0:16:26.200 --> 0:16:29.440 justices are being principled or whether they are again just 0:16:29.520 --> 0:16:32.800 kind of approaching these cases like lack a mole and 0:16:32.920 --> 0:16:36.320 hitting the kind of originalist opportunities where they come up 0:16:36.440 --> 0:16:39.560 and avoid them where that kind of approach doesn't really 0:16:39.600 --> 0:16:42.440 work for the outcomes that they truly desire. And so 0:16:42.720 --> 0:16:45.480 I think the real questions that arose out of this 0:16:45.640 --> 0:16:48.760 term cases which really is ripe for debate about whether 0:16:48.840 --> 0:16:52.000 or not the justices are being true in terms of 0:16:52.400 --> 0:16:55.320 adhering to this kind of principle or this kind of 0:16:55.360 --> 0:16:59.600 theory or kind of pool of interpretation uniformally, no matter 0:16:59.600 --> 0:17:02.760 what the out I think they're often disingenuous in that respect. 0:17:02.880 --> 0:17:05.840 So along that line, when Trump was contesting the election 0:17:05.920 --> 0:17:08.399 in twenty twenty, it seemed like the court didn't do 0:17:08.560 --> 0:17:12.640 him any favors, but this term they gave him everything 0:17:12.680 --> 0:17:16.080 he wanted. In more, you mentioned the January sixth case. 0:17:16.560 --> 0:17:20.480 There was that incredibly broad ruling on presidential immunity. They 0:17:20.520 --> 0:17:24.040 refused to allow Colorado officials to remove him from the ballot. 0:17:24.320 --> 0:17:28.560 What happened? Why did they go so far to try 0:17:28.600 --> 0:17:29.639 to insulate Trump? 0:17:30.359 --> 0:17:32.920 I think the big difference is that many people fell 0:17:33.320 --> 0:17:38.960 in twenty twenty that President Trump at the time had 0:17:39.280 --> 0:17:43.640 very weak political standing. There was a sense that there 0:17:43.760 --> 0:17:47.720 was going to be a total, perhaps landslide in favor 0:17:47.720 --> 0:17:49.920 of Joe Biden, and that of course didn't really happen. 0:17:49.960 --> 0:17:53.200 The election was much close, or I think most people anticipated, 0:17:53.400 --> 0:17:55.840 and that was both of the presidential election but also 0:17:56.119 --> 0:17:58.639 in terms of the Senate and the House of representative 0:17:58.800 --> 0:18:01.359 of results as well, but there was a sense that 0:18:01.359 --> 0:18:04.400 that was probably going to come to pass. And even 0:18:04.440 --> 0:18:06.800 when it didn't come to pass, at that point, Donald 0:18:06.840 --> 0:18:10.760 Trump had lost and so the wins in his sales 0:18:11.280 --> 0:18:14.639 were completely disflated, and so there really was no benefit 0:18:14.760 --> 0:18:16.920 to the Supreme Court to go out of their way 0:18:16.960 --> 0:18:19.160 to help Donald Trump. And if they did, that would 0:18:19.280 --> 0:18:25.280 also severely risk their own institutional capital. And that's not true. Now. 0:18:25.440 --> 0:18:28.359 Now you have a resurgent Trump. You have an income 0:18:28.520 --> 0:18:31.680 president who very well may beat Donald Trump, but who 0:18:31.720 --> 0:18:34.879 seems to be a little weaker than what most incumbents 0:18:34.880 --> 0:18:37.480 would want to be at this point in the presidential race. 0:18:37.960 --> 0:18:41.000 And they also don't want to risk the ire of 0:18:41.119 --> 0:18:44.879 Donald Trump should Donald Trump win the election in November, 0:18:44.920 --> 0:18:47.800 And so you know, that's all kind of in that mix. 0:18:48.160 --> 0:18:50.439 And then of course they're the Conservatives are looking up 0:18:50.480 --> 0:18:53.080 for their own interest I suspect, which is they would 0:18:53.200 --> 0:18:57.639 much rather have a seven to two, eight one nine 0:18:57.800 --> 0:19:01.640 zero conservative Supreme Court if they could have it, and 0:19:01.680 --> 0:19:06.200 not having a Republican win in November makes it less 0:19:06.560 --> 0:19:09.800 likely that there will be more Conservatives on the Court 0:19:09.880 --> 0:19:13.000 a few years from now than there are today. So 0:19:13.440 --> 0:19:15.879 there are a number of different issues that are at play, 0:19:15.960 --> 0:19:18.679 but I certainly think that some of the change in 0:19:18.840 --> 0:19:22.720 tone is political. And I also think though that some 0:19:22.760 --> 0:19:25.680 of the key issues, for example, the Presidential Community case, 0:19:25.880 --> 0:19:28.680 the number of members of this Court have truly believed 0:19:28.800 --> 0:19:32.560 in a doctrine that has empowered the executive. They believe 0:19:32.800 --> 0:19:35.800 in a unitary executive. They believe that the president should 0:19:35.840 --> 0:19:40.280 have the power to really wrestle control of administrative agencies 0:19:40.480 --> 0:19:43.280 and change policy as they see fit in things of 0:19:43.320 --> 0:19:46.639 that nature. And so to the extent too, that they 0:19:46.640 --> 0:19:49.800 could write an opinion that is reflective of their very 0:19:49.840 --> 0:19:55.320 long standing ideological commitments in consolidating executive power and do 0:19:55.520 --> 0:19:58.080 so in a way that could at least temporarily, if 0:19:58.080 --> 0:20:03.080 not long term, benefit Trump as perhaps the preferred presidential 0:20:03.080 --> 0:20:04.399 candidate they're going to do. So. 0:20:04.720 --> 0:20:08.760 You mentioned the administrative state basically, and the administrative state 0:20:08.840 --> 0:20:12.280 took hit after hit from the Court this term, and 0:20:12.520 --> 0:20:16.879 now with its decisions, it places power in the federal 0:20:17.000 --> 0:20:21.760 judiciary rather than in experts and agencies. So are we 0:20:21.880 --> 0:20:26.840 bound to see decisions based on the political views of 0:20:27.280 --> 0:20:30.880 federal judges more and more now that they don't have 0:20:31.160 --> 0:20:33.120 to worry about Chevron deference. 0:20:33.440 --> 0:20:36.360 I think it's possible that you could see that there 0:20:36.440 --> 0:20:40.840 is I think, to some extent, a somewhat limiting factor here, 0:20:40.880 --> 0:20:44.560 which is there will be times, perhaps where judges will 0:20:44.920 --> 0:20:49.119 be a little squeamish of wading into a particular policy 0:20:49.640 --> 0:20:52.640 and pushing back against it because they just don't have 0:20:53.240 --> 0:20:57.159 the kind of capacity in terms of technical expertise to 0:20:57.240 --> 0:20:59.760 do so. There will be other areas, I think this 0:20:59.840 --> 0:21:03.800 is particularly true in environmental policy perhaps, but there will 0:21:03.800 --> 0:21:06.320 be other areas where judges will feel a lot more 0:21:06.560 --> 0:21:10.720 comfortable stepping in and pushing back against administrative state. But 0:21:11.240 --> 0:21:14.399 when that does happen, and when judges do feel comfortable 0:21:14.520 --> 0:21:21.040 and more at ease to inquire into the rationality of 0:21:21.200 --> 0:21:25.119 a particular agency's policy, you know, certainly when you're asking 0:21:25.320 --> 0:21:29.920 something rational or you know something kind of passle sness test, 0:21:30.080 --> 0:21:33.240 you know, whatever, the test that eventually gets developed, because 0:21:33.280 --> 0:21:35.520 of course we have a rule from the local right case, 0:21:35.560 --> 0:21:37.520 but we don't really know how it's going to be 0:21:37.560 --> 0:21:40.080 fleshed out over time. I think there is a lot 0:21:40.080 --> 0:21:44.760 more room perhaps for mischief now where a judge's personal 0:21:44.800 --> 0:21:49.560 policy preferences will be easily substituted for whatever the inmistry 0:21:49.600 --> 0:21:52.560 of agency wants to do. So certainly that is a risk, 0:21:53.080 --> 0:21:55.199 but I do think that we'll have to wait and 0:21:55.280 --> 0:21:58.320 see for the next few years how this all shaked out. 0:21:58.400 --> 0:22:02.280 Over time, the Chief Justice John Roberts, he used to care, 0:22:02.760 --> 0:22:04.960 or he seemed to care, about the public's view of 0:22:05.000 --> 0:22:08.639 the Court, about the Court as an institution, claiming, you know, 0:22:08.880 --> 0:22:13.440 justices are not politicians, that they're just calling balls and strikes. 0:22:14.080 --> 0:22:17.240 What do you think happened this term that he seemed 0:22:17.240 --> 0:22:18.880 to throw away that concern. 0:22:20.240 --> 0:22:22.960 That's a good question. I think for a long time, 0:22:24.280 --> 0:22:27.720 Justice Roberts was dealing with a court that was really 0:22:27.760 --> 0:22:31.600 straddling an ideological lead avoid a bit where any case 0:22:31.600 --> 0:22:36.240 could come out five to four. Really truly, before Donald 0:22:36.280 --> 0:22:38.959 Trump took office, you know, the Supreme Court was still 0:22:39.359 --> 0:22:44.080 incredibly conservative. Even though it had a lot more ideological 0:22:44.080 --> 0:22:46.760 diversity on it, the court was certainly right of center. 0:22:47.000 --> 0:22:50.320 And you know, when Justice Kennedy left the bench a 0:22:50.359 --> 0:22:52.520 couple of years into Donald Trump's term, you know, the 0:22:52.560 --> 0:22:56.919 court went vastly right ward. But I think despite the 0:22:56.960 --> 0:23:02.240 Court's conservative dynamics before the Trump innistriction, John Roberts still 0:23:02.440 --> 0:23:05.439 had to cobble together coalitions, and I think that there 0:23:05.520 --> 0:23:09.200 was a sense that the American public was becoming increasingly liberal, 0:23:09.520 --> 0:23:12.240 especially on social issues and some of these kind of 0:23:12.240 --> 0:23:16.360 hot button issues that were very salient during the Aboma administration. 0:23:16.960 --> 0:23:19.080 I think there was a sense that he really had 0:23:19.119 --> 0:23:21.639 to keep together a coalition of five and so there 0:23:21.880 --> 0:23:25.880 might be some internal judicial politics at play there. It's 0:23:25.960 --> 0:23:28.200 really hard to say, but I think what we can 0:23:28.520 --> 0:23:32.119 for certain day is that he has seen, for whatever reason, 0:23:32.160 --> 0:23:34.320 the Court, you know, in his view, needs and can 0:23:34.400 --> 0:23:39.119 take a sharp turn. Right now, it's hard to understand exactly, 0:23:39.440 --> 0:23:42.960 I think without the perspective of more time to kind 0:23:42.960 --> 0:23:46.919 of grasp exactly what's happened there, but there is I 0:23:47.119 --> 0:23:53.119 think a noticeable shift in the Chief Justices perspective on 0:23:53.480 --> 0:23:56.639 the Court as an institution, in the institutional capital that 0:23:56.680 --> 0:23:59.240